author: CULLEN, Commissioner.

text:
    William THOMAS et al. Appellants, v. Eddie Gene GATES, Appellee. Cozette M. THOMAS, as next friend of Thea Joyce Thomas, Appellant, v. Eddie Gene GATES, Appellee.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.

      James S. Wilson, Jr., Paris, for appellants.
    Herbert D. Sledd, Lexington, Royce Pul-liam, Cynthiana, for appellee.
   CULLEN, Commissioner.

Thea Joyce Thomas, a seven-year-old child, was severely injured when struck by an automobile driven by Eddie Gene Gates, while she was undertaking to cross a street in the outskirts of the city of Paris, Kentucky. Actions were brought against Gates to recover for her personal injuries and for the damages incurred by her parents. Upon a consolidated trial the jury returned a verdict for the defendant. Judgment was entered dismissing the actions, from which judgment the plaintiffs have appealed, claiming error in the refusal of the court to permit portions of a deposition to be read, and error in connection with the instructions.

The accident occurred around 6:00 p. m. on a day in August 1962, on the Georgetown Road just inside the city limits of Paris. The sun was shining and the road was dry. The child was struck by the left front of the car in approximately the center of the street. The defendant testified that he did not see the child at all until the moment of impact. His wife, riding in the right front seat, said she saw the child for the first time in front of the right front fender running to the left. No disinterested witnesses saw the child in the act of crossing the street. The child herself, who did not take the stand but whose deposition was read in part, said at one place in her deposition that she was crossing the road from the motorist’s right to his left, but in other places she said she did not know whether she was crossing in that or in the opposite direction.

The evidence for the plaintiffs, consisting mainly of testimony of residents of a housing project on the left side of the road and of an employe and a customer of a gasoline service station on the right side, was sufficient to warrant a finding that the child had been in the yard of an apartment house on the left side of the street and was crossing the street from left to right when struck. The contention of the defendant was that the child had been in the service station and was crossing from right to left. This contention was supported only by (1) the defendant’s stated conclusion that the child must have come from the right because if she had come from the left he would have seen her; (2) his wife’s testimony that the child when she first saw her was at the right front fender running to her left; and (3) the statement at one place in the child’s deposition that she was going from the service station to the other side of the street.

The appellee maintains that any errors that may have occurred on the trial could not be considered prejudicial because he was entitled to a directed verdict. This is on the theory that this case is comparable to Benton v. Parks, Ky., 272 S.W.2d 466, in which it was held that the defendant motorist was entitled to a directed verdict because the plaintiff’s evidence did not show that the child “was in a position along1 or near the highway where in the exercise of ordinary care he could have been seen so as to raise the duty of anticipating that he might dart or run into the highway” (272 S.W.2d 467). The opinion in the Benton case points out that under the evidence the possibility that the child was in a position where he could have been seen was equally plausible with the possibility that he was in a position where he could not have been seen.

In our opinion the preponderance of the evidence in the instant case is that the child, whether to start with she was on the left or on the right side of the road, was in a position where she could have been seen. The only evidence of a place of possible concealment consisted of a photograph taken a few days after the accident, showing a “sandwich” signboard standing near the curb on the service station apron, and of testimony that there were two cars receiving gasoline at the station. However, several witnesses who were asked about the signboard could not say whether it was there on the day of the accident, and no one testified positively that the cars being serviced were close to the street so as to constitute possible places of concealment. Furthermore, the defendant himself would not say there was any obstruction, in the form of a signboard, automobile or otherwise, that did or could have concealed the child from his view on the service station side of the road.

A further distinction between this case and the Benton case lies in the fact that there the child had ventured into the road a distance of only two feet from the edge of the pavement when struck, whereas here the child had reached the center of the road before being hit.

It is our opinion that the defendant was not entitled to a directed verdict

The appellants’ first claim of error relates to the refusal of the trial court to permit the appellants’ counsel to read a portion of the pre-trial deposition of the injured child, who did not testify in person at the tiral. During the presentation of the defendant’s case the latter’s counsel read the portion of the child’s deposition in which she said she was crossing from the service station to the other side of the road when she was hit. This reading took place just before an evening adjournment of the trial. The next morning the defendant introduced the deposition of one more witness and then 'rested his case. The plaintiffs then sought to read other portions of the child’s deposition, in which she said she did not know whether she was coming from or going to the service station when she was hit. The court would not permit this to be done, on the ground that “the offer to read the testimony of the infant plaintiff should have been made immediately following the reading by the defendant’s attorney of portions of the * * * deposition * *

Under CR 26.04(4), when one party has read part of a deposition', the other party is given the right “later” to read any other part relevant to what first was read. On its face the rule does not restrict “later” to the point of time at which the first party has just concluded his reading. It may be that the trial court, in the interest of orderly procedure, could require the second party do his reading immediately after the conclusion of the first party’s reading, Clay CR 26.04(4), Comment, but we think the court then should so warn the parties, rather than to apply such a requirement retrospectively without warning. It is our opinion that the court erred in the instant case in refusing to permit the reading of the other parts of the deposition. And we think the error was prejudicial because the child’s statement first read, that she was coming from the service station, was the only direct evidence of that fact, and the jury very well might have reached a different decision had they heard the child’s other statements to the effect that she did not know whether she was coming from or going to the station.

