author: DOWD, Presiding Judge.

text:
    Joyce Ann GONZALEZ, Petitioner, Cross-Appellant, v. Marino Roman GONZALEZ, Respondent-Appellant.
    Nos. 47958, 48021.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 16, 1985.

      Mason W. Klippel, Clayton, for petitioner, cross-appellant.
    William R. Gartenberg, P.C., Clayton, for respondent-appellant.
   DOWD, Presiding Judge.

Husband Mario Gonzalez appeals only those provisions of a dissolution decree regarding the division and classification of marital property, the award of maintenance and attorney’s fees, and the payment of two deeds of trust. The wife Joyce A. Gonzalez cross appeals the division of marital property and the limiting of her maintenance to a specific period of time. The parties agreed that the marriage was irretrievably broken.

The parties were married 26 years and had three children. Two are emancipated and one is a 19 year old daughter who lives with the mother. At time of trial, the wife was 42 years old and had a tenth grade education. During most of the marriage, she worked outside of the home as a waitress and as a clerk. At request of the husband, she quit her job in 1969 as a clerk to open a small family carry-out restaurant. The restaurant was not a financial success and she received no salary from the business. At the time of trial, her only income was $91 per month as interest from a certificate of deposit. She is under the care of a physician for nerves and tension problems.

Husband, at the time of trial, was age 42 and employed by the Terminal Railroad Association and received a gross income in 1981 of $22,000 — $23,000 and in 1982 his gross income was $25,000 — $26,000. He received an additional $75 per month as a union treasurer from the Railroad Brotherhood. In 1979, the husband received $106,-000 as a settlement for personal injuries under the Federal Employers’ Liability Act (F.E.L.A.). He placed this money in a bank in Illinois in his name only. The court found that he received $1,166 per month interest from this Illinois bank account.

Husband was awarded $107,461 marital property and the wife was awarded $86,964 marital property. As part of the division of marital property, husband was ordered to pay $17,000 to satisfy two deeds of trust which were marital debts. He was also ordered to pay $30,000 as maintenance in gross, payable $1,000 per month for 30 months and the attorney’s fees for wife in amount of $1,750.

Husband contends: (1) the trial court erred in including as marital property the F.E.L.A. award of $106,000; (2) the court erred in the award of maintenance and attorney’s fees; and (3) the court erred in requiring him to satisfy the two deeds of trust.

Wife contends: (1) the trial court erred in awarding the husband a disproportionate share of the marital property; and (2) the court erred in not awarding her permanent maintenance.

Initially, husband contends that the court erred by including as marital property the $106,000 award settlement on his F.E.L.A. claim for personal injuries. He argues that this award should have been classified as separate property and set aside for him in addition to his share of the marital property. Marital property is defined in § 452.330(2) RSMo 1978 (as amended 1981) as all property acquired by either spouse during the marriage except:

1. Property acquired by gift, bequest, devise or descent;
2. Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent;
3. Property acquired by a spouse after a decree of legal separation;
4. Property excluded by valid agreement of the parties; and
5. The increase in value of property acquired prior to the marriage.

Husband concedes that his F.E.L.A. award for personal injuries is not a stated exception in the statute. Appellant also concedes that this court has held in Nixon v. Nixon, 525 S.W.2d 835, 839 (Mo.App.1975) that a personal injury settlement was marital property. However, the husband argues that because this award is based on the federal F.E.L.A. statute, the state law shall be overridden under the Supremacy Clause of the federal constitution. His reliance on Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) is misplaced. Hisquierdo is cited for the principle that when a state family law property statute does “major damage” to a “clear and substantial” federal interest, the state law will be overridden by the Supremacy Clause. Hisquierdo held that benefits under the Railroad Retirement Act of 1974 could not be considered marital property. Husband argues that this holding should be applied to the rights created under the F.E.L.A. statute. However, the two federal statutes are completely different. The Railroad Retirement Act of 1974 (R.R.A.) demonstrates a clear intent by Congress to exempt benefits under the Act from being treated as marital property. The court in Hisquierdo relying on the R.R.A. statute, stated at 99 S.Ct. 810: “In direct language the spouse is cut off:

‘The entitlement of a spouse of an individual to an annuity under Section 231 of (c) of this title shall end on the last day of the month preceding the month in which ... (B) the spouse and the individual are absolutely divorced ... ’ ” 45 U.S.C. § 231d(c)(3).

The court in Hisquierdo also relied on the following subsection of R.R.A. statute at 99 S.Ct. 805:

“... no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated....” 45 U.S.C. § 231m(a).

The court in Hisquierdo also points out that a prior proposal to revise the Act to provide for benefits for divorced spouses was rejected by Congress. The court stated at 99 S.Ct. 810:

“The choice was deliberate. When the Act was revised in 1974, a proposal was made to award a divorced spouse a benefit like that available to a divorced spouse under the Social Security Act. The Labor-Management Negotiation Committees, however, rejected that proposal, and Congress ratified its decision. It based its conclusion on the perilous financial state of the Railroad Retirement Account and the need to devote funds to other purposes.”

Thus, the Congressional intent not to allow divorced spouses to share in the benefits created by the Railroad Retirement Act is clearly demonstrated and the Supremacy Clause would prevail if attempts in the state court were made to obtain benefits for divorced spouses.

On the contrary, the F.E.L.A. statutes (45 U.S.C. Sections 51 et seq.) do not contain the restrictive type language as is found in the Railroad Retirement Act. Both Congress and the courts have long recognized that “[t]he whole subject of the domestic relations of husband and wife, parent and child belongs to the laws of the States and not to the laws of the United States.” In Re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-53, 34 L.Ed. 1500 (1890). Courts generally interpret statutes with the presumption that Congress did not intend to interfere with state domestic relations laws. Operating Engineers v. Zamborsky, 650 F.2d 196, 199 (9th Cir.1981).

Unlike the R.R.A. statutes, there is no clear federal intent stated in the F.E.L.A. statutes directing that property rights created by these statutes be exempt from the operation of the state family law statutes relating to the division of property. Accordingly, the court does not have the right to create such an exemption. Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904).

Because Congress has not “positively required by direct enactment” in the F.E.L.A. statutes that state law relating to a division of property in a dissolution of marriage action be preempted, the Supremacy Clause has no application. Hisquierdo, 99 S.Ct. at 808. We, therefore, follow the holding in Nixon, supra, and hold the F.E. L.A. award is properly considered marital property. Point denied.

Next husband contends that it was error to require him to satisfy two deeds of trust on property awarded to the wife. These marital debts were part of the division of marital property. The existence and extenfof marital debts and who will be responsible for payment are factors considered by the trial court in establishing a fair division of the marital assets. In re the Marriage of Kluba, 647 S.W.2d 920 (Mo.App.1983). While the trial court is not required to allocate marital debts between the parties it is a commendable practice because it serves to alleviate future dissention. In re Marriage of Smith, 652 S.W.2d 743, 744 (Mo.App.1983). Point denied.

Both husband and wife challenge the divisions of marital property. We find no error in its division. The division of marital property is not required to be equal but to be fair. Fauser v. Fauser, 677 S.W.2d 422, 423 (Mo.App.1984). The trial court is vested with broad discretion in this area. Arp v. Arp, 572 S.W.2d 232, 234 (Mo.App.1978). We find no abuse of discretion in the division of marital property. Points denied.

We also hold that the trial court did not abuse its discretion in awarding attorney’s fees to wife by reason of husband’s greater earning ability. Section 452.355 RSMo 1976; In Re Marriage of Dusing, 654 S.W.2d 938, 947-48 (Mo.App.1983).

Both husband and wife also attack the provision regarding maintenance. Husband claims the record does not show a need for maintenance. Wife claims she was entitled to an award of unlimited maintenance.

Our Supreme Court in Doerflinger v. Doerflinger, 646 S.W.2d 798, 800 (Mo. banc 1983) pointed out that § 452.335 RSMo 1978 granted to the trial courts wide latitude in decreeing spousal maintenance, both as to the amount and its duration, and such a decree shall not be disturbed unless there is a showing of an abuse of that discretion. Royal v. Royal, 617 S.W.2d 615, 619 (Mo.App.1981). The basis for an award of maintenance arises when (1) one spouse lacks sufficient property (including the apportioned marital property) to provide for her/his reasonable needs and (2) is unable to support herself/himself through appropriate employment. There is also a policy of encouraging self-sufficiency following a separation. Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.1977). Here, the wife was awarded $30,000 as maintenance in gross payable $1,000 per month for 30 months. She was given $86,-964.04 as her share of marital property. Of this amount, the wife concedes that $66,994.00 could be considered income producing. She is 42 years of age and has worked most of her marriage outside the home as a waitress or a clerk. At this time of trial she was operating a small family restaurant three days a week but drawing no salary. While she is under a doctor’s care for her nerves and tension, the record indicates that she is capable of pursuing gainful employment. The wife has failed to show that the trial court abused its discretion in limiting her maintenance in gross to $30,000 payable $1,000 a month for 30 months.

We believe both the need for maintenance and the amount and its payments as alimony in gross are supported by substantial evidence and should be affirmed. Points denied.

The judgment is affirmed.

CRIST and CRANDALL, JJ., concur.


source: Caselaw Access Project

author: GAERTNER, Judge.

license: Public Domain

text:
    Maurice LOVEJOY and Mellene Rivers, Plaintiffs-Appellants, v. George D. WEESE, Defendant-Respondent.
    No. 48285.
    Missouri Court of Appeals, Eastern District, Division One.
    April 16, 1985.
    Maurice Lovejoy, Mellene Rivers, pro se.
    George D. Weese, pro se.
   GAERTNER, Judge.

This tale of two $100.00 money orders has wended a tortuous path to this court through small claims court and trial de novo in the circuit court. In the trial de novo, the mandate of § 482.310(3), to conduct proceedings in an informal manner, was certainly observed. As a result, the transcription of the electronically recorded hearing reflects almost chaotic disorder. The parties, the witnesses and the judge consistently seem to be interrupting each other. The transcript is replete with incomplete sentences, with unanswered questions, with two witnesses answering one question, and with references to unidentified documents and persons. Circuit and associate circuit judges on trial de novo of a small claim will not be in violation of the statutory mandate of informality if they insist upon such minimal requirements of orderly procedure as permitting only one person to speak at a time, in requiring plaintiffs to present all of their evidence first, then the defense and such rebuttal and surrebuttal as may be appropriate and by identifying on the record the various speakers and documents described. Informality does not require disregard of orderly procedure.

