text:
    Michael Edwin KREMPP, Appellant, v. Ann Elizabeth KREMPP, Appellee.
    No. 18149.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 15, 1979.

      Schleider & Ewing, and Richard W. Ewing, Houston, for appellant.
    Howard L. Martin, Wichita Falls, for ap-pellee.
   OPINION

SPURLOCK, Justice.

A husband appeals from the portion of a divorce decree ordering him to pay $1,000.00 per month toward the support of his only child. The husband claims this amount is excessive and constitutes an abuse of discretion under the facts and circumstances of this case.

We affirm.

Michael Krempp owns and operates a kitchen cabinet business. Ann Krempp is a practicing attorney. They have one child, Andrew. At the time.of the divorce Andrew was twenty-one months old. The trial court ordered Krempp to pay $1,000.00 per month toward Andrew’s support. Krempp contends that this was an abuse of discretion. He bases this conclusion on the contention that the award violates Tex.Family Code Ann. § 4.02 (1975), as this section should be construed in light of the Equal Rights Amendment to the Tex.Const. art. I, § 3a, which together provide that spouses have an equal duty to support their children. Also supporting Krempp’s conclusion is his allegation that the amount of the award is confiscatory.

It has been recognized that spouses ¡have an equal duty to support their children. Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App. — Houston [1st Dist.] 1974, no writ). However, it is also generally recognized that this equality does not require that the courts must divide the burden of ’«support equally, or make equal the amount ¡of financial contribution required of the spouses. Cooper, supra, and Hazelwood v. Jinkins, 580 S.W.2d 33 (Tex.Civ.App. — Houston [1st Dist.] 1979, no writ). In determining the amount of the award a trial court is to consider the needs and best Interest of the child, the parties’ previous standard of living, their financia^ capabilities, and the relative values of the nonmo-netary services to be rendered.

Krempp directs our attention to the fact that both he and Mrs. Krempp have separate estates which, while significant in amount, are relatively equal in size. Krempp’s inventory and appraisement filed in this case reveals that he has a net worth of over $900,000.00.

Implicit in Krempp’s argument is the contention that the excessive amount of the award of child support in effect relieves

Mrs. Krempp of any financial responsibility in supporting Andrew. He concludes that in light of the relative equality of the financial conditions of the parties and the fact that no particularized need of the child was shown requiring anywhere near $1,000.00 per month in support, the award violates the Tex.Family Code Ann. § 4.02 (1975). We do not agree.

We have previously held that no ^particularized need is required to support award of child support. Maben v. Maben, 574 S.W.2d 229 (Tex.Civ.App. — Fort Worth 1978, no writ). Further, it is well settled that the trial court is justified in requiring the parents to continue to provide their children with the standard of living they enjoyed prior to the divorce. Cooper and Hazelwood, supra, (513 S.W.2d 229 and 580 S.W.2d 33). We also note that the record reflects that Andrew has some medical problems. We cannot agree that this award has resulted in relieving Mrs. Krempp from any duty to financially support the child.

We do not find that this award violates Tex.Family Code Ann. § 4.02 (1975) for another reason. The trial court could properly consider the relative values of the non-monetary services rendered by each of the parties. Since Mrs. Krempp was appointed managing. conservator, the trial court could properly conclude as a result of her appointment, and from evidence in the record concerning the past conduct of the parties in this regard, that Mrs. Krempp would provide most of the non-monetary services needed by the child. There can be no question that these services are a very real and important part of the support of any child.

Krempp categorizes the award as confiscatory. We agree that as a general rule a trial court abuses its discretion if the amount of child support it orders a spouse to pay is more than that spouse can reasonably afford. This is particularly true because child support obligations are enforceable by contempt. In testing a spouse’s ability to afford the amount of child support ordered, the financial capacity of the spouse is examined in light of all other liabilities the spouse has and without regard to the financial condition of the other spouse.

The record in this case reflects that Krempp’s personal estate includes a Mercedes-Benz automobile and an airplane. Krempp receives about $36,000.00 per year in stock dividends. Thus his earning capacity appears to be substantial. We decide that the amount of support Krempp is ordered to pay is not confiscatory. There has been no showing in the record other than that Krempp has the financial capacity to afford to pay the amount of support ordered. He was present at the trial, but did not tender any evidence.

We recognize that reasonable minds could differ and one might conclude that the amount of the support award in this case is high for only one child. However, it is Krempp’s burden on appeal to show a clear abuse of discretion. This he has failed to do.

Accordingly, we affirm the judgment of the trial court.


source: Caselaw Access Project

author: SUMMERS, Chief Justice.

license: Public Domain

text:
    L. A. GREEN, Individually and Green & Flannagan, a Partnership, Appellants, v. Manuel HALE, Appellee.
    No. 1212.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 15, 1979.
    Rehearing Denied Dec. 6, 1979.

      Rex A. Nichols, Nichols & Parker, Long-view, Gordon R. Wellborn, Wellborn, Houston, Bailey & Perry, Henderson, Mike Hate-hell, Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, Tyler, for appellants.
    Carl R. Roth, Jones, Jones & Baldwin, Marshall, for appellee.
   SUMMERS, Chief Justice.

This suit was brought by Manuel Hale, plaintiff, under both the Wrongful Death Act (Article 4671 et seq.) and the Survival Statute (Article 5525) against L. A. Green, individually, and Green & Flannagan, a partnership, defendants, for damages resulting from the death of plaintiff’s thirteen-year-old son, Ronzell Hale, in an automobile accident July 28, 1975, allegedly caused by the negligence of defendant, L. A. Green.

The case was tried to a jury which answered all liability issues favorable to the plaintiff and exonerated the deceased of all contributory negligence; these issues are not contested on appeal.

Damages were assessed by the jury in the sum of $9,500.00, being $4,500.00 for the plaintiff’s pecuniary loss of services and contributions and $5,000.00 for mental anguish suffered by Ronzell before his death as a result of the occurrence in question. In accordance with the jury’s verdict, the trial court entered judgment for the plaintiff in the amount of $9,500.00. It is from this adverse judgment that defendants have appealed attacking the damage awards. We affirm.

L. A. Green is a member of the partner-. ship of Green & Flannagan which operates some 300 to 400 acres of watermelon fields in Rusk County. During watermelon harvest season, the partnership employed local youth ranging in age from 12 to 18 years to gather melons for market. The deceased, Ronzell Hale, was one of those employees, and, in 1975, he was working his second summer for Green & Flannagan. On each work day, it was customary for the employer to take the employees into a nearby town for lunch, and this is what was occurring on July 28, 1975, when the accident happened. Approximately 14 young boys (12 in the back and 2 in the cab) climbed into L. A. Green’s three-quarter-ton pickup for the noon ride to the Oak Hill Store for lunch on the day in question. Ronzell was one of the boys in the rear of the truck, standing near the tailgate. The truck proceeded from a sand road in the watermelon fields onto an oil top county road, and headed toward town. After a short ride on the oil top road, a hat worn by Johnny Jackson blew off in the wind, and the boys called to Mr. Green to stop so it could be retrieved. Green brought the truck to a stop, a distance estimated to be some 50 to 100 yards from where the hat was lying on the left side of the road. Mr. Green could see the hat in his left hand mirror, but his view of the boys in the rear of the truck was obscured. James Ayers, Jr., a witness, testified that after the truck had stopped, Ron-zell shouted “wait a minute, I will go get it,” and was on the tailgate in the process of getting off the back of the truck when Mr. Green put the truck in gear and started backing up; that Ronzell fell off, slipping under the truck, and was run over after Mr. Green had gone 3 or 4 feet. It is undisputed that Mr. Green did not give any warning of his intention to back up. Another witness, Kelly Hunley, testified that just as Mr. Green started backing up he saw Ronzell “going down,” that he saw his head and one hand holding on to the tailgate and that his feet and body were already out of the truck, and that “from the time he (Mr. Green) first started back until after the accident was over” he traveled not more than ten feet. Two of defendants’ witnesses, Johnny Jackson and Donnie Roy Johnson (two brothers), testified that Mr. Green had backed up about 25 yards at a speed of 15 to 20 miles per hour when they saw Ronzell, in the process of getting out of the truck, put one foot over the rear bumper, then slipped and fell under the pickup. Mr. Green testified that he had backed up half way (35 to 50 yards down the road at a medium speed when he felt a “bump” and put on his brakes to stop before he heard anyone holler. Green brought his vehicle to a stop before the front wheels reached Ron-zell’s body. Ronzell was found under the vehicle, between the front and rear wheels, where he had been killed by the right rear wheel of the truck passing over his head.

Defendants’ appeal is predicated upon seven (7) points of error alleging that the trial court erred (1) in overruling defendants’ motions for instructed verdict and for judgment non obstante veredicto because there was no evidence to support the jury’s answers to Special Issues Nos. 10 and 11; (2) in overruling defendants’ motion for judgment in disregard of Special Issue No. 10 and (3) in overruling defendants’ motion in disregard of Special Issue No. 11, because there was no evidence to support the jury’s answers to such issues; (4) in failing to sustain defendants’ amended motion for a new trial because the jury’s answer to Special Issue No. 10 and (5) because the jury’s answer to Special Issue No. 11 were not supported by factually sufficient evidence and/or was against the great weight and preponderance of the evidence; (6) in failing to grant defendants’, amended motion for new trial on the ground that the damages found by the jury in Special Issue No. 10 are excessive and (7) on the ground that the damages found by the jury in Special Issue No. 11 are excessive.

In determining a “no evidence” point, which is a question of law, we consider only that evidence, if any, and the reasonable inferences therefrom, which viewed in its most favorable light, supports the jury finding and we must reject all evidence and inferences which are contrary to the finding. Garza v. Alviar, 395 S.W.2d 821, 826 (Tex.1965); Biggers v. Continental Bus Systems, Inc., 157 Tex. 351, 303 S.W.2d 359, 363 (1957); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914).

