author: PALMORE, Judge. OSBORNE, Judge

text:
    Fred LEWIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1967.
    Fred Lewis, pro se.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Fred Lewis, a prisoner in the state penitentiary at Eddyville, appeals from an order of the Bell Circuit Court overruling without a hearing his RCr 11.42 motion to set aside a conviction and 4-year prison sentence imposed by that court on January 27, 1964, pursuant to his plea of guilty to an indictment charging him with detaining a woman against her will. KRS 435.110.

Our review is confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction. Cf. Baldwin v. Commonwealth, Ky., 406 S.W.2d 860 (1966) ; Coles v. Commonwealth, Ky., 386 S.W.2d 465 (1965); Warner v. Commonwealth, Ky., 385 S.W.2d 62, 64 (1964).

The record supporting the conviction shows that Lewis was indicted by the Bell County grand jury on October 8, 1963, and charged with having detained one Nell Honeycutt on or about August 26, 1963, against her will and for the purpose of having carnal knowledge of her. The indictment also charged three previous felony convictions. KRS 431.190. On January 6, 1964, an order was entered directing that Lewis be brought from the state prison to the Bell Circuit Court for arraignment and trial. The next entry is an order dated January 27, 1964, showing that he appeared in court with counsel, waived arraignment, pleaded guilty after the Commonwealth had waived the habitual criminal charge, and was sentenced to four years’ imprisonment “to run consecutively with the terms the defendant is now serving including term from Madison County, Kentucky.” Following al-locution a judgment was entered accordingly on the same day.

The RCr 11.42 motion now under review alleges, among other things, the following facts and circumstances:

On August 26, 1963, Lewis was in the company of Nell Honeycutt and Linda Leath at the home of a man named Harris. Lewis took the two girls for a brief visit to the home of his mother, whom Nell knew. Upon their return to Harris’ home Linda got out of the car and Nell accepted Lewis’ invitation to accompany him elsewhere. Harris, who was infatuated with Nell, objected, but they drove off anyway, whereupon Harris called the sheriff and accused Lewis of having shot at Linda. When Lewis returned Nell to her home at about 4 o’clock that afternoon he was apprehended and arrested. On the following day he was bound over to the grand jury, taken to Frankfort and there held in jail incommunicado for a week, after which his parole from a 10-year sentence previously meted out by the Madison Circuit Court was revoked and he was recommitted to prison.

Five months later, on January 27, 1964, Lewis was brought from prison to the Bell Circuit Court and was there for the .first time informed that he had been accused of detaining a woman against her will. He had assumed until then, he alleges, that he was being returned to face the shooting charge. Lewis was indigent and unable to employ counsel, so the trial court had appointed an attorney to represent him. With the approval of the trial court his counsel and the prosecuting attorney agreed on a guilty plea and four-year sentence to run consecutively with his prior sentences. Lewis did not accede to this arrangement, and demanded a jury trial, but his attorney said he would not try the case for him, that he had agreed to appointment on the basis of a guilty plea, whereupon a heated argument took place among the lawyers and the judge. According to his motion, Lewis then “announced to the court that he had been brought before the court, charged with a crime he knew nothing about, and that he had no time to prepare a defense with counsel that he was a confined prisoner in the state penitentiary, with no money to employ counsel, to defend him. That in view of these facts, and that he lacked the qualifications to represent himself, that he had already pleaded guilty to a four (4) year sentence, to go ahead and run it anyway they wanted just take him back to prison.”

It is further alleged in the motion that Lewis was brought before the court and spectators handcuffed to a state trooper, was denied the opportunity of speaking to his accuser before entering a plea, was denied the right to consult with his counsel in private, and was threatened with a life sentence unless he entered a plea of guilty. Attached to the motion is an affidavit by Nell Honeycutt to the effect that Lewis did not detain her against her will and that she was not present when his case was called for trial, and an affidavit by Linda Leath to the effect that he had not at any time shot at her.

Though some of the facts therein stated are not alleged specifically in the motion, we quote the following excerpt from Lewis’ brief as an apt summary of the position in which he found himself at the time the guilty plea was entered:

“The indictment was read to Appellant, which charged him with detaining Nell Honeycutt, against her will, to have Carnal knowledge with her, and three prior convictions of felonies. Appellant entered a Not Guilty plea. Counsel had been appointed for Appellant, prior to his arrival in Court. Counsel informed Appellant that the Court had informed him, that the Court would agree to a 4 year sentence, or if he stood trial, he would have to defend himself, and in turn would receive a life sentence as a habitual Criminal.
“Appellant stated his desire of trial by Jury, and asked for Continuance, which was denied, and the Commonwealth announced ready for trial. No witnesses had appeared for the prosecution, or for the defense, and the prosecution was to be had upon a statement, procured by the Bell County Attorney and Bell County Parole Officer, supposely made by Nell Honeycutt.
“Due to this reason, Appellant had no Counsel to defend him, no chance to summon witnesses, and rather than face a stacked deck, with his life at state, petitioner accepted the 4 year sentence to a Crime never Committed,- returned to prison, and started to gather evidence and other information, that would lead him to the whereabouts of Nell Honeycutt, which was finally accomplished, See Affidavit TR. p. IS. Upon this accumulation of facts Appellant presented in the trial Court his motion to vacate Judgment of Conviction as shown.”

In Higbee v. Thomas, 375 U.S. 13, 84 S.Ct. 79, 11 L.Ed.2d 41 (1963), the United States Supreme Court remanded to this court for further consideration a habeas corpus proceeding in which we had held that Higbee’s petition alleging that he had been denied effective assistance of counsel and pleaded guilty under duress did not state grounds for relief. The facts recited by the petition in this respect were that “counsel for the defense spent approximately three to five minutes with defendant prior to his assignment and therefore your petitioner did not and could not have a reasonable length of time to make, prepare and present an adequate defense,” etc., and that after “the approximate three to five minute conference with said court appointed counsel who dominatedly insisted on entering a ‘plea of guilty,’ and further your petitioner being overwhelmed by both court and aforesaid counsel also being deceived by an oral statement from the Hopkins County Sheriff to your petitioner’s wife in words to the effect that if Dave (meaning me — the petitioner) will plead guilty, he won’t get over two to five years, and therefore your petitioner being deceived and under duress and coercion made the plea to the court but not of his own free will.” He received a sentence of 21 years.

Obedient to the directive of the Supreme Court we reconsidered Higbee’s petition and held it was sufficient to entitle him to a hearing on these questions, “(1) whether Higbee had reasonable and effective representation of counsel and (2) whether he understood the nature and consequences of a guilty plea and entered the plea voluntarily, which is to say, free of such pressures or inducements as would make it unfair to hold him to it.” (Emphasis added.) Higbee v: Thomas, Ky., 376 S.W.2d 305, 307 (1964).

In the more recent case of Jones v. Commonwealth, Ky., 389 S.W.2d 927 (1965), allegations that appointed counsel had refused to defend the movant unless he pleaded guilty and that he had so pleaded under duress were held sufficient to require a hearing under RCr 11.42.

It is our opinion that the allegations of Lewis’ RCr 11.42 motion also were sufficient to require a hearing on the question of whether his plea of guilty was given yolun-tarily and free of duress — that is, free of circumstances unfairly inducing it.

Though it was held in Hargrove v. Commonwealth, Ky., 396 S.W.2d 75 (1965), that the appointment of counsel only five minutes before the trial is not ground for relief in the absence of a motion for continuance, or a showing that the movant requested counsel to make such a motion, the significant distinguishing circumstance of the instant case is that if the facts stated in the motion are proved to be true, when it was made manifest to counsel and the court that Lewis did not wish to plead guilty his attorney should have moved for a continuance or the court should have ordered a continuance of its own volition, because it was obvious that he could not have been prepared for trial. The reasonable inference to be drawn from Lewis’ motion is that he was confronted with the alternative of pleading guilty or going to trial unprepared and at the risk of receiving a life sentence. That, in our opinion, is a choice that deprives a man of his liberty without due process of law, for the simple reason that it is fundamentally unfair.

The Commonwealth’s able brief contends that Lewis, a multiple offender, was afforded “a full measure of justice,” the implicit suggestion being that he was fortunate, and apparently well represented, to come off with just four years instead of life imprisonment. The answer is that the measure of justice is exactly the same for one person as it is for another, for ex-convicts as well as those accused for the first time. Indeed, all who administer justice should exercisé particular vigilance to safeguard the rights of defendants burdened by the stamp of previous convictions, because it is they whose rights are most likely to be grudgingly recognized and cavalierly treated. • If, as Lewis claims, he was not guilty of the offense charged, and the prosecuting witness was not present to testify against him, a 4-year sentence is not a full measure of justice, but of injustice.

