text:
    CITY OF COLUMBIA, Missouri, a Municipal Corporation, to the Use of STERLING EXCAVATION AND ERECTION, INC., a Corp., Plaintiff-Respondent, v. BIL-NOR CONSTRUCTION CO., a Corporation, and National Automobile and Casualty Insurance Co., a Corp., Defendants-Appellants.
    No. 24569.
    Kansas City Court of Appeals. Missouri.
    Feb. 2, 1967.
    Larry M. Woods, Orr, Sapp & Woods, Columbia, for appellants.
    Raymond C. Lewis, Jr., David L. Knight, Smith & Lewis, Columbia, for respondent.
   SPERRY, Commissioner.

This is an appeal from the action of the court in refusing to set- aside a default judgment in favor of plaintiffs in the amount of $3,606.25.

In the petition filed in the above captioned case, it was pleaded that the city of Columbia, by written agreement, contracted with Bil-Nor Construction Company for construction by it of certain sewers, drainage facilities, pumping stations, and other related improvements for the city of Columbia; that National Automobile and Casualty Insurance Co. was Bil-Nor’s insurer for full performance of the contract; that plaintiff, city of Columbia, agreed to pay defendant the total sum of $368,506.46, and Bil-Nor agreed to furnish and pay for all equipment, materials, labor and services, including sub-contracts and sub-contractors employed and used thereon; that Bil-Nor contracted with plaintiff Sterling Excavation and Erection, Inc., to perform a part of the work, which it fully performed; that Bil-Nor paid Sterling all monies due it under its contract with Bil-Nor except $3,149.95, which it still owed when this suit was instituted.

Bil-Nor answered that it had paid Sterling all that it had agreed to pay it for work to be performed except $3,149.95; that Sterling did not furnish all of the materials and equipment used in the performance of the work performed by it, and did not perform all of the work. It prayed to be dismissed.

Thereafter, on February 15th, 1966, Sterling, under Rule 57.20, V.A.M.R., moved for an order directing issuance of a subpoena duces tecum “commanding Gail Phillips, or the custodian of the records of Bil-Nor Construction Company, to appear for deposition and to produce for inspection and copying at the taking of the deposition * * * any and all time sheets and records including daily log of work performed, submitted to the defendant by its employee, Mr. Tommy Stone, pertaining to work performed at Columbia, Missouri, on the Sterling Excavation and Erection, Inc., sub-contract under the contract between the city of Columbia, Missouri, and Bil-Nor Construction Company.” The subpoena was issued on February 16th, 1966.

Thereafter, plaintiff filed its motion for judgment or to strike Bil-Nor’s pleadings. As grounds for the requested action plaintiff alleged that at the time of taking prior depositions of Bil-Nor’s president, it was indicated that this claim was being resisted because of certain acts or omissions of Sterling, as appear in certain records of Bil-Nor; that it was then agreed between the parties that such records would be produced by Bil-Nor, and that its custodian of such records would also be produced for examination; that such was never done; that, at the taking of prior depositions, Mr. Norvell, president of Bil-Nor, testified that one Gail Phillips was custodian of the records in question; that Bil-Nor’s then attorney, Jones, agreed to produce the records for inspection, without court order, but that same was never done, despite repeated requests therefor over a period of several months; that, notice for taking depositions on February 23rd, 1966, (less than ten days before trial date) was duly served on defendant’s attorneys; that Gail Phillips was named as a witness to be examined and a subpoena duces tecum was issued and served on her to produce the records; that the subpoena was transmitted to a reporting service in St. Louis and was served on Gail Phillips; that, on February 21st, Bil-Nor’s attorney, Jones, called plaintiff’s attorney from New Orleans and announced that he would withdraw as counsel, that the deposition would be taken as scheduled, and that plaintiff’s counsel would be notified of any change; that plaintiff’s attorney appeared at the time and place named for taking deposition but that no one appeared for defendants; that counsel for plaintiffs called the office of Bil-Nor and was told by Gail Phillips that she would not appear and that Mr. Norvell also stated to counsel that the records were his records, not records of Gail Phillips; that they would not be produced except upon court order directed to him; that he would not appear and would not allow Gail Phillips to appear, or allow the records to be produced; that no notice that defendant would refuse to appear or comply with the subpoena was ever given to plaintiffs.

When the motion for default was heard, defendants were represented by Mr. Woods. Mr. Lewis, attorney for plaintiffs, testified to the filing of this lawsuit. He stated that depositions had been taken by both parties; that defendant rests its defense on certain of its records; that Mr. Norvell, defendants’ president and manager stated, in answer to questions propounded at the taking of depositions, October 11th, 1965, that Gail Phillips was custodian of records; that, at that time, counsel for defendants, Jones, agreed to produce the records for examination, without formality of any kind; that this agreement was reaffirmed at the taking of depositions on October 20th, 1965; that efforts were thereafter made, by letter and orally, to obtain the records, all to no avail; that defendants asked for and obtained a continuance of the trial, and agreed to a firm setting for March 2nd, 1966; that a subpoena duces tecum was issued and served on defendant’s attorney in Columbia, Mr. Woods; that the date for taking depositions was set for February 23rd, 1966, in St. Louis; that subpoena was served on Gail Phillips February 18th; that plaintiff’s attorney Lewis was notified by defendant’s attorney, Jones, that he would withdraw as counsel but that he would see to it that defendants would be represented by counsel at the taking of the depositions; that no one appeared for defendants; that Gail Phillips told him, by telephone, that she would not appear; and that Mr. Nor-vell told him, by telephone, that the records were not those of Gail Phillips, that they belonged to him, and that he would not produce them except by order of the court served on him; that Gail Phillips was not the custodian of the records and that neither he nor Miss Phillips would appear. Mr. Lewis stated that the reporter, who was to report the deposition, also called and talked to Mr. Norvell and was told the same thing; that the reporter made an affidavit to those facts, which counsel filed of record.

Mr. Woods, presently attorney for defendants, stated to the court he had been attorney in this case since March, 1965, but was not in charge of the case; that he attended the taking of depositions October 20th, 1965; that he heard the agreement for production of records by defendants but that none were ever produced; that, he wrote letters and talked to Jones who said he would see that the records were sent, but that none ever arrived; that he waived notice of issuance of subpoena duces tecum and of the taking of depositions and notified Jones, the St. Louis lawyer for Bil-Nor, whose office was located in St. Louis where its owner, president and manager lived; that he, Woods, understood that some attorney (other than himself) would appear for the taking of the deposition; that he did not appear in St. Louis but that he now fully represents defendants; that he advised Mr. Norvell to have the records “prepared” and doesn’t know why it was not done. Mr. Woods offered to agree to a near future date for the trial of the case.

It appeared that Mr. Jones had been suspended as a licensed attorney prior to February 22nd, 1966, but that the suspension had been stayed and that such stay is still in effect.

The court found that, by admission of Mr. Norvell, president of defendant corporation, Gail Phillips was custodian of defendant’s records; that she refused to produce the records under a subpoena duces tecum duly served on her six days prior to the date of such refusal; that plaintiff was not notified, prior to the date set for taking depositions, of her refusal to appear as a witness; that such refusal was directed and controlled by Mr. Norvell. The judgment was that defendant’s answer be stricken and that plaintiffs have judgment in the sum of $3,606.45, the amount due on the contract, together with interest thereon.

Defendant moved to set aside the judgment stating as reasons therefor certain facts claimed to constitute extenuating circumstances excusing their failure to produce the records under orders of the court.

The court heard such evidence as the parties offered on this motion. We do not deem it of sufficient importance to recite it here. For the most part it tended to substantiate the facts established at the hearing on the motion for default judgment. While there are instances of variations and contradictions, the trial court heard the evidence on both occasions and was in position to weigh all of the evidence; to believe or disbelieve any or all of it; and to judge the credibility of the witnesses. Whether or not Mr. Norvell, sole owner of Bil-Nor, was confused by information furnished to him by Jones, is not very material in view of the fact that Mr. Woods has also been an attorney of record in the case since March of 1965, almost a year prior to the main occurrence which gives rise to this present contention.

The court overruled and denied the defendant’s motion to vacate and set aside the judgment.

Plaintiffs’ position here is based on the provision of Civil Rule 61.01. Paragraph (d) thereof provided as follows:

“(d) Willful Failure to Appear — Consequences of.
“If a party, or if the party served is a public or private corporation, a partnership or other unincorporated association, an officer, director, general manager or managing agent or partner thereof, willfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to return answers to interrogatories submitted under Rule 56, after proper service of such interrogatories, the court on motion and notice may strike out all or part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party”

The court found that Mr. Norvell, the owner and manager of Bil-Nor, the defendant herein, personally caused the subpoena served on Gail Phillips to be ignored. Mr. Norvell had previously testified by deposition that Gail Phillips was the custodian of the records which plaintiff sought to have produced for its examination. He also testified at the trial on the motion to vacate that he was Bil-Nor, and that the records belonged to Bil-Nor. The evidence was to the effect that plaintiff had vainly sought to examine such records over a period from October 11th, 1965, when defendant had agreed to produce them without subpoena or court order, until February 15th, 1966, when it caused notice of deposition to be served. The deposition was to be taken in St. Louis on February 23rd, only ten days prior to March 2nd, when the trial was to be heard. When plaintiff’s counsel arrived at the appointed place he was told that Mr. Norvell would not permit the records to be produced in court.

No one notified plaintiff’s counsel that the records would not be produced. Such notice would have been appropriate under rules of ordinary courtesy. It won’t do to quibble in this case. Defendants failed and refused to produce the records, after agreeing to do so without court order, for a period of four months. This is a case of willful and arrogant violation of the rule, the language of which is so clear as to require no construction when applied to the facts developed in this case.