In determining an “insufficient evidence” point, which is a question of fact, we consider and weigh all the evidence in the case to determine whether the evidence is factually insufficient to support a finding of a vital fact or the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust and that the finding should be set aside and a new trial ordered. Garza v. Alviar, supra, In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1951).

The amount of damages to which a party is entitled is primarily and peculiarly within the province of the jury; and in the absence of a showing that passion, prejudice or other improper motive influenced the jury, the amount assessed by them will not be set aside as excessive. In determining whether or not a verdict is excessive, the evidence must be considered in a light most favorable to the award. J. A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728, 744 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.); Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830, 834 (Tex.Civ.App.—Waco 1960, writ ref’d n. r. e.); Green v. Rudsenske, 320 S.W.2d 228, 235 (Tex.Civ.App.—San Antonio 1959, no writ).

The appellant has the burden of establishing that the jury’s evaluation of the damages was erroneous. City of Austin v. Selter, 415 S.W.2d 489, 502 (Tex.Civ.App.— Austin 1967, writ ref’d n. r. e.); Evans v. Rush, 254 S.W.2d 799, 802 (Tex.Civ.App.— Amarillo 1952, no writ); City of Dallas v. Hutchins, 226 S.W.2d 155, 160-161 (Tex.Civ.App.—Amarillo 1949, writ ref’d n. r. e.).

The following governing principles should be considered in dealing with the problem of excessive damages:

(1) That an appellate court should not substitute its judgment for that of the jury;
(2) That in the absence of an affirmative showing of bias or prejudice the Courts of Civil Appeals will give every intendment to the evidence supporting the verdict;
(3) That the judgment of the jury is as good as the Court and it should prevail unless it appears that the verdict is influenced by passion or prejudice and is not the result of honest convictions. City of Austin v. Selter, supra, at 502; Texas Consolidated Transportation Co. v. Eubanks, supra at 833-34.

The Award for Loss of Services and Contributions

Special Issue No. 10 submitted the question of the amount of damages for loss of services and contributions under the wrongful death portion of this suit. The jury awarded the plaintiff the sum of $4,500.00 for this loss.

It is well settled that a parent is entitled to recover as actual damages for the death of a minor child only the pecuniary value of the child’s services until he reaches his majority and reasonably anticipated contributions thereafter, less expenses of the child’s support, education and maintenance. Jasper County Lumber Company v. McMillan, 188 S.W.2d 731, 732 (Tex.Civ.App.—Beaumont 1945, writ ref’d); Banker v. McLaughlin, 200 S.W.2d 699, 702 (Tex.Civ.App.—Beaumont 1947), aff’d, 46 Tex. 434, 208 S.W.2d 843 (Tex.1948).

The law is also well settled that the evidence in this type of case from the very nature of things cannot furnish the measure of damages with the certainty and accuracy with which it may be done in other cases and, therefore, the question of damages must be left largely to the discretion of the jury. Jasper County Lumber Company v. McMillan, supra, at 733; Banker v. McLaughlin, supra, at 702; Riojas v. Riojas, 289 S.W.2d 802, 805 (Tex.Civ.App. — Fort Worth 1956, no writ).

A parent may show the character of his child', his affection and disposition toward his parents, his acts of assistance and donations, his earning capacity at the time of his death, his probable future earning capacity, his age and life expectancy and like matters. Peek v. Parker, 210 S.W.2d 619, 620 (Tex.Civ.App. — Fort Worth 1948, no writ).

The following quotation from the early Supreme Court case of Brunswig v. White, 70 Tex. 504, 8 S.W. 85, 89-90 (1888) is informative:

“Where the testimony shows the bodily health and strength; the sprightliness or •want of it, of mind; the aptitude and willingness to be useful in performing services; the modes such faculties are exercised as in useful labor or otherwise; and when from the age or undeveloped state of the child in the estimate of value of the services until majority would be matter of opinion, in which no particular or especial knowledge in way of expert testimony could be procured better than the judgment and common sense of the ordinary juror called to the duty of determining such value, — then, upon such testimony, the sound discretion of the jury can be relied on to determine the value, without any witness naming a sum. (3) As the age of the child increases, and his faculties develop, testimony to actual services can and should be produced, giving a wider basis of induction to the jury in calculating the damages from the loss. And (4) the circumstances of the parents suing, as in this case, often become necessary as evidence; not as a basis for increasing or diminishing the amount, but to illustrate the acts of the child as useful or otherwise.”

The evidence reveals that Ronzell Hale, the deceased child, was 13 years of age at the time of his death, having been bom July 31, 1961; that he was the youngest of five children and was 11 years old when his mother died of cancer in 1972; that his father testified he was a good worker and an extra-ordinary boy; that he grew up working in the hay meadows and cutting pulpwood with his father and brother when he was only eight or nine years old; that he was “extra good” around the house and didn’t have to be pushed about doing his chores or helping out; that when he was just 12 years old he went to work in the summer for the defendants loading watermelons; and that after school he sold papers in the afternoon.

The evidence further reveals that, after RonzelPs mother died, the duties of maintaining a household, formerly done by his mother, became primarily Ronzell’s responsibility; that he then regularly prepared meals for the family, helped with the dishes, chopping the wood, feeding the hogs and doing the laundry; that he did general housework, sweeping floors and that kind of thing; that it was his job to cut and keep the yard clean; that Ronzell did well in school, was making “extra good grades” and never had to be pushed to get his homework out.

The evidence further shows that Ronzell was working his second summer in the watermelon fields and was earning $1.85 an hour; that “some of the bigger boys got more than that; two something”; that the amount they made was according to what size they were and how much they did; that the boys worked six and sometimes seven days a week and sometimes more than eight hours a day; that most of the boys would average “18 or 20” dollars a day and some were getting more than that, up to $25.00 a day; that by the time of trial the wage paid was $2.00 to $2.75 an hour and the earnings ranged from $20.00 to $30.00 per day; and that Ronzell contributed the biggest part of his earnings to his father to help pay family expenses. There was also testimony that, in reasonable probability, Ronzell would have been able to earn at least $4,800.00 in the four-year period from the date of his death until his eighteenth birthday.

In light of the evidence adduced, we have concluded that there is evidence of probative force to support the jury’s answer to Special Issue No. 10.

We do not agree with defendant’s contention that the evidence is legally insufficient because of the answers elicited from Mr. Hale on cross-examination that “actually it cost more to raise one than you get out of it” and “No. I didn’t lose any money.” Such answers do not conclusively constitute a disclaimer by plaintiff of any recovery for loss of services and contributions; they were simply evidence which the jury could consider along with all other evidence in determining whether any pecuniary loss was suffered, and if so, how great a loss was suffered.

After a review of the entire record, we cannot agree with defendants’ contention that the jury’s answer to Special Issue No. 10 was not supported by factually sufficient evidence or that the jury’s answer to Special Issue No. 10 was against the great weight and preponderance of the evidence. Point 1 (insofar as it relates to Special Issue No. 10), Point 2 and Point 4 are overruled.

By their 6th point, defendants contend that the damages of $4,500.00 found by the jury in answer to Special Issue No. 10 for loss of services and contributions is excessive. We believe that the evidence supports the finding of the jury and that the sum of $4,500.00 awarded as damages is not excessive. Defendants’ Point 6 is overruled.

The Award for Mental Anguish

Special Issue No. 11 submitted the claim of the plaintiff, as representative of the estate of the deceased, for Ronzell’s mental anguish experienced before his death. The jury awarded the sum of $ 5,000.00 for this element of damage. It is plaintiff’s contention that the circumstances surrounding Ronzell’s death compel an inference that he was consciously aware of impending disaster prior to the lethal blow being struck by the wheel of the truck and therefore is entitled to compensation for the accompanying mental anguish during that period of consciousness. Defendants assert that the jury’s award is not supported by the evidence, tested either by legal or factual criteria and that there is no evidence that, during the interval between the time the deceased slipped and was struck by the wheel, he experienced any fear, fright, contemplation of death, or any other form of mental suffering or anguish.

In Jenkins v. Hennigan, 298 S.W.2d 905, 911 (Tex.Civ.App. — Beaumont 1957, writ ref’d n. r. e.), it was stated: “Consciousness of approaching death is a proper element to be considered in evaluating mental suffering.”

It is well established that the existence of conscious pain and suffering may be established by circumstantial evidence, and further that such suffering may be inferred or presumed as a consequence of severe injuries, as illustrated in drowning cases such as City of Austin v. Selter, supra at 501-502; and Mitchell v. Akers, 401 S.W.2d 907, 912 (Tex.Civ.App. — Dallas 1966, writ ref’d n. r. e.), and also in cases of death due to burning such as Sharpe v. Munoz, 256 S.W.2d 890, 892 (Tex.Civ.App. — San Antonio 1953, writ ref’d n. r. e.).

Texas Jurisprudence states the applicable rule as follows:

“It is not necessary that the existence of physical or mental suffering be proved by direct evidence; such suffering may be presumed in cases where it is the natural consequence of the injury of which the plaintiff complains. Where serious bodily injury has been inflicted, some degree of physical and mental suffering is the necessary result; and in such cases the jury are [sic] authorized, without the direct proof of such suffering, to consider the pain both of body and of mind in assessing the amount of damages.” 17 Tex. Jur.2d 312, Damages, Sec. 252.