The appellants complain also of the instructions, of which appropriate and adequate objections were made. The verdict stated that the jury found for the defendant under Instruction No. 2. That instruction was as follows:

“If you believe from the evidence that the plaintiff, Thea Thomas, suddenly ran into the path of the car driven by the defendant so suddenly and so near thereto that had the defendant been operating said automobile at a reasonable rate of speed he could not, by the exercise of ordinary care and the use of the means at his command, have brought his vehicle to a stop, slackened its speed or changed its course in time to have avoided striking the plaintiff, then the law is for the defendant and you will so find.”

Instruction No. 1 imposed upon the defendant various duties, including the duty “to keep a lookout for persons and vehicles upon the street;” and the duty to exercise ordinary care to avoid injury to the plaintiff “if you believe from the evidence that the plaintiff, Thea Thomas, was near the path of the automobile and that she was seen by the driver, or could have been seen by him in the exercise of a reasonable lookout duty.”

Although there is some confusion in our cases, we think the law applicable to the situation in which a small child darts into the street is this: (1) If the child, before running into the street, was in a position along or near the street where in the exercise of ordinary care the motorist should have seen the child, the motorist has the duty to anticipate that the child may suddenly dart into the street and he must be prepared for that contingency. Potts v. Krey, Ky., 362 S.W.2d 726; Benton v. Parks, Ky., 272 S.W.2d 466; Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897. (2) If the child suddenly appears from a concealed position so near to the path of the vehicle that an ordinary motorist, observing his duties as to speed, lookout and control, could not have avoided striking the child, the motorist is not liable. However, the motorist is not exonerated if the place of concealment was such a distance from the path of the motorist that the child while traveling that distance, should have been seen and avoided. Benton v. Parks, Ky., 272 S.W.2d 466; Potts v. Krey, Ky., 362 S.W.2d 726; Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897; Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448.

In stating that the foregoing is the law applicable to small children we mean children appearing to be in the age group whose members in the experience of ordinarily prudent men are known to have a propensity to dart into the street. This would embrace as a matter of law those so young as to be incapable of contributory negligence, that is those under seven years of age. In the judgment of the jury it might also include older children. However, if such an older child appearing to be in the “darting” age group, was in fact of an older age and is found by the jury not to have exercised the care of an ordinarily prudent child of his age and experience (see Williamson v. Garland, Ky., decided February 11, 1966), recovery should be denied on the ground of contributory negligence, notwithstanding the negligence of the motorist in violating his duty of lookout and anticipation. (In the instant case the child was seven years of age, but no question of contributory negligence was raised.)

In our opinion the instructions here complained of were erroneous in that they failed to make a clear distinction between mere sudden' darting from the side of the street and sudden appearance from a concealed position near the path of the vehicle. It is true that Instruction No. 2 uses the words “sudden appearance” but it does not inform the jury what are the elements of a “sudden appearance.” It also is true that Instruction No. 1 says that if the child was near the path of the vehicle and should have been seen, it was the duty of the driver to “exercise ordinary care * * * to avoid injury” to her. But it does not say that the motorist is liable if the child suddenly darted from the place where she was seen; on the contrary it throws in an “ordinary care” escape clause which would permit a finding for the motorist even if he had seen the child before she started to dart. And when the two instructions are read together they easily may he interpreted as exonerating the motorist in case of any sudden movement by the child, even one from a place a substantial distance from the motorist’s path.

The appellee maintains that Instruction No. 2 is in the form approved in Stanley’s Instructions to Juries, Sec. 109(3). It is not, because the improved form contains the words “suddenly ran from behind the wagon” — that is, from a place of concealment.

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


source: Caselaw Access Project

author: MOREMEN, Chief Justice.

license: Public Domain

text:
    Oscar SPEARS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.

