author: DOERNER, Commissioner.

text:
    James A. MILLER, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
    No. 31378.
    St. Louis Court of Appeals. Missouri.
    Feb. 18, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 12, 1964.
    John D. Schneider, St. Louis, for defendant-appellant.
    Eugene V. Krell, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

By this action plaintiff sought to recover for the damages to his automobile which he alleged resulted from being struck by defendant’s streetcar. Filed in the Magistrate Court, on appeal to the Circuit Court the case was tried to a jury. From a verdict and judgment in favor of plaintiff for $850 defendant brings this appeal.

About the only facts on which the parties agreed were that the collision occurred around noon on December 6, 1954; that the day was clear and the streets dry; and that the locale of the accident was in the City of St. Louis, at the intersection of Osage, an east-west street, with Broadway, a north-south thoroughfare. In brief, plaintiff’s version was that he had driven eastwardly on Osage and intended to make a left turn and go northwardly on Broadway; that he had come to a stop on defendant’s southbound tracks, waiting for the northbound traffic to clear; and that after he had been stopped in that position for an appreciable period of time his automobile was struck by defendant’s southbound streetcar. Defendant’s version, on the other hand, was that initially both plaintiff’s automobile and its streetcar had been proceeding southwardly on Broadway; that as they neared the intersection plaintiff’s automobile passed the streetcar to its right, then veered to the left in the path of and in close proximity to the streetcar, and suddenly slowed almost to a stop; and that despite an emergency braking effort made by the operator the inter-veiling distance was insufficient within which to bring the streetcar to a stop before if; struck plaintiff’s automobile.

The record discloses that there was substantial evidence warranting the jury to find these facts: Plaintiff drove eastwardly on Osage until he reached Broadway, where he brought his car to a stop in obedience -to a stop sign. While stopped he looked both to the north and south. He saw nothing approaching from the north, his left, but the traffic coming from the south, his right, was heavy. He proceeded eastwardly until his automobile straddled the southbound streetcar tracks, where he stopped to await an opening in the northbound traffic. When he came to a stop on the tracks he again looked to his left, and at that time saw defendant’s southbound streetcar, then stopped at a stop sign about 150 yards north of him. Thereafter he watched the northbound traffic and did not again observe the streetcar. According to plaintiff, he was stopped on the tracks for, “ * * * . Maybe almost a full minute * * * ” when the streetcar struck his automobile about the center of its left side, causing him to “fall out,” as he expressed it. '

Plaintiff neither pleaded nor proved any personal injuries, and sought recovery only for-the damages to his car. He submitted his' case on a verdict-directing instruction which required the jury to find, among other facts, that the operator of defendant’s streetcar, “ * * * saw, or in the exercise of ordinary care on his part could have seen plaintiff with his automobile in the aforesaid position of imminent peril * * * ” in time thereafter to have stopped the streetcar and avoided the collision. While presented in varying assignments, the sole point raised by defendant on appeal is that the humanitarian doctrine is not applicable where, as here, the only recovery sought is for damages to a chattel.

Defendant’s argument as contained in its brief proceeds as follows: That the humanitarian doctrine “ * * * was conceived to temper the ‘so called’ harsh doctrine of contributory negligence”; that “ * * * Its origin and purpose was to permit a person who was injured to recover even though he was contributorily negligent, if the defendant saw or could have seen him in peril, and had the means available to avoid the injury”; and that “It is only injury to (the) person that can justifiably abrogate the defense of contributory negligence. * * * ” This line of reasoning leads defendant to the conclusion that “Under the law of the State of Missouri, the proof of injury to (the) person is an essential element of the humanitarian submission. * * * ” In support of its contention that the humanitarian doctrine is applicable only when a recovery is sought for a personal injury defendant quotes from Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74, 78, the oft-repeated statement that, “ * * * Our humanitarian doctrine is reasoned upon precepts of humanity— that tender regard every man must have for the life and limb of other men in times of peace * * Defendant also cites such cases as Sheerin v. St. Louis Public Service Co., Mo., 300 S.W.2d 483, 489, in which appears the familiar passage that the humanitarian doctrine “ * * * ‘proceeds upon the precepts of humanity and of natural justice to the end that every person shall exercise ordinary care for the preservation of another after seeing him in peril or about to become imperiled, when such injury may be averted without injury to others.’ * * * ”

Defendant’s contentions require a brief review of the origin and development of what we presently term as the humanitarian doctrine. The authorities appear to agree that our true humanitarian doctrine, as distinguished from the rule of last clear chance, is a variant or extension of the latter. The factual situations which differentiate the three classic last chance cases from the humanitarian case, as described by one author, are set forth in the footnote. As known to every student of the law of torts, the origin of the last chance rule is universally attributed to the celebrated English case of Davies v. Mann, 10 M. & W. 546, 152 Reprint 588, 19 ERC 190. The rationale initially advanced for the result reached in Davies v. Mann, supra, was that of the defendant’s proximate, as contrasted with the plaintiff’s remote, negligence. This basis for allowing a negligent plaintiff to recover from a negligent defendant was adopted in Missouri in Adams v. Wiggins Ferry Co., 27 Mo. 95. In the interest of brevity we will not attempt to trace at length the evolution in this state of the true humanitarian doctrine, and refer those who would more exhaustively explore the subject to other and more learned sources. We need only note, in passing, that in its development in Missouri it was successively extended from the predicate of proximate-remote cause, through the stages of discovered peril, and discoverable peril (where a duty to look existed), and that it culminated in the landmark case of Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482.

The importance of that case in the evolution of the doctrine lies in the fact that it eliminated obliviousness or inextricability as constitutive elements of an action, and made plaintiff’s position of peril the chief basic fact of liability. As stated in Faught v. Washam, Mo., 329 S.W.2d 588, 596, “ * * * obliviousness and inextricability have not been essential to recovery under our humanitarian doctrine since ‘the principal opinion in Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, overruled prior cases which had restricted the recognized causes of peril to obliviousness and inability to escape “and laid down the broad rule that it is of no consequence what brings about or continues the peril, even though it be sheer hardihood or recklessness. This covers the whole range of self-exposure to peril from mere negligent inattention to utter, audacious and continuing disregard of known and avoidable danger.” ’ * * *»

However, it is a matter of legal history that the term “humanitarian doctrine” originated long before the concept of the principal of law bearing that label, and that initially it was used as an alternative name for the last chance rule. So far as we have been able to determine the first use of the word “humane” with reference to the rule which permitted a negligent plaintiff to recover from a negligent defendant was by this court in 1885 in Kelley v. Union Ry. & Trans. Co., 18 Mo.App. 151. “Humanity” was first employed five years later in Kellny v. Missouri Pac. Ry. Co., 101 Mo. 67, 13 S.W. 806, 8 L.R.A. 783. And the first use of the complete term was in Gebhardt v. St. Louis Transit Co., 97 Mo.App. 373, 381, 71 S.W. 448, 450, decided in 1902, where in referring to the St. Louis vigilant watch ordinance this court said:

“Our understanding of the ordinance is, that as to individuals it is simply declamatory of the municipality’s approval of what is commonly called 'the humanitarian, or last chance doctrine,’ to wit, that it is the duty of the motorman in charge of a running street car to keep a vigilant watch ahead, and when he sees, or by the exercise of due diligence could have seen, the peril of the plaintiff in time to have avoided injuring him, and fails to do so, the company will be liable, which is the law in this State. * * * ”

Thus from its very birth the term “humanitarian doctrine” was employed as another designation of the last chance rule. As late as 1923, one year before the decision in Banks v. Morris & Co., supra, it was stated in State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014, 1018, an en Banc opinion:

“Neither the petition nor the facts in this case make a case under the ‘humanitarian,’ ‘last clear chance,’ or ‘discovered peril’ doctrine. This doctrine of the law, by whatever name it may be known, contemplates that the party was in imminent peril, and could have been saved from such impending peril by the exercise of ordinary care by the one inflicting the injury.”

It must be understood, then, that when Judge Lamm, in Murphy v. Wabash R. R. Co., 228 Mo. 56, 80, 128 S.W. 481 and Dutcher v. Wabash R. R. Co., 241 Mo. 137, 158, 145 S.W. 63, penned the phrases which were merged into the statement that, “ * * Our humanitarian doctrine is reasoned upon precepts of humanity — that tender regard every man must have for the life and limb of other men in times of peace * * * ” he was not writing about the true humanitarian doctrine. Rather, as others had done, he employed the term as an alternate name for the last chance rule. The same observation is likewise true of the statement in Dey v. United Railways Co. of St. Louis, 140 Mo.App. 461, 467, 120 S.W. 134, 136, that the humanitarian doctrine “ * * * proceeds upon the precepts of humanity and of natural justice to the end that every person shall exercise ordinary care for the preservation of another after seeing him in peril or about to become imperilled, when such injury may be averted without injury to others. * * * ” For an examination of the factual situations which prevailed in the Murphy, Dutcher and Dey cases discloses that each of them fell within one or the other of the three classic last chance situations. That it was the last chance rule which was said to have been founded upon the precepts of humanity and of natural justice was recognized in Banks v. Morris & Co., supra, where it was said (257 S.W. 484) : * * * This calls for a brief consideration of the ‘humanitarian rule,’ as applied in this state. The doctrine from which the rule has been evolved is something more than an exception to the law of contributory negligence. * * * ” (Emphasis supplied.)

Of course, since Banks v. Morris & Co., supra, which' eliminated all issues as to cx-tricability and obliviousness and made the position of peril the chief fact of liability, there is some justification for our use of the term “humanitarian doctrine” in its generic sense to include last chance as well as true humanitarian cases. The result, however, as pointed out by McCleary, is that:

“ * * * Outside of Missouri, the profession still thinks of the humanitarian doctrine as limited to this one situation of constructive notice applied to mental obliviousness, the other three being considered actual last chance situations, whereas the bench and bar within the state think of the doctrine by virtue of the general formula which makes it applicable to all four situations. This is why it is so difficult for lawyers outside the State of Missouri to understand what a Missouri lawyer really means when he talks the language of the humanitarian doctrine.”