Authority and legal precedent for the action of the trial court is well established and settled. In Miles v. Armour, 239 Mo. 438,144 S.W. 424, 426, the trial court struck defendant’s pleadings and rendered default judgment against him because of his refusal to testify by deposition in a foreign state. The authority for the court action was section 6361, R.S.Mo.1909. We deem it unnecessary to cite further authority in support of our ruling that the court’s action in entering a default judgment was fully justified. In overruling and denying defendant’s motion to vacate and set aside the default judgment the trial court did not abuse its discretion. Dodge v. SafeGuard Sales, Inc. (K.C.App.), 356 S.W.2d 101, 102.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    George D. SMITH and Workmen’s Compensation Board of Kentucky, Appellants, v. Jim PERRY, Appellee.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.
    Rehearing Denied March 24, 1967.
    Doyle & Doyle, G. E. Reams, Harlan, for George D. Smith.
    Robert Matthews, Atty. Gen., Frankfort, for Kentucky Workmen’s Comp. Board.
    James S. Greene, Jr., Harlan, for ap-pellee.
   DAVIS, Commissioner.

This appeal attacks a judgment in a workmen’s compensation proceeding wherein the circuit court overturned an award for total permanent disability which had been made to appellant Smith by the Workmen’s Compensation Board. The circuit court based its ruling on a finding that Smith was not an employee of appellee Jim Perry at the time of the injury. The Board had found that Perry was the employer of Smith. The determinative question is whether the Board’s finding was supported by substantial evidence.

An unusual chronology appears in this case. The Board’s award was made March 4, 1958. As noted, the award was for total, permanent disability, plus allowable medical expenses. Perry perfected an appeal to circuit court in March, 1958; the circuit court rendered an opinion December 10, 1959, directing that judgment be entered affirming the award; judgment was so entered December 11, 1959. On December 14, 1959, appellee Perry filed a motion for a new trial. The matter lay dormant on the docket until August, 1963, when Smith’s counsel moved that the case be submitted for judgment; it was so submitted by order dated August 24, 1963. On June 16, 1966, the circuit court entered a new judgment, sustaining the motion for new trial, setting aside the judgment of December 11, 1959, setting aside the award of compensation, and denying Smith’s claim for compensation. It is from the latter judgment that this appeal is prosecuted.

Perry operated a small coal mine near Cumberland, for which operation he obtained a license as prescribed by KRS 351.175, in February, 1956. Among the few employees in the mine were Beaufort Hodge and Vernon Coots. Perry elected to operate under the Workmen’s Compensation Act, KRS Chapter 342, and obtained compensation insurance. Sometime in August, 1956, Perry made an oral “deal” with Hodge and Coots to lease the mine to them. It seems clear that this arrangement was made very shortly before Smith first was employed at the mine. Smith quit the job after two weeks, but was reemployed on November 8, 1956; he sustained the disabling accident on November 14, 1956. According to Smith’s testimony, he considered that he was employed by The Perry Coal Company, although his actual negotiations for employment were with Hodge and Coots. Smith testified that he was informed by Hodge that the company carried workmen’s compensation insurance incident to each of his periods of employment.

In substance, Coots testified that he and Hodge had an oral agreement with Perry whereby they were to obtain a written lease from Perry; that Coots did not regard the agreement as effective until it was evidenced by a written instrument; that he and Hodge operated the mine “for Perry,” under Perry’s license, from August, 1956, until November 21, 1956, at which latter date a written lease between Perry and Coots and Hodge was signed. The coal extracted from the mine pursuant to the operation supervised by Coots and Hodge was delivered at the tipple to trucks owned and operated by Perry; the coal was delivered in Perry’s trucks to a ramp operated by Carolina Coal Sales Company, the purchaser of the coal. Perry arranged the sale of the coal to Carolina Coal Sales. Although there is no showing that Perry was compensated by Carolina Coal Sales for his activities at the ramp, it appears that he substantially supervised the ramp as a sort of “straw boss.”

Shortly after the claim for compensation was filed Perry lodged for record the November, 1956, written lease between himself and Coots and Hodge; he had been party to numerous leases, he said, but this was the first and only one that he had ever caused to be lodged for record.

On the date when Smith was injured Perry accompanied Hodge or Coots to the hospital at Lynch to see about Smith. There was testimony (denied by Perry, and his denial was corroborated) that Perry stated that he was responsible for the hospital bill of Smith.

Coots testified that Perry told him that Perry would maintain the compensation insurance and “take care of the taxes.” According to Coots, Perry “ * * * said he’d just run it in his name until the first of the year.”

With this much of the background, it is appropriate to reiterate that our problem here is not one that requires us to determine whether we are convinced that Perry was Smith’s employer at the time of the injury — rather, we are to determine whether the evidence in behalf of Perry was so clear-cut and convincing that we could justifiably conclude that the Board acted erroneously as a matter of law in finding to the contrary. Lee v. International Harvester Co., Ky., 373 S.W.2d 418; Columbus Mining Co. v. Childers, Ky., 265 S.W.2d 443, 445.

Admittedly, the Board could have found for Perry. He disclaimed ownership and bolstered his disclaimer with evidence that he had cancelled his compensation insurance shortly after his oral “deal” with Coots and Hodge. He insisted that he exercised no control over the mining operation at any time subsequent to the August “deal;” that he had no part in employing Smith, nor any control over Smith. He pointed to the lease as finally written (it was prepared for him by a notary). The paper bears the typed date of November 10, 1956, in its caption, although it concludes with a clause as follows:

“Witness our hands this-day of November, 1956.” Both Hodge and Coots testified that it was not signed on November 10, but was signed by one of them on November 20, and the other on November 21.

It was shown that regular inspections were made by mining inspectors during 1956, and that the reports of these inspections were mailed to Perry. He did not reply to any of them, nor did he advise the officials that he no longer operated the mine. He permitted the operation of the mine under his license; he did not inform the Unemployment Compensation Commission of a change in ownership until early 1957. There was evidence that Perry stopped the hauling of coal from the mine by another trucker, and that he controlled the matter of its sale.

We think the circumstances presented in this record are sufficient to support the Board’s factual finding that Perry was the true owner and operator of the mine, and thus Smith’s employer, at the time of the disabling accident. It follows, of course, that we are not persuaded that the evidence in behalf of Perry was so clear-cut and convincing as to impel a finding in his behalf.

We are not able to say that the written lease is dispositive of this litigation. In Coleman v. Baker, Ky., 382 S.W.2d 843, we pointed out that a written contract was not conclusive of the question whether certain workmen were servants or independent contractors. Indeed, the attendant circumstances of the execution and recording of the written lease in the case at bar furnish basis for a reasonable inference that Perry was attempting to preclude Smith’s claim. The trier of the fact had basis for ascribing significance to Perry’s actions as refuting the words of Perry’s testimony.

Coots and Hodge, uneducated young men with little or no capital, testified that they did not regard themselves as “owners” of the mining operation so long as they had no written lease. We are mindful of the rule that a plea of the statute of frauds is available only to parties sought to be charged in the contract, and may not be relied on by a person who is not party to the agreement. Jackson v. Coons, 285 Ky. 154, 147 S.W.2d 45, 132 A.L.R. 1403. But we do not have that situation here. In this case Coots and Hodge were parties to the agreement and they testified that they did not consider themselves as operating under it until it became formally evidenced by a written instrument. They deposed that in the interim between the August “deal” and the November signing they were merely operating for Perry, on his license and in his name, and that Perry had said he would maintain compensation insurance.

It is noteworthy that a sharp discrepancy appears in evidence as to when the paper was actually signed; Perry insists that it was signed November 10, which is the date typed in the caption, but Coots and Hodge are equally certain that it was not then signed. They are somewhat corroborated in this by the blank space left for the date at the close of the instrument. Coots and Hodge were sure that the paper was not presented to them until after Smith’s injury on November 14.

Appellee Perry correctly cites precedents reflecting that it is incumbent on the claimant to establish the essential facts entitling him to recovery. Certainly, the relationship of employer-employee is an essential fact in a case of this type. See Ratliff v. Redmon, Ky., 396 S.W.2d 320, wherein is found a recent résumé of the applicable principles and guidelines. Ap-pellee contends that Ratliff makes it plain that the right to control the details of the work is the primary test, and that Perry had no such right. We are not able to accept that contention, however, because Perry clearly had full control until he effectively transferred it to Coots and Hodge. He insists he transferred everything to them in August, 1956 — they take a contrary position. The Board was persuaded by their evidence and had a legal right to be. The evidence, direct and circumstantial, amply supports the Board’s factual finding, hence the circuit court erred in setting aside the Board’s award.

The judgment is reversed with directions to reinstate the judgment entered December 11, 1959, affirming the award.


text:
    William SILVERMAN et al., d/b/a First Link Grocery, Appellants, v. Mary BOWMAN, Appellee.
    Court of Appeals of Kentucky.
    Jan. 20, 1967.
    Rehearing Denied March 24, 1967.

      Frazee & Frick, James H. Frazee, Herman E. Frick, Louisville, for appellants.
    C. M. Leibson, Leibson & Leibson, Louisville, for appellee.
   B. ROBERT STIVERS, Special Commissioner.

This is an appeal from the Jefferson Circuit Court wherein a judgment was entered on a verdict allowing appellee Mary Bowman to recover damages from appellants William and Bernard Silverman. Appellants operated a grocery located on the corner of Shelby and Market Streets, in Louisville. Appellee entered the grocery from the Shelby Street side, purchased some groceries, went out the same door from which she entered, took one or two steps to her right, turned the corner and was injured when she fell over sacks of potatoes which were stacked alongside the store.