      Sanders & Redwine, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

Appellant, Oscar Spears, was accused in the Pike Circuit Court in the first count of an indictment with having “committed the third offense of illegally selling alcoholic beverages in dry local option territory.” In counts two and three he was charged with having previously been convicted in the Pike Quarterly Court, on two separate occasions, of the “offense of illegally possessing alcoholic beverages for the purpose of sale.” He was found guilty, as charged, and sentenced to one year’s confinement in the penitentiary.

It is contended that the language of the indictment was not sufficient to charge a felony under KRS 242.990. This reads:

“(1) Any person who violates any of the provisions of this chapter, for which no other penalty is herein provided, shall, for the first offense, be fined not less than twenty nor more than one hundred dollars and, if a natural person, imprisoned in the county jail for not less than thirty nor more than sixty days; for the second offense he shall be fined not less than forty nor more than two hundred dollars and, if a natural person, imprisoned in the county jail for not less than sixty nor more than one hundred and twenty days; for the third and each subsequent offense he shall, if a natural person, be confined in the penitentiary for not less than one nor more than two years, and if a corporation, be fined not less than one thousand nor more than two thousand dollars.
“(2) Any officer who violates subsection (2) of KRS 242.370 shall be fined not less than one hundred nor more than five hundred dollars.
“(3) Quarterly courts, justices of the peace and police courts shall have concurrent jurisdiction with the circuit court in the trial of all offenses committed under this chapter, where the penalty does not exceed a fine of one hundred dollars and imprisonment in the county jail for not exceeding sixty days.”

The convictions of the first two offenses, as charged in the indictment, were obtained in the quarterly court and it is argued that the mere fact that he had committed two previous offenses meant nothing if they were had in that court.

In Crabtree v. Commonwealth, Ky., 278 S.W.2d 732, it was held that although under subsection (3) of the above statute it is provided that a quarterly court shall have jurisdiction concurrent with a circuit court, a quarterly court does not have jurisdiction to try an accused for a second offense violation because it is specifically stated that its jurisdiction is limited to cases where the penalty does not exceed a fine of $100 and imprisonment in the county jail not exceeding 60 days, while for the second offense under subsection (1), the maximum punishment is $200 and 120 days’ imprisonment. Appellant therefore argues that the accused must be convicted in the circuit court for the second offense before he can be tried for the third offense. It is contended that regardless of the number of times a man is convicted in the quarterly court, it would amount only to the first offense as defined by the statute because it is the fine and penalty meted out .to the defendant that makes it a conviction for the second offense.

This is indeed an ingenious argument and we find no opinion where it has heretofore been considered. In countless cases we have approved instructions which did not require a finding by the jury that the defendant had been convicted of the second offense violation with its increased penalties in order to punish for a third offense violation. Under the Habitual Criminal Act (KRS 431,190) where an increased penalty for the second felony is provided we have never made it a condition precedent that there should he a conviction for that offense before the third offense becomes a felony. We can not agree that it was the intention of the statute that an offender would be immune from prosecution for a third offense until a second conviction had been had with its accompanying increased penalties. We have so construed that statute for many years in regard to indictments and instructions. We believe the statute is more concerned with the number of offenses which have been committed and is intended to discourage recidivation rather than accumulation of punishment. It is the offenses which are paramount — not the punishment. Appellant should not be heard to complain because the full sanctions of the statute were not invoked after his second offense.

Appellant contends that the court erred in failing to give an instruction which submitted his theory of defense to the jury. Once again we are faced with the question of whether a concrete instruction was required.

Appellant testified that at the time he was arrested his ex-wife who had remarried, together with her husband, was visiting him in order that she might see her son. Appellant had leased a portion of his house to a third person who used the room for the most part for storage space, but who also kept a bed there and occasionally slept there. Apparently with no objection from the lessee he permitted his former wife and her husband to sleep on the leased premises. Herschel Fields an undercover man for state trooper, Donald Borba, testified that he purchased the beer from appellant. Appellant testified:

“Q. Did you talk to Fields when he came in ? “A. Came in and said he wanted six (6) cans of beer and I told him I wasn’t selling beer, I was under peace bond and not selling, and had always come there for something like two or three years ago, any place in the house, any time he comes, and comes often day and night and walked on back through the house, and when he come out he had this pack with something in it, so I asked him what he had, and he just walked on.
“Q. Didn’t say anything to you? A. Just walked on.
“Q. Did you know what was in the sack? A. Didn’t know what was in it. Didn’t think about any beer. I knowed these fellows came had some beer, but I didn’t know they had it back in there at the time.
“Q. Knew who had some? A. Henderson and his wife. They brought it with them as they came through. Wise picked up beer — no, come through Cumberland, I believe.”