The cause is reversed and remanded to the circuit court for further proceedings in accordance with this opinion.

OSBORNE, J., dissenting.

OSBORNE, Judge

(dissenting).

The appellant who had three previous felony convictions was indicted in the Bell Circuit Court for detaining a female against her will and also under the Habitual Criminal Act. On January 6, 1964, the court directed that he be brought from the Kentucky State Prison to that county for the purpose of arraignment and other proceedings in connection with the trial. He was so produced before the court on January 27, 1964, and was represented by the Honorable Paris Swinford. He and his attorney appeared before the court, waived arraignment, and entered a plea of guilty to the charge of detaining a female. The other charge under the Habitual Criminal Act was apparently waived by the Commonwealth. The records of the court show that the appellant waived trial by jury; that he was found guilty arid his punishment fixed at confinement for four years, which was to run consecutively with the other sentences. On August 12, 1966, the appellant filed this motion under RCr 11.42 in which he sets out several grounds for relief, among which are inadequate time to prepare for trial, lack of effective counsel, collusion between court and counsel to cause him to plead guilty; that the charges against him were false and fraudulent; that he asked for a continuance and was overruled. These are the usual charges contained in the flood of groundless applications coming out of our penitentiaries. On August 19, 1966, the Bell Circuit Court overruled appellants motion to vacate the judgment, from this order he prosecutes this appeal. I am of the opinion that the trial court properly overruled the application. The records of the court are in direct conflict with the statements of his affidavit and to give any credence to the affidavit one must first presume that the records of the court are false and fraudulent; that the trial Judge is completely devoid of any of the decent and honorable attributes normally attributed to a judicial official and that the attorney violated all of the rules of his code of ethics and forced an innocent man to plead guilty in a court of law, which, if true, could require his disbarment. These charges are so flagrantly void of any semblance of truth that to give them the slightest judicial recognition is to violate all of the principles commonly recognized in our system of jurisprudence. In Commonwealth v. Watkins, Ky., 398 S.W.2d 698, this court stated, “The effect of a plea of guilty is to waive all defenses other than that the indictment charges no offense and to authorize the imposition of the penalty prescribed by law.”

As to his charges that the allegations of the indictment were faked and that he is innocent of the offenses, we met this in King v. Commonwealth, Ky., 387 S.W.2d 582. He then claims that he asked for a jury trial and a continuance and that this was denied. This also has been faced by this court in Maye v. Commonwealth, Ky., 386 S.W.2d 731.

That language in the majority opinion bemoaning the fact that the defendant was unprepared for trial is somewhat disturbing. I would like to point out that any failure of preparedness upon his part is due to the fact that he commits one crime so closely upon the heels of the other that he does not have time to prepare his defenses. This certainly can not be the fault of the Commonwealth.

As to another remark in the opinion that we should safe-guard the rights of the defendant who is “burdened” by the stamp of previous convictions because it is they who are most likely to be “grudgingly recognized and cavalierly treated.”

I should like to point out that those who are burdened by the stamp of previous convictions bring their own burdens upon their shoulders and certainly this should not make them nearer and dearer to the hearts of this court nor should we show any greater concern for their likes than for those who are not so burdened.

For the foregoing reasons, I dissent..

      . That Lewis asked for a continuance is stated in his brief but not, in so many words, in the RCr 11.42 motion itself.


source: Caselaw Access Project

author: WILLIAMS, Chief Justice.

license: Public Domain

text:
    John E. MOORE, Petitioner, v. Hon. Faust Y. SIMPSON, Judge, Union Circuit Court, Morganfield, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.

      John E. Moore, pro se.
   WILLIAMS, Chief Justice.

John Edward Moore petitions this court to order the respondent to allow him to appeal in forma pauperis from an order made under RCr 11.42. He also wants a copy of the transcript of the record made on his original trial.

Respondent states he has no objection to entering an order allowing the petitioner to appeal in forma pauperis, but does obj ect to furnishing a copy of the transcript of record on the original trial. The petitioner has given no reason why any part of the transcript of the original trial is necessary. See Rose v. Simpson, Ky., 411 S.W.2d 329, this day decided.

The respondent is directed to enter an order allowing petitioner to appeal in forma pauperis, and a copy of the record on the RCr 11.42 proceedings shall be furnished the petitioner.

Mandamus granted.

All concur.


author: MILLIKEN, Judge.

text:
    Debbie Lynn GROSS, An Infant, By her Mother and next friend, Thelma Gross, Appellant, v. Jerome BLOOM, Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1967.

      Hugo Taustine, Edward M. Post, Jerome D. Berman, Taustine, Post & Berman, Louisville, for appellant.
    William Lehnig, Duncan & Lehnig, Louisville, for appellee.
   MILLIKEN, Judge.

The appellant, Debbie Lynn Gross, seven years of age, through her next friend, sued appellee Jerome Bloom for injuries suffered when she fell down a clothes chute — an unprotected hole in a closet floor — while playing hide-and-go-seek with the Bloom children in their home to which Debbie and her family had been invited for dinner. At the conclusion of the testimony for Debbie, the trial court directed a verdict for the defendant-host, which resulted in this appeal from the judgment entered on the verdict.

The testimony shows that Debbie and the other children had been playing hide-and-go-seek for about an hour and had made enough noise to notify the host, as well as the other adults, that they were playing the game and were hiding in all strategic places, including closets, but it was not until Debbie sidled into the linen closet in the bathroom and fell through the clothes chute into the basement that anyone apparently realized that any of the children were in any danger. The Bloom children, of course, knew of the open clothes chute, but neither they nor their father thought to warn Debbie of the danger it presented. Whether the light was on in the bathroom is uncertain, but even if it was that would not in itself make seven-year-old Debbie guilty of contributory negligence as a matter of law. See Williamson v. Garland, Ky., 402 S.W.2d 80, decided since the case at bar was tried.

Although social guests are social invitees, they nevertheless are licensees and not invitees from the standpoint of the law. “The explanation usually given by the courts for the classification of social guests as licensees is that there is a common understanding that the guest is expected to take the premises as the possessor himself uses them, and does not expect and is not entitled to expect that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the possessor does not prepare or take precautions for his own safety, or that of the members of his family. This has not gone without criticism, and an undercurrent of dissent, based upon the contention that it is not in accord with modern social custom and understanding when a guest is invited; but the decisions thus far have been all but unanimous to the effect that the social guest is no more than a licensee.” Restatement, Second, (1965) Torts Section 330. See Keown v. Keown, Ky., 394 S.W.2d 915 (1965) ; Rademaker v. Williamson, Ky., 355 S.W.2d 154 (1962); Terry v. Timberlake, Ky., 348 S.W.2d 919 (1961); Tharp v. Tharp, Ky., 346 S.W.2d 44 (1961).

But even this general principle has its modifications where children are involved. The Restatement, Second, Torts Section 339:

“Artificial Conditions Highly Dangerous to Trespassing Children
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

It appears that the Restatement’s distillation of the law in the field takes full cognizance of the normal attitudes of most of us who believe that hospitality should be appreciated and fostered on the one hand, and children should be protected on the other. It is one thing for an adult to wander off the usual path he would follow while a guest in a friend’s home, and quite another thing for a child to do it. The law’s cloak of protection is not thrown over trespassing children unless the property owner “knows or has reason to know that children are likely to trespass” on his property. If known trespassing children are so protected, should not a child guest be accorded at least as much protection ?

In the case at bar there is evidence which indicates that the host had enough knowledge or information to alert him to the possibility, or even probability, that his guest, Debbie, might sidle into the linen closet to hide and be exposed to the voracious danger of the open clothes chute. But when the host’s story is told and its shades, gradations, and nuances developed, it may be apparent that it would be unreasonable to hold him accountable for Debbie’s injuries because of his failure to foresee the danger and to warn her of the open clothes chute — that his knowledge or information had not had a fair chance to bloom into realization of the danger of Debbie’s hiding in the linen closet and falling into the chute. It seems to us that the factual situation presented here presents a question of negligence for a jury to decide —whether the host was negligent in failing to foresee the very thing that happened and in not warning Debbie of the danger lurking in the linen closet.

