author: CADENA, Chief Justice.

text:
    Harvey BAKER, Appellant, v. LOCKHEED AIRCRAFT SERVICE COMPANY et al., Appellees.
    No. 16053.
    Court of Civil Appeals of Texas, San Antonio.
    June 27, 1979.
    Rehearing Denied July 25, 1979.

      Pat Maloney, Jr., Jack Pasqual, Samuel C. Fried, San Antonio, for appellant.
    Jack Hebdon, Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellees.
   CADENA, Chief Justice.

Plaintiff, Harvey Baker, appeals from a judgment, based on jury findings, that he take nothing by his suit against defendants for breach of an alleged contract of employment under which Lockheed Aircraft Service Company, a division of Lockheed Corporation, was to employ plaintiff. The other defendant was Bob Savage, but no issues concerning the liability of Savage were submitted to the jury and we find nothing in plaintiff’s brief indicating that the judgment in favor of Savage was erroneous. For the purposes of this opinion, then, we shall treat Lockheed Aircraft Service Company (“Lockheed”) as being the only defendant before this Court.

The evidence may be summarized as follows:

1. Plaintiff, a retired United States Civil Service worker, learned that Lockheed was preparing to initiate a new project in Iran. He applied to Lockheed for employment on such project and in October, 1976, following some telephonic communications between plaintiff and Dennis Shea, Lockheed’s vice president in charge of Iranian operations, plaintiff flew to Lockheed’s offices in Ontario, California, for a personal interview. On the basis of this interview, plaintiff was considered a strong candidate for General Manager, Procurement, in connection with the proposed Iranian project.

2. Plaintiff then returned to San Antonio. On December 17, 1976, Shea telephoned plaintiff from California and told him, “the number one job is yours.” On December 21, 1976, Dale Lucas, Lockheed’s manager of professional personnel, telephoned plaintiff and offered a base annual salary of $28,600.00. Plaintiff expressed dissatisfaction with that figure. Lucas called plaintiff again the following day and told plaintiff that $28,600.00 was Lock-, heed’s highest figure. At that time plaintiff agreed to accept the offered salary. During this conversation Lucas told plaintiff, “Harvey, you have the job.” Lucas pointed out that plaintiff would have to leave for Iran shortly after January 1,1977, and requested that plaintiff make arrangements to receive the required innoculations and that he have passport pictures made. Plaintiff received the required innoculations and obtained the passport pictures.

3. Lucas, by telephone, had also told plaintiff’s wife that plaintiff “has the job” and agreed that Mrs. Baker should give her then employer notice of her intention to resign. At some period during these conversations, plaintiff was told that he would be able to stop over in Rome on his way to Iran for about three days to visit relatives.

4. Plaintiff testified that at no time during the oral negotiations was mention made of a written contract.

5. Under date of December 28, 1976, Lockheed sent a letter to plaintiff. This letter was as follows:

It is a pleasure to acknowledge your acceptance of our recent tentative offer of employment as referenced below. This offer is contingent upon you and, if on accompanied status, each of your accompanying dependents passing our physical examination, obtaining a passport and necessary visas, reference checks, successfully passing our test, if applicable, and your agreeing to the terms as outlined in the enclosed Summary of Benefits and Compensation.
We have arranged for you to report for personnel processing [at Ontario, California, at 8:00 a. m., January 10, 1977]. Please bring your original Social Security card and, if applicable, your military separation papers with you. You may indicate agreement by signing the copy of this letter on the line below and returning it in the envelope provided.
Your work assignment will be in Iran. Length of assignment is two years or until work assignment is complete, whichever comes first. You are provided per diem enroute and until housing is obtained unless food and lodging are provided directly or indirectly by the company or in-transit airline.
Please take immediate action on the items specified on the enclosed checklist. We look forward to your joining us. POSITION: General Department
Manager-Procurement
& Production
$550.00 per week BASE RATE:
ANNUAL OVERSEAS
BONUS: $8,580.00
TOTAL ANNUAL
SALARY: $37,180.00

Plaintiff signed the letter at the bottom and returned it to Lockheed.

6.On January 5, 1977, Lucas called plaintiff and told him he was no longer being considered for the job. On the same day, Lucas sent plaintiff a telegram in which he informed plaintiff that as a result of “further evaluation and assessment of” plaintiff’s “total qualifications for the position offered, . . . LAS is withdrawing its offer of employment.” The telegram added that plaintiff would be reimbursed for actual costs he may have incurred “relative to this offer of employment, such as photographs, innoculations, and passport . . . .”

In his petition, plaintiff alleged that he had accepted Lockheed’s offer of employment, and that the parties had intended that plaintiff would be employed by Lockheed for two years.

In its answer Lockheed alleged that it had made a tentative offer of employment contingent on certain matters, including a “reference check”; and, as a result of the reference check, including investigation of plaintiff’s prior employment history, Lockheed determined that plaintiff was not a proper candidate for the “job he was being considered for, and, therefore, he was not employed, and there never was a binding contract because the contingency requirement (reference check) was never satisfied.”

Only one liability-fixing issue was submitted to the jury. This issue, with the jury’s answer, was as follows:

Question No. 1: Do you find from a preponderance of the evidence that'the defendant . . . revoked its offer of
employment to the plaintiff for reasons other than information revealed by reference checks?
Answer “We do” or “We do not.”
We, the jury, answer: We do not.

In answer to issue no. 2, the jury fixed $28,000.00 as the amount of plaintiff’s damages.

Plaintiff’s first four points of error, as summarized in his brief, concern the failure of the trial court to award judgment to plaintiff for $28,600.00. Basically, plaintiff’s contention is that he and Lockheed entered into a binding contract of employment and that Lockheed’s claim that it was empowered to revoke its offer of employment because the offer was contingent upon “reference check” must be disregarded, since such contingency was “not mentioned or in any way included by the parties when they formed their intention to contract, and said parties did thereafter mutually assent, without reservation, to all the terms of said contract.”

Plaintiff concedes that under the statute of frauds, the agreement in question is unenforceable unless it, or a memorandum thereof, is in writing and signed by the person to be charged (Lockheed) or by someone authorized to sign for such person. Tex.Bus. & Com.Code Ann. § 26.01(a) (Vernon 1968) and § 26.01(b) (Vernon Supp. 1978-1979). However, plaintiff takes the position that the letter from Lockheed, dated December 28, 1976, is a sufficient writing to satisfy the requirements of the statute.

The letter falls short of evidencing the agreement which plaintiff seeks to enforce. It speaks of a “tentative” offer and unequivocally makes such offer subject to certain contingencies. Plaintiff’s reference to a binding unconditional contract can be supported only by considering the oral negotiations and alleged oral agreement antedating the written memorandum. Plaintiff’s position, simply stated, is that we treat the letter as sufficient to satisfy the requirement of a writing and then disregard the contents of the letter and enforce, instead, an oral agreement which differs in at least one essential respect from the writing.

With respect to agreements described in the statute of frauds, the statute requires that there be a written memorandum which is complete within itself in every material detail and which contains all of the essential elements of the agreement, so that the contract can be ascertained from the writing without resorting to oral testimony. Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex.1978). See also Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945).

It is, therefore, clear that what the courts may enforce is the written agreement, not the parol agreement which it purports to reflect. The written agreement in this case is subject to a condition precedent. If the memorandum reflected an unconditional binding agreement, an oral condition certainly could not be enforced because to enforce the oral condition would be “to change a binding contract . . . into a contingent contract.” Zeluff v. Ekman, 386 S.W.2d 838, 842 (Tex.Civ.App.—Houston 1965, no writ).

Plaintiff’s offer of oral testimony for the purpose of converting a conditional obligation into an unconditional one runs afoul of the parol evidence rule, and there can be no doubt that the writing must prevail. 2 C. McCormick and R. Ray, Texas Law of Evidence § 1634 at 490-91 (2d ed. 1956). The rule is applicable with greater force when, as here, the contract, to be enforceable, must meet the requirement of a writing. It is true that parol evidence concerning details which merely explain or clarify the essential terms appearing in the written instrument may be considered. However, the essential elements of the agreement may not be shown by parol.

Under points 5 and 6 plaintiff argues that Lockheed presented no evidence, or no admissible evidence, of the existence of any contingency or of the fact that Lockheed made reference checks.

The only written evidence of the agreement is the letter in question. It clearly shows an agreement subject to a contingency. There is no evidence of any other agreement enforceable by the courts. If we disregard the letter, Lockheed’s invocation of the statute of frauds would require the denial of plaintiff’s claim.

There is sufficient admissible evidence showing that a background investigation was, in fact, made by Lockheed. One of the defendants, Bob Savage, testified in unequivocal terms that he had interviewed several persons who had worked with plaintiff at plaintiff’s prior place of employment. He testified as to the information he received from such persons concerning plain'tiff’s self-motivation, inability to act without constant supervision, lack of leadership qualities and inability to “handle” people. We are not here concerned with the truth of the statements made to Savage by the persons he interviewed. Such statements are clearly admissible as evidence that the background check was made and that the statements themselves were made. Lucas was told of the unfavorable comments concerning plaintiff, and he testified that his decision to withdraw the offer of employment was based on such comments. Again, the truth of the statements is not in issue. The important fact is that the statements, whether true or false, were made, that Lucas was told of such statements, and that the decision not to employ plaintiff was based on the results of the investigation.

Points 7 through 11 assert that the court erred in denying plaintiff’s motion to disregard the answer to issue no. 1 and in denying plaintiff’s motion for judgment non ob-stante veredicto.

Plaintiff’s contention that Lockheed presented no evidence to support its claim that the reference checks were unsatisfactory rests on a misapprehension concerning the burden of persuasion in this case. Lockheed specifically pleaded the nonoccurrence of the condition precedent. When a promise is subject to a condition precedent, the promisor cannot be held liable until the occurrence of the condition. Hurst v. Rush, 514 S.W.2d 472, 475 (Tex.Civ.App.—Beaumont 1974, no writ). It was plaintiff’s burden to plead and prove that the condition precedent had been satisfied. Parkview General Hospital, Inc. v. Eppes, 447 S.W.2d 487, 490 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.). See also Modine Manufacturing Co. v. North East Independent School District, 503 S.W.2d 833, 842-43 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.).

