author: RALEIGH BROWN, Justice.

text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. E. V. LEE, Appellee.
    No. 5110.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 10, 1978.
    Rehearing Denied Sept. 7, 1978.

      Robert D. Batjer, Jr., Wagstaff, Harrell, Pope, Alvis, Dickenson & Erwin, Abilene, for appellant.
    Aubrey L. Roberts, Jr., Mays, Moore, Dickson & Roberts, Inc., Sweetwater, for appellee.
   RALEIGH BROWN, Justice.

This is a workmen’s compensation case. Trial before a jury resulted in a judgment awarding E. V. Lee total and permanent benefits against Texas General Indemnity Company. Texas General appeals. We reverse and remand.

This case was the result of an alleged back injury sustained by Lee in the course of his employment by Chemical Express Carriers, Inc., on December 26, 1973. On October 1, 1975, Lee sustained a second injury to his back while employed by the same employer. He filed two workmen’s compensation claims seeking recovery in each instance for total and permanent incapacity. Trial concerning the injury of October 1, 1975, was first held and resulted in a recovery of benefits by Lee for total and permanent incapacity to be paid in a lump sum.

In the instant case, the jury found Lee sustained an injury in the course of his employment on December 26, 1973, that produced total and permanent incapacity which began on December 26, 1973. Issues regarding partial incapacity were not conditionally submitted and were not answered by the jury. Texas General’s timely request that the jury be instructed to retire again to fully answer the charge was denied. Judgment authorizing lump sum payment for total and permanent benefits was entered.

We overrule appellant’s contention that the court erred in refusing its request that the jury be instructed to continue its deliberations until the issues regarding partial incapacity were answered.

In Select Insurance Company v. Boucher, 561 S.W.2d 474 (Tex.1978), the court held a compensation carrier is not entitled to submit special issues as to partial incapacity as inferential rebuttal issues. The court in Texas Employers’ Insurance Association v. Marsh, 567 S.W.2d 832 (Tex.Civ.App.—El Paso, May 24, 1978), (not yet reported), held under the instruction given in the case, the verdict was not incomplete when the partial incapacity issues were submitted but left unanswered.

The court in the instant case instructed the jury:

“ ‘PARTIAL INCAPACITY’ means any degree of incapacity less than total incapacity, whereby a person suffers a reduction in earning capacity. A person cannot have both total and partial incapacity at the same time.”
“Answer only the questions which you are specifically instructed to answer.”

The jury decided Lee sustained total and permanent incapacity. Following the instructions by the court, the jury logically concluded that they had answered “only the questions which you are specifically instructed to answer.”

The verdict returned by the jury was neither incomplete nor conflicting. The court properly denied appellant’s request for continued deliberations by the jury.

Next, Texas General says the court erred in deeming admitted Lee’s request for admission that “circumstances exist in this case which will entitle the claimant to recover his/her compensation in a lump sum rather than by the week . . . .” We agree.

The purpose of Rule 169, T.R.C.P., was to avoid the necessity of proving facts which are not controverted and which are peculiarly within the knowledge of or readily ascertainable to a party litigant of whom admissions are requested. Fireman’s Fund Insurance Company v. Commercial Standard Insurance Company, 490 S.W.2d 818 (Tex.1972); Montgomery v. Gibbens, 245 S.W.2d 311 (Tex.Civ.App.—Eastland 1951, no writ).

The rule contemplates that unanswered requests for admission which were not requests for relevant matters of fact but called for conclusions, opinions, and statements of subjective intent should not be deemed admitted facts. White v. Watkins, 385 S.W.2d 267 (Tex.Civ.App.—Waco 1964, no writ); Hester v. Weaver, 252 S.W.2d 214 (Tex.Civ.App.—Eastland 1952, writ ref’d); Gore v. Cunningham, 297 S.W.2d 287 (Tex.Civ.App.—Beaumont 1956, writ ref. n. r. e.).

Lee’s request seeks more than relevant matters of fact and the court erred in deeming same admitted. However, such error would effect only the method of payment of the compensation benefits.

Texas General argues Lee was barred by the doctrine of judicial estoppel from recovering workmen’s compensation benefits for total and permanent incapacity in the instant case because of his testimony in the first case tried that his total and permanent incapacity resulted from the injury sustained on October 1, 1975.

Based on the decision in Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956), judicial estoppel in Texas is stated to be: “A party who has made a sworn statement in the course of judicial proceedings may not be heard afterward to maintain a contrary position in the absence of proof that the averment was made inadvertently, or by mistake, fraud, or duress.” 22 Tex. Jur.2d, Estoppel § 18 (1961).

Appellee contends the doctrine of judicial estoppel has no application in the instant case because no statement by him had been shown to be inconsistent with any statement or testimony given by him in a judicial proceeding. We disagree.

Appellee testified during the first trial founded on his alleged second injury of October 1, 1975, as follows:

“Q Mr. Lee, do you date the occurrence of your present difficulties, in total — I am sure that there were some accidents prior to October 1st — but from that date, the injury you have told us about on October the 1st, 1975?
A Do what, sir?
Q You date your difficulties, the total difficulty and disability and incapacity you have now, as starting from that date, as far as the severity that it is now?
A Yes, sir.
Q From that occurrence?
A Yes sir.
Q So to that extent, for here in Sweet-water, as far as you can look so far, and taking that meaning, you feel you are totally incapacitated right now?
A Yes, sir.
Q And as far as you know right now, you are afraid that won’t change?
A No, Sir.
Q Am I stating that correctly? You are afraid it is going to be a permanent situation if you stay here in Sweetwater?
A Yes, sir.
Q Okay. Do you attribute that condition to this accident that you have described as having occurred on October the 1st, 1975?
A Yes, sir, I do.
Q All right. Do you attribute it in any way, this condition we have talked about, to the injury that you had while at work back in December of 1973, or do you think it is a 1975 deal?
A No, sir. I believe it was the ’75 that done the damage.”

The trial court erred in excluding this testimony given by appellee at the first trial.

Appellee by such testimony unequivocally dates his permanent incapacity from the October 1, 1975, injury. The position taken is inconsistent with his position in the instant case and there is no proof that the statements were made inadvertently or by mistake, fraud or duress. The doctrine of judicial estoppel applies. Long v. Knox, supra, American Savings & Loan Association of Houston v. Musick, 517 S.W.2d 627 (Tex.Civ.App.—Houston (14th Dist.) 1974), 531 S.W.2d 581; Van Deusen v. Connecticut General Life Insurance Company, 514 S.W.2d 951 (Tex.Civ.App.—Port Worth 1974, no writ); Yarber v. Pennell, 443 S.W.2d 382 (Tex.Civ.App.—Dallas 1969, ref. n. r. e.); Gibson v. Johnson, 414 S.W.2d 235 (Tex.Civ.App.—Tyler 1967, ref. n. r. e.); 390 U.S. 946, 88 S.Ct. 1032, 19 L.Ed.2d 1135.

Our holding as to the point of error just discussed makes it unnecessary to consider appellant’s other points. The error of the trial court requires reversal of the cause. Appellee’s position taken in the first trial concerning the permanency of his incapacity estops him from claiming permanent incapacity as a result of his first injury, but such position would not estop him from contending that he suffered temporary incapacity as a result of the first injury. Because the cause has not been fully developed and in the interest of justice same will be remanded. United States Fire Insurance Company v. Carter, 473 S.W.2d 2 (Tex.1971).

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: EVANS, Justice.

license: Public Domain

text:
    The RELIABLE LIFE INSURANCE COMPANY, Appellant, v. Connie RIVERA, Appellee.
    No. 17133.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 17, 1978.

      Barrow, Bland & Rehmet, Robert S. Ma-cIntyre, Jr., Houston, for appellant.
    Blaine & Carroll, Victor R. Blaine, Houston, for appellee.
   EVANS, Justice.

A “grudge fight” involving four men at Sylvia’s Lounge on November 10, 1973, left Roy Rivera dead from a gunshot wound in his chest. His widow, Connie Rivera brought this action against The Reliable Life Insurance Company to recover accidental death benefits under a policy issued on her husband’s life. The insurance company defended on the basis of a policy limitation which provides that “no accidental death benefit will be payable if death results directly or indirectly from, or is caused by or contributed to by . . . committing or attempting to commit an assault or felony.”

In response to special issues, the jury found that Rivera was not illegally carrying a handgun on the occasion in question and that he had not assaulted or attempted to assault either Manuel Gonzales or Justo Hernandez, two of the participants in the fight. The trial court entered judgment on the jury’s verdict, awarding Connie Rivera the sum of $5000.00 as accidental death benefits payable under the policy, plus a 12% penalty as provided by Texas Insurance Code, Article 3.62, and attorney’s fees. The Reliable Life Insurance Company brings this appeal, contending that the evidence is legally and factually insufficient to support the jury’s findings.

In an action on an insurance policy the burden of proof is upon the insured to negative the exclusions and limitations contained in the policy which are pleaded as a defense by the insurance company. Sherman v. Provident American Insurance Co., 421 S.W.2d 652, 654 (Tex.1967). Thus, the burden of proof was upon Mrs. Rivera to establish by a preponderance of the evidence that her husband’s death was not caused by or contributed to by a criminal act on his part in committing or attempting to commit an assault or felony.

