author: BRADY, Commissioner. BRADY, Commissioner.

text:
    Edgar L. WELBORN, Jr., Employee, Plaintiff-Appellant, v. SOUTHERN EQUIPMENT COMPANY, a Corporation, Employer, and Aetna Casualty & Surety Company, a Corporation, Insurer, Defendants-Respondents.
    No. 31579.
    St. Louis Court of Appeals. Missouri.
    Dec. 15, 1964.
    Rehearing Denied Jan. 26, 1965.

      Schuchat, Cook & Werner, James K„ Cook, St. Louis, for piaintiif-appellant.

      Luke, Cunliff, Wilson, Herr & Chavaux, C. F. Luke, Robert R. Schwarz, St. Louis, for defendants-respondents.
   BRADY, Commissioner.

In this Workmen’s Compensation action the appellant seeks medical aid and compensation for temporary total disability and for permanent partial disability in an amount which, independent of all contingencies, does not exceed the monetary jurisdictional limit of this court. The referee, the Industrial Commission, and the circuit court of the City of St. Louis have each denied compensation to the claimant. The appellant, the respondent, and the Industrial Commission will hereinafter be respectively referred to as the claimant, the employer, and the commission.

The claimant alleged that he sustained an accidental injury on July 20, 1960, when he and another employee were lifting a cafeteria counter from a four-wheel dolly to the ground. The counter weighed between 200 to 400 pounds, and when the other employee suddenly let go of his end, the claimant, still holding on to his end of the counter, was pulled sharply to one side and his back was jerked. At that time he experienced a sharp pain in his back which lasted just for an instant. The claimant was asked whether he reported the accident and if so, what he said. His testimony was that on the last Friday of July, 1960, some days after the accident, he asked his foreman if he couldn’t get off to go to the doctor and the foreman said that he could not, whereupon the claimant said, “O-kay.” The claimant did not ask to be sent to a doctor or to go to the company doctor. There is no evidence that the claimant told the foreman why he wanted to go to a doctor nor that he informed the foreman of the occurrence of the accident. After this experience the claimant had a pain in his back whenever he bent over to lift anything. On August 1, 1960, he sought medical aid for his back trouble from his personal physician, a Dr. Gibson of Potosí, Missouri. He continued to see Dr. Gibson about every two months and then in March of 1961 he went to another physician in Potosi for the same complaint. The claimant went to both of these doctors on his own initiative and he alone paid for their services.

On August 23, 1961, more than a year after the accident, the claimant was told by the employer that he was fired, whereupon he informed the employer that he had trouble with his back. The employer sent him to a Dr. Reineck, the employer’s physician.

The referee denied compensation on the ground that the claim was not timely filed. The commission sustained the referee’s denial of compensation and in so doing made the following findings: that the accident occurred “ * * * on or about July 20,1960 * * that on August 1, 1960, it became reasonably discoverable and apparent to the claimant that he had sustained a compensable injury; that the employer and insurer paid no compensation and furnished no medical treatment on account of that injury for the year ending August 1, 1961, but did send the claimant to a doctor for treatment on August 23, 1961; that “ * * * [tjhis did not revive the claim. The action to toll the running of the statute must take place before the period has expired * * * ”; that the filing of the claim on September IS, 1961, was not timely; and that the claim was barred by the provisions of Section 287.430, RSMo 1959, V.A.M.S.

The claimant raises two allegations of error. First, he contends the commission prejudicially erred in holding that the date upon which he sustained the compensable accident was August 1, 1960. The second allegation of prejudicial error is that the commission should not have held the claim to be untimely filed. Our duty upon review of this case is to determine whether the commission could have reasonably made its findings and reached its result

upon a consideration of all the evidence before it. We are not to substitute our own judgment of the evidence for that of the commission and are to set aside the commission’s decision only if it is clearly contrary to the overwhelming weight of the evidence. Riggs v. A. P. Green Fire Brick Co., Mo.App., 376 S.W.2d 635. However, a far different duty is placed upon us when we are presented with a decision of the commission which is clearly the interpretation or application of the law. Decisions of the commission falling in this area are in no way binding upon us. Mo.Digest, Workmen’s Compensation, A finding of ultimate facts reached by the application of rules of law rather than by a process of reasoning from the facts is a conclusion of law and we are not bound by any conclusion of law made by the commission. Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61.

In support of his contention that the commission should have placed the date upon which the claimant sustained a compensable accident later than August 1, 1960, he relies upon Hundley v. Matthews Hinsman Co., Mo.App., 368 S.W.2d 528 and Crites v. Missouri Dry Dock & Repair Co., Mo.App., 348 S.W.2d 621. It is unnecessary to discuss either of these two cases. The Hundley case was certified by the Kansas City Court of Appeals to the Supreme Court of this state and that opinion is reported in 379 S.W.2d page 489. Therein (1. c. page 495) it was held that “ * * * the fixing of the date when the existence of a compensable injury is reasonably discoverable is, in large part at least, a question of fact. * * * ” That being so, the Supreme Court went on to state that since it found that the commission’s finding as to that date supported by substantial and competent evidence, the court should not substitute its judgment for that of the commission. In the case of Dees v. Mississippi River Fuel Corp., Mo. App., 192 S.W.2d 635, it was held that a compensable injury is reasonably discovered either when the employee is disabled as a result of the accident, an event which did not occur in the instant case, or when the claimant is in need of medical or surgical treatment for the injury, an event that in the instant case took place on August 1, 1960. It was also held in the Dees case that when either of the conditions exist, that is, either when the claimant is disabled as a result of the accident or when he is in need of medical treatment, the right to compensation exists and the limitation begins. In the instant case there is no dispute but that the claimant found himself in need of medical or surgical treatment for the injury on August 1, 1960. Accordingly, the finding of fact made by the commission affixing the date that the claimant sustained the. compensable injury as of August 1, 1960, is supported by substantial and competent evidence and must be affirmed. Hundley v. Matthews Hinsman Co., 379 S.W.2d 489.

The claimant’s contention that the commission erred in holding his claim untimely filed is essentially a matter of statutory construction. It is a conclusion of law upon which we are not bound by the decision of the commission. Williams v. Anderson Air Activities, supra. Section 287.-430, supra, provides: “No proceedings for compensation under this chapter shall be maintained unless a claim therefor be filed with the commission within one year after the injury or death, or in case payments have been made on account of the injury or death, within one year from the date of the last payment. * * * ” (Emphasis supplied.) In its application to the instant case, Section 287.140(1), RSMo 1959, V.A. M.S., provides that for the first ninety days the employer is under an absolute duty to furnish medical aid. After the expiration of that ninety-day period the employer is only obligated to provide such additional similar treatment as the commission by special order may determine to be necessary. The rules for construing these statutes are too well known to require citation. We are to ascertain the legislative intent from the words used, if possible, and to award to the language of the statute its plain and natural meaning having in mind the object of the statute. Unless a statute is incongruous or unintélligible we are not to insert words into it and neither are we authorized to delete words for we cannot presume the legislature intended to use superfluous or meaningless words in a statute. To the contrary, we are adjured to give every word, phrase, and sentence of the statute some meaning unless to do so conflicts with the purpose for which the legislature enacted the statute. All the provisions of a comprehensive code such as the Workmen’s Compensation Act of this state are to be construed together.

Igoe v. Slaton Block Co., Mo.App., 329 S.W.2d 39, is on all fours as to all essential points with the instant case. In the Igoe case and in the instant case the employee went to a doctor of his own selection and at his own cost after the occurrence of the accident. In each case the only medical aid the employer gave was not furnished until more than one year after the injury. In each case the claimant did not file his claim until more than one year next following the date of the accident. It has been consistently held that the action of an •employer in furnishing medical aid to an injured employee constitutes a payment on account of the injury. McEneny v. S. S. Kresge Co., Mo.App., 53 S.W.2d 1075 [aff. .333 Mo. 817, 62 S.W.2d 1067],

In its per curiam opinion dealing with matters raised by the claimant’s motion for rehearing the court in Igoe made reference to Mussler v. American Car & Foundry Co, Mo.App, 149 S.W.2d 429, and Parker v. St. Louis Car Co., Mo.App, 145 S.W.2d 482, both being decisions of this court. While the pertinent dates are not set out in Igoe, reference to the opinions in Mus-sler and Parker shows them to have been ruled upon the following state of facts. In the Mussler case the accident occurred .on February 27, 1937. Medical attention was immediately furnished by the employer and the court found that such medical attention was continued to be furnished until October 22, 1938. The claim was filed on December 30, 1938. In the Parker case the accident occurred on June 11, 1937 and medical attention was immediately furnished the claimant by the employer. The court found that the employer last furnished medical attention to the claimant on February 4, 1939. The claim was filed on February 28, 1939. As is obvious from this brief statement of facts the claim in each of these cases was filed more than one year next following the date of injury but within the six-month period of limitation then in force for payments made on account of the injury. See also Buecker v. Roberts, Mo.App, 260 S.W.2d 325; Morrow v. Orscheln Bros. Truck Lines, 235 Mo.App. 1166, 151 S.W.2d 138; and Blahut v. Liberty Creamery Co, Mo.App, 145 S.W.2d 506. The grounds upon which the court in Igoe distinguished Mussler and Parker were that (329 S.W.2d 39, 1. c. 45) “ * * * In each of those cases the claimant received medical attention before expiration of the limitation time period, whereas, in our case he neither filed a claim nor received any medical attention until after the limitation period of one year had expired. * * * ” The court also refused to rule upon whether § 287.430, supra, extinguishes the right in the claimant or, on the other hand, is a statute of repose operating only on the remedy. In this connection the court specifically held that under either view the claim was untimely filed. Igoe therefore holds that even though a claim be filed within one year following the last date of a payment made on account of the injury that claim is untimely filed unless there have been payments made on account of the injury or a claim filed within one year following the date of the injury. In so ruling the court in Igoe refused to interpret the provisions of § 287.430, supra, so “ * * * that if a claimant neither filed a claim, nor received benefits within one year and yet one month or five years later visited a company doctor for examination, and treatment * * * his cause of action was thereby revived and he had one full year additional thereafter to file his claim. * * * ” The court .■stated, “ * * * Such a result would defeat the underlying object of this limitation legislation. Instead of tending to eliminate, it would tend to encourage, the litigation of stale claims. Instead of promoting the friendly, helpful and freely .■given medical examination and aid by the ■employer through the company doctors, it •would rather make them afraid to even ■examine an employee lest thereby they Tevive a claim based on an injury which ■occurred years earlier and expose themselves to liability for it. * * * ”