Lockheed failed to produce Shea as a witness. Plaintiff argues that such failure gave rise to an unrebutted presumption that Shea’s testimony would have been unfavorable to Lockheed. This presumption, however, does not arise until the party having the burden of proof has made out a prima facie case. Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112, 117 (1942). The “presumption” is in reality no more than an inference which the trier of fact may draw from the absence of a witness. It concerns only the nature of the missing testimony, and it is proper jury argument to point out the absence of the witness and attempt to persuade the jury that his testimony would be of a certain nature. The failure to produce a witness does not constitute conclusive evidence of the existence of a controlling fact.

Plaintiff’s complaint that issue no. 1 was misleading and misunderstood by the jury cannot be considered because he failed to object to the form of the issue in the trial court. Tex.R.Civ.P. 274.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    C. A. REDGRAVE, Individually and d/b/a C-A-R Plan Acceptance Company, Appellant, v. Jack H. SCHMITZ, Appellee.
    No. 16121.
    Court of Civil Appeals of Texas, San Antonio.
    June 27, 1979.
    Rehearing Denied July 25, 1979.
    Charles E. Biery, Biery, Biery, Davis & Myers, San Antonio, for appellant.
    William H. Ferguson, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

This is an appeal from a judgment of the 37th District Court of Bexar County, Texas, awarding to Jack H. Schmitz, appellee, title and possession of a house and lot based on the ten-year statute of limitations. The thrust of appellant’s appeal in this case is that the evidence is factually and legally insufficient to support the court’s findings, implied or otherwise, that appellee held the property adversely to appellant for a period of ten years after repudiating his tenancy with appellant.

The evidence reflects that appellee acquired the deed to the property in 1959 by paying a cash consideration and assuming a purchase m.oney note. Appellee has been in continuous peaceful possession of the property from 1959 to the present through occupancy of the house himself, through renters, or through persons to whom he had sold the property under contracts of deed. Appellee has always made the mortgage payments, paid the taxes, paid the insurance, and made the necessary improvements. Appellant did. none of these things, nor did he ever talk to appellee or any of the other occupants of the house.

In 1966 appellee purchased an automobile and executed a promissory note for the purchase money. Appellant acquired the note from the holder, and thereafter appel-lee made two payments to appellant, but made no more. Appellant subsequently brought a suit against appellee in the County Court at Law No. Two of Bexar County to collect the balance on the note and obtain a default judgment against appellee in November 1966. Appellant then caused a writ of execution to be levied upon the subject property to satisfy the judgment. The house was sold to appellant at a sheriff’s sale on February 7, 1967. The sheriff’s deed to appellant was duly recorded in the Deed Records of Bexar County, Texas, on February 16, 1967. Appellant argues that appellee became his tenant at sufferance and could not acquire title by limitation without showing that he had given appellant notice of the repudiation of the tenancy. We disagree with this contention.

Appellant testified that he never made an attempt to get possession of the house, but did try to find out who was living there. He testified that within thirty days from the date of the sheriff’s sale he went by the house and knocked on the door. He saw evidence of occupancy and believed someone was there, but no one would answer the door. He went by the premises over one hundred times, but no one ever answered the door. In this regard, the appellant testified as follows:

Q You said you went there on occasions and people would not come to the door?
A No, sir, you could knock on the door and you had to believe someone was there, you know. The car was in the driveway. You would knock on the door and watch the window and you could see the blind come back a little bit and you could not see who was looking out, but you could see it moving the blinds and no one would ever come to the door.
Q And you attempted and made efforts to get possession of your house for the last ten years?
A I didn’t say “made attempts to get possession.” I was trying to find out who was living in the house and who was holding the property.
Q Any efforts you made have been resisted?
A I wouldn’t — no one came to the door.
Q Nobody would help you?
A Nobody came to the door at all.
Q Nobody helped you at all? All right. Now then, your note, your balance, was for $460.00 plus $200.00, which made a total of $660.00, is that correct?
A Probably so.
Q And according to this instrument, it bears six per cent interest, is that correct?
A I don’t recall whether it was six or ten.
Q Four hundred sixty dollars together with interest at the rate of six percent—
A This is on the—
Q On the original judgment.
A The judgment, yes.
Q Is that correct?
A I take that to be correct, yes, sir.
Q Now, I notice from the various exhibits that have been filed here that you have reabstracted your judgment?
A Yes, sir.
Q You are making demand on him to pay you now?
A I believe that is—
Q Is that correct?
A That is correct. There is a balance owing on the judgment, as anybody can see.
Q Well, so far you haven’t—
A I’m not making demand for the property itself now.
Q You are not making any demand? All right. Pass the witness.

From the very beginning, appellant knew that someone adverse to him and to his ownership of the property was in possession of the property. Appellee’s adverse possession of the property commenced on the rec-ordation of the sheriff’s deed on February 16,1967, and continued to the date this suit was filed on March 30, 1977, which is a period of ten years and forty-four days.

The evidence in this case does not show that the appellee was a tenant of appellant. A tenant is generally one who occupies the land or premises of another in subordination to the other’s title. The rule is correctly stated in 51C C.J.S. Landlord and Tenant § 2(2) (1968) as follows:

It is essential to the relation of landlord and tenant that the occupancy by the tenant be in subordination to the rights of the landlord, as well as permissive; mere assent to the occupancy by the owner is not sufficient, allegiance to the title of the landlord being one of the distinguishing characteristics of the relationship.

The evidence in this case establishes that the occupancy of the house by appellee was not in subordination to the rights of the landlord. A tenancy may be either express or implied. Factual situations where an implied tenancy has been found were discussed by this court in Park v. Sweeten, 270 S.W.2d 687 (Tex.Civ.App.—San Antonio 1954), aff’d, 154 Tex. 266, 276 S.W.2d 794 (1955). In Park v. Sweeten the court recognized three situations in which the claimant must show notice of repudiation of an implied tenancy relationship as follows: “(1) the grantor retains possession after the execution of a deed, (2) the losing party in an adversary suit retains possession after judgment is rendered against him, and (3) a party who has consented to a judgment divesting him of title nevertheless retains possession.” Id. at 690. In each of these three situations, the presumed tenant was a party to the act that transferred title. This case does not fit into any of the three situations listed above. Appellee had no notice of the sheriff’s deed and therefore had no occasion to give actual notice to appellant of his adverse claim. Under the facts of this case, it cannot be presumed that the appellee held possession of the house in recognition of appellant’s title.

The judgment of the trial court is affirmed.

      . Article 5510, Texas Revised Civil Statutes.


text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Leopoldo S. CERVANTES, Appellee.
    No. 16144.
    Court of Civil Appeals of Texas, San Antonio.
    June 29, 1979.

      Gerald R. Ratliff, David T. Edwards, Ratliff & Edwards, San Angelo, for appellant.
    Morriss & Sherrill, Sonora, Will A. Mor-riss, Jr., Morriss, Boatwright & Lewis, San Antonio, for appellee.
   OPINION

CADENA, Chief Justice.

Defendant, Texas Employers’ Insurance Association, appeals from a judgment awarding plaintiff, Leopoldo S. Cervantes, compensation for permanent and total disability and ordering that such compensation be paid in a lump sum all in accordance with the jury findings.

Defendant’s brief contains 16 points of error. The first 11 points question the legal and factual sufficiency of the evidence to support the finding of permanent and total disability and the finding that payment of compensation in weekly installments instead of a lump sum payment would result in manifest hardship to plaintiff. Points 11 and 12 relate to alleged misconduct of the court in greeting and shaking hands with one of plaintiff’s witnesses in the presence of the jury. Point 14 complains of the ruling by the trial court barring a representative of plaintiff’s employer from testifying because he had been present in the courtroom in violation of the “rule”. Point 15 seeks reversal on the ground that the trial court improperly limited the scope of cross-examination of plaintiff by counsel for defendant, and the last point asserts that the cumulative effect of the alleged errors is such as to require reversal.

Plaintiff, an employee of the Permian Corporation, was injured on April 4, 1973, during the course of his employment as driver of a transport truck. On the day of his injury, plaintiff, after draining the liquid from the tank, noted that the gauge on the tank showed that the tank still contained 170 barrels of liquid. He climbed to the top of the tank to open the hatch and look into the tank to determine if it still contained liquid. When he opened the hatch there was an explosion which blew him off the tank. He reached out and grasped a ladder on the side of the truck and this caused his body to “bounce back” so that his back struck the side of the tank.

I. SUFFICIENCY OF THE EVIDENCE

There can be no doubt that this court, when faced with a “no evidence” point, will consider only the evidence, and the inferences which such evidence reasonably permits, which will support the challenged findings, disregarding all evidence and inferences to the contrary. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957). On the other hand, an “insufficient evidence” point requires that we consider and weigh all of the evidence, whether it supports the finding or not, to determine whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

A. Disability

At the time of trial plaintiff was 52 years of age. After he had completed the sixth grade of schooling he began working on a ranch, performing such duties as breaking horses, working stock, etc., all of which he classified as “hard work.” He was an artillery man during World War II and after that conflict he worked in the oil fields as a “roughneck floor hand” on drilling rigs. He continued performing work of this nature until January, 1973, when he began working for Permian Corporation (Permian). Until the time of the accident he drove an 18-wheel tractor transport, which he described as a tank which is pulled by a tractor. His job consisted of hauling various liquids to and from oil and gas wells. He described his duties -as hard work. Whenever the truck had a flat tire, which occurred often while driving in the fields, it was his responsibility, as the driver, to change wheels.

The undisputed evidence clearly supports the conclusion that plaintiff had always earned his livelihood by performing duties which involved strenuous physical activity.

In May, 1973, about three weeks after the accident, plaintiff resumed working as a truck driver for Permian.. He testified that he was compelled to do so because he was “in a very tight financial position.” He was required to pay $300.00 per month for the support of his children by a prior marriage and he listed additional monthly obligations in excess of $500.00 per month.

