author: FRANK A. ROPKE, Special Commissioner.

text:
    Gladys BISSELL (known as Gladys Whitfield), Appellant, v. E. P. GENTRY, Administrator, etc., Appellee.
    Court of Appeals of Kentucky.
    May 20, 1966.
    Charles M. Gabhart and Manny H. Frockt, Louisville, for appellant.
    Alfred W. Minish, Carrollton, for ap-pellee.
   FRANK A. ROPKE, Special Commissioner.

On September 14, 1956, Gladys Whitfield Bissell was granted an absolute divorce from George Fitch Bissell by a judgment of the Jefferson Circuit Court.

The judgment provided for restoration, under the provisions of KRS 403.060, by each to the other of property received one from the other and not otherwise disposed of at the commencement of the action. This statute reads as follows:

“Upon final judgment of divorce from the bonds of matrimony, each party shall be restored all the property, not disposed of at the beginning of the action, that he or she obtained from or through the other before or during the marriage, and in consideration of the marriage.”

For some time prior to September 14, 1956, George F. Bissell was employed by the Huber Motor Express Company, and he remained in its employ until his death on August 18, 1963, shortly following an automobile accident. During his employment a policy of insurance was issued to him by Republic National Life Insurance Company for which the employer paid. This was a part of so-called “fringe benefits,” a part of his contract of employment. This policy was in the sum of $4,500.00 with double indemnity for accidental death. The beneficiary named in the policy was Gladys Bis-sell, the then wife of George F. Bissell, and the name of the beneficiary was never changed following the divorce of September 14, 1956.

Following the death of George F. Bissell, E. P. Gentry was appointed by the Carroll County Court as Administrator of the estate of George F. Bissell and qualified as such.

Subsequently both the administrator and the ex-wife of the insured, Gladys Whitfield Bissell, now known as Gladys Whitfield, made claim upon the Republic National Insurance Company for payment of the policy. The insurance company paid the proceeds of $9,000.00 into court in this action, naming both claimants as defendants therein, and prayed the court to determine the rights of the parties thereto.

The court, in a well reasoned opinion, set out its findings of fact and conclusions of law, and entered judgment awarding the proceeds of the policy to E. P. Gentry, Administrator of the estate of George F. Bis-sell, and adjudged costs against Gladys Whitfield.

This court has held consistently that the interest of a spouse as beneficiary comes squarely within the restoration provi-vision of KRS 403.060, and as a result, every right of a divorced party as beneficiary of a policy of life insurance on the life of the other is extinguished, except in cases where the policy on the life of one of the parties is obtained during the marriage and the other pays the premiums during the marriage. In such case he or she is entitled to continue payments and receive the proceeds of the policy upon maturity.

For the first situation see Sea v. Conrad, 155 Ky. 51, 165 S.W. 622, 47 L.R.A.,N.S., 1074; Warren v. Spurlock’s Adm’r, 292 Ky. 688, 167 S.W.2d 858; Aetna Life Insurance Company v. Simmons’ Adm’x, Ky., 277 S.W.2d 13; Henderson v. Bauer, Ky., 362 S.W.2d 730; Salisbury v. Vick, Ky., 368 S.W.2d 317.

The other situation, in which the divorced spouse procured the policy and paid the premiums thereon, is set out in Ficke v. Prudential Ins. Co. of America, 305 Ky. 172, 202 S.W.2d 429, 175 A.L.R. 1215, and Johnson v. Johnson’s Adm’s, Ky., 297 S.W.2d 753. It is not essential that the named beneficiary (a divorced spouse) procure the policy if he or she paid the premiums.

There is a statement that neither Bissell nor his ex-wife paid any of the premiums on the policy in issue. It was a group policy furnished by Bissell’s employer as part of the terms of his employment. The employment of Bissell was the only consideration for issuing this policy and paying the premiums necessary to keep it in force. The result is that it is as though Bissell individually procured and paid for the policy.

In Salisbury v. Vick, Ky., 368 S.W.2d 317, this court said, “After the divorce, having been compelled by law to surrender her rights in the insurance contract, the former wife is a complete stranger to it.” And, citing Warren v. Spurlock’s Admr., 292 Ky. 668, 157 S.W.2d 858: “Under KRS 403.060(2) and 403.065, as construed in Warren v. Spurlock’s Adm’r., * * * and numerous other cases, every right appellee had in this insurance policy as a beneficiary was abrogated by the divorce”.

The judgment is affirmed.


source: Caselaw Access Project

author: MOREMEN, Chief Justice.

license: Public Domain

text:
    Ruby HOVIOUS, Appellant, v. H. B. RILEY, as Administrator, etc., et al., Appellee.
    Court of Appeals of Kentucky.
    May 20, 1966.
    James G. Sheehan, Jr., Danville, for appellant.
    Jackson D. Guerrant, John L. Ward, Dan-ville, for appellee.
   MOREMEN, Chief Justice.

Appellant, Ruby Hovious, was involved in an automobile accident and civil action for damages was filed. At the trial, counsel for the opposing side attempted to show that she was under the influence of intoxicating liquor at the time of the accident. A state trooper was introduced who described her physical appearance at the time from which it might be deduced that she was under the influence of intoxicants. In addition, the state trooper was permitted to testify over objection of appellant that she had refused to submit to a blood test after she was taken to a hospital. The question presented here is whether the court erred in admitting testimony concerning her refusal.

KRS 189.520 prohibits the operation of a vehicle on a highway by a person under the influence of intoxicating liquors or narcotic drugs. (KRS 189.990 fixes the penalty.) It also provides for tests of a defendant’s blood and fixes standards and suggests presumptions which might arise from various percentages of alcohol found in the bloodstream.

Section (6) of this section reads: “No person may be compelled to submit to any test specified in subsection (4) of this section, but his refusal to submit to such test may be commented upon by the prosecution in the trial against any person charged with operating any vehicle while under the influence of alcohol.” (Acts 1958, Chap. 126, effective 6-19-58.) The foregoing subsection was a departure from what had long been the law in this State. See Kentucky Statutes, Section 1645, and Criminal Code of Practice, Section 223.

KRS 421.225, re-compiled from KRS 455.090, 1962 Acts, Chapter 234, Section 62, which became effective January 1, 1963, reads in part:

“(1) In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create any presumption against him.”

The foregoing subsection which refuses to permit anyone to comment upon a person’s failure to testify has given force to that portion of Section 11 of the Constitution which simply states “He cannot be compelled to give evidence against himself,” and supports that section of the fifth amendment of the Constitution of the United States which deals with self-incrimination.

We have extended the immunity rule to civil as well as criminal cases. In Kindt v. Murphy, Judge, 312 Ky. 395, 227 S.W.2d 895, this rule was quoted with approval from Jones on Evidence:

“Accordingly, it was early declared, and has since been universally held, that the privilege against self-incrimination may be asserted as of right in any ordinary civil case. Further, that to bring a person within the exemption it is not necessary that his examination as a witness should be had in the course of a penal or criminal prosecution or that such should have been commenced and be actually pending. It is sufficient if there is a law creating the offense under which the witness may be prosecuted. Wig-more, Sec. 2252, points out that this constitutional sanction is a recognition of a principle and not a new creation; that the clauses, ‘the accused’ and ‘in criminal cases,’ protect equally a mere witness in a civil case when the fact asked for is a criminal one, and that the privilege extends to all manner of proceedings in which testimony is to be taken.”

That principle was re-affirmed in Akers v. Fuller, 312 Ky. 502, 228 S.W.2d 29.

It was noted above that § 11 of the state and Amendment 5 of the federal constitution provide that no one can be compelled to give evidence against himself, and, in order that the amendment not be denied its effectiveness, legislative action and judicial fiat have imposed the additional safeguard that no one should be permitted to comment on such a person’s failure to testify. It was pointed out in a footnote to Griffin v. State of California, 380 U.S. 609, at page 611, 85 S.Ct. 1229, 14 L.Ed.2d 106, that: “The legislatures or courts of 44 States have recognized that such comment is, in light of the privilege against self-incrimination, ‘an unwarrantable line of argument.’ ”

The Griffin case holds that the fifth amendment to the Constitution is made applicable to the states by the fourteenth amendment. The California Constitution provides in part: “ * * * in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.”

Griffin did not take the stand at the trial. The court instructed the jury, in short, that the jury could take into consideration such failure as tending to indicate the truth of evidence which had been given against him and which he could be reasonably expected to deny or explain because of facts within his knowledge. The Supreme Court noted in its opinion that comment on the refusal to testify is a remnant of the inquisitorial system of criminal justice which the fifth amendment outlaws, and cited Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed. 678. It was said that what the jury may infer, given no help from the court is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.

The decisive portion of the opinion reads:

“The question remains whether, statute or not, the comment rule, approved by California, violates the Fifth Amendment.
“We think it does. It is in substance a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify. No formal offer of proof is made as in other situations; but the prosecutor’s comment and the court’s acquiescence are the equivalent of an offer of evidence and its acceptance.”

So here we have a situation where a state constitution permitted comment upon the refusal to testify and the Supreme Court of the United States held such a procedure was in violation of the fifth amendment.

When we return to the facts of the case under consideration, we find that the court admitted evidence of appellant’s refusal to submit herself to a test which may have furnished proof that she had committed the crime of driving the motor vehicle while intoxicated. She had the right to refuse under the provisions of KRS 189.520, which conform to the mandate of § 11 of our Constitution. The section, however, attempts to render nugatory that part of our procedural safeguard which denies the right to any person to comment upon such a refusal.

Under the Constitution of this State and under the Constitution of the United States we are compelled to hold that subsection (6) of KRS 189.520 is unconstitutional and of no effect.

The judgment is therefore reversed.


author: CULLEN, Commissioner.

text:
    Ernest WATKINS, Appellant, v. John W. WINGO, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    May 20, 1966.

      Ernest Watkins, pro se.
    Robert Matthews, Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Ernest Watkins appeals from a judgment of the Lyon Circuit Court dismissing his petition for a writ of habeas corpus by which he sought release from confinement in the state penitentiary.