The evidence concerning the cause and manner of Ronzell’s death has been reviewed above. We find testimony in the record that Ronzell was on the tailgate in the process of getting off the back of the truck when Mr. Green put the truck in gear and started backing up; that Ronzell fell off and was run over after Mr. Green had gone 3 or 4 feet; that as Mr. Green started backing, one witness saw Ronzell “going down,” his head and one hand holding to the tailgate and his feet and body already out of the truck; that from the time Mr. Green started backing until after the accident was over, he traveled not more than ten feet; that Mr. Green felt a bump, put on his brakes and brought his vehicle to a stop before the front wheels reached Ron-zell’s body; and that Ronzell was found under the vehicle between the front and rear wheels, killed by the right rear wheel of the truck passing over his head. A boy of Ronzell’s age and intelligence certainly realized the serious predicament he was in from the moment he felt the backward movement of the truck and became unable to hold on to the tailgate, and the inevitability of being crushed by the wheel of the truck, must have become apparent to him as he fell to the ground behind the truck.

Under the applicable law, the jury could draw a reasonable inference of terror and mental anguish which occupied the last moments of Ronzell’s life for their finding and award. Regardless of how brief in duration, a tremendous amount of fear can be inferred from the surrounding circumstances, and it was the duty of the jury to translate that moment of mental anguish into an appropriate monetary award.

Considering only that evidence, and the reasonable inferences therefrom, which viewed in its most favorable light, supports the jury finding and rejecting all evidence and inferences contrary to the finding, we have concluded that there is evidence of probative force to support the jury’s answer to Special Issue No. 11. Furthermore, after a review of the entire record, we cannot agree with defendants’ contention that the jury’s answer to Special Issue No. 11 was not supported by factually sufficient evidence or that the jury’s answer to Special Issue No. 11 was against the great weight and preponderance of the evidence. Point 1-(insofar as it relates to Special Issue No. 11), Point 3 and Point 5 are overruled.

We believe that the damages of $5,000.00 awarded by the jury in answer to Special Issue No. 11 for mental anguish is supported by the evidence and is not excessive. Point 7 is overruled.

We find nothing in the record to indicate that the jury was influenced by passion, prejudice, or other improper motive in assessing the damages found in either Special Issue No. 10 or Special Issue No. 11 herein.

Having considered all of defendants’ points of error and believing them to be without merit, the same are overruled.

The judgment of the trial court is affirmed.

      . This and all other statutory references are to Vernon’s Annotated Texas Civil Statutes unless otherwise noted.


author: SHANNON, Justice.

text:
    Carl GROTHE, Appellant, v. Linda A. GROTHE, Appellee.
    No. 12996.
    Court of Civil Appeals of Texas, Austin.
    Nov. 21, 1979.
    Rehearing Denied Dec. 12, 1979.

      Carol E. Prater, Temple, for appellant.
    Charles C. Smith, Jr., Cameron, for appel-lee.
   SHANNON, Justice.

In 1976 appellee Linda A. Grothe filed suit for divorce against appellant Carl Grothe in the district court of Milam County. Appellee also sought appointment as managing conservator of the minor children, a division of the property, and an order that appellant make. child support payments. Two original proceedings, stemming from the suit for divorce, were filed in and determined by this Court. Ex parte Grothe, Relator, Tex.Civ.App., 581 S.W.2d 296 (1979); Ex parte Grothe, Tex.Civ.App., 570 S.W.2d 183 (1978).

After several hearings before the district court, judgment was entered on September 19, 1978, granting the divorce, appointing appellee managing conservator of the two minor children, ordering appellant to pay child support, and dividing the property of the parties.

Appellant does not question that part of the judgment ordering the divorce, appointing appellee managing conservator, and ordering appellant to pay child support. Appellant attacks the balance of the judgment by two points of error claiming: (1) the court “ . . . erred in ordering a division of the parties [sic] community property which was not fair and equitable or equal ...” and (2) the court “. . . erred in failing to reimburse the community estate for improvements made by Appellant to Appellee’s separate property.”

The judgment details the division of the parties’ property. Appellee received the couple’s house and lots in Cameron subject to the mortgage indebtedness. Appellee also received most of the household furnishings and fixtures, a 1974 Oldsmobile, a jeep, a trailer, one thousand bales of hay, and other personalty. Appellant received by the terms of the judgment leases on about fourteen hundred acres of land, two pickups, a gooseneck trailer, and farm equipment subject to indebtedness.

The judgment recited further “ . that during the pendency of this cause the [appellant] wrongfully and willfully converted substantial amounts of community funds to his own personal use, with the intention of depriving [appellee] of her community interest therein.”

Appellant did not request, and the district court did not file, findings of fact and conclusions of law. Appellant filed only a partial statement of facts consisting of testimony given in two of the several hearings. Because appellant filed only a partial statement of facts, this Court must presume that there was evidence to support the judgment dividing the property and refusing to reimburse the community estate. Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex.1968); Guthrie v. National Homes Corporation, 394 S.W.2d 494 (Tex.1965). “The burden is upon a party appealing from a trial court judgment to show that the judgment is erroneous in order to obtain a reversal. When the complaint is that the evidence is factually or legally insufficient to support vital findings of fact . this burden cannot be discharged in the absence of a complete or an agreed statement of facts.” Englander Co. v. Kennedy, supra.

The judgment respecting the division of the property may be affirmed upon yet another basis. As above quoted, the judgment recited that appellant, during the pendency of the cause, wrongfully and willfully converted substantial amounts of community funds for his own personal use with the intention of depriving appellee of her community interest in those funds. This finding stands unchallenged by point of error. Accordingly, even though the division of the property in the judgment might have been weighted in favor of appellee, that disparity was justified in light of appellant’s admitted conversion of community funds.

The judgment is affirmed.


author: WILHOIT, Judge.

text:
    PUREX CORPORATION/FERRY-MORSE SEED COMPANY, Appellants, v. David F. BRYANT, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, and Workmen’s Compensation Board, Appellees. James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. David F. BRYANT, Purex Corporation/Ferry-Morse Seed Company, and the Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    March 23, 1979.
    Rehearing Denied Nov. 30, 1979.

      Earle T. Shoup, Paducah, for Purex Corp./Perry-Morse Seed Co.
    Hal Warren, Warren, Warren & Paitsel, Fulton, for David F. Bryant.
    Cyril E. Shadowen, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for James R. Yocom, Commissioner of Labor and Custodian of the Special Fund.
    Before LESTER, WHITE and WILHOIT, JJ.
   WILHOIT, Judge.

This case is an appeal from a judgment of the Fulton Circuit Court upholding the Workmen’s Compensation Board award of benefits to the claimant-appellee, David F. Bryant. The board found that Bryant had been injured in a work-related accident which had resulted in a permanent injury of appreciable proportions and impairment of his future earning capacity. The board found that Bryant suffered 50 percent occupational disability from the combination of his work-related injury and the arousal of a dormant, nondisabling arthritic condition.

On January 18, 1975, David Bryant was employed by Purex Corporation at Ferry-Morse Seed Company in Fulton, Kentucky. He sustained an injury on the day in question while working in the company warehouse. He is 62 years old and has worked with the company since 1959. He generally worked in that portion of the plant where seed racks are washed and painted, but at the time of his injury he was in the warehouse assisting in .loading boxes of seed racks into a railroad box car. In January 1975, Bryant’s average weekly wage was $158.00.

After the loading operation had been completed, Bryant and a fellow employee proceeded to install “keepers” across the doorway of the boxcar to prevent the boxes from falling out when the doors were reopened after shipment. Bryant was standing atop a material pallet to perform this operation. In reaching for one of the “keepers,” he lost his balance and fell some 12 to 15 feet to the asphalt sustaining, the injuries which are the cause of this action.

After reviewing testimony from Bryant, his wife, and four doctors who examined him, the board found that he suffered a 50 percent occupational disability from the fall. The board awarded Bryant a total of $79.00 per week in overall disability benefits and apportioned the liability for benefits between Purex and the Special Fund with Purex being liable for one-quarter (¼) of the weekly benefits and the Special Fund being liable for the remaining three-quarters (¾) of the benefits.

Both Purex and the Special Fund appealed the award to the Fulton Circuit Court which affirmed the decision of the board.

Three questions are presented for review. First, did the board properly find that Bryant’s wife was a dependent within the purview of KRS 342.730 (1972)? Second, did the board have sufficient evidence in the record to support its determination that Bryant suffered a 50 percent occupational disability? Third, did the board err in using Bryant’s “lost wages” as a factor in calculating the benefits to which he was entitled?

I.

The first issue is whether the board erred in its finding that Bryant’s wife was a dependent within the purview of KRS 342.-730 (1972). That statute, prior to its amendment in 1976, allowed a higher percentage of a claimant’s average weekly salary to be used in calculating benefits where the claimant had one or more dependents up to a maximum of three.

Bryant’s wife owns and operates a beauty shop near their home. She works full time and testified that she receives an annual income of slightly over $3,000.00 from this business.

While there are no Kentucky cases which specifically define the proper criteria for the determination of dependency under KRS 342.730(l)(b) (1972), there are a number of cases which deal with the determination of dependency in the context of entitlement to death benefits under the law. See, e. g., Kenmont Coal Co. v. Clark, 294 Ky. 226, 171 S.W.2d 242 (1943); Koppers Coal Co. v. Compton, 285 Ky. 844, 149 S.W.2d 543 (1941); Splint Coal Corp. v. Williams, 283 Ky. 47, 140 S.W.2d 661 (1940). We believe that the criteria for establishing dependency in the case of a deceased employee are equally applicable in this case.

The provisions of KRS 342.075(l)(a) state that a spouse shall be presumed to be dependent upon a deceased employee whom the spouse had not voluntarily abandoned at the time of the accident, or who having been abandoned by the decedent has not engaged in such conduct since the abandonment as would justify the decedent’s action. This court has held that the presumption of dependency under subsection (l)(a) is conclusive and cannot be defeated or contradicted by extraneous testimony where the dependent meets the criteria of that subsection notwithstanding that the dependent spouse may have been employed at the time of the accident. Yocom v. Hylton, Ky.App., 557 S.W.2d 219 (1977); see White v. Stewart Dry Goods Co., Ky., 531 S.W.2d 504 (1975). The board did not err in its determination of Mrs. Bryant’s status as a dependent.