Prior to the accident he always worked at least a 12-hour shift every day, seven days a week, and often worked a double shift. After the injury he was able to work a full shift “a few times”, but when he did so he was “hurting bad.” His back was very sore and he had to take medication, prescribed by his doctor, including pain-killers. The pain between his waist and shoulder blades persisted and he suffered from “terrible” headaches once or twice a week. He is unable to do heavy lifting without experiencing pain which is of such intensity that it often makes it impossible for him to sleep at night. He lacks strength in his right arm and right hand and often experiences cramps. As a result, he drops “a lot of things.” His right arm gets “shaky” and his shoulder quivers so that, at times, he is unable to hold even a cup of coffee. The skin on his right hand, which was burned, bruises easily and bleeds if he strikes it against anything. His right leg often becomes numb. He had none of these problems prior to the injury. He continued working for Permian until September, 1975, when he left such employment after consulting his doctor.

Plaintiff’s present wife operates a restaurant and a convenience store which she purchased with her separate funds. After leaving Permian, plaintiff attempted to assist in the operation of both enterprises but was unable to be of much help because of his inability to lift things. The pain in his back required that he sit down frequently and he was unable to work an 8-hour shift.

Plaintiff’s wife testified about his complaints of pain. After the accident, when plaintiff came home from work he was in great pain. She testified concerning his headaches, numbness in the right leg and pain in the back, and described how his right hand would begin to twitch to such an extent that he could not hold things. On occasions his right shoulder would tremble and “quiver like jello”. He was unable to be of much help at the restaurant and the convenience store.

Permian’s dispatcher and lead driver worked with plaintiff both before and after the accident. Prior to his injury, plaintiff always worked at least one 12-hour shift daily and often worked a double shift. He described plaintiff as one of his best workers. Also, prior to the injury, plaintiff would haul at least one load a day more than any of the other drivers “as a matter of routine”. After the injury, plaintiff often failed to “put in a full day”, going home at three or four o’clock in the afternoon. Plaintiff would just “play out on us, just tired”, and this witness often sent plaintiff home to rest. After the accident, plaintiff was unable to change wheels on the trucks in case of a flat tire and his fellow workers would have to change wheels for him because of his inability to lift the heavy wheels. Plaintiff often complained of pain and discomfort “about headaches and also his back.”

Another of plaintiff’s fellow employees testified substantially to the same effect, adding that he observed that plaintiff had difficulty using his hands and legs and was unable to do all the work required of a driver for Permian. This witness said that plaintiff could not “operate like a normal person” after his injury and could not perform his duties “like a normal person.”

Dr. Charles F. Brown, who had been plaintiff’s doctor for about 13 years, testified concerning plaintiff’s complaints of pain in the neck and back, difficulty in moving, pain when lifting, bending, stooping, squatting “and things of that nature.” In his examination of plaintiff he found areas of tenderness which are discoverable by palpitation because of the presence of muscle spasms which can be felt by the examiner. This doctor noted outbreaks of shingles along the base of plaintiff’s skull, one of the sites of the pain of which plaintiff complains. He described shingles as small blisters that result from the disturbance of a nerve or nerves in the cervical area and said that in reasonable medical probability the shingles were caused by plaintiff’s injury.

This doctor testified that plaintiff was disabled from doing any of the heavy kind of work which he had done prior to his injury, and that plaintiff would be unable to pass a physical examination “for any of the oil companies or for any of the oil field work.” He stated that in reasonable medical probability plaintiff’s condition would not improve and that “in this type of injury, if it isn’t beginning to get better in five years, it’s more apt to get worse instead of stay the same.” During the past five years plaintiff’s condition has not improved, and he added, “if anything, his disabilities have become worse.”

No extended discussion is required to defend the conclusion that the evidence summarized to this point is some evidence, more than a scintilla, that plaintiff is totally and permanently disabled.

In support of its contention that the evidence is factually insufficient, defendant relies primarily on the fact that plaintiff returned to work about three weeks after the accident and on the testimony of the physician who testified in favor of defendant. Without detailing the testimony of defendant’s medical witness, it can be said that he testified that, as of the date of trial, plaintiff was suffering from no disability. This doctor admitted that x-rays of the type he had made in plaintiff’s case would not show any serious and permanent injury to nerves and muscles which could result from a'n accident such as that in which plaintiff was involved.

In Trinity Universal Insurance Co. v. Scott, 342 S.W.2d 348, 349 (Tex.Civ.App.—Fort Worth 1961, writ ref’d n. r. e.), the court said that where there is prima facie evidence which supports a finding of total and permanent disability the judgment will not be reversed “merely because there is evidence in the same record which establishes that the disabled employee is in fact working and earning money”, and that this is “true regardless of the amount of money being earned.” See also, Texas Employers’ Insurance Ass’n v. Wilson, 563 S.W.2d 685 (Tex.Civ.App.—Fort Worth 1978, no writ); Liberty Mutual Insurance Co. v. Rodriguez, 537 S.W.2d 522 (Tex.Civ.App.—San Antonio 1976, no writ). The evidence here is clearly sufficient to support the conclusion that plaintiff’s attempt to return to his former employment was in response to economic necessity.

The conflict in the testimony of the two expert witnesses did no more than create an issue of fact which the jury resolved in favor of plaintiff. We cannot say that the jury finding of permanent and total disability is so contrary to the weight and preponderance of the evidence as to be manifestly unjust. See State Highway Department v. Maris, 532 S.W.2d 690 (Tex.Civ.App.—Texarkana 1976, no writ); Texas Employers’ Insurance Ass’n v. Washington, 437 S.W.2d 340 (Tex.Civ.App.—Dallas 1969, writ ref’d n. r. e.).

B. Lump Sum Payment

Defendant asserts that the finding that payment of compensation in weekly installments would result in manifest hardship cannot stand in view of the evidence that plaintiff owns three mobile homes which he rents to tenants and that he has additional income derived from assisting his wife in the operation of the convenience store. Defendant also calls our attention to the fact that plaintiff, in order to become a candidate for the office of county commissioner, posted a $300.00 filing fee.

At the present time, plaintiff’s child support payments have been reduced to $150.00 per month. He owes on two notes in the aggregate sum of $20,000.00. Another outstanding indebtedness is in the amount of $1,000.00, calling for payments of $100.00 per month. ■ His net income from the mobile home park is $40.00 per month. He has nothing to do with the restaurant and convenience store owned by his wife and does not know what income is. derived from such operations. He receives no pay for his efforts to help his wife. One of his children wants to go to college and he is anxious to give this child a college education as he has done for all his other children. The amount he would receive as compensation under the statute if payable in weekly installments would be $49.00 per week, less' $12.25 payable to his attorney. The amount of monthly payments specifically enumerated by plaintiff is in excess of $500.00 per month.

The question of payment in a lump sum is a matter left largely to the discretion of the trier of fact. Texas Employers' Ins. Ass’n v. Long, 180 S.W.2d 629 (Tex.Civ.App.—Austin 1944, writ ref’d w. o. m.). It has been pointed out that the courts of this state have uniformly held that the payment “ ‘of lump sum is to be determined as a matter of opinion, rather than as a matter of fact based upon the evidence in the more usual sense.’ ” American General Ins. Co. v. Ariola, 187 S.W.2d 585, 588 (Tex.Civ.App.—Galveston 1945, writ ref’d w. o. m.). See also, Texas Indemnity Ins. Co. v. Arant, 171 S.W.2d 915, 918 (Tex.Civ.App.—Eastland 1943, writ ref’d w. o. m.). In this case, unlike the situation before the court in Federal Underwriters Exchange v. Hinkle, 167 S.W.2d 307 (Tex.Civ.App.—Fort Worth 1942, writ ref’d w. o. m.), the evidence supports the conclusion that plaintiff is not able to work and make a living for himself.

We are not inclined to disturb the jury finding. '

II. MISCONDUCT OF COURT

Counsel for defendant orally moved for a mistrial on the ground that as plaintiff’s medical expert left the stand the trial judge reached out and shook hands with him. Assuming that counsel’s statement establishes that the court did shake hands with the witness and that such action was improper, we cannot hold that the act prevented defendant from receiving a fair trial.

III. BARRING TESTIMONY BY “REPRESENTATIVE”

Defendant called, as its second witness, Aubrey Pool. Plaintiff’s objection on the ground that the rule had been invoked and that the witness had been present in the courtroom at all times was sustained and the witness was not permitted to testify-

Defendant at no time informed the court that this witness, an employee of Permian, would be sitting at the counsel table as a “representative” of defendant in order to assist counsel. No request was made that the witness be excused from the operation of the rule.

Rule 267, Tex.R.Civ.P., provides that when the “rule” has been invoked in a case where a corporation is a party to the suit “the court may exempt from the rule an officer or other representative of such corporation to aid counsel in the presentation of the case.” Had Pool been identified at the outset as both the “representative” of defendant and a witness, plaintiff had the right to move that he be placed under the rule and excluded from the courtroom, since Rule 267 clearly vests the trial court with discretion to exempt such representative from the rule. At that time, the trial court could have inquired into the surrounding circumstances and determined whether such representative should be allowed to remain in the courtroom. Had plaintiff successfully moved that Pool not be allowed to remain in the courtroom, the exclusion of the witness would not have been disturbed absent a showing of abuse of discretion. See Missouri Pacific Railroad Co. v. Cunningham, 515 S.W.2d 678, 685 (Tex.Civ.App.—San Antonio 1974, no writ); Texas & New Orleans Railroad Co. v. Ivey, 283 S.W.2d 78, 81-82 (Tex.Civ.App.—El Paso 1955, no writ).

Defendant cannot be allowed, by his failure to call the court’s attention to the dual status of Pool as representative and witness, to curtail the court’s discretion in determining whether Pool would be allowed to remain in the courtroom and to also testify. The record does not reflect that no other employee or representative of defendant or of Permian was available at the site of the trial who would have been able to sit in the courtroom and assist defendant’s counsel. The record, in fact, reflects the contrary, since the testimony of defendant’s first witness indicates that several other employees of Permian knew as much about the case as did Pool.