In the light of this background, if defendant employs the term “humanitarian doctrine” in its generic sense, then, in general, we agree with its contentions that the doctrine was conceived to temper the harsh rule of contributory negligence, and that its origin and purpose was to permit a recovery by a negligent plaintiff if the defendant saw or could have seen him in imminent peril and thereafter could have safcly averted the injury. But in view of its origin and application we cannot agree that only injury to the person will justify the negation of the defense of contributory negligence. It certainly is not correct as to last chance cases. After all, as pointed out by Parmele in 92 A.L.R. 47, 55, “ * * the donkey whose demise was the occasion of the decision in Davies v. Mann * * * was a chattel and not a person.” The first case in Missouri in which the rule established in Davies v. Mann was followed was one for the recovery of damages to a barge. Adams v. Wiggins Ferry Co., 27 Mo. 95. The same rule was subsequently applied regardless of whether the injury was to a person, as in Morrissey v. Wiggins Ferry Co., 43 Mo. 380, or to a chattel, as in Meyers v. Chicago, R. I. & Pac. Ry. Co., 59 Mo. 223. Later, when the concept of the last chance rule had further developed, the court justified the doctrine on the ground that it prevented and restrained the “ * * * disregard of human life or limb, or property * * (Emphasis supplied.) Kellny v. Missouri Pac. Ry. Co., 101 Mo. 67, 75, 13 S.W. 806, 808, 8 L.R.A. 783. In short, courts in Missouri and elsewhere have from its inception applied the last chance rule (the source of our true humanitarian doctrine) to an action where no personal injuries were involved and the only recovery sought was for damages to a chattel. 92 A.L.R. 47, 55; 65 C.J.S. Negligence § 136, p. 759; 38 Am.Jur., Negligence, Sec. 225, p. 911. And since Banks v. Morris & Co., supra, what we presently call our humanitarian doctrine has been applied or tacitly recognized as applicable where the only recovery sought or allowed was solely for injuries to chattels, without discussion of the issue here presented.

We reach, then, the ultimate question of whether the true humanitarian doctrine is applicable in an action where the only injury which occurred and the only recovery sought is for damages to a chattel. Defendant cites Glenn v. Offutt, Mo.App., 309 S.W.2d 366, but it appears to us that the factual situation there prevailing presented a last chance rather than a true humanitarian doctrine case. Perhaps we should add that we consider the instant case to present a true humanitarian situation because plaintiff was oblivious to the approach of the streetcar, Sheerin v. St. Louis Public Service Co., Mo., 300 S.W.2d 483, and the evidence leaves in doubt the question of whether plaintiff, had he awakened to the danger, could have extricated himself and his automobile therefrom by backing his car off of the tracks. There can be no doubt, and defendant does not contend otherwise, that the constitutive elements laid down in Banks v. Morris & Co., supra, are present.

We are not, of course unaware of the criticism of the humanitarian doctrine which has been repeatedly leveled at it since Banks v. Morris & Co., supra. Despite the fact that “ * * * The case made law of Missouri has widely extended the rule, far beyond its original concept * * *” it has been suggested that the elimination of the evils of the harsh rule of contributory negligence and those of the humanitarian doctrine may require legislative action. However, we are not asked to determine whether we should continue to follow the true humanitarian doctrine in all actions. What we are called upon to decide is whether the same principle of law should apply to actions for both personal injuries and property damages. The question presents no problem of determining whether human rights shall prevail over property rights. Rather, the issue is one of the uniformity of the law. So long as we continue to follow the true humanitarian doctrine we can see no logical reason why it should not apply to an action for an injury to a chattel as well as to one for personal injuries. If the doctrine proceeds upon precepts of humanity and of natural justice, why should not the same considerations govern in both cases? Is it humane, or just, to damage or destroy a chattel when the injury may be safely avoided ? We think not, and are of the opinion that both logic and justice compel the uniform application of the doctrine in both situations.

For the reasons stated the judgment should be affirmed, and the Commissioner so recommends.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

WOLFE, Acting P. J., ANDERSON, J., and J. CASEY WALSH, Special Judge, concur.

      . Parmele, 92 A.L.R. 47, 144; McCleary, The Basis of the Humanitarian Doctrine Reexamined, 5 Mo.L.Rev. 56, 67 (1940).

      .Becker, The Humanitarian Doctrine, 15 Mo.L.Rev. 359, 360 (1950), distinguishes last clear chance cases from the true humanitarian ease as follows: Case No. 1 — Tho peril to plaintiff’s person, property, or both results from physical helplessness caused by plaintiff’s lack of care. Defendant actually discovers the peril in time, thereafter, with safety to himself, to avoid damage to plaintiff by the exercise of care. This is a simple last clear chance case. Case No. 2 — The facts are the same as in Case 1, except that the defendant does not actually discover the peril, but in the exercise of care he should have discovered it in time to avoid damage, by the exercise of care and with safety to himself. As in Case 1, a majority of courts permit plaintiff to recover for personal injury or property damage under the last clear chance rule. Case No. S — The peril to plaintiff’s person, property or both, results from plaintiff’s negligent inattentiveness (obliviousness in Missouri judicial parlance). Defendant (as in Case 1) actually discovers the peril, in time, thereafter to avoid damage to plaintiff by the exercise of care. This is a last clear chance case. Case No. 4 • — -The injured person, his property, or both, are in a position of imminent peril as a result of his negligent inattentiveness (obliviousness). The injured party could extricate himself from his peril by his own efforts, if he were aware of his peril and used care. The defendant or party against whom claim for damages is made does not actually discover the peril of the injured party. Nevertheless, in the exercise of care the party causing injury should have discovered the peril in time thereafter with safety to himself by the use of care to have avoided injury to the plaintiff. In other words the party causing injury is also inattentive (oblivious). The Missouri courts permit recovery by the injured party in this case; and in this respect are more liberal than courts of other jurisdictions.

      . It will be recalled that in that case plaintiff’s fettered donkey, illegally left to graze on the side of a highway, was struck and killed by defendant’s horses and wagon traveling at a “smartish” pace. While the meager statement of facts leaves the question in doubt, it is interesting to note that the factual situation may have involved “discoverable” rather than “discovered” peril, for the opinion states (152 Repr. 588) that “it was proved that the driver was some little distance behind the horses.”

      . Trow v. Vermont Cent. R. R. Co., 24 Vt. 487.

      . McCleary, supra; Schwarz, The Questionable Birth of the Missouri Humanitarian Doctrine, 14 Mo.Bar Journ. 28 (1958).

      . Isabel v. Hannibal & St. Jos. R. R. Co., 60 Mo. 475.

      . Harlan v. St. Louis, K. C. & N. Ry. Co., 65 Mo. 22 (dictum); Kelley v. Hannibal & St. Jos. R. R. Co., 75 Mo. 138.

      . McCleary, supra, p. 79.

      . McKinney v. Robbins, Mo.App., 273 S.W.2d 513; Jacobson v. Graham Ship-by-Truck Co., Mo.App., 61 S.W.2d 401; Yontz v. Shernaman, Mo.App., 94 S.W.2d 917; Thomasson v. Henwood, 235 Mo.App. 1211, 146 S.W.2d 88; Roberts v. Chicago, B. & Q. R. Co., Mo.App., 266 S.W.2d 38. And see Wabash R. R. Co. v. Dannen Mills, Inc., 365 Mo. 827, 288 S.W.2d 926.

      .See the dissenting opinion of Ellison, C. J., in Perkins v. Terminal R. R. Ass’n, 340 Mo. 868, 102 S.W.2d 915, 932; Smith v. Siedhoff, Mo., 209 S.W.2d 233, 236; Sheerin v. St. Louis Public Service Co., Mo., 300 S.W.2d 483, 488; Footnote 1; McCleary, supra, p. 82; Becker, supra, p. 361; Schwarz, supra, p. 35.

      . Smith v. Siedhoff, Mo., 209 S.W.2d 233, 236.

      . Sheerin v. St. Louis Public Service Co., Mo., 300 S.W.2d 483, 488, Footnote 1.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Sallie LEMAR et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Paul E. Hunley, Dept, of Highways, Frankfort, for appellant.
    Julian H. Golden, Pineville, for appellees.
   MONTGOMERY, Judge.

Sallie Lemar and her husband were awarded $15,700 in a condemnation action to obtain right of way for the relocation and reconstruction of U. S. 119 between Pine-ville and Harlan. The Department of Highways on appeal contends that (1) Evidence of sale prices of comparable property should not have been rejected; (2) the resulting damages are excessive; and (3) the witnesses for the landowners were not properly qualified.

The admissibility of sale prices of comparable property has been considered recently. Commonwealth, Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851; Commonwealth, Dept. of Highways v. Howard, Ky., 375 S.W.2d 398; and Commonwealth, Dept. of Highways v. Raleigh, Ky., 375 S.W.2d 384. In the Slusher and Howard cases judgments of the Bell Circuit Court involving the same project were reversed on this same point.

Appellees’ property consisted of a 10-acre tract fronting on the highway. Access was over a neighbor’s land. The property, hillside land, lay on a cut ten to thirty feet higher than the grade of the existing road and extended in a gradual incline up the mountainside. A strip containing 2.23 acres, including all improvements, was taken. The improvements consisted of a 7-room frame house, twenty-five years old, a garage, outhouse, well and cow shed.

The evidence rejected concerned three sales of property in 1957, 1958, and 1959. The date of the taking was fixed as May 1, 1961. Appellant’s witnesses were not allowed to state the sale prices. Three sales of residence property on the same highway within three miles of the property taken were concerned. Each involved a small tract of land. The witnesses testified in detail concerning their knowledge of the properties. Under the principle stated in the cases cited, as well as in Commonwealth, Dept. of Highways v. Finley, Ky., 371 S.W.2d 854, and Commonwealth, Dept. of Highways v. Oakland United Baptist Church, Ky., 372 S.W.2d 412, the witnesses should have been permitted to testify to the sale prices of the property described as being comparable property. It was reversible error to reject this testimony.