Watkins was sentenced to life imprisonment in 1943. In 1965, on a motion filed by Watkins under RCr 11.42, the Perry Circuit Court entered an order setting aside the 1943 judgment. However, in January 1966, on an appeal by the Commonwealth, this Court reversed the order. See Commonwealth of Kentucky v. Watkins, Ky., 398 S.W.2d 698. Watkins, who had been on bail during the pendency of the appeal, was returned to the penitentiary.

Watkins maintains that his present detention is illegal because no new order of commitment was issued after this court reversed the order of the Perry Circuit Court setting aside the 1943 judgment. He also asserts illegality arising from the alleged fact that he was returned to the penitentiary before the mandate was issued on this court’s opinion.

There is no merit in Watkins’ claims. RCr 11.42(8) provides in part that the final order of the trial court on a motion under this rule “shall remain suspended until final disposition of an appeal duly taken and perfected.” The order of the Perry Circuit Court never became operative because it remained in suspension until it was reversed. Not having become operative, it did not affect the validity of the 1943 judgment or of the commitment based on that judgment. The returning of Watkins to the penitentiary before issuance of the mandate on the appeal is of no significance because there remained in force at all times a valid judgment and commitment for his confinement.

The judgment is affirmed.


text:
    Mrs. Frank ALLEN, Appellant, v. COCA-COLA BOTTLING COMPANY, Inc., Appellee.
    Court of Appeals of Kentucky.
    May 20, 1966.

      Charles McConnell, Louisville, for appellant.
    Joseph E. Stopher, A. J. Deindoerfer, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellee.
   CULLEN, Commissioner.

In Mrs. Frank Allen’s action against the Coca Cola Bottling Company of Louisville, seeking damages for personal injuries alleged to have been sustained as a result of her swallowing a piece of glass contained in a bottled “coke” which Mrs. Allen purchased from a vending machine at a laundromat, the court directed a verdict for the defendant at the conclusion of the plaintiff’s evidence. Mrs. Allen has appealed from the judgment entered on that verdict, dismissing her complaint.

Mrs. Allen’s claim was based specifically on breach of implied warranty. The court directed the verdict against her on the sole ground that she could not assert a claim for breach of warranty against the bottling company because there was no privity of contract between her and the company (the laundromat operator being the retailer).

In Dealers Transport Company, Inc. v. General Dynamics Corporation et al., Ky., 402 S.W.2d 441 (petition for rehearing overruled and modified opinion delivered May 13, 1966), this court recognized the principle of “strict liability” in products liability cases. Privity is not required to hold the manufacturer liable to the consumer. It is sufficient that there be proof that the product was manufactured in a defective condition unreasonably dangerous to the user and that it reached the user without substantial change in that condition.

We think Mrs. Allen is entitled to litigate her case on the “strict liability” theory. The ground on which the trial court directed a verdict against her — absence of privity — is not a valid ground on which to reject her claim.

The judgment is reversed with directions for further proceedings in conformity with this opinion.


author: HILL, Judge.

text:
    Leonard FITZGERALD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 20, 1966.

      Donald D. Harkins, Begley & Harkins, Danville, for appellant.
    Robert Matthews, Atty. Gen., Joseph Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

This is an effort by appellant to avoid serving four years at hard labor in the State Reformatory, which was imposed upon him under a conviction for a violation of KRS 435.240(3) (a) for his failure to support his three infant children in obedience to a judgment of the Boyle Circuit Court in a divorce proceeding.

Appellant and his wife Mary Katherine were divorced by judgment of the Boyle Circuit Court September 1963. The original judgment awarded custody of their three small children to the mother and directed appellant to contribute $25 a week toward their support and maintenance. In the following December, the mother and father entered into an agreement reducing the weekly payments to $15. Thereafter, Mary Katherine married another Fitzgerald, a second cousin of appellant.

The appellant insists on this appeal that the indictment does not contain the “essential” elements of the crime charged and that the evidence on the trial was insufficient to convict.

The indictment charges that:

“On or about the 10th day of July 1965, in Boyle County, Kentucky, the above named defendant, being under order of the Boyle Circuit Court in a divorce action required to pay the sum of .$15.00 per week for his three children under sixteen years of age, did abandon said children by failing to comply with the order of said court. * * *”

Opposite, or just under the style of the case in the indictment, apparently on a line provided therefor on the printed forms, the above numbered section of the statute is written, but no reference is made to the statute in the accusatory part of it. The statute charged to have been violated, KRS 435.240(3) (a), provides:

“If a divorce has been granted by a court of competent jurisdiction, and thereafter the parent of any child under the age of sixteen years shall fail to comply with the orders of the court relative to the maintenance or support of the child as set forth in the judgment granting the divorce, while said child is in indigent or destitute circumstances * * the parent so doing shall be deemed guilty of a felony * *

Prior to the promulgation of Kentucky Rules of Criminal Procedure on January 1, 1963, this court interpreted Section 122 of the old Criminal Code of Practice as requiring an indictment to contain every essential element of the crime charged. It is now provided by RCr 6.10 that an indictment “shall be sufficient if it contains, a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged.”

It is further stipulated in RCr 13.06 that: “The forms contained in the Appendix of Forms are sufficient under these Rules and illustrate the simplicity of statement contemplated.”

The following illustrations listed under Form 15 (indictment) are examples of brevity and simplicity:

“Assault and Battery: ‘committed assault and battery upon John Jones.’
“Burglary: ‘burglarized the dwelling house of John Jones.’
“Murder: ‘murdered John Jones by shooting him.’
“Rape: ‘raped one Jane Jones, a female over 12.’ ”

From the foregoing illustrations the limpid fact emerges that in Kentucky criminal procedure an indictment is sufficient if it fairly informs the defendant of the nature of the crime with which he is charged. Any reasonable minded person knows the meaning of murder, rape, burglary and child desertion.

Furthermore, RCr 6.22 entitles the defendant in a criminal proceeding to have a bill of particulars if he entertains a doubt as to the nature of the crime charged.

In the present case, we conclude the indictment is sufficient.

We turn now to determine whether the evidence was sufficient to support the verdict. The statute under which appellant was tried requires proof that the child was in indigent or destitute circumstances before a parent may be convicted thereunder. In fact, Commonwealth v. O’Harrah, Ky., 262 S.W.2d 385 declared an act of 1950 was unconstitutional that did not contain a requirement of proof of indigency or destitution. And in Commonwealth v. Mason, Ky., 317 S.W.2d 166, it was decided that the defense of inability to pay must be considered available as a defense under the statute.

The evidence in the present case shows appellant paid $154 during the period the judgment required him to pay a total of $375, but the mother of the children shortly after the divorce from appellant had remarried a second cousin of his. The present husband has a job, and the proof shows without contradiction that the children are being well cared for from material and educational standpoints. So, the very foundation on which the constitutionality of the statute is based (indigence or destitution) not having been proven in this case, the conviction must fall. The fact the child involved in a prosecution of this nature is supported by the parent not on trial or one standing in loco parentis is a defense under the statute. Cf. Webb v. Commonwealth, 237 Ky. 141, 35 S.W.2d 14, and Brummitt v. Commonwealth, Ky., 357 S.W.2d 37.

The conclusions reached herein make it unnecessary to discuss other questions raised in the able and helpful briefs filed herein by both appellant and appellee.

The judgment is reversed. In the event the evidence is substantially the same upon retrial of this case, the trial court will direct a verdict of acquittal.


author: CLAY, Commissioner.

text:
    H. S. GEORGE, Appellant, v. KENTUCKY ALCOHOLIC BEVERAGE CONTROL BOARD et al.
    Court of Appeals of Kentucky.
    May 20, 1966.
    Theodore H. Lavit, Lebanon, for appellant.
    Frank M. Dailey, Frankfort, for appel-lees.
   CLAY, Commissioner.

We have before us a motion to dismiss this appeal, taken from a judgment of the Franklin Circuit Court. It affirmed an order of the Alcoholic Beverage Control Board granting a retail package liquor license to the applicant Netherland.

The license was granted to Nether-land after a hearing by the Board (under KRS 243.550). Appellant, a competitor, was the only protestant. He undertook to appeal to the circuit court from the Board’s order as permitted by KRS 243.560. The Board was made a party to this appeal but not Netherland, the applicant. From the order of the circuit court sustaining the Board, appellant took the appeal to this court (under KRS 243.590). Appellees take the position that since Netherland was a necessary party to the original appeal to the circuit court, and was not joined, that appeal was abortive, and therefore there is nothing for us to entertain on the present appeal. This position is clearly a sound one.

KRS 243.560(3), relating to appeals to the circuit court from an order of the Board, provides in part: “The board and the licensee or applicant shall be necessary parties to such appeals.” (Our emphasis) Obviously Netherland, being both the applicant and the licensee, was a most vitally interested party. While the statute characterizes him as a “necessary” party, in fact he was indispensable as a party to the appeal in the same way that a party is indispensable to a suit under CR 19.01. See Clay, Kentucky Practice, Vol. 6, CR 19.01, Comment 2. In his absence there could be no final adjudication on appeal adversely affecting Netherland’s rights.

The statute recognizes this, and the requirement of joining the applicant or licensee as a party to an appeal is mandatory. See Bauer v. Alcoholic Beverage Control Board, Ky., 320 S.W.2d 126. It is as essential to a proper appeal as the condition that such an appeal be taken within 10 days under KRS 243.560(2). A case directly in point is White v. Commonwealth, Ky., 287 S.W.2d 625. It involved an attempted appeal from the county court to the circuit court in a condemnation proceeding. KRS 177.087 provided that an appeal could be taken by (among other things) filing a “statement of the parties to the appeal”. This court said (page 626 of 287 S.W.2d):

“The right of appeal is purely statutory and one who seeks to avail himself of it must comply with the conditions set forth by the General Assembly. Louisville & N. R. Co. v. Caudill, 302 Ky. 255, 194 S.W.2d 508. As appellants did not file in the circuit court ‘a statement of the parties to the appeal’ as provided in KRS 177.087, that court properly dismissed the appeal.”

It is thus apparent that, had the question been raised in the Franklin Circuit Court, such court must necessarily have dismissed the appeal because not properly taken.