According to defendant’s bill of exception, Pool would have testified only that he saw plaintiff at work after his injury and that plaintiff “did a very good job.” Defendant’s first witness testified substantially to the same effect and added that he had seen plaintiff, after his injury, change tires on the truck without help from any other person. We do not have here, as was the case in Johnson v. Cooley, 30 Tex.Civ.App. 576, 71 S.W. 34, 37 (Galveston 1902, no writ), a situation where the barred witness was the only source from whom the testimony could be elicited. Substantially the same testimony had been elicited from another defense witness and the record shows that other persons had observed plaintiff at work after his injury.

No abuse of discretion is shown.

IV. RESTRICTION OF CROSS-EXAMINATION

Point 15 states that during defendant’s cross-examination of plaintiff, the trial court refused to permit questions concerning statements made by plaintiff to Dr. Cecil M. French in the course of a routine physical examination.

The record reflects that during this portion of the attempted cross-examination counsel for defendant had in his hand an instrument which he said was the report of a physical examination of plaintiff made by Dr. French. The extended argument concerning the proper scope of cross-examination is rather confusing, since at times the attorneys and the court appear to have been discussing the admissibility of Dr. French’s report, while at other times the discussion concerned the right of defendant to question plaintiff concerning the statements plaintiff made to Dr. French during the course of such examination. At one point the court said that questions as to statements made by plaintiff to the doctor were admissible.

Counsel for defendant asked plaintiff if it was not a fact that he had told Dr. French that he had had “no trouble with” his “head or spinal injuries.” The witness replied that he did not recall making such statement. At this point plaintiff’s counsel objected and there followed a long discussion but the record reflects no ruling by the court. Dr. French was not called as a witness nor was any effort made to introduce his report in evidence.

It is clear that defendant was allowed to ask the question concerning previous head or spinal injuries and the witness simply answered that he recalled making no such statement. Defendant does not, in its brief, call our attention to any other specific questions which concerned statements made by plaintiff to Dr. French and which defendant was precluded from asking. If there were, in fact, such questions, there is no bill of exception revealing what the witness would have answered. There is no error.

Defendant’s final contention that the cumulative result of the “errors” committed by the trial court deprived defendant of a fair trial is without merit.

The judgment of the trial court is affirmed.


author: COUNTISS, Justice.

text:
    HIGHWAY CONTRACTORS, INC., Appellant, v. WEST TEXAS EQUIPMENT COMPANY, INC., Appellee.
    No. 9095.
    Court of Civil Appeals of Texas, Amarillo.
    June 29, 1979.

      Culton, Morgan, Britain & White, W. H. Brian, Jr., Amarillo, for appellant.
    Gibson, Ochsner & Adkins, Marvin W. Jones, Amarillo, for appellee.
   COUNTISS, Justice.

West Texas Equipment Company, Inc. brought this sworn account action against Highway Contractors, Inc., seeking recovery of sales tax, penalty, interest and attorney’s fees. The equipment company alleged that it was required to pay sales tax, penalty and interest to the State of Texas as a result of certain business transactions with the contractor and that those expenditures were in reality the obligation of the contractor, for which the equipment company was entitled to reimbursement.

Both parties filed motions for summary judgment. In its motion, the equipment company alleged that there was no genuine issue as to any material fact, “except as to the amount of reasonable attorney’s fees to which Plaintiff may be entitled . . . .” In its concluding numbered paragraph and again in its prayer, the equipment company requested a trial on the merits on the question of attorney’s fees if successful on the other aspects of its motion for summary judgment.

After hearing both motions for summary judgment the following exchange occurred between counsel and the trial court:

THE COURT: I’ll grant the Summary Judgment for West Texas. Go figure up the amount.
MR. JONES: Judge, I think the amount here is $1,770.12.
THE COURT: How much?
MR. JONES: $1,770.12.
THE COURT: Tax and penalty—
MR. JONES: I believe the interest will run at six percent from April 1st, 1974.
THE COURT: Post judgment nine percent.
MR. JONES: Yes, sir.
THE COURT: Anything else?
MR. JONES: Again we pray for attorney’s fees, and with the Court’s permission I’d like to set a hearing on that at a later time.
THE COURT: All right, I’ll do that.

On March 15, 1979, the trial court signed the judgment granting the equipment company summary judgment on the account plus penalty and interest. The judgment appears to be final on its face but does not sever or resolve the issue of attorney’s fees and does not assess court costs. On March 20, 1979, the district clerk mailed a Rule 306d, Tex.R.Civ.P., notice to contractor’s counsel.

On April 4, 1979, the equipment Company’s counsel asked the trial court to set the attorney’s fees question for trial and the contractor’s counsel responded on April 6, 1979, that the judgment appeared to be final but if further proceedings were to be held that they be held the early part of the week of April 9. The trial court took no action on the request for trial and the contractor perfected its appeal to this court. The equipment company has now filed a motion to dismiss the appeal for want of jurisdiction, contending that the judgment is interlocutory until the issue of attorney’s fees is resolved.

We find that the judgment is interlocutory and accordingly grant the motion to dismiss the appeal for want of jurisdiction.

The resolution of the question before the court depends upon the intention of the trial court gathered from the language of the decree, the record as a whole and the conduct of the parties. Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945, 947 (1960); Gregory v. Lytton, 422 S.W.2d 586, 589 (Tex.Civ.App.—San Antonio 1967, writ ref’d n.r.e.); Thomas v. International Seamen’s Union of America, 101 S.W.2d 328, 332 (Tex.Civ.App.—Beaumont 1937, no writ); 4 R. McDonald, Texas Civil Practice, § 17.03.1 (rev.1971). To be final a judgment must dispose of all issues and parties so that no future action by the court is necessary in order to settle and determine the entire controversy. Davis v. McCray Refrigerator Sales Corporation, 136 Tex. 296, 150 S.W.2d 377 (1941); Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 892 (1956); McCormick v. Hines, 503 S.W.2d 333, 335 (Tex.Civ.App.—Amarillo 1973, no writ). That is not to say that a judgment must speak to each issue raised in the trial court because a judgment not intrinsically interlocutory in character will be presumed to dispose of all parties and issues before it in the absence of a contrary showing in the record. North East Independent School District v. Aldridge, 400 S.W.2d 893, 897-898 (Tex.1966). If the judgment is determined to be interlocutory from an examination of the entire record, the party against whom it has been rendered will have a right of appeal when, and not before, the same is merged in a final judgment disposing of the whole case. Hewitt v. Nielsen, 553 S.W.2d 248, 250 (Tex.Civ.App.—Austin 1977, no writ); Clabaugh v. City of Tyler, 531 S.W.2d 152, 154-155 (Tex.Civ.App.—Tyler 1975, no writ).

Applying the foregoing rules to the case before us, it is clear that the judgment in the ease is interlocutory. The judgment recites the hearing of the motions for summary judgment filed by the parties, denies the motion of the contractor and grants summary judgment for the equipment company. Presumably the court was granting only the relief sought in the equipment company’s motion and from the outset of the summary judgment proceeding the equipment company sought only an interlocutory summary judgment. Also, the judgment does not assess court costs. At the conclusion of the hearing, after the court had announced its intention to grant the equipment company’s motion, a request was again made for a hearing to resolve the question of attorney’s fees and the court agreed to make a setting. The same request was subsequently made by letter after the judgment in question was signed. Thus, an examination of the decree, the record as a whole and the conduct of the parties compels the conclusion that the judgment is merely interlocutory and non-appealable.

We note also that a contrary resolution of the question would result in substantial injustice. The equipment company took reasonable steps to preserve its claim for attorney’s fees, but will have lost the right to present that claim if the judgment is deemed final, since the issue was not severed and more than thirty days have elapsed since entry of the judgment in question. Rule 329(b), Tex.R.Civ.P.

Accordingly, the appeal is dismissed and costs are taxed against Highway Contractors, Inc.


author: McCLOUD, Chief Justice.

text:
    Lavoyd Wayne HARDIN, Appellant, v. Joan Murle HARDIN, Appellee.
    No. 5313.
    Court of Civil Appeals of Texas, Eastland.
    July 5, 1979.
    Rehearing Denied July 26, 1979.

      Jim Parker, Comanche, for appellant.
    Keith Woodley, Sudderth, Woodley & Dudley, Comanche, for appellee.
   McCLOUD, Chief Justice.

Plaintiff, Joan Murle Hardin, sued her former husband, Lavoyd Wayne Hardin, on a promissory note in the original principal sum of $25,000. On the date set for trial, defendant attempted to file an amended answer containing several affirmative defenses. The court denied defendant leave to file the amended pleading. The case proceeded to trial, and the court entered judgment for plaintiff for $23,500 plus interest and attorney’s fees. The court also ordered foreclosure of a deed of trust lien, securing the note, on property owned by defendant. Defendant has appealed. We reverse and remand.

Defendant filed a pro se answer on July 28, 1978. The case was set for trial for October 20, 1978. Defendant employed an attorney on October 18,1978. The attorney on that date filed a motion for continuance which was granted continuing the case until October 27, 1978. On October 27, 1978, the attorney filed a second motion which was granted continuing the case until November 2, 1978. On November 2, 1978, defendant and his attorney were present for trial and at that time attempted to file an answer amending the original handwritten "answer” filed by defendant. The court refused to grant leave to file the amended pleading.

Defendant states in his brief that the continuance granted by the court on October 27, 1978, continuing the case to November 2, 1978, was for the “purpose of filing pleadings.” This statement is not challenged by appellee. Tex.R.Civ.P. 419. Defendant points out that there are only six days between October 27 and November 2.