Appellees admit by their motion to remit that the award of $700 for resulting damages is excessive. Since there will be a new trial in accord with Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, no further discussion of this point is necessary.

On the question concerning witness qualifications, see Commonwealth, Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851, and Commonwealth, Dept. of Highways v. Fister, Ky., 373 S.W.2d 720.

Judgment reversed for a new trial in conformity herewith.


text:
    J. S. CREECH et al., Appellants, v. Chester JACKSON et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.

      James S. Greene, Jr., William R. Forester, Harlan, for appellants.
    George E. Reams, Ray O. Shehan, Harlan, for appellees.
   MONTGOMERY, Judge.

By their complaint J. S. Creech et al., appellants, sought to be adjudged the owners of an undivided 7/11 interest in two tracts of land, to have their title thereto quieted against the claims of Chester and Cassie Jackson, and to recover their proportionate part of the market value of certain timber in the sum of $3,000 alleged to have been cut and removed by Walden and Milburn Holbrook. The Jacksons denied the title of appellants and asserted title in themselves. By counterclaim they asked that their title be quieted. The Holbrooks cross-claimed against the Jacksons. Judgment was entered dismissing the claim of appellants and quieting the title of the Jacksons, from which J. S. Creech et al. have appealed.

They are met by a motion to dismiss the appeal for failure to show the amount in controversy and for failure to move for an appeal. Consideration of the motion was passed to the merits of the case. In support of the motion it is urged that the individual interests of the owners of the undivided 7/11 interest in the timber cut cannot be considered together to establish the jurisdictional amount on appeal. There is an incidental question as to whether the amount sought in the complaint or in the amended complaint controls here.

On the latter, appellees point out that appellants, in their complaint, sought recovery of their proportionate part (7/11) of $3,000 ($1,909.09) for the timber cut. In an amended complaint, appellants alleged that they should recover $2,727.27 but prayed for recovery as in their original complaint. If there was nothing else to be considered, the motion would have to be sustained under authority of Ford v. Motors Insurance Corp., Ky., 306 S.W.2d 267. In that case the prayer of the complaint was for $809.22. It was alleged in an amended complaint that the plaintiff was damaged $1,900, but the prayer was for relief “as in his complaint.” The Court held that he was entitled to recover only $809.22.

Appellants, however, asked in their complaint that they be adjudged the joint owners of, and to have their title quieted to, an undivided 7/11 interest in two tracts of land, one containing 500 acres according to the description. In view of the failure of appellants to file a motion for an appeal, it is important to determine if the value of the amount or thing in controversy can be fixed, KRS 21.070, or if the thing in controversy is translatable into a monetary valuation. McLean v. Thurman, Ky., 273 S.W.2d 825.

The amount in controversy was not fixed by the court as authorized by KRS 21.070. The judgment must then be construed in connection with the pleadings. Rutherford v. Modern Bakery, Ky., 310 S.W.2d 274; Maslow Cooperage Corp. v. Hofgesang, Ky., 316 S.W.2d 126.

Before doing this, appellees’ objection must be considered that the appellants cannot combine or add together their undivided interests to obtain the jurisdictional amount of $2,500 to entitle them to an appeal as a matter of right. Four appellants own an undivided 1/11 interest each. One appellant owns an undivided 3/11 interest.

This presents a problem which has plagued the Court in many cases. Appellees rely on Armes v. Louisville Trust Company, 306 Ky. 155, 206 S.W.2d 487; and Pottinger v. Louisville Trust Company, 308 Ky. 437, 214 S.W.2d 612. The rule therein stated is that when two or more parties who might have brought separate actions join in one suit to recover a money judgment, the aggregate sum does not determine jurisdiction of this Court, but the claims of each are regarded as separate and distinct suits and cannot be united or aggregated for the purpose of giving this Court jurisdiction.

In each of those actions several plaintiffs suing for themselves individually and for other stockholders asserted a claim for $1,615,675 for alleged fraud in an exchange of stock. The amount recoverable by each individual was less than the jurisdictional amount for appeal. For the same reason an appeal was dismissed in Roth v. Stauble, Ky., 313 S.W.2d 269, where seven claimants under a prior will sought to appeal from the judgment of probate of a subsequent will. In the Louisville Trust Company cases the plaintiffs sought recovery for themselves and others in a fund far in excess of the necessary jurisdictional amount. In Roth v. Stauble, no significance was given to the fact that it was a will contest involving an estate exceeding the necessary jurisdictional amount.

In Shoenberg v. Lodenkemper’s Ex’r, 314 Ky. 105, 234 S.W.2d 501, the Court overruled a motion to dismiss an appeal in an action involving the construction of a will. The argument was made that there were twenty-four heirs at law who, under appellants’ contention, would share in a lapsed legacy, none of whom would receive as much as $200. The Court said:

“For the purpose of determining jurisdiction, however, the amount in controversy is not the amount to which each of the parties may be entitled upon distribution, it is the amount of the fund in the hands of the executor for distribution, which admittedly is sufficient to give this court jurisdiction to review the judgment.”

The Shoenberg case was recognized in Roth v. Stauble and distinguished therefrom on an erroneous basis.

The principle in the Shoenberg case is set out more fully in Farmers’ Loan and Trust Company v. Waterman, 106 U.S. 265, 1 S.Ct. 131, 27 L.Ed. 115, as follows:

“ * * * if the controversy is about a matter in which several parties are interested collectively under a common title, and in the decree, after establishing the common right, a division is made among the claimants according to their respective interests, this separation of the decree into parts will not prevent an appeal.”

To the same effect is Shields v. Thomas, 58 U.S. (17 Howard) 3, 15 L.Ed. 93.

In Overby v. Gordon, 177 U.S. 214, 20 S.Ct. 603, 44 L.Ed. 741, it was held that in a will contest the value of the estate fixed the amount in controversy for jurisdictional purposes rather than the amounts due each of several claimants. This ruling is in harmony with the Shoenberg case and contra to Roth v. Stauble. In principle it is opposed to the Louisville Trust Company cases.

In 2 Am.Jur., Appeal and Error, Section 56, pages 885 and 886, the suggested test in such cases is whether two or more persons suing claim property or money under one common right and the adverse party has no interest in its apportionment or distribution between or among them. If it is claimed under one common right, the claims or interests may be united to confer appellate jurisdiction. Here, the appellants claimed under a common right, the ownership of land and timber, and appellees have no interest in the apportionment. Hence, there is no objection to considering the aggregate of their proportionate part of the timber cut, $1,909.09, but this still falls short of the required jurisdictional amount of $2,500 for an appeal without a motion. Roth v. Stauble, Ky., 313 S.W.2d 269, is overruled.

However, the Court has previously taken judicial notice of the value of land in controversy in determining the jurisdictional amount on appeal. Bowling v. Bowling, Ky., 283 S.W.2d 837; Eversole v„ Combs, Ky., 287 S.W.2d 923; Smith v. Moss’ Adm’r, Ky., 301 S.W.2d 2. In each of those cases the land was considered as. having insufficient value, but no reason is shown why the Court cannot take judicial notice that land has sufficient value to establish the jurisdictional amount on appeal. Here, the title to two tracts of land, one containing 500 acres, is involved, in addition to the $1,909.09 value of timber cut, as shown by the pleadings. Assigning an absurd value of $1.50 per acre to the 500-acre tract would raise the value of the matter in controversy in excess of the amount required to appeal as a matter of right. The judgment when construed in connection with the pleadings established the necessary jurisdictional amount for appeal. The various aspects of the appeal having been considered at length, the motion to dismiss the appeal is overruled.

The principal question on the merits of the case is the determination of the location of a line dividing the lands claimed by appellants and the Jacksons, respectively. Ancillary questions involved the res adjudi-cata effect of a prior judgment involving the same line and the sufficiency of the title by record and by adverse possession. In detailed findings of fact, the Chancellor found that the line between the land of appellees, Chester and Cassie Jackson, and the land of the appellants ran from a double poplar north 48 degrees west 193 poles to a stake and was shown on the Lambert map in evidence as a line running from the mark “9X” in a northwesterly direction to the mark “10X.” No finding or conclusion was expressed with reference to a “still site” shown on the map near the line in controversy.

In summary, the Chancellor’s findings were that the line above described had been established as the dividing line between the lands in controversy by the record and judgment in the case of D. B. Creech v. Burt & Brabb Lumber Company and William Creech. The predecessors in title of appellants, William Creech claiming through E. T. Creech, opposed the predecessor in title of the Jacksons, D. B. Creech, in that lawsuit in 1908. The evidence in that ■suit shows that the controversial line had been established as an agreed line between the lands of D. B. Creech and E. T. Creech prior to 1908 and had so been recognized. Further, the Jacksons were found'to have a record title to the lands claimed by them and to have been “in the actual, visible, notorious and peaceable, continual and adverse possession thereof to well defined lines including the 193 pole line for more than 15 years at the commencement of this action.” The timber cut by the Holbrooks was found to be on the Jackson land.

The Chancellor concluded that E. T. Creech, appellants’ predecessor in title, was the real party in interest in the 1908 lawsuit. William Creech, the son of E. T., was a party defendant therein. The Chancellor found that E. T.’s participation in the conduct of the lawsuit was such as to bar his successors in title from questioning the line adjudged in that lawsuit.

Appellants and appellees agree that a judgment is not res adjudicata except as to parties and those in privity with a party to the judgment. Montgomery v. Taylor-Green Gas Co., Inc., 306 Ky. 256, 206 S.W.2d 919. In the case cited and in the other cases relied on by appellant, there was a lack of privity.