In short, appellant based his defense on the fact that the beer was purchased by Henderson and his wife, stored in the back room and Fields merely went to that portion of the house, picked up the beer and returned to the police car. Trooper Bor-ba went with Fields to appellant’s house, gave him money to make the purchase, saw him leave the house with the 6-pack of beer, but did not actually see a sale. The instruction given by the court reads as follows:

“If the jury believe from the evidence beyond a reasonable doubt that the defendant, Oscar Spears, in this County and within 12 months before the indictment did keep for sale, beer, a malt liquor, an intoxicating beverage at the time testified to by the witnesses, Donald Borba and Herschel Fields, you will find him guilty as charged in the indictment and fix his punishment at a fine in any sum of not less than $20 nor more than $100 and in addition at the confinement in jail of not less than 30 days nor more than 60 days; and may in your discretion provide in your verdict that he shall work at hard labor until the fine and costs or imprisonment are satisfied, or until all are satisfied.”

It was pointed out in Reynolds v. Commonwealth, Ky., 257 S.W.2d 514, that:

“In our cases we have written two rules as to when an accused is entitled to a concrete instruction covering his theory of the case. One rule is to the effect that where he admits the commission of the apparent offense, or the essential elements thereof, and relies upon facts and circumstances amounting to an avoidance of the crime, he is entitled to a concrete instruction covering his theory of the case, and a mere general instruction is not sufficient. (Citing cases.)”
“The other rule is to the effect that where the instruction submitting the Commonwealth’s theory of the case is couched in such language the ordinary juror can easily understand, and its negative (raised by the usual reasonable doubt instruction) completely and adequately covers the defense of the accused, it is not necessary to give an affirmative instruction embodying his theory. (Citing cases).”

We believe the instructions quoted above properly fall within the second rule. The jury were told that if they believed the story told by Herschel Fields was true, it would find the appellant guilty. It seems to us they were faced with the simple problem of deciding which of the two witnesses, Herschel Fields or appellant, should be believed.

Appellant also contends, and we believe correctly, that the court erred in instructing on the illegal possession for the purpose of sale when the indictment had charged illegal sale of alcoholic beverages.

It often has been held that instructions should substantially follow the language of the indictment. Whitaker v. Com., 188 Ky. 95, 221 S.W. 215, 10 A.L.R. 145, and Stanley’s Instructions to Juries, § 767. An indictment for a statutory offense, in turn, should follow the language of the statute in charging the offense, or the equivalent.

In a number of cases this Court has stated that unlawful possession for the purpose of sale is a separate offense from that of illegally selling alcoholic beverages in dry local option territory. See Mayes v. Com., 194 Ky. 540, 240 S.W. 58; Mullins v. Com., 216 Ky. 182, 286 S.W. 1042; Newton v. Com., 198 Ky. 707, 249 S.W. 1017. In Sprinkles v. Com., 301 Ky. 161, 191 S.W.2d 218, appellant was charged with selling liquor in dry local option territory. The opinion stated:

“It was also error to instruct the jury to find the appellant guilty, if they believed that she had liquor in her possession for sale in local option territory, because the indictment made no reference to this offense.”

Therefore Instruction No. 1 should have concerned illegal sale rather than illegal possession.

Judgment reversed.


author: STEWART, Judge.

text:
    BARTLEY & SENTERS COAL COMPANY, Appellant, v. Linzie H. HALL and the Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Oct. 29, 1965.
    As Modified on Denial of Rehearing March 25, 1966.

      William J. Baird, Baird & Hays, Pike-ville, for appellant.
    Burnis Martin, Paul E. Hayes, Prestons-burg, Robert F. Matthews, Jr., Atty. Gen., Frankfort, for appellees.
   STEWART, Judge.

One question is raised in this appeal: Was there sufficient evidence of substance to support the Workmen’s Compensation Board’s finding of fact that appellee-employee, Linzie H. Hall, was injuriously exposed to the hazard of silicosis while employed in a mine of appellant-employer, Bartley & Senters Coal Company, from April, 1960, until November, 1961 ? See KRS 342.316(12).

Appellee, testifying for himself, stated that appellant’s mine was not mechanized; that it utilized no cutting machine in extracting coal but that the coal was “shot from the solid”; that all the coal was loaded and hauled out in rubber-tired buggies; and that he did not know whether the top and bottom of the space where he worked were slate or rock.