II.

The second question on appeal is whether there was sufficient evidence in the record to support the board’s findings of fact as to the nature and extent of Bryant’s disability. Purex first contends that the evidence did not support the board’s finding that Bryant suffered a 50 percent occupational disability. Purex also contends that the board should have found that Bryant suffered from some degree of active disability prior to the accident. We cannot agree.

Three physicians, Drs. Smith, Barnett and Evans, examined the claimant and testified that he suffered from permanent disability to the body as a whole. Their estimates of the degree of physical impairment varied from 15 to 50 percent overall. In addition, Dr. Jones, the family physician, testified as to Bryant’s condition. Although a portion of his testimony dealt with his opinion as to the extent of occupational disability, Dr. Jones’s testimony was nevertheless valuable in providing evidence of Bryant’s functional impairment since the accident. Furthermore, all the doctors attributed a portion of his ultimate disability to the aggravation of a prior arthritic condition. Dr. Tom Evans, who was appointed by the board to examine the claimant pursuant to KRS 342.315, specifically found that Bryant’s present disability was caused one-half by the work-related accident alone and one-half by the arousal of a dormant, nondisabling osteoarthritis of the cervical and lumbar spine. He found no prior active disability.

It is the responsibility of the Workmen’s Compensation Board to translate functional disability into the percentage of occupational disability. Pruitt v. Bugg Bros., Ky., 547 S.W.2d 123 (1977). Functional disability-is a medical question but occupational disability is not. Whitis v. Southern Belle Dairy, Inc., Ky., 434 S.W.2d 645 (1968). Furthermore, the medical testimony need not be totally consistent in order to support a board award. See Hunter v. Great Lakes Construction Co., Ky., 467 S.W.2d 763 (1971). In fact, where there is conflicting medical testimony, the board has the right to believe part of the evidence and disbelieve other parts of the evidence whether it came from the same witness or the same adversary’s total proof. McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974); Wells v. Kentucky Appalachian Industries, Inc., Ky., 467 S.W.2d 365 (1971); Tackett v. Eastern Coal Corp., 295 Ky. 422, 174 S.W.2d 707 (1943).

In addition to the medical testimony relating to his disability, Bryant also testified to his condition. Bryant testified that, prior to his injury, he had no noticeable limitations on lifting, bending, stooping or manual dexterity in general. In his long tenure with his employer, he recalls only having missed one week of work for a respiratory infection and one or two other days for other general ailments. He testified that since the accident his back has been weak and that he has frequently experienced pain in his back, neck, and left leg. He also stated that his left shoulder “catches” when he attempts to raise his arm and that his arm sometimes tingles or is cold and numb. The claimant’s own testimony as to his condition has some probative value and may properly be considered by the board. Ruby Construction Company v. Curling, Ky., 451 S.W.2d 610 (1970); Yocum Creek Coal Company v. Jones, 308 Ky. 335, 214 S.W.2d 410 (1948).

After carefully reviewing the record, we believe there was sufficient evidence from which the board could properly conclude that Bryant was 50 percent occupationally disabled after his work-related accident. We likewise believe that there is sufficient evidence to support the board’s conclusion that three-fourths of the ultimate disability was the result of the arousal of his dormant, nondisabling arthritic condition. We do not believe Purex’s contention that the evidence was so compelling that the board was required to find an active disability prior to the accident.

III.

• Purex also contends that the board erred in using “lost wages” as a factor in calculating the benefits to which Bryant was entitled.

The use of “lost wages” as an alternative basis for the calculation of benefits was addressed and rejected in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277 (1978), which was decided after the circuit court affirmed the Board in this case. KRS 342.620(9) is a definition section, and the reference to “lost wages” in that section must be construed in light of the purpose of the section in which it appears and in such manner so as to give the intended meaning to related sections. Income benefits are to be awarded on the basis of disability as calculated under KRS 342.730. Finn, supra. The effect of the Finn decision was to undermine those cases which approve the use of “lost wages” as an alternative basis for the calculation of benefits. See Kentucky Carbon Corporation v. Dotson, Ky.App., 573 S.W.2d 368 (1978). We need not reach the contention of the Special' Fund that the calculation of benefits based upon “lost wages” violates the Kentucky Constitution and the Due Process and Equal Protection clauses of the U.S. Constitution.

Because the board calculated its award to Bryant based upon his lost wages, the judgment of the circuit court is reversed as to this point with directions that the case be remanded to the Workmen’s Compensation Board for a calculation of benefits in accordance with the terms of the Finn decision and this court’s opinion in River Coal Company, Inc. v. Mullins, Ky.App., 25 Ky.L.Summ. 14 (October 13, 1978). In all other respects, the judgment of the circuit court is affirmed.

All concur.

      . On January 18, 1975 when Bryant was injured, disability benefits were calculated using a base figure of 55 percent of the employee’s average weekly wage. The applicable percentage figure was increased by an additional two and one-half percent of average weekly wage for each of the claimant’s dependents up to a maximum of three. See KRS 342.730(l)(b) (1972) (amended to a constant 66¾⅛ percent of average weekly wage, Kentucky Acts 1976 (Ex. Sess.), ch. 26, § 1, effective January 1, 1977). Thus, if the board’s determination of his wife’s status as a dependent were correct, Bryant’s benefits would be calculated using a base figure of 57‘/2 percent of his average weekly wage.


author: VANCE, Judge.

text:
    The R. C. DURR COMPANY, INC. and Maryland Casualty Company, Appellants, v. BENNETT INDUSTRIES, INC., Appellee.
    Court of Appeals of Kentucky.
    Aug. 3, 1979.
    Rehearing Denied Sept. 21, 1979.
    T. J. Brandt, W. L. Ziegler, Ziegler & Schneider, Covington, for appellants.
    Buckner Hinkle, Jr., Ted J. Campbell, Lexington, William H. Baughman, Jr., Cleveland, Ohio, William A. Young, Frankfort, for appellee.
    Before HOWARD, VANCE and WIN-TERSHEIMER, JJ.
   VANCE, Judge.

Summary judgment was entered against appellants on the claim of appellee, and appellants’ counterclaim was dismissed.

Appellant, The R. C. Durr Company, Inc., was awarded a contract by the Department of Transportation for construction of a section of Interstate Highway 275. The job included the construction of two overpasses.

Prior to submission of its bid, R. D. Crist of the Durr Company met with Brad Mills of Bennett. Durr alleges that these representatives reached an oral agreement whereby Bennett would furnish a specific quantity of fabricated steel to be used in the overpasses for a specific price to be delivered at a specific time. The agreement was dependent upon Durr winning the contract from the State.

Durr was awarded the contract on April 17, 1973. On April 20th, it received from Bennett a written offer to supply the steel at the previously agreed lipón price for delivery in the third and fourth quarters, 1973.

The written offer was contained on a one-page document and was signed by Brad Mills for Bennett. The document contained a space for acceptance which was signed by R. D. Crist for Durr, and it was returned to Bennett. There was one change made by Durr. Where Bennett had provided for delivery during the third and fourth quarters of 1973, Durr requested delivery “Soon as possible Sta. 10 + 44-1st . . .”

Underneath the lines for signatures of the offeror and offeree was a printed slogan which read “Heavy Steel Fabrication Since 1903.” Below the slogan there was reproduced across the bottom of the page three symbols or trademarks which Bennett apparently associated with its business. At the very bottom of the page, below the symbols, was the following:' “This quotation is subject to the terms .and conditions on the reverse side hereof.”

' The reverse side of the page was completely filled with twenty numbered paragraphs of conditions. Important to this litigation were clauses which completely exonerated Bennett from liability for liquidated damages and consequential damages. Durr contends that no reference was made to any of the limiting conditions when it was negotiating with Bennett prior to the submission of the bid to the Department of Transportation.

Durr alleges that Bennett did not submit its shop drawing for approval by the State until December, 1973; that significant flaws in the fabrication were found by inspection for the State; that holes were drilled too close to the edge of all girders; that Durr was caused to expend $33,000.00 to correct errors in the fabricated steel supplied by Bennett; that construction was delayed through the defalcation of Bennett causing Durr potential liability for liquidated damages and increased costs of construction.

Durr refused to pay for the steel, and Bennett instituted action to recover the price per contract. Durr claimed a right to deduct from the purchase price the amount it spent to bring the steel up to specifications and counterclaimed for damage caused to it by the failure of Bennett to perform the contract.

The summary judgment does not indicate the basis upon which it was granted. Durr contends there were significant and genuine issues of material facts including the amounts it expended for repairs and the amount of its damages caused by Bennett’s failure to perform.

Bennett defends the summary judgment relying primarily upon the exculpatory language in the conditions on the reverse side of the printed offer. It contends that the damages sought by Durr are consequential damages and that the contract precludes liability for consequential damages.

Durr contends the conditions on the reverse side of the offer are not part of the contract because (1) the contract was not signed at the end or close of the writing, and (2) the disclaimer or limitation of liability was not conspicuous.

We find merit in appellants’ contentions. KRS 446.060(1) provides:

When the law requires any writing to be signed by a party thereto, it shall not be deemed to be signed unless the signature is subscribed at the end or close of the writing.

The reason for this requirement is that a signature so placed raises the logical inference that the document expresses all which the signer desires to authenticate and to which he intends to be bound. Gentry’s Guardian v. Gentry, 219 Ky. 569, 293 S.W. 1094 (1927). A signature in the middle of a writing gives no such assurance and gives no indication of an intent to be bound by matters which do not appear above the signature. In Gentry, a signature below the acknowledgment to a deed was held valid, and in Lucas v. Brown, 187 Ky. 502, 219 S.W. 796 (1920), a signature under the attestation clause of a will was upheld.' In both cases the signature was said to be sufficiently near the close of the instrument, and in both of them the entire instrument appeared above the signature. That is not the case here. The signatures are not near the close of the instrument, and the company slogan, the symbols, the reference to conditions on the reverse side, and all of the limiting conditions appeared below the signature.