Mrs. Rivera met this burden in her case in chief by making a prima facie showing of the existence of the policy and that her husband had died as a result of a gunshot wound. A presumption exists that the insured is innocent of any criminal conduct, and in the absence of any evidence to the contrary, the jury was entitled to find that the insured was not engaged in a criminal act at the time of his death. Republic National Life Insurance Co. v. Heyward, 536 S.W.2d 549, 559 (Tex.1976).

The presumption of an insured’s innocence merely raises an issue of fact to go before the jury where no contrary evidence is produced. It does not constitute evidence in itself nor does it shift the burden of proof. Prudential Insurance Co. of America v. Krayer, 366 S.W.2d 779 (Tex.1963). Republic National Life Insurance Co. v. Heyward, supra. The insurance company’s position in the case at bar is that it rebutted the presumption of innocence by proof that the insured was involved in a criminal act within the meaning of the policy limitation.

The insured, Roy Rivera, was sometimes employed as a carpenter by his friend, Daniel Ramirez, and occasionally the two men stopped to drink beer together after work. On the evening in question they had several beers at a place near their work, and on their way home, they stopped at Sylvia’s Lounge for another beer. According to Ramirez’ testimony, Rivera was a “nice easy going person who did not start trouble with people.” The two men were friends and Ramirez felt that each would come to the other’s assistance if one were in trouble.

When the fight started, Ramirez and Rivera were just beginning to play a game of pool. Rivera was standing across the table from Ramirez and was watching Ramirez get ready “to shoot”. Ramirez testified that just as he was about to make his “shot”, he felt somebody hit him from behind and knock him down. The person who hit him was his second cousin, Manuel Gonzales, with whom he had a previous quarrel. As Ramirez tried to get up, Gonzales shot him. Gonzales did not say anything to Ramirez, just kicked him and when he tried to get up, shot him. Ramirez said that he had a prior dispute with Gonzales which resulted from his telling Gonzales to keep away from his house. On a prior occasion at Sylvia’s Lounge, Gonzales had tried to pick a fight with him and with his stepson. Ramirez said he thought Gonzales knew Rivera but that Rivera was not aware of his dispute with Gonzales. He knew of no reason why Gonzales would have a grudge against Rivera. Ramirez said he did not have a gun with him on the evening in question, and he did not see Rivera with a gun.

Manuel Gonzales acknowledged that he had “an old fight” with Ramirez and that there was an understanding between them that “the next time we see each other, that was going to be it.” He said he went over to where Ramirez was and kicked him, and they started fighting. His friend, Justo Hernandez, who knew of his dispute with Ramirez and who had agreed to assist him in a fight with Ramirez, joined in the affray. He said that while he was fighting with Ramirez, Rivera shot at him twice and that one of the shots “barely creased” his neck. He said that he had his own gun, a .32 caliber pistol, which he had carried with him since his prior argument with Ramirez, but that he did not pull his gun until after he had been shot by Rivera. He shot Rivera, saw him fall and then “came back” and saw Ramirez on top of Hernandez. He said he didn’t know Hernandez was already shot so he went ahead and shot Ramirez too. Gonzales was indicted for the murder of Rivera and for assault to murder Ramirez. The murder charge was dropped, but Gonzales was tried and found guilty of the offense of assault to murder.

Ruben Flores, the owner of Sylvia’s Lounge, testified that there were about 40 people in the lounge at the time the fight started. He said he saw Gonzales and another man fighting and he started over to them to break up the fight. He then heard a commotion to his right, on the other side of the pool table where Hernandez was fighting with a man he did not know, and he heard two shots come from that direction. Gonzales then started shooting and shot “both of them.” About eight or nine shots were fired in all. When the shooting stopped, Hernandez and Gonzales told him “I’ll see you”, and he told Gonzales not to leave. Both Gonzales and Hernandez then left the bar, leaving the other men lying on the floor. Hernandez’ wife then came to Flores and said that her husband was outside, and Flores then went outside and found Hernandez was already dead. There was a gun left in the lounge near one of the men who had been shot. Gonzales took his gun with him when he left the lounge. Hernandez did not have a gun, but Flores did not know whether he had a gun when he came into the lounge. Flores did not know who started the fight, and he had his eyes directed on the fight between Gonzales and Ramirez when he heard the commotion to his right. Flores did not know if one of the men in the fight “took a pistol from another one, or whether a man pulled it out of his pocket, or where it came from.” The first time he ever saw the pistol it was lying on the floor, and the only man he saw with a pistol was Gonzales.

Mrs. Marie Rosa Hernandez, the widow of Justo Hernandez, testified that prior to the time she and her husband went to Sylvia’s Lounge on the evening in question, her husband had been doing some work on a truck belonging to Manuel Gonzales. She said Gonzales came over to the table at which she and her husband were sitting and told her husband to help him fight with the two guys who were playing pool. She said that after the fight started between Gonzales and Ramirez, her husband held “the other guy so they can stop the fight or something.” Gonzales and the other man kept on fighting, and then the shooting started. She saw that Gonzales had a gun, but she did not see Rivera with a gun. When Gonzales started fighting with Ramirez her husband held Rivera back. However, Rivera had not started walking toward the men who were fighting. She said her husband was larger than Rivera and had no trouble holding him back on the pool table. She said “they were not fighting or doing nothing. He was just holding him back.” After Gonzales put Ramirez on the floor, he started shooting and Flores told her to hide behind the bar. Afterward, her husband walked outside and Gonzales went to a phone near the doorway and was making a call with a gun in his hand. She first believed her husband was all right, but after he went home and opened the door, he fell over on the floor.

Mrs. Connie Rivera testified that her husband did not own a pistol and had never owned any kind of firearm. He had a good reputation for being peaceful and law abiding and was not an aggressive type of person.

The testimony in the record leaves considerable doubt as to the participants’ respective actions during the fight. Much of the testimony is related to a blackboard diagram depicting the-scene of the affray, and since this diagram is not in evidence the testimony is not presented with the same degree of clarity as when offered in the trial court.

It does appear from the evidence that two pistols were involved in the fight, and the jury could reasonably have concluded from the evidence that Rivera possessed one of such pistols and fired the shots as claimed by Gonzales. However, there was testimony indicating the Rivera did not have a pistol, and the jury was at liberty to believe that testimony and to reject the testimony to the contrary. It was the jury’s responsibility to weigh all of the evidence presented and to accept that testimony which it found to be most credible.

Furthermore, the jury was not compelled to find that Rivera’s actions were illegal even if it determined that he had a pistol in his possession. Where an accused does not carry a pistol to the place of difficulty and receives possession only after the fight begins, it has been held that a felony offense for illegally carrying a pistol does not lie under Texas Penal Code, Section 46.02; Lilly v. State, 102 Tex.Cr.R. 606, 279 S.W. 267 (1926); Guy v. State, 74 Tex.Cr.R. 620, 170 S.W. 303 (1914). Moreover the jury could have concluded from the evidence and under the court’s instructions that Rivera acted in self defense. Self defense is the same in both criminal and civil cases, except that in criminal cases the accused is given the benefit of a reasonable doubt. Fambrough v. Wagley, 140 Tex. 577, 179 S.W.2d 478 (1943); March v. Walter, 48 Tex. 372 (1877). There was evidence from which the jury could have concluded that Rivera acted reasonably to protect his fiend, Ramirez, from injury at the hands of Gonzales, and if his actions were justified, he would not have been guilty of an assault. Reeves v. State, 217 S.W.2d 19 (Tex.Crim.App.1949). It was for the jury to determine from the facts whether Rivera’s actions were justified. Saldivar v. State, 187 S.W.2d 996, 997 (Tex.Crim.App.1945).

The trial court’s judgment is affirmed.


author: COLEMAN, Chief Justice.

text:
    In re C. L. Y.
    No. 17160.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 17, 1978.

      Michael E. Orsak, Sugar Land, for appellant.
    Fred M. Flecman, Asst. Dist. Atty., Richmond, for appellee.
   COLEMAN, Chief Justice.

C.L.Y. is charged with aggravated robbery of a chain store. At the time the offense was committed he was 16 years of age. In full compliance with the procedure required by the Texas Family Code the Juvenile Court entered an order waiving its exclusive original jurisdiction and transferred the child to the District Court for criminal proceedings. The matter was tried to the court without a jury. This appeal resulted.

Section 54.02 of the Family Code, Texas Revised Civil Statutes Annotated, states that “the juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:

(3) After full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.”

In his order waiving jurisdiction the trial court recited:

“In making that determination the court has considered among other matters:
1. Whether the alleged offense was against person or property, with the greater weight in favor given to offense against the person;
2. Whether the offense was committed in an aggressive and premeditated manner;
3. Whether there is enough evidence upon which the Grand Jury may be expected to return an indictment;
4. The sophistication and maturity of the child;
5. The record and previous history of the child; and
6. The prospects of adequate protection of the public and the likelihood of reasonable rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.”

The trial court also included in his order specific findings of facts supporting the order. He found that C.L.Y. is of sufficient sophistication and maturity to be tried as an adult and to have aided in the preparation of his defense. He further recited that he had sufficient maturity to understand the consequence of his acts even though there was evidence that C.L.Y. functions as an illiterate and is mildly retarded.

The court found that the offense which the minor is alleged to have committed, namely: aggravated robbery, was against the person of another and was committed in an aggressive and premeditated manner. He also found that evidence was presented from which a grand jury might be expected to return an indictment.