The rule is that one who defends or prosecutes an action, as ordinarily done by a party thereto, will not be permitted to litigate again the questions that were or could have been determined in the former proceedings on the pretext that he was not a formal party to that proceeding. Hopkins v. Jones, 193 Ky. 281, 235 S.W. 754; Amburgey v. Adams, 196 Ky. 646, 245 S.W. 514; Piney Oil & Gas Co. v. Scott, 258 Ky. 51, 79 S.W.2d 394. See also Barnett v. Commonwealth, Ky., 348 S.W.2d 834.

In the D. B. Creech v. Burt & Brabb Lumber Company case, William Creech defended unsuccessfully on the ground that certain logs were taken from the lands of E. T. Creech, his father, by his license. The location of E. T, Creech’s land, now claimed by appellants, and the license to take logs therefrom was the issue. E. T. Creech was not a party. The record indicates, however, that he was active in the defense of the case and prior thereto had assisted D. B. Creech in a survey to establish an agreed location of the controversial line. The conduct of E. T. Creech in the establishment of that line and his participation in that lawsuit are deemed sufficient to estop those who hold title in privity with him.

The Chancellor’s findings of fact as to the location of the controversial line are supported by evidence of record title and adverse possession and are bolstered by the judgment in the former action. They are sustainable under CR 52.01. Estill County Stone Company v. Hockensmith, Ky., 305 S.W.2d 107. His action in quieting the title of the Jacksons and in denying appellants’ judgment was correct.

Judgment affirmed.


author: THOMAS J. KNIGHT, Special Commissioner.

text:
    Modean POLIVICK, Appellant, v. John Lee POLIVICK, Jr., Appellee.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.
    Reed & Hines, Paducah, for appellant.
    M. C. Anderson, Wickliffe, for appellee,
   THOMAS J. KNIGHT, Special Commissioner.

This is an appeal from a judgment of the Carlisle Circuit Court denying a divorce and custody of her child to appellant and granting the divorce and custody of the child, a boy, to its father, appellee herein, on his counterclaim. This couple was married on March 24, 1956, and separated July 2, 1960. Their only child, Donald Floyd Polivick, was three years old when this suit was filed in July, 1960, and his custody is the only question involved in this appeal. The appellant contends that she is a fit and proper person to have this custody, while appellee contends that she is not, and that he is the proper one to have that custody.

During their married life this couple lived on a farm near Bardwell. He is a tenant farmer on the farm on which he lived, and his mother and father lived on an adjacent farm, and, so far as the record shows, all are still living at these places. During their married life appellant was employed at the Merit Clothing Company at Mayfield, to which place she commuted daily. After their separation appellant went to the home of her mother in Cairo, Illinois, and continued to commute from there to her job at Mayfield, a distance of about 38 miles. Later she left her employment at Mayfield and went to work for a clothing company at Mounds, Illinois, where ¡she still is, and she still commutes from Cairo, so far as the record shows. During the latter part of the time she worked at Mayfield her child was left during the day at a nursery provided by the Merit Clothing Company. At night she and the child lived with her mother in Cairo, and the child was also left with her mother at times during the day when he was not taken with her to Mayfield.

Appellant’s mother had an apartment in what is described in some of the evidence, and is referred to in appellee’s brief, as a very undesirable portion of Cairo. Her mother worked as a waitress at a restaurant in Cairo which is adjacent to if not operated by Club 18 where spirituous, vinous and malt liquors are sold, some of which was served in the restaurant where she worked. Later, she worked at Glenn’s Restaurant, which does not adjoin Club 18. There is testimony that at times while appellant’s mother was keeping the child in the absence of the child’s mother she, the grandmother, would take the child to the restaurant where she worked where he was exposed to undesirable environment. Sometimes the child was left with a negro man who worked about the restaurant or at Club 18, and with whom the boy had become acquainted. There was testimony that appellant’s mother, a widow, was often seen in company with Guy Beaver, a married man, and that there was some improper relationship between them. This was denied by both, but appellant admitted that she had been out in the car with her mother and Beaver.

There was considerable testimony taken in this case, but most of it related to> the grounds for divorce. It is clear from that testimony that this was an unhappy couple, that they did not get along well together, and that the chancellor was justified in granting appellee a divorce. However, since that is not the real question involved in this appeal, it is unncessary to summarize it. It is sufficient to say that while some of that testimony was intended to show that appellant was not a woman of the highest character, it does not raise more than a suspicion that she is not a fit person to have custody of this child. We think that under proper circumstances and conditions she could be entrusted with the custody of this child.

There are two well-settled principles of law which are paramount in these custody cases. One is that ordinarily custody of children of tender years should be given to the mother unless she is an unfit person to be given such custody. The other principle of law is that the welfare of the child is the paramount consideration.

After a careful consideration of all the evidence, we are convinced that appellant is not an unfit and improper person to have custody in this case, but that under the circumstances developed in this ease the welfare of the child would be best served if the custody is given to the father. We say this because appellant has led an unsettled life since her separation and divorce. If the father had sufficient income to pay her alimony so that she did not have to work and could make a regular home for the child, where the child could be under her supervision and care at all times, it might work out. But she has established a pattern of working as a seamstress in clothing factories and must leave the child in the care of others during a good part of the time, and she could not give the child the proper care. This was made manifest by the unfavorable conditions surrounding the child while she lived with her mother, a waitress, in Cairo.

On the contrary, the father is settled on a farm, and his mother and father live on an adjoining farm, and appellee’s mother will have the care and supervision of the child. It appears to us that these are more wholesome surroundings for this six-year-old boy than would be supplied by the mother in Cairo or that she would be apt to supply him while she is working in factories without a settled home. If this were a younger child, and a female, the mother would have a stronger case.

Generally, in custody cases the decision of the chancellor is more to be relied on and more apt to be correct than would be the decision of a higher court miles away. The chancellor saw, and no doubt knew, most of the parties; his decision should have great weight and should not be reversed unless it is clearly erroneous. CR 52.01. We cannot say it is clearly erroneous.

It may be that appellant may come back to Kentucky to live, as she says she expects to do at some future time. Or her circumstances, or the father’s circumstances, may change so that the child’s welfare may be better served by changing the custody of the child. The chancellor specifically reserved the right in his judgment to make any further orders with respect to the care, •custody and control of this child as the conditions of the parties and the interests ■of the child should justify. We think that is a wise provision in this case.

After a careful consideration of the whole case, we are of the opinion that the lower court reached a correct decision in this case, and that the judgment should be and it is affirmed.

The opinion is approved by the court, and the judgment is affirmed.


author: HENRY MEIGS, II, Special Commissioner.

text:
    James T. MORRISON et al., Appellants, v. Floyd HIBBARD, Appellee.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.

      Charles G. Cole, Jr., Barbourville, John M. Lyttle, Manchester, for appellants.
    Charles C. Smith, Neville Smith, Manchester, W. R. Fain, Jr., Clarksville, Tenn,, for appellee.
   HENRY MEIGS, II, Special Commissioner.

This is an appeal from a judgment for $6,000 obtained by appellee, Floyd Hibbard, for his personal injuries and property damage sustained when his car collided with the truck of William Hinkle and a truck owned by appellant Albert Kirts being operated by appellant James T. Morrison. A jury returned a verdict against Morrison and Kirts only, and they appeal.

At about 7:30 in the evening of November 20, 1959, appellant’s tractor-trailer truck was proceeding west on Kentucky Highway 80 between Manchester and London. Along a straight, level, dry stretch of road near Pigeonroost, in Clay County, the driver, Morrison, noticed a two-ton Ford coal truck stopped across the left lane of the highway with its rear end projecting to some extent across the center line and into his right-hand lane. There being no lights showing-on the coal truck, nor any flares set out in the road on either side of it, Morrison stopped his vehicle approximately 8-10 feet short of the Ford to determine what the situation presented. While calling to the driver of the other truck, Hinkle, Morrison observed the headlights of a car coming at a high rate of speed from the opposite direction in the lane obstructed by Hinkle’s truck a distance of some 250 yards away. To warn the oncoming motorist, Hibbard, Morrison turned his headlights on'and off several times, to which signal Hibbard responded by alternately lowering and raising his headlights by means of the dimmer switch.. At this point, Morrison testified, Hinkle was trying to back his truck further across the road, so that at one point the bed of the Hinkle truck extended into Morrison’s lane and then rolled back to position with the front wheels in a ditch just below the shoulder on the left side of the road.

Hinkle stated that his brakes had failed as he was attempting to turn his truck around in the road, thus causing the front end to go over the edge of the shoulder, that he had been there only five minutes and just had time enough before the Hibbard car struck his truck to turn out the lights, remove the ignition key and get out of the cab. He testified that Morrison stopped his truck just over the center line, called to him an offer of assistance and that there was not room between the rear end of his truck and Morrison’s truck to permit passage of a car.

Appellee, driving his 1958 Chevrolet toward Manchester, claiming to be blinded almost continuously by the lights of Morrison’s truck, testified he was driving between 40 and 45 mph, dimmed his lights several times, took his foot off the accelerator, saw the Morrison truck was in the middle of the road, but planned to put his right wheels off the paving and go on through. When within 20-30 yards of the Hinkle truck Hibbard heard his wife exclaim and first saw a wheel looming in front of him. The impact moved the Hinkle truck some eight feet up the road toward Manchester and diverted the Hibbard car into the front left side of Morrison’s truck. Ap-pellee’s car was extensively damaged, and he sustained injury to the sternum and brain concussion. Hinkle’s truck was considerably damaged, Morrison’s slightly. Found in the back seat of appellee's car was a beer case containing fourteen unopened bottles and nine empties, with one missing. He denied he had been drinking that day; he could account for only one bottle, the contents of which he said had been consumed by a hitchhiker. The odor of alcohol was present in the car, and an open, half-full can of beer rolled across the floor of the front seat when the door was opened.

Morrison and Kirts cross-claimed against Hinkle alleging sole negligence on his part and the joint negligence and contributory negligence of Hibbard. Hinkle’s cross-claim against Morrison and Kirts was peremptorily dismissed at the conclusion of all the evidence. Appellant’s motion for directed verdict as to appellee’s complaint was overruled.

