author: HUNTER, Judge.

text:
    Frieada PFEFER, Respondent, v. Burnie BACHMAN et al., Appellants.
    No. 24052.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 1, 1965.
    Application to Transfer Denied March 8, 1965.

      Moss H. Silverforb, Kansas City, for appellants.
    Sol M. Yarowsky, Kansas City, for respondent.
   HUNTER, Judge.

Plaintiff-respondent, Frieda Pfefer, brought suit against defendants-appellants, Burnie Bachman and Margaret Bachman, husband and wife, for $7,300 for money had and received by way of various unpaid loans made to them by plaintiff. These loans were described in the petition as follows (To Margaret Bachman) : January 30, 1954, the sum of $2,500; February 1, 1954, the sum of $1,000; May 5, 1954, the sum of $800; (To Burnie Bachman) : March 9, 1954, the sum of $3,000; April 7, 1954, the sum of $300, and on May 5, 1954, the sum of $700 for a total of $8,300.00. Plaintiff alleged that on June 18, 1956, she received from Margaret Bachman a $1,-000 payment on the loans, leaving a balance due from both defendants of $7,300.00 which defendants upon demand refused to pay.

The answer was a general denial coupled with defendants’ statement that it was Nesbitt Grapette Bottling Co. (and not defendants) that paid plaintiff the mentioned $1,000, and defendants’ allegation that if defendants owed anything the debt was “outlawed by the Statute of Limitations”.

At the trial which commenced on November 21, 1963, plaintiff testified in support of the allegations contained in her petition. The gist of her testimony is that she and her husband first met the Bach-mans in 1949 and they quickly became friends. In January 1954 the Bachmans came to them stating they were very hard up and they needed money. “Well, they didn’t have anything to eat, in fact, I bought them clothes and gave them plenty of food * * The Bachmans told Mrs. Pfefer they needed $2,500. She made out a check dated January 30, 1954, in that sum to Mrs. Burnie Bachman, as payee. At Mr. Bachman’s request, according to Mrs. Pfefer, she noted on the bottom of the check, “For loan for Nesbitt Grapette Co.” Bachman told her he wanted the Nesbitt Grapette Company to pay for it.

Two or three days later Mrs. Bachman again contacted Mrs. Pfefer seeking more money. Mrs. Pfefer gave Mrs. Bachman her personal check dated February 1, 1954, in the sum of $1,000. This check named “Mrs. Burnie Bachman” as payee, and .contained the notation “For a loan”. On March 9, 1954, Mrs. Bachman again contacted Mrs. Pfefer saying she needed additional money. In response, Mrs. Pfefer gave to Mr. Bachman her check for $3,000 made payable to “Nesbitt Grapette Co.” per Mr. Bachman’s request. This check contained the notation “For loan”. Mrs. Pfefer testified the check represented a loan to the Bachmans and was not a loan to the Nesbitt Grapette Co., nor was it to purchase stock.

On April 7, 1954, the Bachmans told Mrs. Pfefer they were going to sell their home and needed to buy a lot to build another home on. They asked her to lend them the money to make the down payment on the lot for them. She stated she did so by giving her check in the sum of $300, payable to J. Lester Brown, a real estate man.

On May 5, 1954, at Mrs. Bachman’s request, Mrs. Pfefer gave a $700 check to Mr. Bachman who had her insert in it as payee “Nesbitt Grapette Bottling Co.” This check also contained the notation “For personal loan”. Also on May 5, 1954, Mrs. Pfefer gave her check in the sum of $800, payable to Mrs. Bachman, and containing the notation “For personal loan”.

The Bachmans continued to request loans from Mrs. Pfefer but she had no available money until about May 5, 1954, when the Bachmans told her they were going to lose their home because they couldn’t make the payments due on it. She aided them in working out temporary financing until they sold the house. On June 18, 1954, according to Mrs. Pfefer, the Bachmans paid her $1,000 on what they owed her.

Thus it was Mrs. Pfefer’s specific testimony that all these transactions were personal loans she made to the Bachmans. She denied any of them were loans by her to the Nesbitt Grapette Co., now bankrupt, or to purchase stock for her in that company. She testified she had never either purchased or received any stock of the Nesbitt Grapette Company, was not familiar with the business affairs of that company, and had no interest in it. Her only dealings were with the Bachmans, who as her friends, solicited and obtained the mentioned personal loans from her. What they actually did with the money they borrowed from her she did not know. Mrs. Pfefer’s explanation of her delay in bringing suit against the Bachmans was that they kept assuring her they would soon be paying her all that they owed her.

The gist of the evidence on behalf of the defendants, including some exhibits adduced on their behalf, was that the mentioned checks all represented either investments by Mrs. Pfefer in the Nesbitt Gra-pette Co., which made her a creditor of that company or purchaser of stock by her in that company. Mrs. Bachman did not testify. Her husband stated that he, his wife, and several others who were the principal stockholders in the Nesbitt Gra-pette Co. in order to keep that company from going under advanced some of their own money to the company so it could meet some of its debts. He denied that he or his wife had ever borrowed any money from Mrs. Pfefer. He denied that he borrowed any money from Mrs. Pfefer and then turned that money over to the bottling company to keep it going. “I couldn’t have owed her anything. I never borrowed anything from her individually. What monies that I carried as a messenger and she told me to turn it over to the corporation, was turned over to them and that is all. I have never borrowed anything from her.” He stated that if a check was made out to his wife, she cashed it and brought the money to the company. He had told Mrs. Pfefer the company was in distress and needed more capital and “they was going to bring some more people in and reorganize the stock * * * she said she would help out, she would buy some stock in this company.” He stated they arranged with Mrs. Pfefer that she was to put up $8,000 for 123 shares of stock actually then worth $12,300.00 and that she was to get this stock when the $8,000 was fully paid. Mr. Bachman admitted these 123 shares of stock were at that very time held in escrow for another creditor of the company. Bachman also testified that he personally was in bankruptcy around 1954— 1955. Among the exhibits introduced by defendants was a bank money order purchased by Mrs. Bachman dated June 18, 1956, payable to Mrs. Pfefer in the sum of $1,000, containing the notation “payment of Nesbitt Grapette Bottling Co., Inc., account”.

The jury returned its verdict in favor of Mrs. Pfefer in the sum of $4,300. After an unavailing motion for new trial, this appeal followed.

The Bachmans contend seven errors (points) necessitating a new trial were committed by the trial court. We quote four which can be grouped for discussion: “Point I. The verdict is defective. It must be responsive to all the material issues. Point III — Respondent’s evidence failed to make a case against appellants. Point IV— The evidence on the part of the respondent does not substantiate the verdict. Point V — The verdict is inconsistent, contradictory, illogical and bad upon its face, and will not support a verdict. B — The verdict must be clear and certain and responsive to all material issues.”

Supreme Court Rule 71.02, V.A.M. R. provides that in every action for the recovery of money only, the jury shall fender a general verdict. Supreme Court Rule 71.06 provides, “When a verdict shall be found for the plaintiff in an action for the recovery of money only, the jury shall also assess the amount of the recovery * * Our examination of the verdict reveals it is a general verdict in the usual form. It found the submitted issues in favor of plaintiff and against the defendants and assessed the amount of recovery. It is responsive to all the material issues and is not inconsistent, contradictory or illogical. It is free of ambiguity and requires no construction, correction or amendment. See, Thorne v. Thorne, Mo.Sup., 350 S.W. 2d 754.

Additionally, the verdict is based on substantial evidence, the gist of which we have previously related. Mrs. Pfefer’s own testimony is sufficient to make a submissible case of money had and received as pleaded in her petition.

While defendants’ testimony and some of defendants’ exhibits supported defendants’ views, the jury must be presumed to have based its verdict on all the evidence including that of plaintiff, and it is not limited in its consideration to any particular exhibit or testimony. Conflicts or contradictions in the evidence generally present questions of fact for the jury, under proper instructions, and not questions of law for the court. It is the peculiar province of the jury to judge the credibility of the witnesses and the weight and value to be given to the conflicting evidence.

The Bachmans contend the verdict either must be for $7,300 for Mrs. Pfefer or be for the Bachmans. We do not agree with this contention. Mrs. Pfefer sued for $7,300 and had the burden of proof thereon. The jury on the record before us could have believed she carried the burden of proof only to the extent of $4,300. Only three of the checks signed by Mrs. Pfefer were made out to Mrs. Bachman as payee. These three checks in the amounts of $2,500, $1,000 and $800 total $4,300, the exact amount of the verdict. We find no merit in Points I, III, IV and V.

The Bachmans’ Point II is that respondent’s suit for recovery is barred by the Statute of Limitations. Although the Bach-mans pleaded this defense in their answer, at the trial they did not offer any instruction on it and they thereby abandoned the defense. See, Shepard v. Harris, Mo.Sup., 329 S.W.2d 1; National Bank of Commerce in St. Louis v. Laughlin, 305 Mo. 8, 264 S.W. 706.

Point VI charges error on the part of the trial court in the admission of evidence. The particular evidence referred to in appellants’ brief concerns two questions asked by Mrs. Pfefer’s counsel on cross-examination of Mr. Stolov, one of the Bachmans’ witnesses and a stockholder in the Nesbitt Grapette Co. “Q. By, the way, were you connected with Mr. Bachman in his ill-fated venture, the C. and B. Plumbing operation? A. No, sir. MR. SILVERFORB : Just a minute, I object to that and ask the jury be instructed to disregard it. It has no bearing upon the issues here involved. MR. YAROWSKY: If the Court please, I would like to show bias and prejudice of this witness and the inclination to testify outrageously in behalf of the defendant. THE COURT: The objection is overruled.” We are not persuaded that the trial court abused its discretion in permitting the question and answer to stand as material to the issue of possible bias of the witness. Nor in view of the answer can we see how any prejudice to the Bachmans could have resulted therefrom.