Appellants seek reversal of the judgment upon the following grounds:

“1. Was the plaintiff, Mary Bowman, guilty of contributory negligence as a matter of law in failing to see the obvious danger of a stack of potato bags 3 feet in height on a public sidewalk and in broad daylight?
“2. Was General Ordinance, section 519.02 of the City of Louisville violated by the appellants?
“3. Was the violation of General Ordinance, section 519.02, the effective cause of the plaintiff’s injuries?
“4. Does a violation of an ordinance relieve the plaintiff of the duty of exercising care for her own safety?
“5. Was it an abuse of discretion on the part of the trial j'udge to allow the reading of Ordinance, section 519.02, to the Jury?
“6. Did the court err in failing to give the instructions tendered by the defendants on the plaintiff’s contributory negligence ?
“7. On the whole case, did the lower court err in failing to give a directed verdict in favor of the defendants?”

Appellants contend that appellee was guilty of contributory negligence as a matter of law when she failed to see the sacks of potatoes. It is the general rule that a pedestrian has a. right to the free use of any portion of the sidewalk which is open for public use, and has a right to assume that it is free from obstruction and in reasonably safe condition for travel. Monroe v. City of Louisville, 278 Ky. 648, 129 S.W.2d 119; City of Providence v. Hunter, 231 Ky. 72, 21 S.W.2d 135.

The degree of care a pedestrian is required to exercise is set forth in the case of Winn-Dixie Louisville, Inc. v. Smith, Ky., 372 S.W.2d 789. In that case a pedestrian fell inside a store rather than on a public sidewalk. On the question of contributory negligence the court stated:

“ * * * While appellee was required to exercise ordinary care for her own safety, such did not require her to look directly down at her feet with each step taken. * * * She had a right to assume that the floor of the market would be free from obstructions of a dangerous nature. While she was required to exercise ordinary care for her own safety, she was not required to look for danger when there was no reason to apprehend danger.
“The question of contributory negligence is ordinarily one for the jury, and it is only when the proof is such that reasonable minds can draw but one conclusion, that is, that plaintiff was negligent, that the question is one of law for the court to decide.”

Applying this rule to the facts in the instant case we conclude appellee was not contributorily negligent as a matter of law.

Grounds 2, 3, 4 and 5, which deal with General Ordinance, section 519.02, and the reading thereof during the trial, will be considered together. To protect the traveling public from any dangers existing on its sidewalks or public thoroughfares, the City of Louisville passed General Ordinance, section 519.02, making it a violation to obstruct the sidewalk in any manner except as otherwise provided. After denouncing several specific obstructions the ordr mce contained the following words “or an thing whatever.” These words under a normal interpretation would include sacks of potatoes. It would appear that the appellants violated General Ordinance, section 519.02, and therefore the ordinance could be read to the jury. In the case of Severance v. Sohan, Ky., 347 S.W.2d 498, we held that it was in the sound discretion of the trial court whether or not the contents of an ordinance could be read to the jury.

The appellants requested the trial court give the following instruction :

“No. 2. It was the duty of the plaintiff at the time and place about which you have heard evidence to exercise ordinary care for her own safety and not to walk blindly into a danger, Or dangers, which were obvious, known to her, or that should be anticipated by one of ordinary prudence. Although you may find for the plaintiff under Instruction No. 1, but find further that at the time and place of the accident the plaintiff was herself negligent and by reason of her negligence caused or brought about the injuries about which she complains and that she would not have been [sic] but for her negligence in that respect, then you shall find for the defendants.”

The trial court refused to give it and gave the following instruction:

“No. 2. It was the duty of the plaintiff to exercise ordinary care' for her own safety, and to keep a reasonable lookout ahead, and if you believe from the evidence that she negligently failed in one or more of said duties, and thereby caused or helped to cause and bring about this accident, when but for such failure on her part the accident would not have occurred, then the law is for the defendants and you will so find, even though the defendants were also negligent.”

When analyzing both instructions, it is apparent that the trial court amply covered the law in giving its own instruction.

The record reveals that this case was properly submitted to a jury, and the trial court did not err in refusing to give a directed verdict as contended by appellants.

The judgment is affirmed.

HILL and OSBORNE, JJ., dissent.


author: CULLEN, Commissioner.

text:
    ASHLAND LUMBER COMPANY, Inc., et al., Appellants, v. Charles R. WILLIAMS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.
    Rehearing Denied March 24, 1967.

      H. David Hermansdorfer, Diederich & Hermansdorfer, Ashland, for appellants.
    James L. Ford, pro se.
    A. T. Bryson, Jr., C. B. Creech, Ashland, for appellees.
   CULLEN, Commissioner.

Appellants, Ashland Lumber Company and Pennco, Inc., manufactured aluminum windows and doors in a factory building in Ashland, Kentucky. The district in which the building was located was zoned residential, and the appellants’ use was a nonconforming one, permitted to continue because it predated the zoning. In 1964 the appellants obtained from the building inspector a building permit to erect another building on the premises. Protests by owners of residences in the district, not initiated until the new building was substantially completed, resulted in a revocation of the permit by the Board of Adjustment, an appeal to the circuit court from that action, and the filing of two independent lawsuits in the circuit court, one by the appellants and the other by the protesting neighbors. All of the proceedings were consolidated and a judgment was entered requiring the building to be removed within one year. The appeal here is from that judgment.

The appellants do not contend that the new building does not violate the zoning regulations, or that it may be maintained as a nonsubstantial departure from the original nonconforming use. They place their entire reliance upon the building permit, and argue that because no proper appeal was taken from its issuance, and because they acted in good faith, and because the neighbors did not protest promptly, the building should be allowed to stand.

We think that, unfortunately, the appellants’ reliances were badly misplaced. In the beginning, they discussed the matter with the city manager and the city attorney and chose to give weight to the latters’ opinions that the new building would be permissible as a mere continuation of the nonconforming use. There was no justification for any reliance there, because the city manager and city attorney had no authority at all to make decisions in zoning matters.

Next, the appellants proceeded to treat the building permit as some kind of final decision by proper authority that their proposed building would not violate the zoning regulations. Again there was no justification for reliance, mainly because the building inspector has no power or authority to make such decisions. See Goodrich v. Selligman, 298 Ky. 863, 183 S.W.2d 625. If the inspector issues a permit for a use that violates the zoning regulations the permit is no protection and its issuance does not estop the city from enforcing the regulations. Attorney General v. Johnson, Ky., 355 S.W.2d 305.

The appellants argue that the Board of Adjustment had no authority to revoke the building permit because (1) there was no provision in the ordinance for appeals from the granting of a permit and (2) if such appeals be considered to be governed by the provisions in the ordinance for appeals from the denial of a permit the appeal here was too late (not within 60 days). In our opinion this is all irrelevant because, regardless of what was done or not done by the Board of Adjustment, the circuit court had jurisdiction in the independent action brought by the neighbors to hold that the new building was in violation of the zoning regulations. KRS 100.980. However, we shall say that as we understand the zoning law it does not contemplate that neighbors ever are required, as a procedural prerequisite to relief, to appeal from the granting of a building permit. One simple reason why this is so is that the neighbors do not receive notice of the issuance of the permit.

The argument that the appellants acted in good faith is not convincing since they chose to ignore the zoning officials who did have authority in the matter, and instead they depended on two people with no authority at all in the matter, the city manager and city attorney, and one person who had mere ministerial functions, the building inspector. A few years previously the appellants had been required to obtain a court decision in order to build an open roof over part of their lot, so they were not ignorant of zoning requirements. Furthermore, if the appellants in good faith thought that the absence of an appeal from the issuance of the building permit gave them full clearance, they must have thought that there was an extremely short limit on the time for an appeal because they poured concrete within 25 days after the permit was issued and erected the structural steel within 44 days.

The appellants maintain that the neighbors should be estopped from seeking relief because they stood by and did nothing until the building was 90 percent finished. The evidence was that concrete footings were poured on December 7, and concrete blocks were delivered to the job on December 21, but the structural steel was not erected until December 28. Effective steps to stop the work were not commenced by the neighbors until January 25.

Considering the facts that concerted effort by a group of property owners naturally is slow in getting organized, and that a few years previously the appellants had been permitted by court order to build an open roof over part of their lot and it may not have been apparent in the early stages of the instant construction that a complete building was going up, we cannot conclude that the comparatively short period that elapsed here was such as to give rise to an estoppel. Furthermore, the good faith of the appellants is not so clearly shown as to require the conclusion that their proceeding with the construction of the building was in reliance rather than in gamble, upon absence of protest.

The appellants will suffer a substantial loss. However, we cannot escape the belief that they took a deliberate gamble, hoping to get away with the erection of a building which now they do not even suggest was permissible under the zoning regulations.

The judgment is affirmed.


text:
    BROWN HOTEL COMPANY, Appellant, v. Walter MARX, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1967.

      Charles F. Wood, Greenebaum, Barnett, Wood & Doll, Louisville, for appellant.
    Erwin A. Sherman, Herman Frick, Louisville, for appellee Walter Marx.

      John T. Ballantine, Ogden, Robertson & Marshall, Louisville, for Earl M. Roles.
   DAVIS, Commissioner.

Walter Marx obtained verdict and judgment of $8,213.35 as compensation for personal injury he sustained when his wrist was cut while he was a guest at The Kentucky Hotel (hereinafter hotel) in Louisville; the owner of the hotel appeals, asserting that it was entitled to a directed verdict. In testing that question we must ascribe to the evidence all reasonable inferences and deductions supporting appellee’s claim. Johnson v. Vaughn, Ky., 370 S.W.2d 591.