Tex.R.Civ.P. 63 provides:

Parties may amend their pleadings, file suggestions of death and make representative parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any amendment offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party. (Emphasis added)

The rule clearly requires that the party opposing an amendment show that such amendment will operate as a “surprise” to him. Plaintiff’s only objection to the tendered amendment was that it had not “been filed within the seven day rule.” He made no objection, as required by Rule 63, that the proposed amended answer would “operate as a surprise”, to him. There is no “showing” in the record that the amendment would operate as a surprise. The record will not support an implied finding by the trial court that the amendment would operate as a surprise. There are several cases holding that it is not an abuse of discretion to deny leave to file an amendment on the day set for trial. In those cases, however, there was an objection that the amendment would operate as a surprise. Box v. Associates Investment Company, 389 S.W.2d 687 (Tex.Civ.App.—Dallas 1965, no writ); Roeber v. DuBose, 510 S.W.2d 126 (Tex.Civ.App.—Corpus Christi 1974, no writ). No such objection was made in the instant case. Also, this is not a ease where the transcript merely shows the amendment was tendered and refused. Herrin Transportation Co. v. Parker, 425 S.W.2d 876 (Tex.Civ.App.—Houston (1st Dist.) 1968, writ ref’d n. r. e.); Patino v. Texas Employers Insurance Association, 491 S.W.2d 754 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.). The statement of facts in the instant case reflects clearly the circumstances surrounding the tendered amendment and the objections thereto.

We hold that the trial court, since the objection failed to assert surprise and there is no showing of surprise, abused its discretion in not granting leave to file the amended answer. See Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948).

Judgment of the trial court is reversed, and the cause is remanded for a new trial.


author: McDONALD, Chief Justice.

text:
    Bob BULLOCK, Comptroller of Public Accounts, Appellant, v. LONE STAR INDUSTRIES, INC., Appellee.
    No. 6068.
    Court of Civil Appeals of Texas, Waco.
    July 5, 1979.
    Rehearing Denied Aug. 2, 1979.

      Mark White, Atty. Gen., John W. Fainter, Jr., First Asst. Atty. Gen., Ted L. Hartley, Executive Asst. Atty. Gen., Martha E. Smiley, R. L. Lattimore, Asst. Attys. Gen., Austin, for appellant.
    Dennis Reese, Small, Craig & Werken-thin, Austin, for appellee.
    Emily A. Parker, Thompson & Knight, Austin, for amicus curiae.
   OPINION

McDONALD, Chief Justice.

This is an appeal by the Comptroller of the State of Texas from judgment decreeing Lone Star Industries recover $103,-995.56 in sales taxes paid under protest.

Plaintiff Lone Star sued defendant Bullock, Comptroller, to recover $32,943.76 sales taxes paid under protest on plaintiff’s purchase of carbon steel grinding balls, and $71,051.80 paid on purchase of a floating clamshell dredge. Plaintiff contended the dredge was a vessel and not taxable under Article 20.04 of the Limited Sales, Excise and Use Tax Act; and that the steel grinding balls were not taxable under such Act because, as used they were ingredients or component parts of the cement and were used or consumed as a necessary or essential performance in its manufacture. All facts were stipulated by the parties.

The trial court rendered judgment for plaintiff for all the relief sought.

Defendant Comptroller appeals.

Defendant’s 1st contention asserts the trial court erred in holding the dredge is a “vessel” as that term is used in Article 20.04(P)(1) and defined by the Comptroller since October 1, 1969 and therefore exempted by said Article from taxation.

Article 20.04(P)(1) VATS exempts from the sales, excise and use taxes “receipts from the sale of * * * vessels * * * or barges of 50 tons displacement and over built in .this State, and the receipts from the sale of such ships, vessels or barges when sold by the builder thereof * * *

The Comptroller in its amended ruling No. 95-0.14 effective October 1, 1969 defined vessels:

“Vessels. The term ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used as a means of transportation on water”.

The stipulations reflect that $71,051.80 of the taxes paid under protest and here in controversy were on the purchase by plaintiff of the floating clamshell dredge; that same has over 50 tons displacement; that it was built in Texas; that it dredges gravel and sand from a waterfilled cut 400 to 600 feet wide located near the Colorado River in Colorado County, Texas; that it is mounted on 38 floating pontoons; that it has a triple crane affixed to a floating platform designed for lifting sand and gravel; it mines sand and gravel at an average depth approximately 80 feet below the surface of the water; the dredge has always been located in water; the dredge contains and carries on its platform all the equipment necessary for dredging the sand and gravel from the bottom of the cut; plus a crew of 4 with area provided for storage and sleeping quarters if necessary; it traverses the width of the cut and lengthens same some 75 feet weekly; the movement of the dredge is controlled by the operator and can move in any direction; but it could be moved by external means of propulsion such as a tug; it has made cuts of up to 5000 feet long; it could be used for dredging in the Colorado River or operated offshore in some areas of the Gulf of Mexico; during operations it is used as a means of transportation for its crew, the equipment, and various supplies and dredging equipment.

The Comptroller’s definition of a vessel is identical to the definition of a vessel in 1 U.S.C.A. Section 3. Federal courts interpreting such definition hold dredges with the physical characteristics of plaintiff’s dredge are “vessels” within the meaning of the statutory definition. Ellis v. United States, 206 U.S. 246, 27 S.Ct. 600, 51 L.Ed. 1047; Senko v. La Crosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404; Early v. American Dredging Co., D.C., 101 F.Supp. 393; Wilkes v. Mississippi River Sand & Gravel Co., 6 Cir., 202 F.2d 383; Gahagan Const. Corp. v. Armao, 1 Cir., 165 F.2d 301; McKie v. Diamond Marine Co., 5 Cir., 204 F.2d 132; Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931; Jeffrey v. Henderson Bros., 4 Cir., 193 F.2d 589; Summerlin v. Massman Const. Co., 4 Cir., 199 F.2d 715.

Plaintiff’s dredge meets all of the requirements necessary to be a “vessel” under both the Comptroller’s definition and the federal cases interpreting and applying that definition.

Contention 1 is overruled.

Contention 2 asserts the trial court erred in holding the steel grinding balls exempt from taxation because parts thereof entered into and became an ingredient or component part of the manufactured cement and that such use or consumption thereof was necessary or essential to the manufacturing process.

Article 20.04(E)(1) VATS provides exemptions for (a) tangible personal property which will enter into and become an ingredient or component part of tangible personal property manufactured for retail sale.

The stipulations reflect plaintiff manufactures Portland cement at plants in Texas for ultimate sale at retail; in the process of manufacturing the cement the raw material enters grinding mills where thousands of carbon steel grinding balls ranging in size from 1 to 5 inches in diameter mix with the raw materials and grind it to a fine consistency; later grinding balls are again added which reduce the raw materials to powder finer than flour; the grinding action causes the balls to wear down and the worn portion becomes a component part of the finished product; the grinding balls contribute to both the chemistry and color of the cement; 98% of the material in each grinding ball ends up in the finished cement; iron is a constituent of Portland cement; the grinding balls contribute 3.5% of the total iron content of the finished product; the grinding balls are carried on plaintiff’s books as a cost of goods sold and not as a capital asset. $32,943.76 of the taxes paid under protest were on the carbon steel grinding balls.

The Alabama Supreme Court in State v. U. S. Steel Corp., 281 Ala. 553, 206 So.2d 358 interpreting Alabama’s “ingredient or component part” sales tax exemption which is identical in substance to the Texas statute, upheld the exemption.

We think the steel balls were tangible personal property which entered into and became an ingredient and component part of the cement manufactured by plaintiff and that same was exempted under the statute from the sales tax.

Contention 2 is overruled.

The judgment is affirmed.

      . Prior to October 1, 1969 the Comptroller had and excepted from its coverage dredges. a more restrictive definition of the term “vessel”,


author: O’QUINN, Justice.

text:
    AMOCO PRODUCTION COMPANY, Appellant, v. Bob BULLOCK, Comptroller of Public Accounts, et al., Appellees.
    No. 12963.
    Court of Civil Appeals of Texas, Austin.
    July 11, 1979.
    Rehearing Denied Aug. 1, 1979.

      C. Morris Davis, Marc O. Knisely, McGin-nis, Lochridge & Kilgore, Austin, for appellant.
    Mark White, Atty. Gen., Gilbert J. Ber-nal, Jr., Asst. Atty. Gen., Austin, for appel-lees.
   O’QUINN, Justice.

Amoco Production Company brought this lawsuit in 1975 to recover in excess of $295,-000 alleged to be unlawfully withheld by the Comptroller of Public Accounts as part of more that $718,000 in overpayments by Amoco of franchise taxes in the years 1963 through 1971, admitted by the Comptroller to be subject to refund, or tax credits, under Article 1.11, Title 122A, Taxation-General. The sum withheld by the Comptroller was the amount of a deficiency the Comptroller claimed due for the year 1962. Amoco also sued for an additional sum of nearly $109,000 in taxes Amoco claimed it overpaid to the Comptroller for 1962, the same year of the claimed deficiency.

From judgment of the district court dismissing the suit for want of jurisdiction, Amoco appealed and brings three points of error. We will reverse the judgment of the trial court and remand the cause for trial on the merits.

The administrative events culminating in this lawsuit began late in 1971 when the Comptroller initiated a comprehensive franchise tax audit of the records and reports of Amoco for the years 1962 through 1971. Auditors for the Comptroller ultimately concluded in 1972 that Amoco, for the years 1963 through 1971, had overpaid its franchise taxes in the total amount of $718,-098.16. The auditors also concluded that Amoco had underpaid, for the year 1962, the sum of $249,583.00 in taxes, and added penalty and interest to produce a total deficiency claimed of $295,051.27. Amoco contended that instead of owing a deficiency for 1962, the company had overpaid the Comptroller by $108,856.92 for that year.

Thereafter, in March of 1972, Amoco presented a detailed written statement of the company’s position with respect to the deficiency claimed for 1962 and initiated request for redetermination permissible under Article 1.032 of the tax statutes. The Comptroller responded by notice in June of a redetermination hearing set for the following August 2, 1972, on the deficiency of $295,051.27 claimed for 1962.