A witness’s interest or bias are relevant matters, and the extent thereof may ordinarily be shown, although much discretion is accorded to the trial court as to how far the inquiry may go in details. State v. Pigques, Mo.Sup., 310 S.W.2d 942; Bean v. Ross Mfg. Co., Mo.Sup., 344 S.W.2d 18; and see cases collected in Mo. Digest Witnesses,

The second question objected to was, “Q. Now is that a par value you are speaking of, or is that the intrinsic value or worth of the share?” Although the trial court overruled the objection the witness never answered the question. We find no merit in Point VI.

The final contention of error is that the trial court erred in refusing to give Instruction No. 6 offered by the appellants. The Bachmans assert that Instruction No. 3, given at their request, was but a part of their defense and that offered Instruction No. 6 was still another part of that defense. Instruction No. 6 is repetitious of Instruction No. 3 in several aspects. Its new matter concerns the $1,000 payment on June 18, 1956, to Mrs. Pfefer and directs the jury that if that payment was made from funds of the Nesbitt Grapette Bottling Co. by defendants as agents of that company “on account of Nesbitt Grapette Bottling Co. then your verdict must be in favor of defendants and against plaintiff.” The instruction goes too far. The payment of $1,000 under the circumstances stated in the instruction would not necessarily defeat Mrs. Pfefer’s total claim. Thus, in addition to being repetitious and somewhat unclear, the instruction is not a correct statement of the law and the trial court did not err in refusing to give it. Hertz v. McDowell, En Banc, 358 Mo. 383, 214 S.W.2d 547(7); McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907 (4-5); Schipper v. Brashear Truck Co., Mo.Sup., 132 S.W.2d 993 (9-10), 125 A.L.R. 674.

Having examined all of appellants’ contentions of error and having found none, we affirm the judgment.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Pamela Sue PEAK, by her father and next friend, Francis Wilber Peak, Plaintiff-Respondent, v. W. T. GRANT COMPANY, Defendant-Appellant.
    No. 24102.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 1, 1965.
    Application to Transfer Denied March 8, 1965.

      Rodger J. Walsh, Rafter, Biersmith, Miller & Walsh, Kansas City, for appellant.
    Wilbur L. Pollard, Williams, Norton & Pollard, North Kansas City, for respondent.
   HUNTER, Judge.

This is an action for false arrest and imprisonment. Pamela Sue Peak by her father and next friend, Francis Wilber Peak, obtained a verdict and judgment for $2,500 actual damages and $4,000 punitive damages against defendant-appellant W. T. Grant Company, a corporation.

On this appeal the W. T. Grant Company has charged the trial court with having erred in failing to direct a verdict for defendant, in admitting into evidence plaintiff’s Exhibit No. 3, in giving plaintiff’s Instruction No. 3, and in not setting aside the verdict on the ground it is excessive. We will proceed to set out only such of the evidence as is pertinent to the proper disposition of these contentions of error. In determining whether defendant was entitled to a directed verdict we view the evidence in its most favorable light to the plaintiff, as is the rule.

The incident involved occurred on Saturday afternoon, December 15, 1962, in defendant’s store located in the Antioch Shopping Center in Kansas City North, Clay County, Missouri. The Grant Store was about 200 feet by 400 feet in size on the ground floor and it has offices on a lower or basement floor. That day was the largest selling day before Christmas and the store was very crowded with some 400 customers and 52 employees being present Kenneth Burton was the store’s manager and Terry Knapp was the store’s floor supervisor.

Plaintiff (hereinafter referred to as Pam) who was then sixteen years old, together with her mother, her sister Candace (Candy) then thirteen years old, and her brother Tim, then twelve years old arrived at the shopping center about 2:30 p. m. to do their Christmas shopping. The children had $5.00 apiece for this purpose. They decided to separate so they could make purchases without revealing what they were purchasing for each other. Pam’s mother went to the Crown Drug Store. Pam went to the T. G. & Y. Store and Candy and Tim went to Grant’s.

Mrs. Howard, an employee of Grant’s for seven years, saw Candy near a rack of clothing in her department. Candy had a “clutch” purse and according to Mrs. Howard “she couldn’t get it closed, it was so full.” * * * “I didn’t see her put anything in her purse; I saw her working with her purse, trying to get it closed.” It appeared Candy was trying to push down the contents of her purse so she could close it.

Mrs. Howard testified she walked up to help Candy and Candy’s face got red, she appeared frightened and left hurriedly toward the other end of the store. “And she didn’t get it (purse) closed when she left the department.” Mrs. Howard pointed out Candy to Knapp and told him she thought Candy might be putting something in her purse. Knapp was watching for shoplifters that day. He started watching Candy and noticed she was carrying a very full purse. After watching her three or four minutes he saw a Mr. Stawicki, a part time security officer for the Antioch Shopping Center Merchant’s Association whose duties included assisting the Association’s members, including Grant’s in apprehending shoplifters. He signaled Mr. Stawicki, and the two of them endeavored to follow Candy and her brother as they went in and out the isles to some six or seven counters. Knapp described Candy’s actions in darting in and out of isles as “evasive” and to him suspicious. Finally Candy and her brother went under the railing beyond the check stand to the door. Knapp then told Stawicki to stop Candy and he did so. Stawicki showed her his card credentials, told her he was the security officer for the Shopping Center and said he wanted to speak to her because she was suspected of shoplifting. According to Stawicki the purse was still very full and he asked to see it. She held onto it. He asked her to follow him and she did. They all went to the northeast corner of the store. Tim told Candy to show her purse but she continued to hold on to it. Tim then left to go get Pam who by then had left the T. G. & Y. store and had entered Grant’s store.

Tim returned with Pam. According to Pam, “I went in between the two men to my sister, and Tim went around them over to her. I * * * asked them what they wanted.” Stawicki told Pam he wanted to see her sister’s purse. Pam wanted a uniformed police officer and Knapp asked Stawicki to get one. He left to do so, and Knapp wanted Pam and Candy to go to the basement.

Knapp took hold of Candy’s arm. “I (Pam) told him to leave her alone.” * * “I took her by the hand and told her that we’d go get Mom.” Knapp ordered her to stay until the officer arrived. “He (Knapp) took hold of my coat * * * with both of his hands. * * * Well, I told him I’d scream, and he started shaking me. * * * Well, I screamed, and he threw me around into a — rack of clothes. * * * It was pushed ‘way back into the other racks (her lower back struck it). * * * I had the box that I got — the airplane for Timmy — and I hit him in the side of the head with it (and repeatedly kicked him on the shins).” Tim left to go get his mother.

Pam continued to scream and Knapp tried to cover her mouth. He dragged her by the arm across the store to a big safe located near the stairway to the basement offices. According to one witness, Knapp was slapping Pam and knocking her into several counters as he dragged her along toward the basement steps. In the process a little boy was knocked down and a crowd of some forty or more gathered. Until this time neither Knapp nor Stawicki had identified themselves to Pam. They were not in any type of uniform.

Grant’s manager, Mr. Burton, arrived as did Pam’s mother and Tim. Mr. Stawicki then returned with a police officer. Upon learning about the fracas Pam’s mother took Candy’s purse and gave it to Stawicki. Upon examination by Stawicki with the others looking on it was determined that the purse contained only the usual articles that young girls customarily carried and did not contain anything that belonged to Grant’s. Stawicki and Knapp testified the purse opened to be much thinner than when earlier observed by them. Knapp stated he had not seen Candy for a short while before her mother arrived but conceded that he had not actually seen her leave the group. Candy in her testimony denied she had ever left the area, denied her purse was any thinner and denied she had taken anything at Grant’s.

Pam, her mother, Candy and Tim then left the store, and Pam was taken to a doctor. Her injuries will be discussed later.

On this appeal defendant contends the trial court erred in failing to direct a verdict for defendant because plaintiff failed to prove defendant’s employee, Mr. Knapp, was acting within the scope of the authority conferred upon him and failed to make a submissible case on the question of agency. Knapp testified without objection that he was defendant’s floor supervisor at the Grant store and that one of his duties was to watch for and apprehend shoplifters. Knapp described the large number of shoplifters that he and other employees at Grant’s had apprehended in the past and after this incident and stated that most of them were teenagers. He told how defendant Company gave him written instructions on shoplifters in the store — what to do with them — what procedure to follow. “Q. Did you follow the store’s procedure? A. Yes, sir. Q. Now, this procedure was taught to you by whom? A. Mr. Burton. Q. And was it part of your training? A. Yes, sir, it is part of the training. Q. * * * This Saturday — were you watching for shoplifters that day? A. Very much so, yes. Q. And that’s part of your job every day isn’t it ? — Watching for shoplifters ? A. Yes, sir, it is; everyday.” Testimony from Mr. Burton corroborates that it was a part of the manager and assistant manager’s duties to watch for and apprehend shoplifters and to protect the company’s property.

Defendant’s written directive (plaintiff’s Exhibit No. 3) provided in part, “Never detain a person on uncorroborated word of saleswoman or customer as they may be mistaken * * * * * “Before anyone is detained and brought back to store be sure that there is not any doubt of guilt, for once arrest is made, withdrawal of charge cannot save company from liability. * * *

“Never cause an arrest unless evidence is so strong that conviction is inevitable. It is better that a guilty shoplifter be allowed to escape justice occasionally rather than subject Company to suits for false arrest. * * * ” Defendant’s specific contention is that since Knapp’s actions were based upon what the clerk told him he exceeded his authority as set out in plaintiff’s Exhibit No. 3 and therefore this defendant is not liable for his actions and especially is not to be subjected to punitive damages.

The liability of a principal for a wrongful restraint or detention by an agent or employee depends on whether the act was authorized or subsequently ratified, or whether the act was within the scope of the agent’s or employees employment or authority. 35 C.J.S. False Imprisonment § 40(1), page 687. Thus, the defendant is liable for the wrongful arrest and detention of plaintiff only if its employee, Mr. Knapp, in so doing acted within the scope of his authority, express or implied. Heinold v. Muntz T. V., Mo.Sup., 262 S.W.2d 32.