Marx, a salesman, rented a room in the hotel on April 8, 1963. The room was a large sample room in which Marx displayed merchandise to prospective buyers. It had accommodations for sleeping and was equipped with two bathrooms. Marx sustained the injury complained of in one of the bathrooms when he turned off a faucet in the bathtub. The faucet-handle was a porcelain appliance, x-shaped, and had been in service in the hotel since about 1927. According to Marx’ evidence, the faucet-handle crushed in his hand and he sustained a cut on the thenar eminence of his left hand.

The wound bled profusely. Marx released from his grasp the fragments of the faucet-handle as he observed the flow of blood; these fragments fell into the partially filled tub, and Marx saw them no more.

Arrangements were made promptly by the hotel’s management-employees for Marx to receive medical attention from Dr. Earl M. Roles; Dr. Roles was the “house” physician, although his office was not in the hotel building. The wound was treated and sutured by Dr. Roles shortly after the accident. Since Marx resided in Atlanta, Georgia, and would not be available for follow-up treatment by Dr. Roles the latter advised Marx to consult a physician of his own choice for removal of the sutures.

The following excerpt from the report of Dr. Roles will assist in understanding the nature and extent of the wound and treatment:

“Examination of the left hand, palmar aspect, revealed a laceration three-fourths of an inch in length over the thenar eminence.
“The wound was cleaned and Metaphin was applied. Under Xylocaine anesthesia four sutures were placed in the wound. Furacin dressing was then applied and he was given Emperin Compound for his pain.”

Marx suffered extensive pain in the member as he undertook to reach Atlanta; he was compelled to engage a man to complete the driving from Louisville to Atlanta. He gave testimony reflecting that his pain-experience continued and caused him substantial loss of time and extra expenses incident to his work. He did consult a doctor in Atlanta, on several occasions, but his pain and disability persisted. On November 19, 1963, Marx was examined by Dr. Harold E. Kleinert, a specialist in hand surgery, and was advised by Dr. Kleinert that his continuing trouble was being caused by some retained foreign body or “perhaps scar tissue.” He recommended remedial surgery. The surgery was performed in Atlanta in December; Marx responded rapidly and was substantially free of disability and pain in two or three months after the operation.

Marx sued the hotel and Dr. Roles. The action against Dr. Roles, premised upon alleged malpractice, was dismissed peremptorily by the trial court and Marx has not filed any direct appeal from that adverse ruling. His attempt to have appellate review of that phase of the case by cross-appeal has been denied since Dr. Roles was not a party to the appeal against Marx. CR 74.

The appellant contends that the evidence required a directed verdict for it because there was no showing of any alleged defect on the part of the hotel. Additionally, it is argued that there was no showing that the hotel could have obtained notice of the defect by the exercise of ordinary care, and that the premises were under the exclusive control of Marx for approximately 20 hours prior to the injury.

In support of its position the appellant relies upon Trembley v. Capital Co., Calif., (1949), 89 Cal.App.2d 606, 201 P.2d 398, and Hunter v. Hotel Sylvania Co., (1943), 153 Pa.Super. 591, 34 A.2d 816. In each of the cited cases intermediate courts of the respective jurisdictions refused to apply the doctrine of res ipsa loquitur in situations involving crumbling porcelain faucet-handles. For our purposes we may concede that the cited authorities support appellant’s' view, even though superficial distinctions could be suggested. We are of the view, however, that the reasoning adopted in those cases is out of harmony with the decisions of this and other courts, and we respectfully differ from the views enunciated by these sister jurisdictions.

The appellant concedes that the hotel had the duty to exercise that degree of care generally used by ordinarily careful, prudent hotel operators in circumstances similar to those proven in the case, to provide reasonably safe accommodations to Marx, its guest. But, appellant maintains, the hotel was not an insurer of the safety of Marx, and it cannot be held liable unless the proof shows that there was a dangerous condition of which the hotel knew, or by the exercise of ordinary care could have known. In short, the appellant contends that the proof must demonstrate that there was a dangerous condition and that the hotel had “notice,” actual or constructive, of it. As an adjunct to this reasoning the appellant maintains that there was nothing to show that additional inspections by its employees would have brought the defect to the hotel’s attention.

A closely related argument has been recently considered and decided adversely to appellant’s contention. See The Chesapeake and Ohio Railway Company v. Biliter, Adm’r, Ky. (decided February 3, 1967). In Biliter we observed, in part:

“Considering that railroad trains ordinarily do not fall into rivers in the absence of negligence, we think this was an appropriate case for the application of res ipsa loquitur.” Citing. Id.

It is our judgment that the res ipsa loquitur doctrine properly applies to the present case. Without explication of our reasons, we call attention to Bell & Koch, Inc., v. Stanley, Ky., 375 S.W.2d 696, and the authorities there discussed, as expressive of our views here as related to res ipsa loquitur.

It is not entirely without significance that an employee of the hotel gathered up the fragments of the shattered faucet just after the accident, and that the hotel never did produce these fragments for examination by Marx’ attorneys. The hotel explained that' these pieces had mysteriously disappeared from its custody, despite instructions that they were to be preserved.

As respects the inspections made by the hotel, the appellant contented itself by showing that maids regularly cleaned the bathrooms, and reported any defects they observed. We are not impelled to the conclusion that such inspections were so searching and effective as to afford appellant, as a matter of law, a complete defense to the present claim. Obviously the maids possessed no qualifications enabling them to inspect plumbing fixtures. Nothing in the record suggests that normally prudent operators of hotels use or regard this type of inspection as the degree of care required of them. We conclude that neither the court nor jury was required, as a matter of law, to accept this scant inspection as that degree of care usually exercised by ordinarily prudent hotel operators in circumstances similar to those at bar.

It follows, we think, that the appellant may not be heard to say that inspection would not have revealed the dangerous condition. The same argument was advanced in Chesapeake and Ohio Railway Co. v. Biliter, Adm’r, Ky., (decided February 3, 1967). As observed in Biliter, the argument is truly one addressed toward proximate cause. The application of the res ipsa loquitur doctrine is predicated upon the inference that the accident was caused by negligence. Here, as in Biliter and as in Propper v. Chicago, Rock Island & P. R. Co., 237 Minn. 386, 54 N.W.2d 840, 35 A.L.R.2d 459 there is an inference that a proper inspection would have disclosed the dangerous condition.

We are not impressed by the suggestion that appellant must prevail because the hotel room had been under the “exclusive” control of Marx for about 20 hours before the accident. In the first place, there was no showing that it was under his “exclusive” control; we perceive nothing in the record to indicate that the maids had been forbidden entry to the room in that interim. Neither is there a suggestion that the premises had been placed on a “do not disturb” basis. Nothing appears which would lend credence to the proposition that the room could not have been inspected, whether by the maids or a plumbing inspector or any other authorized agent of the hotel. For the reasons stated, we hold that the court properly denied appellant’s motion for a directed verdict on the question of liability.

Appellant presents a “hint,” at least, that nearly all of the damages sustained by appellee stemmed from improper medical treatment, so that it should not be held responsible. That question has been resolved adversely to appellant’s contention in this and virtually all jurisdictions. See City of Covington v. Keal, 280 Ky. 237, 133 S.W. 2d 49, 126 A.L.R. 905, for exegesis of the general rule. Simply put, the rule is that an injured person is required to use ordinary care and reasonable diligence to secure appropriate treatment of the injury; when he has exercised that care, he may recover damages to the full extent of his injuries, even though the doctor engaged for such treatment omits to use the most approved remedy, or the best means of cure, or fails to exercise as high a degree of care or skill as another doctor might have. The rule is recognized in Prosser, Torts, Sec. 511, pp. 318-319 (3d ed. 1964), in which it is written:

“A similar group of cases hold the defendant liable for the results of medical treatment of the injured victim. Even where such treatment is itself negligent, because of lack of proper skill or care, recovery for its consequences is permitted. It would be an undue compliment to the medical profession to say that bad surgery is no part of the risk of a broken leg. So long as the plaintiff himself has exercised reasonable care in his selection of a physician, the defendant will be liable for all ordinary forms of professional negligence.”

To the same effect is Restatement, Second, Torts, Sec. 457. It is plain that Marx was not negligent in selecting Dr. Roles; the hotel selected him. The trial court ruled as a matter of law that Dr. Roles was not negligent, and had ample basis in the record for the holding. ' No attempt was made to show that the Atlanta doctor was negligent, and more importantly, there is no evidence that Marx was negligent in his selection of the Atlanta physician. In these circumstances the hotel may not mitigate the damages flowing from its negligent activities because of the non-negligent and normal actions of Marx.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY, PALMORE, and STEINFELD, JJ., concur.


author: HILL, Judge.

text:
    Zelma Yarbrough ROARK, Appellant, v. Robert M. YARBROUGH et al., Appellees.
    Oourt of Appeals of Kentucky.
    Nov. 18, 1966.
    Rehearing Denied March 24, 1967.

      William E. Scent, Reed & Scent, Paducah, for appellant.
    Harry W. Roberts, Jr., Clinton, for ap-pellees.
   HILL, Judge.

This suit was instituted by appellees Robert M. and Cora L. Yarbrough to adopt their five grandchildren, ranging from eleven to four years of age, and a stepgrandchild, Danny Thomas Williams, age thirteen. Appellant, the mother of the children, married John Wright Roark shortly before this suit was filed. The father of the five children was the only child of appellees Robert M. and Cora L. Yarbrough.

The judgment of the circuit court allowed the adoption of the six children, and this appeal followed.

Appellant, a thirty-year-old mother, had one child before her marriage to Yar-brough. This child, Danny Thomas Williams, has resided continuously with the five younger children.

Appellee Robert M. Yarbrough is fifty-five years of age and Cora L. is fifty-one.