We cannot agree with the decision reached by the Kansas City Court •of Appeals in Igoe. To our mind the rules ■of statutory construction set out earlier herein compel the contrary result. § 287.--430, supra, is plainly worded, unambiguous, .and unequivocal. That section sets out -two tests which are to be applied to determine whether the proceeding for compensation is timely filed. We are first commanded by the language of the section to .ascertain if the claim was filed within one ■year following the date of injury. Then using the words "“or in case” to clearly indicate the legislative intention that the language following those words was to he considered separate and apart from the language that preceded their use, the legislature set forth the second test to determine whether or not a claim is timely ■filed. This it did by informing us that a ■claim may be considered timely if it was filed within one year following the date of the last payment made on account of the injury. It is to be noted that the language preceding the words “or in case” contains no reference, by wording or by implication, to payments made on account ■of the injury or death, the matter covered by the language following the use of the .separating phrase. The language pre•ccding that separating clause deals solely with the period of one year following injury. It is likewise to be noted that the language following the separating phrase makes no reference, by word or by implication, to the matter referred to in the language preceding the separating phrase. We cannot hold that the legislature inadvertently used the phrase “or in case.” Neither are we allowed to disregard it nor can it reasonably be given any meaning other than that which indicates a clear intention to separate the tests for timeliness contained in the section. Accordingly, we think the Igoe case in error when it makes any connection between the receipt of medical attention (or any other form of payment made on account of the injury or death) and the limitation period of one year following the injury or death. In our opinion we would be indulging in judicial legislation if in the face of such a clear expression of legislative intent we were to hold that the period of limitation running for one year from the date of the last payment made on account of the injury is inapplicable and cannot render a claim filed within that period timely unless there has been a payment made on account of the injury within the period of one year following the date of the injury.

However, we do not rest our decision upon the rules of statutory construction alone even though we believe that foundation more than adequate to support the burden. Even in the event § 287.-430, supra, is not held subject to the construction which we believe is required by a decent regard for the intent of the legislature as it appears from the clear wording of the statute, the very issue which the court in Igoe refused to determine leads inevitably and inexorably to the same result. That issue is whether the limitation provision stated in § 287.430, supra, operates to extinguish the right of the claimant to bring a Workmen’s Compensation proceeding or whether the limitation provision stated in that section is a true statute of limitation and repose operating merely upon the remedy. The court in Igoe held that such a determination made no difference. In reaching that conclusion the court in Igoe quoted at length from Frazee v. Partney, Mo.App., 314 S.W.2d 915, l. c. 918. Therein the court discussed previous decisions dealing with the statute of limitations as to death actions with particular emphasis upon Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852 (transf. 168 S.W.2d 462) and Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644. A careful reading of Frazee and of Bay-singer will disclose that those cases involved the question of whether the statute of limitation as to death actions operated to extinguish the right or as a statute of repose affecting only the remedy. On the other hand the court in Wentz discussed the death act limitation only by analogy having before it the specific question of whether the change in the statute of limitations in the Workmen’s Compensation Act, now § 287.430, supra, from six months to one year was applicable to an accrued claim. Wentz held that the statute was one of repose affecting the remedy only and on that specific basis held the one year period applicable to the accrued claim. The difference between the more narrow construction given a general statute of limitation governing, among other things, death actions, and a special statute of limitation such as § 287.430, supra, is emphasized in State ex rel. Bier v. Bigger, 352 Mo. 502, 178 S.W.2d 347, quoted with approval in Frazee. Wentz clearly holds that the statute of limitation in the Workmen’s Compensation Act is a statute of repose affecting the remedy only and expressly overruled a long line of cases holding otherwise. The rationale for such ruling was supplied by the wording of the statute itself the court stating (175 S.W.2d l. c. 855): “ * * * Nowhere does the statute say the right of recovery shall be deemed extinguished if no claim is filed within the period. Nowhere does it pronounce such right a nullity under such circumstances. Indeed, the statute does not even mention the right. Only the procedure to enforce the right is referred to — ‘No proceedings for compensation * * * shall be maintained’ etc. The time limit is made to operate expressly on the remedy. A remedy has been defined to be the means by which a right is enforced or an injury redressed. The remedy is referred to as the ‘proceedings’ for compensation. The operation of the limitation upon the remedy indicates the statute is a mere statute of limitation or repose. * * * ”

Contrary to the court in Igoe we think the fact this section is one of repose is a matter of real significance in the instant case due to the actions of the employer in providing medical attention. Of course, that action could not be considered had § 287.430, supra, operated to extinguish the right in the claimant. In that event, once the period of limitation has passed the matter would be at end regardless of what action might thereafter be taken by either party. However, as stated, this section is one of repose operating on the remedy. It follows that the claimant labors under a disability during which he is prevented from filing a proceeding for compensation. By analogy the situation as to § 287.430, supra, then becomes the same as that confronting the courts when construing § 287.-140(1), supra. That section provides a ninety-day period during which the employer is required to furnish medical treatment and also provides that after that period the employer is only required to furnish “ * * * such additional similar treatment as the commission by special order may determine to be necessary. * * * ” It has uniformly been held in this state that by his action in furnishing medical attention after expiration of the ninety-day period an employer may waive the requirement of a special order. Blahut v. Liberty Creamery Co., supra; Morrow v. Orscheln Bros. Truck Lines, supra. We can see no reason why waiver should be allowed when considering § 287.140(1), supra, and unrecognized when considering § 287.430, supra. In essence both sections of the Workmen’s Compensation Act were enacted for the employer’s benefit and protection. If he can waive that protection and benefit as to one, why can he not do so as to the other?

Moreover, recognition that the employer can waive his right to insist upon the claimant’s disability is in keeping with the nature of the Workmen’s Compensation Act which is contractual. Mo. Digest, Workmen’s Compensation,

There is no factual question here presented as it is undisputed that the claim was filed within one year after the date the employer sent the claimant to a doctor for treatment. The issue is whether by that action which took place more than a year after the accident and considering the fact that no similar action occurred during the year next following the date of injury, the employer is to be held to have made a payment on account of the injury which, under the provisions of § 287.-430, supra, would authorize the filing of this claim more than one year after the date upon which the employee is held to have discovered he had suffered a compensable injury but within one year of the date the employer sent the claimant to the doctor. We have determined that the action of the employer on August 23, 1961, constitutes a payment made on account of the injury to the claimant which renders his claim filed on September IS, 1961, timely filed.

With respect to the fears voiced by the ■court in Igoe that a result such as we reach herein would mean that employers would be compelled to refuse to render medical assistance or other charitable aid after the expiration of one year following the injury when confronted with the possibility that by so doing they may have to pay ■compensation, we can but repeat what this • court said in Parker v. St. Louis Car Co., supra, at page 485 (145 S.W.2d 482): “ * * * The answer to that argument, of course, is that what the law gives to the claimant as a right cannot properly be called a charitable gift by the employer. However, regardless of the outcome of such a prophecy, it is our clear duty to apply the law as the Legislature has written jj. ‡ >¡í »

That portion of the judgment of the circuit court affirming the decision of the Workmen’s Compensation Commission in finding the claimant sustained a compen-sable injury on August 1, 1960, should be affirmed. That portion of the decision holding the claim was not timely filed should be reversed and the cause remanded to the commission for further proceedings in accordance with this opinion. Due to the conflict between the decision of this court as rendered herein and the decision of the Kansas City Court of Appeals in the case of Igoe v. Slaton Block Co., supra, this cause should be transferred to the Supreme Court. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is affirmed as to the finding that the claimant sustained a com-pensable injury on August 1, 1960, and reversed as to the finding that the claim was not timely filed. It appearing to the court that there is a conflict between the decision rendered herein and the decision of the Kansas City Court of Appeals in the case of Igoe v. Slaton Block Co., supra, this cause is transferred to the Supreme Court

WOLFE, Acting P. J., ANDERSON, J., and L. F. COTTEY, Special Judge, concur.

RUDDY, P. J., not participating.

ON MOTION FOR REHEARING

BRADY, Commissioner.

The employer contends the commission properly denied compensation to the claimant for the reason that the claim was “barred” by the employee’s failure to give notice of the accident as provided by Section 287.420, RSMo 1959, V.A.M.S. The employer complains that the opinion filed in this case does not dispose of this issue which was raised in its brief. In dealing with the motion for rehearing it is important to keep in mind the distinction between giving notice of the accident and filing a claim for an injury. The time for filing a claim for an injury is controlled by Section 287.430, RSMo 1959, V.A.M.S., and it is with that matter that we were dealing in the original opinion. The time for giving notice of the accident is controlled by § 287.420, supra, and it is with that section we are concerned upon this motion for rehearing. See Brown v. Douglas Candy Co., Mo.App., 277 S.W.2d 657, 1. c. [11], p. 665.