In Knowles v. Bullene & Co., 71 Mo. App. 341, this court held that the employer of a large department store was liable in an action for false arrest and imprisonment of a person arrested by his floorwalker for stealing lace from a counter although the employer had instructed his employees not to arrest unless they actually witnessed the act and the floorwalker had not seen the act of stealing but acted on another employee’s report of seeing it. In so holding this court said, loc. cit. 348: “These principles are applicable to the case at bar. These servants or agents of the defendants were put in charge of goods held for sale; their primary duty of course was to make sales, but they were likewise relied on to protect the goods from pilfering, and to do this, were authorized, as the principals themselves might have done if present, to arrest and search parties for the purpose of recovering stolen goods. If, however, in the performance of this duty the defendants’ employees mistook the occasion for it and arrested and searched an innocent party, still the employers are responsible. It would be wrong and contrary to legal principles to visit the mistakes of these agents upon third parties, where as here such agents were acting within the general scope of the business intrusted to them by the principals.

“Neither will this liability be shifted and defendants relieved, because, as testified by defendant Thayer, he cautioned his employees to make no arrests except in cases where they actually saw the theft committed. Innocent third parties can not be affected by these instructions which were disobeyed by the defendants’ servants. Garretzen v. Duenckel, 50 Mo. 104; Farber v. [Missouri Pacific] Railway, 32 Mo.App. 378; Jones v. [St. Louis, N. & P.] Packet Co., 43 Mo.App. 398. In these and numerous other cases that might be cited, it is in effect held that the master will be liable where the act was done by the servant in the scope of his employment, and to accomplish the purpose of that employment, although it was done contrary to the express orders of the master. ‘The test of a master’s responsibility for the act of his servant is, whether the act was done in the prosecution of the master’s business, not whether it was done in accordance with the instructions of the master to the servant.’ ” And see, Nichols v. Chicago R. I. & P. Ry. Co., Mo.App., 232 S.W. 275, 277.

In Sacks v. St. Louis & S. F. R. Co., Mo., 192 S.W. 418, 420, our Supreme Court expressed it, “Corporations sometimes appoint persons with power to act generally in detecting, arresting, and prosecuting offenders against the law as it affects their rights. In such cases' the employer is held responsible for the acts of the agent within the general scope of his employment, and in furtherance of the master’s business, although the agent may have violated the master’s instructions.”

Thus it is the rule that the employer or principal is liable for a wrongful restraint or detention by an employee or agent within the scope of his employment even though the act was contrary to express instructions, and even though the agent or employee was guilty of negligence or of malicious conduct. 35 C.J.S. False Imprisonment § 40(3), page 690; Titus v. Montgomery Ward & Co., 232 Mo.App. 987, 123 S.W.2d 574, 575; 22 Am.Jur., False Imprisonment, Section 37, pages 378-79.

If there is any uncertainty arising as to whether the employee is acting within the scope of his authority arising either from a conflict in the evidence or because the undisputed facts might lead reasonable men to draw different conclusions then the question is one of fact to be determined by the jury. De Mariano v. St. Louis Public Service Co., Mo.Sup., 340 S.W.2d 735; Salmons v. Dun & Bradstreet, 349 Mo. 498, 162 S.W.2d 245, 141 A.L.R. 674.

In the instant case the evidence discloses Knapp was authorized to arrest and detain shoplifters. By his own testimony he had done so on many prior occasions and he continued to do so since this incident. In fact defendant’s written directive gave him cautionary instructions concerning the arresting of shoplifters. There is some doubt as to whether the particular sentence, “Never detain a person on uncorroborated word of saleswoman or customer as they may be mistaken * * * ” applies to a manager, assistant manager or to a person of Mr. Knapp’s particular position rather than to a mere employee. In its brief defendant discusses its right to detain Candy as though she were the plaintiff in this suit. If this were so, Knapp would not have violated his written instructions for he had not only what the saleslady reported about Candy but additionally he had followed Candy, observed as he described it, her stuffed purse, her furtive movements and actions and then undertook to detain her as she was leaving the store. However, this suit is by Pam, not Candy, and as to her even though Knapp may have violated the defendant’s written directive, his wrongful restraint of Pam could nonetheless be found by the jury to be within the scope of his employment and defendant legally responsible for it. It was a question of fact to be determined by the jury. The trial court did not err in refusing to direct a verdict on the scope of employment question and in submitting that issue to the jury.

Defendant also contends the rule is that the master must have participated in the conduct or acts relied on as a basis of punitive damages, or previously authorized or subsequently ratified them. The defendant is a corporation. It acts through its officers, agents and employees. When one of its employees is authorized to arrest and detain shoplifters, and in endeavoring to do so mistakenly arrests and detains an innocent person the defendant is liable therefor, and, if the employee’s act of arrest and detention meets the usual tests of legal malice, then punitive damages as well as actual damages may be obtained. The rule is the same as applies to the commission of any other tort by an employee and the employer is sued for actual and punitive damages. See, Newport v. Montgomery Ward & Co., 344 Mo. 646, 127 S.W.2d 687; McGill v. Walnut Realty Co., 235 Mo.App. 874, 148 S.W.2d 131; Hutchinson v. Sunshine Oil Co., Mo.App., 218 S.W. 951; Titus v. Montgomery Ward & Co., supra, 123 S.W.2d loc. cit. 574.

Did the trial court err in admitting into evidence plaintiff’s Exhibit No. 3, the defendant’s Operation Manual on Shoplifting, over defendant’s objection?

Defendant’s counsel was the first to inject into the trial the subject of defendant’s written instructions on shoplifting. He asked Knapp, “And, by the way, have you gotten instructions on shoplifters in the store — what to do with them and what procedure to follow? A. Yes, sir, we have. Q. And have you ever, before this incident — had you ever stopped a shoplifter in the store. A. Yes, sir, quite often. Q. And I suppose you’ve stopped them since this incident, have you. * * * A. I would say approximately thirty or forty * * *. Q. And what’s the procedure after you stop a shoplifter over there in the store? A. We take them to the office, and they generally talk to Mr. Burton; and we call their parents and have them come and take the child home for correction. Q. And is that the procedure that the Company has advised you to take ? A. Yes, they have.” * * * “Q. Well, you’ve testified, here, that you were instructed by the management on what procedures to follow; is that right? A. Yes, sir. Q. Did you follow those procedures ? A. Yes, sir.” * * * “MR. WALSH: Well, I asked him if he followed the store’s procedure, and he says he did I think that’s admissible. THE COURT: Proceed with your examination. BY MR. WALSH: Q. Did you follow the store’s procedure? A. Yes, sir. Q. Now, this procedure was taught to you by whom? A. Mr. Burton. Q. And was it part of your training ? A. Yes, sir, it is part of the training.” * * (Mr. Pollard) “Now, then, there’s no question but what you, in your capacity as floor supervisor and manager trainee, have received directives from the home offices at New York as to how you are to handle shoplifters; isn’t that correct? A. General outlines; yes, sir. Q. And you received such memorandums and directives prior to December 15, 1962; is that correct? A. Yes, sir, I did.” * * * “Q. Now, then, Mr. Knapp, in the procedure you followed in apprehending and detaining Pam’s little sister, Candy, you were following the directive from the home office in New York as evidenced in plaintiff’s Exhibit No. 3; isn’t that correct? A. Trying to; yes, sir.”

Plaintiff’s Exhibit No. 3 as it concerned shoplifting instructions and procedure was material to the issue of Knapp’s authority. It was also material to the issue of punitive damages. Further, it was originally brought into the case through defendant’s counsel who asked questions concerning it. Although the exhibit contained some material other than that concerning shoplifter procedure, none of that material was read to the jury or otherwise referred to in the presence of the jury. While such extraneous material was immaterial and should not have been included in the exhibit, we are convinced that under the present circumstances, even if it had come to the attention of the jury, it is not of such a nature as to prejudice the jury so as to constitute reversible error. We find no merit in this contention of defendant.

Plaintiff’s Instruction No. 3 reads: “The Court instructs the jury that if you find and believe from the credible evidence in the case that on December IS, 1962, that the witness Knapp was agent for, and at all times mentioned herein was the agent of, Defendant W. T. Grant Company, and acting for and on behalf of the defendant and within the scope of his employment, if you so find, and if you further find that as such agent on such day he forcibly detained the plaintiff, Pamela Sue Peak, if you so find, and if you further find that the acts and conduct of such agent were willful, wrongful, malicious, and when he did not have reasonable cause to detain plaintiff, if so, the plaintiff is entitled to recover such actual damages as the jury may find and believe from the evidence will compensate plaintiff for her physical injuries, emotional upset, mental anguish, humiliation and embarrassment, if any, as a direct and proximate result of the acts and conduct of defendant’s agent aforesaid.

“The Court further instructs the jury that if you find for plaintiff for actual damages, you may assess punitive damages as a punishment to defendant for such wrongful and malicious acts, if so, as a punishment to the defendant and as a warning to others.”

Defendant charges four errors in the instruction. The first two are (1) that it failed to state the specific wrongful acts of defendant’s employee that would serve as the basis for assessing punitive damages or actual damages and failed to tell the jury what constitutes “wrongful acts”; and, (2) that it failed to require a finding that any specific wrongful conduct of defendant’s employee was willful, wanton or malicious.

As we read the instruction the wrongful acts were those consisting of the forcible detainer of Pam. If the jury found there was a forcible detainer of Pam and that such forcible detainer was willful, wrongful and malicious and without reasonable cause then it could proceed to assess the mentioned damages. While this portion of the instruction is no model we do not think it misled the jury; nor did it misdirect them.

The third charge of error is that the instruction failed to negate the affirmative defense that defendant had reasonable grounds or probable cause to believe that its merchandise was being stolen and that the detention was in a reasonable manner and for a reasonable length of time.