In their complaint appellees asked (a) that the parental rights of the mother and father of Danny Thomas Williams be terminated, (b) for a termination of the parental rights of the mother of the other five children, and (c) that a judgment be entered allowing them to adopt the six children.

The judgment appealed from sustained the prayer for adoption but declined to terminate the parental rights.

Ordinarily, consent of the parents must be obtained before adoption may be granted. KRS 199.500. But there are exceptions, one being found in KRS 199.-500(4) which we quote:

“Notwithstanding the provisions of subsection (1) of this section, an adoption may be granted without the consent of the natural living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of subsections (1) or (2) of KRS 199.600 exist with respect to such child.”

Subsection (1) of KRS 199.600 so far as applicable here is also quoted:

“In a proceeding involved a neglected or abandoned child, as defined in KRS 199.011, the circuit court may terminate all parental rights of the parents of such child and declare the child to be a ward of the state * * * if it is pleaded and proved in a private hearing that the parents have abandoned or deserted the child, or have substantially and continuously or repeatedly refused, or being able have neglected, to give the child parental care and protection * *

By amended complaint, the grandparents alleged in the language of the statute, supra, that “the parents * * * have substantially and continuously or repeatedly refused, or being able have neglected, to give the infant child parental care and protection.”

The circuit court declared in its “conclusions of law” that:

“The Court concludes that the plaintiffs are not entitled to the relief sought of terminating the parental rights as such because they do not belong to that class of persons set out in KRS 199.600 (1), but that they are entitled to adopt the children as they have alleged and proven pursuant to KRS 199.500(4) that certain facts set out in KRS 199.600(1) exist with respect to the said children." (Emphasis ours.)

Thus, it is apparent counsel for the grandparents and the judgment of the circuit court have threaded the needle of our adoption laws. The right of adoption being purely of legislative origin, the courts will not, under our three-division system of government, disturb the legislative arrangement, unless a constitutional right is violated or it is repugnant to public policy. Adoption may be harsh and drastic in some instances where a parent is deprived of his child in violation of his sacred and enduring natural rights, but the legislature has recognized the supremacy of guardianship of the State over that of the parent.

At the time of death of the father of the Yarbrough children on December 12, 1961, they resided one mile from their Yar-brough grandparents. Shortly thereafter, the grandparents constructed a house next door to their own home and caused the mother and her six children to move into it. Before long trouble started. Appellant contends the grandparents interfered too much in her private life and she could not have “male or female” visitors. About March, 1963, the mother took her “brood” and moved to Paducah. A few weeks later, the grandparents visited appellant and the children. While there, they reported to the McCracken County probation officer (who also acts at times as county judge pro tern with jurisdiction in juvenile cases under authority of Chapter 208 of Kentucky Revised Statutes) that the children were being neglected by their mother and were in deplorable condition. The probation officer made a number of visits to the appellant’s home in Paducah. On January 29, 1964, he “brought her (appellant) into county court on charges of contributing to the delinquency of minor children,” and she signed a written consent relinquishing the custody of her children. Whereupon, the grandparents were awarded custody by the McCracken County Court.

Without detailing for posterity the evidence upon which the able trial judge based his judgment (set out in fifteen pages of “findings of fact and conclusions of law”), it is sufficient to say that the evidence indicates appellant visited taverns and drank some but not much; left some or all the children unattended by an older person; that she has married a man fifty-one years of age, who drank considerably, was in jail for drinking and reckless driving, but who testified he has stopped drinking entirely; Roark has a farm, which he inherited, and his estate has decreased in value about $10,000 since he inherited it; that he has not had a regular job for years, although he plans to get one in the near future.

The oldest child testified that appellant neglected, did not care for, and did not properly feed the children; that the conduct of appellant was questionable; and that he desired to live with the grandparents.

The trial judge found the children to be happy, contented, and well adjusted with their grandparents; that they were modest and well behaved in church, school and during the court proceedings; that their present home is in a rural section where they are encouraged in habits of thrift and agricultural pursuits (perhaps one of the most gratifying activities of man); and that some of them have bank accounts.

We cannot say the findings of the trial judge were clearly erroneous.

Appellant raises the point that she was denied due process of law when “she was forced to surrender actual custody of the children under threat of criminal prosecution without benefit of counsel.”

There is no pleading or proof of “force,” pressure, or coercion, and there is no allegation or proof she was unable to employ counsel. Conceding she was unable to employ counsel, we do not consider her appearance before the probation officer or the county judge pro tem and the signing of a consent for custody to be such a proceeding as to require representation by counsel.

Finally, appellant contends the proceeding is void as to the stepgrandchild because he was not placed for adoption in the manner prescribed under KRS 199.470 (4) prior to the filing of complaint for adoption.

Here again we find an exception. KRS 199.470(4) provides that:

“No petition for adoption shall be filed unless prior to the filing of the petition the child sought to be adopted has been placed for adoption by a licensed child-placing institution or agency or by the department, or the child has been placed with written approval of the commissioner; but no such approval shall be necessary in the case of: (a) A child sought to be adopted by a stepparent, grandparent, sister, brother, aunt or uncle; * * *.” (Emphasis ours.)

The county court order placing the children in the custody of appellees was dated January 29, 1964. On December 2, 1964, the Child Welfare Department recommended and approved the placing of the children with the appellees. This suit was filed September 2, 1964. It is apparent, then, that the children were “placed” for adoption more than a sufficient period before the suit was filed. The only hitch is that the department did not actually do the “placing” of the children in appellees’ home. The Child Welfare Department recommended and approved the placement by the county court, which amounted to a placement by the department. Such action of the department may also constitute a waiver by the department of the right to supervise the placement of children for adoption. One of the chief reasons for placing children in homes three months before filing of suit for adoption is to enable the department to study and observe the arrangement to determine whether the adoption appears feasible. The purpose of the statute was served. Furthermore, it is doubtful that KRS 199.-470 applies in proceedings pertaining to “neglected” or “abandoned” children. Subsection (1) of KRS 199.600 empowers the circuit court to terminate all parental rights of parents of neglected or abandoned children. By implication, the court may “place” the children in the custody of some person or institution at the time the parents are divested of their custody.

Jouett v. Rhorer, Ky., 339 S.W.2d 865, cited and relied on by appellant, is not a parallel or similar factual case to the one at bar. In Jouett, the child was not destitute or abandoned. It was decided in Jouett that “[b]are neglect is not sufficient statutory grounds for such a severing” of parental rights.

We are mindful of the harshness and finality of adoption proceedings in some instances, but adoption laws have been enacted and public policy with respect to such laws clearly defined by the Legislature. Occasionally some hardships must be encountered. But, on the whole, our adoption laws are a social improvement, and they are fairly uniform.

The hardships that may appear inevitable in this case are unavoidable, but they may be minimized by humble and patient overtures on the part of the mother. Her situation is well described by her own testimony when she was asked and answered the following question:

“Q. What kind of mother have you been to the children?
“A. Up until some time ago not very good, I guess, but I mean we all make mistakes and I mean I see it now, but it’s a little late.”

The judgment is affirmed.


text:
    CITY OF FLEMINGSBURG, Kentucky, Appellant, v. PUBLIC SERVICE COMMISSION of Kentucky and Western Fleming County Water District, Fleming County, Kentucky, Appel-lees.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.
    Rehearing Denied March 24, 1967.
    William T. Walton, Flemingsburg, John Hopkins, Hazelrigg & Cox, Frankfort, for appellant.

      E. Gaines Davis, Jr., Smith, Reed, Yessin & Davis, Frankfort, Thomas R. Underwood, Jr., Lexington, for appellee Western Fleming County Water Dist., Fleming County, Ky.
    Robert Matthews, Atty. Gen., J. Gardner Ashcraft, Asst. Atty. Gen., Frankfort, for Public Service Commission of Kentucky.
   DAVIS, Commissioner.

The controversy here relates to whether water service shall be furnished to an area known as John Taylor Subdivision by the municipal water plant of Flemingsburg, or by the Western Fleming County Water District. The ruling of the Public Service Commission, affirmed in the circuit court, directs that the disputed area shall be served by the Western Fleming County Water District (hereinafter the District) to the exclusion of the municipal plant (hereinafter the City). The City has appealed.

For many years the City has operated a municipal water system. It has experienced critical water shortages on several occasions, and its officials treated with officials of the District with a view to the City’s obtaining water from the District for its patrons. These negotiations were fruitless.

The District was formed in 1960 pursuant to KRS Chapter 74. By order of the Fleming County Court, entered in 1963, the area in dispute was included in the territory in the District’s service area. At that time the Taylor Subdivision area was not within the corporate limits of Flemingsburg.

On February 13, 1964, the District made application to the Public Service Commission (hereinafter the Commission) for a certificate of public convenience and necessity permitting the construction of a water system sufficient to serve the area designated in the application, including the Taylor Subdivision. The City was not made party to that proceeding before the Commission, although much of the territory sought to be served lay within the territory contiguous to the City and potentially within its water service orbit as permitted by KRS 96.150. After a hearing on February 24, 1964, the Commission granted the District the requested certificate on April 23, 1964. The District sold revenue bonds, largely upon the strength of the Commission’s order, looking toward enlargement of its system for servicing the certificated area. The line from which the District anticipated serving the Taylor Subdivision area was of “extra” capacity to accommodate the demand anticipated by future Taylor Subdivision residents. However no water line was laid in Taylor Subdivision by the District.

Meanwhile the City had been active. Annexation proceedings had been instituted, and on June 1, 1964, the disputed Taylor Subdivision area was formally annexed by Flemingsburg. At that time there was no water service or facility within the Taylor Subdivision area.