Prior to the hearing set for August 2, the Comptroller on July 10, 1972, issued to Amoco three overpayment notices for $401,-687.29, $18,048.69, and $3,310.91, in the total sum of $423,046.89. These tenders by the Comptroller were in compliance with power granted the Comptroller under Article 1.11, which authorizes the Comptroller, upon determining that the taxpayer has overpaid the tax, to credit the taxpayer “ . with the consent of the taxpayer . with the amount of such overpayment.” (Art. 1.11(2), emphasis added). In event the taxpayer does not consent to credit, but prefers a refund, the Comptroller is authorized under Article 1.11A to “ . . refund such overpayment by warrant on the State Treasury from any funds appropriated for such purpose.” (Art. 1.11A(2), emphasis added).

The tenders of credit by the Comptroller of $423,046.89 were not accepted by Amoco, and after inquiry of the Comptroller and assurance that request for refund of such sums would not adversely affect Amoco’s contest of the deficiency claimed for the year 1962, Amoco made request pursuant to Article 1.11 A for refund instead of credit. The Comptroller at no time tendered credit for the balance of the total of $718,098.16 in overpayments admitted by the Comptroller for the years 1963 through 1972. The difference, retained by the Comptroller and not offered to the taxpayer as a credit under Article 1.11, or as a refund under Article 1.11A, represented the amount of the total deficiency the Comptroller claimed for 1962.

Nor did the Comptroller at any time seek or obtain “consent of the taxpayer” to credit Amoco’s tax account for 1962 with the overpayments balance of $295,051.27 due Amoco for the years 1963 through 1971, as required by Article 1.11(2). After postponement from August 2, the redetermination hearing was held September 14, 1972, and more than a year later, on September 18, 1973, the findings of the hearing examiner were approved by the Comptroller denying Amoco’s request to set aside the deficiency determination for 1962 and for refund of the sums withheld.

Amoco filed timely motion for rehearing on October 12, 1973, and more than sixteen months later, on February 19, 1975, the Comptroller gave notice of his decision to approve findings of the examiner following the hearing in September 1972. The Comptroller, in compliance with Article 1.032(E), made his order final on March 21, 1975, thirty days after service of notice on the taxpayer.

Amoco filed suit on March 21, 1975, the day the Comptroller’s order became final. The nature of the suit is expressed in Amoco’s prayer that the court determine “ . . . that the amount of $295,051.27 was unlawfully withheld from the refund amounts owing the plaintiff for overpayment of franchise taxes in the years 1963 through 1971 and that said $295,051.27 be forthwith paid the plaintiff by the State of Texas, and further that the plaintiff has overpaid its franchise taxes to the State of Texas for the year 1962 in the amount of $108,856.92, that such amount is owing the plaintiff as a refund . . . ”

The Comptroller contended in district court, and contends on appeal, that the courts are without jurisdiction to entertain this suit because Amoco failed, pursuant to Article 1.05, to pay under protest the deficiency claimed by the Comptroller for the year 1962, to accompany such payment with written reasons for protest, and thereafter to bring suit within ninety days. Under the facts of this case, payment of $295,051.27 by Amoco to meet the deficiency claimed for 1962 would have required Amoco to make the equivalent of a total payment to the State of $590,102.54, or double the amount of the deficiency claimed, in order (1) to obtain refund of $295,051.27 admittedly due Amoco for overpayments in the years 1963 through 1971 and (2) to qualify its suit against the State as a contest of the claimed deficiency for 1962.

As already pointed out, the Comptroller withheld the sum of $295,051.27 and refused to offer credit under Article 1.11 or refund under Article 1.11A, although the statutes clearly contemplate credit or refund to the taxpayer of “ . . . the amount of such overpayment.” By withholding $295,051.27 from credit or refund due for the years 1963 through 1971, the Comptroller failed to follow the statutory procedure for credits or refunds and chose instead to credit Amoco’s account for 1962 without the taxpayer’s consent as required by statute. We hold that the taxpayer thereby was relieved of the obligation to pay the additional taxes for 1962 in order to meet the requirements of Article 1.05.

Under these circumstances, we conclude that Article 1.05 is without application to the facts of this lawsuit, and Amoco may maintain its suit against the Comptroller for refund of $295,051.27, which the Comptroller credited without the taxpayer’s consent to a disputed tax account for 1962. It is undisputed that such sum was due Amoco as a credit, with its consent, or as a refund, from overpayments made in the years 1963 through 1971. It is understandable that the Comptroller, having a dispute with the taxpayer over $295,051.27 in taxes for 1962, would be reluctant to refund the entire amount of overpayments for the years 1963 through 1971, but we find no authority in the statutes to authorize arbitrary application of a substantial portion of the overpay-ments to another tax period in dispute. We believe a fair and just construction of the statutes permits maintenance of this lawsuit in order that the courts, upon trial on the merits of the controversy, may determine whether Amoco is entitled to a refund of the sum withheld, together with its claim of overpayment in 1962, or that the Comptroller has correctly found a deficiency for the year 1962 in the amount claimed by the Comptroller.

Although the record is not clear as to when the Comptroller credited the tax account of 1962 with the exact amount of the overpayments withheld, it is evident that the credit at some time was applied to that tax year; otherwise, the identical sum would not have been withheld. This action questioned by Amoco through a redetermi-nation hearing, became final when the Comptroller’s decision became final March 21, 1975, the day suit was filed.

The Comptroller argues that because Article 1.11 provides that the Comptroller “may with consent of the taxpayer” credit “the amount of such overpayment,” an option lies with the Comptroller to credit or not credit the account. We fail to perceive the legal logic in such argument, particularly in view of the situation here where the Comptroller elected to credit, without the taxpayer’s consent, less than “the amount of such overpayment,” and apply the credit to the disputed account for 1962, and also to refund less than the full amount of the undisputed overpayments for the years 1963 through 1971.

In cases where a vested property right has been adversely affected by action of an administrative body, an inherent right of appeal to the courts exists. Brazosport Savings and Loan Association v. American Savings and Loan Association, 161 Tex. 543, 342 S.W.2d 747, 750 (1961); Chemical Bank and Trust Company v. Faulkner, 369 S.W.2d 427 (Tex.Sup.1963). It is also firmly established that if acts of officials are not lawfully authorized, and therefore not acts of the State itself, suit may be maintained for protection of rights which have been invaded, denied, or violated by such unauthorized acts. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945); W. D. Haden Company v. Dodgen, 158 Tex. 74, 308 S.W.2d 838 (1958); Oxford v. Hill, 558 S.W.2d 557, 560 (Tex.Civ.App. Austin 1977, writ ref'd).

The judgment of the trial court dismissing the suit for want of jurisdiction is reversed. The cause is remanded to district court with instructions that trial be held on the merits of the controversy in conformity with this opinion.

Judgment reversed and cause remanded with instructions.


author: WINTERSHEIMER, Judge.

text:
    CITY OF MURRAY, Kentucky, by and through the City Commission of said City, consisting of John E. Scott, Individually and as Mayor of the City of Murray, Lloyd Arnold, Individually and as a member of the Common Council of the City of Murray, H. Ed Chrisman, Individually and as a member of the Common Council of the City of Murray, William R. Furches, Individually and as a member of the Common Council of the City of Murray, Ruby Hale, Individually and as a member of the Common Council of the City of Murray, Melvin Henley, Individually and as a member of the Common Council of the City of Murray, Howard Koenen, Individually and as a member of the Common Council of the City of Murray, Art Lee, Individually and as a member of the Common Council of the City of Murray, C. C. Lowry, Individually and as a member of the Common Council of the City of Murray, Woodrow Rickman, Individually and as a member of the Common Council of the City of Murray, Hugh T. Rushing, Individually and as a member of the Common Council of the City of Murray, Buell Stalls, Jr., Individually and as a member of the Common Council of the City of Murray, and Dave Willis, Individually and as a member of the Common Council of the City of Murray, Appellants, v. COMMONWEALTH of Kentucky, by and on relation of Arnold L. Mitchell, Commissioner of the Department of Fish and Wildlife Resources, Appellee.
    Court of Appeals of Kentucky.
    May 11, 1979.
    Modified and Ordered Published June 29, 1979.

      J. William Phillips, Murray, for appellants.
    Paul C. Gaines, III, Frankfort, for appel-lee.
    Before GUDGEL, WHITE and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a judgment entered on May 11, 1978, based on a jury verdict which awarded the amount of $2,308.00 against the City of Murray. The action arose as a result of a sewer lift malfunction which discharged raw sewage into the Clark’s River, resulting in the death of certain species of fish. During September 1976, the appellant City was engaged in sewage collection and treatment, and as part of its system operated a lift station near Bee Creek, which had been designed and built according to specifications from the State of Kentucky, when without any negligence on the part of the appellant city, a malfunction occurred and sewage flowed into the stream killing the fish. On May 2, 1978, a jury trial was conducted and the jury made an award to the Commonwealth of Kentucky for the loss of aquatic life. This appeal followed.

Appellant makes the following arguments:

1) The trial judge committed reversible error in holding that KRS 150.460(1) imposes strict liability, disallowing the defense of the exercise of reasonable care by the appellants.
2) The trial court erred in denying to appellants the defense of contributory negligence on the part of the appellee, Commonwealth of Kentucky, in the original design of the sewage lift station.
3) The trial judge erred in permitting testimony, over objection, as to the cost of restocking fish which the appellee admitted it was not going to restock, nor were such fish available on the market.
4) The trial court erred in permitting hearsay evidence, over objection, as the sole evidence concerning the market value of the fish.
5) The trial judge erred in permitting hearsay evidence as to predetermined transportation costs.
6) The trial court erred in denying appellants’ pretrial motion without any consideration of the merits.
7) The trial judge erred in volunteering its comments during the appellants’ opening statement.
8) The trial court erred in denying appellants’ objection to the closing argument of the appellee.

The principal question raised in this appeal deals with the construction of KRS 150.460 and other related statutes, as well as the defense available to the appellant, certain evidentiary issues, and other errors alleged to have occurred during and prior to the trial.

This Court affirms the judgment of the trial court and the jury verdict.