In 1961 our legislature enacted a statute establishing the mentioned affirmative defense. Section 537.12S RSMo 1959, V.A.M.S. However, the right to reasonably detain provided by the statute applies to the detention of “a person (who) has committed or is committing a wrongful taking of merchandise or money from a mercantile establishment * * Defendant Grant Company is not entitled to the benefit of this statute in a suit brought hy this plaintiff, for defendant concedes that it never suspected her of taking or attempting to take its property. It was plaintiff’s .■sister whom defendant suspected and that at a time when plaintiff was not even present in the store. The statutory defense would be available to defendant in a suit against it by Candy but not in this suit hy Pam. Thus, even if plaintiff’s verdict directing instruction failed to properly either negate the statutory affirmative defense or to clearly refer to defendant’s Instruction No. 4 containing it, a matter on which we need not pass, such failure is not erroneous for defendant was not entitled to the defense or the instruction containing it in this suit by Pam.

Defendant’s last contention of error concerning Instruction No. 3 is that it failed to require a finding of agency as to any specific wrongful act of defendant’s ■employee. What we have previously said ■disposes of this contention. The wrongful act contained in the instruction was the ■forcible detention of Pam by Knapp. The •instruction requires the jury as a prerequisite to finding for plaintiff to find that Knapp “at all times mentioned herein was the agent of, Defendant W. T. Grant Company, and acting for and on behalf of the defendant and within the scope of his employment * * * and that as such agent on such day he forcibly detained the plaintiff * * We find no merit in this .contention of defendant.

Defendant’s final contention is that the trial court erred in entering judgment on the verdict because it was excessive. Plaintiff is entitled to recover general damages for all injuries sustained by her naturally and proximately from her wrongful detention. This includes, among others, such items as mental suffering, humiliation, disgrace, injury to feelings and reputation as well as physical injury. Jarrett v. St. Francois County Finance Co., Mo. App., 185 S.W.2d 855; Oliver v. Kessler, Mo.App., 95 S.W.2d 1226.

There is evidence that Pam was wrongfully detained for almost an hour. A sizeable crowd, including some of her acquaintances, witnessed her detention and the accompanying fracas. Pam’s injuries consisted of pain in the scapula area, discomfort in the left chest area, some pain and possible disability in her back, some bruising and emotional and mental upsets, sleeplessness, and nervous tension of a prolonged nature. She visited and was treated by Dr. Bates five or six times and had two visits with Dr. Meyers, a psychiatrist. While the verdict for actual damages in the sum of $2,500 may be viewed as liberal it is not unreasonable and was supported by the evidence.

The chief purpose of punitive damages, as its name implies, is to inflict punishment, and this for the reason the punishment assessed will serve as an example and deterrent to anyone considering similar conduct. Included in the numerous factors the jury may consider in determining the amount of punitive damages to be assessed are the degree of malice, the age, sex, health and character of the injured party and the affluence of the tort feasor. State ex rel. St. Joseph Belt Ry. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351. Because of the variegated nature and number of the factors that may be taken into account there is no precise rule that can be applied with mathematical nicety to determine the amount of punitive damages. Each case must turn on its own peculiar facts.

On the punitive damage issue, the evidence was that defendant operated 1,087 stores and that its past year’s net profits were $9,004,122. This evidence along with the evidence bearing on legal malice and other relevant factors was for the jury’s consideration in determining whether and in what amount it should award punitive damages.

The established rule is that the amount of punitive damages lies wholly within the sound discretion of the jury, if it sees fit to award them, and unless it plainly appears that there has been an abuse of this discretion, a court is not justified in interfering with an assessment of punitive damages. Wehrman v. Liberty Petroleum Co., Mo.App., 382 S.W.2d 56; Menke v. Rovin, 352 Mo. 826, 180 S.W.2d 24, 28.

Ordinarily the abuse of discretion mentioned means the verdict must be so out of all proper proportion to the factors involved as to reveal improper motives or a clear absence of honest exercise of judgment by the jury. See, Jones v. West Side Buick Auto Co., 231 Mo.App. 187, 93 S.W. 2d 1083, 1089.

After considering the evidence on the punitive damage issue, we are not persuaded that the jury abused its discretion in naming the amount it did, and the trial court did not err in entering judgment in accordance with the jury’s verdict

The judgment is affirmed

All concur.

      . As to the correct way to negate an affirmative defense, see, Edwards v. Mellen, Mo.Sup., 366 S.W.2d 317; Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14; Prevost v. Wilkin, Mo.App., .358 S.W.2d 417, and M. F. A. Cooperative Ass’n of Mansfield v. Murray, Mo. App., 365 S.W.2d 279. The best form is set out in the proposed Missouri Approved Jury Instructions, No. 23.04 on false imprisonment, which provides, “Unless you believe plaintiff is not entitled to recover by reason of Instruction No. * * * »


author: WADDILL, Commissioner.

text:
    Albert Cecil TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.
    D. L. McNeill, Hickman, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant, Albert Cecil Taylor, was convicted of aiding and abetting other persons in the armed robbery of a bank and his punishment fixed at life imprisonment. KRS 433.140. He contends that the evidence is insufficient to sustain his conviction. While no witness saw appellant near the Bank during the course of the robbery, it is the theory of the Commonwealth that appellant not only helped plan the robbery but had actually participated in it by driving the automobile in which the robbers had escaped.

The cashier of the Citizens Bank of Water Valley testified that during the afternoon of October 14, 1963, two men entered the Bank, one of whom pointed a gun at her, taking $6,011 of the Bank’s money. While the robbers were in the Bank, one of them had a knotted stocking pulled over his head as a mask. The cashier identified Herbert Hurt as the unmasked robber, and Mrs. Charles Bennett, who saw the robbers leave the Bank, identified Ben Ray Taylor, the son of the appellant, as the other participant in the robbery.

The evidence supporting the Commonwealth’s theory included testimony that: Appellant had told a witness during the evening of October 14, 1963, he drove through a police roadblock that afternoon with two men hidden in his automobile; appellant had registered under a fictitious name at a nearby motel the night before the robbery; when appellant was arrested and searched on the night of October 14, 1963, he had $2,155.85 on his person and a knotted stocking in his car. Appellant did not testify, but his only witness, who was his son, Ben Ray Taylor, stated that the money the police found on his father’s person had been won in a poker game.

*1

It is our. opinion that the testimony tending to establish appellant’s guilt when considered in its totality is of such incriminating character as to justify a submission to the jury of the question of appellant’s guilt or innocence and to sustain the verdict rendered. See Hoskins v. Commonwealth, Ky., 374 S.W.2d 839, and Hendrickson v. Commonwealth, Ky., 259 S.W.2d 1.

Appellant next contends that the Commonwealth’s Attorney made an improper and prejudicial argument to the jury. The record reveals that the trial judge promptly admonished the jury to disregard the statements which appellant now claims were prejudicial. Since no motion was made for a discharge of the jury it would seem that appellant was satisfied with the trial judge’s admonition. Under the state of this record we are unwilling to hold that the substantial rights of the appellant have been prejudiced. RCr 9.24 and 9.26; also see Mitchell v. Commonwealth, Ky., 280 S.W.2d 189.

Appellant further urges that the trial court erred in failing to instruct the jury on the whole law of the case. The un-contradicted evidence is that Citizens Bank of Water Valley was the victim of an armed robbery. Under these circumstances appellant was either guilty of aiding and abetting an armed robbery as denounced by KRS 433.140 or he was not guilty of committing any offense under the indictment. Hence, the proper instructions appear to have been given.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    James Owen MOORE et al., Appellants, v. Helen LYONS et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.
    Hobson L. James, Elizabethtown, for appellants.
    Hatcher & Lewis, Harold K. Huddleston, Elizabethtown, for appellees.
   CULLEN, Commissioner.

In a collision between automobiles driven by James Owen Moore and James Lyons the latter’s wife Helen, a passenger in his car, was injured. She .sued James Owen Moore, his father who had provided him with the automobile, and Knox Motors, Inc., which owned the automobile. The defendants brought in James Lyons as a third-party defendant and cross-claimed against him, seeking indemnity or contribution on any recovery against them in favor of Mrs. Lyons and also asking for damages to their automobile.

On Mrs. Lyons’ claim the court directed a verict releasing Knox Motors but holding the Moores liable. The issue of damages was submitted to the jury and a verdict was returned awarding her $6,250. On the cross-claims the court directed a verdict for Mr. Lyons. Judgment was entered awarding Mrs. Lyons $6,250 and dismissing the cross-claims. The defendants have appealed from the judgment.

The appellants do not seriously contend that the court erred in directing a verdict against the Moores on Mrs. Lyons’ claim, or in directing a verdict against Knox Motors on its cross-claim for damages to the Moore automobile. The primary argument is that the court erred in directing a verdict in favor of Mr. Lyons on the Moores’ cross-claim against him for contribution, it being contended that there was a jury issue as to whether Mr. Lyons was guilty of negligence which was a substantial contributing cause of the accident.

The accident occurred on U.S. Highway 31-W in the outskirts of Elizabethtown. The highway runs north and south at this point, there being one south-bound lane and two north-bound lanes. James Owen Moore undertook to enter upon the highway from the driveway of a hotel located on the west side of the highway. He hesitated at the curb line and was moving forward onto the highway when he saw the Lyons car approaching from the north. He applied his brakes and came to a stop with the front of his car about 8 or 10 feet out in the southbound lane. The Lyons car struck his car at the front fender.

All witnesses agreed that the Lyons car was going 35 miles per hour as it approached the scene. The estimates of its distance from the driveway when the Moore car entered the highway varied from a minimum of 30 feet to a maximum of 84 feet. Taking the view of the evidence most favorable to Moore, the Lyons car was 84 feet away just as the Moore car began nosing out into the highway. This means that the Lyons car, traveling at 35 miles per hour, would reach the driveway entrance point in 1% seconds. It is a reasonable estimate that at least one second elapsed from the time Moore hesitated at the curb line until his automobile moved sufficiently out upon the highway to become a recognizable danger to oncoming traffic. During that period of one second the Lyons car traveled 50 feet. This means that when the danger became recognizable only 34 feet of traveling distance remained in which Mr. Lyons could react to the danger and take evasive action. Generally accepted stopping-distance charts show that at 35 miles per hour an automobile will travel 381^ feet between the time the driver sees the danger and reacts sufficiently to apply the brakes.