The court found that the record and previous history of the minor reveals that he is over 17 years of age and that there is little, if any, prospect of adequate protection of the public and likelihood of reasonable rehabilitation of the minor by use of procedures, services, and facilities currently available to the juvenile court. The court recited that the minor had been before the juvenile court on three prior charges of a felony nature.

With the exceptions to be noted, the findings made by the trial court are well supported by the evidence.

The evidence presented to the trial court reflects that the minor in question together with another youth had visited the store on two occasions the same night but prior to the incident on which the charges are based. There is no testimony that C.L.Y. engaged in any activity that would be unlawful or suspicious on these occasions. The evidence discloses that C.L.Y., the other youth, and an older man who was carrying a shotgun returned to the store. The man with the shotgun demanded that the clerk hand him the money in the cash register. The clerk complied and the boys left the store. The only testimony of behavior on C.L.Y.’s part that could be considered aggressive was to the effect that when the clerk hesitated after opening one of the cash registers, C.L.Y. reached for the money which he saw in the register. The testimony was that he said nothing and was not armed on this occasion.

A report submitted by Marseillaise Hall, acting Chief Probation Officer of the Fort Bend County Juvenile Department, was considered by the trial court. This report states: “Questioning of the witnesses placed C.L.Y. inside the Seven-Eleven store as an active participant in the events prior to and during the robbery. He concealed the 410 caliber shotgun, loaded with a number 6 Winchester super-x shell, in a location outside the store before the robbery.

“A study of the facts of the present offense:
1. Clint to be an active participant.
2. He conducted himself in an aggressive manner, by suggesting the offense and concealing the weapon.
3. The offense was against a person, rather than property.
4. Use of a deadly weapon for immediate gain.”

Dr. Sam Toombs, a psychologist, testified that he examined C.L.Y. at the request of Marseillaise Hall from the Fort Bend County Juvenile Department. He saw no evidence of a schizophrenic condition and found him to be border-line retarded. His tests showed him to be in the area between low normal and retarded. It was his opinion that C.L.Y. did not really appreciate the acts that he does; that he does not appreciate what he ought to do and does not understand what he ought to do. It was his opinion that C.L.Y. would have trouble being able to accept norms of society and obey the norms and stay within the norms of society. It was his opinion that C.L.Y. needed close supervision in a program where he could learn to obey through teaching in a controlled situation. He did not know where an institution offering such a program was located.

C.L.Y.’s mother testified that at least in some areas he was retarded. He had difficulty in learning how to do things and had to be shown rather than told. She was not able to discipline him easily, but her husband had no trouble in this respect.

The reports were admissible in evidence and the trial judge was authorized to consider the contents in making his decision in the case. In the Matter of Honsaker, 539 S.W.2d 198 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.).

The statutory requirement that the juvenile court consider the maturity and sophistication of the child refers to the question of culpability and responsibility for his conduct, as well as to the consideration of whether he can intelligently waive rights and assist in the preparation of his defense. REM v. State of Texas, 541 S.W.2d 841 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.). The evidence in this case raises a serious question as to whether the minor is sufficiently mature and sophisticated to understand the nature of his conduct.

The trial court clearly considered all of the matters required by Sub-section (f) of Section 54.02. While we might differ with the conclusion reached with respect to the sophistication and maturity of the child, his conclusions with reference to the other matters required to be considered are fully satisfied by this record. We are not warranted in substituting our judgment for that of the juvenile court in determining whether the best interests of the juvenile and of society would be served by waiving jurisdiction over the child where the court has considered the required matters. We should not be understood as holding that the factual sufficiency of the evidence to support the conclusion of the trial court cannot be attacked. In this case the question of the sophistication and maturity of the child is only one matter among many which the court must consider. His findings on the other matters are sufficient to support his conclusion that the best interests of C.L.Y. and society would be served by transferring him to a district court for adult proceedings. B. L. C. v. State, 543 S.W.2d 151 (Tex.Civ.App.—Houston [14th Dist.], 1976, writ ref’d n. r. e.); R. M. v. State, 563 S.W.2d 853, (Tex.Civ.App.—Austin 1978, no writ).

The appellant challenges the order of the juvenile court as not stating reasons for waiver as required by the Texas Family Code, Section 54.02. The trial court set out specifically the reasons why he granted the waiver. The phrase “reasons for waiver” found in the Family Code has been defined to mean “that the Juvenile Court must set out the rationale of its order, and that is, the rational basis of the court’s conclusion or motive that constrains entry of the order waiving jurisdiction.” In re JRC, 522 S.W.2d 579, (Tex.Civ.App.—Texarkana 1975, writ ref’d n. r. e.). The order entered by the trial court met the test above setout and also the test prescribed by the Supreme Court of the United States in construing a similar enactment of the District of Columbia. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

The judgment is affirmed.


author: PEDEN, Justice.

text:
    FORT BEND INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. Walter J. WEISS, Appellee.
    No. 17152.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 17, 1978.

      Dexter D. Joyner, Pasadena, Charles R. Slone, Richmond, for appellants.
    Byrnes, Myers, Adair, Campbell & Sinex, Jay S. Siskind, Houston, for appellee.
   PEDEN, Justice.

Walter J. Weiss brought this suit for injunctive relief from the payment of certain taxes due in 1975 and 1976 against the Fort Bend Independent School District (the District), its Tax Assessor-Collector, the three members of its Board of Equalization, officially and individually, the City of Sug-arland (the City) and the Tax Assessor-Collector of the City. The trial court granted Weiss’s motion for summary judgment enjoining the District and the City from enforcing the increased assessment in the year 1975 and ordering them to refund the payments he made in excess of his 1974 valuation. The court severed all issues in controversy pertaining to the 1975 tax year. The District and the City say that the summary judgment evidence raised a material issue of fact as to whether Weiss paid under duress and that one who voluntarily pays an illegal tax has no claim for repayment. Appellants also contend that their motions for summary judgment should have been granted because appellee’s payment of his 1975 taxes operates to estop him from disputing liability.

We agree with the appellee’s position that the appeals of all appellants except the City must be dismissed because no appeal bonds were filed and the City is the only appellant excused from filing one. We affirm the trial court’s judgment as to the City. It is uncontroverted that the District and the City increased Weiss’s property valuations for the 1975 tax year without notifying him that they intended to do so. Weiss paid his 1975 taxes in full on December 12, 1975, and the trial court found that he paid them “under protest and duress because statutory penalty and interest would be imposed . . . beginning February 1, 1976 . . . ” Defendants Fort Bend Independent School District, its Board of Equalization and Tax Assessor-Collector, the City of Sugarland and its Tax Assessor-Collector sought and obtained from the district clerk a waiver of appeal bond.

Appellee contests the jurisdiction of this court over the appeals of the defendants other than the City on the ground that only the City is excused from filing an appeal bond. Independent school districts are not relieved by Article 2276, V.T.C.S., from filing appeal bonds, Wilson v. Thompson, 162 Tex. 390, 348 S.W.2d 17, 19 (1961), but are not required to file appeal bonds in suits they institute to collect delinquent taxes. Sour Lake Independent School Dist. v. Easterling, 142 S.W.2d 237, 238 (Tex.Civ.App.1940, writ ref.); Articles 7297 and 7343 V.T.C.S. This is not such a case. The District is not exempt under those statutes, and neither are its officials. The District filed a supersedeas bond on February 6, 1978. A supersedeas bond, if filed on time, may also serve as a cost bond. Jones v. Banks, 331 S.W.2d 370 (Tex.Civ.App.1960, no writ); 4 Tex.Jur.2d (Part 1) 106. In our case, the appellants’ motion for new trial was overruled by operation of law on December 24, 1977, more than 30 days before the supersedeas bond was filed. An appeal bond must be filed within 30 days after the overruling of the motion for new trial. Rule 356, T.R.C.P. Only the City has preserved the right to appeal this case.

The City contends in its first point of error that there is a fact issue as to whether Weiss voluntarily paid his taxes in 1975. Its second point asserts the rulé that one who voluntarily pays an illegal tax has no claim for repayment absent a specific statute. See Howell, 21 Texas Practice-Property Taxes 466, § 353 (1975).

This Court has consistently held that the voluntary payment of an illegal tax will not support a claim for repayment; but that a payment under duress, which may be either express or implied, is not a voluntary payment and may be recovered.

State v. Conn. Gen. Life Ins. Co., 382 S.W.2d 745, 746-47 (Tex.1964). The issue in our case is whether the taxpayer was acting under duress when he paid his 1975 tax.

Weiss stated in an affidavit that he did not voluntarily pay his 1975-1976 taxes but that when defendants refused his tender of the amount he calculated to be due, he paid the taxes as assessed to escape penalty and interest charges and to request relief from the courts. The only testimony in the record controverting this statement is that of two of the defendants in their answers to interrogatories propounded by Weiss. Answers to interrogatories are ad-missable only against the parties answering them. Sprouse v. Texas Empl. Ins. Assoc., 459 S.W.2d 216 (Tex.Civ.App.1970, writ ref. n. r. e.); Jeffrey v. Plotnick, 532 S.W.2d 99 (Tex.Civ.App.1975, no writ); Rule 168, T.R. C.P. For this reason and because the answers are mere conclusions that Weiss’s payment was voluntary, there is no evidence tending to controvert his affidavit. This testimony of a party was clear, positive and direct, credible, free from contradictions and inconsistencies, and could have been controverted. The trial judge was entitled to accept it. Rule 166-A.