We do not consider the matter of whether the defendant Hinkle was negligent, as there is no appeal from the judgment as to him. The principal questions raised by this appeal are (1) whether the defendant Morrison was guilty of negligence in stopping on the highway, and (2) whether plaintiff, Hibbard, was solely or contributorily negligent as a matter of law.

The answer to the first question was for the jury, but the instruction under which it was submitted is objectionable because it required the jury to determine, in addition to whether it was reasonably necessary under the circumstance for Morrison to stop, whether the brightness and attitude of his headlights prevented appellee from seeing the coal truck, and whether this was the proximate cause of the accident. There was no evidence that appellant’s lights were other than those required by law; and in the face of appellee’s claim to have been blinded by them, precautionary duties with respect to lights devolved upon him. Otherwise, such an instruction amounts to a direction that Morrison was negligent as a matter of law. Had it been established without contradiction that appellant Morrison was stopped in the middle or on ap-pellee’s side of the road presenting the glare of his headlights to the oncoming Hibbard, a direction of negligence per se would have been proper. Wilson v. Dalton’s Adm’r, 311 Ky. 285, 223 S.W.2d 978. Since there was a dispute as to whether a portion of appellant’s truck extended over the center line of the road, and as to whether there was reasonable necessity for stopping his truck because of an obstruction to its progress, the questions of this negligence should be submitted to the jury, together with the question as to whether appellant’s negligence was the proximate cause of the accident. Ashton v. Roop, Ky., 244 S.W.2d 727.

This brings us to a consideration of appellee’s contributory negligence. The evidence clearly shows that appellant Morrison took such measures as were available to give warning to appellee of a hazardous situation in the highway by turning his lights on and off four to six times. Hib-bard’s statement that he slackened speed but intended to put two wheels off the road and go on through is highly inconsistent with his assertion that he was continuously blinded by Morrison’s headlights and the physical evidence that the coal truck was moved, sideways, eight feet along the paving by the impact. To us this suggests a failure of the lookout duty and ordinary prudence in the operation of his car under all the circumstances. The instruction given as to the duties of appellee is erroneous in that it did not require him to keep a lookout ahead. The evidence of appellee’s blinded condition required the giving of an instruction on contributory negligence, and this was omitted. The instruction given and designated No. 4 required only that if the jury should believe Hibbard “was not guilty of contributory negligence,” they should find for him. This did not properly present the issues to the jury.

In earlier cases an absolute duty was placed upon the driver of an approaching vehicle blinded by glare of headlights to avoid a collision regardless of the character of the act which placed a stationary vehicle on the road. Freeman v. W. T. Sistrunk Co., 312 Ky. 438, 227 S.W.2d 979; Lexington-Hazard Express Co. v. Umberger, 243 Ky. 419, 48 S.W.2d 1066.

It is now generally accepted that a motorist, when blinded or his vision of the highway is obstructed by the headlights of another vehicle, has a duty to take such protective measures for his own safety as an ordinarily prudent driver would take under the same or similar circumstances. Duncan v. Wiseman Baking Co., Ky., 357 S.W.2d 694.

Here, although there may have been a failure of statutory or common law duties ón the part of both appellants and appellee, it cannot be said as a matter of law that such failure of either one, standing alone, was the cause of the accident; and thus, under proper instructions, it was for the jury to say whether the collision was caused by the negligence of appellant or appel-lee, or whether it was caused by the concurring or contributing negligence of both.

We are of the opinion that the instructions given by the trial court did not properly submit the issues for determination by the jury, and, accordingly, the judgment should be reversed with directions to grant a new trial.

The opinion is approved by the court, and the judgment’ is reversed.

STEWART, T., dissenting.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. J. E. KING et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Asst. Atty. Gen., Frankfort, Raleigh O. Jones, Lyndon, for appellant.
    William M. Deep, King, Deep & Brana-man, Henderson, for appellees.
    J. W. Blackburn, Louisville, for Federal Land Bank.
   WILLIAMS, Judge.

This condemnation action was instituted in the Henderson County Court by the Commonwealth of Kentucky, Department of Highways, appellant, against J. E. King and Gustava King, his wife, Frances Dem-pewolf, widow, and the Federal Land Bank of Louisville, appellees. The condemned land consisted of 12.67 acres of the landowners’ 145-acre farm, and two small easements to facilitate drainage construction necessary for the proper use of appellees’ remaining property.

The county court commissioners found $26,150.00 as the value of the property taken, and $7,233.00 as the value of the damages to the remaining property. Both parties appealed to circuit court.

In circuit court appellant’s witness, John True, an engineer for the Highway Department, on direct examination was allowed to testify from new plans which appellant offered as an exhibit, but which were not filed with the original complaint. On cross-examination the appellees discovered the new plans differed from the old and then objected to introduction of the new plans. The objection was sustained, and True was obliged to testify thereafter from the plans filed with the original complaint. The new plans were significant in that they provided for certain drainage facilities whereas the original plans did not.

The appellant then introduced two appraisal witnesses who were not allowed to testify concerning the value of the entire tract on the basis that the parties had previously agreed on the value of the land taken. Only testimony concerning the value of the remaining land was allowed.

The court instructed the jury that the measure of damages was the difference in value of the remaining land immediately before and after the taking, less any enhancement resulting from the improvement. The jury found $15,000.00 as the amount of damages to appellees’ remaining land.

The appellant contends that the circuit court erred:

. (1) In refusing to admit the new plans providing for drainage facilities;

(2) In refusing to allow appellant’s appraisal witness to testify as to the value of the entire tract just before the taking;

(3) In giving improper instructions.

We are of the opinion that the lower court erred in refusing to allow the highway engineer to testify from the new plans which were offered as an exhibit. The method or plan of work in constructing, maintaining, or repairing highways is in the discretion of the highway authorities, within the restrictions of the law. 40 C.J.S. Highways § 179. A right-of-way deed carries with it the right to use the'land deeded in such manner as is reasonably necessary in the construction and maintenance of the highway. Commonwealth v. Geary, Ky., 254 S.W.2d 477; Cartee, et al. v. Commonwealth of Kentucky, Department of Highways, Ky., 374 S.W.2d 860, decided January 24, 1964. Further, unless the deed so provides, the Commonwealth is not obligated to build according to its original plans or to build at all. Paducah Box and Basket Co., Inc. v. Commonwealth, Department of Highways, Ky., 344 S.W.2d 608. We conclude, therefore, that the engineer should have been permitted to testify concerning what was currently and actually being planned, and that the new plans should have been permitted to be filed as an exhibit.

In so holding we do not condone the act of waiting until the day of the trial ‘to apprise the landowners of a change in plans. They are entitled to enough time to prepare their defense with full knowledge of the plan of construction which is to be proved at the trial. In this case had the landowners made a motion for continuance it surely would have been granted. On the other hand, when the Commonwealth plans to construct a project in such manner as will alleviate certain possible damages it should be permitted to submit proof concerning such plans.

In county court the parties jointly moved the court to direct the commissioners to find the value of the property taken to be $26,-150.00. The county court entered an order directing the commissioners to find the value of the land taken as set out in the motion, and further directing them to assess separately the damages resulting to the remainder. The commissioners reported as directed by the court and judgment was entered accordingly. The Commonwealth appealed from the entire judgment and the landowners appealed from so much of the judgment as awarded damages to the remainder.

Where part of a tract of land is taken by condemnation, the jury shall determine the difference in market value of the entire tract before and after the taking, less any enhancement in value from the improvements, and is not authorized to fix separately taking and resulting damages. Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844. The ap-pellees contend that the order of the county court, entered pursuant to the joint motion of the parties, determined the amount of damages to be awarded for the land taken and that the circuit court could only determine the damages to the remaining land.

The primary purpose of the action in the county court is to fix an amount which may be paid into court, permitting the Commonwealth to take possession of the land. An appeal to the circuit court is tried de novo, but limited to questions raised in the original exceptions or statement of grounds of appeal. Questions of fact pertaining to the amount of compensation to the owner shall be determined by a jury in circuit court. KRS 177.087(1). Here the Commonwealth excepted to the commissioners’ award for land taken as well as for damages to the remainder. An order entered pursuant to a joint motion in county court fixing the value of land taken does not preclude the jury from determining the value on a de novo trial in circuit court. We hold, therefore, that testimony as to the value of the entire tract was relevant and admissible, and the circuit court erred in refusing to admit such testimony.

It follows that the circuit court erred in instructing the jury that the measure of damages is the difference in the value of the remaining land immediately before and after the taking, less any enhancement resulting from the improvement, for the difference in market value of the entire tract before and after the taking, less any enhancement in value from the improvement, is the proper measure of damages.

The judgment is reversed.

PALMORE, J., not sitting.


author: STEWART, Judge. PALMORE, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. C. C. SWIFT et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Asst. Atty. Gen., Frankfort, James G. Osborne, Covington, for appellant.
    David C. Brodie, B. C. Green, Green & Connor, Owensboro, for appellees.
   STEWART, Judge.

Appellant, Commonwealth of Kentucky, Department of Highways (herein referred to as the “Commonwealth”), pursuant to KRS 177.081 through ICRS 177.089, instituted proceedings in the Daviess County Court to condemn certain property belonging to C. C. 'Swift and his wife, Mamie, for right of way to construct an interstate highway. An award of $10,300 as recommended by the commissioners was entered by the county court. Both parties appealed to the circuit court, where a jury awarded $12,075 for land taken and damages to remainder. This is an appeal from the judgment entered on that verdict.

Appellees own a tract of 47.52 acres located on the west side of U. S. Highway 431, approximately one mile and a half south of the city limits of Owensboro. The old road was two-lane and the Commonwealth is widening it to four lanes with a 36-foot depressed median. This road when reconstructed will be a portion of the interstate system of highways. A strip rectangular in shape, 210 feet long by 31 feet wide, in front of appellees’ brick veneer residence is being condemned. The new right of way will come within 11 feet of the porch of their home, and this road will be three and a half feet above their yard. Although appellees will have access to the highway after its completion, such will be by means of an incline. A ditch in front of their yard will be widened and deepened, and a temporary easement 19 by 20 feet was acquired in order to build a new bridge across this ditch.