In our opinion reasonable minds could not conclude that the time and distance available to Mr. Lyons were such that as an ordinarily prudent driver he should have avoided striking the Moore car. Accordingly, the trial court did not err in directing a verdict in favor of Mr. Lyons.

The appellants maintain that the court erred in permitting Mr. Lyons to be asked, and to answer in the negative, “Was it possible for you to stop and avoid the collision?” If error, the admission of this question and answer could not constitute prejudice unless somehow it could be considered a significant factor in the decision to direct a verdict. As hereinbefore indicated, it is our opinion that the circumstances of the accident themselves show that the accident was not avoidable by Mr. Lyons under reasonable standards of care, so the directed verdict was required regardless of the expression by Mr. Lyons of his personal view that it was not possible for him to avoid the accident.

The contention is made that the damages are excessive. There was medical testimony that Mrs. Lyons (21 years of age) had sustained a dorsolumbar spine sprain, causing a weakness in her back; that the weakness will be permanent; and that it will interfere with Mrs. Lyons’ “work as a housekeeper or any strenuous activity.” We think this evidence furnished sufficient basis for the amount of damages awarded.

There is a complaint concerning a statement made by counsel for Mrs. Lyons in his closing argument concerning the impossibility of treating a back injury. There is no merit in the complaint because (1) the statement was not of a nature calculated to influence the passion of the jury; (2) it was in response to an argument by defense counsel to the effect that Mrs. Lyons was not taking any treatment; and (3) an objection to the statement was sustained and there was no request for an admonition nor any motion to discharge the jury.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Harrison ROBINETTE, Jr., etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Walter Mobley, Flemingsburg, for appellant.
    A. W. Mann, P. H. Vincent, Ashland, for appellees.
   MILLIKEN, Judge.

This is an appeal by the Department of Highways from a judgment in a condemnation case which was rendered prior to Commonwealth1, Department of Highways v. Sherrod (1963), Ky., 367 S.W.2d 844. The land affected by the condemnation was a 128.8-acre tract jointly owned by Pearlie Robinette and her adult son, Harrison Robinette, Jr. The tract was used as a dairy farm and was composed of level, bottom land and hilly land, the Department taking 11.4 acres of the former and 28.9 acres of the latter for the construction of Interstate 64, or 40.3 acres altogether. The new road bisected the farm leaving approximately 20 acres of bottom land, the home and outbuildings on one side of the road and the remaining hilly land on the other side with rio direct access between the two tracts, thus making the remaining land insufficient for and unusable as a dairy farm. The judgment of the Boyd Circuit Court totaled $50,000, $30,000 of which was for the land taken and $20,000 for resulting damages to the remainder.

■ The Department centers its attack on the admission of appellees’ evidence as to the value of unmined coal underlying the dairy farm, the allegedly shocking amount, of the judgment, and the failure of the trial court to eliminate from the judgment any increase over the county court judgment in the amount to be paid to Harrison Robinette, Jr., because of his failure to appeal the county court judgment.

The Department took no specific exceptions to the county court judgment based on the commissioners’ allowances for the land actually taken, but confined its exceptions to the $11,280 allowed for the dairy barn, the $1,440 allowed for the milk house, and the $18,000 allowed for resultant damage. The trial in the Circuit Court is limited to the exceptions taken to the county court judgment. KRS 177.087; Commonwealth, Department of Highways v. Mayo, Ky., 324 S.W.2d 802; Davis v. Commonwealth, Department of Highways, Ky., 374 S.W.2d 513. The landowner offered evidence to sustain both the valuation placed on the dairy barn, which accommodated a heard of thirty dairy cows, and the valuation placed upon the milk house, but we do not pass upon whether the jury’s allowances for these buildings were excessive, because we must reverse the case for reasons which appear later.

The joint owner, Harrison Robinette, placed a valuation of $110,000 on the farm before the taking and $30,000 after the taking. He had bought two lots approximating an acre about five miles away and said that land cost him $1,500. He stated that he had some knowledge of values in the area without specifying to what extent; his testimony asserted that the tract across the highway no longer was accessible for grazing and even if it otherwise could be so used it now was shut off from a source of the necessary water supply. This witness’ testimony as to values was not very convincing, but we do not believe it was so vapid as to justify its exclusion. In the event of a retrial, consideration should be given to Commonwealth, Department of Highways v. Fister (1963), Ky., 373 S.W.2d 720, where the carte blanche privilege of a landowner to testify as to the value of his land was sharply limited unless he established an adequate knowledge of land values in his community so as to qualify as a witness for that purpose.

The valuations offered by the landowners were based largely on the use of the land as a dairy farm and how that use was affected by the taking. Sales of other dairy farms in the county were said to be a sound basis for estimating the value of this dairy farm. Photographic exhibits in the record disclose better than oral testimony the quality of the property involved in this litigation, and the nearness of the property to Ashland, Catlettsburg and adjacent industrial areas supports the assertions of rapidly rising land values in the area.

The injection of the testimony about the amount of coal underlying the land, however, we believe was highly prejudicial. Estimates were made of the quantity of coal, a difference of opinion was expressed as to its mineability, but the implication was plain that it added to the value of the land taken. For example, the state’s contract specified that any coal uncovered in the construction of the highway would be considered “waste” and could be sold by the contractor who had made arrangements to market it, and the contractor considered that in his bidding. One witness for the landowners estimated damages to the landowner to be $57,000, said he did not consider the presence of coal in reaching that figure, but admitted that he would have added to his estimation had he considered the presence of coal. This vein of testimony conflicted with the theory of recovery based on the use of the land as a dairy farm and its value for that purpose and, we conclude, must necessarily have confused the jury in reaching its verdict. The fact that the Commonwealth injected the presence of coal for the purpose of showing its unmineability did not justify the landowners in pursuing the subject for the purpose of adding the value of the coal to the value of the land as a dairy farm. (See Commonwealth, Department of Highways v. Gearhart (1964), Ky., 383 S.W.2d 922, for a discussion of the use of evidence of coal deposits for the purpose of establishing market value when there is no intention or expectation of mining the coal in the near future.) The reference by one witness to the destruction of the business as an item of damage' — $9,000 damages according to him— was improper, Newport Municipal Housing Commission v. Turner Advertising, Inc. (1960), Ky., 334 S.W.2d 767.

Riley v. Commonwealth, Department of Highways (1964), Ky., 375 S.W. 2d 245, is dispositive of the issue raised as to Harrison Robinette’s interest in any amount recovered because he did not except to the county court judgment. In the event of a retrial his interest in the recovery should be reduced to eliminate from the Circuit Court judgment any increase in that judgment over the amount he would have received under the county court judgment.

The judgment is reversed for proceedings consistent herewith.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. WIN-BELT COMPANY, a Corporation, Appellee.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, H. C. Smith, Lexington, for appellant.
    Robert F. Houlihan, Lexington, for ap-pellee.
   HILL, Judge.

The appellee, Win-Belt Company, a corporation, filed this suit in the Fayette Circuit Court seeking an injunction against the appellant, Commonwealth of Kentucky, Department of Highways, to prevent the erection of a fence along a right-of-way being sought in a condemnation proceeding then pending in the Fayette Circuit Court. The trial judge granted the relief sought and enjoined the Highway Department from erecting the fence. The Highway Department appealed to this court and filed brief on behalf of the appellant on April 24, 1963.

The appellee, Win-Belt Company, has filed no brief in this court. No word has been heard from the appellee since April 7, 1964. The controversy may have been resolved in the condemnation case. We have no information.

RCA 1.260, provides:

“If the appellee fails to file his brief within the time prescribed the court may:
“(1) accept appellant’s statement of the facts and issues as correct; or
“(2) reverse the judgment if appellant’s brief appears reasonably to sustain such action; or
“(3) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.”

We invoke subsection (3) of this rule. The judgment of the Fayette Circuit Court is reversed with directions to dissolve the injunction and dismiss the action.


author: STEWART, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Charles E. WILLIAMS et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    See also, Ky., 383 S.W.2d 687.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Ass’t. Atty. Gen., Frankfort, L. A. Faurest, Faurest & Collier, Elizabethtown, Dandridge F. Walton, Madisonville, for appellant.
    Clarence Bartlett, Woodward, Bartlett & McCarroll, Owensboro, for appellee.
   STEWART, Judge

In this highway condemnation proceeding instituted by the Commonwealth of Kentucky, Department of Highways, against the landowners, the Williamses (five in number), the latter recovered $11,682. The jury broke the verdict down as follows: $5512 for the land taken, $5670 for damages to the remainder of the land, and $500 for fencing. This action grew out of the acquisition of land for the construction of the Western Kentucky Turnpike. (This case was tried before the decision of this Court in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844.) The Department of Highways appeals, urging these grounds for reversal:

First, it was prejudicial error to admit testimony that the landowners were damaged by the construction of a fill on a county road which leads to the turnpike. This fill bisects certain grazing land and makes it necessary to cross and recross beyond the fill in order to move livestock from one pasture to another on each side of it.

Second, it was prejudicial error to allow testimony that a portion of the farm of the landowners, known as the “bottom land,” would be permanently impaired by flooding when it is claimed to have been conclusively shown the completed turnpike project will have ditches and a culvert which will adequately drain the affected area.

Third, the evidence does not support the verdict.

Appellees own a farm of 230 acres, originally, located on a gravel road in Ohio County near Beaver Dam. The farm has been utilized for general farming and for raising beef cattle. The Western Kentucky Turnpike runs generally in an east-west direction across it, and 19.48 acres were condemned for the turnpike, 6.71 acres were taken for the county road fill, 15.4 acres were landlocked and 5.6 acres were cut off from the main tract. The turnpike runs through a cut about 22 feet in the center.