The courts of California and Illinois recently have taken this view. In Kemline v. Simonds, 231 Cal.App.2d 165, 41 Cal.Rptr. 653 (1965), where an eight-year-old child who had been swimming in her host’s pool was told to run on into the house and get warm and was injured when she crashed into a clear glass door with no markings to dispel the illusion that she had clear sailing, the California court declared that: “In summary we hold that the evidence is sufficient to sustain a finding that defendants were guilty of negligence and subject to liability under the provisions of section 339 of the Restatement.” That court concluded that although section ⅝339 referred only to child trespassers, a child social visitor should have at least equal protection.

In Lance v. Senior/ 66 Ill.App.2d 41, 213 N.E.2d 616 (1966), the Illinois Appellate Court, Third District, expressly disregarded classifying children as invitees, licensees, or trespassers and declared the “ ‘only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases’ ”, (quoting the Illinois Supreme Court in Kahn v. James Burton Company, 5 Ill.2d 614, 126 N.E.2d 836 (1955) and then concluded: “We therefore hold that when an in'fant social guest is injured on his host’s property, the customary rules of ordinary negligence apply, with the true test of liability to be the foreseeability of injury to the child. Whether or not it was foreseeable that a particular thing or condition might or could cause injury to the invited child would ordinarily be a question of fact for the jury who would be properly instructed under the rules of ordinary negligence.”

We, therefore, conclude that it was improper to direct a verdict at the close of the appellant’s evidence.

The judgment is reversed.


text:
    Charles Ivo ROSE, Petitioner, v. Hon. Faust Y. SIMPSON, Judge, Union Circuit Court, Morganfield, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Charles Ivo Rose, pro se.
   WILLIAMS, Chief Justice.

Charles Ivo Rose petitions this court to order the respondent to rule on a motion to proceed in forma pauperis on an appeal from an order made under an RCr 11.42 proceeding. However, we conclude from the body of the petition as well as from the response that Rose is also attempting to secure a copy of the transcript of the record made on his original trial.

The response voices no objection to the entry of an order allowing petitioner to appeal in forma pauperis. There is an objection to the request for a transcript of the record on the original trial because the motion under RCr 11.42 shows on its face that it is without merit. It is pointed out that the petitioner has asked for a transcript of the testimony introduced on his trial although there was no testimony taken as a plea of guilty was entered.

Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, has been cited on numerous occasions; e. g. Jones v. Breslin, Ky., 385 S.W.2d 71 (1964), Davenport v. Winn, Ky., 385 S.W. 2d 185 (1964), as standing for the proposition that an indigent person is entitled to a free transcript in order to perfect his appeal. On an appeal made from an order entered in an RCr 11.42 proceeding the appellant is entitled to a copy of that proceeding. In the absence of an adequate showing that the transcript of the record made at the original trial is necessary to the appeal, such transcript need not be furnished.

In this case no reason has been given for furnishing the record made on the original trial. The petitioner is entitled to a copy of the record made on the RCr 11.42 proceeding. See Roark v. Stivers, Ky., 401 S.W.2d 56 (1966).

The respondent is directed to enter an order allowing the petitioner to appeal in forma pauperis, and a copy of the record on the RCr 11.42 proceedings shall be furnished to the petitioner.

Mandamus granted.

All concur.


author: MONTGOMERY, Judge.

text:
    Clarine BALLARD, Appellant, v. Kyle Lee BALLARD, Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1967.
    Sandy Pamello, Louisville, for appellant.
    Allen R. Brown, Louisville, for appellee.
   MONTGOMERY, Judge.

Clarine Ballard was granted a divorce from Kyle Lee Ballard. She appeals from that part of the judgment awarding her alimony in the sum of $2,000, payable in weekly installments of $10 each without interest.

Appellant also received title to the real property which had been owned jointly, subject to the mortgage indebtedness. The equity was valued at less than $1,000. She also received all of the furniture and household furnishings. The custody of their only child, a son aged nine years, was awarded to her. Appellee was ordered to pay $25 per week for his support. They retained their respective cars. Certain accounts owed by each of the parties were to be paid by the respective debtor. Appellee was ordered to pay the costs, including $400 for the services of appellant’s attorney.

The parties were married in March 1951, and separated April 4, 1964. Appellant had been employed as a telephone operator for “American (sic) Telephone & Telegraph Company” for thirteen years. Her gross income amounted to about $4,000 per year. Appellee had worked for the General Electric Company for eleven years at a gross salary in 1964 of $8,416.90. His income previously had been about $10,600. Appellant claims that appellee’s income for 1964 would have been more if he had worked overtime. Each had a small payroll savings plan.

In Jones v. Jones, Ky., 382 S.W.2d 842, the facts are similar to the present case in respect to lump sum alimony to be paid in installments. Such an award was upheld because the husband had no estate out of which he could pay the entire sum allowed at one time but had the earning capacity to enable him to pay the installments. Such is the case here.

Appellant takes an inconsistent position by arguing that allowance of a lump sum is unreasonable because appellee had no estate and in the next paragraph contending that “ * * * the ruling should have been an award of $2,000.00 lump-sum alimony, and in addition thereto, permanent alimony in the sum of $10.00 per week.”

The amount of alimony to be awarded and the method of payment are matters within the discretion of the Chancellor. Hicks v. Hicks, Ky., 290 S.W.2d 483; Boggs v. Boggs, Ky., 330 S.W.2d 118; Ralston v. Ralston, Ky., 396 S.W.2d 775. The exercise of such discretion will not be set aside unless it is shown to be clearly erroneous. Somerville v. Somerville, Ky., 339 S.W.2d 940; Peavy v. Peavy, Ky., 351 S.W.2d 869. An abuse of discretion has not been shown.

Appellant finds fault with the action of the Chancellor in providing that certain debts should be paid by her. It was also provided that appellee should pay certain other debts. It is contended that the agreement was intended to be temporary. The Chancellor made it final in the judgment as a part of the adjustment of the affairs of the two parties. No error is found in this. It is unnecessary to consider other questions raised.

Judgment affirmed.

STEINFELD, J., not sitting.


author: WADDILL, Commissioner. Chief Justice WILLIAMS and Judges MONTGOMERY and STEINFELD

text:
    BLUE DIAMOND COAL COMPANY, Appellant, v. Mrs. Gladys CREECH, Individually, etc., et al., Appellees.
    Court of Appeals of Kentucky
    Feb. 3, 1967.

      Maxwell P. Barret, Reeves, Barret & Cooper, Hazard, for appellant.
    M. B. Fields, Hazard, for appellees.
   WADDILL, Commissioner.

The appeal is from a judgment which set aside an order of the Workmen’s Compensation Board denying dependency benefits to appellees Gladys Creech and her children. The board had found that the death of her husband, Ernest Creech, did not arise in the course of his employment as a shuttle car driver with appellant, Blue Diamond Coal Company.

The company had been experiencing labor difficulties for several months prior to Creech’s 'death. However, Creech, a regular employee, refused to honor the picket line. Near the only open entrance leading into the company’s property pickets were stationed on each side of the public highway every day. After completing his shift of work at 3:00 p. m. on March 3, 1965, Creech and two fellow employees stopped at the company’s commissary before leaving for their homes. As they drove onto the public highway in Creech’s truck at about 4:00 p. m. and passed through the picket line, the truck was hit by a rock or some similar missile. Creech stopped the truck and pointed a rifle (which he carried on account of previous strike violence toward him) out the truck’s window at a group of pickets. As the pickets fled for cover Creech was shot in the back while seated in the cab of his truck and sustained a fatal injury.- Upon these facts the board concluded that, since Creech was killed on a public highway an hour after completing his shift in the mine, his death did not arise in the course of his employment as required by KRS 342.005(1).

On appeal the circuit court concurred with the board’s findings but concluded as a matter of law that Creech’s death arose out of and in the course of his employment with the company, entitling ap-pellees to compensation benefits.

The company contends that the' assault on Creech did not arise out of his employment because Creech had provoked it by pointing the gun at the pickets. However, the board observed that Creech did not point the gun until after the pickets had attacked his truck. The board specifically stated that “his death did arise out of the labor difficulties that the mine was experiencing” and we believe that the evidence completely supports this finding.