This development prompted the District to file its complaint on January 15, 1965, before the Commission, asserting that the City was preparing to render water service in the Taylor Subdivision area in derogation of the District’s prior rights under its certificate. The City defended and insisted that it was ready, willing and able to serve the disputed area. As noted, the Commission ordered that the District be permitted to serve the area.

The City premises its appeal primarily upon Sections 163 and 164, Kentucky Constitution. For convenient reference we quote those constitutional sections:

163. “No street railway, gas, water, steam heating, telephone, or electric light company, within a city or town, shall be permitted or authorized to construct its tracks, lay its pipes or mains, or erect its poles, posts or other apparatus along, over, under or across the streets, alleys or public grounds of a city or town, without the consent of the proper legislative bodies or boards of such city or town being first obtained; but when charters have been heretofore granted conferring such rights, and work has in good faith been begun thereunder, the provisions of this section shall not apply.
164. “No county, city, town, taxing district or other municipality shall be authorized or permitted to grant any franchise or privilege, or make any contract in reference thereto, for a term exceeding twenty years. Before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly, and award the same to the highest and best bidder; but it shall have the right to reject any or all bids. This section shall not apply to a trunk railway.”

The City relies upon Whitaker v. Louisville Transit Co., Ky., 274 S.W.2d 391. In Whitaker it was held that Blue Motors, holder of a certificate to serve the Camp Taylor area, must yield that right to Louisville Transit Company. The dispute was precipitated when the Camp Taylor area was annexed to Louisville, and the court determined that Louisville had the superior right to determine whether the intra-city bus service should be furnished by Blue Motors or Louisville Transit. The basis for that holding is to be gleaned from these pertinent excerpts from the opinion:

“We think the rights of the parties became fixed as a matter of law when the Camp Taylor area was annexed in June, 1950.
“[1] We look now to what we consider the applicable law. It seems to us the logical starting point is the Kentucky Constitution, sections 163 and 164. It is clear from these two sections that the framers of the Constitution intended to confer upon cities the final right to decide whether a public utility may use or occupy the streets for an intra-city service. As already mentioned, this court so held in the People’s Transit Co. case, [People’s Transit Co. v. Louisville R. Co.], 220 Ky. 728, 295 S.W. 1055. * * *
“[2] Moreover, there can be no doubt that Transit’s franchise covers not only the territory within the boundaries of the city at the time the franchise was let, but also such additional territory as may from time to time be annexed by the city. In Truesdale v. City of Newport, Ky., 90 S.W. 589, 590, it was said ‘the limits of the city year by year determine the limits of the contract.’ ” Id., 274 S.W.2d at page 394.

While we recognize the fact that the Whitaker case dealt with a bus franchise as opposed to a water certificate, we are not persuaded that there is any difference in principle between the Whitaker case and the one at bar, despite efforts by appellees to distinguish them. For example, appellees urge that the constitutional provisions are inapplicable to the District because the latter is not a “water company” but a municipal corporation. The District is a body corporate having for its chief purpose the treatment, storage, sale and distribution of water. We think it is a “water company” within the meaning of the Constitution.

Another effort at distinguishing this case from Whitaker is equally as tortuous. It is suggested that since Section 163 of the Constitution provides that “No * * * water * * * company within a city * * * ” shall be permitted to lay its pipes etc. without prior city consent it has no application to the District, because the District is out of town. We are not so persuaded. It would be anomalous if the Constitution afforded cities such “final right” as to entities physically headquartered within the city and left them with no right as to those having operating bases beyond the city gates.

Appellees suggest that no constitutional right is at stake since the city’s rights, if any, relating to the Taylor Subdivision arose only by annexation — a mere statutory function. Since the District’s rights are also statutory it is reasoned that the Legislature intended that the pre-emptive rights accorded the District should supersede the rights any city might later acquire by statutory annexation. We regard the Whitaker decision as dispositive of this argument.

The present case does not present a situation similar to that presented in City of Cold Spring v. Campbell County Water District, Ky., 334 S.W.2d 269, in which we said that the Commission had the power to protect a water district from “ruinous competition” by a municipal system. The disputed service area in Cold Spring was not within the corporate limits of the city, by annexation or otherwise. Neither are we confronted with a situation in which the facilities of a competing utility were already installed when annexation to the city occurred; we do not pass upon what result would then obtain.

As regards the Legislative intent, it is not amiss to allude to KRS 74.120 (1) which provides:

“(1) All or any part of an incorporated city may be included in the boundaries of any existing water district or water district being newly organized, provided the governing body of such city by resolution or ordinance gives, or has given, its consent.”

The quoted statute lends support to the idea that the Legislature recognized the constitutional inhibition against admission of a water district into a city without the consent of the city.

Appellees contend that despite this court’s ruling in McClellan v. Louisville Water Company, Ky., 351 S.W.2d 197, a municipal water company must obtain a certificate from the Commission for new construction. City of Vanceburg v. Plummer, 275 Ky. 713, 122 S.W.2d 772 is cited in support of that point. KRS 278.020 is substantially the same as Section 3952-25, Carroll’s Kentucky Statutes, 1936 Edition, con strued in the Plummer case. It is our view that the decision in McClellan v. Louisville Water Company, Ky., 351 S.W.2d 197, overruled the Plummer case. It would be entirely inconsistent with the McClellan ruling to require a municipal water plant to obtain a certificate from the Commission. To the extent that City of Vanceburg v. Plummer, 275 Ky. 713, 122 S.W.2d 772, is inconsistent with the views expressed herein, it is overruled.

We are aware of the competing equities and matters of public policy here presented. For the appellees it is strongly urged that the integrity of the District’s territory must be preserved in order to assure the marketability of its bonds. Of course the same argument can be advanced for the City. The simple answer seems to be that ample opportunity for protection is afforded each type of entity, and neither should proceed precipitately in projection of future expansions within areas possessing ripe annexation characteristics. The impelling need for cooperation suggests that appropriate steps be taken by cities and water districts looking toward a mutually advantageous resolution of their problems before either commits itself to a long-range program of financing and expansion involving the questionable area.

The judgment is reversed with directions to enter a new judgment consistent with this opinion.


text:
    Eugene HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1967.
    Arthur L. Brooks, Jr., Jackson W. White, Clyde L. Stapleton, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Eugene Harris appeals from a judgment sentencing him to a term of 18 years in the penitentiary pursuant to a verdict finding him guilty of voluntary manslaughter. Upon a former trial he had been convicted of murder and given a life sentence, but that conviction was reversed by this Court in Harris v. Commonwealth, Ky., 389 S.W. 2d 907, for failure to give a voluntary manslaughter instruction.

The Commonwealth’s case rested on the testimony of one John Embry that he came out of a restaurant in Lexington and saw Harris and another man (the victim, Frank Johnson) standing at the curb ten feet away; Harris struck the other man in the stomach, and the man put his hand against his stomach and walked away, while Harris walked off in another direction. The victim died 11 days later as the result of peritonitis developing from a stab wound in his stomach.

During Embry’s testimony it was brought jut that he had not voluntarily gone to the police to tell them of his having witnessed the stabbing; however, it was not brought out by what means the police learned of the fact that Embry was a witness. This aroused the curiosity of one of the jurors and she approached the bench with the question, “Under what circumstances was Mr. Embry first called in by the police?” Appellant’s first claim of error relates to what took place in connection with the asking and answering of this question.

It appears from the record that the one juror, the Commonwealth’s attorney, his assistant, and the two defense counsel all were gathered around the judge’s bench, and that what was said was not within the hearing of the other members of the jury. The records shows this colloquy:

“JUROR: I want to know under what circumstances Mr. Embry was first called in by the police, when they first called him. I understand he did not come forward, is that right?
COMMONWEALTH’S ATTORNEY : Yes, sir, it involved hearsay which the Court has indicated could not be developed.
THE COURT: It is as [the Commonwealth’s attorney] has indicated, whatever he would have said in absence of the defendant wouldn’t be admissible, any statements he made before the officers would not be admissible and that wouldn’t be admitted in evidence.
JUROR: Since Mr. Johnson [the victim] was dead?
COMMONWEALTH’S ATTORNEY : No testimony of what he said, whatever he said.
DEFENSE COUNSEL: If he said anything.
ASSISTANT COMMONWEALTH’S ATTORNEY: There are circumstances under which Mr. Johnson might have said something and it not be admissible.
DEFENSE COUNSEL: We object to the Commonwealth testifying. If it’s going before the juror.
THE COURT: I tell you, let’s go back.”

Following this, the defense counsel made a motion for a mistrial, which was overruled.

Under Trent v. Commonwealth, 308 Ky. 640, 215 S.W.2d 555, and Houston v. Commonwealth, 270 Ky. 125, 109 S.W.2d 45, it was error for the trial court to undertake to answer, or permit counsel for the prosecution to answer, this kind of a question, and particularly so when out of the hearing of the other jurors. The court should have directed the juror to ask her question in the hearing of all the jurors, and then should have told the jury that the information requested could not properly be furnished and that the jurors must limit their consideration to the evidence received.

The Commonwealth in effect concedes that error was committed but argues that there was no material prejudice. We think there was material prejudice in that the comments by the Commonwealth’s attorney and his assistant could reasonably have been construed as meaning that the Commonwealth had some more good evidence of guilt which for a technical reason could not be admitted; that either Embry or the victim had said something of importance which the court would not let the Commonwealth introduce in evidence. The prejudice was subject to being magnified by distortion occurring when the one juror attempted to relay to the rest of the jurors her interpretation of the remarks by the prosecuting attorneys. It must be remembered that the Commonwealth’s case rested almost entirely on Embry’s testimony, and any innuendos or inferences the Commonwealth could inject to strengthen his credibility would help their case. Hence, anything improper along that line must be considered prejudicial.