The disorder of the transcript only compounds the confusing set of facts giving rise to this litigation. Plaintiffs purchased a $100.00 money order from defendant’s store. They made the money order payable to one Evans and gave it to him in payment for some painting services. Evans attempted to cash the money order at defendant’s store a few hours later. Defendant refused to cash the money order and called the police who took possession of the document.

Defendant’s actions were precipitated by an incident related to him by one of his employees. The employee sold a $100.00 money order that same afternoon to one Ammerson. Ammerson returned to the counter in a matter of seconds or minutes and reported that he had lost the money order. The employee remembered the purchase and gave Ammerson another $100.00 money order. A stop payment order was then posted on the first money order issued to Ammerson. The cash register tape reflected this to be #4971. Unfortunately, the money order purchased by plaintiffs and given to Evans was numbered 4971.

Plaintiffs’ money order was taken from Evans by the police and later returned to defendant. Plaintiffs paid Evans a different $100.00 and brought this action in small claims court.

The money orders were not presented to the trial court, nor are they before us. However, plaintiffs advised the trial court they had a receipt for their money order and have filed with this court a copy of a receipt for a $100.00 money order numbered 4971. In the trial court defendant produced the cash register tapes which reflect the amount of each money order purchased and the identifying number of each sequentially. The trial judge noted duplicate numbers on the tape and in response to her inquiry about the duplication defendant’s employee stated “it happened to be a coincidence, your honor,” while the defendant himself stated, “the machine wasn’t functioning property (sic). There was something wrong with — there was something wrong with the fancy numbering.”

Despite this admission regarding the duplication of numbers on the tape, defendant adopted the position that the dispute over the rightful ownership of a single money order was between plaintiffs and Ammer-son. By the judgment in favor of defendant, the trial court apparently accepted this contention. We reverse.

That the money order purchased by plaintiffs was a negotiable instrument is undisputed. § 400.3-104, RSMo. 1978. Evans, designated by plaintiffs as the payee of the instrument, became a holder in due course when he accepted the money order in payment for services. § 400.3-302. As such, Evans was entitled to payment upon presentment of the order to defendant. § 400.3-413(1). Defendant, who presented no evidence, to refute Evans’ status as a holder in due course, wrongfully dishonored the instrument by refusing payment. § 400.3-507. Even though plaintiffs could not reacquire the instrument from Evans upon paying him the $100.00 because the money order had been seized by the police, plaintiffs, by this payment, became entitled to assert all of Evans’ rights against defendants because of the dishonor. § 400.3-603(2). Defendant’s election to dishonor the money order when presented by plaintiffs designated payee in favor of crediting Ammerson’s story of losing the money order was done at defendant’s risk. The fact that the sequential numbering system showed the sale of two money orders with the same number clearly points out the error of defendant’s election.

The judgment of the trial court is unsupported by any evidence and is an erroneous application of the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Pursuant to the authorization of Rule 84.14, it is hereby ordered that the judgment of the trial court is reversed and judgment is entered in favor of plaintiffs and against defendant in the sum of $100.00 plus costs.

PUDLOWSKI, P.J., and KAROHL, J., concur.

      . In the spirit of the obvious legislative intent that the Small Claims Court Law, §§ 482.300-482.365, RSMo.1978, be construed so as to further its purposes of adjudicating matters involving less than $1,000.00 in an informal manner, we elect to overlook the precise requirements of the Rules of Appellate Procedure.


author: PUDLOWSKI, Presiding Judge.

text:
    Eugene MITCHELL, Plaintiff-Appellant, v. ST. LOUIS BUSINESS JOURNAL and Mark Stallmann, Defendants-Respondents.
    No. 48610.
    Missouri Court of Appeals, Eastern District, Division One.
    April 16, 1985.
    Ira M. Young, St. Louis, for plaintiff-appellant.
    Robert B. Hoemke, St. Louis, for defendants-respondents.
   PUDLOWSKI, Presiding Judge.

This is an appeal from the trial court’s order dismissing appellant’s petition for failure to state a cause of action. We affirm.

Appellant, Eugene Mitchell filed an action for libel against respondents, St. Louis Business Journal, Inc. and Mark Stallmann, a writer and reporter for the St. Louis Business Journal. The action arises out of an article published by respondents entitled, “Family Fight Threatens Argus.” The article concerned court action initiated for the appointment of a receiver to take control of the St. Louis Argus Publishing Company, publisher of the St. Louis Argus newspaper. The article also contained the following passage which appellant alleges is libelous per se:

Last year he was arrested and charged with the possession of four grams of cocaine and two marijuana cigarettes, as well as carrying an unregistered handgun. He was acquitted on the drug charges and convicted and given probation on the handgun charge.

Following publication of the article, appellant filed suit alleging that he had been libeled because the statement that he had been convicted of carrying an unregistered handgun was false and therefore, libelous per se. Respondents moved to dismiss on the grounds that the statement was not libelous per se and, inasmuch as appellant had failed to plead special damages, the petition failed to state a cause of action for which relief could be granted. The trial court sustained respondent’s motion to dismiss and granted appellant leave to amend the petition within thirty days. Appellant elected not to file an amended petition, but rather to appeal the decision of the trial court concerning his original petition.

A preliminary question, raised by respondents in their brief, is whether or not the order appealed from is an appealable order.

Respondents contend the order is not ap-pealable because the order dismissing appellants motion was without prejudice and an order of dismissal without prejudice or with leave to amend is not a final judgment from which an appeal may be taken relying on Bailey v. Williams, 326 S.W.2d 115 (Mo.1959); Miller v. Schultz, 614 S.W.2d 11 (Mo.App.1981).

This question was answered in Welch v. City of Blue Springs, 526 S.W.2d 379 (Mo.App.1975) and Hunt v. Dallmeyer, 517 S.W.2d 720 (Mo.App.1974). By filing notice of appeal, appellants acknowledged the final nature of the dismissal. The order appealed from is considered final for purpose of appeal.

Addressing the merits of the appeal, appellant contends that respondent’s published article stating that he had been convicted of carrying an unregistered handgun was libelous per se and did not require special damages be pleaded.

If a publication is libelous per se, general damages alone may be pleaded. However, if words are not libelous per se but merely libelous per quod, special damages must be specifically pleaded and proven. Langworthy v. Pulitzer Publishing Co., 368 S.W.2d 385 (Mo.1963).

The case law in Missouri is well settled that publication of a statement imputing or charging one with the commission of a crime, whether directly or indirectly, is libelous and defamatory per se. Walker v. Kansas City Star Company, 406 S.W.2d 44 (Mo.1966). However, it has been held that if the imputation does not charge a crime under the laws of the state, it is not actionable per se. Furlong v. German-American Press Association, 189 S.W. 385 (Mo.1916).

In the case at bar, respondent mistakenly and inaccurately alleged appellant was arrested and convicted for carrying an unregistered handgun. Missouri does require a permit to acquire a concealable weapon (571.090), but there is no such crime as carrying an unregistered handgun in the State of Missouri. It is illegal in our state to carry a concealed weapon. Section 571.-030. Respondents’ publication did not allege the statutory crime but an imaginary and illusory offense.

A petition based on published words not libelous per se may state a cause of action for what is referred to as libel per quod. Langworthy v. Pulitzer Publishing Company, 368 S.W.2d 385 (Mo.1963). Appellant chose not to amend his petition to allege libel per quod. Whether words are libelous per se is a question of law which the court may properly decide on a motion to dismiss. Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493 (Mo.App.1980). We conclude the trial court properly dismissed appellant’s cause of action.

Judgment affirmed.

GAERTNER and KAROHL, JJ., concur.


author: PER CURIAM.

text:
    Beatrice BURT, Respondent, v. CIVIL SERVICE COMMISSION, Appellant.
    No. 48753.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 16, 1985.
    Charles R. Oldham, St. Louis, for appellant.
    Judith A. Ronzio, Associate City Counsel- or, St. Louis, for respondent.
   ORDER

PER CURIAM.

Plaintiff appeals a judgment of the circuit court which affirmed her layoff from the St. Louis Agency on Training and Employment. An extended opinion would be of no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    Claudette BULLINGTON, Plaintiff-Appellant, v. PARTS FABRICATORS, INC., Defendant-Respondent.
    No. 49199.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 16, 1985.
    Richard Alan Cooper, St. Louis, for plaintiff-appellant.
    Frederick W. Shultz, St. Louis, for defendant-respondent.
   ORDER

PER CURIAM.

Civil action in two counts seeking actual and punitive damages. Count I was for wrongful discharge from employment under the Missouri Workers Compensation Act. Count II was for the alleged violation of the Missouri Service Letter statute. Appellant was awarded, by jury, the sum of one dollar in actual damages and denied punitive damages under Count II. The jury found in favor of respondent upon Count I.

The judgment is affirmed. Rule 84.16(b).


author: CLARK, Presiding Judge.

text:
    Jack D. HUME and Dorothy L. Hume, Appellants, v. FIRST NATIONAL BANK OF ST. JOSEPH, Missouri, Respondent.
    No. WD 36052.
    Missouri Court of Appeals, Western District.
    April 16, 1985.
    Martin M. Bauman, Bauman and Likes, St. Joseph, for appellants.
    William H. Utz, III, Utz, Litvak, Thack-ery, Utz and Taylor, St. Joseph, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   CLARK, Presiding Judge.

This suit arose out of financing arrangements made in connection with the sale of a business owned by appellants. The purchasers of the business defaulted in payment of the purchase price owed and this suit was brought by appellants to recover from respondent bank their losses thereby incurred. The trial court denied relief and this appeal followed. Affirmed.