It is further argued by the company that the assault did not arise in the course of Creech’s employment because it occurred on a public highway and an hour after he completed his assigned duties for the day. It cites Maddox v. Heaven Hill Distilleries, Inc., Ky., 329 S.W.2d 189, where an employee was struck by an automobile on a public highway on his way to a parking lot after his work day had ended. It was held that his injuries neither arose out of nor in the course of his employment. Insofar as it held that the place of injury took it out of the course of employment, the case was, in effect, overruled in Corken v. Corken Steel Products, Ky., 385 S.W.2d 949.

In 1 Larson, Workmen’s Compensation Law, Section 29.21, pages 446-448, the author observes that when an employee during a violent strike remains on the job despite considerable personal risk he is performing a special service for his employer by minimizing the employer’s loss due to the strike and he deserves compensation for injuries attributable to the fact that he performed his assigned tasks, regardless of where or when the assault takes place. Larson’s view was anticipated by Chief Justice Cordozo in Field v. Charmette Knitted Fabric Co., 245 N.Y. 139, 156 N.E. 642, and followed in Baggett Transport Co. v. Holderfield, 260 Ala. 56, 68 So.2d 21; Meo v. Commercial Can Corp., 80 N.J. Super. 58, 192 A.2d 854, and Cutie v. Doge Co., 1 A.D.2d 857, 148 N.Y.S.2d 735.

As we view the facts presented herein, at the time of his death Creech, although he had concluded his regular duties of employment and departed from his work station, was still performing a service for his employer in risking continued violence by the pickets toward him, a risk which is often incident to working during a labor strike.

As in the Meo case, the circumstances under which Creech remained in the company’s employ cast an aura of danger about him which did not evaporate at the magic hour of 3:00 p. m., nor could it be shed at the boundaries of the company’s property. The inherent risk of his employment under strike conditions remained with him while enroute from his job. We conclude that the assault on Creech under these unusual circumstances did arise in the course of his employment with the company within the meaning and intent of our Workmen’s Compensation Act. Since the board correctly concluded the assault arose out of his employment, under KRS 342.005 and 342.070 his dependents are entitled to an award of compensation.

Our conclusion is consistent with the holding in Corken v. Corken Steel Products, Ky., 385 S.W.2d 949, that “causal connection (to establish an accident arose out of and in the course of the employment) is sufficient if the exposure results from the employment.” Cf. Smith v. Klarer Co., Ky., 405 S.W.2d 736, wherein compensation to a claimant who fell on the sidewalk as she approached her employer’s building was approved because the risk which caused her injury was peculiar to her employment, and Ratliff v. Epling, Ky., 401 S.W. 2d 43, wherein similar principles of law are expressed, although compensation was denied because the employee was acting for his own benefit when injured.

While this holding may point up the obligation of an employer toward his employees during a strike, we observe that an employer can and often does instruct nonstriking employees to stay away from their work and not attempt to cross picket lines, thereby divesting himself of the benefits and responsibilities recognized in this opinion.

The judgment is affirmed and the case is remanded to the Workmen’s Compensation Board for entry of a proper award of compensation.

Chief Justice WILLIAMS and Judges MONTGOMERY and STEINFELD

dissent for the reason they are of the opinion that the injury from which Creech died did not arise in the course of his employment with the Blue Diamond Coal Company and therefore compensation benefits are not payable to his dependents.


author: DAVIS, Commissioner.

text:
    Carl CABE, Commissioner, Department of Labor, Commonwealth of Kentucky, Appellant, v. Flossie EUBANKS, d/b/a Sanders Restaurant, Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1967.
    Martin Glazer, Dept, of Labor, Frankfort, for appellant.
    Lohren F. Martin, Jr., Sutton & Martin, Corbin, for appellee.
   DAVIS, Commissioner.

Carl Cabe, Commissioner of the Department of Labor, appeals from a judgment enjoining him from holding an investigative hearing, and restraining him and his representatives from “ * * * any future act or investigation, hearing, or any other acts which will interrupt or damage [appellee] in the operation of her business, including the institution of unwarranted actions at law.”

The appeal is presented under CR 76 by statement which is summarized as follows:

During December 1965, and January 1966, appellee’s books were examined by an investigator of the Department of Labor relative to payment of minimum wages due female employees in appellee’s restaurant.

Upon completion of the audit by the investigator appellee was informed that the audit reflected indebtedness from her to her past and present employees in the sum of $1,538.73. The appellee refused to pay the sum stated, or any sum.

A hearing was scheduled to be held before a deputy of the Commissioner of Labor concerning wages paid by appellee to her female employees. The hearing was set for 10:00 a. m. on February 23, 1966; subpoenas were issued directing all of ap-pellee’s present and past employees to appear to testify at the hearing.

On February 22, 1966, appellee filed the present action in the Whitley Circuit Court seeking temporary and permanent injunc-tive relief against the holding of the proposed hearing. A temporary restraining order was issued by the clerk of the circuit court. After appropriate procedural steps and a hearing before the circuit judge, the temporary restraining order was incorporated into a permanent injunction.

Appellant contends that he is charged with the duty and possesses the authority to hold hearings and conduct investigations incident to enforcement of the minimum wage law of this state. KRS 336.060, 336.070, and 337.340 are cited as statutory bases for appellant’s position.

As additional grounds for seeking a reversal of the judgment granting the permanent injunction, appellant asserts that the mere holding of a hearing will not cause immediate and irreparable harm to ap-pellee, and that she has adequate remedy by appeal anyway.

Appellant relies upon Pritchett v. Marshall, Ky., 375 S.W.2d 253; Kendall v. Beiling, 295 Ky. 782, 175 S.W.2d 489; Ky. Unemployment Compensation Commission v. Chenault & Orear, 295 Ky. 562, 174 S.W.2d 767, as supporting the proposition that normally courts will not enjoin a hearing by an administrative agency absent a showing that no adequate appeal procedure exists. The appellee concedes the general rule as suggested by appellant, but takes the position that since the Department had already made an audit there was nothing to “hear.” In short, the appellee’s point of view is that the audit was the final administrative act, and the attempted hearing was oppressive and coercive.

Appellee contends that immediate and irreparable harm would result from the hearing because all of her first-shift employees were subpoenaed to appear at a hearing, thus making it necessary for her to close her restaurant. Appellant has stated in brief that assurance was given that appearance of these employees would be so “staggered” as to prevent the closing of the restaurant.

It is our view that the appellant had the statutory right to hold the hearing, and that the completion of the audit did not constitute an exhaustion of his statutory prerogatives in the premises.

In any event, we are of the view that this factual situation was not one warranting the extraordinary remedy of injunction. We are unable to discern any element of immediate or irreparable damage which could have resulted to appellee from such a hearing, and there is no suggestion that normal appeal would fail to afford her an adequate remedy. In this state of case injunctive relief is not appropriate. Cf. Collins v. Commonwealth, Ky., 324 S.W.2d 406, 11 Ky. Digest, Injunction, «=16.

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


author: STEINFELD, Judge.

text:
    BAKER POOL COMPANY, Inc., Appellant, v. Duane H. BENNETT, d/b/a Highlanders Club and Fairanna H. Creech, Appellees.
    Court of Appeals of Kentucky.
    Feb. 3, 1967.

      Joe Nagle, Denham, Ralston & Nagle, Middlesboro, for appellant.
    William R. Forester and James S. Greene, Jr., Greene & Forester, Harlan, for appel-lees.
   STEINFELD, Judge.

This is a suit for damages in which it is claimed that a swimming pool was not built according to a contract, but on the contrary “in so unskilled and negligent a manner that shortly after its completion the walls and floors cracked and became leaky so as to render said pool entirely useless, * * * From a jury verdict in the amount of $7,033.00 defendant has appealed.

On June 9, 1964, Baker Pool Company, Inc. (to whom we will refer as Company) entered into a written contract with Duane H. Bennett d/b/a Highlanders Club and Fairanna H. Creech to construct a swimming pool for $8,833.00, however, it was provided that Bennett do his own, or pay for, the necessary excavation. The agreed starting date was June 9, 1964. It contained a warranty that the work would “be free from defects in material and workmanship for a period of one year from the date of” a Certificate of Completion, and it further provided that “if any such defect should appear within such time,” Company would “remedy same without cost to the Owner, provided said Owner has complied in full with the terms of payment and other conditions of * * * ” the contract. The contract which was prepared by the Company contained no provision that the Owner was required to give Company the opportunity to repair or that the obligation of the Company to repair was exclusive. The Owner had the right to claim damages. 13 Am.Jur.2d 103 section 109.