. . Where a legislative act by its terms visits upon a taxpayer the penalties and punishments prescribed by these Acts for failure to pay an illegal tax, such taxpayer need not take the risk of incurring such penalties and punishments, while the invalidity of such taxes are being judicially ascertained, in order to preserve his rights as a taxpayer under duress.”

Crow v. City of Corpus Christi, 146 Tex. 558, 209 S.W.2d 922, 924 (1948), quoting National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.2d 687, 693 (1940). Weiss would have been liable for penalties and interest had he refused to pay the tax as assessed. Article 7336, V.T.C.S.

A factually similar case is City of San Antonio v. Grayburg, 259 S.W. 985 (Tex. Civ.App.1924, no writ). The City tax collector in that case also refused to accept the taxpayer’s payment of the amount assessed less the contested item. The court held that the payment of the full amount in order to avoid the accrual of a penalty constituted an involuntary payment of an improperly assessed and collected tax and allowed a recovery.

Weiss’s affidavit is sufficient on its face to establish facts which if proven at trial would entitle him to an instructed verdict if his opponents did not show opposing eviden-tiary data which would raise a material issue of fact, so he was entitled to summary judgment. Gulf, Colorado & Santa Fe Rwy. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (1959); T.R.C.P., Rule 166-A. The evidence raised no issue of material fact on the 1975 tax year.

Appellant’s cross point asserts error in the court’s denial of its motion for summary judgment because Weiss had paid his 1975 taxes and was therefore estopped from disputing liability for those taxes. Appellant did not plead estoppel as an affirmative defense. A movant-defendant’s failure to plead an affirmative defense renders his motion for summary judgment based on that defense insupportable. De-Bord v. Muller, 446 S.W.2d 299, 301 (Tex.1969); Rule 94, T.R.C.P.

The appellee’s motion to dismiss the appeals taken by all the appellants except the City of Sugarland is granted. The judgment of the trial court as to the City of Sugarland is affirmed.


author: JAMES, Justice.

text:
    Thomas V. SEKULA, Appellant, v. CHAPARRAL ENERGY CORPORATION et al., Appellees.
    No. 5818.
    Court of Civil Appeals of Texas, Waco.
    Aug. 17, 1978.
    Rehearing Denied Sept. 7, 1978.

      Ferriel C. Hamby, Jr., Adams, Graham, Jenkins, Graham & Hamby, Harlingen, for appellant.
    Charles R. Porter, Jr., Porter, Taylor, Gonzalez, Thompson & Rogers, Corpus Christi, Charles C. Murray, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appellees.
   OPINION

JAMES, Justice.

This is a suit for damages brought by the owner and operator of the mineral estate against the surface owner, wherein the surface owner filed a cross-action for damages against the mineral owner as well as a third-party action against an independent contractor for indemnity and contribution.

Plaintiff-Appellee Chaparral Energy Corporation instituted this suit against Defendant-Appellant Thomas v. Sekula for damages to Chaparral’s oilfield equipment that resulted from a root plowing operation and for conversion of a pipe-frame shed. Seku-la counterclaimed against Chaparral, contending that his surface estate had been damaged as a result of Chaparral’s negligence in conducting its oilfield operation. Sekula also filed a third-party action against Benedict Frank Kotzur, claiming he was entitled to indemnity and alternatively for contribution against Kotzur in the event Chaparral made any recovery against Seku-la as a result of the root plowing operation. Chaparral never sued Kotzur.

Trial was to a jury which found (or failed to find as hereinafter indicated) as follows:

(1) Chaparral’s equipment, pipes, wellheads, connections, and pumps situated upon the mineral leasehold estate were damaged as a result of the root plowing and brush cleaning operation performed by Kot-zur and/or his employees.

(2) Pipe inquired about in Special Issue No. 1 was damaged to the extent that it could not be used for the purposes for which it was designed.

(3) The reasonable cost in Zapata County in February and March 1974 of labor and materials necessary to repair Chaparral’s damaged oilfield equipment is $1306.00.

(4) The market value of Chaparral’s damaged pipe in Zapata County in February and March 1974 (apparently before the root plowing) was zero.

(5) The market value of said pipe, immediately after it was damaged, was zero.

(6) Chaparral’s production from the mineral lease was delayed in 1974 as a result of the damages to the mineral leasehold equipment;

(7) for a period of nine days.

(8) Defendant Sekula converted a building frame made of pipe welded together, which was situated upon Chaparral’s mineral leasehold estate.

(9) Which building frame had a market value of $400.00 at the time of such conversion.

(10) Jury failed to find the entering and damaging inquired about in Special Issue No. 1 was wilful and intentional.

(11) Failed to find that such entering and damaging was in heedless and reckless disregard of the right of the owner of the mineral leasehold estate (Chaparral).

(12) No answer, and none required, because it was submitted conditionally upon an affirmative answer to Special Issue No. 10 or No. 11.

(12A) The damage to Chaparral’s leasehold equipment might reasonably have been anticipated by Sekula as a probable consequence of the root plowing.

(12B) The instructions given by Sekula to Kotzur concerning the standard of care to be exercised by Kotzur as to Chaparral’s mineral leasehold equipment was an adequate instruction to protect such equipment under the circumstances.

(12C) Jury failed to find that Sekula retained control over the details of Kotzur’s work insofar as such work related to Chaparral’s mineral leasehold estate.

(13) Chaparral failed to properly maintain and repair the pipeline and gathering system during the time in which Chaparral had been the operator of the mineral leasehold estate;

(14) which was negligence;

(15) and proximate cause of the damage to Sekula’s surface estate.

(16) Chaparral failed to properly maintain the disposal system for the salt water produced from the oil wells;

(17) which was negligence

(18) and proximate cause of the damage to Sekula’s surface estate.

(19) Chaparral failed to properly maintain and inspect the salt water tanks on the premises in question;

(20) which was negligence

(20A) and proximate cause of the damage to Sekula’s surface estate.

(21) Such failure on the part of Chaparral as found by the jury in answer to Special Issues Nos. 13, 16 and 19 were in heedless and reckless disregard of Sekula’s rights.

(22) $7500.00 would fairly and reasonably compensate Sekula for Sekula’s damages as a result of Chaparral since October 1974.

(23) Sekula is entitled to $1.00 (one dollar) against Chaparral by way of exemplary damages.

After jury verdict the trial court determined that Plaintiff Chaparral should recover $8112.00 against Defendant Sekula, that Sekula should recover $7501.00 on his cross-action against Chaparral, and that Se-kula take nothing on his third-party cross-action for indemnity or contribution against Kotzur. The trial court thus entered judgment that Chaparral recover the net amount of $611.00 against Sekula, from which judgment Sekula appeals.

Pursuant to a motion by Chaparral the trial court disregarded the jury’s answers to Special Issues Numbers 3 and 7. As stated hereinabove, in answer to Special Issue Number 3, the jury found the reasonable cost to Chaparral to repair their damaged oilfield equipment to be $1306.00. The trial court’s judgment recited there was no evidence to support this $1306.00 figure, whereupon the court substituted in place thereof $4674.00 to cover Chaparral’s damage to the oilfield equipment.

By its answer to Special Issue No. 7 the jury found that Chaparral’s production from the mineral lease was delayed nine (9) days as a result of the damages to the mineral leasehold equipment. The trial court disregarded the jury’s answer to Special Issue No. 7 for the stated reason there was no evidence to support said finding, and substituted in place thereof eighteen (18) days of delay in production. The evidence was undisputed that the net cost of the oil to Chaparral at the time of such delay was $6.75 per barrel, and the mineral lease was producing 25 barrels per day. Based upon these figures, the trial court awarded Chaparral recovery against Sekula for delay in production the sum of $3038.00, same being 18 times 25 times $6.75. Then following the jury verdict, the trial court awarded Chaparral recovery of $400.00 against Sekula for conversion of the frame made of iron pipe. Adding the $4674.00 damage to the equipment, the $3038.00 delayed production, and the $400.00 frame together made up the total of $8112.00 recovery awarded to Chaparral against Seku-la.

The $7501.00 recovery awarded to Sekula against Chaparral was in harmony with the jury verdict, composed of $7500.00 actual damages (Special Issue No. 22) and exemplary damages (Special Issue No. 23).

The trial court then subtracted the $7501.00 figure from the $8112.00 figure and awarded Chaparral a recovery against Sekula in the net amount of $611.00.

The trial court then pointed out in its judgment that since Sekula never requested any special issues pertaining to the liability of Kotzur as pleaded by Sekula in his third-party cross-action, and it “not appearing to the court that such facts have been proven as a matter of law by the undisputed evidence herein,” recovery was denied Sekula as against Kotzur.

Sekula appeals upon eight points of error. By his fourth, fifth, sixth, and seventh points of error, Appellant Sekula complains of the trial court’s disregarding and setting aside the jury’s answers to Special Issues Nos. 3 and 7 of $1306.00 and nine days, respectively; and substituting in lieu thereof $4674.00 and eighteen days, respectively. We sustain these contentions.

In answer to Special Issue No. 3 the jury found that the cost of repair of the usable surface equipment, pipe, wellheads, roads, connections, and/or pumps damaged by the root plowing operations to be $1306.00. As stated before, the trial court disregarded this finding and awarded Chaparral recovery against Sekula the substituted amount of $4674.00 for such damage. In effect, the trial court found that the evidence conclusively established that the extent of damage- to Chaparral’s equipment amounted to $4674.00. In doing so the trial court erred. Without detailing the evidence, suffice it to say that there is considerable conflicting evidence bearing upon this special issue.