Appellee’s description of the presence of dust during his work in appellant’s mine was brought out on direct examination as follows:

“Q. 52 Did you have occasion to come in contact with any kind of dust while working there?
A. Yes, we shot a lot of rock every day and there’s powder on top of your coal.
Q. 53 What kind of rock was it?
A. It was hard rock, looked like sandstone. You couldn’t beat it with a hammer. We would have to lay powder on it and lay a lot of stuff on it before we could shoot it and load it.
Q. 54 Did that cause dust ?
A. Yes, sir, lots of dust.
Q. 55 Was there any coal dust there where you were working?
A. Yes, sir.
Q. 56 Was there a little or a whole lot?
A. There was a right smart of coal dust.
Q. 57 Was there any sandstone dust there ?
A. There was a lot of white dust when we would shoot that rock.
Q. 58 Is there any sandstone rock in that mine?
A. It looked like sandstone top. It was white rock, looked to me like it was sandstone.
Q. 59 You took it to be sandstone?
A. Yes. It would fall in big slugs.
'Q. 60 Would there just be dust certain parts of the day or all day long?
A. I’ll say for three or four hours, something like that, in a place where you shoot it.
■Q. 61 How long would this dusty condition exist while you were loading coal there? How long a period would this dust continue while you were loading coal there?
A. Well sometimes a long time and sometimes it wouldn’t last too long.”

On cross-examination it was shown that appellee had worked in coal mines of the Inland Steel Company for about fourteen years. This employment terminated in 1957. He said that he did not have a certain job with Inland; but instead would sometimes work on a cutting machine, sometimes as a timberman, and sometimes as a drill helper. However, whenever he or any of the miners would drill they would use a respirator which would cover the mouth and nose. In order to get from the tipple of the mine to the place where he worked, which appellee estimated to be a distance of two or three miles, a man-car was used. The man-car was pulled by a motor and appellee “imagined” they used sand on the motors and the track to get traction. There was rock in Inland’s mine; although he did not personally “shoot” the rock, the men who did would use jack hammers which would cause rock dust. They had all kinds of machinery at Inland, including cutting machines, drills, bolting machines, and motor-cars.

Appellee’s only other witness at the hearing was Richard Hall. There is nothing in the record which indicates he is related by blood or marriage to appellee. Richard Hall worked intermittently for appellant from 1955 to 1961 at the same location as did appellee. His testimony relative to the dust condition of appellee’s mine is revealed by his answers to the following questions:

“Q. 1 What kind of bottom did you have up there?
A. Well I don’t know. I never paid too much attention to it Sometimes it looked like a slick bottom and sometimes it looked rough.
* * * * * *
Q. 10 Any rock dust or sandstone dust in that mine?
A. Where they would shoot it would be white rock. Maybe it would be a little while before we could go back and load coal. I say a right smart bit, maybe 45 minutes or maybe a hour before we could go back in and load it.
Q. 11 What about coal dust?
A. It was all through it look to me like.”

The testimony of one of the owners of the mine and of five miners, some of whom had worked in the mine with appellee and all of whom were familiar with the mine, was to the effect that there was no sand dust in this mine. Also, there was a complete absence of sandstone from which silicon particles could be produced and there was no sand of any kind used in this mine, such as is found in mechanized mines where sand is used for traction on tracks. These witnesses stated that the roof and bottom of the mine were slate; that there was no sandstone in the coal seams; and that the coal was “shot from the solid,” i. e., a small drill was used and the holes for the shots were drilled in the center of the coal seam.

The opinion of the Board contains only this bald finding on the question of whether appellee was injuriously exposed to the hazards of silicosis while working in appellant’s mine:

“After reading the briefs of the parties hereto, the evidence, both lay and medical, it is the opinion of the Board that there is sufficient evidence to show that the plaintiff contracted silicosis while working for the defendant * * (Emphasis added.)

We find no evidence in this case which in any wise establishes that appellee was exposed to silicon particles while in the employ of appellant. The testimony of the two Halls refers to “white dust” and “coal dust.” However, it was not shown that either of these substances contained silica. The mine had no car tracks, no cutting machines. It was not revealed that there was any sand in this mine; nor any rock formation, such as sandstone, with which sand is combined. Sand is impure silica and when ground up into fine dust, such as occurs when motors use sand for traction on rails inside the mines or when cutting machines grind into the sandstone top or bottom of a coal seam, the fine minute particles of silica may be breathed into the lungs by anyone exposed to it.

Upon appellee was cast the burden of proving by competent evidence all the facts necessary to establish his claim. See City of Prestonsburg v. Gray, Ky., 341 S.W.2d 257; Walker v. Lebanon Stone Company, 312 Ky. 624, 229 S.W.2d 163. As was stated in Kentucky Power Company v. Dillon, Ky., 345 S.W.2d 486, 489, “ * * the evidence * * * to sustain an issue must be evidence of ‘substance and consequence, carrying the quality of proof and having fitness to produce conviction.’ ”

We conclude the Board’s finding of fact that appellee was injuriously exposed to the hazards of silicosis while working for appellant is not supported by any evidence of substance.