Appellant contends that appellees waived the defect of parties by not making an earlier motion to dismiss in the Franklin Circuit Court. He cites CR 21, which provides in part: “Misjoinder of parties is not ground for dismissal of any action.” The obvious answer is that this Rule relates to parties to an action, not an appeal. Even disregarding this vital distinction, the quoted provision does not apply to indispensable parties. See Clay, Kentucky Practice, Vol. 6, CR 21, Comment 2.

In any event, a party, and particularly a nonparty, could not waive the statutory conditions which limited appellant’s right of appeal. Especially is this indisputable after the time limit had run within which appellant could have complied. He seems to take the position that if appellees had made a motion to dismiss in the Franklin Circuit Court, thereby calling his attention to the fact that he had not properly taken an appeal, he might then have added Netherland as a party and cured the defect. This, of course, could not have been done because appellant’s time for taking his appeal had expired.

The appeal in this court is moot. Because of the absence of Netherland as a party in the proceeding below, there is nothing we could effectively adjudicate. Certainly we could not reverse the judgment and deprive him of his license. The attempted appeal here is as unavailing as the one in the circuit court.

The appeal is dismissed.

      . Netherland was not made a party appellee to this appeal under RCA 1.090, but of course could not have been so designated since he was not a party below.

      . It is questionable whether the Franklin Circuit Court had jurisdiction of the appeal, but it is unnecessary to resolve this question since the result we reach is the same.


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Robert W. SRYGLER et al., Appellees.
    Court of Appeals of Kentucky.
    May 20, 1966.
    H. C. Smith, Frankfort, Joseph R. Hud-dleston, Bowling Green, Tildón H. McMas-ters, Elizabethtown, for appellant.
    Davis Williams, Munfordville, for appel-lees.
   WADDILL, Commissioner.

In the construction of a highway designated as 1-65, appellant, Department of Highways, condemned 1.37 acres of a 10-acre tract located near Munfordville, in Hart County, which is owned by appellees, Robert and Maybelle Srygler. While neither appellees’ home nor any of the other buildings on this tract was taken by the condemnation proceeding, appellant has placed a 50-foot fill near appellees’ residence in constructing an overpass of U. S. Highway # 31 W and has caused large quantities of water to be drained from two interchanges onto appellees’ land. A civil engineer employed by appellant testified that this water is expected to be absorbed by natural seepage and evaporation.

Upon trial in the circuit court the verdict was as follows:

Before: $10,000.00
After: 3,500.00
Difference $ 6,500.00

It is contended that the award is excessive and that the evidence introduced in behalf of appellees is insufficient to sustain the jury’s finding that $10,000 was the fair market value of the tract immediately before institution of the condemnation proceeding. Appellant urges that the testimony of appellees’ witnesses as to a $10,000 or more value of the subject property has no probative value and therefore, since the jury was permitted to give this testimony more weight than it was entitled to receive, appellees have obtained an award in excess of the just compensation they should get for their property.

This contention is without substantial basis. Even appellant’s two evaluation witnesses testified that the before value of the property was $8,750 and $7,250. This testimony would strongly indicate that the values of from $10,000 to $13,000 which ap-pellees’ seven witnesses placed on the property were not exaggerated estimates. Moreover, several of appellees’ witnesses testified concerning their knowledge of comparable sales of real estate in Hart County and based their estimates of value on such comparable sales as: a 3-acre tract with improvements similar to and located near appellees’ property that sold in 1957 for $14,500; a 3-acre tract with a 5-room house that sold in 1962 for $9,500, and a 15-acre tract with improvements much less desirable than those on appellees’ tract that brought $14,500.

After a thorough consideration of the case we believe that the award, while liberal, is sustainable and is within the proper limits of testimony having probative value.

It is contended that the trial court erred in permitting appellees’ counsel, over objection, to question one of appellant’s witnesses concerning appellant’s method of selecting its contrast appraisers. While the type of questions propounded in this case were irrelevant and therefore improper, we find no prejudicial error since this witness answered that he did not know the procedure used by appellant in selecting its appraisers.

It is contended further that the trial court erred in permitting counsel for appellees to make, over objection, an improper and prejudicial argument of the case to the jury. Appellees’ counsel argued: that if appellees’ property had a rental value of $15.00 per month, in 12 months the property would earn $180; that based upon accepted business principles a person should receive 10% on his investment; that $180 capitalized at 10% would result in a value of $1800 for the property from a rental standpoint, and that this rationale tended to show the reasonableness of the after values placed upon this property by appellees’ witnesses. Appellant urges that, since it would have been improper to admit testimony of speculative income, it was prejudicially erroneous to allow any speculative argument to be made about the rental value to the jury. However, we have concluded that such an argument was not prejudicial because counsel may, as here, draw reasonable inferences and conclusions from the testimony introduced.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Raymond J. WESLEY, Appellant, v. BOARD OF EDUCATION OF NICHOLAS COUNTY et al., Appellees.
    Court of Appeals of Kentucky.
    May 20, 1966.
    Ben B. Fowler, Dailey & Fowler, Frankfort, for appellant.
    John C. Anggelis, Lexington, for ap-pellees.
   DAVIS, Commissioner.

Appellant Raymond J. Wesley was ousted from his position as superintendent of schools of Nicholas County by a four to three vote of the appellee Board of Education of Nicholas County. KRS 160.350. He brought this action in the Nicholas Circuit Court asserting that the Board’s action was illegal, but the judgment there was adverse to him; this appeal is from that adverse judgment.

Several purported grounds for reversal are presented, but our view of the case makes it necessary to consider only one of them, namely, whether a bare majority of the Board (four of 'seven members) was authorized to oust the appellant.

Except when boards of education are merged, and then only for an interim period, the membership of any board of education in this .state is fixed at five by KRS 160.160. When an independent school district is merged with a county district, as authorized by KRS 160.040, the respective members of the merging boards may serve to completion the terms for which they were elected. Prior to this litigation the Carlisle Independent Board of Education and the Board of Education of Nicholas County were merged by appropriate action of the two boards. For a time the members of both boards comprised the new Board of Education of Nicholas County, with a total of ten persons on the new board.

The ouster charges were filed against appellant at a time when the total membership of the board had fallen to seven by reason of expiration of the terms of three of the members of the former Carlisle Independent Board. The hearing on the ouster charges was conducted by the seven-member board, and the ouster ordered by a vote of four to three of those seven.

KRS 160.350 embraces the legislative procedure whereby an ouster of a superintendent of schools may be accomplished. Among other things, the cited section provides :

“A superintendent of schools may be removed for cause by a vote of four members of a board of education.” (KRS 160.350).

It is the appellant’s contention that the requirement of four affirmative votes before ouster may be had reflects a legislative intent that more than a bare majority of the board’s membersfyip must concur to effect an ouster. Since the usual board has five members, it would follow that 80% of the board’s membership must vote to oust the superintendent before ouster may be effective.

Countering this, the appellees urge that “four” means “four.” Therefore, it is reasoned by appellees, so long as four members of a board constitute a majority of the board, a consensus by four to oust is enough.

It must be conceded that respectable arguments may be had for either side of the question at hand. After careful consideration we are persuaded that the appellant’s position is the sound and proper one. Without undertaking an exhaustive exegesis of the arguments pro and con, we briefly summarize the bases for our conclusion.

Since the question before us involves statutory construction we initiate our inquiry from the fundamental touchstone that the will or intent of the legislature must be a pole star to guide us. Cf. Smith v. Wilson, Ky., 269 S.W.2d 255; Davis v. Commonwealth Life Ins. Co., Ky., 284 S.W.2d 809, 54 A.L.R.2d 1286; Gateway Const. Co. v. Wallbaum, Ky., 356 S.W.2d 247. We think it is not debatable that ordinarily a bare majority of votes is sufficient to officially determine the action of a board or other parliamentary body in a democratic system. Yet, in the case of ouster of a superintendent of schools by a board of education (KRS 160.350) the legislature has specifically required that 80% of the usual five-member board must agree before ouster can be completed. Why?

We think the answer is to be found in the legislature’s recognition of the need for assuring stability in the administration of public school affairs. All will agree that the office of county school superintendent is of great significance and public concern. It is substantially impossible for the individual members of the board to obtain the familiarity with the myriad of school problems which the superintendent must have if he is to perform his task efficiently. Except in rare instances, the superintendent is possessed of professional training and experience in school matters far beyond that of the board members. (Consider the statutory qualifications for any school superintendent vis-a-vis those for board members. KRS 160.350; 160.180). School administration, usually equated in the public’s mind with the person of the superintendent, necessarily encompasses controversial matters. That these controversies are often volatile and colored by sectional and personal interests is too well known to deny. These periods of displeasure, fortunately, usually are not long-lasting. We think the legislature evinced its awareness of these facts of life, and placed a safety-valve in KRS 160.350 designed to guard against precipitate “firing” of school superintendents.

It is certain that the legislature required four votes (80%) of a five-member board to dismiss a school superintendent. Is there any reasonable basis to suppose that the legislature intended that a bare majority should possess the ouster power as respects a board having more than five members? We are not able to perceive one. Indeed, during the transition period accompanying merger, there are many reasons to suggest that more than ever there exists a need for the 80% requirement. It is during this interim that the “merged” members know that they will not be able to seek election in the same familiar territorial boundary; that half of them will not be members of the board when the temporary “merged” status is completed.

Without further belaboring the point, we think there is no sound basis for concluding that the legislature used “four” in KRS 160.350 to mean “four” in case of all-sized boards. Rather, it is our view that the “four” there means “80%” — which is the ratio it bears to the normal five-member board. The statutes do not advert to the ouster procedure required in boards having more than five members. The construction urged by appellees would lead to the result that 80% of the votes must concur to oust the superintendent in five-member board cases (the predominant and usual situation) while requiring only four of seven (slightly more than 57%) in the case at bar. In our view this would lead to an unreasonable result. We have often said that statutes will not be given a strict or literal reading where to do so would lead to an absurd or unreasonable conclusion. Cf. Commonwealth of Ky., Dept. of Highways v. Wilkins, Ky., 320 S.W.2d 125; Kentucky Mountain Coal Company v. Witt, Ky., 358 S.W.2d 517; Jefferson County Board of Election Com’rs v. Russell, Ky., 323 S.W.2d 864.