A county road traverses appellees’ farm and intersects the turnpike at approximately a right angle. To avoid its crossing at grade, this road was elevated and land on each side of the road was acquired so that the right'of way would be wide enough to construct the necessary fill. In all, 6.71 acres were taken for this purpose. The section of the fill on the county road at the turnpike is about 25 feet high and of some length. It is contended that when changing livestock to pastures separated by the fill the livestock cannot be safely driven on and over the road at this location. However, it was pointed out that livestock can be driven across the road at other places.

Charles E. Williams, one of the landowners, was permitted to testify that, before the fill was made on the county road, he could transfer his livestock without danger from one portion of his farm to the portion on the opposite side of the road, but with the fill as a barrier he cannot do this with safety and will often be compelled to cross the road at points considerably distant from where the livestock is pastured. Appel-lees’ witness, Edgar Barnard, was also permitted to testify about this condition and to state that the fill reduces the value of the farm $500. This evidence was objected to for the claimed reason that it was incompetent.

Appellant argues appellees raised an access question involving the use of a public road when they introduced this line of testimony. See Commonwealth, Department of Highways v. Carlisle, Ky., 363 S. W.2d 104. We cannot subscribe to this view. Here the situation is that certain pasture land is cut into parcels by the fill, thus creating difficulty when the road must be passed over with livestock in order to utilize available lands elsewhere on the farm. Such a condition certainly depreciates the over-all market value of the farm, as it materially adds to the burden of livestock production.

An act by the condemnor which destroys the use to which land has been devoted, or which places a substantial and additional burden on the landowner to maintain that use, is a "taking” of his property. See Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695. We believe this testimony was competent.

Turning to the second contention, it was shown that the turnpike crosses and obstructs a drainage ditch which had been dug by appellees. This ditch followed the course of an old natural drain across the farm from north to south and no opening was made for it under the turnpike as constructed; instead, an attempt was undertaken by appellant to cause the water to flow west in a new ditch to a creek at the western boundary line of appellees’ farm and thence through a culvert under the turnpike embankment.

At the trial it was brought out that in the future the ditch as actually constructed will not take care of the increased flow of water. Also, the evidence of appellees was to the effect that when water gets 14 inches deep in the ditch at the culvert it will then run out onto the surface of the bottom land and remain there until it subsides in the culvert to a depth of less than 14 inches. Some flooding has already occurred on the bottom land since the completion of the culvert.

The position is taken that no corrective measures of appellant will alleviate the flooding propensities of the new drainage system. Upon this theory appellees’ witness, Edgar Barnard, was permitted to testify seven acres of the bottom land will be rendered “almost worthless” as a result of periodic flooding. He fixed this damage at $2500. Another of their witnesses, Tim Barnes, stated that nine acres of the bottom land will be destroyed for crop-raising purposes. He valued this land at $2700.

Appellant introduced its consultant engineer, Rubin D. Medley, and we quote his answers to certain questions propounded to him concerning the drainage of the farm:

“Q. 10 The work has not been completed, did you say Mr. Medley?
■“A. I think I did, the work has not been completed, no sir.
“Q. 11 Are you in charge of the work and know what will be done on it?
'“A. Yes sir.
******
“Q. 14 Will it be completed?
“A. Yes sir.
“Q. 15 Will it drain the water which comes down the ditch across the Williams Farm when completed?
“A. Yes sir.”

Appellant’s view is that the flooding was •considered permanent by most, if not all, •of appellees’ witnesses and, in consequence, .affected their estimates of the damage to the land. Appellant assumes, too, the flooding will be temporary, and in this connection relies upon the statement of engineer Medley that this will be solved in the •foreseeable future. Appellees contend it would not matter how deep the new ditch should be dug at the entrance to the culvert, as that in no wise would affect the flow through the culvert so as to take care of the extra load of water to be discharged from time to time through this outlet.

We conclude under the facts presented the jury was properly allowed to determine whether the flooding was temporary or permanent and to consider what •damages arose therefrom. As a matter of fact it was established some damage from flooding had already been done. Furthermore, the claim of the landowners for flooding, temporary or permanent, was properly injected into this proceeding and the inclusion of such a claim would preclude its being made the subject of a subsequent action. See Commonwealth, Department of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249.

The final complaint is that the evidence does not support the verdict. Appellant’s highest appraisal of the land condemned, namely, 26.19 acres for the highway right of way, was at $110 per acre; appellees’ witnesses set the market value of this land at $300 per acre. The jury awarded the landowners $5512, which figure indicates they fixed their valuation in this respect at almost $200 per acre.

The amount of property landlocked or severed from the main tract consists of 21 acres, and appellant’s highest estimate of the damage to this land was $100 per acre; in fact, this land was treated by appellant as having been “taken.” Appellant’s witnesses thought no other damages resulted. Two of appellees’ disinterested witnesses gave opinions that the 21 acres were damaged $150 per acre; others testified it was damaged more. As has been shown, appel-lees’ witnesses produced evidence which tended to show $2500 to $2700 damages to the bottom land because of flooding and $500 damages to the farm on account of the fill on the county road. The jury found $5670 in favor of the landowners for damages at large to the remainder.

We are of the opinion the evidence sustains the jury verdict as to the allowance for the land taken and the damages to the remainder.

It appears, however, appellant’s criticism is not leveled so much at the amount of the verdict as at the quality of the evidence upon which it is based. Appellant avers its evidence is “clear and uncontradicted,” whereas that of appellees is “vague” and was given by men of “limited knowledge of the facts.” We answer such charges by simply stating that the record does not uphold these bare assertions. Appellees proved their case well.

Wherefore, the judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Alpha TURNER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Jarvis Allen, Pikeville, for appellant.
    Duff Arnett, Hazard, for appellee Po-cohontas Godfrey.
   MOREMEN, Chief Justice.

This was an action brought by two sets of landowners, the Turners and the Phil-lipses, against the Commonwealth of Kentucky, Pocohontas Godfrey and John Willie Combs, for trespass and to quiet title to certain realty and, further, to locate the true boundary line of the land. The court decided the issue between the Commonwealth and the Turners in favor of the latter and although there were collateral issues which were decided, the Commonwealth has directed its appeal to the controversy between it and the Turner owners. Godfrey and Combs also were named as appellees, but apparently the Commonwealth was satisfied with the judgment in that respect. Neither Godfrey nor Combs has filed a cross-appeal.

No brief has been filed by the Turners and we elect, under subsection (c)(2) of RCA 1.260, to reverse the judgment because appellant’s brief reasonably appears to sustain such action.

The land in question was involved in a series of deeds by which the Commonwealth obtained a right-of-way to build a bypass through the City of Hazard. The Turners sold a parcel of land to the Commonwealth for a valuable consideration and the deed' contained this description:

“All that part of said tract or tracts, which lie easterly of a line run 27 feet westerly of and parallel to the center line of said proposed public road between the center of Broadway in the City of Hazard at approximately Sta-9/78 and the south property line at approximately Sta. 12 / 94.”

Apparently an accurate survey map was introduced at the trial, but it has not been included in the record on appeal. Since the above description includes all the land east of the center line of the road up to and including the eastern boundary of the Turners’ property and contains no description of the eastern boundary, one must conclude that it means to the east boundary of the entire tract between the stations above described. A part of this eastern portion of the tract is required by the Commonwealth in order to maintain a culvert, but the trial court in its findings of facts and conclusions of law held that the land conveyed by the Turners to the Commonwealth — but not now a part of the actual road — had reverted to the abutting property owners because the Commonwealth had abandoned this real property.

It is settled in this state that real property cannot be abandoned. An owner may be divested of property under proper circumstances, by adverse possession by another, but that is not presented here. In Turk v. Wilson’s Heirs, 266 Ky. 78, 98 S.W.2d 4 (1936) it was said:

“By virtue of the provisions of section 470, Ky.Stats (the statute of frauds), there is but one way for a man to part with a vested title to real estate, and that is by a writing signed by him. A vested fee-simple title to real estate cannot be abandoned. If a man should go away and leave it for forty, fifty, or any other number of years, and no one should seize and occupy the property adversely, or it should not be sold for taxes, the returning owner would perhaps find his property grown up with saplings and bushes, but he would find his title unimpaired. * * * ”

See also United Mining Co. v. Morton, 174 Ky. 366, 192 S.W. 79 (1917); Duncan et al. v. Mason et al., 239 Ky. 570, 39 S.W.2d 1006 (1931).

We recognize that the doctrine of abandonment is sometimes applied to mining rights, but not to fee simple titles in real estate.

Judgment reversed.


author: PALMORE, Judge.

text:
    Timothy Keith MERRITT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

      Court of Appeals of Kentucky.
    Feb. 5, 1965.

      Frank E. Haddad, Jr., William J. Francis, Louisville, for appellant.
    Robert Matthews, Atty. Gen., Martin Gla-zer, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

At about 2:30 on the morning of November 20, 1963, a bandit displaying what appeared to be a pistol held up Mrs. Nellie Ruth Freeman, the lone waitress on duty at a cafe in Louisville. She reported the incident to the police at once and later on that: morning, from a “mug book” at police headquarters, pointed out Merritt, the appellant,, as the culprit. Subsequently she again identified him in a police “line-up.” He was then indicted for armed robbery, tried, convicted and sentenced to life imprisonment, KRS 433.140, from which disposition he prosecutes this appeal.

For all practical purposes Mrs. Freeman- and the robber were the only persons present when the hold-up took place. The case against Merritt rested on Mrs. Freeman’s, identification of him. His defense was an-alibi corroborated by his mother, who said'. he was home in bed at the time of the robbery. By remarkable coincidence it seems-that he received a telephone call at home,, several miles away, at just about that time. During the trial, however, he neither produced nor attempted to explain the absence of the nocturnal caller.