Wherefore, the judgment is reversed with directions that a new one be entered ordering appellee’s claim to be dismissed.

HILL, J., not sitting.


author: PALMORE, Judge.

text:
    William Nelson BLANKENSHIP, Appellant, v. MAJESTIC COLLIERIES COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.

      Dan Jack Combs, Pikeville, for appellant.
    John M. Stephens, Pikeville, for appellee.
   PALMORE, Judge.

The appellant, Blankenship, brought this action against the appellee coal company, his former employer, for breach of its obligation under a contract with the United Mine Workers, of which he was a member, to “provide the protection and coverage of the benefits under Workmen’s Compensation and occupational disease laws, whether compulsory or elective,” existing in the state of employment, which in his instance was Kentucky. He appeals from a judgment dismissing the complaint on the principal ground that his exclusive remedy was by way of a claim before the Workmen’s Compensation Board under KRS Chapter 342 and on the further ground of limitations.

Blankenship had worked in the company’s mines for 20 years. The complaint alleges, and it may be assumed for purposes of this discussion, that he developed the occupational disease of silicosis and was thereby disabled and forced to terminate his employment in April of 1956. At that time KRS 342.005(2) provided that the coverage of workmen’s compensation could be extended to silicosis by a joint voluntary application to the board by the employer and employe.

In the absence of such an election silicosis was not covered. Blankenship’s employment with the company was within the general coverage of the workmen’s compensation law, and on January 1, 1956, the company posted on its premises a notice to the effect that it had accepted the provisions of the Act “covering silicosis occupational diseases (silicosis).” However, as of April, 1956, when Blankenship’s employment ceased, it had not followed through with an application under KRS 342.005(2), and when his counsel made inquiry of the board he was advised that the joint election required for silicosis coverage had not been filed.

This suit was commenced on June 6, 1961, by the filing of a complaint in the Pike Circuit Court. Meanwhile, on January 24, 1958 (rehearing denied March 21, 1958), in Dick v. International Harvester Company, Ky., 310 S.W.2d 514, it had been decided by a 4-3 vote that under similar circumstances an employer was estopped to defend a silicosis claim before the board on the ground of non-coverage.

The difference between this and the Dick case is that the Dick case was a compensation proceeding whereas this is a common law suit for breach of contract. Both sides agree that the instant case is on all fours with Reliford v. Eastern Coal Corporation, 6 Cir., 260 F.2d 447 (1958), in which the federal appellate court for this circuit held (Judge Miller dissenting) that it does not follow from the Dick case that the employe cannot sue at common law. The majority opinion in Reliford held that where the employer had violated its contract by failing to make the election for silicosis coverage the employe “had a choice between the remedy under the Workmen’s Compensation Act and under the common law” and “was not compelled, either by the contract * * * or under the law of Kentucky, to come within the operation of the statute.” 260 F.2d at page 458.

Conceding that a forceful argument to the contrary can be and was made in the dissenting opinion in Reliford, we are not persuaded that Dick and Reliford are inconsistent. The result in Dick is predicated clearly and unequivocally on estoppel, which, of course, is not a cause of action but a defense. In effect, the Dick opinion says that when the employe files his claim with the board stating that his disability is within the coverage of the Act, the question of jurisdiction cannot be raised. Since it cannot be raised it is never reached, never in issue, and is moot. That a claimant may have an estoppel which, if asserted, would serve to insulate him from the jurisdictional question in the event he should choose to assert a compensation claim does not demand a conclusion that under KRS 342.015 that remedy is exclusive. As in Reliford, we hold that it is not exclusive, and the claimant may have his common law remedy for breach of contract.

The limitations prescribed by KRS 342.185 and KRS 342.316(3) apply only to proceedings before the board. KRS 413.140 (1) applies to actions for personal injury. This action, being on a written contract, is governed by the 15-year statute, KRS 413.090(2).

The cause is reversed for further proceedings.


author: HILL, Judge. MONTGOMERY, Judge

text:
    James E. SHEARER et al., Appellants, v. James A. HALL, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.
    As Modified on Denial of Rehearing March 25, 1966.

      Anthony R. Hellmann, Louisville, for appellants.
    William H. Hays, Ralph Mitchell, Shelby-ville, Oldham Clarke, Louisville, George F. Williamson, James A. Hall, Jr., LaGrange, for appellees.
   HILL, Judge.

This is an appeal from an order dismissing appellants’ complaint for failure to state a cause of action.