Bennett contends that the Uniform Commercial Code has negated the application of KRS 446.060(1). The definition of “signed” contained in the Uniform Commercial Code relates to what constitutes a valid signature, not to where the signature must be placed.

Laws existing when the Uniform Commercial Code was adopted are supplemental to the Uniform Commercial Code unless displaced by it. KRS 355.1-103. We hold that KRS 446.060(1) was not displaced by the Uniform Commercial Code. It is therefore supplemental to the Code.

Because the instrument was not signed at the end, Durr cannot be bound by the limitations of liability contained on the reverse side. Because Durr is not bound by those limitations of liability, the summary judgment for Bennett was improper.

This disposition makes it unnecessary to consider the other allegations of error raised by appellants.

The judgment is reversed.

All concur.


author: WHITE, Judge.

text:
    Ron RICE, d/b/a Dollar General Store and Aetna Life & Casualty, Appellants, v. Philbert McCOY and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Aug. 3, 1979.
    Discretionary Review Denied Dec. 12, 1979.

      Max D. Picklesimer, Johnson, Dunnigan & Martin, Ashland, for appellants.
    James E. Adkins, II, Adkins, Adkins & Hall, Catlettsburg, for appellee, Philbert McCoy.
    Before WHITE, HOWARD and VANCE, JJ.
   WHITE, Judge.

This is an appeal from the Carter Circuit Court holding appellee’s petition for review from a Workmen’s Compensation Board order timely. The holding of the Carter Circuit Court in turn depends upon the timeliness of filing of a petition for reconsideration before the Board.

Appellee Philbert McCoy filed a claim with the Workmen’s Compensation Board seeking benefits as a surviving spouse. The Board entered an opinion and award on April 4, 1978, denying benefits but awarding burial expenses not to exceed $1500.

A petition for reconsideration was filed by appellee with the Board on April 19, 1978. Appellants then filed a response, contending the petition (1) should be denied on its merits and (2) was not timely filed. Appellee then filed a motion moving the Board to “consider his Petition for Reconsideration even if the same was received by the Board on April 19, 1978.”

On May 3, 1978, the Board entered an order overruling appellee’s “petitions for reconsideration, filed herein April 19 and 25, 1978.”

On May 11, 1978, appellee appealed the Board award to the Carter Circuit Court. Appellants answered, resisting the complaint on its merits and as not timely filed. Appellants moved to dismiss appellee’s petition for review and complaint on the grounds of untimely filing.

The circuit court overruled appellants’ motion and remanded the case to the Board for reconsideration of appellee’s petition for reconsideration. The circuit' court found that the Board should not have denied the petition because “[g]ood cause for late filing was adequately shown by the record.” Appellant now seeks review of the circuit court’s judgment.

KRS 342.285(1) requires that an appeal from a Board opinion be filed in the appropriate circuit court within 20 days after entry, unless a petition for reconsideration is filed pursuant to KRS 342.281. KRS 342.281 provides that a petition for reconsideration be filed within 14 days from the date of entry of the Board opinion and award.

Under Workmen’s Compensation Board Regulation 803 KAR 25:010, Section 1(7), “[t]he date of filing is the date the pleading, motion or other document is received by the board at its office at Frankfort, Kentucky.”

The award was entered April 4, 1978. The petition for reconsideration was received by the Board on April 19,1978, one day after the 14 day period provided in KRS 342.281. However, appellee filed a motion for consideration of his petition on the grounds of good cause for late filing. The Board overruled both petitions for reconsideration.

KRS 342.281 is mandatory; a showing of good cause offers no relief from its provisions. In Johnson v. Eastern Coal Corporation, Ky., 401 S.W.2d 230, 231 (1966), the court held that “strict compliance with this section is mandatory to obtain a full Board review.”

Appellee’s petition for reconsideration was untimely filed and the Board properly overruled it. We note that a dismissal would have been the more appropriate ruling by the Board; however, overruling the petition accomplished the same result.

Since the petition for reconsideration was untimely taken, any right of appeal to the circuit court was lost. KRS 342.285 is jurisdictional. “The language of the statute is plain as to the time in which to appeal. The time within which a petition for review must be filed is mandatory, and if it is not complied with the circuit court acquires no jurisdiction.” Kendrick v. Fields, Ky., 384 S.W.2d 64 (1964).

For the foregoing reasons, the judgment of the Carter Circuit Court is reversed with instructions to dismiss the appeal.

All concur.


text:
    David HOCKER and Allen Squitieri, Individually and d/b/a Hocker-Squitieri Company; Paducah Planning Commission of the City of Paducah; and City of Paducah, Appellants, v. Nolan FISHER, Doris Fisher, Lester Woolfenden, Ethel Woolfenden, Fred Bray, Patricia Bray, Conly L. Purcell, Ruth Purcell, Doyle Allison, and Florence Allison, Appellees.
    Court of Appeals of Kentucky.
    Oct. 19, 1979.

      Richard C. Roberts, Herbert S. Melton, Jr., Paducah, for appellants, David Hocker and Allen Squitieri.
    Burke B. Terrell, Paducah, for appellant, Paducah Planning Commission of the City of Paducah.
    James W. Utter, Paducah, for appellant, City of Paducah.
    William B. Byrd, William E. Taylor, Pa-ducah, for appellees.
    Before WHITE, GUDGEL and HAYES, JJ.
   WHITE, Judge.

This appeal is from a summary judgment entered December 18, 1978, by the McCracken Circuit Court in which the application by appellants for a zoning change and the granting of a permit for a Planned Unit Development (PUD) were denied. We affirm in part and reverse in part.

It must be noted at the outset that this present appeal is interrelated with the final disposition of a previously filed suit styled Bartholomew v. City of Paducah, in which the City of Paducah, Kentucky, was granted the authority to annex an area of land, a part of which included the subject of this present action.

In' order to understand clearly the grounds for this appeal, it is necessary to see the interrelated steps of both actions. The Bartholomew suit involved only the matters related to annexation. The case before us involves only the matters related to zoning and granting of a. permit for a PUD. . However, it must be noted that the actions by the City and the City Planning Commission in the subject matter of this appeal occurred during the pendency of the action of the Bartholomew case. That interrelationship is set out in the following discussion of this opinion.

The lower court in this appeal held that the action of the City of Paducah in creating a Planned Unit Development (PUD) prior to the final resolution of the annexation suit was premature and without jurisdictional authority and that such action violated the due process and constitutional rights of plaintiffs-appellees.

On December 7, 1977, the McCracken Circuit Court entered a judgment in the Bartholomew case in favor of the City’s annexing the territory. Relying on the circuit court decision, the City, on December 13, 1977, passed the annexation ordinance for this property. Three days later, on December 16, 1977, a motion for a new trial was filed by the plaintiffs in Bartholomew.

On January 10, 1978, appellant Hocker filed application for a PUD which was approved and granted at an unreported meeting of the Paducah Planning Commission on March 6, 1978. Two weeks later, on March 20, 1978, the motion for a new trial in Bartholomew was overruled by the McCracken Circuit Court.

Two issues arise: (1) whether the City of Paducah held jurisdictional authority to annex the property on December 13, 1977, thereby acquiring control later to zone and (2)whether the zoning procedure itself conformed with due process and other constitutional standards.

Insofar as the lower court held that the City of Paducah was without jurisdiction to effectuate annexation on December 13, 1977, we reverse.

Kentucky Civil Rule 62.01 states:

A motion for a new trial . . . shall operate to stay the execution of or any proceedings to enforce a judgment pending the disposition of any such motion or motions, provided that such motion is filed with the court within the time prescribed for the making of or service of such motion.

Although the December 16, 1977 filing of a motion for a new trial suspended the judgment prospectively from that point until the motion was overruled on March 20, 1978, it is noted that between December 7 and December 16, 1977, the judgment was in full effect and deemed final and conclusive. Appellees could have abridged this period of time had they chosen to file their motion immediately upon the entry of the circuit court’s judgment.

A judgment rendered by a court having jurisdiction of the parties and the subject matter protects the parties acting under it before reversal or stay, and constitutes a sufficient justification for all acts done in its enforcement before it is reversed or set aside by competent authority. 5 Am. Jur.2d Appeal and Error § 997 (1963).

Thus, the City of Paducah properly relied on the circuit court judgment in passing the annexation ordinance on December 13,1977. KRS 81.140, with certain enumerated exceptions, authorizes second-class cities to follow the annexation procedures established for first-class cities under KRS 81.100 and 81.110. KRS 81.110(4) provides: “The judgment shall, when entered, be certified to the city legislative body, which may thereupon annex to or strike from the city the territory described in the judgment, and the territory shall then become, or cease to become, a part of the city.”

It was upon this discretionary authority that the City of Paducah acted on December 13. Accordingly, on December 16,1977, the date the motion for a new trial was filed and the judgment stayed, the annexation had already been effectuated, thereby permitting the City of Paducah to exercise its full jurisdiction over same. “There is no statutory provision delaying the action of the city legislative body any longer after a judgment favorable to annexation is obtained in the circuit court.” Taustine v. Fleig, Ky., 374 S.W.2d 508, 509 (1964). It is noted that the City’s actions were, of course, dependent upon the judgment being sustained. The overruling of the motion for a new trial on March 20, 1978, and the subsequent affirming on appeal eliminated whatever risk may have been involved and thus supported the City’s authority.

However, the right to exercise authority does not carry with it the assumed conclusion that the exercise thereof is or was necessarily proper. To the extent that the lower court found that the Paducah Planning Commission violated due process and constitutional rights in its March 20, 1978 rezoning resolution, we affirm.