In those parts pertinent to this appeal § 287.420, supra, provides that no proceeding for compensation shall be maintained unless written notice of the injury shall have been given to the employer “ * * * not later than thirty days after the accident, unless the commission shall find that there was good cause for failure to give such notice, or that the employer was not prejudiced by failure to receive such notice. * * ”

Prior to ruling upon this matter it should be understood that we do so upon the assumption, arguendo, that the issue of notice of the accident is properly before us. The issue of notice of the accident was specifically raised by the employer in its answer. The referee made inquiry as to certain matters prior to the hearing before him and specifically asked' whether or not the employer admitted that he had notice whereupon the employer’s counsel stated that ■ it denied such notice. The referee then stated the issues which his inquiries indicated were to be tried and included, among them “ * * * a dispute as tO' whether the employee gave the employer proper legal notice * * * ” of the accident. The record shows that the parties-really joined issue upon the question of whether the claim was barred by the provisions of § 287.430, supra. However, as-will be set forth later herein the claimant did testify as to giving the employer actual notice of the accident. The employer did not offer any proof that would go to this-issue. Moreover, as will later appear herein, the employer did not even cross-examine the claimant upon this issue except as to whether the claimant had given the company office actual notice, and this line of inquiry was confined to one question. The issue of actual notice of the accident was-not the issue tried before the referee and neither was it an issue ever ruled by the commission or the circuit court. Under similar facts showing abandonment of that issue by the employer it was held to have been waived and unavailable to be raised for the first time in appellate court. See Wall v. Lemons, Inc., 227 Mo.App. 246, 51 S.W.2d 194, l. c. [6], p. 199, and see also the discussion of this point in Newman v-Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264, l. c. [3-5, 6], pp. 267-269, 94 A.L.R. 751. It is unnecessary for us to rule this point for, as we hold herein, even if we concede the employer is entitled to present the point to this court, he nevertheless cannot prevail.

The evidence that bears upon the issue of notice of the accident is that on direct examination the claimant testified in reply to two separate questions that he reported the accident to his foreman Schraft. His testimony was unequivocal' that he told Schraft “ * * * about the accident at Southern Equipment.” However, he later gave the testimony upon which the employer relies to the effect that on the occasion of his reporting the accident the claimant asked Schraft if he couldn’t get off to go to the doctor and was refused permission. The employer generally cross-examined as to whether the medical attention secured by the employee was authorized by the com-pany. The employer’s counsel did ask the claimant whether or not it was true that August 23 of 1961 was “ * * * the first time that you told anybody at the office of the company that you had any trouble or ■difficulty or injury of any kind?” (Emphasis supplied.) The employee replied that this was true. It further appears that Schraft was a foreman and not in the company office. On recross-examination the ■claimant again stated that he told Schraft that he “ * * * got hurt turning a counter over there in location three” and that this occurred a day before he first went to see Dr. Gibson which would be within the time limitations stated in § 287.420, supra.

Whether timely notice of the accident has been given is a question of fact. Schrabauer v. Schneider Engraving Product, 224 Mo.App. 304, 25 S.W.2d 529, l. c. [11], p. 535. In the instant case it is a ■question of fact upon which the commission regrettably made no express finding. As to this practice we can but echo the ■comments made by this court in Schrabauer at the citation above noted. The employer’s position on the motion for rehearing is essentially that the matter is properly for •our ruling for the reason that the claimant failed to show that any kind of notice was •given. We cannot agree. Claimant did fail to show and in fact tacitly admits that lie failed to give timely written notice. However, while § 287.420, supra, calls for written notice, it has been repeatedly held that this form of notice is not an unconditional or absolute prerequisite to recovery. Newman v. Rice-Stix Dry Goods Co., supra. The question is whether the claimant also failed to show actual notice.

The burden of showing notice is on the claimant in the first instance, but once he presents evidence the employer had actual knowledge of the accident, he makes a prima facie showing and the burden of coming forward with the evidence shifts to the employer who then must prove that in spite of such actual notice it has been prejudiced by the failure to give written notice as stated in § 287.420, supra. See Wheeler v. Missouri Pacific R. Co., Mo.App., 33 S.W.2d 179, transf. 328 Mo. 888, 42 S.W.2d 579, which reversed Schrabauer on other grounds. In the instant case the claimant made a prima facie showing based upon his positive statements that he reported the accident to his foreman. Contrary to the employer’s contention this is not a case where the claimant’s statement to the foreman about getting off to go to the doctor necessarily contradicts his two previous positive statements that he gave notice of the accident to his foreman with the result that there is no evidence at all upon the issue of actual notice. A careful reading of the transcript indicates the claimant reported the accident and also made the statement to his foreman upon which the employer relies. This is clearly indicated by the fact the claimant, upon recross-examination after the statement to Schraft upon which the employer relies, again testified that he did tell Schraft about the accident. Even if the claimant’s testimony regarding his request of Schraft that he be allowed time off to go to the doctor can be said to have so destroyed his two previous unqualified statements that he reported the accident to Schraft, an interpretation of his testimony which we find unjustified, nevertheless this later testimony stands without challenge in the transcript. In this connection it should be noted that the employer did not call the foreman or anyone else or offer any evidence concerning the facts surrounding the reporting of the accident nor to show in what manner it was prejudiced by reason of the fact that it did not receive written notice of the accident. The employer’s only evidence was medical in nature. From the failure of the employer to produce any such testimony an inference is authorized that such testimony would have been unfavorable to it on that issue. Beatty v. Chandeysson Electric Co., 238 Mo.App. 868, 190 S.W.2d 648, l. c. 654.

Assuming arguendo that the employer has not waived the issue of notice of the accident, the claimant made a prima facie case of actual notice and the employer has failed to sustain its burden of going forward with evidence to show how it was prejudiced by the failure to give written notice. The motion for rehearing should be denied. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The motion for rehearing is denied.

WOLFE, Acting P. J., ANDERSON, J.„ and L. F. COTTEY, Special Judge, concur.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Inez B. RHEA, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Louis J. Amato, Frankfort, Dan-dridge F. Walton, Department of Highways, Madisonville, for appellant.
    William M. Deep, King, Deep & Brana-man, Henderson, for appelleec.
   STEWART, Judge.

In this highway condemnation proceeding the landowners recovered $16,000 from the Commonwealth of Kentucky, Department of Highways, $13,500 for 3.5 acres of land taken and $2500 for damages to the land not taken. (This case was tried before Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844.) The property taken includes all the improvements and is carved out of a 24-acre tract. The Department appeals.

Three grounds for reversal are urged: (1) That the testimony of the landowners’ witness, Robert Wilson, in respect to the damages assessed by him to the remainder, should have been stricken; (2) that the resulting damages to the land of $2500 awarded to the landowners is not supported by the evidence; and (3) that the verdict is based upon incompetent evidence.

The first two grounds will be discussed together, as they concern the jury verdict as to damages to the remainder. Robert Wilson, testifying in behalf of the landowners, estimated such damages at $4000. His proof as to this item is predicated upon the fact that the Department acquired a permanent easement of .62 of an acre for the purpose of changing a six-foot drainage ditch to one that will ultimately be 17 feet across and four feet deep. He believed the construction of this ditch across the front of this property would materially diminish the value of the balance of the land not condemned.

Aside from Wilson, two other witnesses, Melvin Hunt and Woodring Fryer, testified for the landowners. Although neither of them made any appraisal of damages to the land not taken, each stated that a fill three and one-half feet high, which the new highway will have, will result in raising the highway level above the present ground level. It was their view this would reduce the value of this property because it would be less desirable. W. J. Rhea, Jr., one of the landowners, testified the land taken left no suitable location of another house to be built “back up on a level or above the highway like any other farm home.” His opinion was the damages to the rest of the land were $12,030.

We conclude Robert Wilson’s estimate as regards the damages to the remainder of the land was admissible. We also are of the opinion the allowance of $2500 in damages for this item is sustained by the evidence.

The final contention is that the property involved was “strip appraised” in that an imaginary area of a certain depth along the front was laid out and given the highest and best use, and the remainder of the 24 acres was given another highest and best use. A value was allocated to each in order to place the property acquired in the portion carrying the highest value. It is argued this approach furnished a false standard for arriving at the values found by the jury and incorporated in their verdict.

It is shown the land involved is located two and three-tenths miles south of the City of Henderson, and the proof is to the effect that the 24 acres, out of which the land for the highway is taken, was suitable for potential commercial, residential and! light industrial purposes.

We beieve the method mentioned which the landowners pursued in appraising their property was approved under similar circumstances in Commonwealth, Department of Highways v. Merrill, Ky., 383 S.W.2d 327.

Wherefore, the judgment is affirmed.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, Appellant, v. William B. BEASY, Jr., d/b/a Dub’s Fried Oyster Place, and James Whitson, d/b/a The Corner Restaurant, Appellees.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.

      Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, Eugene H. Alvey, Director of Law, Bernard S. Goldstein, Asst. Director of Law, Louisville, for appellant.
    Wilton R. Long, Jr., Jack M. Lowery, Jr., Louisville, for appellees.
   CULLEN, Commissioner.

This appeal raises the question of the validity of an ordinance of the City of Louisville prohibiting discrimination in service, in places of public accommodation, on account of race, color, religious beliefs, ancestry or national origin.

William B. Beasy, Jr., doing business as Dub’s Fried Oyster Place, and James H. Whitson, doing business as The Comer Restaurant, were brought before the police court on warrants charging them with violating the ordinance in refusing to serve food to Negroes. The police court dismissed the charges on the ground that the ordinance violated Sections 1 and 2 of the Kentucky Constitution and Section 14 of the United States Constitution.