The judgment is reversed, with directions to enter a new judgment rescinding the ouster order.


text:
    CITY OF LOUISVILLE et al., Appellants, v. Pernie L. KERR et al., Appellees.
    Court of Appeals of Kentucky.
    May 20, 1966.

      Eugene H. Alvey, Shrader R. Miller, James W. Stites, Kennedy Helm, Jr., Louisville, for appellants.
    Herman E. Frick, Louisville, for appel-lees.
   HILL, Judge.

This is an appeal from a judgment refusing to close a portion of “old” Grade Lane bordering and outside the city limits of the City of Louisville in a suit brought by the City pursuant to KRS 93.360. The area sought to be closed is desired for the extension of runway 11-29 of Standiford Field. Jurisdiction over territory outside the city is claimed under KRS Chapter 100. Defendants, appellees here, reside outside the city limits but within the “block” containing that portion of “old” Grade Lane to be closed.

“Old” Grade Lane runs, generally, in a north-south direction, passing through the easterly end of Standiford Field. So far as applicable here, Standiford Field abuts on the west side of “old” Grade Lane for its entire length. The airport boundary runs along Grade Lane for some distance and then runs in an easterly direction from Grade Lane along the north side of appel-lees’ property. Thus, appellees’ property is bounded by Standiford Field on the north and (across “old” Grade Lane) on the west. Immediately south of appellees’ property, Tuberose Avenue runs in an easterly direction from “old” Grade Lane. “New” Grade Lane springs from the easterly side of “old” Grade Lane at a point south of Tuberose Avenue and runs north for some distance, then it turns west and rejoins “old” Grade Lane north of Standiford Field. Tuberose Avenue runs from “old” Grade Lane to “new” Grade Lane on the south of appellees’ property.

“New” Grade Lane was built by cooperative efforts of the City, the Fiscal Court of Jefferson County, the Federal Aviation Agency, and the Kentucky Department of Highways at a cost of $475,000.

Land preparation and paving of the extension are estimated to cost $1,500,000 and were well under way at the time of the trial of this case in circuit court. In addition, the Louisville and Jefferson County Air Board has acquired a strip approximately 400 feet wide and 3,000 feet long across the Kentucky Turnpike from the end of the runway and cleared it of some seventy-five residences to provide a clear zone for the approach to the runway. The approximate cost of this acquisition was $1,000,000.

So far as is applicable here, KRS 93.360 provides:

“(3) If all defendants are competent to act for themselves and consent in writing to the closing prayed for, the court shah render a decree accordingly, but without this consent the court shall hear proof made by the parties, and if satisfied from the evidence that the closing would be beneficial to the city and not injurious to any party not consenting, shall render a decree closing the street or alley.”

The appellees raised the question in the circuit court that notice of the proposed closing required by the statute was not given, and apparently it was not. The judgment appealed from found as a matter of fact that the closing would be beneficial to the City but also found it would be “injurious” to appellees. The judgment enjoined the closing of the Lane “until such time as all the provisions of KRS of Chapter 100 have been complied with.” All parties agree that provisions of Chapter 100 have been complied with subsequent to the judgment, and the injunctive portion of the judgment has dissolved by its own terms. Inasmuch .as appellees do not now argue the question of notice and the public agencies have expended large sums of money in execution of. the plan of extension, we shall examine only the evidence pertaining to the claimed injurious consequences to the appellees.

It is admitted by all parties that the proper parties have filed condemnation proceedings to acquire the identical property involved here. A judgment in the condemnation case has been entered although appel-lees are not parties in that proceeding. Had they been, the question on this appeal would now be moot. In addition, appellees contend their egress and ingress have been impaired, in that they must travel about 1,800 feet farther after the closing of the Lane in question; that fire fighting equipment will be required.to travel a greater distance to get to their property; and that the closing of the Lane will result in the obstruction of some ditches that drain the surface water from the area of their homes.

It may be fairly inferred from the contentions of both parties that appellees will have to travel about 1,800 feet farther than before. A dry run was made by the fire department which indicated it required thirty seconds more to travel the new route, but it is said by appellees the dry run was not a true test due to the disturbed condition of “old” Grade Lane pavement after construction was done on the extension of the runway. The evidence relative to interference of the drainage of surface water was not convincing or substantial. The ditches were closed at the time of the trial, but it is not shown any substantial surface water will be diverted onto appellees’ property after completion of the runway. So, boiled down to essentials, the evidence concerning the “injuries” to appellees relates only to their “access” to the outside world, which brings us to the subsidiary question: Was there an injury to the right of access of appellees within the meaning of KRS 93.360?

First, we should examine the nature of the right of access. The right of access, or ingress if you choose, of landowners along a city street is considered by this court to be identical to the right of landowners to the public ways system. Cf. Department of Highways v. Jackson, Ky., 302 S.W.2d 373 (1957) wherein it is stated: “We hereby abolish the distinction, and declare that the rule governing city streets shall be the same as that herein stated for county roads.” In a long line of cases, we have held that the landowner cannot complain so long as he has a reasonable access. Cf. Ex Parte Commonwealth, Ky., 291 S.W.2d 814; the Jackson case, supra; Commonwealth v. Carlisle, Ky., 363 S.W.2d 104 (1962); Commonwealth v. Raybourne, Ky., 364 S.W.2d 814 (1963); Commonwealth v. Slusher, Ky., 371 S.W.2d 851 (1963); Commonwealth Department of Highways, v. Fancher, Ky., 390 S.W.2d 164 (1965); and Commonwealth Department of Highways, v. Herndon, 378 S.W.2d 620 (1964).

In the light of the foregoing rule of reasonable access, we conclude from the evidence in the present case that the closing of the Lane in question will result in no injury to appellees within the meaning of KRS 93.360, and that they have not been deprived of “reasonable access” to the “public ways system.”

Appellees rely heavily on Gargan v. Louisville, N. A. & C. R. Co., 89 Ky. 212, 12 S.W. 259, 6 L.R.A. 340, but we think Gargan, so far as it is favorable to the position of appellees, is modified by Jackson, supra, although it is not listed among the opinions as having been overruled by Jackson.

The judgment is reversed with directions to enter judgment for appellants.


text:
    Millard BROWN and wife, Bernice Brown, Appellants, v. NOLAND COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    May 20, 1966.

      Marshall Funk, Bowling Green, Ma-honey, Jordan, Station & Smith, Boone, Iowa, for appellants.
    Bell, Orr & Reynolds, Bowling Green, for appellees.
   DAVIS, Commissioner.

The appellants Millard Brown and Bernice Brown, husband and wife, sued appellees Noland Company, Inc., Ulan K. Jones, Jr., and Continental Insurance Company, asserting tort liability of Noland Company and Jones arising out of an automobile accident, or alternatively contract liability against Continental on an asserted contract for settlement of the tort claim. The trial court sustained appellees’ motion to dismiss the action upon the pleadings. CR 12.03. This is a multiple claims action, but the judgment of the court dismissing the action in behalf of these appellants was appropriately made final as prescribed by CR 54.02(1).

The facts, as alleged in the complaint and amended complaint are that on August 23, 1962, a truck operated by appellee Jones as servant of appellee Noland Company, Inc., collided with a car in which the appellants were riding, thereby inflicting personal injuries upon appellants. The accident occurred in Kentucky. The appellants are residents of Iowa. Appel-lee Continental Insurance Company is the liability insurance carrier for the Noland Company, Inc. The pleadings seek recovery for property damage to the car of appellant Millard Brown and for personal injuries said to have been suffered by two infant children of the Browns who were passengers in the Brown car. The property damage claim and the personal injury claims of the infants are not before us on this appeal.

The present suit was not filed until January 21, 1964, more than a year after the accident occurred. By way of anticipatory pleading the complaint sought to assert facts upon which to support its allegations that the defendants are estopped from interposing the plea of the Statute of Limitation. KRS 413.140(1) (a). Alternatively, the appellants sought to base a claim for recovery upon an alleged contract of compromise if the court should adjudge that the one-year limitation statute foreclosed tort recovery.

The appellees filed a pleading denominated “Motion & Answer” by which they moved to dismiss the action upon four separately stated grounds, which we paraphrase. (1) no bond for costs had been filed as required by KRS 453.220 (a bond was filed and this point is not on appeal); (2) the complaint and amended complaint fail to state a cause of action upon which relief can be granted; (3) the alleged claims are barred by the limitation statutes, and (4) the Statute of Frauds bars recovery on the contract theory. The affirmative allegations of the complaint as amended were denied. Since the cause went off on the sufficiency of the pleadings, we must examine those pleadings to determine the issues before us.

We have no difficulty agreeing with the trial court on the point that the complaint as amended fails to allege facts sufficient to warrant an estoppel against a plea of the one-year statute of limitation on the tort claims of the appellants. Without reciting the allegations in full, it is fair to say of them that they simply amount to the assertion that the appellants did not realize that Kentucky’s limitation period for personal injury actions is one year, as opposed to Iowa’s limitation period of two years. There is no allegation that the adjuster for the liability carrier misrepresented any fact, nor indeed that he made any representations about a limitation period. We consider this case to be ruled by the tenets announced and followed in Cuppy v. General Accident Fire & Assurance Corp., Ky., 378 S.W.2d 629; Burke v. Blair, Ky., 349 S.W.2d 836; and Pospisil v. Miller, Ky., 343 S.W.2d 392.

The just cited opinions recognize the general rule that a party may be es-topped to plead limitations where he had induced inaction by the claimant by false representations or fraudulent concealment. As said in the Burke opinion:

“However, the fraudulent action must be of a character to prevent inquiry or elude an investigation or otherwise mislead the party having cause of action, and such party is under the duty to exercise reasonable care and diligence.” Op.Cit., 349 S.W.2d 838.

The allegations of the pleadings fall short of asserting that the adjuster (or anyone else) was guilty of false representations or fraudulent concealment.