In answer to Special Issue No. 6, the jury found that Chaparral’s production was delayed by the root plowing; and in response to Special Issue No. 7, such delay amounted to nine days. The trial court disregarded the jury’s finding of nine days’ delay, holding instead that the evidence conclusively established the delay to be eighteen days, entering thereupon a recovery therefor in favor of Chaparral against Sekula the sum of $3038.00. Here again the trial court erred in setting aside the jury’s finding of nine days’ delay in production and substituting in lieu thereof eighteen days. The evidence bearing upon this point is conflicting, involving opinions, estimates, and guesswork, and is far from conclusive. Several witnesses, including experts, testified to matters bearing upon the delay in production, which evidence included conflicts which had to be resolved by the trier of facts, here the jury.

Sekula’s eighth point asserts the trial court erred in not granting Sekula indemnity against Kotzur. Kotzur, who had been engaged in land contracting, agreed to root plow the land in question for Sekula at a price of $14.00 per acre. Sekula testified that prior to commencing operations, Seku-la asked Kotzur if he could root plow the land in question without damaging Chaparral’s oil producing pipes and equipment, and Kotzur replied that he could. However, Kotzur denied this, saying that he told Se-kula he would “do his best” not to damage the Chaparral oil producing equipment. Pursuant to his agreement with Sekula, Kotzur entered upon the 420 acre tract where Chaparral’s oilfield equipment was located, in order to root plow. Chaparral had upon the tract of land in question a secondary recovery operation, consisting of several production wells, salt water injection wells, tank batteries, pumps, and a network of pipes, some of which were below the surface but most of which were lying on top of the ground. Kotzur’s root plowing equipment consisted of two 52,000 pound caterpillar tractors, each with a twelve foot root plow on the rear and a dozer blade on the front. Kotzur claimed he did no damage to the oilfield equipment except to run over a few pieces of loose pipe; however, Chaparral’s witnesses testified to destruction of a considerable portion of the pipeline network as well as damage to some of the pumps, tanks, and wells.

Sekula brought a third-party action against Kotzur praying for indemnity, and alternatively for contribution, in the event Sekula was found to be liable to Chaparral in damages for the root plowing. Sekula never requested the submission of any special issues concerning this third-party action, and the trial court submitted none. As stated before, in its judgment the trial court denied any recovery for Sekula against Kotzur on the third-party action, complaint of which is made by Sekula in his eighth point of error. We sustain this contention, and hold the trial court erred in denying Sekula indemnity in the event Se-kula should become liable to Chaparral after retrial of this case on remand. Our holding is based upon the premise that under the undisputed facts Sekula is entitled to common law indemnity as a matter of law against Kotzur in the event Sekula ultimately becomes liable to Chaparral as a result of the root plowing operation.

As we see it, we analyze the undisputed evidence of this portion of the case as follows: (1) Chaparral’s cause of action against Sekula is based upon trespass, for violation of Chaparral’s property rights, and not upon negligence, as has been contended by some of the parties herein. See Mountain States Telephone and Telegraph Co. v. Vowell Construction Co. (1960) 161 Tex. 432, 341 S.W.2d 148. (2) Sekula as surface owner owed to Chaparral as owner of the mineral leasehold estate a nondelegable duty not to injure or destroy any of Chaparral’s oilfield property upon the land in question. (3) Sekula did not himself do any damage to Chaparral’s equipment, but did employ Kotzur as an independent contractor to do the root plowing. (4) Whatever damage was done to Chaparral’s oilfield property was physically done by Kotzur, the independent contractor.

Under the above state of the record, Se-kula is entitled to common law indemnity against Kotzur in the event Sekula ultimately becomes liable to Chaparral as a result of the root plowing under the well-settled rule announced by our Supreme Court in City of San Antonio v. Smith (1900) 94 Tex. 266, 59 S.W. 1109 at page 1111, and further discussed in Strakos v. Gehring (Tex.1962) 360 S.W.2d 787 at pp. 797 and 798. This rule is that a party (here, Sekula) who may be vicariously liable to the plaintiff for breach of a duty of protection, would be entitled to indemnity from his independent contractor (Kotzur) who is the active wrongdoer. This is closely akin to the rule that as between two joint tort-feasors, one of whom is passive and the other active, both of whom are liable to a plaintiff, the passive wrongdoer is entitled to indemnity against the active wrongdoer. Strakos v. Gehring, supra. Also see Coastal States Crude Gathering Co. v. Williams (Corpus Christi CA 1971) 476 S.W.2d 339 at page 350, NRE; Traylor v. Gray (Corpus Christi CA 1977) 547 S.W.2d 644 at page 658, NRE; 41 Am.Jur.2d “Indemnity,” par. 20, pp. 707 and 708. Appellant Sekula’s eighth point of error is sustained.

Appellee Chaparral has filed cross points herein. We have carefully considered all of them, and overrule same as being without merit.

Having found error in the trial court’s judgment as hereinabove discussed, we reverse and remand the entire case to the trial court for retrial on its merits in the interest of justice. Rule 434, Texas Rules of Civil Procedure; Morrow v. Shotwell (Tex.1972) 477 S.W.2d 538.

REVERSED AND REMANDED.


author: McDONALD, Chief Justice.

text:
    Johnny H. McDONALD et al., Relators, v. Robert C. DUNN, County Judge, Respondent.
    No. 5945.
    Court of Civil Appeals of Texas, Waco.
    Aug. 24, 1978.

      Bradley C. Miles, San Angelo, for rela-tors.
    Julius C. Jacobs, Corsicana, for respondent.
   OPINION

McDONALD, Chief Justice.

Relators McDonald et al., filed this original proceeding seeking writ of mandamus requiring Respondent, Honorable Robert C. Dunn, County Judge of Navarro County, to transfer Cause No. 11,174 styled “In Re The Estate of J. M. Wilson, Deceased” to the District Court of Navarro County.

In Re The Estate of J. M. Wilson, Deceased, involves a contested probate matter now pending in the County Court of Navarro County.

On June 6, 1978 Relators, who are contestants in such proceeding, filed motion pursuant to Section 5(b) Texas Probate Code to transfer the proceeding to the 13th District Court of Navarro County. On July 13, 1978 Respondent Judge Dunn denied such motion.

On July 31,1978 Relators filed motion for leave to file petition for writ of mandamus in this Court to require Judge Dunn to transfer such cause to District Court. This Court granted such motion, and filed Relator’s petition for writ of mandamus.

Section 5(b) Texas Probate Code provides:

“In those counties where there is no statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court, all [probate matters] shall be filed and heard in the county court, except that in contested probate matters, the judge of the county court may on his own motion, or shall on the motion of any party to the proceeding transfer such proceeding to the district court, which may then hear such proceeding as if originally filed in such court. ”

Prior to 1941 Navarro County had a Constitutional County Court. In 1941 the 47th Legislature passed Article 1970-326.

“County Court of Navarro County; Jurisdiction:
“Section 1. The County Court of Navarro County shall have and exercise the general jurisdiction of a Probate Court, shall probate wills * * * but neither said County Court of Navarro County, nor the Judge thereof shall have any jurisdiction over matters of eminent domain, or other original civil jurisdiction; * * * provided however, that all future statutes pertaining to probate matters enacted by the Legislature of the State of Texas, shall be operative in said Navarro County, as fully as though this statute had not been enacted.
“Section 2. That the District Court of Navarro County and the presiding judge thereof shall have and exercise original jurisdiction in matters of eminent domain and in all civil matters and causes over which, by the laws of this State, the County Court of Navarro County would have had original jurisdiction, but for the provisions set out in Section 1 of this Act; * * * If

The above statute was held to be constitutional in Rogers v. Graves, Tex.Civ.App. (Waco) Er. Refused, 221 S.W.2d 399.

Section 5(b) of the Probate Code requires the County Judge, on motion of any party to contested probate matters, to transfer the entire proceeding to the District Court if the County Court of Navarro County is a Constitutional Probate Court.

If the County Court of Navarro County is a “County Court at Law” or “other statutory court exercising probate jurisdiction,” then the Judge thereof is not required to transfer a contested probate matter to the District Court.

The question here is whether the Constitutional County Court of Navarro County was rendered a “County Court at Law or other statutory court exercising the jurisdiction of a probate court” by the Legislature’s passage of Article 1970-326 in 1941.

We hold that the Legislature’s action in 1941 did not create a “County Court at Law or other statutory court exercising the jurisdiction of a probate court”; that such act simply diminished the jurisdiction of the Constitutional County Court pursuant to Section 22, Article 5 of the Texas Constitution; that the County Court of Navarro County remains a Constitutional County Court exercising probate jurisdiction; and as such is subject to the provisions of Section 5(b) of the Probate Code. Regian v. Sowell, Tex.Civ.App. (Waco) NRE, 534 S.W.2d 175; Daniels v. Hines, Tex.Civ.App. (Texarkana) 567 S.W.2d 823.

The Respondent Judge Dunn should have granted Relators’ motion and transferred the contested probate proceeding to the District Court.

However, mandamus will issue only if Judge Dunn has not transferred this case to the District Court of Navarro County within 15 days.

      . The Legislature is empowered by Section 22, Article 5, Texas Constitution to “increase, diminish or change the civil and criminal jurisdiction” of County Courts by local or general law.


author: JONES, Justice. STEPHENSON, Justice,

text:
    William COLVIN, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    July 25, 1978.
    Jack Emory Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for movant.
    Robert F. Stephens, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for respondent.
   JONES, Justice.