As relates to the common law property interests or statutory entitlements of an individual, the availability of judicial review is guaranteed by the Kentucky Constitution. Under administrative law, as with the common law, there is deference to the trier of fact; agency determinations are to be upheld if the decision is supported by substantial, reliable and probative evidence found within the record as a whole.

When an agency is acting in an adjudicatory manner affecting protected individual rights, “procedural due process requires at least that the local legislative body in rezoning matters act on the basis of a record and on the basis of substantial evidence.” City of Louisville v. McDonald, Ky., 470 S.W.2d 173, 178 (1971). Without such record the appellate reviewer is unable to determine if the evidence upon which the decision-maker relied was such that a reasonable person could have reached a similar holding.

KRS 100.167 establishes an affirmative duty for each Planning Commission:

The planning commission shall adopt bylaws for the transaction of business, and shall keep minutes and records of all proceedings, including regulations, transactions, findings, and determinations, and the number of votes for and against each question, and if any member is absent or disqualifies from voting, indicating the fact, all of which shall, immediately after adoption, be filed in the office of the commission or board, as applicable. If the commission has no office, such records shall be filed in the office of the county court clerk. A transcript of the entire proceedings of a planning commission shall be provided if requested by a party, at the expense of the requesting party, and the transcript shall constitute the record, (emphasis added)

It is clear that the statute obligates the Commission to be responsible for the-compilation and preparation of records. Transcripts are to be available to parties willing to bear the expense of individual copies, not the full expense of maintaining the minutes and records of all proceedings at that session. Appellants (defendants below) have placed reliance on the first part of Civil Rule 75.13, which provides:

In the event no stenographic report of the evidence or proceedings at a hearing or trial was taken, or if taken, cannot be transcribed, the appellant may prepare a narrative statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript.

However, the appellants have disregarded the last sentence of the rule, which also provides: “Thereupon the statement, with the objections or proposed amendments, shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the court in the record on appeal.”

It is to be noted that the scope of this rule is a discretionary alternative in judicial hearings or trials and does not apply to circumstances such as here, primarily because there is no official who is empowered to settle and approve the disputed record under that rule. Further, in no event is any such alternative to be allowed to defeat the purpose of or the strict compliance with the statutory provisions of KRS 100.167.

The Paducah Planning Commission prepared no record of the proceedings; there were no recorded findings of fact, nothing to support its zoning order except some type of oral hearing. Such is a breach of the requirements of procedural due process and judicial review. The authority of the circuit court is to determine if the Planning Commission acted arbitrarily in its zoning procedures. The role of this Court is to review whether the lower court acted in a manner clearly erroneous.

“There can be no doubt as to the correctness of the rule that a municipal corporation can speak only through its records.” Dance v. Board of Education of City of Middlesboro, 296 Ky. 67, 176 S.W.2d 90, 91 (1943). In this matter the Commission acted on an informal basis. With no adequate record available, the circuit court was unable to determine if findings of fact had been made at the Commission meeting and, if so, whether they supported the decision to zone. “The absence of a record showing a due-process proceeding was not . a ground for dismissing the appeal to the circuit court, for if that were so an administrative agency could effectively forestall any judicial review of its action simply by denying a due process hearing.” Morris v. City of Catlettsburg, Ky., 437 S.W.2d 753, 755 (1969).

Neither this Court nor the circuit court is able to perform its proper function of judicial review of the Planning Commission’s decision when there are no findings. With no record to provide the proper elements for judicial review, the proceedings of the Paducah Planning Commission on March 20, 1978, must be deemed arbitrary and in conflict with due process and constitutional rights.

Accordingly, this case is reversed in part and affirmed in part and remanded to the circuit court to enter a new judgment ordering the Commission to comply with the provisions of KRS 100.167.

All concur.

      . That judgment was affirmed on February 16, 1979, in Bartholomew v. City of Paducah, 78-CA-976-MR. Although this case is not published and precluded from being cited, we nevertheless take judicial notice of the records of our own Court for the purpose of stating a fact that is controlling.


author: HOWARD, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Phillip Ray JETER, Appellee.
    Court of Appeals of Kentucky.
    Nov. 2, 1979.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellant.
    J. Vincent Aprile, II, Asst. Deputy Public Advocate, Commonwealth of Kentucky, Frankfort, for amicus curiae.
    Henry E. Hughes, Lexington, for appel-lee.
    Before HAYES, C. J., and HOWARD and VANCE, JJ.
   HOWARD, Judge.

Phillip Ray Jeter was indicted by the Fayette County Grand Jury on April 8, 1978. One count of the indictment alleged theft by deception, in violation of K.R.S. 514.040. The other four (4) counts alleged failure to make required disposition of property denounced under K.R.S. 514.070. After the close of the Commonwealth’s case, the appellee moved for a directed verdict on all five (5) counts of the indictment. Count one (1) was dismissed by the court for failure to prove the essential element of deception. Counts four (4) and five (5) were found to be barred by the statute of limitations. Counts two (2) and three (3) were dismissed as it was found that alleged conduct was not within the purview of K.R.S. 514.070. The Commonwealth brings this action for the certification of the question of law as to whether K.R.S. 514.070 includes the course of conduct in which a seller accepts money for the purchase of merchandise and then refuses to deliver the property as promised.

A brief survey of the evidence presented to the trial court is necessary. The evidence includes the testimony of Beulah Shearer. Shearer related that she went to All Furniture Sales, owned by Phillip Ray Jeter, to purchase a stove and a refrigerator. Shearer, at that time, paid the full purchase price of $125.00 for the refrigerator and $89.00 for the stove. Both items were to be subsequently delivered. After much delay and persistence on the part of Shearer, the stove was finally delivered, although in an unsatisfactory condition. The refrigerator was never received.

The evidence reveals a similar account where Solar Suede Corporation purchased a washing machine for $78.85 from All Furniture Sales. Although paid for on the day of the sale, the washing machine was never delivered despite much effort on the part of the Solar Suede representatives.

Further testimony was heard at trial from Nellie McCullough who purchased a washer and dryer from All Furniture Sales for a total price of $165.00. When the washer was delivered, it was not in working condition. The dryer was never received and the washer was never repaired by Jet-er, although many such requests were made.

In November, 1975, Mary Lowery purchased a washing machine from All Furniture Sales for the price of $84.00. Of this amount, $43.00 was paid down, with the remaining amount to be paid in two (2) weeks. The washing machine was never delivered. Lowery was finally given a refund in April, 1978.

This Court is asked to examine the above-indicated conduct and to determine, for future reference, if it or similar such conduct is an indictable offense under K.R.S. 514.-070, which provides in part:

(1) A person is guilty of theft by failure to make required disposition of property received when:
(a) He obtains prciperty upon agreement or subject to a known legal obligation to make specified payment or other disposition whether from such property or its proceeds or from his own property to be reserved in equivalent amount; and
(b) He intentionally deals with the property as his own and fails to make the required payment or disposition.

We turn first to the official commentary accompanying this statute. The commentary to K.R.S. 514.070 explains “[i]t is not the purpose of this statute to impose a criminal sanction on the relationship of debtor and creditor. To constitute an offense there must be a breach of trust, growing out of a contract or confidential relation.” The trial court found the aforementioned facts to all involve a debtor-creditor relationship and thus not within the scope of this statute. The Commonwealth argues too much weight has been placed on the commentary statement that K.R.S. 514.070 does not impose a criminal sanction in instances of a debtor-creditor relationship. It is suggested that the Court focus on the additional section of the commentary referring to breach of fiduciary duty. The Commonwealth contends a fiduciary relationship was established when Jeter promised to deliver the goods. In an amicus curiae brief, the Office for Public Advocacy challenges the assertion of the creation of a fiduciary relationship. We find it unnecessary to address this point as it is not crucial to the interpretation of the statute. We note, however, that the argument could also be made that the sale created a contract and an accompanying trust obligation which was breached in these fact patterns.

These considerations, however, are not decisive as to the scope of the statute.

The basic thrust of this statute is to impose penal sanctions for such conduct as a retailer’s failure to pay over to the state sales taxes which have been collected, a contractor’s failure to make proper application of payments in satisfaction of ma-terialmans’ liens, an employer’s failure to apply withheld employee’s wages to a pension fund, or a bank employee’s failure to properly credit funds deposited for the account of a customer. Brickey, Kentucky Criminal Law, § 14.08.

We feel that the literal language of the statute, itself, is most persuasive. A careful reading of the statute leads one to the conclusion that this statute was not enacted to penalize the type of fact pattern as is alleged in the Commonwealth’s case against Jeter. The alleged actions would more properly have supported an indictment for theft by deception under K.R.S. 514.040.

We agree with the decision of the Fa-yette Circuit Court and certify that K.R.S. 514.070 does not proscribe the type of transaction whereby a seller accepts money for the purchase of merchandise and then refuses to deliver the property as promised. The statute was instead enacted to penalize the misapplication of property received from another.

■HAYES, C. J., concurs.

VANCE, J., concurs in result.


author: COOPER, Judge. WILHOIT, Judge,

text:
    Edwin W. MYERS, Appellant, v. CITY OF LOUISVILLE, Officer Jimmy Scalf, Officer Tom Brooks, and Officer Frank Portman, Appellees.
    Court of Appeals of Kentucky.
    Nov. 2, 1979.
    David E. Murrell, Frankfort, for appellant.
    Henry Watson, III, Deputy Director of Law, Kyle T. Hubbard, Daniel Hall, Louisville, for appellees.
    Before COOPER, GANT and WILHOIT, JJ. .
   COOPER, Judge.

This is an appeal from a judgment based on a jury verdict for the defendants-appel-lees in a civil suit alleging false arrest and imprisonment. The trial court overruled the appellant’s motion for a judgment notwithstanding the verdict. The appellant alleges several errors with the instructions, and the further fact that he should have been granted a judgment notwithstanding the jury verdict.