As noted, the complaint does undertake to plead, in the alternative, a contractual liability based upon a claimed offer and acceptance of a compromise of all claims for $15,000. Summarizing the allegations on this phase of the case, we observe that it is alleged that: in June or July, 1963, the adjuster for Continental made a “firm offer” to settle all claims involved for $15,000; the adjuster requested appellants to * * * take their time and consider the offer and advise whether it was accepted or rejected at their convenience and no time limit was imposed on the offer, nor was the matter of Limitations (sic) mentioned;” the $15,000 offer was never withdrawn; on November 25, 1963, the appellants “ * * * advised the defendants through their said agent and otherwise, that they accepted the $15,000.00 offer in settlement in accordance with its terms;” by letter of December 4, 1963, the present appellees denied all claims and repudiated the $15,000 offer and assigned as their reason the statute of limitation.

It will be observed that the complaint as amended asserts a “firm” offer of $15,000, coupled with a representation that no time limit was imposed on the offer. We regard this an an allegation of an offered accord and satisfaction upon payment of the agreed sum of $15,000. With respect to such an offer it is written in 1 Am.Jur.2d, Accord and Satisfaction, Sec. 52, p. 349:

“An accord is as much a contract as any other agreement, and an action may be maintained against the party in default for the breach or nonperformance of an accord under the ordinary principles of the law of contracts. In the absence of statute, if the debtor breaks a contract which is an accord to be satisfied by a future stated performance, the creditor has alternative rights; he can enforce either the original duty or the accord.”

The same view is announced in Restatement, Contracts, Section 417. The rule is recognized in Barret v. Clarke, 226 Ky. 109, 9 S.W.2d 1091, although there it is dealt with as an exception to the general rule. In this connection, see Whayne Supply Co. v. Gregory, Ky., 291 S.W.2d 835, in which is a quotation from Elliott v. Dazey, 19 Ky. (3 T.B.Mon.) 268, indicating that a mere accord, without satisfaction, is no plea in bar, and assigning as one reason for the rule that the unsatisfied accord may not be the basis for a suit on the accord. We regard that reasoning as unsound and to the extent that Whayne Supply Co. supra, and Elliott, supra, may appear to be in conflict with the rule as quoted from 1 Am.Jur.2d, Accord and Satisfaction, Section 52, p. 349, they are overruled.

It is well settled that an offer may be accepted within a reasonable time, unless the offer prescribes a certain time limitation, either expressly or by usage or custom. See 17 Am.Jur.2d, Contracts, Section 35, p. 373; 17 C.J.S. Contracts § 51, p. 715; United States v. Wadlington, Ky., 333 S.W.2d 771, 773. Generally, what is “reasonable” is considered a question of fact, not one of law. See Restatement, Contracts, Sec. 40(2) in which it is written:

“What is a reasonable time is a question of fact, depending on the nature of the contract proposed, the usages of the business and other circumstances of the case which the offeree at the time of his acceptance either knows or has reason to know.”

It is our view that the allegations of the complaint as amended are sufficient to present a factual question whether the claimed acceptance of the claimed offer was accomplished in a reasonable time.

We are unable to accept appellees’ contention that the asserted contract was without consideration. This situation differs from those in which it is claimed that an adjuster promised to “settle” in the future, but left the amount and extent of the settlement for future agreement. That was the factual situation in Cuppy v. General Accident Fire & Life Assurance Company, Ky., 378 S.W.2d 629; Burke v. Blair, Ky., 349 S.W.2d 836; and Pospisil v. Miller, Ky., 343 S.W.2d 392. Those decisions are not dispositive here on the consideration question.

Neither do we find merit in appellees’ argument that the Statute of Frauds [KRS 371.010(4)] is a fatal bar to appellants. The alleged offer of compromise made by the adjuster was not a promise to answer for the debt, default or misdoing of another within the purview of that statute. Rather, the adjuster was acting as agent for his principal, Continental, and his alleged offer was as if made by Continental. In reason, the alleged offer was also as if made by the assured appel-lees, Noland Company, Inc., and Jones, since the insurance adjuster was acting upon their behalf in the matter of undertaking to settle the claim.

The judgment is reversed for such further proceedings as may be appropriate for adjudication of the claimed contract right to recover $15,000 in full settlement of all claims.


text:
    William Charles JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 20, 1966.

      William E. Scent, Reed and Scent, Pa-ducah, for appellant.
    Robert Matthews, Atty. Gen., Robert D. Preston, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

Appellant was tried jointly with his code-fendants, Hamilton and Shelby, for storehouse breaking of which they were all convicted and given four-year sentences. No motion was made for a separate trial under RCr 9.16. Appellant did not testify.

A number of “points” are argued' by appellant. The first is that the trial court erred in overruling his motion for acquittal at the conclusion of the evidence for the Commonwealth.

We begin with the evidence for the Commonwealth in chief. There was evidence damaging to appellant by Hamilton (a codefendant) given after the Commonwealth closed its case, but we shall not consider this evidence in resolving the first question but discuss it later under another point.

On the night of August 25, 1965, a place known as the Young Men’s Sportsman’s Club at 400 South 7th Street in Paducah, Kentucky, was broken into, and a black and white portable television set and thirteen full quarts and seven partial quarts of whiskey were taken therefrom. Appellant resided in a rooming house across the street from the Club. At about 12:30 a. m., the night of the break-in, he was standing on the street near the Club when the man in charge locked it for the night. Appellant advised the man to “lock it up tight,” but we attach little significance to' this remark.

Floyd Robinson, another tenant of the rooming house in which appellant resided, was introduced by the Commonwealth. He testified he was with appellant from 11:00 p. m. to 5:00 a. m. the night of the break-in. However, he practically admitted on cross-examination there may have been a period during that time when “they were sitting drinking at a girl’s house” that he was not with appellant. He also testified that about 2:00 p. m. the day after the break-in, Hamilton came to his room inquiring of the location of appellant’s room, that he advised him of its location. Hamilton left for about two minutes and on his return offered Robinson some whiskey. They sat “around drinking” for' about twenty minutes. Hamilton asked Robinson if he would “help him some,” and he answered “yes.” He later testified Hamilton asked his help with “the bag and TV.” Hamilton left with the remark: “Just a minute and I will be right back.” He did not return, but shortly Shelby came into Robinson’s room and asked the latter to help him carry the television and bag downstairs to an automobile, which he did. Robinson said the television set was black and white like the one missing from the Club, but he did not know what was in the bag.

John Smith, another Commonwealth witness, testified that in the afternoon following the break-in, he heard appellant and Hamilton in an argument. He stated appellant told him “somebody broke into his (appellant’s) room,” and wanted to know whether Smith had seen Hamilton. Smith was asked this question and made the following answer:

“Q. What did you say about the Young Men’s Sportsman’s Club?
“A. He said that they had pulled a job.”

And then he elaborated his answer in the following words:

“A. All right. I said I was standing outside of the poolroom and Johnson came up, and he was looking for a certain fellow and said somebody had broke into his room while he went to school out to West Kentucky, and wanted to know had I seen him, and at the same time this certain person was sitting in a car asleep, which I had been trying to wake him up, and I told him where he was at and they had a few words. And Johnson made the statement that he ought to bust him up the side of his head. And they got out and they had a few words about some stuff, said they had pulled a job and while he was gone they busted in his room and got the stuff and got rid of it. Then there was another fellow and they had a few words and then they walked on away.”

Further on he said:

“He (meaning appellant) woke him up, I don’t know how he woke him up so quick. Anyhow, he punched him and the fellow woke up, and I had been out there shaking on him and couldn’t wake him up, but the minute he touched him— he said ‘look here,’ and the guy turned over and he asked where was the stuff and the guy said he didn’t know, and they had a few words there.”

The trial court would not permit Smith to give the names of the two persons referred to in his testimony, and we think this was error. Any objectionable phase of his testimony could have been cured by a proper admonition.

We think the testimonies of Robinson and Smith dovetail to give a logical and reasonable picture of the stolen property being taken from the room of appellant and disposed of without cutting in the appellant. This conclusion may be drawn alone from the statements and admissions of appellant contained in the testimony of Smith.

It is concluded the evidence was amply sufficient to convict appellant and that the trial court properly overruled his motion for acquittal at the close of the case for the Commonwealth. Cf. Baker v. Commonwealth, Ky., 307 S.W.2d 773 (1957); Mason v. Commonwealth, Ky., 357 S.W.2d 667 (1962); Harlan v. Commonwealth, 253 Ky. 1, 68 S.W.2d 443 (1934); Byrd v. Commonwealth, Ky., 283 S.W.2d 191 (1955); Carr v. Commonwealth, 307 Ky. 207, 210 S.W.2d 778 (1948); Parsley v. Commonwealth, Ky., 273 S.W.2d 372 (1954); and Hampton v. Commonwealth, 308 Ky. 270, 214 S.W.2d 272 (1948).

Appellant’s second “point” is thus stated: “Johnson did no act after the close of the Commonwealth’s case in chief that constituted a waiver of his acquittal motion.”

The conclusions reached under “point” one render the question of waiver a moot one. The third “point” discussed by appellant is a continuation of the first two in that he contends this court should direct a judgment n. o. v. as in civil eases. The answer being, of course, if he was not entitled to prevail on his motion for acquittal at the close of the Commonwealth’s evidence, his position has certainly not improved. Indeed, it has deteriorated as we shall see later.

The interesting question is presented in appellant’s fourth “point” that “the evidence introduced by Johnson’s codefendant cannot be used to complete the Commonwealth’s case against Johnson.” The fourth “point” is a two-prong thrust: First, that the evidence given by the codefendant Hamilton could not operate to waive Johnson’s motion for acquittal; and secondly, the trial court should have given Johnson’s requested instruction to disregard Hamilton’s evidence in determining the guilt or innocence of Johnson. As for the first “prong,” it is sufficient to say the case against Johnson was sufficiently “complete” without Hamilton’s evidence as heretofore observed, and it is not imperative that we say whether or not the testimony of Hamilton operated to waive appellant’s motion for acquittal, although for all practical purposes we answer the question in the negative in discussing the competency of the testimony of Hamilton later on.