On December 27, 1962, appellants, James E. Shearer, his wife and infant children, were passengers in an automobile being driven across a bridge spanning Floyds Fork Creek on Todds Point Road. The bridge collapsed injuring appellants. Floyds Fork Creek at the location of the bridge is the boundary line between Shelby and Oldham Counties. The bridge has been maintained jointly for some years by the two counties. This action seeks damages for injuries claimed to have been received in the collapse of the bridge.

The defendants, with the exception of B. M. Johnson, are the members of the fiscal courts of the two counties as individuals and as members of the fiscal courts of their respective counties. Johnson is the road engineer of Shelby County.

Neither Shelby nor Oldham County is made a party defendant, although the complaint names the “Shelby County Fiscal Court” and the “Oldham County Fiscal Court” as parties, in addition to naming the members of the two fiscal courts in their individual capacities. Counsel for defendants did not raise the question that the two counties were not made parties until the filing of appellees’ brief in this Court. Apparently the trial court treated the two counties as having been properly joined as defendants when it referred in the judgment to “sovereign immunity,” and in citing Carr v. Jefferson County, 275 Ky. 685, 122 S.W.2d 482 (1938). Nevertheless, the counties were not made defendants. In Howell v. Haney, Ky., 330 S.W.2d 941 (1960), it was held that joining the individual members of the board of education and members of the fiscal court did not operate to join the board of education and the county in their capacities as quasi corporations.

Appellants contend the counties are “estopped” on this appeal to raise this question for the first time. With this we do not agree.

This question should not be confused with the situation where an “issue” not raised by the pleadings, but tried by expressed or implied consent, is treated in all respects as if it had been raised in the pleadings under CR 15.02.

Consequently, with the two counties out of the picture, our inquiry concerns the sufficiency of the allegations of the complaint as to the defendants in their individual capacities.

Following are the pertinent allegations of the complaint:

(1) “(B)ecause of the negligence and carelessness of the aforesaid defendants, jointly and severally, and as a direct cause thereof, said bridge collapsed; that the defendants knew or by the exercise of ordinary care, should have known the dangerous condition of said bridge and should have warned the public thereof and particularly these plaintiffs * * *
(2) “11. Plaintiffs further state that pursuant to Chapters 67, 178 and 179 of the Kentucky Revised Statutes, it was the duty of the defendants to repair and maintain said bridge for the safety of the public and these plaintiffs, and that the defendants willfully and wantonly failed to do so.”

A wanton act is an unrestrained act. Gross negligence is the failure to exercise slight care. Chesapeake & O. Ry. Co. v. Dodge, 66 S.W. 606, 23 Ky.Law Rep. 1959; Louisville & N. R. Co. v. Roth, 130 Ky. 759, 114 S.W. 264 (1908); Louisville & N. R. Co. v. Smith, 135 Ky. 462, 122 S.W. 806 (1909).

In determining the sufficiency of pleadings, we are met at the threshold by CR 8.01 providing for “(1) a short and plain statement of the claim showing that the pleader is entitled to relief.” Clay’s Kentucky Practice, volume 6, page 128, thus defines the purpose of pleadings:

“The purpose of this Rule is to assign to pleadings the function of giving notice and formulating true issues without the requirement that they detail every fact which in the past may have been necessary to constitute a formal ‘cause of action’ or a defense. The common law concept of pleading to an issue is completely abandoned.”

This brings us to the troublesome question, are public officials personally liable for negligence or “wanton” failure to perform their official duties? Those duties as they relate to members of the fiscal court are thus defined in KRS 67.080: “The fiscal court may: * * * (5) Erect, keep in repair and superintend bridges and other structures; * * * (9) Provide for the good condition of the highways in the county.” The duties of the defendant Johnson, as county road engineer, are defined in KRS 179.200 in these words: “(1) Every six months, and at such other times as the fiscal court directs, the county engineer shall inspect, or cause to be inspected, the county roads and bridges within the county.”

In addition to the foregoing statutes relative to the duties of defendants, section 227 of the Constitution of Kentucky provides: “Judges of the County Court, Justices of the Peace, * * * shall be subject to indictment or prosecution for misfeasance or malfeasance in office, or willful neglect in discharge of official duties, in such mode as may be prescribed by law * * * Following the guidelines of this section of the Constitution, the Legislature enacted KRS 61.170 which provided that justices of the peace and other named officers may be indicted for malfeasance or misfeasance in office or willful neglect in the discharge of official duties.