William Colvin was convicted of escaping from the Kentucky State Penitentiary at Eddyville and sentenced to four years in prison. The Court of Appeals affirmed. This court granted Colvin’s motion for discretionary review.

The question presented is whether the exclusion of teachers from the jury drum prevented Colvin from having a fair trial by a jury of his peers.

On August 26,1974, three days before his trial, Colvin’s counsel moved the trial court to draw a new jury list for the August, 1974 term of Lyon Circuit Court so that teachers would not be excluded from jury service. On the day of trial, Colvin’s counsel introduced in the record the following uncontro-verted avowal:

“. . . that if Dallas Gray, jury commissioner for the Lyon Circuit Court for the year 1974, were present and testified under oath, he would testify that the court did instruct the three jury commissioners to exclude school teachers from the jury wheel and they did, in fact, upon this instruction exclude school teachers from the jury wheel.”

Colvin’s motion to draw a new jury was overruled by the special judge who tried the case.

Colvin contends he was denied the right to a trial by a jury of his peers, in that teachers were excluded from the jury drum. He relies upon the case of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). While Taylor involved the exclusion of women, the general rule, as stated by the United States Supreme Court in Taylor, is applicable in this case. The United States Supreme Court pronounced the general rule that an accused has the right to grand and petit juries selected at random from a fair cross section of the community. It made the following observation:

“Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. ‘Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case . .

This court is of the view that the “fair cross-section requirement” would prohibit the exclusion of names of teachers from being placed in the jury drum.

The Court of Appeals bottomed its opinion on Rawlins v. Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899 (1906), and cited an excerpt from Taylor, supra, which stated:

“The states are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations, the uninterrupted performance of which is critical to the community’s welfare.”

This court notes that Rawlins, supra, was decided some 60 years prior to the adoption of the fair cross-section requirement.

Rawlins involved the state constitution and state statutes. That is not what is present in this case. This court is of the opinion, and so holds, that the exclusion of an identifiable segment of the community cannot be said to rest in the discretion of the trial judge. It follows therefore that the exclusion of teachers from the jury drum was erroneous.

This court recognizes that the trial judge would have had the same broad discretion to excuse for proper cause any prospective juror, including a teacher, whose name was drawn from the drum.

The decision of the Court of Appeals is reversed and the case is remanded to the Lyon Circuit Court with direction that Col-vin be granted a new trial by a jury properly selected according to the views expressed in this opinion.

PALMORE, C. J., and JONES, LUKOW-SKY, REED and STERNBERG, JJ., concur.

STEPHENSON, J., dissents and files a dissenting opinion in which CLAYTON, J., joins.

STEPHENSON, Justice,

dissenting.

I believe this is the only opinion by a court of last resort that reverses on statement of counsel without any factual basis in the record.

The statement in the majority opinion, that the question presented is whether exclusion of teachers from the jury drum prevented Colvin from having a fair trial, misses the point. The question in my view is whether there has been a showing in the record that teachers were, in fact, excluded.

The purported “avowal” is not an avowal by any test in accordance with the Rules, past or present. The witness was not present in court and his evidence was not offered. I cannot accept the proposition that the statement of counsel as to what a witness would testify, if present, rises to the stature of having any probative value at all.

The statement in the majority opinion that the “avowal” was uncontroverted is meaningless. This case was tried by a special judge. There is nothing in the record to suggest that he or the prosecution had any knowledge of the purported exclusion by the regular presiding judge.

If, in fact, teachers were excluded from the jury drum on direction of the presiding judge of the district, it would have been a simple matter to adduce proof of this fact.

I do not believe we should reverse a case on statement of counsel absent any proof of probative value to support the statement.

CLAYTON, J., joins this dissent.

      . It is apparent that the relief Colvin sought was to have the jury drum refilled without exclusion of teachers.

      . “Only those who, in the sound discretion of the court, are entitled to exemption shall be exempt from service on any grand or petit jury.” KRS 29.035. (Note: The 1977 Legislature in special session repealed KRS 29.035 and enacted KRS 29A.090 which provides: “There shall be no automatic exemptions from jury service.”


author: REED, Justice.

text:
    CREDIT ALLIANCE CORPORATION, Movant, v. ADAMS CONSTRUCTION CORPORATION, etc., et al., Respondents.
    Supreme Court of Kentucky.
    Aug. 22, 1978.
    J. K. Wells, Wells, Porter & Schmitt, Paintsville, for movant.
    John David Preston, Perry & Preston, Paintsville, for respondents.
   REED, Justice.

The decisive issue in this case is whether a creditor who invokes an acceleration clause in a security agreement may recover unearned interest or finance charges. The trial court held that the debtor, who had defaulted in making timely installment payments and against whom acceleration had been invoked, was not liable for unearned finance charges.

The creditor appealed to the Court of Appeals. Declaring that the security agreement was ambiguous and that the usage of trade in the locality was usable to resolve the uncertainty, the Court of Appeals in an unpublished opinion affirmed the judgment of the trial court. The creditor sought discretionary review from this court which was granted. Although we disagree with the rationale given by the trial court and approved by the Court of Appeals, we hold that the result reached by the trial court and confirmed by the Court of Appeals was correct. Therefore, we affirm for the reasons later stated in this opinion.

I

The movant, Credit Alliance Corporation, financed twelve Mack trucks for the respondents, Adams Construction Corporation, Adams Real Estate Corporation, and Adams Ford Company, Inc. under a security agreement dated February, 1974. The cash price was $285,247.68, plus finance charges of $35,199.92, for a total of $320,447.60. The respondents made a down payment of $65,247.68, leaving a deferred balance of $255,199.92. Respondents executed the security agreement and an installment note which provided for twenty-four successive monthly installments of $10,633.33 each. Respondents paid twelve installments and defaulted on the next three. Movant filed suit to collect in May 1974. The installments for March, April and May 1974 were paid in June 1974 after the suit had been filed. These installments were accepted by the movant. Respondents later tendered the installments for the months of August, September and October of 1974, but they were returned by movant.

On August 12, 1974, movant invoked the acceleration clause of the security agreement, declaring the entire balance due and payable. Movant moved for immediate possession of the trucks. On November 1, 1974, respondents paid into court $110,000, representing the unpaid principal balance and were allowed to retain possession of the trucks.

The trial judge referred the case to the Master Commissioner. Under the order of reference the commissioner reported that movant was entitled to recover $500.00 for an attorney’s fee, but nothing for unearned finance charges. The trial judge adopted the commissioner’s findings as the findings of the court and entered judgment in accordance with them. The movant then appealed to the Court of Appeals where the judgment was affirmed.

II

The trial court and the Court of Appeals stressed two recitations in the security agreement. The first stated: “(3) You have the right to pay in advance the full amount due and under certain conditions to obtain a partial refund of the time-price differential.” The second, the acceleration clause, stated that the creditor, in event of the debtor’s default in making the installment payments agreed to, “may declare the entire balance together with interest, collection charges and attorney’s fees and any other sums owing to Holder immediately due and payable. . . . ”

According to the Court of Appeals, the first recitation when it referred to “certain conditions” without other specificity permitted use of KRS 355.1-205, which defines “usage of trade.” A local banker testified that it was the customary practice of his bank to give a rebate of unearned interest to a debtor even after invocation of an acceleration provision. The Court of Appeals then declared that the acceleration clause in the security agreement was ambiguous in its use of the word “interest” in the phrase “together with interest.” The court interpreted the phrase to mean “interest earned but unpaid as of the date of acceleration when construed according to the usage of trade.”

In our view, the prepayment provision with its reference to unspecified conditions never became relevant. A defaulting debtor against whom acceleration of the due date of the remaining indebtedness has been invoked is not one who can be described as voluntarily “paying in advance” in the context in which that description is used. This court also concludes that resort to “usage of trade” is unnecessary to resolve the ultimate issue of whether the creditor is entitled to collect unearned finance charges in this case. We hold that, regardless of what the usage of trade “might or might not be”, the creditor here cannot enforce collection of the unaccrued finance charges where the maturity date of the obligation has been hastened by virtue of the acceleration clause.

Ill

Movant asserts that it is questionable whether respondents were entitled to redeem the trucks after the filing of the repossession proceeding.

“The Uniform Commercial Code permits redemption at any time before the secured party has disposed of the collateral or entered into a contract for its disposition, or before the obligation has been discharged through an effective acceptance of the collateral by the secured party in discharge of the obligation. . . . ”

“The right of redemption is also cut off under the same circumstances as in pre-Code law, where there has been a foreclosure of the security interest by judicial process, since such judicial foreclosure is permitted under the Uniform Commercial Code.” 69 Am.Jur.2d, Secured Transactions, section 642, p. 554. KRS 355.9-506 and 355.9-501(1), (5). In this case the creditor has not disposed of the collateral, nor entered into a contract for its disposition, nor effectively accepted the collateral in discharge of the obligation. The trial court decreed that he was not entitled to a judgment of foreclosure because the amount of his claim was in excess of what he was entitled to collect. Therefore, there was, of course, no judicial sale pursuant to execution. We conclude that respondent’s right of redemption under KRS 355.9-506 was and is open and unextinguished on the present record. No complaint is made by the parties concerning the legality of the allowance of the attorney fee to the creditor.