The sale of the business by appellants to Michael and Rebecca Mowry for a price of $25,000.00 was agreed in November, 1977. The entire purchase price was to be paid in deferred installments. Involvement of respondent bank in the transaction arose as a consequence of a most unusual agreement for processing the deferred installment payments. Apparently the Mowrys were unable or unwilling to procure any funds on their own credit or collateral, but it was the desire of appellants that installment payments on the obligation be made by the Mowrys to respondent bank. Accordingly, the bank took a promissory note evidencing the $25,000.00 debt. This sum was then placed in a certificate of deposit in the names of appellants, but the certificate was held by the bank as collateral for the note. The Mowrys and appellants signed the note as makers and appellants executed an assignment of the certificate of deposit to guarantee repayment of the note. Thus, after the transaction was closed, the Mow-rys owned the business, they and appellants owed the bank $25,000.00 and appellants owned the certificate of deposit, subject to repayment of the note.

The promissory note was for a term of one year and called for monthly installment payments of $316.69. These payments obviously were insufficient to retire the debt. Although the note made no provision for renewal at maturity, such was apparently the assumption of the parties. During the first year, irregular payments by the Mow-rys covered accrued interest at 9% and reduced the principal balance to $23,479.98. In November, 1978, a new note executed by the Mowrys was taken by the bank. The payment terms were the same, that is, a one year term and monthly installments of $316.69. One such payment was made in April, 1979 and none thereafter. Appellants did not sign the renewal note. The original note which appellants did sign included the provision that any extension or renewal of the note, even without notice, would not affect the obligation of any original makers, guarantors, endorsers, sureties or accommodation makers. On this account, appellants make no issue as to the availability of the collateral to satisfy the renewal note despite the absence of their signatures as makers.

On December 6, 1979, appellants made demand on respondent bank for redemption of the certificate of deposit. The request was refused, the bank called the note for payment by reason of the Mowrys default and on December 21,1979, the bank set off an amount from the certificate of deposit sufficient to pay the Mowry note and accrued interest and remitted a balance of $2666.58 to appellants.

The crux of appellants’ points on appeal lies in a letter which appellants’ attorney sent to the bank on December 28,1979. In the letter, appellants’ attorney requested that the bank commence suit within thirty days against the Mowrys on the note in question. No such suit was in fact filed. The claim by appellants against the bank asserts that as sureties for the Mowrys’ debt, appellants were entitled under § 433.-010, RSMo.1978 to require that the bank sue the Mowrys or, failing that, appellants were discharged from any obligation, according to the provisions of § 433.030, RSMo.1978. If appellants’ obligation as sureties was extinguished, then application of the certificate of deposit to satisfy the Mowrys’ note was a conversion and appellants are entitled to damages. As appellants’ counsel posed the only issue submitted to the trial court, “ * * * the thrust of the Humes’ argument and the evidence that we will attempt to elicit here today will go to the fact of whether or not they are a surety as opposed to a guarantor and thus entitled to protection under 433 of the Missouri Revised Statutes.”

There were no contested fact issues at trial. The question of whether respondent bank forfeited its entitlement to look to appellants for payment of the note was solely one of law. Although appellants present three points on appeal, each contends that the trial court erroneously applied the law in failing to give appellants the protective benefits of §§ 433.010 and 433.030, RSMo.1978. We review the points conjunctively.

Section 433.010, RSMo.1978 provides that any person bound as surety for another may at any time “after an action has accrued thereon” require the person having the right of action to commence suit against the principal debtor. Section 433.-030, RSMo.1978 declares that the surety is discharged if the person so notified fails to commence suit against the principal within thirty days after notice. Appellants claim they fall within the protected class of sureties.

Appellants devote some discussion to the proposition that they were sureties for the Mowrys’ debt. This they say follows because under all the evidence, it was presumed in this transaction that the Mowrys would pay the note. In point of fact, however, appellants executed the original note as makers. They may have been sureties so far as their relationship with the Mow-rys, but as to the bank, appellants were co-makers of the note, the consideration for which was the deposit of $25,000.00 evidenced by the interest bearing certificate.

Assuming, however, without deciding, that appellants have standing as sureties, they yet have no claim to exoneration under the facts of this case. It is hornbook law that a surety is entitled to maintain an action to force payment of the obligation by the debtor primarily liable only after the surety has first paid the debt. The cause of action is then one against the principal debtor. Here, when the bank set off the certificate of deposit against the Mowrys’ note, appellants, if they were sureties, acquired a cause of action against the Mow-rys. The cause was theirs to pursue, not the bank’s because nothing was owed to the bank.

Section 433.010, RSMo.1978 was obviously designed to cover the situation in which the creditor holds the matured debt of a principal and the undertaking of a surety, but suit has not yet been instituted to collect the obligation from the principal. The statute creates a right in the surety to require the creditor’s suit against the principal for the protection of the surety before the surety acquires the cause of action by satisfying the debt himself. The statute is obviously inapplicable to the case here, even if appellants’ argument that they stand as sureties be accepted.

Under the sequence of events recounted earlier, the bank declared default in payment of the note on December 11, 1979 and notified appellants of its intention to foreclose on the certificate of deposit within ten days. Appellants did nothing with respect to the obligation and on December 21,1979, the certificate of deposit was applied to the note and the balance of funds was remitted, to appellants. When appellants sent their letter to the bank two days later requesting that suit be filed against the Mowrys, any cause of action the bank formerly had against the Mowrys, had been extinguished by payment. There simply was no entitlement by the bank to pursue a cause of action.

Appellants resort to § 433.010, RSMo. 1978 was untimely. If any rights under the statute existed in this transaction, a doubtful proposition, it was incumbent on appellants to give the statutory notice when the bank called the note and before the bank used the collateral to satisfy the note. Thereafter, the cause of action had passed to appellants, there being no debt upon which the bank could assert any claim against the Mowrys. It is ultimately, therefore, irrelevant to disposition of this cause whether appellants be makers, guarantors, or sureties. Their sole claim was and is against the Mowrys for what was, at the inception of the transaction, and is now payment of the agreed purchase price for the business.

The judgment in favor of respondent is affirmed.

All concur.

      . No direct evidence concerning the Mowrys was offered, but statements by counsel suggest that the business was evidently abandoned and the Mowrys cannot be located. Recourse to the Mowrys for payment of the remaining debt for the business purchase has apparently proved worthless.


text:
    Vincent C. ABBOTT, Appellant, v. STATE of Missouri, Respondent.
    No. WD 36218.
    Missouri Court of Appeals, Western District.
    April 16, 1985.
    Ronald E. Partee, Kansas City, for appellant.
    William L. Webster, Atty. Gen., Mark A. Richardson, Asst. Atty. Gen., Jefferson City, for respondent.

      Before PRITCHARD, P.J., and SHAN-GLER and DIXON, JJ.
   ORDER

PER CURIAM.

Appeal from denial of Rule 27.26 motion to vacate conviction for possession of stolen property and sentence of three years imprisonment and a fine of $5,000.

Judgment affirmed. Rule 84.16(b).


text:
    Maurice W. OUTERSKY, Respondent, v. Marjorie Alice OUTERSKY, Appellant.
    No. WD 36236.
    Missouri Court of Appeals, Western District.
    April 16, 1985.
    John E. Chick, Jr., Kansas City, for appellant.
    A.V. McCalley, Richmond, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   ORDER

PER CURIAM.

Appeal from judgment entry of trial court granting a legal separation of the parties.

Judgment affirmed. Rule 84.16(b).


author: CAMPBELL, Justice. ROBERTSON, Justice, GONZALEZ, Justice,

text:
    The Honorable Charles Ben HOWELL, Judge, Relator, v. The FIFTH COURT OF APPEALS et al., Respondents.
    No. C-3307.
    Supreme Court of Texas.
    Feb. 6, 1985.
    Rehearing Denied May 29, 1985.
    Henry Wade, Dist. Atty., Henry J. Voeg-tle, III, Asst. Dist. Atty., Dallas, for relator.
    Michael A. Robertson, Grand Prairie, Dwight I. Porter, Ronald W. Johnson, Diamond J. Panteze, Dallas, for respondents.
   CAMPBELL, Justice.

This is an original mandamus action. The Court of Appeals for the Fifth Supreme Judicial District ordered the Honorable Charles Ben Howell, relator, to allow a nonsuit in a case filed in his court, the 191st Judicial District of Dallas County. Judge Howell seeks to have the court of appeals’ order vacated.

On March 17, 1984, Brenda J. Farnham sued Hilti, Inc. and Mark Spiegal to recover damages for the death of her husband, Stephen Douglas Farnham.’ Brenda also sued as next friend of her minor children, Christina Mechelle and Chad Douglas Farn-ham, and as representative of Stephen’s estate. Francis Lincoln Farnham, the deceased’s father, and David Klucker also sued to recover damages for Stephen’s death.

The parties negotiated a settlement and requested Judge Howell’s approval of the agreement. Judge Howell appointed Diamond J. Pantaze to represent the children as guardian ad litem. Judge Howell orally appointed Pantaze on May 15 and the appointment is noted on the docket sheet. On May 21, Brenda Farnham, individually and in her representative capacities, filed a non-suit. A written order appointing Pantaze was signed on June 5. Judge Howell refused to allow the nonsuit.

The court of appeals, by mandamus, ordered Judge Howell to allow the nonsuit. Judge Howell now seeks to have the court of appeals’ judgment vacated.

In oral argument this court was advised that Brenda J. Farnham, individually and in representative capacities, and the other plaintiffs, filed suit in the 348th Judicial District in Tarrant County. This suit involved the same parties and was based on the same occurrence as the Dallas County suit. A final judgment was rendered.

Further, the Tarrant County district court judgment, dated June 15, 1984, reflects that another guardian, ad litem was appointed to represent the two minor children. In that judgment, Brenda is to receive $343,500 in cash from which all attorneys fees and court costs are to be deducted; $25,000 is to be placed in an interest-bearing account and released to Christina on her 18th birthday, and $20,000 is to be placed in a similar account to be released to Chad on his 18th birthday. Brenda is to receive $1,300 per month and a lump sum payment of $25,000 in five years, $50,000 in ten years, $75,000 in fifteen years and $100,000 in twenty years. Christina is to receive $10,000 per year for five years beginning on her 18th birthday. Chad will receive $10,000 per year for four years beginning on his 18th birthday and $15,000 on the fifth year after he reaches 18.