The work was completed promptly and the pool put to use. On September 24, 1964, Bennett notified Company that several cracks had appeared in the bottom of the pool. The President of the Company testified that representatives of his Company made attempts to examine the pool to determine whether or not there were structural defects but that Bennett refused to permit Company’s employees to take a core sample. He also stated that they made requests of Bennett for permission to inspect the pool and make other tests but they were refused. On November 5, 1964, this suit was filed. The defects were admitted, but Company relied upon the provisions of the contract contained in the warranty, and it claimed that it had no real reasonable opportunity to correct the defects. Plaintiffs claimed that there was ample opportunity to remedy the defects but that Company ignored the requests. Among other things the President of the Company testified that the pool could have been repaired, and that it would have taken about three days to make the necessary repairs.

The President and a Vice-President of Company were asked on cross-examination whether or not they had failed for a period of approximately one year to replace a defective valve in a pool which Company had built for one Metcalf. Objection was made to this line of interrogation, which objection was improperly overruled. Both witnesses admitted the Company’s failure to replace the valve but claimed that it had been ordered and would be replaced. This testimony was not relevant to the issues being tried. The admission of this evidence was prejudicial to Company.

Metcalf was permitted to testify in rebuttal that he had been trying for approximately one year to get Company to replace a defective valve but that he had been unsuccessful. Appellant insists that witness, Metcalf, should not have been permitted to testify for the purpose of impeaching the testimony of the President and Vice-President of Company because the Metcalf problem was a collateral matter and unrelated to the alleged wrongful act in issue.

Obviously the trouble, if any, between the witness, Metcalf, and Company, had nothing whatsoever to do with any defects in either materials or workmanship used in the construction of appellees’ pool, and was strictly a collateral matter. Section 784 of 58 Am.Jur.Witnesses, states in part:

“But it is firmly established that the answer of a witness on cross-examination as to a merely collateral matter is binding on the cross-examiner, and may not be contradicted. The principal reasons of the rule are, undoubtedly, that but for its enforcement the issues in a cause would be multiplied indefinitely, the real merits of the controversy would be lost sight of in the mass testimony to immaterial points, the minds of the jurors would thus be perplexed and confused, * * * ”

The law in Kentucky seems to be well established that a witness cannot be cross-examined and then contradicted as to a collateral matter. In Fry v. Commonwealth, 259 Ky. 337, 82 S.W.2d 431, it was stated by this Court as follows: “ * * * nor is it proper to cross-examine him as to any fact which is collateral and irrelevant to the issue merely for the purpose of discrediting his testimony in case he denies the fact.” Also in Caulder v. Commonwealth of Ky., Ky., 339 S.W.2d 644, it was stated thusly, “It is an accepted rule that where the value of evidence for a legitimate purpose is slight and the jury’s probable misuse of that evidence is great, the evidence may be excluded altogether.”

We conclude that this case is clearly within the meaning of the law above stated, and that the evidence of the witness, Met-calf, should have been excluded. We believe that it was prejudicial, particularly in view of the jury’s verdict.

The second point on which appellant relies is that the instructions were erroneous. Since this case is reversed, we think it appropriate that we discuss the instructions which should be given on another trial if the evidence is substantially the same as before.

In the case at bar there is the issue and conflicting testimony as to whether or not the pool could be repaired. If it could reasonably have been repaired, then the measure of damage is different from the measure if the jury determines that it cannot be repaired. The law in this situation was fully discussed in State Property & Buildings Commission, etc. v. H. W. Miller Construction Company, Inc., Ky., 385 S.W.2d 211, wherein we pointed out that if the structure can reasonably be repaired “the real measure of damages for defective performance of a construction contract is the cost of remedying the defect, so long as-it is reasonable”. We then pointed out that if the structure cannot be repaired, or if the expense of repair is unreasonable, the test is the difference between market value of the building as it should have been constructed and the market value as it actually was constructed. Also see Gray v. Mattingly, Ky., 399 S.W.2d 301.

The defendant offered instructions in conformity with this theory, but they were refused. The case was submitted to the jury on an instruction which permitted the jury to find for the plaintiff if the pool was not built “in a good and workmanlike manner, free of defects” and authorized the jury, if it believed that the pool was not repairable, to award the difference in value of the pool as constructed and as it should have been constructed according to the contract. The jury was not told that if it believed that the pool could be repaired at a reasonable expense it should award the cost reasonably necessary to make said repairs.

There is no evidence in this case that the repairs, if any are made, would enhance the value of the pool beyond what it would have been worth had it conformed to the contract, therefore, on another trial, if the evidence is substantially the same as in the trial held in the lower court, the instructions shall be substantially as follows:

1. If the jury find from the evidence that the defects in the pool, concerning which you have heard evidence, were defects which could have reasonably been repaired, you shall find for the plaintiff the reasonable expense of making such repairs, not exceeding-dollars.

2. However, if the jury believe from the evidence that the defects in the pool, concerning which you have heard evidence, could not have reasonably been repaired, then you shall find for the plaintiff such sum as you believe from the evidence is the difference, if any, between the market value of the pool as it should have been constructed under the contract and its market value as it actually was constructed, not exceeding-dollars.

3.The damages are to be estimated as of the date of the completion of said pool.

The judgment is reversed for proceedings consistent with this opinion.


author: DAVIS, Commissioner. OSBORNE, Judge

text:
    The KROGER COMPANY, Appellant, v. Mrs. Lorene BOWMAN and Dr. Pepper Bottling Company of Mayfield, Appellees. DR. PEPPER BOTTLING COMPANY OF MAYFIELD, Appellant, v. Mrs. Lorene BOWMAN and the Kroger Company, Appellees.
    Court of Appeals of Kentucky.
    Feb. 3, 1967.

      George R. Effinger, Paducah, for The Kroger Co.
    Farland Robbins, Mayfield, for Dr. Pepper Bottling Co. of Mayfield.
    James G. Wheeler, Robert C. Manchester, Wheeler, Marshall & Manchester, Pa-ducah, for Mrs. Lorene Bowman.
   DAVIS, Commissioner.

Mrs. Lorene Bowman obtained verdict and judgment of $2,000 against Dr. Pepper Bottling Company (hereinafter Dr. Pepper) and The Kroger Company (hereinafter Kroger) for personal injuries she sustained when a bottle of Dr. Pepper fell from a six-pack paper carton as she attempted to remove it from a rack in Kroger’s store. The trial court awarded Kroger indemnity against Dr. Pepper for any sum it should pay to Mrs. Bowman. The motions for appeal by Dr. Pepper and Kroger have been granted in separate appeals which are disposed of in this opinion.

The case was tried prior to our decision in Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441, wherein we adopted the rule of “strict liability” in products liability cases, but the principles enunciated in Dealers Transport govern the controversy and render inap-posite much of the arguments presented in able briefs.

Mrs. Bowman was shopping in Kroger’s self-service store. She undertook to place a six-pack cardboard carton of Dr. Pepper into the shopping cart. A bottle of the beverage fell from the carton and broke on the floor; she sustained personal injuries from the flying glass. No complaint is made of the amount of the award, but both Dr. Pepper and Kroger insist that neither of them is liable for any amount.

The cardboard carton was a collapsible type, and is shown to have had a vertical split in one corner. No witness testified as to how or when the tear in the carton occurred. All litigants agree that the vertical tear was in the carton immediately after the accident. The carton is filed as an exhibit with the record on appeal; the vertical tear is a smooth one along the corner crease of the carton.

Dr. Pepper’s employees delivered the merchandise to Kroger and attended to placing it upon the Kroger rack or counter. The cartons were used by Dr. Pepper as long as they appeared to be serviceable. Determination of their serviceability was made by Dr. Pepper’s employees on an “eye-inspection” basis. The record indicates that the carton in question was delivered to Kroger not later than August 26th, prior to the accident on September 6th, 1961. Kroger made no claim of any inspection by its employees of the carton at any time.

Mrs. Bowman testified that she did not observe anything abnormal about the carton as she lifted it from the rack by its handle. She explained that if the tear in the carton had been on the side away from her it would not have been visible to her anyway. The nature of the defect in the carton warrants an inference that its existence would not have been readily apparent to Mrs. Bowman even had the tear been on the side of the carton nearest her when she picked it up.

Dr. Pepper and Kroger insist that a directed verdict should have gone against Mrs. Bowman. In support of this contention they urge that the doctrine of res ipsa loquitur is not applicable, and without that doctrine there is a failure of proof on the part of Mrs. Bowman. While admitting that this case “ * * * is not to be confused with the numerous bottle explosion cases * * * ” appellants rely on those cases in support of their view that res ipsa loqtiitur is inapplicable.