On July 2, 1977, the appellant, Edwin W. Myers, who is totally blind, accompanied by two other people attempted to enter the Starving Artist Restaurant with his guide dog. The proprietress, Gloria Donaldson, refused to permit him to come into the restaurant with his dog. Myers insisted that he had the right to do so because the law permitted a blind person to take their trained guide dog into all places of public accommodation. The evidence established that the guide dog was not muzzled as required by KRS 258.500(6). Upon Myers insistence, Ms. Donaldson called the police. After the police arrived they asked Myers to step outside. The police officers indicated to Myers that he would be permitted inside the restaurant if he left the dog in the car. Myers refused this alternative and demanded that he be permitted inside the restaürant with his dog. The discussion with the officers went on for approximately 20 to 45 minutes, and the police officers informed Myers that if he went back inside the restaurant with his dog he would be arrested. Myers demanded that he be locked up because he was going back inside. The appellant went back inside the restaurant and was thus arrested on a charge of disorderly conduct for refusing to obey a police officer. Myers was subsequently tried in Jefferson District Court and was acquitted on the charge of disorderly conduct.

The appellant contends he should have been granted a judgment notwithstanding the jury verdict.

CR 50.02 provides that “[n]ot later than 10 days after entry of judgment, a party who has moved for a directed verdict at the close of all the evidence may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict . . .”

Kentucky courts have consistently construed this rule as precluding a party from obtaining a judgment notwithstanding the verdict if said party failed to move for a directed verdict at the close of all the evidence. In Commonwealth, Dept. of Highways v. Enoch, Ky., 523 S.W.2d 633 (1975), the Kentucky Court of Appeals held that the only ground on which a motion for judgment notwithstanding the verdict can be granted is that the movant ask for and is entitled to a directed verdict at the close of all the evidence.

A review of the evidence indicates there was a question of fact for the jury on the issue of whether the officers believed, and had probable cause to believe, that the appellant committed the offense of disorderly conduct. The jury agreed with the officers.

We agree that the trial court was correct in not granting a judgment notwithstanding the verdict.

On the second issue, the appellant argues that the trial court erred in instructing the jury to find against the appellees for false arrest and imprisonment only if the appellees did not then believe, and have probable cause to believe, that the appellant had committed the offense of disorderly conduct in the appellees’ presence.

It appears the trial court relied on the holding in Couch v. Vanhoose, 314 Ky. 36, 234 S.W.2d 169, 173 (1950), in formulating its instructions to the jury. In Couch, supra, the Court of Appeals held that in a false arrest action against policemen, instructions to the jury defining the duty of policemen should have stated that the policemen had a right to arrest the plaintiff if the policemen had reasonable grounds to believe and did believe in good faith that the plaintiff at the time of arrest was drunk or disorderly. Police officers are constantly making arrests in high pressure situations and as a matter of public policy should not be required to make fine, legal distinctions on the spur of the moment under these conditions.

In the last issue, the appellant states that the court committed error in not instructing the jury on all the necessary elements of disorderly conduct applicable in this case.

It is our opinion on this last issue as it is substantially with this entire case that the errors raised are technical and harmless. Standing on what he thought were his statutory rights, appellant challenged the authority of the police. He could have left the premises, but instead invited his own arrest. The evidence is clear that the police acted cautiously and reasonably and only arrested appellant at his own insistence. Since the evidence is clear beyond reasonable doubt that the seeing-eye dog was not properly muzzled, he was not entitled to enter the restaurant. The arrest was therefore proper.

Street-level law enforcement personnel cannot be expected to know and apply the technical legal rules of what constitutes disorderly conduct in every street confrontation. In deciding whether to arrest, they can and are expected to use reasonable judgment and only such force as is. dictated by the circumstances. There was ample evidence for the jury to determine that the police acted with caution and restraint in this case and that appellant, based on the fact of his dog being inadequately muzzled, had no right to enter the restaurant premises. In preventing him, the police acted well within the limits of their authority, and any error in the instructions concerning the element of probable cause in making an arrest or determining what constitutes disorderly conduct was merely harmless.

The judgment in favor of appellees is affirmed.

GANT, J., concurs.

WILHOIT, J., dissents in a separate opinion.

WILHOIT, Judge,

dissenting.

I respectfully dissent from the majority opinion because I believe the trial court erred to the substantial prejudice of the appellant in failing to instruct the jury on all of the elements of the offense of disorderly conduct. Unless the jury was instructed as to the elements of the offense charged, I cannot see how it could conclude that there was probable cause for the officers to believe that the appellant was guilty of the offense. Because of the peculiar facts of this case, a jury could well have concluded that the officers had no probable cause to believe that the appellant intended to cause public inconvenience, annoyance, alarm, or wantonly created a risk thereof. Yet, these are necessary elements of the offense of disorderly conduct.

I cannot agree with the majority that police officers “cannot be expected to know and apply the technical legal rules of what constitutes disorderly conduct in every street confrontation,” or the fact that they may have “acted with caution and restraint” would obviate any illegality in these acts. Police are trained and should be expected to know the elements of an offense for which they are arresting a citizen, and illegal acts are committed every day “with caution and restraint.”


author: HOWERTON, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Appellant, v. Bennie MAINS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 16, 1979.

      Owen W. Serey, Jr., Commonwealth of Kentucky, Dept, of Transp., Bureau of Highways, Covington, for appellant.
    Bennie Mains, pro se.
    Before GANT, HOWERTON and REYNOLDS, JJ.
   HOWERTON, Judge.

The Commonwealth appeals from a judgment of the Bracken Circuit Court affirming an award of the Board of Claims in favor of the appellee, Bennie Mains, in the amount of $38.00.

Mains’ automobile was struck by a rock thrown by a state-owned rotary mower. The Board of Claims awarded Mains the sum of $38.00 on the basis that a rotary-type lawnmower is an inherently dangerous instrumentality. There was no finding of negligence on the part of the Commonwealth. The Bracken Circuit Court affirmed the award but concluded independently that the Commonwealth was negligent for not closing the highway where the mowing was taking place. We restrain ourselves from commenting on what chaos might result from such a requirement.

The effect of the opinion rendered by the Board of Claims was to hold the Commonwealth liable on the theory of strict liability. The only basis for liability before the Board of Claims is negligence which is the proximate cause of the damage. KRS 44.070(1) and KRS 44.120. Strict liability and negligence are mutually exclusive. Commonwealth, Department of Transportation v. Burger, Ky.App., 578 S.W.2d 897 (1979). Any award based only on strict liability is therefore inconsistent with the authorizing statutes.

The circuit court exceeded its authority in affirming the Board’s decision by making its independent finding of negligence. KRS 44.140(2) limits the circuit court’s power of review to determining:

. Whether or not the Board acted without or in excess of its powers; the award was procured by fraud; the award is not in conformity to the provisions of KRS 44.070 to 44.160; and whether the findings of fact support the award.

See also, Commonwealth, Department of Parks v. Bergee Bros., Ky., 480 S.W.2d 158 (1972).

We conclude that this action must be reversed. The case is therefore remanded to the circuit. court with instructions to remand it to the Board of Claims for a determination from the record as to whether the Commonwealth or its employees were negligent, and if so, whether the negligence was the proximate cause of the $38.00 damage to Mains’ automobile.

All concur.


author: CRIST, Judge.

text:
    Khadija BRYANT, Respondent, v. Midell BRYANT, Appellant.
    No. 40892.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 18, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 16, 1979.
    Khadija Bryant, pro se.
    Sleater & Sleater, W. W. Sleater, Clayton, D. A. Kearns, Chicago, Ill., for respondent.
   CRIST, Judge.

Judgment denying appellant’s motion for a payout order in garnishment proceedings affirmed because appellant’s motion lacked evidentiary support. The transcript shows:

The parties’ marriage was dissolved on November 13, 1974. The decree awarded the respondent mother custody of two minor children and $25.00 per week for the support of each of the children. On October 28,1976, the court ordered the appellant father to pay $1,255.00 back child support and $50.00 per month for future child support while such order was in force. Primary custody of the two children was placed with the paternal grandmother during the week and with the mother on weekends. Upon a motion to modify, the court entered a decree on July 11, 1977 which granted both mother and father legal custody of one child, provided for equal periods of visitation, and relieved the father of his child support obligations during periods of summer visitation when he should have actual custody.

The mother filed her request for execution and/or garnishment on October 5,1977 and interrogatories to the garnishee on January 4, 1978. On February 7, 1978, the return on execution was filed showing service on Gulf Transit Co., St. Louis Charter Coach Department, a corporation, directed to H. J. Shea, he being in the business office of said corporation and having charge thereof. The President or other chief office of said corporation could not be found in the City of St. Louis at the time of service.

Answers to the interrogatories were filed by Illinois Central Gulf Railroad Company on February 16, 1978.

Thereafter, on March 20, 1978, the father filed a motion to order the clerk to pay him $803.01 heretofore paid into court by the garnishee, alleging that (1) the trial court had no jurisdiction over the garnishee or the subject of the garnishment because notice of garnishment was not served upon a proper officer of the corporation contrary to Section 525.050, RSMo. 1969, and (2) he did not owe any additional child support because he had already paid more than he was legally obligated to pay.

The mother’s reply to the payout motion, filed on March 23, 1978, stated in part “[t]he grounds for the payout Order are based upon interpretation of Two Court Decrees, upon which final determination is [sic] not yet been made.” The mother also filed, on April 26, 1978, a motion alleging the father had not followed former orders of the court and was not in proper position to move the court for any relief.

On June 8,1978, the clerk ordered $803.01 received from the garnishee deposited into the registry of the court. The court overruled the father’s motion for a payout order on July 28, 1978, and the father appeals from this ruling.