The trial judge was correct in instructing the jury using the language of KRS 150.460, and otherwise interpreting the statute to impose strict liability upon the appellant city. There is no question that the appellants’ sewage lift station had malfunctioned and raw sewage was passing through the discharge valve so as to pollute the waters of the east fork of the Clark’s River. The statute specifically prohibits such action without any regard to whether negligence is the cause. The act itself is prima facie evidence of the violation of the law by both the employer and the employee. The aquatic life in the streams of the Commonwealth have a value and are the property of all the citizens of the state. If the General Assembly had intended that damages be assessed only when negligence was established, it could have said so in the statute, but it did not. It is interesting to note that KRS 150.015 provides that all provisions of this act shall be liberally construed in such manner as to most effectually carry out its purposes and intent, which are declared to be the protection and conservation of wildlife. The doctrine of strict liability, where such liability attaches without proof of negligence, has been upheld on several other occasions in Kentucky. Ulrich v. Kasco Abrasives Co., Ky., 532 S.W.2d 197 (1976); Kroger v. Bowman, Ky., 411 S.W.2d 339 (1967).

It is the holding of this Court that the trial judge did not commit reversible error in determining that KRS 150.460(1) imposes strict liability, disallowing the defense of reasonable care.

We now turn our attention to the other issues raised on appeal.

The penalty provisions of KRS 150.-990(4) provide for both civil and criminal penalties. The statute expressly states that in addition to such penalties, those found liable under this statute shall be assessed an amount reasonably necessary to restock such fish or wildlife which has been destroyed. The provision of a civil remedy for a violation does not make the statute a criminal statute. We are not persuaded by the appellants’ attempt to analogize this statute with the criminal littering statute.

There is no reason to believe that the stipulation entered into by the parties relieved the appellant from any liability under the statute. The evidence is clear that the lift station was malfunctioning and that fish were killed in the river. The director of the municipal sewer system testified that the lift station was malfunctioning and had been dumping raw sewage into the Clark’s River for three weeks. We do not believe that the stipulation can involve the construction of the lift station and thereby implicate the appellee under any reasonable interpretation of the doctrine of contributory negligence.

The trial court did not commit error in permitting testimony as to the cost of restocking the fish. The jury, after considering all the evidence, returned a verdict of $2,308.00, which was approximately $3,000.00 less than the amount originally sought in the complaint. There was no other evidence introduced as to the value of the fish killed. We believe that the jury gave proper consideration to the evidence. There is no reason to disturb the jury’s decision.

The trial judge did not commit error in admitting the expert testimony of Pete Pfeiffer in regard to the value of the fish. The record indicates that witness Pfeiffer was Assistant Director of the Division of Fisheries for nine years, and previously had been employed by the Fish and Wildlife Resources Department for fifteen years. He had a bachelor’s degree in aquatic biology from the University of Louisville. He testified from his own knowledge as to the value of the fish in question. The fact that he used a pamphlet as an aid in determining the value of the fish does not disqualify him as an expert. The witness was available for cross-examination at trial and was extensively examined by the attorney for the appellants. Most of the evidence which pertained to the pamphlet in question was actually developed by cross-examination. The jury had an ample opportunity to determine the credibility and demeanor of the witnesses. We do not believe there is any reason to disturb the conclusion they reached. The appellants made no attempt to introduce other proof as to the value of the fish. We do not believe the case of Heilman v. Snyder, Ky., 520 S.W.2d 321 (1975), is applicable to this factual situation because the treatise or pamphlet involved was not introduced into evidence.

The trial judge did not commit reversible error in permitting testimony regarding the amount of transportation costs. Two witnesses testified as to certain transportation charges for restocking the polluted stream. Here, the witnesses were available for cross-examination and we do not believe that this testimony amounts to hearsay. The jury had the right to determine the credibility of the witnesses and the weight they would give to the testimony-

It was not error for the trial judge to deny the appellants’ “pre-trial motions” which were presented on the morning of the jury trial. This lawsuit had been pending for almost one year at the time of the trial. No notice was given to opposing counsel as to the nature or substance of the ten motions which were presented as the trial was to begin. The trial judge correctly noted that no reason or excuse was offered as to why the motions had not been previously presented to the court, and he determined that they were not timely and would not be considered at the time they were filed. The trial judge was clearly within his discretion in so acting. Actually, several of the motions were subsequently considered by the trial court during the trial.

The trial judge did not commit reversible error by his remark during a colloquy at the time of the opening statement of the appellant. The statement made by the trial judge was not prejudicial and appears to us to be harmless. At the time of the exchange between opposing counsel, no witnesses had been sworn and no evidence had been offered. Therefore, the authority of Chism v. Lampach, Ky., 352 S.W.2d 191 (1961), is not applicable to this situation. An examination of the entire record indicates that the contention that the appellee’s closing statement was prejudicial to the appellants’ case is without merit.

In this situation the appellee proved that the lift station had malfunctioned for a period of three weeks, discharging raw sewage into the stream, and that a fish kill resulted. There was no evidence to the contrary. The record indicates that there was sufficient evidence to establish the loss of fish and to place a value on the fish killed. The jury exercised its judgment in determining the amount to be awarded and we do not believe there is any reason to disturb the jury award.

Therefore, the judgment of the trial court and the jury verdict is affirmed.

All concur.


author: REYNOLDS, Judge.

text:
    Carroll Phillip BROWNING, Appellant, v. Marsha BROWNING, Appellee.
    Court of Appeals of Kentucky.
    July 6, 1979.

      Damon A. Vaughn, Henderson, for appellant.
    Thomas Turner, Madisonville, for appel-lee.
    Before HAYES, REYNOLDS and VANCE, JJ.
   REYNOLDS, Judge.

The issue raised herein is a matter of first impression and concerns an appeal by a husband from the judgment of the Hopkins Circuit Court dismissing the complaint against his wife (appellee) for failure to state a cause of action upon which relief could be granted. C. P. Browning, the appellant-husband herein, sued his wife, Marsha Browning, appellee, and Jack Whitfield, seeking damages for alienation of affections against them and for the intentional infliction of emotional injury occasioned by the wife. At the time appellant filed suit, there was also pending, as between Mr. and Mrs. Browning, a dissolution of marriage action.

The pleadings in this case allege that Mrs. Browning (appellee) had

intentionally, wrongfully, openly and notoriously consorted with the defendant, Jack Whitfield, bestowing her affections, society and companionship upon the defendant, Jack Whitfield, secluded herself with and in the company of the defendant, Jack Whitfield, for long periods of time, all of which has caused plaintiff to suffer great and painful emotional injury and mental and bodily anguish and agony. . . .

Upon this appeal, we determine that the issue is whether one spouse may sue the other for damages resulting from the intentional infliction of emotional distress caused by the other for openly consorting with another party.

We find that judicial recognition of actions to redress the intentional affliction of mental distress, unaccompanied by physical damage, is a relatively recent trend of development in the law of torts, and that the perimeters of such a tort are presently in the process of growth. Generally, there appear to be some acts of liability for extreme cases of conduct exceeding all bounds usually tolerated by decent society which are calculated to, and do, cause very serious mental distress. See W. Prosser, Law of Torts § 12 (4th ed. 1971). The Restatement (Second) of Torts § 46 (1965), characterizes actionable conduct as being that which is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Appellant, cites as authority Brown v. Crawford, 296 Ky. 249, 177 S.W.2d 1 (1943), and Scharringhaus v. Hazen, 269 Ky. 425, 107 S.W.2d 329 (1937). Brown, supra, was an action for damages resulting from a willful assault by firing a gun in the direction of the plaintiff in which it was held that recovery could be had for physical pain and suffering as well as mental suffering resulting from fright caused by the willful wrong of another. Scharringhaus, supra, was a case involving breach of a promise to marry and seduction wherein money damages were allowed. Here, we find neither case persuasive as authority. Appellant cites Weicker v. Weicker, 53 Misc.2d 570, 279 N.Y.S.2d 852 (1967), in support of his contention that he has sustained an actionable injury. In that case,- the husband allegedly obtained an illegal Mexican divorce, remarried and held another woman out as being his wife, and his first wife’s complaint for damages, resulting from the mental pain and anguish, was held to state a claim. However, this case was reversed by an appellate court in Weicker v. Weicker, 28 A.D.2d 138, 283 N.Y.S.2d 385 (1967), with that court holding the wife had failed to allege an actionable tort; and upon further appeal, the Court of Appeals of New York in Weieker v. Weicker, 22 N.Y.2d 8, 290 N.Y.S.2d 732, 237 N.E.2d 876 (1968), held that even if the law permitted recovery for intentional infliction of mental distress without proof of breach of any duty other than the duty to refrain from inflicting it, that strong policy considerations militated against judiciously applying such law as to authorize the recovery of damages arising out of matrimonial differences.

Brown, supra, is cited in support of appellant’s contention that a recovery is allowable under the allegations of his pleadings. The cases are distinguishable since Brown was an action for assault. Kentucky, in ordinary actions, has denied recovery for mental suffering where there has been no physical contact, and we decline to recognize any such tort as stated in appellant’s pleadings. Therefore we hold that appellant’s complaint failed to state a cause of action in that the conduct alleged is not actionable even in light of recent trends regarding the tort of intentional infliction of mental distress, and because public policy would not be served by authorizing the recovery of damages under the circumstances alleged. In effect, we determine, that in this case, the morals of mankind are more perfectly judged by a court having a final and eternal jurisdiction.

The judgment of the trial court is affirmed.

All concur.


author: MARTIN, Chief Judge.

text:
    Talbott ALLEN and William Lile, Appellants, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, Kentucky and Ernest Grayson, Individually and in his official capacity as Superintendent of the Board of Education of Jefferson County, Kentucky, Appellees.
    Court of Appeals of Kentucky.
    July 6, 1979.

      John Frith Stewart, Rex Dunn, Dennis Franklin Janes, Louisville, for appellants.
    E. Preston Young, Dan C. McCubbin, Louisville, for appellees.
    Before MARTIN, C. J., and HOGGE and VANCE, JJ.
   MARTIN, Chief Judge.