The judgment rendered in Tarrant County is final. Therefore, the mandamus is denied.

ROBERTSON, J., concurs.

GONZALEZ, J., dissents, in which McGEE and KILGARLIN, JJ., join.

ROBERTSON, Justice,

concurring.

I concur in the result reached by the majority because I am of the opinion that the court of appeals decision is moot. It has come to the attention of this court that the Honorable Charles Ben Howell is no longer the judge of the 191st judicial district court of Dallas County, Texas. This court has stated that “[a] writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks.” State of Texas v. G.C. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962). Since the judgment of the court of appeals is moot, no purpose would be served by permitting Judge Howell’s mandamus action to vacate that judgment.

The proper action would be for relators in the court of appeals to request Judge Howell’s successor in office to reconsider the decision to refuse approval of the non-suit. See Jampole v. Touchy, 673 S.W.2d 569, 572 (Tex.1984). A mandamus action could be reasserted, should Judge Howell’s successor decline to do so. For this reason, I reserve decision on the substantive questions discussed in the majority opinion for a more appropriate case.

GONZALEZ, Justice,

dissenting.

' I respectfully dissent. The validity and finality of the judgment rendered in Tar-rant County is not before us. Even if it was, when a guardian ad litem is appointed, I would not allow an attorney to take a non-suit and forum shop when he encounters a guardian ad litem or a court that would not rubber stamp a proposed settlement agreement.

This original proceeding requires that we examine the actions of the Fifth Court of Appeals in the instant case. I would hold that the court of appeals abused its discretion by directing relator to enter a non-suit on behalf of all parties plaintiff prior to a determination that it was in the best interest of the minor plaintiffs. I would order that the court of appeals withdraw its conditional writ of mandamus.

The order appointing Pantaze guardian ad litem was noted on Judge Howell’s docket sheet on May 15, 1984. Mrs. Famham’s attorney sent a letter to Pantaze on May 16, confirming a phone conversation the previous day in which he informed Pantaze of his appointment as guardian ad litem. The letter also discussed the settlement terms and the parties involved. Further, a letter from Judge Howell concerning the suit was sent to all counsel in the case on May 18. Judge Howell noted thereon that a copy was to be sent to Pantaze. These actions were sufficient to confirm the oral appointment of Pantaze as guardian ad litem prior to the May 21 filing of Brenda Farnham’s motion for non-suit even though the written order appointing him was not signed until June 5. Douglas v. Corder, 366 S.W.2d 615 (Tex.Civ.App.—Amarillo 1963, writ ref’d n.r.e.); see also Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969); Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849 (1952); Texas State Board of Examiners in Optometry v. Lane, 337 S.W.2d 801 (Tex.Civ.App.—Fort Worth 1960, writ ref’d). Therefore, the two minor children were represented by Pantaze in his appointed capacity at the time Mrs. Farnham attempted to non-suit this cause.

A parent or guardian, as next friend, may bring suit on behalf of a minor pursuant to Tex.R.Civ.P. 44. The next friend is present in the suit in a representative capacity only, and the minor remains the real party in interest. Gracia v. RC Cola—7-UP Bottling Company, 667 S.W.2d 517 (Tex.1984). “The bringing of a suit by next friend for a minor in no way changes his status; his disabilities are not suspended by bringing such suit (citation omitted) and his interests must, in good faith, be fully protected; he is sui non juris and altogether under the court’s protection, (citation omitted)” M.K.T. Rwy. Co. of Texas v. Pluto, 138 Tex. 1, 156 S.W.2d 265, 268 (1941).

The protection by the court of the interest of a minor plaintiff requires that a guardian ad litem be appointed when the minor “is represented by a next friend or guardian who appears to the court to have an interest adverse” to the minor. Tex.R. Civ.P. 173. When the circumstances evidence a potential adverse interest between the next friend and the minor, the court is required by the rule to appoint a guardian ad litem. Tex.R.Civ.P. 173; Newman v. King, 433 S.W.2d 420 (Tex.1968). The guardian so appointed is to assist the court in its protection of the interests of the minor. Dawson v. Garcia, 666 S.W.2d 254 (Tex.App.—Dallas, 1984, no writ).

The facts of the instant case illustrate the need for safeguards of this type inasmuch as the mother, who was twenty-five years old, was given over 90% of the proposed settlement value. Through the briefs of counsel it was disclosed to this court that the settlement agreement before Judge Howell provided that the mother was to receive $425,000 in cash, from which amount the subrogation payment and attorney’s fees were to be paid. Further, Mrs. Farnham was to receive $1300 per month for life (20 years guaranteed) with an annual increase of 4%; and lump sum payments of $25,000 in the 5th year, $50,000 in the 10th and 15th years, and $100,000 in the 20th year. The two children, Christina (age 6) and Chad (age 2) were each to receive $10,000 per year for 5 years beginning on their 18th birthdays.

When a parent sues on his or her own behalf and also as a representative of minor children for injuries arising out of the same occurrence a conflict of interests between the two often arises, particularly in a settlement situation where the parties vie for different portions of a fixed settlement amount. See Pluto, 156 S.W.2d 265; Gallegos v. Clegg, 417 S.W.2d 347 (Tex.Civ.App.—Corpus Christi 1967, writ ref'd n.r. e.). When it appears to the court that a conflict of interest exists between the next friend and the minor, the next friend is no longer competent to represent the minor. Pluto, 156 S.W.2d at 267. Further, a judgment entered in favor of a minor in such a situation where he is represented by only a next friend is not binding on him, and he may thereafter sue to have it set aside because of inadequate representation of his interests. Pluto, 156 S.W.2d 265; Gallegos, 417 S.W.2d 347. In this case, Judge Howell had, pursuant to the mandate of Tex.R.Civ.P. 173, appointed a guardian ad litem for Christina and Chad.

At the time that the court appointed the guardian, Brenda Farnham lost her rights of representation on behalf of the minors. As a result, she had no authority to take a non-suit as to the claims filed by the minors, who were, after all, the real parties in interest. The trial court and the guardian ad litem, acting jointly for the best interests of the children, had the sole authority at that point to move for and allow a non-suit on behalf of the children. Respondents cite Greenberg v. Brookshire, 640 S.W.2d 870 (Tex.1982) to support their contention that the trial court had no authority to refuse Brenda Farnham's motion to non-suit as to the children. This argument ignores the fact that, at the time the motion was made, Mrs. Farnham lacked the legal capacity to represent the children, and therefore could not make the motion on their behalf. I would allow the court to hold the requested and scheduled hearing to determine if the motion is in the best interest of the minors.

To hold otherwise, as the court does, is to emasculate the protections afforded incompetent plaintiffs by Tex.R.Civ.P. 173. A court or guardian ad litem is placed in a powerless position when faced with a potentially unfair settlement agreement and a next friend or guardian with conflicting interests. Either the interests of the minor must be compromised, or the court faces the distinct possibility that the representative will, as in this case, non-suit the entire case and forum shop for another court more willing to approve the settlement.

I would, therefore, conditionally issue a writ of mandamus directing the court of appeals to withdraw its order, and allow relator to reinstate this cause and determine the propriety of a non-suit as to the interest of the children.

McGEE and KILGARLIN, JJ., join in this dissenting opinion.

      . The parties agree that Pantaze was not notified of the Tarrant County suit until after that judgment was rendered. Therefore, he had no opportunity to file either a plea in abatement or a plea to the jurisdiction of the court over the children.


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    Jack EVANS et ux., Petitioner, v. J. STILES, INC., Respondent.
    No. C-3733.
    Supreme Court of Texas.
    March 27, 1985.
    Rehearing Denied May 29, 1985.
    Strasburger & Price, Royal H. Brin, Jr., Boyd Waggoner, Dallas, for petitioner.
    Wesner, Coke, Boyd & Clymer, C. Thomas Wesner, Jr., Dallas, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Jack and Mary Kay Evans bought a new home from J. Stiles, Inc. The Evanses sued Stiles for breach of implied warranties and to recover for damages arising from the use of faulty brick on the home. The charge to the jury included two special issues on implied warranties. In response to Special Issue No. 1, the jury found that the house was not constructed in a good workmanlike manner. In response to Special Issue No. 3, the jury refused to find that the house was “not suitable for human habitation.” The trial court rendered judgment for the Evanses. Holding that there could be no breach of implied warranty absent a finding of uninhabitability, the court of appeals reversed the judgment of the trial court and rendered a take-nothing judgment against the Evanses. 683 S.W.2d 481. We reverse the judgment of the court of appeals and affirm that of the trial court.

In Humber v. Morton, 426 S.W.2d 554 (Tex.1968), this Court held that a builder/vendor impliedly warrants that a building constructed for residential use is constructed in a good workmanlike manner and is suitable for human habitation. Gupta v. Ritter Homes, Inc., 646 S.W.2d 168, 169 (Tex.1983); G-W-L, Inc. v. Robichaux, 643 S.W.2d 392, 393 (Tex.1982). The court of appeals held, as a matter of law, that Stiles had not breached the Humber implied warranty because the jury refused to find uninhabitability. In effect, the court of appeals held that there can be a breach of the Humber implied warranty only if a house is found to be uninhabitable. Thereby, the court of appeals rendered meaningless the language in Humber referring to construction in a “good workmanlike manner.”

In Humber, Gupta and Robichaux, this Court plainly stated that the builder/vendor warrants both workmanship “and” habitability. If we had intended that the warranty extend only to habitability, we would not have used the word “and.” Moreover, as support for our position in Humber, this Court cited with approval the following language from Moore v. Werner, 418 S.W.2d 918 (Tex.Civ.App.—Houston [14th Dist.] 1967, no writ):

It was the seller’s duty to perform the work in a good and workmanlike manner and to furnish adequate materials, and failing to do so, we believe the rule of implied warranty of fitness applies.

Humber, 426 S.W.2d at 561. The Werner case involved a house with defects in the patio and driveway; such defects could not have rendered the house uninhabitable.