As in his motion for a payout order, the father argues the trial court had no jurisdiction over the garnishee or the subject of the garnishment because the notice of garnishment was not served upon a proper officer of the corporation contrary to Section 525.050, RSMo. 1969, and that he did not owe any additional child support because he had already paid more than he was legally obligated to pay.

The transcript does not show the introduction of evidence in support of the payout motion. The transcript merely shows the filing of a payout motion by the father, a reply and a motion filed by the mother, and the order overruling the payout motion. Without evidentiary support on the record for the payout motion, we must affirm the judgment. An appellant cannot charge the trial court with error upon an issue which “died for complete lack of nourishment by way of exhibits, evidence or testimony.” Further, the failure to introduce evidence upon the issue in the trial court results in a void in the transcript which deprives the appellate court of any issue to decide. Edwards v. Hrebec, 414 S.W.2d 361, 366 (Mo.App.1967); accord, First Bank and Trust Co. v. H. P. Montgomery, 570 S.W.2d 346, 348 (Mo.App.1978); Feely v. Birenbaum, 554 S.W.2d 432, 434 (Mo.App.1977).

The judgment is affirmed.

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


author: PUDLOWSKI, Judge.

text:
    Leo Joseph NOTHOMB and Catherine Nothomb, Plaintiffs-Respondents, v. Hermine Huber LATTA, Administratrix c.t.a. of the Estate of Henry T. Nothomb, Deceased, Defendant-Appellant.
    No. 40301.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 25, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 16, 1979.

      John L. Sullivan, St. Louis, for defendant-appellant.
    Daniel J. McMichael Fitzsimmons & Fitz-simmons, Attorneys, Inc., Clayton, for plaintiffs-respondents.
   PUDLOWSKI, Judge.

Appeal from the trial court’s determination that title to a promissory note vested in respondents, Leo Joseph Nothomb and Catherine E. Nothomb, husband and wife, by right of survivorship.

In our determination we will utilize without quotation marks substantial portions of the opinion by the trial court judge, the Honorable Michael E. Godfrey.

The evidence shows Kathryn Nothomb died owning a tract of commercial.land at 70th and Dodge Streets, Omaha, Nebraska (hereinafter referred to as the Dodge Street property). Under the terms of her will the Dodge Street property passed to Kathryn’s two sons, Leo and Henry Nothomb, as tenants in common. In 1970, the Nothombs decided to sell the Dodge Street property to Samuel and Rebecca Wolf. To effectuate the sale the Nothombs issued a warranty deed in return for the Wolfs’ promissory note which was secured by a first mortgage on the Dodge Street property. The deed was signed by Henry Nothomb, Leo No-thomb and Leo’s wife, Catherine Nothomb. The promissory note was for $110,000 and was payable to “Leo Joseph Nothomb and Catherine E. Nothomb, husband and wife and Henry Theo Nothomb, single, as joint payees with right of survivorship.” The mortgage recited the mortgagees to be “Leo Joseph Nothomb and Catherine E. No-thomb, husband and wife, and Henry Theo Nothomb, single, as joint tenants and not as tenants in common.” Henry Nothomb died domiciled in Missouri, on April 19, 1975. The appellant, Hermine Huber Latta, a residuary legatee under Henry’s will and ad-ministratrix óf his estate, claimed Henry’s interest in the note. Leo and Catherine Nothomb, relying on the right of survivor-ship, brought suit alleging they properly had title to the promissory note.

Neither party disputes that Nebraska law, being the law of the jurisdiction where the contract was made, controls the substantive issues of this case. Schoene v. Hickam, 397 S.W.2d 596, 601 (Mo.1965). It is also clear that the law of Missouri, the forum state, governs procedural matters. Lukas v. Hays, 283 S.W.2d 561, 565 (Mo. 1955). Furthermore, both parties agree that Nebraska permits the creation of joint tenancies in realty, Sanderson v. Everson, 93 Neb. 606, 141 N.W. 1025, 1025-1026 (1913), as well as in personalty, In re Vance’s Estate, 149 Neb. 220, 30 N.W.2d 677, 681 (1948).

Appellant’s first contention is that the trial court erred in finding that the promissory note created a right of survivorship in respondents. We do not agree. We hold, like the trial court below, that the promissory note created a joint tenancy with right of survivorship.

Appellant correctly notes that it is the rule in Nebraska that a joint tenancy can only be created by a contract that clearly expresses the parties purpose and intent to create a joint tenancy. Sanderson v. Everson, supra. If the purpose to create a joint tenancy is less than clearly expressed a tenancy in common will be imposed. In re Ogier’s Estate, 175 Neb. 883, 125 N.W.2d 68, 74 (1963). This is because joint tenancies are not favored by the law. Buford v. Dahlke, 158 Neb. 39, 62 N.W.2d 252, 258 (1954).

In determining the type of tenancy created in this case we are guided by the well settled Nebraska rule which holds that when a promissory note and mortgage are executed as part of one transaction, they are to be read and construed together as one instrument. Nathan v. McKeman, 170 Neb. 1, 101 N.W.2d 756, 764 (1960). Because the note and mortgage in this case were executed contemporaneously as part of one transaction involving the financing for the sale of the Dodge Street property and the two documents allude to the other's provisions, the conclusion is inescapable that the note and mortgage may be read as one instrument. Thus, the provisions of one document can be used to explain or clarify the provisions of the other “. . .so that the intent of the parties may be carried out, and the whole agreement actually made may be effectuated.” Federal Farm Mortgage Corporation v. Cramb, 137 Neb. 553, 290 N.W. 440, 443 (1940). The mortgage in this case explicitly refers to the Nothombs as “joint tenants and not as tenants in common.” The note is somewhat more equivocal referring to the Nothombs as “joint payees with right of survivorship.” This latter phrase, of the promissory note, is not immediately susceptible of a clear meaning as it does not specifically relate to either a joint tenancy or a tenancy in common. However, it does manifest one distinguishing feature of the joint tenancy — the survivorship characteristic. Construing the two documents together, the joint tenancy provision in the mortgage would explain that the note intended to create a joint tenancy in the proceeds. Thus, the clarity of the language used in the mortgage suffices to amplify the less than clearly stated language in the note and manifests an intention that a joint tenancy was meant by the parties and not one of tenancy in common. By construing the note and the mortgage as one instrument this court, like the court below, is satisfied that the intent to create a joint tenancy in the proceeds from the sale of the Dodge Street property is expressed with sufficient clarity.

The appellant’s second contention is that the trial court erred by finding that the joint tenancy was not severed. We cannot agree with appellant.

Appellant’s argument is that the joint tenancy was severed by the conduct of the parties. The evidence shows that under the terms of the note $1,000 was payable each month to the Nothombs. For the five years prior to Henry’s death, Henry and Leo divided the note payments, $500 each. These payments were made from the purchaser’s successor directly to Henry and Leo. After Henry’s death, until his estate was appraised for tax purposes, the system of distribution remained the same except the checks to Henry were made payable to his estate. The essence of appellant’s argument is that because Catherine, who was entitled to an equal share of the proceeds of the note, never complained of the unequal distribution, she acquiesced to the severance in the joint tenancy in the proceeds yet due.

Appellant’s argument is without merit. Nebraska law holds that a joint tenancy can be destroyed by an act of one joint tenant which destroys one or more of its necessary unities of: possession, interest, time and title. In re Whiteside’s Estate, 159 Neb. 362, 67 N.W.2d 141, 146 (1954). Appellant in effect argues that the unity of interest, in the proceeds remaining under the note, was severed because Catherine did not take a Vs share of those proceeds already paid. We think this case is similar to that addressed by the Supreme Court of Nebraska in In re Whiteside’s Estate, supra. Where it stated that when one joint tenant with the knowledge or consent of his fellow joint tenants withdraws a portion of bank account funds held in joint tenancy and uses the withdrawn money for his own personal benefit “then with regard to that portion so withdrawn there has been a severance of the joint tenancy with extinguishment of the right of survivorship.” First, there is no evidence, aside from her failure to protest, that Catherine knew of or consented to the distribution scheme whereby Henry and Leo each' received $500 per month. Assuming that Catherine did have knowledge of this distribution procedure, appellant has only established that Catherine acquiesced to the severance of the joint tenancy with respect to the money Henry and Leo actually received. In re Whiteside’s Estate, supra.

The division of money between Henry and Leo during Henry’s lifetime may be evidence of the Nothombs’ intention to sever the entire joint tenancy but it is not dispositive of that question. The Canadian case of Flannigan v. Wotherspoon, 1 Dominion Law Reports (1953) 768 (Brit.Col.S. Ct.1952) held that where one joint tenant assumes a portion of the joint tenancy funds or-estate for his own use, with the knowledge and consent of the other joint tenants, an inference may arise that the parties intended to sever the whole. But, “[e]ach case . . . depends on its facts and the reasonable inferences which ought to be inferred therefrom.” Flannigan v. Wotherspoon, supra. It is apparent to this court that facts of this case do adequately support the inference that the parties merely agreed to divide the note payments in the forementioned unequal manner. This latter inference is supported by a number of American authorities, unfortunately no Nebraska case could be found on this point, which hold that joint tenants may make an agreement among themselves concerning the exclusive possession or division of income from the jointly held property without terminating the joint tenancy. State Tax Commissioner v. Tuchscherer, 130 N.W.2d 608, 614 (N.D.1964); Hammond v. McArthur, 30 Cal.2d 512, 183 P.2d 1, 3 (Cal.1947); Duncan v. Suhy, 378 Ill. 104, 37 N.E.2d 826, 829 (1941); 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 19 (1965). Thus, we are of the opinion that the evidence would not support a finding that the parties severed their joint tenancy in the proceeds remaining under the promissory note.

We have considered all of ’appellant’s allegations and rule that the judgment of the trial court should be affirmed.

SNYDER, P. J., and SMITH, J., concur.