The Commonwealth appealed both cases to the Jefferson Circuit Court. The Beasy case was assigned to the Judge of the First Division of the Criminal Branch and the Whitson case was assigned to the Judge of the Second Division of the Criminal Branch. The judge presiding over the Beasy case held that the ordinance was valid but that Beasy had been placed in jeopardy in the police court and therefore could not be retried in the circuit court. The judge presiding over the Whitson case held that the ordinance was unconstitutional.

The Commonwealth has appealed to this Court from both judgments, utilizing an agreed statement as provided for in RCr 12.72. The agreed statement recites that the “sole issue and point relied upon by Appellant is that said Ordinance is not viola-tive of the provisions of the Constitution of Kentucky.”

Since the judgment in the Beasy case held the ordinance valid, and since the only point raised on appeal is that the ordinance is valid, there is no justiciable question presented to us in the Beasy case and the judgment in that case must be affirmed.

In the Whitson case the circuit judge held the penal provisions of the ordinance invalid on the ground that they violated Sections 2 and 26 of the Kentucky Constitution. It was the opinion of the circuit judge that the grant of authority by the legislature to cities, in KRS 82.210 and 82.250, to enact penal ordinances prohibiting discrimination in places of public accommodation, constituted an invalid attempt to delegate to municipalities legislative power contrary to the public policy of the state as declared in KRS 19.010 to 19.050; that cities do not have inherent police power but have only such police power as has validly and specifically been delegated to them by the state; and that the ordinance here in question violates constitutional rights of property and of contract.

We shall pass for the moment the various questions raised concerning limitations upon the police powers of cities and shall consider the fundamental question of whether an enactment of the kind here involved violates constitutional rights of property or contract, such as those guaranteed by Sections 1, 2, 13, 25 and 242 of the Kentucky Constitution. In our opinion the question is no longer open for debate; the validity of such enactments has firmly been established.

Although the decision in Heart of Atlanta Motel v. United States, 85 S.Ct. 348, upholding the Federal Civil Rights Act of 1964, was based primarily on the Commerce Clause, the opinion contains these significant statements:

“Nor does the Act deprive appellant of liberty or property under the Fifth Amendment. * * * ”
“There is nothing novel about such legislation. Thirty-two States now have it on their books either by statute or executive order and many cities provide such regulation. Some of these Acts go back four-score years. It has been repeatedly held by this Court that such laws do not violate the Due Process Clause of the Fourteenth Amendment. * * * ”
“As we have pointed out, 32 States now have such statutes and no case has been cited to us where the attack on a state statute has been successful, either in federal or state courts. * * * As a result the constitutionality of such state statutes stands unquestioned. * * *
“ * * * Likewise in a long line of cases this Court has rejected the claim that the prohibition of racial discrimination in public accommodations interferes with personal liberty. See District of Columbia v. John R. Thompson Co., 346 U.S. 100, 73 S.Ct. 1007, 97 L. Ed. 1480 (1953), and cases there cited, where we concluded that Congress had delegated law-making power to the District of Columbia ‘as broad as the police power of a state’ which included the power to adopt a ‘law prohibiting discriminations against Negroes by the owners and managers of restaurants in the District of Columbia.’ [346 U.S.] At 110, 73 S.Ct. at 1013. Neither do we find any merit in the claim that the Act is a taking of property without just compensation. The cases are to the contrary. * * * ”

We shall now consider the contention that a Kentucky municipality does not have power to enact penal legislation prohibiting discrimination in places of public accommodation. Several arguments are advanced to support this contention

The first argument is that the 1960 Act (KRS 19.010 to 19.050) creating a State Commission on Human Rights constitutes a declaration of public policy of the state against the use of penalties to enforce integration, because the Act states specifically that the Commission shall have no authority to promulgate rules or regulations, nor to execute any law or regulation, nor to do any act, designed to force integration of any privately owned business. We find no merit in this argument. The mere fact that the state legislature chose not to give enforcement powers to the Commission does not amount to a declaration of policy against the concept of compulsory integration. At the most it means that the state was not of a mind at that particular time to enact a penal anti-discrimination statut<

The second argument is that the Act of 1962 (KRS 82.210 to 82.250) specifically granting authority to cities to enact penal ordinances prohibiting discrimination in places of public accommodation is invalid because of a defective title, and that without a valid specific grant of such authority Louisville had no power to enact such an ordinance.

The sufficiency of the title of the 1962 Act is debatable, but we do not consider it necessary to decide the question because in our opinion Louisville had adequate police power under the general charter for cities of the first class, particularly KRS 83.010, to enact a penal anti-discrimination ordinance. In Fowler v. Obier, 224 Ky. 742, 7 S.W.2d 219, it was held that the police power granted by charter to cities of the first class is as broad as the police power of the state. To the same effect are Maupin v. City of Louisville, 284 Ky. 195, 144 S.W.2d 237, and City of Louisville v. Louisville Automobile Club, 290 Ky. 241, 160 S.W.2d 663. Since Louisville had power to-enact the ordinance under KRS 83.010 it makes no difference whether or not the 1962 Act is valid.

The appellees maintain that the ordinance constitutes special legislation in violation of Section 59 of the Kentucky Constitution because it applies only to places of business offering services or facilities to the general public. It is our opinion that the classification made by the ordinance has a reasonable and rational basis in the light of the purpose and objective of the ordinance. It is a matter of common knowledge that the major problem of discrimination is in the area of public accommodations. In most other areas no need has arisen for penal legislation.

The contention is made that the ordinance is invalid because it provides that the City Director of Law shall prosecute violators of the ordinance, whereas KRS 69.430, which creates the elective office of Prosecuting Attorney of the Police Court, states that in all cases coming before the Police Court the prosecuting attorney shall1 represent the commonwealth or the city. It is our opinion that under the statute the prosecution must he conducted principally hy the pros.ecuting attorney or his assistant, and that to the extent that- the ordinance purports to exclude the prosecuting attorney from his prosecuting authority, or to vest in the city law director the power to -determine when, if and under what circumstances violations will be prosecuted, it is invalid. However, the invalidity of this portion of the ordinance does ■ not require that the entire ordinance be held void. Applying the test of severability set forth in KRS 446.090 (which although in terms is applicable only to statutes we think should be equally applicable to ordinances), we find that the remaining portions ot tne ordinance are not so essentially and inseparably connected with and dependent upon the invalid part, or so incomplete and incapable of standing alone, as to make it apparent that the board of aldermen would not have •enacted the remaining parts without the invalid part.

It is argued that the ordinance does not apply to taverns and bars. This presents purely an academic question because there is a stipulation in the record that the Whit-son place is “a restaurant only” and the record contains nothing to show that the Beasy place is anything hut a restaurant.

Attack is made on a provision of the ordinance prohibiting a business proprietor from displaying or circulating any notice, sign or advertisement to the effect that the patronage of any person is unwelcome, objectionable, or not acceptable, desired or solicited on account of his race or religion. Again this raises only an academic question because there was no charge against Beasy or Whitson of violating that provision.

- Attack also is made on a provision of the ordinance authorizing the bringing of a suit for injunction against a continual offender. This question too is academic, because the injunction provision has not been invoked in this case.

Constitutional questions are not to be dealt with abstractly and the courts will not consider constitutionality of a legislative enactment unless such consideration is necessary to the determination of a real and vital controversy between litigants. Woolsley v. Big Reedy Creek Watershed, Ky., 383 S.W.2d 135.

This opinion is to be considered as passing upon only the constitutional questions properly and specifically in issue on this appeal.

The judgment for Beasy is affirmed. The judgment for Whitson is reversed.


author: WILLIAMS, Judge.

text:
    Bettye Lee HALL (Moore), Appellant, v. Raymond Arthur HALL, Appellee.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.
    As Modified on Denial of Rehearing Feb. 12, 1965.

      Hargadon, Hargadon, Lenihan & Har-bolt, Harry L. Hargadon, Louisville, for appellant.
    John Frith Stewart, Louisville, for ap-pellee.
   WILLIAMS, Judge.

Appellant and appellee were divorced in 1959, and the custody of the two children was granted to the mother. Following a hearing on appropriate motions, custody was changed in 1963 and granted to the father. This appeal results.

A third child was born to the mother in July of 1960, which was eight months after her divorce. The mother married a man named Moore in 1961, after she and the children had lived with him for a period of five months. She and Moore were divorced in 1962. Most of the events evidencing the unfitness of the mother brought out in the hearing in 1963 occurred before and during her marriage to Moore.

The father and his witnesses testified that the children were on occasion dirty and unattended, that the reputation of the mother was not “too good,” that the mother had been seen entering a tavern and restaurant on occasion, that the second husband Moore was abusive in the presence of the children, et cetera.

On the other hand, the mother and her witnesses testified that the children were well mannered and neat, attended school and Sunday school regularly, that their home is clean and adequate, that the mother is reliable and efficient, et cetera.

The chancellor awarded custody to the father. The basic determination for a chancellor to make in child custody proceedings is what is best for the welfare of the children. Hinton v. Hinton, Ky., 377 S.W.2d 888. The chancellor’s determination must be clearly erroneous before this Court will reverse.