The implied warranty of construction in a good workmanlike manner is independent of the implied warranty of habitability; therefore the trial court properly rendered judgment for the Evanses based upon the jury’s finding that the house was not constructed in a good workmanlike manner. Therefore, having determined that the court of appeals’ decision conflicts with Humber, we grant the application for writ of error, and without hearing oral argument, reverse the judgment of the court of appeals and affirm that of the trial court. Tex.R.Civ.P. 483.

      . The court of appeals heard the case en banc. Six justices joined in a plurality opinion, one justice concurred in the result only, and six justices dissented.


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    George LINDSEY, et ux., Relators, v. Honorable Jack O’NEILL, Judge, et al., Respondents.
    No. C-3628.
    Supreme Court of Texas.
    April 3, 1985.
    Rehearing Denied May 8, 1985.

      W. Jiles Roberts, Buchanan Dam, for relators.
    B.J. Walter, Jr., Liddell, Sapp, Zivley & Laboon, Jess H. Hall, Jr., Houston, for respondents.
   PER CURIAM.

This is an original mandamus action brought by George Lindsey and Betty Lindsey, individually and as next friends of their son, Thomas Daniel Lindsey, to compel Judge O’Neill to rescind his order limiting the scope of their Second Amended Notice of Deposition. This court has jurisdiction over this cause pursuant to TEX. REV.CIV.STAT.ANN. art. 1733 (Vernon Supp.1985). Because we believe the trial court’s order improperly restricted the scope of discovery as defined by the Texas Rules of Civil Procedure, we conditionally grant the writ.

The Lindseys brought the underlying lawsuit in this cause against several defendants including certain named physicians, several pharmaceutical companies, and Hermann Hospital in Houston, based upon medical malpractice and products liability theories. In the course of conducting pretrial discovery, the Lindseys served their Second Amended Notice of Deposition upon one of the defendants, Travenol Labs, Inc. This deposition notice requested Tra-venol to produce individuals for deposition on some thirty-nine subject areas. Traven-ol moved for a protective order and the trial court ordered twenty-one of these subject areas stricken from the notice on the ground that the subjects called for Traven-ol to produce expert opinion testimony. The trial court struck another eight subjects from the notice on relevancy grounds. As to the remaining subject areas, the trial court limited the scope of permissible inquiry by the Lindseys to only such facts as are, or may lead to, matters relevant to the issues identified by the Lindseys’ Seventh Amended Petition. The trial court also quashed the document request which accompanied the deposition notice.

TEX.R.CIV.P. 200 provides that a party may take the deposition of a private or public corporation. Subsection 2b requires that a deposition notice of a corporation describe with reasonable particularity the matters on which examination is requested. Rule 200 makes no distinction between deposition notices directed toward corporations based upon whether the deposition is to pertain to purely factual matters or matters calling for expert opinion.

Subsection 3 c of TEX.R.CIY.P. 166b exempts from discovery the mental impressions and opinions of an expert retained or specially employed in anticipation of litigation or preparation for trial if the expert will not be called as a witness and the expert’s work product does not form the basis, either in whole or in part, of the opinions of experts who will testify. Subsection 3d exempts from discovery communications between a party and its agents “where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of the claim or the investigation of the occurrence or transaction out of which the claim has arisen.” Rule 166b-3 does not exempt from discovery the mental impressions and opinions of a party’s nontestifying experts when these mental impressions and opinions were formulated neither (1) in the course and scope of the “prosecution, investigation or defense” of a claim or a transaction or occurrence giving rise to a claim or (2) “in anticipation of litigation or preparation for trial.”

Subsection 2 a of Rule 166b provides that the scope of discoverable information shall include “any matter which is relevant to the subject matter in the pending action whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.” Discoverability is likewise not limited to admissible evidence, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Rule 166b-2 a makes no distinction in terms of discoverability between purely factual information and information consisting of the mental impressions and opinions of experts.

Subsection 2 e of Rule 166b describes the means by which a party may obtain the discovery of the facts known, mental impressions and opinions of experts when such information “was acquired or developed in anticipation of litigation.” Rule 166b-2 e does not purport to exempt from discovery similar types of information not acquired or developed in anticipation of litigation.

No provision exists in the Texas Rules of Civil Procedure exempting the mental impressions and opinions of experts from discovery when these mental impressions and opinions were neither acquired nor developed in anticipation of litigation. Before the trial court may hold an entire category of expert opinion evidence exempt from discovery, there must be proof before it that all such evidence was either acquired or developed in anticipation of litigation. Because the trial court excluded from discovery all of the mental impressions and opinions of experts associated with Travenol without any showing that this information was acquired or developed in anticipation of litigation, we find a conflict between the trial court’s order and the Texas Rules of Civil Procedure and, hence, an abuse of discretion on the part of the trial court.

With regard to those subject areas either struck from the Lindseys’ deposition notice on relevancy grounds or restricted in scope to the facts relevant to the Lindseys’ claims, we find no abuse of discretion in the trial court’s order.

We grant the motion for leave to file petition for writ of mandamus. Pursuant to TEX.R.CIV.P. 483, without hearing oral argument, we grant the writ. We are confident the trial court will comply with our decision. A writ of mandamus will issue only if it fails to do so.


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    Newton C. VANCE, d/b/a Vanguard Production, Petitioner, v. Jim R. HOLLOWAY, Respondent.
    No. C-3922.
    Supreme Court of Texas.
    April 3, 1985.
    Rehearing Denied May 8, 1985.
    Mitchell Williams, Post, for petitioner.
    Curry, Curry & Robinson, Donald L. Curry, Lubbock, for respondent.
   PER CURIAM.

This is an appeal from a suit on a sworn account. The trial court held that Petitioner, Newton C. Vance, d/b/a Vanguard Production, was entitled to recover operating costs on the “Dawn” lease in which Respondent, Jim R. Holloway, owned a ⅛2 working interest. In an unpublished opinion, the court of appeals reversed and remanded, holding that Vance had failed to establish his ownership of the account. Pursuant to TEX.R.CIV.P. 483, we grant Newton C. Vance, d/b/a Vanguard Production’s application for writ of error and, without hearing oral argument, reverse the judgment of the court of appeals and affirm the judgment of the trial court.

The record established that Vance originally acquired an interest in the “Dawn” lease in 1981. The well was developed by and operating costs paid to M.F.B. Oil Company. In 1982, Vance acquired M.F.B. Oil Company’s interest in the “Dawn” lease. Holloway owns a ⅛2 working interest in one of Vance’s wells on this lease. Vance sued Holloway on a sworn account to recover the portion of operating expenses that Holloway owed to Vance as owner of M.F.B. Oil Company’s interest in the “Dawn” lease.

The petition and affidavit filed by Vance clearly met the requirements of TEX.R. CIV.P. 185. Holloway answered by way of an unverified general denial only. He failed to meet the requirements of TEX.R. CIV.P. 185 and 93(10) which state that a written denial of the plaintiff’s action must be verified. The language of the rules is clear. TEX.R.CIV.P. 185 states:

... A party resisting such a sworn claim shall comply with the rules of pleading as are required in any other kind of suit, provided however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be_ (Emphasis added).

Similarly, TEX.R.CIV.P. 93 provides:

A pleading setting up one of the following matters ... shall be verified by affidavit.
10. A denial of an account which is the foundation of the plaintiff’s action, and is supported by affidavit.

“In the absence of a sworn denial meeting the requirements of the rule, an account is received as prima facie evidence as against a defendant sued thereon, and the defendant may not dispute the receipt of the items or services, or the correctness of the stated charges_” Rizk v. Financial Guardian Insurance Agency, Inc., 584 S.W.2d 860, 862 (Tex.1979). Holloway failed to file a sworn denial and he has, therefore, waived his right to dispute the amount and ownership of the account. These facts, having been accepted by the trial court as prima facie evidence of the sworn account, entitle Vance to recovery.

Accordingly, we conclude that the decision of the court of appeals conflicts with the applicable rules of procedure and law of this court, hereinabove set forth. Without hearing oral argument, we grant Newton C. Vance, d/b/a Vanguard Production's application for writ of error, reverse the judgment of the court of appeals and affirm the judgment of the trial court. TEX. R.CIV.P. 483.


author: SPEARS, Justice.

text:
    REED TOOL COMPANY, Petitioner, v. Judy A. COPELIN, Respondent.
    No. C-3591.
    Supreme Court of Texas.
    April 10, 1985.
    Rehearing Denied May 8, 1985.

      Fulbright and Jaworski, Patricia J. Kerri-gan, Winstol D. Carter, Jr. and Charles W. Hurd, III, Houston, for petitioner.
    R.D. McPherson, Houston, for respondent.
   SPEARS, Justice.

The question presented is whether an employer who intentionally maintains an unsafe workplace in which an employee is injured may be held to have intentionally injured the employee. Mrs. Judy Copelin sued Reed Tool Company for loss of consortium resulting from on-the-job injuries sustained by her husband. The trial court granted summary judgment for Reed Tool Company on the ground that Mrs. Copelin’s action was derivative and could not be maintained because her husband’s suit was barred by the Workers’ Compensation Act. Tex.Rev.Civ.Stat.Ann. arts. 8306-83091 (Vernon 1967 and Supp.1985). This court has held that if Mrs. Copelin could establish an intentional impairment of consortium, her claim would not be barred by either the act or her husband’s acceptance of workers’ compensation benefits. Reed Tool Co. v. Copelin, 610 S.W.2d 736 (Tex.1980) affirming 596 S.W.2d 302 (Tex.Civ.App.1980). On remand Reed Tool again moved for summary judgment, asserting that there was no genuine issue of material fact concerning intentional injury. The trial court granted summary judgment. The court of appeals reversed and remanded the cause for trial. 679 S.W.2d 605. We reverse the judgment of the court of appeals and affirm the trial court judgment.