The second “prong” of appellant’s fourth “point” assails the failure of the trial court to give appellant’s offered instruction to disregard Hamilton’s evidence as it pertained to Johnson. There was no objection or motion for admonition to the jury by appellant to any of Hamilton’s evidence. His motion for an instruction to the jury relative to Hamilton’s evidence came too late. Cf. Clements v. Commonwealth, Ky., 384 S.W.2d 299 (1964), wherein it is said: “The law is well settled that a defendant waives his right to an admonition or discharge of the jury by not promptly asking for it.” Also see Adams v. Commonwealth, Ky., 261 S.W.2d 811 (1953), and Neely v. Commonwealth, Ky., 325 S.W.2d 79 (1959).

Another contention relied on by appellant but not specifically listed in the “points” and discussed at some length by both appellant and appellee merits our comment as it pertains to the consequence of the evidence of codefendant Hamilton on appellant’s case.

Appellant contends the evidence of Hamilton, his codefendant, cannot be used against him to bolster the Commonwealth’s case after he (appellant) stood on his motion for acquittal and declined to testify, and that to permit evidence of a codefendant would result in his having to take the witness stand in violation of the fifth amendment to the Constitution of the United States.

For appellee it is argued that the fifth amendment is personal to the defendant desiring to testify; that is, he cannot be compelled to give evidence against himself but may waive the right.

In discussing the fifth amendment, supra, it was said in Gordon v. Tracy, 194 Ky. 166, 238 S.W. 395 (1922):

“ * * * a constitutional provision that ‘no person be compelled to furnish evidence against himself,’ does not relate to questions of property, or business, or to the protection of other persons by the witness.”

It is well to keep in mind that appellant did not ask for a separate trial under RCr 9.16.

It must be assumed also that appellant was familiar with the provisions of KRS 421.225 which state: “In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf * *

Having entered his trial and declining to ask for a separate one, appellant should have anticipated his co-defendants would want to testify in their own behalf and, perchance, their evidence might incriminate him. He assumed the hazards of a joint trial.

This subject is discussed in 23 C.J.S. Criminal Law § 804(2) in this language:

“Statutes making an accused person in a criminal trial a competent witness at his own request, but not otherwise, have been construed to permit him to testify voluntarily against a codefendant with whom he is jointly tried, or against himself; and to render any of a plurality of defendants on trial competent to testify on behalf of the government, provided only that he testifies at his own request. Under such a statute, testimony voluntarily given by an accused on his own behalf or on behalf of the prosecution is admissible against his codefendant.
* * * * * *
“The propriety of admitting the testimony of an accused, in his own behalf, has been recognized, even though such testimony may be injurious to his co-defendant.”

Some support of the rule outlined in Corpus Juris may be found in Owen v. Commonwealth, 181 Ky. 257, 204 S.W. 162. See also Degnan v. United States, 2 Cir., 271 F. 291.

We are persuaded that under the circumstances of the present case the evidence of appellant’s codefendant was competent notwithstanding its injurious consequence on the appellant.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    James Vincent BARNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 20, 1966.

      R. B. Bertram, Bertram & Bertram, Monticello, for appellant.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., James A. Hicks, Commonwealth’s Atty., Albany, for appel-lee.
   PALMORE, Judge.

The appellant, James Vincent Barnett, was indicted for the murder of his sister’s husband, Steve Davis. He was found guilty of voluntary manslaughter and sentenced to 21 years in prison. KRS 435.-020. As the conviction must be reversed, we shall discuss only those subjects of claimed error that may be encountered again in the course of a new trial.

Appellant and the Davises lived next door to each other in a rural section of Wayne County. The two dwellings were about 30 or 40 feet apart .and belonged to the Davises. Some bootlegging was going on at one or both places, as a result of which charges were pending in the county court against the Davises. Davis had steady employment at Monticello, but appellant was unemployed (ostensibly so, at least). In the late afternoon of Monday, August 4, 1964, when Davis got home from work, his wife and brother-in-law (appellant) were over at appellant’s house with several “guests,” one of whom already had succumbed to the soporific qualities of the day’s bill of fare, which happened to be beer, and was fast asleep in the front porch swing. After putting some groceries in his home, Davis joined the group next door and they all proceeded to have a few beers.

As the evening wore on and after some of the visitors had departed, hostilities broke out between Davis and Loma Leah, his wife, and culminated with Davis sitting on top of Loma Leah in the front or side yard of appellant’s house holding her by the hair of the head with one fist and clouting her in the face with the other. At this stage of the proceedings appellant, who in the meantime had gone into his house and procured a pistol, struck Davis on the face or head with the pistol, whereupon Davis got up and went into his own house. According to both appellant and Loma Leah, he returned at once to the kitchen door and began firing a gun in their direction. Appellant returned fire and Davis fell dead inside the door with a bullet in his heart.

There were no eyewitness accounts excepting those of appellant and his sister, Loma Leah Davis. Of the two other persons present when the battle brewed, one was still asleep on the porch swing and the other says he left and saw no more after Davis came out of the house and seized Loma Leah by the hair.

Following the shooting, appellant and his sister awakened the slumbering visitor and the three of them fled to Tennessee. They soon returned and were arrested. They were jointly indicted for the murder of Davis, but this proceeding involves the separate trial of appellant alone.

The first claim of error is that the court permitted numerous references to the drinking going on at the scene of the shooting, creating a prejudicial effect on the minds of the jurors of this dry county. It may well be that appellant was cast in an unfortunate light, but we do not know how the drinking could have been separated from the general circumstances with which the jury needed to be acquainted in order to determine just what happened and why. Clearly the alcoholic backdrop was an integral part of the res gestae. Cf. Asher v. Commonwealth, Ky., 275 S.W.2d 416 (1955); Broughton v. Commonwealth, 309 Ky. 127, 216 S.W.2d 935 (1949); Baker v. Commonwealth, 305 Ky. 88, 202 S.W.2d 1010 (1947).

On cross-examination, after first indicating that he did not know what the quarrel between the Davises was about, appellant was asked if he had not told certain officers that it arose out of the liquor charges pending against Loma Leah in the county court. At this point, before the question was answered, the trial court admonished the jurors that in determining appellant’s guilt or innocence they should not consider “whether or not he was involved in the transportation of liquor or his sister either.” Appellant contends that this reference to his being involved in the liquor business was prejudicial.

The court might appropriately have withheld an admonition until such time as the Commonwealth saw fit to introduce an impeaching contradiction (which in fact it never did). However, we do not think it was improper for the trial judge to give a preliminary caveat of this sort in an effort to prevent the jury’s being led astray in the meantime. It is true that there had been no direct evidence that appellant had been or was illicitly trafficking in alcoholic beverages, but surely the jurors were alive and alert enough to have inferred it already from the outward circumstances of the case. Here was a group of people visiting him at his home, for what purpose he professed not to know, and one of whom he could not even identify, staying there for several hours (two were there in mid-afternoon), and drinking a “couple of cases” of beer. We are inclined to feel that appellant was in dire need of the admonition whether he knew it or not.

As it developed, Loma Leah Davis admitted that she and the decedent had been bootlegging in order to get enough money to pay for their new house, and that this was the source of the trouble between them. She says she wanted to quit the bootlegging or leave him, and that he was afraid of losing his job as a result of the prosecution pending against them. Appellant contends all of this was irrelevant and prejudicial but that he was forced to bring it out after the Commonwealth had injected the subject in the manner we have outlined above. But in our opinion it was not irrelevant. The evidence was sufficient to support a reasonable inference that all three of them were participating directly or indirectly in the illegal sale of beer on premises owned by the Davises and occupied by appellant and that this circumstance was at least a partial or contributing factor in the killing of Davis, whether it was done in self-defense or otherwise.

At this point of the discussion we may as well comment on the prosecutor’s closing summation to the jury, in which he said appellant “was getting along pretty well bootlegging, except getting caught a time or two, so he didn’t like that.” There was nothing in the testimony to suggest that appellant had been “caught a time or two” and certainly it would not have been competent had it been offered. It was also the theory of the Commonwealth’s Attorney, and he stated it as his personal belief, that Davis never had a gun in his hand before he was shot, that appellant and Loma Leah called him to the door and shot him down in cold blood so that he would not break up their profitable bootlegging business, and that they planted the gun found in his dead hand afterward. All of this we consider to be beyond the bounds of a proper argument based upon the evidence and reasonable inferences to be drawn from it. “The attorney may properly argue the evidence to the jury and may properly argue what the evidence shows, but he should not state to the jury his personal beliefs not based on the evidence in the case.” Winkler v. Commonwealth, 229 Ky. 708, 17 S.W.2d 999, 1000 (1929).

Counsel for appellant did not raise any timely objection during the course of the closing argument, so we do not reverse on that ground. But lest it occasion a mistrial this type of argument should not be made again.

The witness Herschel Alexander, who left the scene just before the shooting, was put on the stand by the Commonwealth and apparently did not testify to suit the prosecution. Without any motion by the Commonwealth the trial court declared him to be a hostile witness and, over objection, permitted leading questions on direct examination. Since he never did say anything damaging to appellant, this action was not prejudicial. Nevertheless, there is nothing in the transcript to suggest that he was hostile or evasive, and if upon a retrial his testimony is substantially the same he should not be so considered.

Appellant contends in substance that the evidence was not sufficient to justify a conviction. It is a fundamental principle, however, that if one person admits having killed another intentionally but in justifiable self-defense the jury need not accept his excuse, and may find him guilty of murder or manslaughter notwithstanding. Cf. Baker v. Commonwealth, Ky., 322 S.W.2d 119 (1959); Spencer v. Commonwealth, Ky., 349 S.W.2d 841 (1961).