Two grounds are urged for reversal: (1) Counsel for the landowner was permitted in his opening statement to tell the jury the amount of the commissioners’ award; (2) the verdict was based upon evidence in behalf of the landowners as to property values that was incompetent.

Appellees’ attorney in his preliminary remarks to the jury mentioned the amount of the commissioners’ award, and it is contended that imparting this information was highly improper and therefore prejudicial. Counsel for the Commonwealth immediately objected and moved the trial court to declare a mistrial. The motion was overruled but the objection was sustained and an admonishment was given to the jury not to consider the remark, because such a statement was not only incompetent as hearsay but the case was also being tried de novo.

It is argued by the Commonwealth that the jury, at the outset, had a figure in mind which throughout the trial was used as a guideline to weigh all the testimony. In this connection it is claimed the admonition failed to erase the damaging effect of the remark on the jury. In Commonwealth v. Crutcher, Ky., 240 S.W.2d 605, the commissioners’ report was brought to the attention of the jury in the same manner as in the instant case and there, as here, such a reference was ordered excluded with an admonishment being given to disregard it. This Court ruled that a prejudicial error under the circumstances had not been committed for the reason that the recovery in circuit court exceeded the award fixed by the commissioners. The rationale of that holding is not convincing.

See also Akers v. Ky. & W. Va. Power Co., 216 Ky. 326, 287 S.W. 889, and Webb v. Ky. & W. Va. Power Co., 216 Ky. 64, 287 S.W. 232. In each of these cases the commissioners were permitted to testify as to their findings in county court and, although the admission of such evidence was held to be error, it was determined it was not prejudicial because the commissioners had stated the amounts they had fixed were fair and reasonable values of the lands taken. Cf. Commonwealth, Dept. of Highways v. Evans, Ky., 361 S.W.2d 766.

This statement appears in Orgel in his treatise on Valuation Under Eminent Domain, 2nd ed., Vol. 1, sec. 153, p. 644, footnote 41: “In the absence of statute, other courts have held that it is not proper to permit the jury to be informed of the amount of the award made by the commissioners.”

We believe the reference to the commissioners’ report in the case at bar was stated to the jurors with a questionable purpose in mind. That purpose was to give them a false standard by which to measure their verdict. An analogous situation is where counsel for one of the parties in a tort action undertakes by adroit tactics to inform the jury that the opposing party has liability insurance coverage. The case of Potter v. Trent, Ky., 262 S.W.2d 186, not only condemned such tactics but reversed the judgment because such tactics were employed. In that case the insurance angle was injected into the case by the artful questioning of two prospective jurors on voir dire examination in the presence of the other jurors who were already selected to try the case.

We conclude the trial court erred in this case in failing to sustain the Commonwealth’s timely motion to declare a mistrial, because we are of the opinion that an admonishment under the circumstances did not remove the prejudicial result of the statement of appellees’ counsel. As a consequence we shall not follow Commonwealth v. Crutcher, cited above, as to the subject discussed.

The next contention advanced by the Commonwealth is that certain witnesses for the landowner were permitted to testify who did not establish their qualifications and, in addition, gave no reasonable basis to support any of their opinions as to land values. As there will probably be another trial of this proceeding we shall address ourselves to this complaint. Three lay witnesses testified for appellees.

Appellee, C. C. Swift, the landowner, testified to the before and after value of the property. He did not place an estimate on the land taken. He stated that he was informed about and knew “the fair and reasonable market value of property such as his property in the vicinity of his home farm.” However, he gave no facts to buttress any of his opinions, which the Commonwealth clearly showed through cross-examination. The next witness who testified was Andy Hardesty, a real estate broker and farm manager. The Commonwealth moved that his testimony be stricken because he failed to state separately the value of the land taken and the damages to the remainder. The trial court sustained the motion. Charles Hayden, a local farmer who also is a director in a local bank and a local insurance company, testified as to the value of the land taken and as to the damages to the remainder. He had had extensive experience in real estate transactions, such as making appraisals for insurance purposes. He knew about most local sales and cited some comparable ones. He had inspected the property.

In the recent case of Commonwealth, Dept. of Highways v. Fister, Ky., 373 S.W.2d 720, it was held the owner of property, in order to testify, must possess the necessary qualifications the same as any other witness. A qualified witness may testify as to the values of the property taken without stating any factors he took into consideration. See Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472. As the testimony of Swift, the landlord, measured up to these principles, his evidence was competent, and it was within the province of the jury to determine the weight to be given it. It will be noted that the evidence of Hardesty was ordered stricken for the reason that his testimony did not apportion the value of the land and the amount of the damages. Under the lav/ as it presently exists a witness may not separate the taking damages from the resulting damages. See Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, 854. Appellees’ witness Hayden in our opinion was clearly qualified to testify about the valuations in controversy. See 32 C.J.S. Evidence § 545, p. 299, which is cited with approval in Commonwealth, Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851.

Wherefore, the judgment is reversed for further proceedings in conformity with this opinion.

PALMORE, Judge

(dissenting)

I dissent from the majority opinion on this limited ground, that so long as we continue allowing a person who served as commissioner in the county court to appear in the role of a valuation witness in the circuit court trial, and to be identified to the jury as having been one of the county court commissioners in the same case, it is useless to pretend that the jury is not going to assume that the amount of his appraisal at the trial reflects the amount of the commissioners’ award in county court. Therefore, we are in the position of holding the information prejudicial if spoken, and not prejudicial if implied. I find this an untenable distinction. If the information is prejudicial, the better solution would be to change the rule permitting the witness to disclose that he served as one of the commissioners in county court.


author: MOREMEN, Judge.

text:
    Charles TANNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.
    E. Lawson King, Lexington, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

In the Fayette Circuit Court, Charles Tanner was convicted of armed robbery and sentenced to life imprisonment. He appeals on the ground that he was not mentally competent to waive intelligently and understanding^ the right to counsel.

Appellant admits at two places in his brief that he chose to conduct his own defense and refused the services of a court appointed attorney. At the commencement of the trial, the court stated:

“The defendant has chosen to represent himself although the Court had previously appointed Mr. Lawson King as his attorney. Charles, listen to the Clerk. He is reading the indictment to you. Mr. Filer, read the indictment. He pleads not guilty to the charge.”

A similar statement was made during a hearing in chambers:

“THE COURT: Let it be shown that at the beginning of the trial the Court inquired of the defendant if he had counsel and that the defendant stated that he couldn’t secure counsel that he wanted a Mr. Percy Foreman, and at the same time the Court recollected that the Court had previously appointed Lawson King, a regular practicing attorney of the Fayette County Bar, to represent the defendant, and the defendant stated to the Court that he did not desire to be represented by counsel but instead would represent himself.”

The Statement of Trial and Verdict also recited that appellant had elected to represent himself. The only issue raised concerns the validity of the waiver of counsel.

The only evidence of mental incompetency introduced at the trial was a letter from the Chief of Staff of Eastern State Hospital and appellant’s own testimony that he had been diagnosed as “paranoic schizophrenic.” The letter introduced read:

“Patient was hospitalized here on a 35-day court order from November 26, 1962 to December 22, 1962, when he escaped. His evaluation here confirms that of the Milledgeville, Georgia State Hospital from which he recently escaped. The diagnosis given is Sociopathic Personality Disturbance, Antisocial Reaction. He is not psychotic. A release from his commitment is requested.
“We believe this man has a tendency to evade justice by feigning mental illness in order to get admitted to mental hospitals from which he is then able to escape. If he is taken into custody again, admission to Eastern State Hospital should be avoided. One of our staff physicians could examine him in jail, and if it appeared that further evaluation would be indicated he should be sent directly to the maximum security unit at Central State Hospital, Louisville, Kentucky.
“Sincerely
E. W. Plucknett, M. D.
Chief of Staff.”

No psychiatrist or other medical expert testified.

Midway through the trial the court retired to chambers with appellant and the commonwealth’s attorney. During this hearing the attorney previously appointed to defend appellant was called and questioned by the court. The attorney testified that he had been prepared to represent appellant but that the latter had refused his services because he wanted a lawyer from Texas.

It is the court’s duty to investigate the waiver of a right to counsel in order to determine if it is made intelligently, competently, understandingly and voluntarily. Gholson v. Commonwealth, 308 Ky. 82, 212 S.W.2d 537. The extent of the investigation depends upon the cirumstances of the case. See Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309. This court will not reverse for want of counsel unless it appears in the record on appeal that the waiver did not meet the standards stated above. Neal v. Commonwealth, Ky., 303 S.W.2d 903, 904.

The record in this case discloses that this question was considered by the trial court in its hearing midway through the trial and in the motion for a new trial. The record also shows that the court adequately investigated the waiver.

Judgment affirmed.


author: CLAY, Commissioner.

text:
    BELL & KOCH, INC., Appellant, v. Harold B. STANLEY, Jr., Appellee.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.
    Herman L. Humphrey, Louisville, for appellant.
    Davis & Saunders, Bernard B. Davis, Shelbyville, for appellee.
   CLAY, Commissioner.

Appellee plaintiff recovered $5800 damages for personal injuries sustained when a stack of dry wall material sheets fell upon him. Appellant defendant’s principal contention on appeal is that it was entitled to a directed verdict because of the failure of the plaintiff to prove negligence. The controversy mainly concerns the application of the res ipsa loquitur doctrine.

Defendant was constructing a house. In one of the rooms dry wall material (in sheets weighing 96 pounds each) was stacked leaning against the walls. Defendant had given plaintiff permission to enter the building for the purpose of measuring kitchen cabinet space. Plaintiff testified that while he was measuring on the south wall some sheets stacked against the west wall fell upon him. According to his testimony neither he nor his son, who accompanied him, had done anything to cause the sheets to fall.