This appeal involves two Jefferson County teachers who were involuntarily suspended because they were candidates for public office in the 1977 General Election. The question we face is the interpretation of Policy Number G25.000 of the Jefferson County School Board which requires a mandatory leave of absence for all employees of the Board who are political candidates.

The appellants, Talbott Allen and William Lile, are employed as teachers by the Board of Education of Jefferson County. In 1977, both filed their applications as candidates for State Representative, Allen in the 35th Legislative District, Lile in the 27th Legislative District. In August both were advised by the Superintendent of the Jefferson County Schools that beginning on October 15, 1977, and continuing through November 15, 1977, they would be required to take mandatory leaves of absence from their teaching positions. The authority for this action was Jefferson County School Board Policy G25.000, which concerns school employees who engage in political activities. The policy provides:

B. Employees who seek offices which require part-time service.
(Example: State Senators, State Representatives, etc.)
1. The employee shall be required to take a leave of absence, without pay, beginning October 15th of the year of the general election for which he/she is a candidate. Such leave shall continue until November 15 ... .

Neither appellant had sought nor applied for extended leave prior to the receipt of notice from the Superintendent. Upon receipt of the letter by each from the Superintendent, they brought a declaratory judgment suit in the Jefferson Circuit Court. Pursuant to their request, a temporary injunction was entered prohibiting enforcement of the policy of the Board. After the election the case was not pursued as diligently as it had been; however, a judgment was entered on June 1, 1978, from which this appeal was taken.

The appellants prevailed at the early stages of these proceedings, and apparently it is only because the judgment upholds the regulation that the present appeal is taken. We believe, while the School Board may set reasonable standards for teacher activity, Policy G25.000 is inappropriate. See KRS 160.290(2) and McCoy v. Weinberger, 386 F.Supp. 504 (W.D.Ky.1974). The appellants, by running for the legislature, were exercising their rights of free speech and association. These rights are protected by the First Amendment to the United States Constitution and may not be abridged without proof of compelling state interest. “Political belief and association constitute the core of those activities protected by the First Amendment.” Elrod v. Burns, 427 U.S. 347, 356, 96 S.Ct. 2673, 2681, 49 L.Ed.2d 547 (1976). “The First Amendment protects political association as well as political expression.” Buckley v. Valeo, 424 U.S. 1, 15, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976).

The policy of the School Board, as it was applied to appellants, became an order without recourse and penalized them for seeking political office. Such an application violates both the First and Fourteenth Amendments of the Constitution of the United States.

In Pickering v. Board of Education, 391 U.S. 563, 568, 573, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811 (1968), the court stated,

It cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.
[T]he interests of the school administration in limiting teachers; opportunities to contribute to public debate is not significantly greater than its interests in limiting a similar contribution by any member of the general public.

The appellants argue that the policy was overbroad in that the mandatory leaves of absence were imposed upon the appellants without any determination as to whether the political activity in which they were engaged would adversely affect the performance of their duties. The policy, therefore, as it was applied to appellants, violates the requirement that a state limitation on a constitutional right must be limited to the need for the limitation. In the present situation the need was for the teachers to perform under the terms of these contracts to teach in the public schools of Jefferson County. There was no showing nor was there a single allegation that their political activity would affect their work as teachers. See Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

The Board of Education’s interest in protecting the quality of education can be accomplished by a more appropriate regulation. The regulation should include some individual determination that the teacher’s participation in the political process would adversely affect them in the performance of their teaching duties. See Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).

The appellants’ second argument is that the application of the policy deprived them of equal protection under the Kentucky and United States Constitution. The mandatory leaves of absence were imposed only on those teachers seeking elective office. Teachers engaged in other time-consuming activities were not required to take a leave of absence. There was no showing that political campaigning was the only activity that would adversely affect the quality of education and warrant a mandatory leave of absence. In order for this classification to be justified it must be shown that it is rationally related to the interests which are sought to be protected. See Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). There is no showing that seeking political office is an activity which hinders teachers in the performance of their duties.

•We agree with appellants that the trial court acted improperly in signing the tendered findings of fact, conclusions of law and judgment. The judgment of the Jefferson Circuit Court is reversed and the case returned to that court for such further action as is deemed necessary.

All concur.


author: REINHARD, Presiding Judge.

text:
    James H. LANEY, Respondent, v. STATE of Missouri, Appellant.
    No. 40638.
    Missouri Court of Appeals, Eastern District.
    May 15, 1979.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven Scott Clark, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Maureen A. Dickman, St. Louis, for appellant.
    Robert C. Babione, Public Defender, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant was convicted of rape on January 29, 1971, and sentenced to a 60 year term. His conviction was affirmed by the Missouri Supreme Court. State v. Laney, 506 S.W.2d 452 (Mo.1974). On March 12, 1976, movant submitted his Rule 27.26 Motion to Vacate Judgment and Sentence. An amended motion was filed on behalf of Movant on October 5, 1976. The circuit court granted the motion on June 22, 1978, without an evidentiary hearing. The state appeals. The original conviction and subsequent motion were predicated on the following facts:

The rape with which movant was charged allegedly occurred on August 23, 1968, in the victim’s automobile. Movant was arrested July 16, 1970 for a different offense, but was charged with this one when his fingerprints were found to match those lifted from the victim’s car. Movant was identified by the victim at a line-up conducted July 17, 1970.

The trial court conducted a hearing on movant’s Motion to Suppress Identification at which movant’s attorney requested an opportunity to review the police reports contending that there was evidence that the prosecutrix had seen photographs prior to the line-up. The prosecutrix and officers testified that she had not. The defense attorney was denied access to portions of the reports, with the assistant prosecuting attorney stating:

There is no evidence here of any photographs shown to this woman. The state has every police report involved in the case and there is no photograph in the Police Report, and I checked all records before. By the same token there is no evidence of any policeman shown any photograph. She stated she saw no photographs.

Operating under this assumption (i. e., that the police reports made no mention of the victim having been shown photographs for purposes of identification prior to the line-up) defense counsel proceeded at trial with only portions of the reports; none of which contained a contrary inference. The trial court itself remained unaware that the police report made any reference to an attempted photographic identification of movant by the victim.

In his Rule 27.26 motion movant alleged that the state “deliberately suppressed and failed to disclose material evidence contained in the investigative records going directly to the credibility of the victim . . . that said police reports would have indicated that the victim had been shown mug shots which was directly contrary to her testimony at trial that she had not.”

The police report dated May 30, 1970, indicated that the victim had been shown photographs prior to the line-up, including photographs of movant and a man by the mane of Lance who had been killed. The trial court in its memorandum opinion stated:

. against the background of the identification being made almost two years after the offense and it being contested; [the victim] denying that she had seen any photographs except of a dead man, Transcript Page 56; and Assistant Public Defenders Adelman and Babione testifying she told them she had seen photographs, Transcript Pages 127 and 134.

The court, in granting the motion, then went on to say that although it did not believe the assistant prosecuting attorney deliberately concealed the above-mentioned portions of the report, at the very least he inexcusably lacked knowledge of its contents and,

. Neither can be permitted . their not being disclosed at this trial deprived Movant of a fundamentally fair trial. . It is unfortunate that such a vicious offense has to be retried and [the victim] re-live that experience, but Movant was entitled to a constitutionally fair trial which he did not receive.

The circuit judge felt the present situation fell within the purview of Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) wherein the United States Supreme Court held,

the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution. 373 U.S. 83, at page 87, 83 S.Ct. 1194, at page 1196, 10 L.Ed.2d 215.

On appeal to this Court, the state does not challenge the materiality of the non-disclosed evidence but contends that a considered reading of the entire record leaves no reasonable doubt as to movant’s guilt.

Lee v. State, 573 S.W.2d 131 (Mo.App.1978), incorporates the reasoning of Brady, supra, and applies its mandates to require the disclosure of evidence of an impeaching nature which would tend to cast discredit upon a key prosecution witness. The disclosure must have been with regard to a material matter and must have resulted in prejudice to defendant’s rights before defendant will be entitled to postconviction relief.

Implicit in the trial court’s finding was a determination that the undisclosed evidence was both material and prejudicial. The judge who ruled on movant’s Rule 27.26 motion was the same judge who presided at his original trial. No one would be in a better position to gauge the prejudicial effect of this non-disclosure than the judge presiding at the original trial.

In all Rule 27.26 proceedings, we must affirm the ruling of the trial judge unless it appears his findings, conclusions and judgment are “clearly erroneous.” These standards apply whether the defendant or the state appeals. Vidauri v. State, 515 S.W.2d 562[9] (Mo.1974). There being no indication that the trial court’s judgment was erroneous, its judgment is hereby affirmed.

Affirmed.

GUNN and CRIST, JJ., concur.

      . Movant and state stipulated that the court could consider the Police Report of May 30, 1970, along with the record, trial transcript and Supreme Court briefs in making its rulings.

      . The police report dated May 30, 1970, stated in part:
      It is to be noted at this time that the subject Lance [sic] was killed in the commission of robbery at 4200 Westminster on the 11-30-68.
      Officers Payne and Seibel while conducting their investigation contacted to ascertain if Lance [sic] was responsible for the crimes committed against [sic] after viewing numerous photographs, [victim] advised Officers Payne and Seibel that the photos of Vance [sic] closely resembled the wanted subject, however, she declined to go to the City Morgue for positive identification as mental and physical condition was very poor due to the captioned offense
      [Victim] was shown a number of Department photographs, including one of subject Laney [sic]. After viewing the indicated photographs [sic] [victim] advised said officers that the photos of Laney resembled the subject who raped her, but could make no identification at this time. [The lady] was further interviewed concerning her tentative identification of the aforementioned deceased subject Lance [sic]. [Victim] advised said officers that at the time she viewed the photos of Lance [sic] she was under extreme stress due to the brutal treatment she received from the wanted subject, and still suffers mentally and physically from that incident. [The victim] was advised by Officers Akley and Fassley that a subject is presently under investigation and that when he is apprehended it would be necessary for her to appear at a show up for possible identification of this subject. [Victim] advised said officers that she would view such a show up, feeling that she could make an identification if she could see her assailant in person.