The mother relies upon the presumption that ordinarily a mother is the best person to have custody of infant children, and the rule in this jurisdiction that an indiscretion, absent promiscuity, by a woman with a man whom she later marries does not make her unfit as a mother to have custody of her children. Wilkey v. Glisson, Ky., 303 S.W.2d 266; Smith v. Lloyd, 311 Ky. 863, 226 S.W.2d 32. These rules are not absolute. They are standards for use by a chancellor in deciding proper custody. The welfare of the children is the determinative consideration in light of the peculiar facts of the ¿ase. The indiscretion of the mother is a circumstance to be weighed with all other facts.

The father’s failure to move for a change in custody when immoral acts or influence existed does not bar custody at a later time when the particular unsavory conduct has ceased. The father said the reason for his delay in seeking custody was that his first’ employed attorneys made extended investigation during which time no action was taken. Later he dismissed the first attorneys and employed his present counsel. Moreover, even after the mother had divorced Moore, her activities and lack of concern for the welfare of the children warrant the chancellor’s determination that the best interests of the children will be served by awarding custody to the father.

The indiscretion of the mother in the presence of the children is sufficient to show moral unfitness of the mother. In view of that, and accepting the reason given by the father for delay in seeking custody of the children, it cannot be said that the chancellor was clearly erroneous.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Stanford YATES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    Stanford Yates, pro se.
    Robert Matthews, Atty. Gen., Charles Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Stanford Yates prosecutes this appeal from an order of the McCracken Circuit Court which overruled his RCr 11.42 motion to vacate his prior conviction in that court for armed robbery. The challenged order was entered after a hearing, at which appellant appeared in person and with counsel appointed for him by the trial court. The trial court furnished appellant a transcript of the proceedings at the RCr 11.42 hearing, which transcript is before us on this appeal.

In his motion to vacate appellant recited nine separate grounds upon which he bases his entitlement to have the judgment of conviction vacated; he stated in his pro se brief that he yet insists upon all of the points, although he pitches his main assault and argument on the contentions that (1) he was denied counsel prior to arraignment, (2) that he had no counsel at his examining trial, and (3) that the counsel he had at the final trial was inadequate and ineffective.

The record reflects that appellant was arrested on November 27, 1962, and placed in the city jail. Appellant testified at the RCr 11.42 hearing that he was denied the right to get in touch' with a lawyer, although he did not relate any details about the alleged refusal. There was proof for the Commonwealth to the effect that no such refusal had occurred. The trial judge found that the alleged incident did not occur; this finding is amply supported by the record.' Moreover, it is significant that appellant did not give any statement while in custody, and nothing that he said to any officer while in custody was offered as evidence against him.

On November 29, 1962, appellant was brought before the police court judge for examining trial; the examining trial was held on the next day. Appellant did not have any attorney at the examining trial. The police judge candidly stated that he had no independent recollection whether he advised appellant of his right to counsel, although he expressed the belief that he had done so, and that the prosecuting attorney had too, as the regular practice in all such cases is to so advise the defendants. Nothing that occurred at the examining trial appears in the record before us, nor is there any contention that anything that transpired at the examination was used against the appellant upon the felony trial in circuit court. We are mindful of the decisions of the Supreme Court, cited by appellant, but in view of the fact that there is a complete absence of any showing of prejudice to appellant by reason of his lack of counsel before arraignment, we adhere to the principles enunciated in Carson v. Commonwealth, Ky., 382 S.W.2d 85. Accordingly, we hold that there is no merit in appellant’s claim that the judgment be vacated because he had no counsel prior to arraignment.

The appellant asserts that the attorney appointed to represent him in the circuit court did not properly do so. His main claim is that the lawyer did not consult with him about his defense until the morning of the day of trial. The lawyer disputed this, and stated that. he was completely cognizant of the facts of the case by reason of his employment for the defense of another person involved in the same incident. The lawyer who defended appellant has practiced for many years; the lawyer testified at the RCr 11.42 hearing that he believed the appellant would have been acquitted but for the appellant’s surprising testimony relating to his purchase of some dark glasses. Appellant gave that evidence voluntarily and not in response to any direct question about it; the glasses played a significant part in the pivotal question of identity of the person committing the crime. The prosecuting attorney testified that appellant’s counsel made a strong and vigorous defense; the trial judge found that to be true, and we agree that the finding is fully supported. Indeed, appellant points to no real basis for his charge against the lawyer, except his disputed claim that the lawyer did not consult with him until the actual trial date. We conclude that the trial court properly determined that appellant was adequately represented by competent counsel. The situation here is in no wise comparable to that which led to the decision of the Supreme Court in Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932).

Appellant’s other asserted grounds for relief may properly be considered as abandoned inasmuch as he does not press them in his brief. However, we have examined the record in light of the claimed errors and find that none of them is meritorious. Moreover, none of the other grounds asserted properly falls within the purview of RCr 11.42 review.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Charles WALKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    Charles Walker, pro se.
    Robert F. Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

This is the second motion filed under RCr 11.42 by the appellant by which he asks that the judgment finding him guilty of armed robbery be set aside or vacated. The judgment was affirmed March 20, 1964. Walker v. Commonwealth, Ky., 377 S.W.2d 91. Both motions were dismissed. The appeal is from the second order of dismissal.

The claimed errors are: illegal arrest, failure to be taken before a magistrate, failure to recognize witnesses, various errors concerning the indictment and its return, and failure to instruct properly. Each of the matters alleged to be errors has been considered. In each instance either no proper and timely objection had been made or the matter had been considered on the prior appeal. None of the alleged irregularities is shown to have amounted to a constitutional violation invalidating the proceeding. For these reasons it is deemed unnecessary and a waste of time to consider further each claimed, error in detail.

Judgment affirmed.


author: PALMORE, Judge.

text:
    RAILWAY EXPRESS AGENCY, INC., Appellant, v. James WARFIELD, Appellee. RAILWAY EXPRESS AGENCY, INC., Appellant, v. Roy Glen BRYANT, Appellee. RAILWAY EXPRESS AGENCY, INC., Appellant, v. Charles E. WARFIELD, suing by his next friend and father, George Warfield, Appellee.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    H. M. Tye, Barbourville, for appellant.
    Carlos B. Pope, Barbourville, for Charles Warfield.
    Robert L. Milby, Hamm, Taylor & Mil-by, London, for R. G. Bryant and James Warfield.
   PALMORE, Judge.

Railway Express Agency, Inc., appeals from a judgment entered pursuant to a jury verdict awarding recovery to the appellees Charles and James Warfield for personal injuries and to the appellee Roy Glen Bryant for property damage resulting from a collision between appellant’s truck and Bryant’s automobile.

The accident took place on U.S. 25E just south of Barbourville at about 7:00 A.M. on May 30, 1959. It was or had been raining and the highway was slick. The express company’s driver, making a regular delivery run from Corbin, had completed a call at the depot in Barbourville and was proceeding southeasterly toward Pineville. James Warfield, 18 years of age, had borrowed the automobile of Bryant, his brother-in-law, for the purpose of going to a grocery store in Barbourville to buy cigarettes. His brother Charles, 16, went along as a passenger. After making the'' cigarette purchase they decided to run out to a drive-in theater on the highway toward Pineville to see what was on that night. En route to this destination they came up t behind the slower-moving express company truck and attempted to pass it. The left front bumper of the truck and right rear portion of the automobile came into contact, and the automobile went out of control and struck a post near the other side of the highway 100 to 150 feet beyond the point of collision.

A service station was located on the right side of the road at the point where the accident occurred. The Warfield boys testified that the truck slowed down and “leaned” to the right as if to enter the service station but cut back to the left while they were in the act of passing. No other traffic was involved in any way. The headlights of the automobile were burning (it was a dark and dreary morning), and the truck driver testified that through his rear view mirror he saw the automobile come out from behind him heading toward the left side of the highway, that he next noticed it veering back toward the cab of his truck, whereupon he immediately applied his brakes, turned away to his right and stopped within 10 feet, and that the automobile “waved around there a little bit and come into the left side of the left bumper * * * of the truck,” etc. It was his version that the truck had come to a stop with its right wheels a foot or two onto the apron of the service station at the moment of impact. This was substantially corroborated by the only disinterested eyewitness, an attendant at the service station.

The evidence concerning the relative positions of the two vehicles with reference to the center line of the highway was in direct conflict. The Warfield boys said they were entirely in the left lane, never skidded, and never came over into the right lane. The truck driver said the car was straddling the center of the road when it came into contact with the truck. The service station man also said that the truck was on its right side of the road, though of course he was not in the most advantageous position to make such an observation. One witness, the local police chief, testified that he noticed a quantity of glass and debris in the right lane some 15 or 20 feet back from where the truck was stopped following the accident.

There was a conflict also as to whether the Warfields were attempting to pass on a yellow line, in a “no passing” zone. However, since no other traffic was approaching and the truck driver was aware of the move from behind, a violation in this respect could not have had any proximate causal significance.

We are reluctant to extend this opinion by much further detailing of the evidence. Though as finders of fact we might have been inclined to decide the case the other way, it clearly was one for the jury. The debris in the road and the testimony of the disinterested eyewitness are not conclusive. In Ison v. Mullins, Ky., 336 S.W.2d 599 (1960), and Thornberry v. Smith, Ky., 346 S.W.2d 727 (1961), physical evidence was held conclusive against equivocal testimony to the contrary. Tire marks were vital in each instance, whereas the principal physical evidence in this case is the position of the debris, a less probative circumstance. But even if it be assumed that the automobile was partially to the right of the center line, that would not have been negligence per se, KRS 189.340 (1) requires the overtaking vehicle to pass to the left of the vehicle being overtaken. It does not necessarily mean that the overtaking vehicle must in any and all events be entirely across the center line while in the act of passing. Ordinary care in that respect depends to a degree on the width of the road and the size of the vehicles. This two lane pavement was 20 feet and the express truck seven feet wide. KRS 189.350(1) requires the operator of the vehicle being overtaken to “give way to the right” insofar as he is reasonably able to do so. Subsection (2) of the same statute exacts from the operators and occupants of both vehicles the duty of such reciprocal assistance “as the circumstances reasonably demand.” To make the center line of the highway an absolute criterion would destroy the effect of these wholesome provisions.