The crucial question in the case is whether, under the conditions shown, the falling of the material constituted substantial evidence of defendant’s negligence.

The theory of res ipsa loquitur is deeply imbedded in our law but there is no magic in the terminology or the doctrine itself. It simply recognizes that as a matter of common knowledge and experience the very nature of an occurrence may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury. In the development of the doctrine distinctions have been sought between it and circumstantial evidence, and questions have been raised as to whether its application raises a presumption of negligence (which would entitle the plaintiff to a directed verdict in the absence of explanation or rebuttal) or a permissible inference of negligence (which merely authorizes the jury to find negligence but does not compel it to do so). We have recently reconsidered the doctrine from the standpoint of procedural effect in Kentucky Home Mutual Life Insurance Co. v. Wise, Ky., 364 S.W.2d 338, and Lee v. Tucker, Ky., 365 S.W.2d 849, and have substantially accepted the views of Prosser.

The doctrine does no more than recognize the persuasive force of a particular kind of circumstantial evidence. The characteristics of an event may constitute credible proof of a negligent act or omission. This is so when those characteristics reasonably warrant such an inference. Whether this inference rises to the dignity of a presumption depends upon its strength (or persuasive power), which will vary with the circumstances of each individual case. Lee v. Tucker, Ky., 365 S.W.2d 849.

In some of our prior decisions using the presumption terminology the circumstantial evidence was strong enough to support a clear inference of negligence, which would have authorized a directed verdict for the plaintiff if the defendant failed to offer proof on the issue. See Schechter v. Hahn, 305 Ky. 794, 205 S.W.2d 690; Lewis v. Wolk, 312 Ky. 536, 228 S.W.2d 432, 16 A.L.R.2d 974; Vernon v. Gentry, Ky., 334 S.W.2d 266, 79 A.L.R.2d 1. However, it should be noted that in each of these cases it was not important whether the occurrence fell within the permissible inference or presumption category because the real question was whether the defendant’s proof entitled him to a directed verdict.

The narrow question before us is whether the nature and circumstances of the occurrence constituted substantial evidence of negligence on the part of the defendant. The answer must be in the affirmative if an inference of fault may reasonably be drawn. The facts under consideration need only warrant the inference, not compel it. See Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815.

Accepting plaintiff’s testimony that no intervening agency caused the stacked má-terial to fall, the existence of an unsafe condition was established. The act which created this condition is not known, but in balancing the probabilities (the normal process of evaluating evidence), the scale tilts perceptibly toward negligence as the initiating cause. Thus the evidence is of sufficient substance to support an inference of fault, thereby creating a jury issue. A directed verdict for defendant was properly denied.

Defendant raises a question concerning the form of Instruction No. 1. We do not approve the form of this instruction because the issue of negligence was not presented in the best manner, but we are convinced the jury could not have been misled concerning the basis of defendant’s liability.

The judgment is affirmed.

      . See 59 A.L.R. 468; 78 A.L.R. 731; 141 A.L.R. 1016.

      . Prosser, Law of Torts, 2d Ed. (1955), section 43 (pages 211-217).

      . It is unnecessary to consider whether the inference would be strong enough to mate a presumption. The plaintiff only claims the right to go to the jury and does not contend he was entitled to a directed verdict. The defendant introduced rebutting evidence and the jury accepted the permissible inference.


author: CULLEN, Commissioner.

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, Appellant, v. Ray HOLBROOK, Appellee.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.
    Joe Hobson, Prestonsburg, Jenkins & Jenkins, Norman E. Rood, Huntington, W. Va., for appellant.
    James S. Hogg, Jackson, for appellee.
   CULLEN, Commissioner.

In an action tried by jury Ray Holbrook recovered judgment for $1830 against General Motors Acceptance Corporation as damages for the alleged wrongful repossession and sale of a financed automobile. Motion by G. M. A. C. for an appeal was granted.

The appellee has not filed a brief. Accordingly, the Court has elected under RCA 1.260 to accept the appellant’s statement of the facts and issues as correct.

We are reversing the judgment because it appears from the accepted statement of facts that the repossession was valid and proper because the terms of the conditional sale contract had been violated in three separate respects, each of which violations, under the provisions of the contract, authorized repossession. The alleged statement of the repossessing agent, in response to Holbrook’s offer to pay the delinquent monthly installment as soon as the repairs on the automobile were completed, that he “thought it would be all right," could not be considered a waiver of all three violations of the contract even if it possibly could be considered a waiver of the delinquency in payments (which is doubtful not only because of the inconclusive nature of the agent’s statement but because of the absence of anything in the record to indicate any authority of the agent to waive violations) .

It further appears that Holbrook’s interest in the automobile was nebulous, because he had acquired possession from the original purchasers under a vague, uncompleted, conditional, verbal arrangement with only one of the two joint purchasers.

The judgment is reversed with directions to enter judgment for General Motors Acceptance Corporation in accordance with its motion for judgment notwithstanding the verdict.


author: JOHN A. BRESLIN, Special Commissioner.

text:
    BLUE DIAMOND COAL COMPANY, Appellant, v. Lee BAKER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.
    Maxwell P. Barret, Reeves, Barret & Cooper, Hazard, for appellant.
    Calvin N. Manís, H. B. Noble, C. A. Noble, Jr., Hazard, for appellees.
   JOHN A. BRESLIN, Special Commissioner.

This appeal is by Blue Diamond Coal Company, defendant in circuit court, from a joint and several judgment rendered against it and Wilgus Durbin, DBA Durbin Coal Company, in favor of 55 employees of Durbin and in the aggregate sum of $45,-664.73. Durbin has not appealed. The parties shall be referred to as they appeared in circuit court.

Plaintiffs, members of Local Union No. 5911, of United Mine Workers of America, instituted this action to recover vacation pay and certain wages accruing to them after May 6, 1960, under the terms and provisions of a Wage Agreement covering the coal mining industry. The Wage Agreement, in part, established wages and other benefits due employees from their employer.

The pleadings and proof herein establish that plaintiffs, prior to March 31, 1960, had been employed by Blue Diamond Coal Company in its underground mining operations. On March 31, 1960 Blue Diamond Coal Company closed its underground mining operation and paid plaintiffs all wages and vacation pay due under the aforesaid Wage Agreement. Blue Diamond Coal Company kept in operation its coal tipple where coal was processed for shipment to the coal markets. Instead of producing coal which was processed over its tipple for shipment to the coal markets, Blue Diamond commenced purchasing coal produced by others and processed it for shipment to the coal markets. The tipple operation was covered by the Wage Agreement sued on. It appears from the evidence, however, that none of tlie plaintiffs was employed in or on Blue Diamond’s tipple operation.

Wilgus Durbin, a former foreman of Blue Diamond Coal Company, leased the former underground mining operation of Blue Diamond Coal Company on or about May 6, 1960, and employed plaintiffs to work in the underground operation at or about that time. Durbin, after obtaining the lease from Blue Diamond Company, entered into the Wage Agreement referred to with plaintiffs’ union. He did not pay the wages and vacation pay called for in the said Wage Agreement. The plaintiffs, during the period of employment with Durbin and in the summer of 1960, met with Durbin on several occasions in an attempt to resolve their differences and when these negotiations broke down, this suit followed.

The plaintiffs, while admittedly not employees of Blue Diamond, sought to establish a cause of action against Blue Diamond by pleading but not proving that the agreement between Durbin and Blue Diamond, of which they professed ignorance, was entered into as a subterfuge by Blue Diamond to avoid the provisions of the Wage Agreement sued on. This contention is clearly not supported by the evidence. Plaintiffs’ evidence discloses that, when Durbin entered into the Wage Agreement sued on, he informed plaintiffs’ parent union and the President of plaintiffs’ local union, that he was a lessee of Blue Diamond and this information in fact appears on the Wage Agreement entered into between plaintiffs’ union and Durbin.

In an attempt to establish subterfuge, the plaintiffs, apparently in reliance upon Cove Fork Coal Company v. Newcomb, Ky., 343 S.W.2d 838, attempted to establish a master and servant relationship between Durbin and Blue Diamond. This was not pled by the plaintiffs, nor does the evidence establish such a relationship. Quite the reverse situation is shown, and in any event, it was a question of law for the court and should not have been submitted to a jury. Plaintiffs’ evidence in this connection reveals that when they were employed by Durbin they returned to work at approximately the same places and at somewhat the same jobs as they had held while working for Blue Diamond; that they used the same machines and tools in their work; that Durbin occupied buildings or portions of a building belonging to Blue Diamond. The lease between Blue Diamond and Durbin covered the former underground mining operations of Blue Diamond. The lease provided for rental of certain equipment to Dur-bin, which equipment was the equipment formerly used by Blue Diamond in its underground mining operation. The lease also provided for the use of office space by Dur-bin. Durbin paid Blue Diamond royalty and/or rental for the coal, machinery, office equipment and/or space used by him. Cove Fork Coal Company v. Newcomb, supra, has no application. It was a Workmen’s Compensation case, and it was recognized there that the approach to be used in determining a master-servant relationship in Workmen’s Compensation cases is different from a tort or contract case. See Brewer v. Millich, Ky., 276 S.W.2d 12.

Evidence which merely furnishes a basis of conjecture, surmise or speculation is not sufficient upon which to rest a verdict of a jury. Park Circuit & Realty Company v. Ringo’s Guardian, 242 Ky. 255, 46 S.W.2d 106. The scintilla rule has been abolished in Kentucky. Nugent v. Nugent’s Ex’r, 281 Ky. 263, 135 S.W.2d 877. There is no evidence of substantive value to support the jury’s verdict against Blue Diamond, and the judgment must he reversed.