The first ground for reversal is that Merritt was entitled to a directed verdict because the evidence was insufficient as a matter of law to dispel a reasonable doubt. This, contention centers on the reliability of Mrs. Freeman’s identification. For example, she was unable to estimate the assailant’s height, did not observe the color of his eyes, failed to notice certain scars on his face, etc. There were discrepancies between her testimony on the witness stand and the description contained in a report prepared by the police from information ostensibly given by her shortly after the crime was committed.The other persons appearing in the police line-up with Merritt were dressed in prison ■garb, while he alone was in street clothing, giving rise to the power of suggestion.

We are aware that miscarriages of justice do occur as the result of mistaken identity, often induced by suggestive circumstances. However, that very argument was made to the jury in this case. The jurors were as well advised of the possibility of error and gravity of consequencesas we are. Mrs. Freeman was absolutely positive on the witness stand that Merritt was the man who robbed her. The possibility of error or her part was not sufficient, 'we believe, to destory the credibility of her identification or to establish reasonable doubt as a matter of law. Cf. Teer v. Commonwealth, 307 Ky. 602, 212 S.W.2d 106 (1948); Brown v. Commonwealth, 187 Ky. 829, 220 S.W. 1052 (1920).

There have been many definitions •of reasonable doubt, and we are not so presumptuous as to fancy we can coin a better one here. But it should be observed that a reasonable doubt cannot mean any doubt. There is some doubt about everything. A reasonable doubt is a substantial •doubt, a real doubt, in that the juror must ask himself not whether a better case might have been proved, but whether after hearing the evidence the juror himself actually doubts that the defendant is guilty. In this case we cannot say that the evidence of guilt was so flimsy or unreliable that a reasonable man, after hearing it, must necessarily have been left with a reasonable •doubt. Hence it was sufficient to support the verdict.

Mrs. Freeman described the weapon used by the robber as a pistol with white handles and a blue barrel. She was unfamiliar with guns and could not give the hind or calibre of the pistol, but thought it was not a toy. It is possible, of course, that it was a toy or simulated weapon rather than a deadly weapon in fact, and for that reason it is submitted that the court should have given an instruction on simple robbery, KRS 433.120, as part of the whole law of the case. The Commonwealth on the other hand points out that KRS 433.140 refers to pistols, guns, other firearms, and other deadly weapons in the alternative, from which it is reasoned that any kind of pistol, including a toy, falls within the statute. But the aim and spirit of the law would scorn our taking refuge in semantics. We hold that within the context of this statute any object that is intended by its user to convince the victim that it is a pistol or other deadly weapon and does so convince him is one.

Merritt’s trial was held February 25, 1964. His motion for new trial was filed March 2, 1964. The record shows that on March 3, 1964, his counsel filed an affidavit stating that a highly qualified psychiatrist offered as a witness for the defense was not permitted to testify. The affidavit recites that on February 25, 1964, at Our Lady of Peace Hospital the doctor examined Merritt using sodium amytol (commonly called “truth serum”) and that it was his professional opinion that the patient was telling the truth when he said he did not commit the robbery in this case.

The affidavit was not countered by the Commonwealth. Nonetheless, the record itself suggests that this testimony actually was not offered during the trial. The transcript does not mention it, nor does the motion for new trial list among its grounds any exclusion of competent evidence. The latter omission alone waives any error in that connection. RCr 10.12 does not relieve a party from the necessity of preserving an error by motion for new trial unless the question has been theretofore raised by objection or motion. Cf. Hartsock v. Commonwealth, Ky., 382 S.W. 2d 861, 864 (1964). But even so, casting the technicalities aside, this court has held as recently as in 1960 that truth serum tests “have not attained sufficient scientific recognition of dependability and reliability” for admission in a criminal trial. Dugan v. Commonwealth, Ky., 333 S.W.2d 755, 757 (1960). The affidavit in this case does not indicate that any scientific break-through has occurred in the interim.

The foregoing points of contention have been discussed because they may or will arise upon re-trial of the case, which must be granted for the reason that in our opinion comments made by the trial court in the course of the proceeding were, as a whole, prejudicial to the defendant and inconsistent with his right to a fair trial. They were:

1. On cross-examination of Mrs. Freeman :
Q 125- “Then, actually, you cannot say that this was a real gun, can you?”
“Mr. Fleming: Objection.”
“By the Court: As far as she was concerned it was a gun and, looking down the barrel of a gun, she is not very apt to inquire what kind of gun it is or what caliber it is or whether it is a toy gun or not.”
Q 132- “Then let me ask you this. It is your opinion that the defendant, Timothy Merritt, is the party who held you up?”
A - “No, it is not my opinion. I know that it was him.”
“By the Court: She says he is the man. She doesn’t say he looked like the man but she says he is the man.”
“Mr. Francis: It is still an opinion and I am entitled to expand on that.”
“By the Court: She did not say that it was her opinion, she says she knows it. That is her statement and you can’t make her change that.”
2. On cross-examination of Officer Cannon, in which defense counsel was testing the accuracy of the witness’s memory concerning telephone calls:
Q 18- “How many other people did you talk to on November 22d?”
A - “I don’t have any idea.”
Q 19- “How many people did you talk to on November 21st.”
A - “I don’t have any idea.”
“By the Court: That’s silly. You can’t tell how many you talked to.”
“Mr. Francis: It might be silly but it goes to establish that he could not remember who he talked to on November 22d.”
“By the Court: How many people did you talk to on November 22d?”
“Mr. Francis: I could go back and reconstruct it.”
“By the Court: No, he isn’t going to go back.”
3.During defense counsel’s closing argument to the jury:
“Now you gentlemen will recall that I asked Officer Cannon how many times he had talked to me on the telephone yesterday and he said that he had talked to me on the telephone yesterday 3 times. I submit to you gentlemen that I did not talk to Officer Cannon at any time on the telephone yesterday.”
“Mr. Fleming: Mr. Francis is testifying, he is not under oath.”
“By the Court: You cannot testify about that at all, so what the officer has said is uncontradicted in the record.”

All of the discourse from the bench quoted above was unnecessary. In the announcement of rulings during the course of a trial, while the issues still hang in the balance, it is not proper for a judge to let his own attitudes and observations leak into the crucible. If he wishes to expedite the questioning of a witness he can do so in a way that does not appear to demean the attorney’s efforts. If he is disposed to carry a discussion with counsel beyond that point he should do so out of the jury’s hearing. We can understand the impatience of any trial court with trivia and undue persistence of counsel in the pursuit of matter beyond the saturation point. But he must not let it show, either in his countenance, tone of voice or remarks in the presence of the jury. He represents the majesty and impersonality of the law, which has no displeasure, no contempt for any man on trial, or for the counsel who pleads his case. To call a lawyer’s argument silly in front of the jury certainly is beyond the pale.

The judgment is reversed with directions for a new trial.

      . Though inadmissible because Mrs. Freeman denied their accuracy and the officer who wrote the report did not testify, certain portions of the report were permitted to be brought into evidence without objection.


text:
    Earl MAYE, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.

      Earl Maye, Jr., pro se.
    Robert Matthews, Atty. Gen., Charles W. Runyon, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

The appellant, Earl Maye, Jr., brings this appeal pro se and in forma pauperis from a judgment overruling his RCr 11.42 motion to vacate his conviction and sentence to life imprisonment on a charge of armed robbery, KRS 433.140.

When the grounds stated in an RCr 11.42 motion, even if found true, would not be sufficient to invalidate the judgment, the motion may be overruled without a hearing. Cf. Oakes v. Gentry, Ky., 380 S. W.2d 237 (1964). See also Odewahn v. Ropke, Ky., 385 S.W.2d 163 (1964) and the U. S. Supreme Court decisions therein cited. In such a case the movant, though indigent, is not entitled to the appointment of counsel. Jennings v. Commonwealth, Ky., 380 S.W.2d 284, 286 (1964). Neither is he entitled to a hearing or to appointed counsel if the material issues of fact can be determined from the face of the record. RCr 11.42.

The motion in this case was overruled on the basis of the record, without a hearing. Our review therefore is directed to the existence, vel non, of any material issue of fact that could not fairly have been resolved from the face of the record.

The grounds stated in the motion were, in summary, as follows: (1) Denial of effective assistance of counsel in that the appointment of an attorney to defend mov-ant was made one day before the trial, so that he did not have reasonable time and opportunity to prepare a defense; (2) Improper disclosure during the trial, and reference thereto by the prosecuting attorney in his summation to the jury, of mov-ant’s prior convictions of other offenses; (3)Failure of the court to instruct the jury properly and in writing; (4) Insufficiency of the evidence to support a conviction; and (5) The verdict was against the law and the evidence.

Grounds (2) through (5) embrace mere errors, none of which are of such proportion as to invalidate the judgment. Hence they do not call for a hearing under RCr 11.42. Nevertheless, we are fortunate in having the record of the original proceeding before us on this appeal (as it should be in all cases where reference to> it is necessary), and are able to say without reservation that the factual allegations', of the motion are largely untrue and do' injustice to the judge and attorneys who. participated in the trial.

Ground (1), though it states a constitutional violation, is refuted on the face of the record in the form of an order entered on February 19, 1962, showing that the movant was brought into open court and arraigned, entered a plea of not guilty, and was then and there represented by counsel, Hon. W. R. Gentry, Jr. By the same order his trial was set for February 27, 1962. The record further discloses that he was. tried on the appointed day and that his-defense was conducted by Mr. Gentry. There was no motion for a continuance.

In his brief on this appeal the movant states that the order of February 19, 1962, misrepresents the facts in that Mr. Gentry was appointed by the court on that date only to assist him during the arraignment. He goes on to say that the same attorney was employed by the movant’s co-defendant, one Luther Rhodes, and was not really appointed to defend the movant at his trial until February 26; that counsel moved for and was granted separate trials for the two defendants and elected to go first with the movant, who was convicted; and that Rhodes was tried later and acquitted.