Our attention has been directed to Loe-big’s Guardian v. Coca-Cola Bottling Co., 259 Ky. 124, 81 S.W.2d 910; Rowe v. Oscar Ewing Distributing Co., Ky., 357 S.W.2d 882, and several other authorities from this and other jurisdictions, in support of the proposition that res ipsa loquitur is inapplicable. We do not undertake a detailed analysis of the cited authorities because we feel that there was sufficient evidence to warrant submission of the case to the jury, for the reasons now to be set forth.

Starting from the “strict liability” premise established in Dealers Transport, supra, we observe that liability is imposed upon Dr. Pepper if it sold the carton in a defective condition unreasonably dangerous to the ultimate user, and if the item was expected to and did reach the user or consumer without substantial change in the condition in which it was sold by Dr. Pepper. Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441, 446. Moreover, the liability exists even though Dr. Pepper has exercised all possible care in the preparation and sale of the product (assuming its original defective condition). Id., 402 S.W.2d at p. 447. It is apparent, therefore, that negligence is not the basis of “strict liability.”

The res ipsa loquitur doctrine has evolved as a legal precept affording satisfactory evidence of negligence. As observed in Prosser, Torts, Sec. 39, p. 218 (3d. ed. 1964), in discussing the res ipsa doctrine :

“The statement of this doctrine most often quoted is that of Chief Justice Erie in 1865:

‘There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such that in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’ ”

But, as noted, negligence is not the basis of ''strict liability.” If the purveyor of the product furnished it in a defective condition unreasonably dangerous to the ultimate user, the liability attaches without proof of negligence.

We turn then to examine the record with reference to evidence of the product’s having been furnished in a defective condition within the “strict liability” definition. It would not be doubted, we suppose, that liability would obtain had Mrs. Bowman picked up the carton at the Dr. Pepper plant, and sustained the injuries in the same manner. Instead, Dr. Pepper placed the carton in the Kroger store; it was not inspected by Kroger, nor is there any showing that it was tampered with by anyone from the time it was placed on the Kroger rack by Dr. Pepper. In our view the circumstances thus presented are ample to warrant the reasonable inference that the carton was in a defective condition when Dr. Pepper placed it in the Kroger store. In Bell & Koch, Inc., v. Stanley, Ky., 375 S.W.2d 696, 697, it was said:

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

We think it is proper in the case before us to apply the same principle; not to determine whether the “nature and circumstances of the occurrence constituted substantial evidence of negligence”—but whether the nature and circumstances of the occurrence presented substantial evidence that the carton was in a dangerously defective condition when delivered to Kroger by Dr. Pepper. In our judgment the facts in the record amply warranted submission to the jury of the issue as to whether the carton was in a dangerously defective condition when delivered to Kroger by Dr. Pepper.

The case was submitted under instructions which directed the jury: (a) To impose liability on Dr. Pepper if it found that the carton was defective when Dr. Pepper delivered it to Kroger, provided the jury further found negligence on Dr. Pepper’s part in its failure to observe the defect, if any; or, (b) to impose liability on Kroger alone if the jury believed that the carton was not defective when delivered by Dr. Pepper, but became so in the store and Kroger negligently failed to learn of the defect; or (c) to impose liability upon Dr. Pepper and Kroger, jointly, if the jury believed that the carton was defective when Dr. Pepper delivered it (due to negligence of Dr. Pepper) and further believed that Kroger negligently failed to inspect and learn of the dangerous carton. It was under the latter instruction that the jury returned its verdict, imposing liability upon Dr. Pepper and Kroger. A contributory negligence instruction was given also.

The jury’s verdict reflects its finding that the carton was defective when Dr. Pepper delivered it to Kroger, coupled with the jury’s' finding that Kroger failed to take proper precautions to guard against that defect after the carton had been delivered to it. The requirement for a finding of negligence was more favorable to Dr. Pepper and Kroger than warranted under the “strict liability” doctrine. Our conclusion here comports with Allen v. Coca-Cola Bottling Co., ICy., 403 S.W.2d 20, 21, and Rogers v. Karem, Ky., 405 S.W.2d 741.

It was proper for the trial court to award Kroger indemnity against Dr. Pepper. Although Kroger was liable to Mrs. Bowman, it is not precluded from indemnity against Dr. Pepper. The principles of Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165, are governing here. Dr. Pepper furnished the defective carton; Kroger owed no duty to Dr. Pepper in the matter of seeing to it that the carton was safe, even though it did owe a duty to its own customer, Mrs. Bowman. So the failure of Kroger to protect Mrs. Bowman may not be used as a means of insulating Dr. Pepper from its primary liability.

The judgment is affirmed.

OSBORNE, Judge

(dissenting).

I dissent from the majority opinion in this case for reasons to be hereinafter set out and I further believe it was a mistake when this Court in the case of Dealers Transport Company v. Battery Distributing Company, Ky., 402 S.W.2d 441, abandoned the settled law of this state as it relates to the negligence of one involved in the sale and distribution of consumer products and substituted for that law a doctrine known as “strict liability” or “manufacturers liability.” The doctrine of “strict liability” in the sale and distribution of consumer products has had an interesting and controversial history in this country. Prior to the advent of this rule, manufacturers and distributors of consumer products were liable to their users only where there was a defect in the product caused by negligence in the processing or manufacture of it or where the product was not suitable for the purpose for which it was sold (warranty). The first departure from this rule was in cases involving food products. However, in the ’50’s some few courts in the United States began to apply the doctrine to other products, mostly those intended for intimate bodily use, such as, soap, hair dye, detergents, clothing, cigarettes, vaccines and surgical supplies. As of now only California, New York, Illinois and a few other states have gone beyond applying the doctrine to any but items for personal use. Professor William L. Pros-ser, who has been one of the strong advocates of the rule, concedes that it has some Strict limitations to its applicability. See Law of Torts, 3rd Ed., by William L. Prosser, page 682:

“So far as the plaintiff is concerned, no one has yet recovered for personal injuries, on the basis of strict liability without privity, who could not fairly be called a consumer of the product, or at least a user. A customer in a beauty shop has recovered when her hair was treated with the defendant’s dye, and so has a housewife who contracted tularemia while preparing rabbits for cooking, as well as passengers in automobiles and airplanes. Members of the family of the final purchaser, and his employees, guests, and donees who consume or use the goods have been allowed to recover. But others, who have come in contact with the product and been injured by it, without consumption or use, as in the case of the pedestrian hit by an automobile, or the bystander injured by the exploding beer bottle, have thus far been denied recovery. The explanation appears to lie in the fact that these are not the people whom the seller is seeking to reach with his goods, and they do not have the same reason to rely upon any implied assurance of safety; and that the social pressure and public opinion which have been responsible for the change in the law have centered about the consumer, rather than the stranger.
“The ‘warranty,’ when it is found, is clearly one of merchantable quality, rather than of fitness for the buyer’s special purpose, and there is no strict liability unless the product was in some way defective when it was sold by the defendant.
“Notwithstanding a rather unclear Florida decision looking to the contrary, it seems fairly clear there is no liability if a standard product is sold, of the kind customarily on the market, and that cigarettes, whiskey, or butter do not become a matter of strict liability merely because they are known to cause lung cancer, alcoholism, or heart attacks. Nor, in all probability, is there any breach of warranty when an experimental product, as for example a drug which is known to be unsafe, is sold, so long as there is appropriate warning to the buyer.
“The strict liability does not relieve the plaintiff of the necessity of sustaining his burden of proof, first of all that the injury he has suffered was caused by a defect in the product, and second, that the defect existed when the product left the hands of the defendant.”

From the above, we see that where the doctrine is applied, the plaintiff carries the burden and must show:

1. Privity — that is by the purchaser or the one intended to be reached by the product.

2. Defective quality — not merely deficient for the consumers use.

3. That the defect existed when the product was sold by the distributor or manufacturer.

■ 4. That the product differs from other standard products on the market.

5. Sustain the burden of proof that the injury was caused by the defect in the product and that the defect existed when the product left the hands of the defendant in the action.