At the conclusion of all the testimony the jurors were sent to the scene of the shooting for a view in the presence of the appellant, the trial judge, the sheriff, and some of the lawyers. While they were there the judge directed the sheriff to point out certain things to the jurors, including the place on the ground where on the morning after the shooting he had found two cigarette lighters, some hair, and marks of a scuffle. It so happens that appellant had described the scrimmage between the Davises as having occurred at a different place in the yard from that at which the sheriff testified he observed these marks of combat, and different also from the spot at which Loma Leah said it took place. The exact location could not, of course, have made a great deal of difference in itself, but it became of importance as it bore on the credibility of appellant’s version of the fatal events. To illustrate the point, we quote as follows from the closing speech of the Commonwealth’s Attorney:

“This Defendant tells this Jury that he came out without a gun and was setting astraddle of his sister, where? In front of the old house? No sir, between the old house and the new house where Steve Davis lived. One says he came out with a gun, one says he didn’t. One says he had her down in front of the old house, in the yard in front of the old house, right in front of the porch and one says he had her down between the old house and the new house. This Jury has been out there and there is a good little distance between those two places. The truth is easy and simple to follow, but when you spin a web of lies, you are going to get trapped.”

In Underwood v. Commonwealth, 119 Ky. 384, 84 S.W. 310, 312, 27 Ky.Law Rep. 8 (1905), it was said that the trial court may in its discretion conduct the trial at the scene of the alleged crime. That may be so, but a jury view is not to be equated with the reception of evidence, which always is subject to the procedural safeguards of examination, cross-examination, and rebuttal testimony. This was not an instance in which the court chose to hear the testimony of witnesses at the scene.

In the few criminal cases in this jurisdiction in which the problem has arisen the court found the particular occurrences to have been non-prejudicial. In Underwood v. Commonwealth, 119 Ky. 384, 84 S.W. 310, 27 Ky.Law Rep. 8 (1905), for example, it was the defendant himself who supplemented his testimony at the scene. In Young v. Commonwealth, 245 Ky. 570, 53 S.W.2d 963 (1932), at a view conducted pri- or to the reception of evidence, two officers endeavored to point out a wall at which the accused was made to stand following his arrest. The matter was clarified in subsequent testimony, and there was no dispute concerning the location of the wall. Neither did it become in any way material to the issues of the case. In Roberts v. Commonwealth, 301 Ky. 294, 191 S.W.2d 242 (1945), it was held that the features of a small restaurant pointed out to the jurors by the sheriff were things they would have seen anyway.

It has been made abundantly clear in civil cases that what is observed in the course of a jury view is not evidence. “It is the place, and the place only, that the court is authorized to send the jury to see.” Meier v. Weikel, 59 S.W. 496, 22 Ky.Law Rep. 953 (1900). “The purpose of the view is not to supply evidence, but to present the physical facts in order that they [the jurors] may understand the situation and appraise and apply the evidence in a more intelligent way.” City of Somerset v. Guffey, 248 Ky. 415, 58 S.W.2d 606, 607 (1933). “In this state, that purpose is to enable the jurors better to understand and weigh the evidence adduced in the court room. * * * What is observed by them in the course of the view is not evidence.” Commonwealth, Dept. of Highways v. Hackworth, Ky., 400 S.W.2d 217, 220 (1966). See also the recent case of Juett’s Adm’x v. Calhoun, Ky., (1966), in which it was held that chalk marks indicating cracks on the walls of a house that had been damaged by nearby blasting operations conveyed a message and were prejudicial to the defendant.

There is no reason for any difference in this respect between civil and criminal proceedings. KRS 29.301, the statute applicable to civil trials, contemplates that the judge will not accompany the viewing party, and it provides that “no person” other than the officer in charge “shall speak to them on any subject connected with the trial.” The criminal statute, KRS 29.268, requires the judge, the defendant, and counsel for each side to attend, but like KRS 29.301 it authorizes only “the place” to be shown the jury and provides in no uncertain terms as follows (emphasis added) : “The officers must be sworn to suffer no person to speak to, or communicate with, the jury on any subject connected with the trial, nor do so themselves, but shall merely show the place to he viewed,” etc.

A principal reason for the position taken by this court on the subject of the jury view is that a reasonable and effective right of appeal demands all things of importance in the course of the trial to be kept within reach of a tangible and visible record that can be reviewed by the appellate court. Cf. Pierson v. Commonwealth, Dept. of Highways, Ky., 350 S.W.2d 487, 489 (1961).

In view of the conflict in evidence concerning the place at which the scuffle between the Davises took place, and its consequent significance with regard to the credibility of the defense testimony in general, we hold it was prejudicial error for the trial court to permit the sheriff in effect to supplement his testimony during the course of the view.

We deem it immaterial that associate counsel for appellant did not object at the scene (his principal counsel promptly objected and moved for a mistrial when he was advised of the incident upon return of the viewing party to the court house). As pointed out in Collins v. Sparks, Ky., 310 S.W.2d 45, 48 (1958), when the trial judge himself initiates an action or makes a comment in the presence of the jury, counsel may not be in a position to make a challenge forthwith without aggravating the harm already done. He cannot afford to become engaged in a tilting match with the court itself. A “trial judge is charged with the knowledge that his conduct during a trial before a jury, other than rulings or decisions, is reviewable if preserved in the motion for a new trial.” Ibid. That precept, though so pronounced in a civil case, is no less applicable in a criminal trial.

In closing, perhaps it is well to reflect that this same principle underlies the ancient tradition of our courtroom practice in this state that it is best for the judge to leave the trial of a case to the lawyers unless and until they get out of hand. On several occasions in this instance the learned trial judge volunteered questions and comments to which appellant at times was hard put to make exception. This was entirely unnecessary. Both sides were represented by excellent counsel, and they did a splendid job of examining the witnesses. With the possible exception of the precautionary admonition to which we have heretofore alluded, they certainly did not need any unsolicited help from the bench.

The cause is reversed with directions for a new trial.


text:
    Melvin STILLPASS et al., Appellants, v. KENTON COUNTY AIRPORT BOARD, INC., Appellee.
    Court of Appeals of Kentucky.
    May 20, 1966.

      A. J. Jolly, Newport, for appellants.
    William McEvoy, Burlington, for appel-lee.
   PALMORE, Judge.

This is an attempt by the defendant landowners in a condemnation proceeding instituted under the provisions of KRS 183.133 (5) and KRS 177.081 et seq. to appeal from an order and amended order of the circuit court determining that the condemnor has the right to take the property in question and overruling the landowners’ motion for an injunction.

So far as the injunctive aspect of the proceeding is concerned, CR 65.07 provides the correct procedure for securing interlocutory relief from this court when it has been denied by the trial court. That procedure was not invoked in this case.

With respect to the determination that the condemnor has the right to take, although the order recites that it “constitutes a final adjudication of the issue of Appellee’s right to take, and that the only issue remaining in this case is the issue of just compensation,” nowhere in either of the orders is contained “a determination that there is no just reason for delay,” which is specifically required by CR 54.02 in order to render appealable any decision that does not dispose of all the issues in a case. Hence the attempted appeal must be dismissed. Peters v. Board of Education of Hardin County, Ky., 378 S.W.2d 638 (1964).

Since the parties have gone to the trouble of briefing the case on its merits, and in order to avoid the necessity of encountering the question again on a subsequent appeal, we shall nevertheless extend this opinion to clarify the present status of the issue of whether the condemnor has the right to take.

In accordance with KRS 177.082 the action was brought in the Boone County Court. As permitted by KRS 177.085, an answer was filed challenging the right to condemn. Without conducting a hearing on that issue, though a hearing is required by KRS 177.086(4), the county court appointed commissioners, received their report, and entered a judgment finding that the petitioner has the right to condemn and awarding the amount of compensation fixed by the commissioners’ report.

Conceiving that the judgment of the county court was void or, if only voidable, the court was acting so erroneously and in violation of their constitutional rights that extraordinary relief was authorized, the landowners filed in this court a petition for temporary and permanent writs to prohibit the county judge from authorizing the petitioner to take possession. Our opinion in Stillpass v. Niblack, Ky., 378 S.W.2d 794 (1964), pointed out that this is the wrong court in which to bring a prohibition suit against a county judge and that in any event a direct appeal to the circuit court in the condemnation proceeding was an adequate avenue of relief. It was noted also in that opinion that the landowners in the meantime had unsuccessfully sought a writ of prohibition from the Boone Circuit Court, but that the record before us did not disclose whether they had appealed either the county court judgment in the condemnation case or the circuit court judgment in the prohibition case.

The landowners did, of course, appeal from the county court judgment in the condemnation case, and in the circuit court they raised the issue of the appellee’s right to condemn, as they had the right to do, and moved for an injunction against the taking of possession until that question could be determined. This was the orderly and correct method of proceeding. When the right to take is in issue, and if the owner will be irreparably injured by an immediate loss of possession, he may ask for and is entitled to a temporary injunction at any time after he perfects an appeal to the circuit court. That is why a writ of prohibition is an unnecessary and therefore inappropriate remedy. Stillpass v. Niblack, Ky., 378 S.W.2d 794 (1964); Collins v. Commonwealth, Ky., 324 S.W.2d 406, 409 (1959).

In their prohibition proceeding in the Boone Circuit Court the landowners relied upon the alleged lack of condemnor’s right to take, hence the invalidity or error of the county court judgment, as their substantive ground for relief, demanding in the prayer of the complaint that the court “herein determine that the said Kenton County Airport Board, Inc., is without lawful authority to condemn the property of petitioners.” The final order of the circuit court denying prohibition categorically decided that issue by finding “that the Kenton County Airport Board, Inc., has the right to take.” There was no appeal from that judgment, and in denying injunctive relief in this case the trial court evidently felt that the issue of condemnor’s right to. take was res judicata.

Though it was not necessary for the circuit court in the prohibition case to reach the question of condemnor’s right to take (the remedy of prohibition being inappropriate and subject to denial anyway), since it was put in issue and expressly decided we might be inclined to say it was res judicata (or, technically, concluded by estoppel) except for the fact that the con-demnor was not a party to that proceeding. It was brought by the landowners against the county judge. One of the elementary essentials of estoppel by judgment is a substantial identity of parties. Freeman on Judgments, § 671. Whether the condem-nor participated in the defense of the prohibition case to such an extent as to become effectually a “party” and thus would have been bound by the judgment had it gone the other way we cannot say, because the proceedings below did not reach that stage of inquiry. See McKenzie v. Hinkle, 271 Ky. 587, 112 S.W.2d 1019, 1021 (1938), and Barnett v. Commonwealth, Ky., 348 S.W.2d 834 (1961), for discussions of the subject. For that reason, whether the judgment in the prohibition case concludes the issue of condemnor’s right to take remains a live coal in the hands of the trial court yet to be determined in this case. If it be decided in the negative, then the basic issue of the right to condemn must be heard and decided on its merits.