George Copelin, a machine operator for Reed Tool, was injured in the course of his employment when a chain tong from the lathe he was operating hit him in the head. He suffered severe brain damage and was left in a coma. Mrs. Copelin alleged that Reed Tool intentionally caused her husband’s injury by intentionally requiring him to work a machine that Reed Tool knew was unsafe, did not meet minimal safety standards, and was defective because of a modification made by Reed. She further alleged that Reed Tool knew her husband was inadequately trained and that they required him to work “such long hours as violated minimum requirements of law.”

Reed Tool moved for summary judgment asserting there was no question of material fact. Mrs. Copelin failed to file a response, and summary judgment was granted. The court of appeals held that the intentional maintenance of an unsafe workplace would supply the intent necessary to hold the employer liable for an intentional injury, and that since the depositions did not disprove an intent to maintain an unsafe workplace, Reed Tool had not established there were no questions of material fact.

The Texas Workers’ Compensation Act is the exclusive remedy for work-related injuries with the exception of intentional injury. Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex.1981); Middleton v. Texas Power & Light, 108 Tex. 96, 185 S.W. 556, 560 (1916). “An injury caused by willful negligence or willful gross negligence is not an intentional injury necessary to avoid the effect of the Workers’ Compensation Act.” Castleberry, 617 S.W.2d at 666. Falling within the intentional injury exception are direct assaults by an employer on an employee. See Richardson v. The Fair, Inc., 124 S.W.2d 885 (Tex.Civ.App.—Beaumont 1939, writ dism’d, judgmt cor.). The fundamental difference between negligent injury, or even grossly negligent injury, and intentional injury is the specific intent to inflict injury. The Restatement Second of Torts defines intent to mean that “the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” Restatement (Second) of Torts § 8A (1965).

Some courts have applied the Restatement definition to the worker’s compensation intentional injury exception. In construing the Louisiana Worker’s Compensation Statutes, the Louisiana Supreme Court held “[t]he meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did.” Bazley v. Tortorich, 397 So.2d 475, 482 (La.1981). Moreover, “[t]o establish intentional conduct, more than the knowledge and appreciation of risk is necessary; the known danger must cease to become only a foreseeable risk which an ordinary, reasonable, prudent person would avoid (ordinary negligence), and become a substantial certainty.” VerBouwens v. Hamm Wood Products, 334 N.W.2d 874, 876 (S.D.1983). See Schreder v. Cities Service Co., 336 N.W.2d 641, 644 (N.D.1983).

The overwhelming weight of authority from other jurisdictions is that the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury. 2A A. Larson, The Law of Worker’s Compensation § 68.-13 (1983). This view is endorsed by Larson who states:

Even if the alleged conduct goes beyond aggravated negligence and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of its accidental character.

Several courts have held that the intentional failure to provide a safe workplace does not constitute an intentional injury in order for the claimant to escape worker’s compensation limits. Griffin v. George’s, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979); Johns-Manville Products Corp. v. Contra Costa Superior Court, 27 Cal.3d 465, 165 Cal.Rptr. 858, 612 P.2d 948 (1980); Kofron v. Amoco Chemicals Corp., 441 A.2d 226 (Del.1982); Southern Wire & Iron Inc. v. Fowler, 217 Ga. 727, 124 S.E.2d 738 (1962); Great Western Sugar Co. v. District Court, 610 P.2d 717 (Mont.1980); Jacobsen v. Southeast Distributors, Inc., 413 So.2d 995 (La.App.1982). See McCoy v. Liberty Foundry Co., 635 S.W.2d 60 (Mo.App.1982); Kennecott Copper Corp. v. Reyes, 75 Nev. 212, 337 P.2d 624 (1959); Cooper v. Queen, 586 S.W.2d 830 (Tenn.App.1979, writ denied). Moreover, the intentional modification or removal of safety controls or guards is not the equivalent of an intentional injury. Rosales v. Verson Allsteel Press Co., 41 Ill.App.3d 787, 354 N.E.2d 553 (1976); McAdams v. Black & Decker Mfg. Co., Inc., 395 So.2d 411 (La.App.1981); Santiago v. Brill Monfort Co., 10 N.Y.2d 718, 176 N.E.2d 835 (1961), Duk Hwan Chung v. Fred Meyer, Inc., 276 Or. 809, 556 P.2d 683 (1976); Foster v. Allsop Automatic, Inc., 86 Wash.2d 579, 547 P.2d 856 (1976). The intentional violation of a safety regulation does not authorize recovery beyond that provided by workers’ compensation statutes. Williams v. International Paper Co., 129 Cal.App.3d 810, 181 Cal.Rptr. 342 (1982); Duncan v. Perry Packing Co., 162 Kan. 79, 174 P.2d 78 (1946); Cortez v. Hooker Chemical and Plastics Corp., 402 So.2d 249 (La.App.1981); Roberts v. Barclay, 369 P.2d 808 (Okla.1962); Evans v. Allentown Portland Cement Co., 433 Pa. 595, 252 A.2d 646 (1969). Even the intentional failure to train an employee to perform a dangerous task does not constitute an intentional injury. Law v. Dartt, 109 Cal.App.2d 508, 240 P.2d 1013 (1952). See Kittell v. Vermont Weather Board, Inc., 138 Vt. 439, 417 A.2d 926 (1980). Requiring an employee to work long hours is not tantamount to an intentional injury. Lemaire v. Younger Transp., Inc. of Tex., 443 So.2d 662 (La.App.1983); Shores v. Fidelity & Cas. Co. of New York, 413 So.2d 315 (La.App.1982).

While these results may seem harsh, as Larson points out, it is not the gravity or depravity of the employer’s conduct but rather the narrow issue of intentional versus accidental quality of the injury.

The intentional removal of a safety device or toleration of a dangerous condition may or may not set the stage for an accidental injury later. But in any normal use of the words, it cannot be said, if such an injury does happen, that this was deliberate infliction of harm comparable to an intentional left jab to the chin.

2A A. Larson, The Law of Worker’s Compensation § 68.13 (1982). The exclusive remedy provision is an essential element of the worker’s compensation scheme. The Act established a system of liability without fault. In exchange, the employee had to give up certain elements of damage recoverable under common law negligence. The system balances the advantage to employers of immunity from negligence and potentially larger recovery in common law actions against the advantage to employees of relatively swift and certain compensation without proof of fault. Worker’s compensation is based on the principle that the cost of medical services and benefits provided is part of the cost of doing business and thus is borne directly by the employer, and ultimately by the general public, as part of the cost of goods and services. The continued effectiveness of the worker’s compensation scheme depends on the continued ability to spread the risk of such losses. If employers are required to provide not only worker’s compensation but also to defend and pay for accidental injuries, their ability to spread the risk through reasonable insurance premiums is threatened, and the balance of advantage and detriment would be significantly disturbed. Rosales v. Verson Allsteel Press Co., 41 Ill.App.3d 787, 354 N.E.2d 553, 555-556 (1976). See Griffin v. George’s Inc., 262 Ark. 91, 589 S.W.2d 24, 27 (1979); Johns-Manville Products Corp. v. Contra Costa Superior Court, 27 Cal.3d 465, 165 Cal.Rptr. 858, 612 P.2d 948 (1980).

We hold that the intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury.

Mrs. Copelin’s reliance on Bennight v. Western Auto Supply Co., 670 S.W.2d 373 (Tex.App.—Austin 1984, writ ref’d n.r.e.) is misplaced. Bennight does not hold that the intentional breach of the duty to furnish a safe place to work can supply the requisite intent to injure. Bennight is limited to its facts.

In accordance with our holding, we now decide whether summary judgment for the defendant was proper in this case. Pursuant to the pretrial conference, the trial court limited Mrs. Copelin’s witnesses to Willie Graves and Carl Graves for proof of intentional injury. This order was not contested. Both witnesses testified in depositions that they had no knowledge of anyone from Reed Tool who had intended to injure George Copelin. Neither expressed any knowledge of anyone tampering with the lathe in such a way as to result in injury. Neither was at work at the time of the injury, and neither knew of an eyewitness. Both testified that they believed the injury happened because Cope-lin attempted to operate the machine improperly. The machine was nicknamed “jaws,” and some employees did not want to operate it. There had been prior injuries on most of the lathes similar to the machine in question as well as that particular machine. None of those prior injuries was debilitating, disabling, or in any way as serious as Mr. Copelin’s injury. There was also testimony that Reed Tool employees sometimes had to work twelve-hour shifts, seven days a week. While the summary judgment evidence might raise a question of fact concerning gross negligence, it does not raise a question of fact that Reed Tool knew with substantial certainty that George Copelin would be injured.

Summary judgment is proper when the summary judgment evidence does not raise a question of fact concerning the plaintiffs allegations. In order to avoid summary judgment, Mrs. Copelin had to respond to the motion and show why summary judgment was improper, or why she should be entitled to additional discovery in order to raise a question of fact. This she did not do.

The summary judgment was correct. Accordingly, we reverse the judgment of the court of appeals and affirm the trial court judgment.


author: SPEARS, Justice. KILGARLIN, Justice,

text:
    Delbert L. JACKSON, Petitioner, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Respondent.
    No. C-3434.
    Supreme Court of Texas.
    April 17, 1985.
    Rehearing Denied May 29, 1985.

      Menaker and Huffman, Mark Huffman, Dallas, for petitioner.
    Robert M. Greenberg, P.C., Hollye C. Fisk, Dallas, for respondent.
   SPEARS, Justice.

This is a suit for recovery under the Workers’ Compensation Act. Tex.Rev.Civ. Stat.Ann. arts. 8306-8309Í (Vernon 1967 & Supp.1985). The issue before us is whether the trial court misinterpreted certain jury findings and thus understated the recovery due the claimant, Delbert Jackson. The jury findings in question concern the degree to which Jackson’s incapacity resulted from prior injuries not compensable in this action. The court of appeals affirmed the trial court judgment. 675 S.W.2d 341. We affirm the judgments of the courts below.

Delbert Jackson brought a claim for compensation under the Workers’ Compensation Act for disabling injuries to his left hand sustained on September 14, 1981. The injury in question allegedly severed Jackson’s ring finger and damaged his small and middle fingers, and the jury found that the injury extended to and affected his hand. The insurer, United States Fidelity & Guaranty Company (U.S.F. & G.), alleged that the incapacity extending to Jackson’s hand was caused by two prior injuries to his left thumb, one occurring in October 1980 and one in March 1981. The jury found that Jackson sustained 25% permanent partial loss of use of his left hand, a specific injury compensable under article 8306, section 12. The jury also found that the two prior thumb injuries and the finger injury all contributed to the 25% incapacity.