There is not any reasonable basis for holding that James Warfield was negligent as a matter of law. Neither can we say that the testimony of the two boys showing negligence on the part of the truck driver was incredible. In Kentucky Transport Corporation v. Spurlock, Ky., 354 S.W. 2d 509 (1962), eyewitness testimony was found incapable of supporting belief because it categorically indicated that a car went off one side of the road in face of the indisputable fact that it went off the other side. In this case the boys testified that the truck cut back into them. It could have happened that way.

It follows that the trial court did not err in overruling the motions for directed verdict and for judgment n. o. v.

While Charles Warfield was waiting at a Barbourville funeral home to be taken by ambulance to the hospital in Corbin the police chief, at the behest of the truck driver, obtained from him a written statement to the effect that the car had skidded into the truck and the accident was “our fault.” This statement was admitted into evidence, but the jury was admonished to consider it only for such impeaching effect as it might have on Charles’s testimony. Appellant contends this was error, in that the statement should have been admitted as substantive testimony, being (1) the admission of a party and (2) part of the res gestae. However, not only was the statement admitted in evidence and made an exhibit, but there was a good deal of testimony about the circumstances under which it was taken and counsel for appellant freely alluded to it, without qualification, in both his opening and closing remarks to the jury. We cannot believe that the error, if any, could have had any practical or prejudicial effect.

The judgment is affirmed.

      . The driver’s testimony that he saw the ear come out from behind him probably renders insignificant any question as to the horn signal required by KRS 189.340 (1). However, both James Warfield and the service station attendant testified that the horn was sounded.

      . We do not decide the question.


author: WADDILL, Commissioner.

text:
    Hugh McHenry WARNER, alias Marvin H. Warner, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.

      Hugh M. Warner, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
   WADDILL, Commissioner.

The appeal is from an order overruling a motion to vacate a judgment. RCr 11.42.

Appellant urges that he was denied assistance of counsel in that he was not furnished counsel at his examining trial and counsel subsequently appointed on his arraignment to the indictment did not effectively represent him.

Upon similar facts we recently decided that the constitutional rights of an accused were not violated by the lack of counsel at the examining trial in the absence of a showing of prejudice. Carson v. Commonwealth, Ky., 382 S.W.2d 85. The trial court found that counsel appointed to represent appellant ably defended him upon his original trial. There is nothing in the record before us to indicate that this finding is erroneous. Hence, there is no merit in his contention that his constitutional rights were violated.

Other alleged errors occurring during his original trial are not such as may be raised in an RCr 11.42 proceeding since they could not invalidate the conviction. Tipton v. Commonwealth, Ky., 376 S.W.2d 290.

The judgment is affirmed.


text:
    Dortha Nan GROSS, Petitioner, v. Don A. WARD, Judge, Perry Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.

      William H. McCann, Brown, Sledd & McCann, Lexington, for petitioner.
    S. M. Ward, Duff Arnett, Hazard, for respondent.
   WADDILL, Commissioner.

In this original proceeding Dortha Nan Gross seeks to prohibit the respondent, Honorable Don A. Ward as Judge of the Perry Circuit Court, from proceeding further in an action for divorce filed by her husband, Charles Gross.

The dispositive question is whether Dortha was a nonresident of Kentucty on November 16, 1964, when the action was filed, as that term is used in KRS 452.470. This statute provides:

“An action for alimony or divorce must be brought in the county where the wife usually resides, if she have an actual residence in this state; if not, in the county of the husband’s residence.”

The Grosses were married in January, 1964. Charles was attending the University of Kentucty in Fayette County and Dortha had resided in Fayette County for approximately three years. In May, when the spring semester at the University ended, they went to Perry County where Charles’ mother lived. In September they returned to Fayette County where a child was born during the following month. Soon thereafter disagreements arose and on November 6, 1964, Dortha took the child for a visit to her mother in Missouri, taking only necessary clothing. Charles filed a divorce action in Perry County while she was gone. On November 26, 1964, Dortha returned to Fayette County and on the following day filed an action for divorce in Fayette Circuit Court. She then moved the respondent to dismiss the action brought against her in Perry Circuit Court for lack of venue.

Respondent found that Dortha was a nonresident of Kentucky on November 16, 1964, and overruled her motion. She then filed the instant proceeding and this Court entered a temporary order, in effect, prohibiting further action in these cases in either the Perry or the Fayette Circuit Courts.

The above-quoted statute requires actual, not merely legal, residence to establish venue. Lanham v. Lanham, 300 Ky. 237, 188 S.W.2d 439, and Luvall v. Luvall, 228 Ky. 577, 15 S.W.2d 433. Upon the record before us it is apparent that Dortha and Charles actually resided in Fayette County. Moreover, the proof does not establish that Dortha intended to change her usual residence when she went to Missouri. Sebastian v. Turner, Ky., 320 S.W.2d 794. Since the place of Dortha’s usual residence was Fayette County at the time Charles filed his action in Perry County, the respondent erred in his determination of the question of venue.

The temporary order issued by this Court on January 7, 1965, is dissolved and the respondent is permanently prohibited from proceeding further in this action.


text:
    Chester WALTON, Petitioner, v. Hon. Joseph J. BRADLEY, Judge, Fayette Circuit Court, Lexington, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.

      Chester Walton, pro se, petitioner.
    Joseph J. Bradley, Lexington, pro se, respondent.
   CULLEN, Commissioner.

Chester Walton, a prisoner in the state penitentiary, presented to this Court a petition stating that he had filed a motion before Honorable Joseph J. Bradley, Judge of the Fayette Circuit Court, asking that he be brought to trial on three grand larceny indictments returned by the Fayette County Grand Jury, and that Judge Bradley had not acted on the motion. Walton’s petition sought an order compelling Judge Bradley either to hold a trial on the indictments or dismiss them.

Judge Bradley responded, stating that the indictments were returned in April 1964; that Walton’s motion was not received until after the September 1964 term of court had ended; and that he has set the cases for trial at the January 1965 term.

Walton then filed a supplemental petition, asking that Judge Bradley be ordered to dismiss the indictments on the ground that there has been an unreasonable delay in bringing the cases to trial and therefore a violation of Walton’s right to a speedy trial.

We adhere to the rule which regards the failure of the accused to demand trial as a waiver of his right to a speedy trial. See Barker v. Commonwealth, Ky., 385 S.W.2d 671 (decided June 26, 1964) ; Annotation, 57 A.L.R.2d 326.

The cases having been set for trial, Walton’s original petition has become moot, and they having been set at the first term of court convening after Walton’s motion was received, there is no merit in his supplemental petition.

■ The petition and supplemental petition are denied.


text:
    Daniel Marvin CLARK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.

      John W. Beard and Bratcher, Rummage, Beard & Flaherty, Owensboro, for appellant.
    Robert F. Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, Wm. M. Gant, Comm. Atty., Owensboro, for appellee.
   DAVIS, Commissioner.

Appellant asks reversal of his conviction upon one count of grand larceny (KRS 433.220) and one count of conversion (KRS 434.220). There are numerous grounds advanced as reasons for reversal, but we need consider only three of them: (1) whether the proof warranted submitting to the jury the question of appellant’s guilt of grand larceny, or conversion, or both; ■ (2) whether an accomplice instruction should have been given; (3) and whether it was error to refuse certain evidence tending to indicate bias on the part of a prosecuting witness.

This prosecution arose from thefts of numerous desks and other office furniture from the stock of Murphy-Miller, Inc.

Appellant was employed by the Murphy-Miller company, as a shipping clerk in the desk department; he began to work there in September, 1961. He was discharged in March, 1963, after his alleged complicity in the extensive loss of merchandise came to the attention of his employer.

Three indictments were returned against appellant by the grand jury for Daviess County. All three indictments were consolidated for trial. RCr 9.12. The first indictment, returned April 10, 1963, contained two counts of conversion as denounced by KRS 434.220. One of these counts charged a conversion of Murphy-Miller merchandise on or about October 23, 1962; the date of the offense charged in the other count was fixed as February 10, 1963. Appellant was acquitted as to both of the counts charged in the first indictment

The second indictment was found on July 10, 1963; it contained one count of conversion. The indictment alleged the conversion of eight desks from Murphy-Miller on the - day of February, 1963. Appellant was convicted of this offense; the jury’s verdict fixed punishment at imprisonment for one year.

The third indictment also contained two counts; it was returned October 16, 1963. The two counts were brought under the grand larceny statute, KRS 433.220. Count one charged larceny of fifteen desks, said to have occurred during the period from January-, 1963, to March-, 1963. The second count charged larceny of fifteen desks, chairs and credenzas on or about March 20, 1963. The jury found appellant guilty under the first count of the third indictment and fixed penalty at imprisonment for one year; the same jury acquitted appellant as to the second count in the third indictment.

Clyde Sharp was a fellow employee of appellant’s at the Murphy-Miller company. Sharp, somewhat older than appellant, had been working for the company two or three years longer than had appellant; in fact, appellant regarded Clark as his immediate superior in the company chain of command.

Sharp admitted that he had been stealing merchandise from Murphy-Miller for an exténded period. He was indicted ’on twenty separate counts for- these activities. At the time of the appellant’s trial, Sharp had already entered a guilty plea to six of the twenty counts and was serving his aggregate sentence of six years in Eddyville. The other fourteen counts against Sharp had been dismissed at the time he testified against appellant.