IV

Although movant contends: “If payment after acceleration of maturity can be considered a pre-payment, the refund to which the debtor is entitled would probably be governed by KRS 371.260” the contention is untenable. KRS 371.260 applies to retail installment sales transactions not including motor vehicles. See KRS 371.210. A loan on commercial motor vehicles is completely outside any possible reach of KRS 371.210 to 371.330 which deal with retail installment sales.

Movant’s brief in this court commeñdably and correctly narrows the scope of our consideration when it poses the question of law involved:.

“May a debtor redeem collateral from a repossession action by paying into Court the unpaid principal without paying unearned interest or finance charges, although the creditor had accelerated the installments and declared the entire balance due prior to filing the repossession action?” (Brief for Movant, p. 2).

Thus troublesome factual issues concerning the nature of the transaction in question are eliminated. There is no pretense made that this was a “credit sale at an advanced price.” No argument is attempted that the term “time-price differential” evidences a “sale” as contrasted with “interest” on a “loan.” The parties agree and have practiced the case on the premise that this transaction was a loan, and the terms “finance charges” and “time-price differential” were regarded as the equivalent of “interest” — compensation for the use of money. See 45 Am.Jur.2d, Interest and Usury, sections 123, 127, pp. 106, 107, 109, 110, 111.

V

A general rule as stated in 10 C.J.S. Bills and Notes § 251, p. 748 is:

“A note providing for the payment of the principal in installments at specified times, and requiring the payment of interest on each installment until maturity, does not require the payment of future unearned interest in the event the maturity date is hastened by virtue of an acceleration clause contained in the note.” Again in general terms, the text writer in American Jurisprudence notes that an acceleration provision is usually construed as entitling the lender upon default only to the principal and interest then accrued, the excess interest being deemed a penalty which can neither be collected nor retained. 45 Am. Jur.2d, Interest and Usury, section 183, pp. 145-146.

Although not cited by the parties either in the Court of Appeals or in this court, we found an ALR annotation on the subject was very helpful. It collects and analyzes a number of decisions which are relevant. See “Annotation: Right of Holder of Commercial Paper To Interest on Finance Charges Applicable To Period After Acceleration of Maturity Of Obligation Because of Debtor’s Default.” 63 A.L.R.3d 10 (1975) (1977 Pocket Part p. 3).

According to the Annotation, Courts have consistently given an inhospitable reception to claims for unearned interest or finance charges when the maturity of the obligation has been accelerated because of the debtor’s default. Various policy reasons have been advanced to justify these decisions denying the recovery of unearned interest. If we were confined to the view that the sole reason to disallow recovery is to prevent usury, there would be no bar imposed to movant’s claim because respondents are corporate entities and are precluded from asserting the defense of usury by Kentucky law. KRS 360.025, see also E’Town Shopping Center, Inc. v. Lexington Finance Co., Ky., 436 S.W.2d 267 (1969). We are not so confined.

In a number of cases, courts have based their decisions upon the ground of uncon-scionability regardless of the absence of usury as an element. Holman v. Hollis, 94 Fla. 614, 114 So. 254 (1927); Steffen v. Refrigeration Discount Corp., 91 Cal.App.2d 494, 205 P.2d 727 (1949); Spiotta v. William H. Wilson Inc., 72 N.J.Super. 572, 179 A.2d 49 (1962). These courts concluded that where an acceleration clause was invoked the obligation could not be collected except upon the cancellation of the unearned interest, since the lender otherwise would unconscionably recover interest beyond the time when his debt was repaid. Other cases have reasoned that the recovery of unearned interest would constitute a penalty which the court would not enforce in equity. 63 A.L.R.3d 10, 27. Still other cases have based their denial of recovery of unearned interest upon the ground that the consideration supporting the obligation to pay such interest had failed. 63 A.L.R.3d 10, 29, 30. The observation has been made that inasmuch as unearned interest is no part of an indebtedness at the time of prematurity under an option by the lender, it is therefore uncollectible because of lack of consideration. Walker v. Temple Trust Co., 124 Tex. 575, 80 S.W.2d 935 (1935).

In Block v. Ford Motor Credit Co. (Dist.Col.App.), 286 A.2d 228 (1972), the Court said:

“. . . Thus the courts have refused to enforce acceleration clauses except upon cancellation of the unearned interest. (Citing cases) We see no reason why the same principle should not apply to unaccrued finance charges. . . .”

VI

It appears to us that to allow recovery of unaccrued interest or finance charges in this case would be clearly unconscionable. It matters not whether the form of uneon-scionability is described as an impermissible penalty unenforceable in equity or a penalty rather than liquidated damages or the impermissible enforcement of an obligation the supporting consideration for which has failed. The possible presence of ambiguous language in the security agreement and the usage of trade are irrelevant. The trial court reached the correct result.

The decision of the Court of Appeals is affirmed.

All concur, except CLAYTON, J., who did not sit.

      . Brief for Movant p. 11.

      . Footnote Omitted.


author: PARK, Judge.

text:
    John Joseph AMMONS and Indiana Insurance Company, Appellants, v. Sheryl Ann WINKLEPLECK, infant, by her mother and next friend Barbara Winklepleck, Appellees.
    Court of Appeals of Kentucky.
    Aug. 18, 1978.
    Robert G. Hunt, Henderson, for appellants.
    Joseph R. Flaherty, Owensboro, for ap-pellees.
    Before COOPER, HOGGE and PARK, JJ.
   PARK, Judge.

Sheryl Ann Winklepleck suffered permanent brain damage and other personal injuries in a single car accident. At the time of the accident, Winklepleck was a passenger in an automobile owned and operated by John Joseph Ammons who was the named insured in a policy written by the Indiana Insurance Co. The policy provided coverage for bodily injury (BI) liability with limits of $25,000 for any one person’s claim arid coverage for basic reparation benefits (BRB) with limits of $10,000. The sole question on this appeal is whether Indiana Insurance Co. is entitled to a set-off or credit on its BI liability coverage for all amounts paid to Winklepleck under the BRB coverage.

Indiana Insurance Company has paid Winklepleck the full amount of its BRB coverage, $10,000. Indiana has also paid $15,000 under its BI liability coverage. Because the total payments to Winklepleck equal the $25,000 limits under the BI liability coverage, Indiana asserts that it has no further liability under the policy arising out of the accident. Winklepleck contends that the $25,000 BI liability coverage and the $10,000 BRB coverage should be “stacked” to provide total coverage by Indiana of $35,000. The damages suffered by Winkle-pleck are conceded to be in excess of $35,-000. Ammons’s negligence in causing the accident is not in issue. A separate premium was charged for the BI liability coverage and the BRB coverage.

Indiana Insurance Co. and Ammons appeal from the judgment of the circuit court holding that Indiana was liable for the full $25,000 BI liability coverage without any credit for the $10,000 paid under the BRB coverage.

I

Because it was not permitted to set off its BRB payments against its BI liability coverage, Indiana claims Winklepleck has been permitted double recovery. According to Indiana, such double recovery is barred by the provisions of the Motor Vehicle Reparations Act (MVRA), KRS 304.39-010 et seq. The answer to this argument is simple. Winklepleck has not recovered twice for the same items of damage. The BRB payments were for items of loss or damage not within the BI liability coverage. The MVRA does not require that BRB payments be set-off or credited against BI liability coverage.

The MVRA has introduced a form of compulsory insurance to Kentucky. Except for governmental agencies, every owner of a motor vehicle registered or operated in Kentucky must provide “security” for the payment of “basic reparation benefits” and the payment of “tort liabilities.” KRS 304.-39-080(5). Except for persons qualifying as a self insurer, “security” can be provided only by a contract of insurance. KRS 304.-39-080(6). An insurance contract meets the requirement of security only if it provides separate BI liability coverage and BRB coverage. The BI coverage must have minimum limits of $10,000 per person and $20,-000 per accident. The BRB coverage must have minimum limits of $10,000 per accident. KRS 304.39-110(l)(a) and (d); KRS 304.39-020(2); Fann v. McGuffey, Ky., 534 S.W.2d 770, 772 (1975). Under the MVRA, the BI coverage and the BRB coverage do not cover the same items of loss or damage.

Under the BRB coverage, Winklepleck was entitled to payment for economic loss such as medical expense or loss of income not exceeding the BRB coverage limits of $10,000. Indiana was under an obligation to pay the BRB without regard to any fault on the part of its insured, Ammons. KRS 304.39-020(5) and 304.39-040(1). There was no BI liability coverage for those items of economic loss for which BRBs were payable because Ammons’s tort liability was “abolished” for those items of damage. KRS 304.39-060(2)(a). Although Ammons’s tort liability was abolished for the first $10,000 of economic loss suffered by Winklepleck, his tort liability was not abolished for the balance of her economic loss in excess of the $10,000 BRB coverage. Fann v. McGuffey, supra at 773, fn. 16. There was BI liability coverage for economic loss only after the BRB coverage had been exhausted.

BRB coverage provides no payment for noneconomic loss such as pain and suffering. KRS 304.39-020(5). Because Winkle-pleck incurred medical expenses exceeding $1,000, Ammons’s tort • liability was not abolished for her noneconomic loss including pain and suffering. KRS 304.39-060(2)(b). Noneconomic loss may be recovered only under the BI liability coverage of Indiana’s policy.

There is not double recovery in this case. Under the MVRA, the BI liability coverage and the BRB coverage are not overlapping. By their very nature, they apply to different items of damage or loss.