One of the better law review articles úpon this subject can be found in 24 Tennessee Law Review 938. There, Professor Marcus L. Plant details the source of “strict liability” doctrine and the social philosophy behind it. In pointing to some of the arguments in support of the rule, Professor Plant writes:

“The most cogent argument for strict liability from a judicial source is that propounded by Justice Roger J. Traynor of the Supreme Court of California. In 1944, in Escola v. Coca-Cola Bottling Company of Fresno, in a concurring opinion he stated frankly: ‘In my opinion it should not be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings.’ He follows this statement with a thoroughly annotated discussion of the policy reasons for his conclusion. Justice Tray-nor has advised the writer that he still adheres to this view. It should be noted that his recommendation is a limited one. Strict liability is to be applied only to a manufacturer whose product is intended for use without further inspection. This would limit the rule for the most part to assemblers of finished products and would not place the same burden on parts manufacturers. Thus the manufacturer of the wheel in McPherson v. Buick Motor Company could not have been- held strictly liable under this rule. It would also limit the rule to a case of personal injury as contrasted with property damage for it requires ‘injury to human beings.’ Thus, it would, mean strict liability in the Continental Motors Corporation case cited at the outset, for that involved only damage to the airplane. Even with these limitations the doctrine he suggests has not been adopted.

It seems clear from the foregoing that an advocate of strict liability for manufacturers cannot base his proposal upon any substantial existing trend in judicial thinking. This is not a situation in which it can be claimed that ‘we ought to recognize what the courts are actually doing.’ On the contrary the proposal is one which runs counter to the mass of current authority.

“It should be recognized immediately that if this is the motivation for adoption of the rule, its proponents are not primarily concerned with the question of what constitutes justice for the manufacturer. Their principal concern is with what is sometimes euphemistically called ‘social engineering,’ which frequently turns out to be crass expediency seeking its ends without any particular regard for basic principles. In this instance they ask the manufacturer to assume the burden and pass it on simply because they consider him to be in a position to do so. But if this approach is sound, why should we not carry the process still further? If the manufacturer can pass on to society the cost of all injuries arising from product defects, why should he not also be required to pass on to society the losses arising from all other injuries incurred in the course of manufacturing activity ? For example, suppose an automobile manufacturer has a delivery truck which carries motors from one plant to another, and that this truck, while being operated with due care, injures a pedestrian. Isn’t this as much a ‘cost of production’ element as an injury arising from a product defect? Ought we not to hold that manufacturer strictly liable for that injury and respond to his protests with the easy answer that he should charge a price for his product which will take into account that a certain number of such injuries are inevitably going to occur because of his industrial activity? If this general policy is expedient for injuries arising from product defects, it is equally expedient for any others. Yet it has not been argued persuasively that such a policy should be followed. * * *
“If the imposition of strict liability for product defects is to be founded on the expediency and desirability of distributing or (pardon the expression!) socializing loss over the general consuming public, would it not be a more honest course and would it not be more economically and socially desirable, frankly to establish a governmental mechanism through which such losses could be fairly distributed through taxation? The writer does not advocate such a step, but it is preferable to adoption of a legal doctrine which seeks to accomplish the same result by throwing this burden on manufacturers in general where its incidence will be determined by chance or by unsystematic and capricious factors. It is dubious social policy to single out a particular group in society and make its members or some of its members bear the cost of what may be a very commendable reform, while everyone else in society operates under an entirely different legal doctrine and philosophy.”

The foregoing, in a rather pointed manner, directs our attention to some of the problems which we should face and give due consideration before whole-heart-edly adopting this doctrine and making it a part of the law of this state, as was done in the Dealers Transport case. There are two sides to the question and I am afraid we have taken one and closed ourselves off from a fair view of the other. The clash of principles here involved is most ably put by Seavy in the following terms:

“ ‘In determining whether there is tort liability when harm has been caused, the focal point of conflict has been whether one should be liable for harm irrespective of fault. The law has been in a state of flux in its desire to protect two basic interests of individuals — the interest in security and the interest in freedom of action. The protection of the first requires that a person who has been harmed as a result of the activity of another should be compensated by the other irrespective' of his fault; the protection of the second requires that a person who harms another should be required to compensate the other only when his activity was intentionally wrongful or indicated an undue lack of consideration for the interests of others. At any given time and place the law is the resultant derived from the competition between these two basic concepts.’ The ultimate decision of the issue considered in this paper will depend on which of these two concepts is accepted.” Seavy, Principles of Torts, 56 Harv.L.Rev. 73 (1942).

Where the doctrine is applied, it is usually limited to those articles ordinarily used upon the person or consumed by the individual. Recovery is limited to the intended user and denied to strangers. Recovery can only be had when there is a defect proven to have existed at the time of delivery. Recovery can only be had for personal injury, not property damages. In Dealers Transport, this court, in one broad sweep, managed to violate all of the established rules. The doctrine was applied in a commercial transaction between a trucking firm and a jobber in bottled gas. The bottles involved, and which were the subject of the litigation, had been upon the premises of the plaintiff for an extended period of time and there was no proof whatsoever in the record of a defect existing at the time of delivery. (This fact was assumed by the court.) The doctrine was applied to a non-personal item and recovery was allowed for property damages. In view of the above, it becomes painfully apparent that had this court been given another opportunity to subvert the well-settled principles restricting this doctrine, it surely would have done so. Now that we understand the principles with which we are dealing, let us turn our hand to the present case. Here the plaintiff entered the defendant’s- store and removed a six-pack of cold drinks from a rack where it was resting. In the process of placing it in her cart, one of the bottles fell to the floor and broke. The shattering gláss cut her foot. After the accident, it was found that the carton was torn at one corner. This court then applies the magic formula of “strict liability,” repeats the sacred words first adopted in Dealers Transport, and ipso facto, judgment for the plaintiff. No examination of the facts, no bother with the legal principles, no thought of common justice — just find against the store owner, for he can in turn pass it on to the customer. The plaintiff gains and all the rest of society loses.

This case is not unique upon its facts. There have been several others practically identical in their factual situations in other jurisdictions. Several of these are reported in 81 A.L.R.2d 326, all of which we will review.