The parties agree that under article 8306, section 12c, U.S.F. & G. is not liable for the incapacity resulting from the prior thumb injuries; however, the parties disagree over the extent of these prior injuries. The following special issues relevant to this dispute were submitted without objection.

SPECIAL ISSUE NO. 8.
Find from a preponderance of the evidence the degree of such partial loss of use of Delbert Jackson’s left hand.
Answer by giving the percentage of loss of use.
ANSWER: 25%.
SPECIAL ISSUE NO. 10.
Find from a preponderance of the evidence the percentage, if any, that Delbert Jackson’s injury to the left thumb in or about October, 1980, has contributed to the incapacity found by you.
Answer by giving a percentage, if any.
ANSWER: 2½.
SPECIAL ISSUE NO. 13.
Find, from a preponderance of the evidence, the percentage, if any, that the injury to Delbert Jackson’s left thumb in or about March, 1981, has contributed to the incapacity found by you.
Answer by giving a percentage, if any.
ANSWER: 10%.

The precise question presented is whether the meaning of these special issues is that Jackson’s 25% incapacity was caused:

(1) half by prior injuries and half by the subsequent compensable injury, or
(2) 1272% by prior injuries and 8772% by the subsequent compensable injury, or whether
(3) the special issues are ambiguous and subject to either interpretation above.

The trial court judgment awarded Jackson a recovery for 1272% incapacity obviously premised on the' interpretation that Jackson’s 25% incapacity was caused half by prior injuries and half by the subsequent injury. The court of appeals agreed with this interpretation and alternatively held that if the issues were ambiguous, the trial court judgment should be affirmed since Jackson has not brought forward the statement of facts on appeal. Jackson argues that these quoted jury findings clearly and unambiguously show that only 12V2 % of the 25% incapacity was contributed by prior injuries, and therefore his recovery should have been for 87⅝% of the 25% or 21.875% incapacity.

In summary, of the three alternatives set forth above, the trial court has applied number 1; the court of appeals has chosen number 1, or alternatively, number 3; and Jackson urges that number 2 is the clear and irresistible import of the jury findings. We must examine these interpretations under the language of the special issues, and we will begin with interpretation number 1.

It is important to note at the outset that in special issues 10 and 13 the word “of” never appears after the word “percentage.” Therefore, the jury was never told that their answer should be expressed as a percentage of the 25% incapacity. They were told only that the answer should be the percentage that the prior injuries contributed to the 25% incapacity.

In special issue no. 8 the jury found that the degree of partial loss to Jackson’s hand was 25% loss of use. In surrounding issues, the jury found that the two prior injuries and the subsequent injury all contributed to this 25% loss of use. In special issues 10 and 13, the jury was asked what percentage the prior injuries contributed to the 25% incapacity. A reasonable interpretation of these issues would allow the jury to answer in terms of an additive contribution, thereby finding that out of the combined total of 25% loss of use, 12V2% was contributed by prior injuries and 12V2% by the subsequent injury of September 14, 1981. Restating the issues and answers of the jury as an affirmative statement, it fairly reads, “The prior injuries have contributed 12V2% to the 25% loss of use.” Again, in the absence of any express direction as to what “the percentage” in issues 10 and 13 is to be taken of, a reasonable interpretation of this statement is that the prior injuries contributed 12½% loss of use to the 25% combined loss of use from all injuries. Therefore, interpretation number 1 is reasonable.

Interpretation number 2, which Jackson urges, is that “the percentage” refers to a percentage of the incapacity found by the jury. The jury, having been asked to find the percentage that prior injuries contributed to the 25% incapacity, could have inferred that their answer should be expressed as a percentage o/the 25% incapacity found by them. Such an application would clearly call for a multiplication of the 12V2% contributed by prior injuries with the 25% incapacity to find that 3.125% loss of use resulted from prior injuries and 21.875% loss of use resulted from the injury for which compensation is sought. Therefore, interpretation number 2 is reasonable.

Jackson argues that this is the only proper interpretation because the issues are clear and unambiguous; however, in the absence of any express direction as to what the percentages in special issues 10 and 13 are to be taken of, we cannot agree. The issues submitted in this case, although susceptible to the interpretation urged by Jackson, do not demand that interpretation, and do not foreclose the additive interpretation given by the courts below. For the foregoing reasons we hold that the findings in special issues 10 and 13 are ambiguous. The jury was not told the proper way to state its answers, and two reasonable interpretations exist as to the meanings of the findings.

Jackson challenges this holding by asserting that it could yield absurd results. He argues that if the jury had found a 50% contribution by prior injuries, this court would allow subtracting 50% from 25% thus giving the claimant recovery for a negative 25% loss of use. As stated earlier, there are two reasonable interpretations as to the meaning of the jury’s answers in this case. Had the jury answered “50%” to the issues, the interpretation actually applied by the jury would have readily been known, and the trial court would clearly have been in error to interpret the answer as was done in this case. Unfortunately, the answers given in this case do not help resolve the ambiguity.

Jackson urges that the cases of Consolidated Casualty Insurance Co. v. Jackson, 419 S.W.2d 232 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref'd n.r.e.) and Aetna Casualty & Surety Co. v. Depoister, 393 S.W.2d 822 (Tex.Civ.App.—Corpus Christi 1965, writ ref d n.r.e.) support the conclusion that the percentage of incapacity should have been multiplied by the percentages found in special issues 10 and 13. In Consolidated Casualty, the special issues submitted to determine the extent of prior injuries were virtually identical to those in the present case. The partial incapacity, however, was a general injury, instead of a specific injury as in this case. In general injury cases, partial incapacity is found by the jury in dollars and cents by subtracting the average weekly earning capacity after the injury from the average weekly wage before the injury. 419 S.W.2d at 236. Therefore when asked the percentage that prior injuries contributed to the partial incapacity, the jury’s answer could fairly be restated as “The prior injuries contributed 25% to the $50.00 incapacity.” See 419 S.W.2d at 236. The ambiguity disappears in the general injury case because it is impossible for percentages to additively contribute to dollars and cents. In contrast, the finding in this case that “the prior injuries contributed 12¥2% to the 25% incapacity” may be interpreted as an additive contribution.

All of the cases cited by the dissent using similar prior injury issues are general injury cases. The dissenting opinion’s reliance upon general injury cases using the same prior injury issue is misplaced for two reasons. First, for the reasons just mentioned, no one contends that these issues would be ambiguous in a general injury case. Second, as naturally follows, these issues were not contested as ambiguous in those cases. Just because the issues have been used successfully in some situations does not automatically mean they will work in all cases.

We are mindful that the issues submitted to determine the contribution of prior injuries were taken from 2 State Bar of Texas, Texas Pattern Jury Charges PJC 25.05 (1970). Regardless of how long these issues have been contained in the Texas Pattern Jury Charges, they have never before been used in any reported specific injury case, and no Texas appellate court has ever before addressed the issue in this case, either impliedly or expressly, in holding or in dicta. See T. Korioth & F. Southers, Texas Workers’ Compensation Desk Book 147 (1980) (“There have been no cases concerning the calculation of any contribution regarding specific injuries.”).

Jackson acknowledges the distinction between general and specific injury cases, but argues that the same calculation rules should be applied in each case to achieve uniformity. While this court has no disagreement with a calculation method such as that urged by Jackson, an unambiguous issue must still be submitted to the jury which informs them of the proper way to express their fact findings.

Jackson also argues that the trial court’s calculation violates the well established rule that the Workers’ Compensation Act should be liberally construed in favor of the claimant. See Stott v. Texas Employers Ins. Ass’n, 645 S.W.2d 778, 780 (Tex.1983). This case, however, involves a determination of the facts, rather than the law. The issue before us is the factual question of the extent of Jackson’s prior injuries. Article 8306, section 12c of the Act provides that “the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury .... ” The Act does not specify how the issue should be phrased or whether the prior injury should be expressed as a percentage of loss of use or as a percentage of partial incapacity. Therefore, the act itself offers nothing to resolve this case, and the rule of liberal construction certainly does not authorize liberally construing ambiguous fact findings in favor of the claimant.

Having held that the issues were susceptible to the interpretations of both Jackson and the courts below, the law is clear that we must affirm the judgments below in this case. Several well established rules require this result. First, an appellant has the burden to show that the judgment of the trial court was erroneously rendered and entered. Travelers Insurance Co. v. Brown, 402 S.W.2d 500, 504 (Tex.1966). Second, if the jury findings are ambiguous or unclear, the appellate courts must try to interpret the findings so as to uphold the judgment. First Federal Sav. & Loan Ass’n v. Sharp, 359 S.W.2d 902, 903 (Tex.1962). Moreover, Jackson, the petitioner here and appellant below, has not brought forward the statement of facts on appeal. In State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 739 (1941), this court held:

The rule is well established that when the findings on special issues are ambiguous, in order to arrive at their proper interpretation the court may examine not only the issues submitted, but also the pleadings and the evidence; and after an examination of such pleadings and evidence the intention of the verdict can be • ascertained. Such verdict so construed constitutes the proper basis for a judgment.

We also recognize the rule that the trial court may not merely speculate as to the jury’s true intent. But in the absence of a statement of facts, we do not know and cannot hold that the trial court resorted to speculation. To so hold would require us to presume the trial court erred, without any way of knowing.

It is clear that Jackson has not sustained his burden to show error in the trial court judgment. Accordingly, we affirm the judgments of the courts below.

Dissenting opinion by KILGARLIN, J., in which WALLACE and ROBERTSON, JJ., join.

KILGARLIN, Justice,

dissenting.