The appellant’s defense was based upon his claim that he regarded Sharp as his supervisor, and that he had been informed by Sharp that Sharp had a legitimate arrangement whereby he removed certain merchandise from the Murphy-Miller desk department for private sale. Sharp contradicted appellant about this, and testified that he explained to appellant that he (Sharp) was stealing merchandise, and that if appellant wanted to engage in that activity, he would have to take his own chances.

The two counts upon which appellant was convicted had their background in merchandise sold to Kenneth Carlisle and Otis Alford, respectively. It is quite significant that Sharp testified with respect to both incidents to facts which we deem conclusive of his own implication in them. As to the Carlisle deal, Sharp said that appellant told him that he was going to take some merchandise to sell to Carlisle, and requested permission to stor'e it in Sharp’s private garage appurtenant to Sharp’s residence. According to Sharp, appellant did store the merchandise in Sharp’s garage, and Sharp was on the premises when appellant and Carlisle closed the trade and Carlisle removed the property. Moreover, Sharp said that he received money from appellant as a result of the Carlisle sale. When appellant’s counsel asked Sharp whether he had not received $240.00 from Carlisle’s purchase, Sharp denied it in this colloquy:

“A. No, sir, I didn’t get no $240.00.
“Q. You didn’t get anything?
“A. I got — I got some money — yes sir. I think it was a hundred — a hundred and twenty-seven dollars, I believe is what it was, I’m not sure.”

As to the Alford transaction, Sharp said that appellant “mentioned” that Alford was getting some desks. He admitted that Alford was a friend of his own as well as of appellant’s, and that Alford had come to the plant to see him and appellant. Sharp told that he too had taken desks to Alford “once or twice.” Sharp also testified that “I told him [referring to appellant] whatever he got out of it I’d take part of it.” In this evidence he was speaking of stolen merchandise placed in his own garage by appellant, but at another point in his testimony he recalled that appellant had given him money “two or three different times, or several times.” We regard this evidence as sufficient to support the premise that Sharp accepted money from appellant with respect to the Alford episode.

It is our view that the alleged activities of appellant constitute larceny— but not conversion. It is well settled that larceny and conversion are not degrees of one another — they are distinct offenses. Morgan v. Commonwealth, 242 Ky. 713, 47 S.W.2d 543; 146 A.L.R. 532, et seq.; 32 Am.Jur., Larceny, § 6. We think the “custody” of the merchandise was all that appellant had, as a shipping clerk; he did not have the “possession” of it as that term has been used in relation to the distinctions between larceny and embezzlement, or conversion. Morgan v. Commonwealth, supra; Warmoth v. Commonwealth, 81 Ky. 133; 146 A.L.R. 568, et seq.; 32 Am.Jur., Larceny, § 56. It follows, therefore, that the conviction of appellant on the count of conversion in the second indictment was not proper; his motion for directed verdict as to that count should have been sustained.

From what we have said we think it is inescapable that Clyde Sharp was an accomplice of appellant, under the prosecution’s theory of the case. An accomplice is “one who knowingly, voluntarily, and with common intent, unites with the principal in the perpetration of the crime, either by being present and joining in the criminal act, by aiding and abetting in its commission, or, if not present, by advising and encouraging the performance of the act.” Head v. Commonwealth, Ky., 310 S. W.2d 285, and cases there cited. Certainly when Sharp made known his own thefts to appellant, permitted appellant to use his garage, shared the proceeds of the sales of the knowingly stolen merchandise and suggested to appellant that appellant could do as Sharp was doing and “take his chances,” he advised and encouraged the crimes. The failure to give the accomplice instruction was error, particularly as there was no other evidence in the case tending to connect appellant with the two offenses upon which he was convicted. Cf. Chaney v. Commonwealth, Ky., 307 S.W.2d 770, and cases there cited. RCr 9.62.

Appellant proffered evidence, which is in the record by avowal testimony of the deputy circuit clerk, which showed that Sharp had been indicted in April, 1963, on twenty separate counts for stealing merchandise from Murphy-Miller; that in July, 1963, he had entered a guilty plea to six of the counts, and that in August of that year the other fourteen counts had been dismissed on motion of the Commonwealth. Under the circumstances of this case, we believe it was error to refuse this evidence. Although Sharp specifically denied that he had been promised leniency in exchange for his testimony, the circumstances of the dismissal of the fourteen counts, coupled with Sharp’s appearance before the grand jury after the dismissal — -and his appearance as the prime prosecuting witness after the dismissal — tend to support the inference that Sharp’s testimony was the result of a biased personal interest.

In 62 A.L.R.2d 614 it is said :

“Great latitude is allowed in cross-examination of a witness for the prosecution for the purpose of discrediting him by showing, or attempting to show, the motive activating him in giving his' testimony, such motives never being regarded as immaterial or collateral matters. And such cross-examination may be thorough and sifting.”

Our decisions have recognized the same sound rule. Parsley v. Commonwealth, Ky., 306 S.W.2d 284, and authorities there collated.

Our view of the case renders it unnecessary to discuss the other errors asserted by appellant, as they will likely not recur.

The judgment is reversed for proceedings not inconsistent with this opinion.


author: HILL, Judge.

text:
    Hobart ADAMS, Petitioner, v. Walter FERGUSON et al., Respondents.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    Hobart Adams, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for respondents.
   HILL, Judge.

Petitioner filed this original action in this court seeking a writ of mandamus to compel the respondent, Ferguson, Chairman of the Parole Board, to determine his time spent in the reformatory, give credit therefor, and release or parole him.

The petition states Adams was committed first, in 1937, ■ under a twenty-one year sentence. He had two later convictions, one for two years, the other for seven. Between these three convictions, petitioner was paroled a number of times. Some of these paroles were revoked by the board for alleged misconduct of petitioner, and at other times his recommitment on other convictions automatically revoked his previous parole.

The Parole Board had access and no doubt considered all its records showing dates of imprisonment and paroles; commitments and recommitments, and its own rules and regulations governing credits for time and penalties for violations. In Willard v. Ferguson, Ky., 358 S.W.2d 516 (1962) this Court said in a very similar case:

“It must be kept in mind that parole is a matter of legislative grace and that the general assembly may impose such limitations, restrictions and conditions as it deems best for society. It may likewise invest the Board with power to make rules and regulations with respect to eligibility. * * * The General Assembly by KRS 439.330 has limited the right of review to questions of compliance with the parole act.”

We conclude the Board did not abuse its discretion and that the rights of petitioner have not been violated.

The petition is dismissed.


text:
    Ruby CHANEY, Appellant, v. Joyce HATCHETT, Appellee.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    J. Wood Vance, Jr., Glasgow, for appellant.
    Richardson, Barrickman & Dickinson, Glasgow, for appellee.
   HILL, Judge.

Appellant seeks a reversal of the judgment of the trial court entered pursuant to a directed verdict for the appellee.

Appellant, plaintiff in the lower court, and the appellee, defendant below, worked at the same place on November 7, 1961. Appellant solicited and was granted by ap-pellee a ride home in appellee’s automobile. Appellant got into the automobile opposite the driver’s seat and attempted to close the door behind her. The door did not close at first. Appellee told the appellant that the door did not always catch; that she planned to have it repaired but had been too busy, and thereafter the appellant slammed the door again and it apparently closed.

Appellant testified that she was sitting about a foot away from the door with her arm over the back seat; that when appellee turned a sharp curve to the left of the driver, she was thrown out of the automobile and sustained injuries, which is the basis of her suit. Appellant admitted that the driver was not speeding; that she, appellant, had made no complaint about the driving of appellee and that she knew of the existence of this sharp curve where the accident occurred.

To use the language of the appellant’s brief, “The question is whether there was sufficient evidence presented on the part of the appellant for the matter to be determined by the jury as to whether or not the appellee was negligent in the manner in which she rounded this curve, taking into consideration the fact that both parties had knowledge of the defective door.” Looking to the record for evidence pertaining to this material question, we quote from the testimony of the appellant, herself:

“Q-27 Now, as you got in the automobile, were you informed there was a defective door on the right front side?
“A- Yes, sir, I pulled the door to and it didn’t catch and Joyce said that the door didn’t catch good, and I pulled it and slammed it again.
“Q-28 Did she say anything about watching the door?
“A- Yes, sir, she said that it would come open, that she had planned on having it fixed hut hadn’t had the time.
“Q^45 Now, when you got to this curve relate what happened?
“A- Well, I remember that it was a — I don’t know how fast Joyce was driving, but I know we give it — it was a sharp twist because I remember it giving me a sling and me screaming her name and the next thing I remember is laying beside the road.
“Q-252 Mrs. Chaney, as you came across Sunset Avenue, Mrs. Hatchett was driving at a reasonable rate of speed?
“A- I suppose so.
“Q-253 You didn’t complain about her driving and had no reason to complain about her driving ?
“A- I suppose not.”

The appellant relies upon Jordan v. Marsee, Ky., 256 S.W.2d 25, which announces the duty of an operator of an automobile toward his guest. There is no argument between these parties as to the duty the ap-pellee owed appellant, and the Jordan case is, therefore, not in point and does not support the appellant’s position.

The appellant also cites Herrin’s Adm’x v. Jackson, Ky., 265 S.W.2d 775. This case does not support the contention of the appellant. In fact, it supports and is relied upon by the appellee in her brief. It will be referred to later on in this opinion.