The Wage Agreement sued on expressly recognizes the right of Blue Diamond to lease out its coal and to buy and purchase coal from others. The only prohibition against acquiring coal from others is where such coal was produced under a contract or wage agreement less favorable to the employees than those contained in the Wage Agreement sued on. The plaintiffs and their union had their contract with Dur-bin. It was their responsibility to see to the enforcement of the terms of the contract with Durbin. It was not the responsibility of Blue Diamond. If Blue Diamond was acquiring coal that was produced under an agreement less favorable to the plaintiffs than the agreement sued on, then the agreement sued on provided for a method by which such matter could be rectified. The agreement provided for a committee consisting jointly of representatives of labor and management. If coal was being purchased or acquired by a party to the wage agreement sued on which was produced under terms less favorable to the employees than the contract sued on, such fact should have been brought to the attention of the offending party. After a hearing before the committee, the offending party would have had an opportunity to effect compliance. A finding of violation by the committee is a condition precedent to any final determination that a violation of the agreement sued on had occurred. This machinery was never resorted to and was a condition precedent to the suit herein against Blue Diamond. Gatliff Coal Co. v. Cox, 6 Cir., 142 F.2d 876.

Blue Diamond moved for a directed verdict at the conclusion of the evidence for plaintiffs. It should have been sustained. At the close of all the evidence Blue Diamond again moved for a directed verdict. It should have been sustained. Instead, the issue was presented to a jury. In addition, Blue Diamond moved for a judgment notwithstanding the verdict. It should have been sustained. It was not.

For the reasons set forth, we recommend that the judgment of the Perry Circuit Court be reversed, with directions to enter a judgment dismissing the action.

The opinion is approved by the Court, and the judgment is reversed, with directions that a judgment n. o. v. be entered in favor of appellants.


author: PALMORE, Judge. MONTGOMERY, Judge

text:
    COMMONWEALTH of Kentucky, Appellant, v. Neil F. STRICKLAND, Appellee.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.

      John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellant.
    Frank E. Haddad, Jr., Daniel T. Taylor, III, Louisville, for appellee.
   PALMORE, Judge.

On December 24, 1959, while awaiting trial in the criminal division of the Jefferson Circuit Court on an indictment charging him with the felony of carrying concealed a deadly weapon (KRS 435.230), the appel-lee, Strickland, was committed to Central State Hospital at Lakeland for a 35-day observation. KRS 202.120. Theréafter, on February 11, 1960, pursuant to a civil inquest in the Jefferson Circuit Court under KRS 202.005 et seq. he was adjudged to be of unsound mind. In April of 1960 the medical authorities at the hospital, in whose custody Strickland had remained since December 24, 1959, came to the conclusion that their original diagnosis of “mental illness” had been erroneous and that the patient’s condition was “the result of a personality disorder” which they variously characterized as a sociopathic or anti-social personality and which, in common parlance, is often called a psychopathic personality. They so notified the judge of the criminal division before whom the indictment was pending and advised the Commonwealth’s Attorney that Strickland was able to stand trial.

On May 17, 1960, Strickland appeared with his counsel, withdrew his former- plea of not guilty, and pleaded guilty to the indictment. He was sentenced to 5 years in the penitentiary and placed on probation. In December of 1960 his probation was revoked and he was remanded to prison. After a time he was released on parole but eventually was recommitted to the penitentiary following revocation of the parole.

Conceiving that his guilty plea and the judgment of conviction entered on May 17, 1960, were void because there had never been a restoration inquest subsequent to the adjudication of insanity on February 11, 1960, Strickland brought this RCr 11.42 proceeding in the Jefferson Circuit Court to vacate the judgment of conviction. On the basis of pleadings stating the facts outlined above the trial court concluded that its action in proceeding with the case, without first having Strickland’s then existing mental capacity established by a jury in a restoration inquest, had been unauthorized. The controversy comes to us on the Commonwealth’s appeal from an order vacating the judgment of conviction.

At the time the judgment of conviction was entered § 156 of the Code of Criminal Practice was still in force. It provided as follows:

“If the court shall be of opinion that there are reasonable grounds to believe that the defendant is insane, all proceedings in the trial shall be postponed until a jury be impaneled to inquire whether the defendant is of unsound mind, and if the jury find that he is of unsound mind, the court shall direct that he be kept in prison or conveyed by the sheriff to the nearest lunatic asylum, and there kept in custody by the officers thereof until he be restored, when he shall be returned to the sheriff on demand, to be reconveyed by him to the jail of the county.”

The words “until he be restored” in Cr.Code § 156 were never construed as requiring a restoration inquest, and there have been several instances in which this court has upheld the conviction of a person previously adjudged insane and never formally restored. See, for example, Davidson v. Commonwealth, 171 Ky. 488, 188 S.W. 631 (1916); Southers v. Commonwealth, 209 Ky. 70, 272 S.W. 26 (1925); Cannon v. Commonwealth, 243 Ky. 302, 47 S.W.2d 1075 (1932); Gulley v. Commonwealth, 284 Ky. 98, 143 S.W.2d 1059 (1940); Murrell v. Commonwealth, 291 Ky. 65, 163 S.W.2d 1 (1942); and Sharp v. Commonwealth, 308 Ky. 765, 215 S.W.2d 983 (1943).

The terms “insane,” “unsound mind,” and “mental illness” are too loose to serve as a reasonable test of whether a person is properly fit to plead or defend himself in a criminal proceeding. For this purpose, whatever may be the technical classification of his mental state, legally or medically, the test is whether he has substantial capacity to comprehend the nature and consequences of the proceeding pending against him and to participate rationally in his defense. Cf. 14 Am.Jur. 802 (Criminal Law, § 45). It is not necessary that this determination be made by a jury.

Counsel for Strickland do not now contend that the adjudication of insanity was conclusive or that the trial court had no power to proceed with his case and accept a guilty plea without a restoration inquest. What their argument apparently amounts to is that having done so, a judge can change his mind at any time in the future and start over again by way of RCr 11.42. The inevitable chaos such a procedure would unloose cannot be permitted.

If the issue of a defendant’s mental capacity to plead or to defend himself has not been submitted to and determined by the court on the basis of a fair hearing it should not be res judicata. Therefore, in the absence of such a hearing, upon a showing in a subsequent RCr 11.42 proceeding that at the time he entered his plea or was tried he did not have sufficient mental competence to defend himself it would be incumbent on the court to set the conviction aside. But in this case there has been no showing to that effect.

In the recent case of Thomas v. Morrow, Ky., 361 S.W.2d 105 (1962), a ha-beas corpus proceeding, the facts were held to be conclusive of the defendant’s incompetence to participate in the criminal proceedings leading to his conviction and imprisonment. We cannot say so in this case. It is our judgment that the trial court must conduct a hearing and make a finding of fact on the question of Strickland’s mental capacity as of the time his guilty plea was entered.

As mentioned in Davidson v. Commonwealth, 171 Ky. 488, 188 S.W. 631 (1916), the rebuttable presumption existing in civil cases by reason of an insanity adjudication does not necessarily apply in criminal proceedings. From the standpoint of procedural effect — that is, whether a permissible inference, a rebuttable presumption, or a conclusive presumption (as in Thomas v. Morrow) has been established— the particular circumstances of the case should govern. In Thomas v. Morrow the prisoner, while awaiting trial in circuit court, contemporaneously was found incapable of standing trial in federal court. In the instant case the trial court in its discretion determined that Strickland was able to stand trial. In view of this action, based on whatever information was brought to the attention of the court at the time, it would be unreasonable now to draw an inference of continued incapacity as of that time without further evidence reasonably justifying such a conclusion. In short, upon remand of this proceeding to the trial court for purposes of a hearing and determination of the question of Strickland’s mental capacity at the time his guilty plea was entered, the fact of his insanity adjudication on February 11, 1960, will not constitute evidence sufficient to support vacation of the conviction.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

MONTGOMERY, J., dissenting.

MONTGOMERY, Judge

(dissenting).

So far as the majority opinion indicates the need for a further hearing to determine the mental capacity to stand trial, I respectfully disagree. I am thoroughly in accord with the principles of habeas corpus as set forth in Owen v. Commonwealth, Ky., 280 S.W.2d 524, and feel that habeas corpus affords an adequate remedy which renders RCr 11.42 unnecessary.

In the present case, Strickland appeared with counsel, withdrew his plea of not guilty, and pleaded guilty. This was done after the medical authorities having him in custody had determined that he was able to stand trial and the court had been so advised. The effect of the majority opinion is to go back now for a determination of whether Strickland was in fact mentally able to stand trial.

This case is similar to Higbee v. Thomas, Ky., 376 S.W.2d 305, also 375 U.S. 13, 84 S.Ct. 79, 11 L.Ed.2d 41, wherein the question of adequacy of counsel was involved.

I am concerned with whether the majority opinion here and in the Higbee case will require the trial court in every instance to have a hearing to determine the mental capacity of the accused to stand trial and another hearing to determine the adequacy of counsel. This would be a serious problem when trial dockets are congested and would become a more aggravating problem when there is no apparent restraint or limitation on the number of times such matters may be raised under RCr 11.42. The lack of finality in criminal cases is destroyed by the apparent ability of an accused to have his case tried and heard on appeal at least twice. No other type of litigation has such favorable treatment. I am at a loss to understand what has become of two ancient and two ■well-founded principles of law, res adjudi-cata and the law of the case rule, in so far as applicable in criminal cases.

Maybe this dissent should be dismissed as an expression of old-fashioned thinking, but the light regard in which such ancient principles seem to be held is disturbing. The procedures apparently recognized in this case and in Higbee indicate an utter lack of understanding of the practicalities of the administration of justice in the field of criminal law.

My concern compels me to dissent.

      . Cf. KRS 202.010(1), defining a “mentally ill person” as one who has “a psychiatric or other disease which substantially impairs his mental health.”

      . It has been superseded by RCr 8.06, effective January 1,1963.

      . In each of these particular cases the defendant was tried on a plea of not guilty, though only in Davidson v. Commonwealth was an issue raised as to whether he or she was mentally competent at the time of trial as distinguished from the time the crime was committed.

      .Certainly we are satisfied that this is the law in the light of recent pronouncements by the U. S. Supreme Court, which cannot be ignored.