Indiana cites two sections of the MVRA for its argument that the legislature intended that BRB payments be credited against BI liability coverage. KRS 304.39-070(2) provides that an insurer making BRB payments is subrogated to the rights of the injured person against “any person or organization other than a secured person.” Indiana concedes that this statute has no direct application to this case. Ammons was a “secured person.” KRS 304.39-070(1) and 304.39-080(1). Consequently, no subro-gation claim for BRB benefits could ever be asserted against him under KRS 304.39-070(2). Nevertheless, Indiana argues that the statute indicates a legislative purpose to deny an injured party double recovery of benefits under the MVRA. We agree that there is such a legislative policy. KRS 304.-39-050(3) prohibits recovery of BRB payments in excess of $10,000 or from more than one BRB obligor. However, a policy against double recovery of BRB payments for the same loss provides no basis for reducing the limits of BI liability coverage by the amount of BRB payments.

Indiana also relies on KRS 304.39-120(1) which provides that social security and workmen’s compensation payments are deducted in calculating net loss for the purpose of determining BRB payments. This statute does not affect the $10,000 limits of BRB coverage. The only purpose of the statute is to define what constitutes loss within the BRB coverage. The fact that the MVRA would prohibit an injured party from recovering twice for the same item of damage lends no support for the argument that BI liability coverage limits must be reduced by the amount of BRB payments. BRB payments are not made for items of loss or damage for which there could be any recovery under the BI liability coverage.

II

In support of its argument that its policy required all BRB payments to be credited against the limits of its BI liability coverage, Indiana relies upon the following provision contained in the BRB coverage section of its policy:

Non-Duplication of Benefits; Priority of Payments; Other Insurance
No eligible injured person shall recover duplicate benefits for the same elements of loss under this or any similar insurance, including approved self-insurance plans. In the event an eligible injured person has other similar insurance, including approved self-insurance plans, available and applicable to the accident, the maximum recovery under all such insurance shall not exceed the amount which would have been payable under the provisions of the insurance providing the highest dollar limit, and the Company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limit of liability of this coverage and such other insurance.

This clause has no application to this case for the simple reason that the BI liability coverage and the BRB coverage do not overlap and do not provide “duplicate benefits for the same elements of loss.” There is no identity of risk. The BRB clause provided the only coverage for economic loss up to $10,000. The BI liability clause provided the only coverage for noneconomic loss and for economic loss in excess of $10,-000. In the absence of identity of risk, Indiana can derive no benefit from the “other insurance” clause. 16 Couch on Insurance § 62:92 (2d ed. 1966).

III

Because Indiana’s policy contains no clause reducing the limits of BI liability coverage by the amount of BRB payments, we need not consider whether such a clause would conflict with any of the provisions of the MVRA.

The judgment of the circuit court is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    PEWEE VALLEY FIRE PROTECTION DISTRICT, Appellant, v. SOUTH OLDHAM FIRE PROTECTION DISTRICT, Appellee.
    Court of Appeals of Kentucky.
    Aug. 18, 1978.
    Kenneth A. Connelly, Jr., Stewart & Con-nelly, Crestwood, for appellant.
    James F. Williamson, LaGrange, for ap-pellee.
    Before HOWERTON, REYNOLDS and WILHOIT, JJ.
   HOWERTON, Judge.

Appellant petitioned the circuit court to annex additional territory to include an area recently annexed by the City of Pewee Valley. The territory sought to be annexed was part of the territory served by the appellee. The only objection to the appellant’s petition was filed by the appellee. The circuit court dismissed the petition and the appellant has filed this appeal.

The appellant has raised two issues. Appellant first contends that the appellee has no standing to file an objection to the petition for annexation. The second question is whether a fire protection district may annex territory of another fire protection district. Neither question has been decided in Kentucky.

The essential facts can be summarized from the findings which were made by the trial judge. The territory sought to be annexed by the appellant has been provided fire protection by the appellee since 1950, and the territory to be served by both the appellant and the appellee has heretofore been established by orders entered by the Oldham Circuit Court. The territory sought to be annexed by the appellant was annexed into the boundaries of the City of Pewee Valley, a city of the fifth population class, by order of the Oldham Circuit Court on June 26,1975. The trial court concluded that the Kentucky Revised Statutes make no provision for the annexation of territory belonging to one fire protection district by another fire protection district.

KRS 75.020 is the only statutory authority specifically relating to annexation or reduction of territory by a fire protection district. Subsection (1) of the statute reads in part, as follows:

The territorial limits of an established fire protection district, or a volunteer fire department district, as established under KRS 75.010-75.080, may be enlarged or diminished in the following way: The trustees of the fire protection district or of the volunteer fire department districts shall file a petition in the circuit court clerk’s office of the county in which that district and the territory to be annexed or stricken off, or the greater part thereof, is located, not less than thirty (30) days before the next regular term of said court and in courts of continuous session not less than thirty (30) days before the first day of a succeeding calendar month, describing the territory to be annexed or stricken and setting out the reasons therefor. Notice of the filing of such petition shall be given by publication and posting in the same manner as provided for in KRS 75.010. On the second day of the term, and in courts of continuous session on the day fixed in the notice, the court shall, if the proper notice has been given, and the publication made, and no written defense, objection or remonstrance is interposed, enter a judgment annexing or striking off the territory de-' scribed in the petition. . . (Emphasis added)

The section of the statute continues by authorizing a remonstrance by “freeholders” in the territory to be annexed. The statute also sets out the criteria to be considered by the court, if over 51% of the freeholders in the territory remonstrate.

It should be noted that subsection (3) of KRS 75.020 allows for the annexation of a fire protection district or volunteer fire department by a city maintaining a regular fire department. The subsection also requires the acquiring city to pay the proportional share of any indebtedness owing by the newly-acquired territory.

In the case sub judice, the City of Pewee Valley does not have a regular fire department, but is served by the appellant, a fire protection district. We also note that there is no provision elsewhere that specifically allows the acquisition of the territory of one district by another, or requires the assumption of any indebtedness or liabilities by the acquiring district. Other annexation statutes, whether relating to school districts, water districts, sanitation districts, or fire protection districts require that the acquiring body assume certain obligations and debts. See Kentucky Revised Statutes, Chapters 160, 81, and 74.

The appellant argues that the appel-lee has no standing to object, since it is not a “freeholder.” Clearly, the appellee is not a “freeholder,” at least in the territory in question. A “freeholder” is one holding title to real estate. City of Northfield v. Holiday Manor, Inc., Ky., 508 S.W.2d 756 (1974). The statute does provide for remonstrances by freeholders, and it tells the court what to consider if more than 51% of the freeholders in the territory sought to be annexed join in the remonstrance. We can conclude that the court need not hear the remonstrance and “shall” order the annexation if less than 51% of the freeholders object, unless the objection raises a constitutional question or challenges the statute. The statute provides that the court shall enter judgment, if all notices and other requirements are met. KRS 75.020(1) and Kelley v. Dailey, Ky., 366 S.W.2d 181 (1963). But, neither Kelley nor the statute considers the question presented on this appeal.

The statute does not limit a defense to an annexation attempt to a remonstrance. The portion of KRS 75.020(1) emphasized above reads, “. . . The court shall, if the proper notice has been given, and the publication made, and no written defense, objection or remonstrance is interposed enter a judgment . . . (Emphasis added) We conclude that appellee had standing to object and to interpose its written defense.

The appellee’s territory and its rights therein were in jeopardy, and there must be some forum in which to decide the ultimate question of whether the statute even authorizes the taking of the territory by one district from another through annexation. The objection by the appellee was in essence an attack on the statute itself rather than the mere fact of annexation.

The appellant argues that the case of Kelley is controlling. Kelley was an annexation case by a fire protection district. The court upheld the annexation and determined that when all of the statutory prerequisites had been met, and when less than 51% of the freeholders of the territory object to the annexation, no hearing is needed and no defense against the annexation may be made except on constitutional grounds. Kelley is immediately distinguishable in that the area to be annexed was unattached to any other fire protection district’s territory.

KRS 75.020(1) makes no specific provision for the annexation of territory by one fire protection district of the territory of another fire protection district. In attempting to interpret the meaning of the statute and the legislative intent, the court must give a construction that is reasonable and will reflect the public will. Commonwealth ex rel. Breckinridge v. Marshall, Ky., 361 S.W.2d 103 (1962). Courts must also give statutes a practical construction. Hamilton v. International Union of Operating Engineers, Ky., 262 S.W.2d 695 (1962). We presume that the legislature did not intend to reach an absurd result. Valla v. Preston Street Water District No. 1 of Jefferson County, Ky., 395 S.W.2d 772 (1965).

To conclude that the appellee must give up its territory without any right to objection would be absurd. The appellee would lose a valid property right and gain nothing. At least a “freeholder” would be given a fire protection service, and even one “freeholder” may attack an annexation attempt on constitutional grounds.

We conclude that to allow the appellant to annex territory of the appellee pursuant to KRS 75.020(1) as it now exists would be unreasonable and impractical. No provisions are made for any compensation or assumption of liabilities and debts. The Kentucky General Assembly simply did not contemplate or intend to permit such an acquisition. This case does demonstrate a need for consideration of this problem by the General Assembly. A fire protection district is an instrumentality of the state. It possesses only those powers granted to it by the legislature. The legislature has the exclusive authority to authorize annexation of territory by a district. If one district may annex the territory of another district, the legislature must provide the authority.

The judgment of the trial court is affirmed.

ALL CONCUR.