The appellant also cites R. B. Tyler Company v. Kirby’s Adm’r, 219 Ky. 389, 293 S.W. 155. Neither is this case in point. In the Tyler case, the injured person was riding on the running board of the truck in a highly intoxicated condition which was known to the driver, and the vibration or jerking of the truck upon changing gears caused Kirby to fall from the truck and to be run over. The negligence in the Tyler case was in allowing Kirby to ride on the outside of the truck in his intoxicated condition without taking precaution to protect him. The Tyler case does not support the appellant’s theory of this case.

The appellant quotes from Am.Jur. Vol. 5, Page 628, Section 230, as well as Prather’s Adm’r v. Allen, 291 Ky. 355, 161 S.W. 2d 402, both of which very well announce the duty of the operator of an automobile to his guest but do not apply to the case under consideration.

In the Herrin case, supra, this court, in an opinion written by Justice Sims, stated as follows:

“It is common knowledge that doors on cars and trucks do not always securely latch when closed and if they do not, they are wont to fly open, especially if the vehicle suddenly changés its course or direction. * * * There being no evidence in the record that the door was caused to fly open by reason of ap-pellee’s negligence, the court properly directed a verdict in his behalf.”

We conclude that the appellant did not prove negligence sufficient to justify recovery in this case. The judgment of the lower court is, therefore, affirmed.


text:
    Clyde W. COLES, Appellant, v. COMMONWEALTH of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    Clyde W. Coles, pro se.
    Robert Matthews, Atty. Gen., George F.. Rabe, Asst. Atty. Gen., for appellees.
   PALMORE, Judge.

On April 14, 1959, the appellant, Clyde W. Coles, was tried and convicted in the Jefferson Circuit Court on a charge of armed robbery, pursuant to which he is now serving a life sentence. He appeals from an order overruling his motion to vacate the judgment on the ground that he was denied the effective assistance of counsel in violation of his constitutional rights, RCr 11.42, in that counsel appointed for him on the day of the trial was denied a continuance necessary to prepare his defense. See Raisor v. Commonwealth, Ky., 278 S.W.2d 635 (1955).

He prosecutes this appeal pro se and in-forma pauperis. His motion to vacate did. not state specifically that he was financially unable to employ counsel in this proceeding, but it did say that the reason for his. failure to appeal the conviction in 1959 was. that he was “an impoverished person, without the ability to prepare his own appeal.”

RCr 11.42 provides in substance that if there is a material issue of fact requiring a hearing and “if the movant is without counsel of record and is financially unable to-employ counsel” the court shall appoint counsel to represent him in the proceeding. Effective January 1, 1965, the rule has been amended to make it clear that his right to the assistance of appointed counsel extends to an appeal to this court.

The record does not indicate any appointment of counsel to assist appellant on this proceeding. The attorney appointed to defend him on April 14, 1959, the day his trial was held, was present at the hearing on the motion to vacate but apparently in the capacity of a witness rather than counsel. Though rebutted by other witnesses, his testimony tended to corroborate the allegations of the motion. The trial court failed to make findings of fact resolving the issue as required by RCr 11.42. Following the hearing the motion was simply overruled.

The purpose of RCr 11.42 is to provide a method by which a prisoner’s claim of constitutional infringement can be effectively settled in one proceeding for all time. In order for this to be possible, that is, in order for the resolution of the factual basis of the claim to be accepted in the federal courts as final and conclusive, it is necessary that the movant be given a full and fair opportunity to litigate the claim. No matter how unfounded it may be, and even though the court knows it is not true, if on its face the claim states a valid basis for relief the bare essentials of such an opportunity are: (1) effective assistance of counsel, (2) a hearing, (3) a determination of the material facts, followed by a judgment based on that determination, (4) a transcript of the record (including the hearing) in the event he appeals, and (5) an appeal. The situation is not of our choosing, but is thrust on us by the new look in federal constitutional rights. The alternative is a plethora of new trials in old cases, starting from scratch.

If a prisoner who files a pro se motion under RCr 11.42 is financially unable to employ counsel, he' should say so in the motion. Otherwise the court cannot know whether to appoint an attorney to as- ' sist him preparatory to a hearing on the merits. Even so, however, when the prisoner, having been granted a hearing, appears without counsel we think it is incumbent on the trial court to conduct such preliminary hearing as may be necessary to ascertain whether he is able to secure an attorney and to make a finding of fact determining the question. That was not done in this instance. The circumstances of the case suggest a distinct probability that this appellant was in fact a pauper at the time of the hearing, and if so he was entitled to the appointment and assistance of counsel. It is therefore necessary that the cause be remanded for re-hearing under the terms herein set forth.

The judgment is reversed for further proceedings consistent with this opinion.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Janie LAWTON et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., C. E. Skidmore, Frankfort, for appellant.
    Samuel T. Jarvis, B. R. Paxton, Jarvis, Cornette, Payton & Paxton, Greenville, for appellees.
   CLAY, Commissioner.

In this condemnation case the Commonwealth acquired approximately 20 acres of a 120 acre farm for highway purposes. The jury awarded the property owners $37,541. The Commonwealth raises questions of evidence.

It is admitted that the property involved was suitable for subdivision purposes. Over the objection of the Commonwealth the property owners introduced a plat showing part of the farm subdivided into lots, and the property owners substantially based their testimony on prospective lot values. Though the plat was admissible to show the susceptibility of the land to this type of development, this kind of valuation testimony was condemned in Commonwealth v. Evans, Ky., 361 S.W.2d 766.

Appellees contend, however, that this evidence was not prejudicial because the jury’s award was substantially less than the valuations given by these witnesses. We cannot accept this argument. Since the only issue involved was the amount of damages, and the jury found an amount lying somewhere between various valuations, we cannot say that their award was not influenced by this evidence. This is particularly true in view of the fact that other evidence hereafter discussed lacked probative value.

The Commonwealth questions the testimony of an expért witness, Puryear, on the ground that it is incredible and based upon improper factors. This witness testified in substance that the remaining land on the west side of U.S. 431 would have no value, principally because some access to the highway would be lost. As we held in Commonwealth v. Carlisle, Ky., 363 S.W.2d 104, and Commonwealth, Department of Highways v. Denny, Ky., 385 S.W.2d 776, the loss of access is not a compensable item and resultant damages cannot be attributed thereto as long as the property owner retains a reasonable means of access. This •evidence did not support the verdict, but ■certainly was considered by the jury.

The Commonwealth finally contends that :all of appellees’ evidence- lacked probative -value and was insufficient to support the -verdict. This point'is substantially covered .by our foregoing conclusions. On another -trial the parties will follow the principles :set forth in Commonwealth v. Sherrod, Ky., 367 S.W.2d 844.

It appears the testimony of the property owners and the witness Puryear, being based on improper factors, lacked probative value to support the verdict. Even if there was,.other competent evidence to support it,„ these valuations were misleading and prejudicial.

We find no error in the instructions given.

The judgment is reversed.


text:
    A. H. ROBERTSON et al., Appellants, v. Madelyne SURGENER et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    H. M. Grigsby, Charles E. Montgomery, Springfield, for appellants.
    R. L. Wathen, Springfield, W. Earl Dean, Harrodsburg, for appellees.
   CULLEN, Commissioner.

The will of James C. McElroy, who died in 1942, gave his widow a life estate in his property. The will contained this provision :

“ * * * on the death of my wife all of my Estate shall be held in trust for my grandson, James C. McElroy, III, by his Trustee and paid to him as in discretion of said trustee same may be needed.”

The widow died in 1962. The grandson, who was nine years old when the will was -written, survived the widow by only seven -months and died childless, leaving a will •devising all of his property to his widow.

In an action between the grandson’s widow and the heirs at law of the grandfather -the circuit court adjudged that the grandson’s widow was entitled to the property -that came from the grandfather. The heirs have appealed.

As we view it, the question is simply whether the testator intended to leave to the •grandson a remainder in fee, subject to •control by a trustee of expenditures during his lifetime, or intended only to leave to the grandson an equitable life estate.

There is a presumption against partial intestacy, and in cases of doubt as to the character of the estate devised the • doubt will be resolved in favor of an absolute estate. Citizens Fidelity Bank & Trust Co. v. Schellberg, Ky., 238 S.W.2d 142.

There are a number of circumstances indicating that the testator did not intend -to limit the grandson to an equitable life •estate. The grandson was the testator’s only lineal descendant, and when the will was written he was a nine-year-old boy living with the grandparents. He was the -natural object of the testator’s bounty. 'The will made no gift over after the grandson’s death. The testator did not name a trustee in his will or even provide for one •to be named. Actually, in view of the age ■of the grandchild when the will was written, :and the fact that the will spoke of “his” ■trustee, it is very likely that the testator meant only that the estate should be held in trust during the grandson’s minority.

Under a similar set of facts, in Citizens Fidelity Bank & Trust Co. v. Schellberg, Ky., 238 S.W.2d 142, it was held that the 'beneficiaries took a fee simple when the •trust terminated.

The mere fact that the property ■was placed in the control of a trustee does not require that the devise be construed as ■creating only a life estate. Drye v. Cunningham Medley & Co., Ky., 74 S.W. 272. In the case cited, a devise to a child was held to create a fee even though the property was to be held in trust during the dev-isee’s lifetime.

The appellants’ principal argument is that the will created a spendthrift trust and that the beneficiary of such a trust has no rights at all in the property other than to receive what the trustee chooses to give him. In our opinion it makes no difference whether or not the trust in this case was a spendthrift trust. Clearly a testator could create a spendthrift trust for a devisee, and also provide that the property could pass by will or inheritance from the devisee. We think the will here evinces the intent to vest in the grandson an estate that could pass from him by will or inheritance.

The judgment is affirmed.