“In Behringer v. William Gretz Brewing Co. (1961, Del) [3 Storey 365] 169 A2d 249, the evidence was held not to establish the liability of defendant beer distributor for injury from the collapse of a cardboard ' beer bottle carrier. The court said that there was no showing of a negligent failure to inspect the carrier for defects, or that defendant used a defective or inadequately constructed carrier, or that defendant was guilty of a negligent failure to warn that the carrier might collapse.
“Plaintiff in Beck v. United States Fidelity & Guaranty Co. (1954, La App) 76 So 2d 120, sought damages for injuries sustained by his wife, where, while she was shopping in a grocery store when a store employee was stacking 6-bottle cartons of Coca-Cola, one of the bottles iri some manner became dislodged from a carton, fell to the floor and was shattered, and a piece of glass from the shattered bottle entered the wife’s eye. Plaintiff sought recovery from a Coca-Cola company on the ground that the pasteboard carton containing the bottle which broke was either torn or deteriorated to such an extent that the bottle dropped to the floor as the carton was being lifted by the grocery store employee. Affirming a judgment denying recovery as against this defendant, the court pointed out that the grocery store manager who, following the accident, saw the carton which had contained the bottle which broke, failed to include in his testimony any reference to the condition of the carton, and the carton, ■ which was in the possession and custody of the grocery store employee, was not produced at the trial. In light of- these observations, the court said, it was persuaded that the defendant bottling company was free from liability.
“Rockwell v. Queen City Bottling Co. (1943) 73 Ohio App 42, 28 Ohio Ops 86, 39 Ohio L Abs 452, 53 NE2d 528, was an action against a bottler and distributor of soft drinks for injuries sustained by one who purchased six bottles of a soft drink bottled and distributed by defendant in a pasteboard carton which defendant furnished; while plaintiff was carrying the carton it collapsed, and the bottles fell and were broken, and plaintiff was struck by flying glass. The court, affirming a judgment in defendant’s favor, said that plaintiff alleged and offered to prove merely that defendant put the carton in circulation, and it collapsed while out of defendant’s possession and beyond defendant’s control, mentioning no act or omission to act of defendant in connection therewith and leaving to utter speculation what did or did not happen to the carton after it was placed in the hands of the retailer from whom plaintiff purchased it. The court said that these facts failed to make out a cause of action for breach of an implied warranty as to fitness for a particular use, or an ordinary negligence case, and, it was added, if the 'so-called cursory inspection (of the cartons)’ by defendant amounted to negligence, ‘there is an utter lack of any causal connection. between that and its being the proximate cause of the injuries here.’
“Robey v. Richmond Coca-Cola Bottling Works (1951) 192 Va 192, 64 SE2d 723, was an action for injuries sustained when plaintiff purchased a carton of six bottles of Coca-Cola produced by the defendant, at a retail grocer’s and, while she was carrying the carton in hef hand, the end or bottom of the carton broke, three bottles of Coca-Cola fell to the pavement and burst, and plaintiff’s foot was cut by flying glass. Plaintiff, having introduced testimony that the carton in question was worn and damaged, contended that a jury question was made out as to whether defendant had been negligent, that is, whether the carton contained a defect which was discoverable by defendant in the exercise of ordinary care or by reasonable inspection. The court, affirming a judgment in defendant’s favor, held that plaintiff had failed to show that defendant was guilty of negligence which was the proximate cause of the accident and of plaintiff’s injuries. It was pointed out that the gist of plaintiff’s case was that the carton was worn and defective from previous use when it left defendant’s possession and was placed in the retailer’s store, and that such defect could or should have been discovered by a reasonable inspection before committing the carton to reuse, and that a proper inspection was not made; but, it was said, this argument assumed the very factors which plaintiff was required to prove, there being no presumption that the carton was defective when it left defendant’s possession and no evidence that it was. Moreover, the court said, as to the alleged lack of inspection, the only evidence on the subject was that all cartons were inspected by defendant before reuse, and only those found to be in good condition were re-employed. The court commented that there was no duty on defendant to inspect the carton after the bottled product had been sold and delivered to retailers who thereafter had exclusive control of it until they sold it to plaintiff.
“Plaintiff in Cunningham v Parkersburg Coca-Cola Bottling Co. (1953) 137 W Va 827, 74 SE2d 409, sought damages for injuries sustained when, while she was removing a cardboard carton of six bottles of Coca-Cola from a rack in the store in which she was employed, the bottom of the carton fell out and some of the bottles fell to the floor and burst. It appeared that the carton in question had been placed in the rack by defendant’s employee, but no one testified as to the condition of the carton in question at the time of its delivery to the store, or at any time before the injury; there was nothing to show how long the particular carton had remained in the store, except that it had been there not less than three days. Reversing a judgment in plaintiff’s favor, the court held the evidence insufficient to warrant the conclusion that defendant’s negligence was the proximate cause of plaintiff’s injury. It was pointed out that, at most, the evidence established that the paper carton from which the bottles fell was defective at the time plaintiff lifted it from the metal rack, and, it was said, there was ample opportunity for customers in the store to have created the condition which caused the carton to become defective. The court also held the res ipsa loquitur doctrine inapplicable, pointing out that the evidence showed that an opportunity existed for negligence affecting the carton, on the part of persons other than defendant, and, moreover, the carton was not under the exclusive control of the defendant at the time of the injury. The court stated further that actionable negligence on the part of defendant could not be inferred from facts establishing only that defendant sold and delivered for resale, and placed upon a rack furnished by defendant to the retail store for display purposes. Coca-Cola in paper carton packs containing six bottles each, that the cartons were of the type generally used in the trade, and that customers of the retail store sometimes handled the packs.”

In Phillips v. Pepsi-Cola Bottling Company, 256 N.C. 728, 125 S.E.2d 30, which is a North Carolina case, the plaintiff purchased six Pepsi-Colas in a carton, which had a handle on it. She carried the carton in her right hand and some ice cream in a paper bag in her other hand. She had carried this load some distance from the store when she heard something like a shot, and felt pain in her leg. The decision of the court affirming a motion to dismiss a complaint reads as follows:

"The complaint is seemingly bottomed on the theory that defendants have negligently failed to perform a duty owing to plaintiff. Manifestly plaintiff’s testimony is insufficient to establish negligence unless the mere fall of the bottle from the container brings into play the doctrine of res ipsa loquitur, imposing on defendants the duty of explaining how and why the bottle fell. ‘For the doctrine to apply the plaintiff must prove (1) that there was an injury, (2) that the occurrence causing the injury is one which ordinarily doesn’t happen without negligence on someone’s part, (3) that the instrumentality which caused the injury was under the exclusive control and management of the defendant.’ Jackson v. Neill McKay Gin Co, 255 N.C. 194, 120 S.E.2d 540. ‘There is no presumption of negligence from the mere fact that there has been an accident and an injury.’ Brewer v. Green, 254 N.C. 615, 119 S.E.2d 610. The breaking or explosion of a bottled drink in the possession of the injured party is not sufficient to create a prima facie case of negligence. Styers v. Winston Coca-Cola Bottling Co, 239 N.C. -504, 80 S.E.2d 253; Enloe v. Charlotte Coca-Cola Bottling Co, 208 N.C. 305, 180 S.E. 582; Lamb v. Boyles, 192 N.C. 542, 135 S.E. 464, 49 A.L.R. 589; Dail v. Taylor, 151 N. C. 284, 66 S.E. 135, 28 L.R.A,N.S, 949.
“Plaintiff argues here that she is entitled to recover from the defendants upon an implied warranty that the carton which she used to transport the bottled drinks was in fact fit for that purpose. There is no evidence as to the kind of container. Was it metal or wood or paper ? It ■ is common knowledge that bottled drinks of the kind purchased by plaintiff are frequently put in paper or cardboard containers for convenience in transportation. If it be assumed that the container which plaintiff used was of that character, the evidence is still devoid of any explanation as to why the bottle fell. True, plaintiff alleges that it fell because of a ‘rotten bottom.’ But there is nothing to establish that fact, nor is there anything to explain why the bottom, if rotten, was in that condition. There is evidence by one of plaintiff’s witnesses that the bottled drinks were taken from an icebox and put in the container.
“The fact that a bottle fell to the pavement from a container which plaintiff was handling is no more sufficient to establish breach of a warranty as to the condition of the container than it is to establish negligence in the manufacture. Prince v. Smith, 254 N.C. 768, 119 S.E.2d 923. Affirmed.”

With the exception of one California case, Faucette v. Lucky Stores, Inc, from the district court of California, 219 Cal. App.2d 196, 33 Cal.Rptr. 215, I have not found a case in any other state wherein a plaintiff recovered under a factual situation such as the one shown in this case. The doctrine of liability without fault runs against the grain of Anglo-American Jurisprudence and whatever other reasons there may be for its adoption, they certainly cannot be legal in the sense that Judges and Lawyers are trained to interpret this term. Judge Augustus N. Hand in looking at this concept in Valeri v. Pullman Co., D.C., 218 F. 519 had this to say:

“Of one thing I feel reasonably clear, that no such obligation was ever imposed upon innkeepers or victualers under the English common law. In spite of the most exhaustive briefs of counsel in this case, no decision of the English courts has been pointed out, indicating the existence of such an obligation, and it seems to me most unlikely that such an obligation was ever recognized in the common law, using that word now in a historical sense, or it would have been enforced in numerous adjudicated cases. The opportunity for actions involving the breach of such an obligation has been far too common, and the absolute liability long imposed upon an innkeeper in respect to the goods of his guests has furnished too close an analogy to such an obligation, to permit the innkeeper to escape if the obligation had ever been thought to exist at common law.
“The courts have enforced certain rules of absolute liability in the case of innkeepers, common carriers, owners of vicious animals, manufacturers of poisonous drugs, and in England, under the doctrine enunciated in Rylands v. Fletcher, 3 H.L. 330, in the case of persons who bring upon their lands elements likely to do mischief if they should escape.
“My own feeling is that protection to the public lies not so much in extending the absolute liability of individuals, as in regulating lines of business in which the public has a particular interest in such a way as reasonably to insure its safety. In other words, pure food laws, and rigorous inspection of meats, canning factories, and other sources of food supply, would seem to be a much more effective way of protecting the public than by the imposition of the liability of an insurer upon those who furnish food. The former method corrects the evil at its source. The latter method only imposes . an obligation in cases which ex hy-pothesi cannot be guarded against by the individual by the exercise of due care. It shifts the loss from the person immediately suffering the injury to a person who has neglected no precaution in supplying the food. This certainly is not in accord with the general tendencies of the common law. I am inclined to think that the imposition of such an obligation would tend to lead in the long run to the prosecution of unfounded claims, rather than to the protection of individuals or the public.”

It is my opinion that we went far too far in the case of Dealers Transport in the adoption of the doctrine of “strict liability” and that we are further compounding the mistake in this case. For these reasons, I dissent.