It is our conclusion that the colloquy with the juror was reversible error.

Our conclusion makes it unnecessary for us to consider the appellant’s second argument which is that there should be retrospective application of the rule announced in Cowan v. Commonwealth, Ky., 407 S.W. 2d 695, to the effect that when a defendant, upon being asked for impeachment purposes whether he has been convicted of a felony, answers in the affirmative, no further inquiry can be made or evidence produced as to the nature or number of the felonies.

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

WILLIAMS, C. J., and HILL, MILLI-KEN, PALMORE and STEINFELD, JJ., concur.


text:
    Helen Rankin SHAW, Appellant, v. SIPPI PRODUCTS etc., Appellees.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.
    Rehearing Denied March 24, 1967.
    James E. Story, for appellant.
    Earle T. Shoup, Paducah, for appellee, Sippi Products.
    J. Keller Whitaker, Frankfort, for ap-pellee, Workmen’s Compensation Bd.
   HILL, Judge.

The opinion and order of the Workmen’s Compensation Board denying appellant’s claim for compensation was upheld by the circuit court. Claimant appeals to this court.

Appellant worked for appellee Sippi Products from 1957 until 1964 as a day laborer in the manufacture of pottery products at Paducah, Kentucky. She worked steadily the last three years of her employment. Her duties involved the finishing of clay lamps and necessitated the use of a wet sponge to smooth the surface; she removed all blemishes and seams from the lamp base in what is known as the green or raw stage before glazing. Chemicals were used in preparing the clay, but this record does not disclose the name or character of them.

During the year 1960, a “breaking out” commenced on appellant’s hands, which her doctors diagnosed as “contact dermatitis.” She continued to work until April 10, 1964. Claiming her condition “became affected by reason of an accident or disease arising out of and in the course of her employment,” she filed application for compensation on March 9, 1965.

Keeping in mind the scope of review vested in this court by KRS 342.285 (as amended in 1964) and announced in Lee v. International Harvester Company, Ky., 373 S.W. 2d 418 (1963), we examine the record to determine whether or not the evidence was so “clear-cut and convincing that we could justifiably conclude that the Board acted erroneously as a matter of law” in disallowing appellant’s claim for compensation.

Dr. Joseph R. Miller, a general practitioner, testified for appellant. Dr. C. M. Blanton of Paducah, a dermatologist, testified on behalf of appellee.

Dr. Blanton examined appellant in April and November of 1960. He requested a sample of the clay products with which appellant worked for the purpose of running tests thereon, but he was never furnished with a sample. The net result of his testimony was that appellant’s condition “possibly” was work-connected. He said: “It is possible, yes, but not probable.” He was also questioned and answered as follows:

“Q. Were you ever able to determine what was causing it ?
“A. No, not exactly. In other words, I could not prove it. I knew it was a contactant. It might have been what she was working with, and then it could have been other things, too, but I never was given the chance to prove definitely what it was caused by.”

It is considered advisable, due to the fine distinctions contained in our case law in the matter of judicial review in compensation cases, to quote at length from the testimony of Dr. Miller:

“Q. Dr. Miller, would you tell the board whether or not in your opinion, based upon reasonable medical evidence and history that you obtained in this case, whether this condition was the result of her occupation?
"A. In my opinion or it was my opinion in 1962 that her condition was due to an allergy to the products she used in her occupation and I haven’t changed my mind since then.”
“Q. You stated that your final diagnosis was that this lady was suffering this rash or reaction because of an allergy to the products with which she worked ?
“A. That’s right.
“Q. That was an inherent and inborn sensitivity of this woman to these things ?
“A. Thats (sic) right.”

On cross-examination Dr. Miller was asked and answered as follows:

“Q. You couldn’t state with medical certainty or with reasonable medical certainty that it is absolutely due to one, two or three specific things?
“A. I have never said that. I said it was possibley (sic) from clay products, I have not given her tests because I have no way of doing tests.”

The preceding testimony of Dr. Miller presents the troublesome question of whether the evidence of Dr. Miller, along with appellant’s evidence, was so clear-cut and convincing that we could justifiably conclude that the Board acted erroneously as a matter of law. It should be noted that appellant testified her trouble began in 1960, three years after she commenced work for appellee.

A fair evaluation of the evidence of Dr. Blanton gives us this result: It was possible that appellant’s disease was work-connected “but not probable.” This is a clear and unequivocal expression of opinion by Dr. Blanton that it was “not probable” that appellant’s disease was work-connected. His evidence presented an issue that must be left to the fact-finding board to resolve.

Appellee makes a vicious attack on the testimony of Dr. Miller because he stated on cross-examination, “it was possibly from clay products” that appellant developed the disease complained of. Of course, the probative value of this part of his testimony was seriously impaired, but it is unnecessary to belabor this point for, considering the whole of his testimony, we think Dr. Miller intended to and did testify that in his opinion appellant’s disease was work-connected.

It is our conclusion a real factual situation was presented by the evidence, and we cannot say the Board’s order was clearly or otherwise “erroneous on the basis of the reliable, probative, and material evidence contained in the whole record.” See Miller v. Olin Mathieson Chemical Corporation, Ky., 398 S.W.2d 472; Lewis v. United States Steel Corporation, Ky., 398 S.W.2d 490; and Kelly Contracting Company v. Robinson, Ky., 377 S.W.2d 892.

Considerable space was devoted by both parties to this litigation in their briefs to that part of the judgment of the circuit court wherein the court observed:

“As a matter of fact, this Court is of the opinion that the net result of the Board’s order finds support in the record on two other bases, to wit, the record does not show conclusively that the plaintiff was disabled, and a serious question is raised regarding the timeliness of the notice given by the plaintiff to her employer."

This observation or opinion of the trial court was unnecessary to an affirmance of the order of the Board. The fact remains the judgment appealed from clearly affirmed the Board, and it makes little difference what ground the trial court assigned for so doing. See KRS 342.285 and Entwistle v. Carrier Conveyor Corporation, Ky., 284 S.W.2d 820.

There is other evidence to be found in the record tending to support the finding of the Board; that is, the circumstances surrounding the termination of appellant’s employment by appellee. She testified in a hearing before the Unemployment Compensation Commission that she left appel-lee’s employment to get married. In said proceeding before the Unemployment Compensation Commission, she admitted by implication that she was not disabled when, in reply to question by the referee regarding the obtaining of other employment, she said: “No. I’ve been looking for work though. I’ve been trying to.” The weight of this evidence may have been light; but the scales to determine that weight have been placed by the Legislature in the possession of the Workmen’s Compensation Board, not in the courts.

The judgment is affirmed.


author: OSBORNE, Judge.

text:
    ROYAL JELLICO COAL COMPANY, Appellant, v. Tom L. CUNNINGHAM, and the Workmen’s Compensation Board, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1967.

      Robert L. Milby, Hamm, Taylor & Milby, London, for appellant.
    J. B. Johnson, Jr., Williamsburg, for ap-pellee.
   OSBORNE, Judge.

This is an appeal from a judgment of the Whitley Circuit Court affirming an award by the Workmen’s Compensation Board to appellee Tom L. Cunningham. Appellee was injured in a mine accident when he was struck by a shuttle car and pinned between the car and a wall of the mine. The blow fractured his left hip. As a result of the fracture, he was hospitalized in Nashville, Tennessee, where the fracture was repaired by the insertion of a metal pin or screws. Following the repair to the fracture, he was placed in a body cast and remained in the hospital for three weeks.

Appellant contends that the medical testimony is not sufficient to support the award because it does not show that the disability which appellee now has was caused by the fracture to the hip. The record discloses that he was fifty-two years old at the time of the injury and that he had been working in the mines for some thirty-five years; that the work which he performed required considerable crawling, bending and stooping. The medical testimony by specialists in the field of orthopedic surgery places his disability at somewhere between 8% and 100% total. With this range of testimony, the Board was free to award total disability, which it did.

The proof showed that Appellee was unable to continue work in the mines and we have held many times that if a workman is totally disabled from the performance of work in his former occupational classification and his capacity to perform other work is impaired, he is entitled to compensation for total disability. E. & L. Transport Company v. Hayes, Ky., 341 S.W.2d 240, 84 A.L.R.2d 1102; Leep v. Kentucky State Police, Ky., 366 S.W.2d 729.

Appellant also contends that Appellee had a pre-existing arthritic condition in his spine which contributed to his disability. The testimony of the doctors show that they considered this factor, but that they limited their testimony to the condition in the hip.

It is our opinion that the record contains ample testimony to support the judgment of the trial court and the award of the Workmen’s Compensation Board.

The judgment is affirmed.

All concur.


author: CULLEN, Commissioner. STEINFELD, Judge

text:
    Robert AYOTTE et al., Individually, etc., Appellants, v. CITY OF DANVILLE, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1967.

      P. Joseph Clarke, Jr., Donald D. Harkins, Danville, for appellants.
    Henry V. Pennington, Danville, for ap-pellee.
   CULLEN, Commissioner.

At the November 1966 election the voters of Danville, a city of the third class, adopted the city manager form of government, KRS 89.390 to 89.680. A few days thereafter the mayor, who had been elected in 1965 for a four-year term expiring in January 1970, resigned. The resulting situation created some questions which were submitted to the circuit court in this declaratory judgment action brought by the city against several' representative citizens, voters and taxpayers. The latter have appealed from the judgment entered by the circuit court. (The city filed notice of cross-appeal but did not perfect a cross-appeal.)