In view of the movant’s admission that there actually was some kind of appointment of Mr. Gentry on February 19, the most that could be said is that he misunderstood its import. When counsel is appointed to represent an indigent in this jurisdiction he is to assist him throughout the proceeding, unless and until otherwise directed by an order of the court before which the cause is pending at the time of the latter order. Moreover, even if counsel was not appointed until February 26, evidently he did not feel that a continuance was necessary, since he did not ask for it. Indeed, we do not see what good it would have done anyway. The movant appears oblivious to the fact that he had made a big, fat, written confession incriminating himself beyond any hope of salvation at the hands of any lawyer in any court. Though he testified that he was “forced” to make the confession he does not in this proceeding question its integrity.

The statements contained in the movant’s brief on this appeal raise one specter that moves us to utter a word of caution to the trial bench in general with respect to appointing for one defendant an attorney who is representing his co-defendant. In such cases there is always a possibility, and usually a probability, of conflicting interests between the two, and only separate counsel can protect each from possible advantage by the other. Particularly is this true when counsel is being paid by one and not the other. In so saying, we do not suggest that in this particular case the movant did not receive proper representation from the attorney who was appointed to and did defend him.

The judgment is affirmed.

      . With reference to RCr 11.42 the word “hearing” means a hearing at which the movant is present.

      . The proof of and reference to prior convictions were permitted for purposes of impeachment, movant having testified in his own behalf.

      .We consider the statements in the brief only because it is apparent that the movant did not have access to the record at an earlier stage of the proceeding.

      . See, for example, United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 92 L. Ed. 232 (1952). In the instant ease it seems quite probable that Rhodes and the movant had conflicting stories. Rhodes did not testify.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Barney BENNETT, single, and First Federal Savings & Loan Association of Elizabethtown, Kentucky, Mortgagee, Appellees.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.
    Robert Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Harold K. Huddleston, Elizabethtown, for appellant.
   HILL, Judge.

This is another highway right-of-way condemnation case under KRS 177.081 et seq. to acquire a little over three acres of the appellees’ property for use in improving U.S. Highway 31-W.

A two-story brick home, one of nine wooden frame tourist cabins and other outbuildings were actually taken. Other buildings were rendered less valuable and perhaps valueless by the taking. The jury awarded $47,000.00 for the land and improvements taken and $15,000.00 damages to the remainder. This last item of damages was almost a third more than the highest amount testified to by appellees’ witness, Hays, and nearly twice the amount fixed by appellant’s witness, Cave.

Appellees have failed to file a brief in this court. We apply subsection (c) (3) of RCA 1.260.

The judgment appealed from is reversed, without considering the merits, with directions to grant appellant a new trial.


author: DAVIS, Commissioner.

text:
    Charles LAWSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.
    Charles Lawson, pro se.
    Robert Matthews, Atty. Gen., Frank D. Berry, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

This appeal is from an order overruling appellant’s motion to vacate a judgment convicting him of rape. RCr 11.42. The RCr 11.42 motion was overruled by the court without a formal hearing. The action of the trial court in so overruling the motion was proper because the motion, on its face, did. not present any showing that entitled appellant to relief. Oakes v. Gentry, Ky., 380 S.W.2d 237.

Appellant listed six purported grounds upon which he deemed himself entitled to relief pursuant to RCr 11.42. These so-called grounds are: (1) “The indictment * * * was false and without merits”; (2) no date or place of the commission of the crime was ever given; (3) the court’s “jurisdiction * * * is void, due to violations of his substantial rights” in violation of § 11 of Kentucky Constitution, and the 6th and 14th amendments of U.S. Constitution; (4) the court failed to produce the prosecutrix in court to give sworn testimony; (5) no doctor’s statement, or any other evidence was produced to show proof of the alleged offense; (6) the attorney appointed for appellant “showed prejudice, and incompetentiness (sic), when he failed to assist, or utter one word in defense of” appellant, “leaving him alone to defend himself, without being advised of his substantial rights.”

It is at once apparent that the first five grounds listed are vaporous and without substance. Cf. Oakes v. Gentry, supra; Jennings v. Commonwealth, Ky., 380 S.W. 2d 284; Bell v. Gentry, Ky., 380 S.W.2d 259; Tipton v. Commonwealth, Ky., 376 S.W.2d 290.

The charge of inadequate counsel, if made with such particularity as to suggest substance, may become a valid basis for a hearing and relief under RCr 11.42. Moore v. Commonwealth, Ky., 380 S.W.2d 76. In the case before us the allegation is that counsel “failed to assist, or utter one word in defense” and that appellant was “left alone to defend himself, without being advised of his substantial rights.” The record shows, however, that appellant, entered a plea of guilty to the rape charge; he received sentence of imprisonment for ten years, the minimum sentence permitted under KRS 435.090. Appellant does not assert that counsel badgered him into entering a guilty plea, nor does he claim that he failed to understand the consequences of his guilty plea. Under these circumstances, the record shows on its face that no basis has been laid upon which to support the claim of inadequate counsel.

In passing, it is observed that the trial judge who presided at the rape trial and who overruled the RCr 11.42 motion (without a hearing) incorporated in the order a recitation that appellant’s counsel at the rape trial had rendered effective assistance, resulting in a light sentence. Although this may well be quite true, we doubt the propriety of an ex parte finding based upon the independent recollection of the presiding judge, and we do not base our present holding upon that portion of the record.

The judgment is affirmed.


text:
    DIXIE TRANSPORT COMPANY, Inc., Appellant, v. Mrs. Walter W. (Evelyn) REED, Appellee. Mrs. Walter W. (Evelyn) REED, Appellant, v. Homer GEHRING, Appellee.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    As Modified on Denial of Rehearings Feb. 12, 1965.

      Viley O. Blackburn, Smith & Blackburn, Somerset, for Mrs. Walter W. (Evelyn) Reed.
    C. Homer Neikirk, Fritz Krueger, Somerset, for Homer Gehring.
    Boyd F. Taylor, Hamm, Taylor & Milby, London, for Dixie Transport Company, Inc.
   WADDILL, Commissioner.

This action was commenced by Mrs. Walter Reed against Dixie Transport Company (hereinafter referred to as Dixie), Homer Gehring and other persons for injuries received when the cab of a truck in which she was riding overturned alongside a highway. The trial court sustained motions to dismiss the action as against all defendants except Dixie. Mrs. Reed appeals from the dismissal of the action as to Gehring, and Dixie appeals from a verdict and judgment of $15,000 rendered against it.

On the morning of July 13, 1960, Gehr-ing, an employee of the Kentucky Department of Highways, had stopped a state-owned truck on the east side of U.S. Highway 27 near Tateville, hut with the truck obstructing three feet of the northbound traffic lane. While a co-worker was replacing a road sign, Gehring stood at the rear of the truck directing traffic. A car being driven south by Faye Simpson came to a stop in the southbound lane of the two-lane highway, 81 feet north of where Gehring had stopped. Gehring proceeded to signal a line of northbound traffic, including Dixie’s truck, around his truck, thereby necessitating their crossing momentarily into the southbound lane. At the same time, a truck driven by Walter Reed, appellee’s husband, and loaded with 28 tons of shelled corn came around a curve in the southbound lane.

According to the testimony of Mr. Reed he was traveling about 40 miles per hour and first saw the Simpson car blocking his lane of traffic when he was 50 to 75 feet from it. He was going to pass to the left of the Simpson car but at that time he saw the Dixie truck was pulling around Gefir-ing's vehicle. Since both lanes were thereby effectively blocked and he was unable to stop in time to avoid hitting the Simpson car, Reed cut his truck to the right and drove onto the west shoulder of the highway. This testimony was corroborated by Mrs. Reed. The Reed truck continued a distance of at least 215 feet on the shoulder and then turned over at a point opposite the. Gehring truck.

Dixie moved for a directed verdict at the close of the evidence and this was denied. Its motion for judgment n. o. v. was also overruled. On this appeal Dixie contends its driver was not guilty of any negligence and, if he was, such negligence was not a proximate cause of the accident. The efficient cause of the accident was not the presence of the Dixie truck but the fact that the Simpson car prevented Mr. Reed from using the southbound traffic lane. We realize that Mrs. Reed bases her claim for damages on the assertion that Mr. Reed could have safely maneuvered his truck to the left of the Simpson car and to the right of Gehring’s truck had it not been for the presence of the Dixie truck alongside the Gehring truck. This theory is too speculative to support a finding of liability against Dixie. Furthermore the evidence conclusively shows that Dixie’s driver used due care in the operation of his vehicle. Under our view of the case the trial court erred in failing to direct a verdict for Dixie.

Apparently the trial court dismissed the action against Gehring in the belief that, since he was an employee of the state and engaged in state business at the time of the accident, he was cloaked with sovereign immunity. However, we have held that a state employee is personally liable for damages resulting from his negligent acts. Slusher v. Miracle, Ky., 382 S.W.2d 867; Spillman v. Beauchamp, Ky, 362 S.W.2d 33.

When Gehring stopped his vehicle on the traveled portion of the highway he did so in violation of KRS 189.450. No signs were set out to warn motorists of the obstruction on the highway. In so stopping and in signaling northbound traffic around his truck, Gehring as a reasonable person should have anticipated that southbound traffic coming around the curve would be forced to stop and some vehicles would have insufficient space in which to stop. We conclude that Gehring acted negligently and that his negligence was a proximate cause of the accident. Bosshammer v. Lawton, Ky, 237 S.W.2d 520. The trial court erred in directing a verdict in his favor.

We are reversing the judgment in favor of Gehring and the new trial shall be limited to the question of damages. CR 59.01; Carney v. Scott, Ky, 325 S.W.2d 343. 'The question of what disposition shall be made of Gehring’s cross-claim against .Mr. Reed for indemnity is not before us, because the judgment, which was a partial one under CR 54.02, did not dispose of the cross-claim.

The judgment in favor of Mrs. Reed against Dixie Transport Company is reversed with directions to enter a new one sustaining its motion for judgment n. o. v. The judgment in favor of Homer Gehring is reversed with directions to grant Mrs. Reed a new trial against him.