I must dissent. On the basis of a supposed ambiguity of answers, this court nullifies a long-used and approved special issue. Not only will this holding befuddle the bench and bar as to how to submit contribution for prior injuries in worker’s compensation cases, the opinion is bound to perplex grammarians and mathematicians alike. Moreover, not since the want of a nail/shoe/horse led to Louis XII’s loss of Italy to Henry VIII in the Battle of the Spurs, has something as inconsequential as the want of an “of” produced such a momentous result.

In Fidelity & Casualty Company of New York v. Shores, 329 S.W.2d 911, 914-15 (Tex.Civ.App.—Fort Worth 1959, writ ref’d), this court approved the statement, “[t]o construe the Workmen’s Compensation Act or any part thereof, where there is room for construction, so that absurd consequences would be the necessary result should be avoided.” Yet, the majority approval of the trial court formula of subtracting percentages, rather than multiplying them as should be done, will lead inevitably to such consequences. For example, should the jury have answered that the combined effects of the two prior thumb injuries had contributed 25% to the present incapacity, then 25% subtracted from 25% would leave 0%. The 25% contribution would thus be transposed into 100% of the current disability. But to really demonstrate the potential for absurd results, let us suppose that the jury had found that the two prior thumb injuries had contributed 50% of the incapacity found by them. How does one go about subtracting 50% from 25%, as the majority would have us do under its approved formula? The only way to avoid the consequences envisioned in Shores is to multiply the percentage of present incapacity by the percentage that the prior injuries contributed to that incapacity.

The majority’s answer to this is that if “the jury answered 50% to the issues, the interpretation actually applied by the jury would have been readily known, ...” 689 S.W.2d at 411. I submit sheer chaos will result if we start allowing trial judges to second guess juries. Such a rule can never be workable. Let us assume that in different cases two juries each find 50% loss of use with contribution of 25% from prior injuries. Judge A says the jury meant 25% as being one-half of 50%. Judge B says the jury meant 25% as being one-fourth of 50%. Under the majority holding, both judgments would be affirmed. Such simply cannot be. Trial judges are not to be permitted to interpret jurors’ intent. Northern Texas Traction Co. v. Armour & Co., 116 Tex. 176, 288 S.W. 145 (1926). As was said in Moore v. Moore, 67 Tex. 293, 297, 3 S.W. 284, 286 (1887), “as to the true construction of such a verdict, neither the lower court nor this court is permitted to speculate.”

We cannot posit as a rule of construction a holding that would permit both multiplication and subtraction as a judge may see fit. Certainty of the law demands that we either approve one formula or the other, and there is no question that multiplication, not subtraction, is the proper computation method. See, e.g., Consolidated Casualty Insurance Co. v. Jackson, 419 S.W.2d 232, 236-37 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n.r.e.); Aetna Casualty & Surety Co. v. Depoister, 393 S.W.2d 822, 829 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n.r.e.); and, Jones v. Travelers Insurance Co., 374 S.W.2d 779, 782 (Tex.Civ.App.—Beaumont 1964, writ ref’d n.r. e.).

The majority, while conceding that the special issues submitted in Consolidated Casualty were virtually identical to those submitted here, attempts to distinguish that case' from this one by saying that Consolidated Casualty was a general injury case. While that may be true, it makes no difference. The right of contribution stems from the provisions of Tex.Rev.Civ. Stat.Ann. art. 8306, § 12c. Speaking for this court in Sowell v. Travelers Insurance Co., 374 S.W.2d 412, 416 (Tex.1963), former Chief Justice Greenhill stated, “[sjection 12c makes no distinction between specific and general injuries, and we are unwilling to write such a distinction into the statute.”

The majority admits that the special issues used in this case were taken verbatim from 2 State Bar of Texas, Texas Pattern Jury Charges PJC 25.05 (1970). The pattern jury charge issue is substantially the same as the one contained in 11 Stayton Texas Forms § 7005, no. 23 (1962), which states, “[f]rom a preponderance of the evidence find what percentage the injury of (date) contributed to the disability, if any, of Plaintiff’s (specific member) previously found by you. Answer in terms of percentage.” Likewise, the pattern jury charge is similar to the issue recommended in J. Gar-ey, Handling a Workmen’s Compensation Claim 127 (1968), which reads, “What do you find from a preponderance of the evidence to be the percentage of incapacity resulting solely from the prior job injuries of _, 19_ and _, 19_? Answer in percentages.”

Nor does the pattern jury issue differ substantially from the issue recommended by Charles J. Lieck, Sr. in Lieck’s Legal Trial Aid (p. 286 in 1951 ed. and pp. 386-87 in 1959 ed.), which reads, “what do you find, from a preponderance of the evidence, to be the percentage that such prior injury has contributed, if any, to plaintiffs incapacity, if any? Answer by stating a percentage.” It should be noted that none of the form issues incorporate the word “of” after the word “percentage.” Moreover, as the comment to 2 State Bar of Texas, Texas Pattern Jury Charges PJC 25.05 observes, its recommended form of submission is used in St. Paul Fire and Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962).

For the first thirty-odd years of the Worker’s Compensation Act the contribution question was usually submitted in a form different from the Pattern Jury Charges suggestion. The formerly used issue inquired as to the percentage of present incapacity contributed solely by the injury made the basis of the current claim. See, e.g., Texas Indemnity Ins. Co. v. Perdue, 64 S.W.2d 386 (Tex.Civ.App.—Amarillo 1933, writ ref'd); Texas Employers Insurance Ass’n v. Griffis, 141 S.W.2d 687 (Tex.Civ.App.—Galveston 1940, no writ); Traders and General Insurance Co. v. Watson, 131 S.W.2d 1103 (Tex.Civ.App.—Eastland 1939, writ dism’d judgmt cor.).

In his treatise, Lieck argued that the use of the word “solely” was objectionable as it denied a claimant his right to recover for aggravation as contained in the statutory definition of injury. Twelve years later, using Lieck’s reasoning, this court, in Sowell v. Travelers Insurance Co., disapproved under the facts of that case, the issue, “[w]hat percentage of plaintiffs present incapacity * * * is attributable solely to the [injury made the basis of plaintiffs suit]” (emphasis in original). 374 S.W.2d at 414. Since then, the contribution issue has been routinely submitted as suggested by Lieck, Stayton, Garey, and the Pattern Jury Charges.

The majority discards a special issue that has been recommended, and subsequently approved, for over thirty-four years with the sole justification that an answer to the issue is susceptible to two different interpretations. The reason given for its finding of ambiguity is that there is no express direction “as to what the percentages in special issues 10 and 13 are to be taken of, ...” 689 S.W.2d at 410. Yet, nothing could be more plain. The jury was asked to find the percentage (an amount even the majority must concede is from zero to 100) the prior injury has contributed to 25% (the incapacity found). The submitted issue is gramatically correct, and most grade school mathematicians are sufficiently proficient to recognize that percentages are computed by multiplying the lesser part by the whole.

But even if the jury findings were ambiguous, that is an additional reason why this case should be resolved in favor of Delbert Jackson. The Worker’s Compensation Act should be liberally construed to favor the claimant. The majority attempts to avoid this time-honored law of statutory construction by saying that fact findings do not count. While this may be the interpretation that the present majority now gives to the Worker’s Compensation Act, it has certainly not always been so. In a case totally devoted to calculation of percentages, Texas Employers Insurance Ass’n v. Holmes, 145 Tex. 158, 196 S.W.2d 390 (1946), this court discussed at length the statutory construction policy of Texas courts. When the statutory language permits, the act is to be construed broadly and liberally, to favor the employee. Holmes traces in detail the authority for that proposition all the way back to the inception of the act, itself. Contrary to the conclusion of the majority opinion, the ambiguity, if indeed it is an ambiguity, is not in the jury answer, but in the construction the trial judge placed on the answer, which is a matter of law, entitling Jackson to a favorable construction.

Texas has had a worker’s compensation statute for seventy years. But for a six year interlude, contribution has been a part of that law since article 8306, section 12c was adopted in 1917. Not until our holding today can a single case be found ever suggesting, much less holding, that the percentage of contribution from prior compen-sable injuries is to be subtracted from, as opposed to multiplied by, the current disability. With this condemning of the Pattern Jury Charges submission of the contribution percentage issue, I would respectfully inquire what are the trial bench and bar to do from this point forward? We are provided no answer by the majority opinion.

Although the statement of facts is absent, this court possesses as much information from the record forwarded in this case as did the court in Texas Employers Insurance Ass’n v. Holmes when it answered a certified question from the court of civil appeals as to how to calculate compensation in a situation of partial loss of use in a specific injury case. The Holmes court was able- to do it. So should we.

Finally, we come to the matter of disposition of this cause. The majority says “[hjaving held that the issues were susceptible to the interpretations of both Jackson and the courts below, the law is clear that we must affirm the judgments below in this case.” 689 S.W.2d at 412. The law is no such thing. In Northern Texas Traction Co. v. Armour & Co., an ambiguous verdict resulted in a remand, with the statement “[w]e regard the verdict as being ambiguous to an extent preclusive of that certainty which ought to be a part of administration of the law.” 288 S.W. at 146. No case cited by the majority as authority for rendition, least of all State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941), stands for the proposition that ambiguity exists on the basis of a judge’s subjective analysis of a jury verdict.

I would reverse the judgments of the courts below and render judgment that Delbert Jackson should have and recover compensation at the rate of $33.69 per week for the permanent partial incapacity of his hand.

WALLACE and ROBERTSON, JJ., join in this dissent.

      . In arguing that general injury cases should not be distinguished, the dissent .quotes Sowell v. Travelers Insurance Co., 374 S.W.2d 412, 416 (Tex.1963), saying "[s]ection 12c makes no distinction between specific and general injuries, and we are unwilling to write such a distinction into the statute.” In context, the court was merely holding that the insurer was entitled to a reduction for prior injuries regardless of whether the prior injury was specific or general, a point totally unrelated to any question here.

      . The dissenting opinion also relies on the rule of liberal construction of the Act, citing Texas Employers Insurance Ass’n v. Holmes, 145 Tex. 158, 196 S.W.2d 390 (1946). Holmes involved a calculation question completely removed from any factual ambiguity, and was clearly an interpretation of the statute itself. We, on the other hand, are trying to determine the extent of Jackson’s prior injuries, a purely factual matter.