The principal adjudication by the circuit court was that the election to be held in November 1967 to fill the vacancy in the office of mayor was not “the first regular election at which the mayor of the city is elected after the election at which the city manager form of government was adopted,” within the meaning of KRS 89.430(2); therefore commissioners under the new form of government could not be elected at that election; and the new form of government would not become effective and go into operation, under KRS 89.430(4), until qualification and installation of the mayor elected for a full term in 1969 and of the commissioners to be elected at the same time.

The adjudication was rested on the interpretation that “regular election at which the mayor of the city is elected,” as used in KRS 89.430(2), means an election for a full term and not an election to fill a vacancy. Such was the interpretation placed on this statute by this court in Purdom v. Hays, 260 Ky. 82, 83 S.W.2d 846.

The appellants urge that Purdom v. Hays should be overruled because it was wrong to begin with and because subsequent changes in the election laws have made it clear that “regular election” means any November election at which state or local officers are to be elected. We are not persuaded. We think that when reference is made to a “regular election” for a particular office the purpose is to designate the election for a full term as distinguished from an election to fill a vacancy. While the latter election may be held at the time of the regular election for other offices, it is a special election as concerns the filling of the vacancy.

It is argued that the only purpose of the legislature in postponing the election of commissioners under the new form of government until the next election for mayor was to avoid disturbing an incumbent mayor’s administration, and that this purpose would not be violated by electing the new commissioners at the first opportunity after a mayor had died or resigned. We think, however, that the legislature had a clear purpose to fix a definite date for election of the new commissioners and commencement of the new form of government, to enable appropriate preparation to be made, and that this purpose would be frustrated if the time of the election were to be determined by the happenstance of a death or resignation.

We choose to adhere to Purdom v. Hays.

A second adjudication in the judgment below was that the provisions of KRS 89.440 for a primary election would not apply in the election of 1967 to fill the vacancy in the office of Mayor of Danville, because the city manager form of government would not yet be effective. It is conceded by the appellants that this adjudication is correct if Purdom v. Hays be adhered to.

A third adjudication was that four commissioners, not merely two, shall be elected in 1969. Prior to 1958 the statutes provided that in third-class cities having the city manager form of government there should be only two commissioners. By a 1958 amendment to KRS 89.430 the number was increased to four; however, the legislature neglected to make necessary adjustments in KRS 89.440 and 89.450. These adjustments, except for one minor oversight, were made by 1966 amendments to the latter sections. There really is no room for questioning that the number of commissioners is to be four.

While an actual controversy did not rage at the particular time this lawsuit was filed with respect to the three questions hereinbefore discussed, we think such a controversy was so imminent and inevitable as to warrant a declaration of rights. See KRS 418.040; Payne v. Davis, Ky., 254 S.W.2d 710. However, as concerns a fourth question — whether the salary of the city manager to be chosen in 1970 will be limited by Sec. 246 of the Kentucky Constitution— no semblance of an actual controversy can be said to exist at this time. Accordingly, the circuit court should not have made a declaration on that question.

To the extent that the judgment makes a declaration on the question of whether Section 246 of the Kentucky Constitution applies to city managers it is reversed with directions to omit any declaration on such question; in all other respects the judgment is affirmed.

All concur except STEINFELD, J., who dissents.

STEINFELD, Judge

(dissenting).

I concur in the opinion of the Court except the part which holds that the parties may have a declaration of rights. There is presented no justiciable controversy. I adhere to the rules announced in Shearer et al. v. Backer, 207 Ky. 455, 269 S.W. 543 and Board of Education of Berea et al. v. Muncy et al., Ky., 239 S.W.2d 471. The opinion is advisory. We do not have the right to advise. In re Constitutionality of H.B. 222, 262 Ky. 437, 90 S.W.2d 692, 103 A.L.R. 1085; Combs, Governor v. Matthews, Ky., 364 S.W.2d 647.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF CHILD WELFARE, Appellant, » v. Elmer Clyde HELTON et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 24, 1967.

      Lynn T. Mitchell, Frankfort, for appellant.
    Cordell H. Martin, Hindman, for appel-lees.
   DAVIS, Commissioner.

This appeal presents the question of parental rights with respect to an infant. The trial court adjudged that appellees have the parental rights in the child; the appellant Department contends that the parental rights are vested in it.

On March 9, 1964, the child in question was born in Pikeville. The mother of the child is the present Mrs. Helton, one of the appellees herein (to whom we shall refer as Mrs. Helton). It is conceded by the parties that the true father of the infant is appellee Elmer Clyde Helton. At the time of the child’s birth Mrs. Helton was lawfully married to Phillip Hall, from whom she had been separated for quite some time. At the time of the child’s birth Mr. Helton had a lawful wife other than the mother of the child.

A child welfare worker employee of the Department was notified to come to the hospital in Pikeville to see the appellee, Mrs. Helton. She testified as to the interview she had with appellee on that occasion, and said that appellee advised her that she desired to place the child for adoption. Accordingly, the welfare worker caused to be prepared a petition for voluntary termination of parental rights. KRS 199.620. The petition, duly subscribed by appellee, was filed in the Pike Circuit Court; Mrs. Helton appeared before the presiding judge of that court, and on March 19, 1964, there was entered an “Order Terminating Parental Rights and Order of Judgment” as prescribed by KRS 199.630. It is observed that the order recited that the matter had been heard on the petition of the “natural mother and legal father” of the child. Testimony in the record reflects that Hall, legal husband of Mrs. Helton, had also filed a petition for voluntary termination of his parental rights, although no authenticated copy of that petition appears of record before us. After the formal recitals, the order terminating parental rights provides, in part:

“It is ordered and adjudged that the Department of Child Welfare, Commonwealth of Kentucky, be and it is hereby awarded the full care, custody and control of [the named infant] ten days of age, and that all rights of said child’s natural mother and legal father in and to said child be and they are hereby terminated.”

The order terminating parental rights has never been modified. No direct attack upon it has been made by anyone at any time.

The child remained in the physical custody of the Department from March 19th, 1964, until September 4th, 1964, at which date the Department allowed the physical custody of the child to Mr. and Mrs. Helton. It is to be noted that Mrs. Helton and Mr. Helton had obtained divorces from their respective spouses and married each other on August 1st, 1964. Evidence by the Department was to the effect that it was clearly made known to the Heltons that the child was being delivered to them on a conditional basis, and that the Department retained legal parental rights in and to the child. The Heltons testified that workers of the Department assured them that if they became lawfully married the child would be restored to them permanently.

On two or three occasions between September 4, 1964, and June 1965, the child was voluntarily delivered by the Heltons to a Department-approved boarding home. On the last occasion, the evidence warrants the conclusion that Mrs. Helton arranged for a Department worker to get the child shortly after midnight when Mr. Helton had left home to start his “owl” shift in the mine. Evidence was adduced for the Heltons to reflect that they can and will afford the child a suitable home. There was other testimony lending support to the proposition that the best interests of the child will be served by its being placed for adoption outside the Helton home. Our view of the case leads us to the conclusion that the evidence touching this point is not relevant or dispositive.

The order of the Pike Circuit Court terminated the parental rights of Mrs. Hel-ton. Nothing has occurred which could be held to have legally restored those rights. So long as that order remains in force, Mrs. Helton stands at bar as a stranger to the child from a legal point of view. Although appellees place reliance upon Warner v. Ward, Ky., 401 S.W.2d 62, it is our view that the decision in Warner militates against the position of appellees here. In Warner there was no question of- a judgment terminating parental rights; that was a situation in which a voluntary consent to adoption was held to be revocable in the circumstances presented. It is significant to observe that in Warner the court was at pains to point out that no question was presented of a judgment terminating parental rights, using this language:

“Appellants contend that consent is unnecessary when parental rights are terminated. KRS 199.500(4), 199.600. They • did ask in their petition that Shirley Ann’s parental rights be terminated, but they neither pleaded nor proved the matters set forth in KRS 199.600 as essential to such termination.” Id., 401 S.W.2d at 64.

Although we are fully mindful of the claims which may be made in behalf of a mother’s rights to her child, we are equally aware of the salutary purpose underlying the laws of adoption. Occasions do arise when parents realize the unhappy necessity of their surrendering parental rights, sometimes involuntarily (as prescribed by KRS 199.600), and sometimes voluntarily (as prescribed by KRS 199.620). The entire adoption program would be utterly frustrated if judgments terminating parental rights were to be lightly regarded. The prospective adoptive parents, the Department, and indeed the parents whose rights have been terminated would have no assurance of when or if an adoption could be effected if the termination were regarded as revocable. ■ That this condition would militate against the best interests of the child and the public at large hardly needs elaboration.

Neither are we persuaded that Mr. Helton had any parental rights in the child. Although it appears to be conceded that he was the father of the child, it is certain that he was not the lawful husband of the child’s mother at the time of the birth. Before he ever became the lawful husband of the mother, the child’s mother and her then lawful husband had effectively terminated any parental rights they may have had. His subsequent marriage to her did not serve to establish parental rights in either of them as to the child. This circumstance distinguishes this case from WarneP v. Ward, Ky., 401 S.W.2d 62. The trial judge had the view that KRS 391.090 served to legitimatize the child when the Heltons married. That statute relates t8 illegitimate children; the child involved in this litigation was born in lawful wedlock and has never been illegitimate. Hence, KRS 391.090 has no application.

In their complaint the Heltons sought the custody of the child and prayed that they be permitted to adopt the child. The trial judge conceived that adoption within the purview of KRS, Ch. 199 was unnecessary because he had the view that KRS 391.090 had the effect of making the Hel-tons the lawful parents for all purposes. In this, as we have said, we believe the trial court erred. In this state of case we reverse and remand for appropriate proceedings looking toward an adjudication of whether the Heltons are entitled to adopt the child as provided in KRS, Ch. 199.

The judgment is reversed for proceedings consistent with the opinion.

All concur.