The attempted appeal is dismissed sua sponte.


text:
    MID-STATES ENTERPRISES, INCORPORATED, a Corporation, Appellant, v. W. C. HOUSE and Electronic Controls, Inc., a corporation, Appellees.
    Court of Appeals of Kentucky.
    May 20, 1966.

      William E. Sherwood, Gladney Harville, Stoll, Keenon & Park, Lexington, for appellant.
    J. Montjoy Trimble, Harry B. Miller, Miller, Griffin & Marks, Lexington, Gordon Daisley, Cameron, Kerkam & Sutton, Washington, D. C., for appellees.
   CLAY, Commissioner.

This is a suit to enjoin the individual and corporate defendants, appellees, from manufacturing, using, selling or leasing electric race track timing equipment which incorporates the plaintiff’s alleged “trade secrets”. The case was tried without a jury, and the circuit court denied plaintiff appellant relief.

Plaintiff conducts a business of leasing electronic devices to trotting tracks for the timing of harness racing. In 1952, it had perfected a device which apparently was superior to those formerly used. In that year it employed defendant House and he stayed in plaintiff’s employment for approximately 10 years. During that time he participated in the construction and wiring of assemblies that comprised the timer, and he also helped install and operate them. During the course of his employment he allegedly acquired intimate knowledge of what plaintiff claims to be two “trade secrets”.

Upon leaving plaintiff’s employment, House joined the corporate defendant (hereafter called Electronic), which is in a competing business. Electronic engaged a third party to construct timers for it, and plaintiff claims that the competing timer contained features such as those handled by it. The theory of plaintiff’s case seems to be that House acquired confidential information which he imparted to the party who was manufacturing- timers for Electronic, and this was some sort of breach of trust which gave plaintiff a right to eliminate this particular competition.

At this point it may be noted that after House had left his employment with the plaintiff he allegedly executed a written agreement in which he promised not to disclose secret or confidential information obtained by him. There is a sharp issue as to whether House signed this agreement. Without resolving that issue, the trial court disregarded the, contract for lack of consideration and because it was so unlimited in scope as to be against public policy. Clearly the trial court correctly disposed of this writing. It is plaintiff’s contention, however, that there is some sort of implied agreement and that House breached some sort of trust.

As the trial court found, the plaintiff’s case bogs down from beginning to end. In the first place, the two features of plaintiff’s timing device which it claims constitute “trade secrets” do not appear to be such at all. A trade secret is a novel and unique plan or process, tool, mechanism, or compound, known only to its owner and his employees, which has been perfected and appropriated by the exercise of individual ingenuity. See Progress Laundry Co. v. Hamilton, 208 Ky. 348, 270 S.W. 834. Equity will in the proper case protect the possessor from unfair exploitation, although the nature of the right protected is difficult to grasp. It is certainly something less than a patent right. Running through many cases we have examined is the element of fraudulent appropriation.

The first thing plaintiff must have proved is that the two features in its timer were actually “trade secrets”. It is difficult to see how they could be secrets when they consisted of component parts of a device which almost anyone could examine. House testified that he had not been told these were secrets and there was other evidence there was nothing confidential about them. The prints of the timer’s design were apparently available to many persons.

In the second place, there could be no novelty or uniqueness about the components of a device if they are known to others. There was ample evidence that the two features which plaintiff claims to be secrets were relatively well-known principles in the electronics field. While the application of these principles to a timer for harness racing may have been new and unique when first adopted by plaintiff, they lost their secret character by reason of general developments in the trade.

Thirdly, even assuming these were “trade secrets”, plaintiff failed to establish that House had appropriated them at all, much less fraudulently or in breach of faith. House himself testified that he did not have a working knowledge of the mechanisms involved (which were quite intricate and technical), and he also testified that he did not advise the competing designer about how to incorporate these features.

Finally, there was substantial evidence that plaintiff’s and defendants’ timers were not the same thing. While they both incorporated similar engineering principles, it cannot be said that defendants were using plaintiff’s “secrets”, if they were secrets.

We conclude there was ample evidence to support the findings of the circuit court that: plaintiff did not possess what properly might be termed “trade secrets”; House had not appropriated them; and neither House nor Electronic was using them. Further discussion of points raised is unnecessary.

The judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    James Ronald CREED, Appellant, v. The STATE of Texas, Appellee.
    No. 39583.
    Court of Criminal Appeals of Texas.
    May 11, 1966.
    Sam Barbaria, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. John Allison, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is aggravated assault; the punishment, three (3) months in jail.

The record on appeal contains no statement of facts or bills of exception. Appellant urges this Court to consider certáin' facts set out in his appellate brief but which are not a part of the record. This cannot be done. Sykes v. State, Tex.Cr.App., 396 S.W.2d 887; Lavan v. State, Tex.Cr.App., 363 S.W.2d 139.

Nothing being presented for review, the judgment is affirmed.


author: PER CURIAM.

text:
    Ex parte Jack RUBY.
    No. 39613.
    Court of Criminal Appeals of Texas.
    May 18, 1966.
    Phil Burleson, Dallas, Sam Houston Clinton, Jr., Austin, William M. Kunstler, New York City, Elmer Gertz, Chicago, Ill., Sol A. Dann, Detroit, Mich., for appellant.

      Henry Wade, Dist. Atty., William F. Alexander, Al Alsup and James M. Williamson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

This is a habeas corpus proceeding.

The petition was presented to Hon. Louis T. Holland, Judge of the 97th Judicial District of Texas, who was sitting for the Judge of the Criminal District Court No. 3 of Dallas County. Judge Holland granted the writ and after hearing denied the relief prayed for and remanded the petitioner to the custody of the Sheriff of Dallas County “for the sake of allowing petitioner appellate review.” This is an appeal from such order.

Jack Ruby is in the custody of the Sheriff of Dallas County, as the law requires him to be for this court to have jurisdiction of his appeal from his conviction, with punishment assessed at death, which is pending before this court in our Cause No. 37,900 styled Jack Rubenstein, alias Jack Ruby v. State of Texas.

This court is and has been since February 24, 1965, ready, able and willing to hear, consider and decide the questions raised in - said appeal in Cause No. 37,900, including the question of the claim of denial of due process and the validity of the judgment of conviction.

Controversy continues as to whether Hon. Joe Tonahill, one of appellant’s trial counsel, should be permitted to represent him on appeal from his conviction for murder.

Judge Holland has indicated his readiness to impanel a jury and determine the question of appellant’s present sanity or insanity. He is directed to do so without further delay and to certify to this court the result of such hearing.

At such hearing appellant’s trial attorney the Hon. Joe Tonahill as well as counsel representing appellant in this habeas corpus proceeding shall be given the opportunity to present any competent evidence relative to appellant’s present sanity.

The writ of habeas corpus is not available to secure a judicial determination of any question which, even if determined in the prisoner’s favor, could not result in his immediate discharge.

The judgment remanding appellant to the custody of the Sheriff of Dallas County is affirmed.

No motion for rehearing will be entertained.


author: DICE, Commissioner.

text:
    Adam RIVERA, Appellant, v. The STATE of Texas, Appellee.
    No. 39709.
    Court of Criminal Appeals of Texas.
    June 1, 1966.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The conviction is under Art. 802, Vernon’s Ann.P.C., for the misdemeanor offense of driving while intoxicated; the punishment, three days in jail and a fine of $125.

Trial was before the court on appellant’s plea of guilty. Judgment was rendered on December 9, 1965.

Motion for new trial was filed on December 20, 1965, and was overruled on January 10, 1966.

The order overruling the motion for new trial recites that the defendant in open court excepted and gave notice of appeal; and that he had theretofore entered into a bail bond guaranteeing his appearance in the cause. The court found such bond to be sufficient and no further bond was required of the defendant for this appeal.

The clerk was directed to prepare a record in the cause in accordance with Art. 40.09 of the Code of Criminal Procedure, said record to be prepared within 90 days.

The order further recites: “The defendant waived his right to be present for sentencing.”

The record on appeal does not include a sentence pronounced by the court, as required by Art. 40.09(1) C.C.P.

Notice of appeal having heen given after January 1, 1966, the preparation of the record and pronouncement of sentence is governed by the 1965 Code. Ross v. State, Tex.Cr.App., 403 S.W.2d 138, this day decided.

Art. 42.02 provides:

“A ‘sentence’ is the order of the court in a felony or misdemeanor case made in the presence of the defendant, except in misdemeanor cases where the maximum possible punishment is by fine only, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.”

Art. 42.03 C.C.P. provides, in part, as follows:

“If a new trial is not granted, nor judgment arrested in felony and misdemeanor cases, the sentence shall be pronounced in the presence of the defendant at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment * *

Art. 42.04 C.C.P. provides that sentence shall not be pronounced pending an appeal from a death penalty, but that in all other cases except where imposition, of sentence has been suspended in probation cases “sentence shall be pronounced before the appeal is taken.”

Art. 42.14 provides that the judgment and sentence in a misdemeanor case may be rendered in the absence of the defendant.

Without a sentence, this court is without jurisdiction of the appeal.

The appeal is dismissed.

Opinion approved by the Court.


text:
    Timothy A. O’CONNER, Appellant, v. The STATE of Texas, Appellee.
    No. 39497.
    Court of Criminal Appeals of Texas.
    May 25, 1966.
    Richard W. Vaughan, Houston (Court appointed on appeal only), for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Frank Price, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The prior opinion affirming the judgment of conviction and the mandate issued thereon are withdrawn.

Appellant was convicted, upon his plea of guilty and waiver of a trial by jury, of the offense of passing as true a forged instrument and his punishment was assessed at confinement in the penitentiary for a term of seven years.

The punishment of seven years is not authorized by Art. 996, Vernon’s Ann.P.C., which prescribes a maximum punishment of five years in the penitentiary for the offense. Reid v. State, 171 Tex.Cr.R. 678, 353 S.W.2d 225.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.