Appellees contend the use of the word “may” in connection with the duties of justices of the peace vests in such officers a discretion to act; and, unless there is a mandatory provision in the statute requiring the performance of a duty, no civil liability is imposed. Numerous cases are cited, including Wheatly v. Mercer, 72 Ky. 704 (1873), Hardwick v. Franklin, 120 Ky. 78, 85 S.W. 709 (1905), Sinkhorn v. Lexington, H. & P. Turnpike Road Co., 112 Ky. 205, 65 S.W. 356 (1901).

In the light of more recent cases, to which we later refer, we think by the use of the word “may” in KRS 67.080 the Legislature clearly intended not only to empower the fiscal courts to repair and keep in good condition the roads and bridges, but by implication they are placed under the duty to exercise some degree of care and diligence in the performance of such duties. The pleading in question not only charges failure to exercise ordinary care, but alleges defendants willfully and wantonly failed to perform the duties required of them by law and referred to specifically in the statutes quoted above.

The general rule concerning personal liability of public. officers for injuries resulting from defective highways is stated in 25 Am.Jur., Highways, section 604, page 889, as follows: “According to the majority rule, a public officer is liable for personal injuries resulting from his negligence, where the duty imposed on him of keeping the streets or highways in repair is ministerial or mandatory in character, and not judicial or discretionary.”

For a definition of “ministerial” act as distinguished from a “discretionary” one, we quote the following from Upchurch v. Clinton County, Ky., 330 S.W.2d 428, 430 (1959) :

“The essentials of a ministerial as contrasted with a discretionary act are thus set forth in 43 Am.Jur., Public Officers, sec. 258, p. 75: ‘An official duty is ministerial when it is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts; that a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in its nature. Discretionary or judicial duties are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one or two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed. However, an act is not necessarily taken out of the class styled “ministerial” because the officer performing it is vested with a discretion respecting the means or method to be employed.1 ”

And further on this subject in an opinion written for this Court in 1902 by Judge O’Rear in Commonwealth v. Boyle County Fiscal Court, 113 Ky. 325, 68 S.W. 116, 118 (1902), it was said:

“We have seen, though, that the duty of keeping up the highways of a community is by law imposed upon the respective counties, and by law conferred upon that branch of officials within a county who may constitute its fiscal court. These officials are invested with the necessary discretion as to the manner of discharging the duties of their offices. But this discretion is not one that can set at naught the duty. Their discretion consists in the manner how, not in the matter of whether, the highway shall be kept in fit condition for public use, in so far as the means given to their hands by the law will suffice.”

After quoting KRS 3748 (now KRS 61.-170) referred to above, Judge O’Rear continues :

“We are of the opinion that under the statutes above quoted the duty of keeping the public highways of a county in repair is primarily imposed upon the members of the fiscal court sitting as the governmental tribunal of the county. The responsibility, if any, for a willful failure to discharge this duty, would rest upon the members individually, and not the county.”

In the more recent case of Whitt v. Reed, Ky., 239 S.W.2d 489, 490, 32 A.L.R.2d 1160 (1951), this Court reversed an order sustaining a demurrer to a petition (now motion to dismiss) seeking damages for injuries received by a pupil by hot water expelled from a drinking fountain. The suit was filed against the members of the board of education of Graves County and others. In approving a pleading seeking recovery this Court said: “Its members (Graves County Board of Education) and the other school officials are sued in their individual capacities for their individual acts of negligence. We know of no legal theory which insulates a public official from liability for his own personal tortious acts.”

This reasoning is followed in Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 36, 2 A.L.R.3d 814 (1962), wherein public officers of a like or similar classification were held liable for negligence or deliberate wrongdoing. We quote from the Spillman case:

“It seems to us that in order to impose personal liability there should be some element of personal fault on the part of the officer or agent, such as negligence or deliberate wrongdoing. The ordinary rule is that a public officer when acting in good faith within the scope of his authority is not personally liable for damages sustained by a member of the public as a result of his action, unless he acted negligently, that is, failed to meet the standard of the ordinarily prudent man. 67 C.J.S. Officers § 125, pp. 417, 418; J. F. Schneider & Son v. Watt, Ky., 252 S.W.2d 898. In our opinion this is a proper rule, and if under a particular set of facts liability would not exist under this rule liability should not be imposed on the officer simply because the government cannot be made to pay.”

We are not unmindful of the need to afford some measure of protection to public officers in the performance of their official duties, particularly poorly paid ones, such as members of fiscal courts, who are required to devote only part of their time to official duties. We can appreciate the reaction of public officials if the opinions of the courts give the public the general impression such public officials are guarantors of the safety of bridges and highways. Certainly such impressions would discourage qualified men from seeking the important office in question.

While most of the highways have been taken over by the Kentucky Department of Highways, some remain under the jurisdiction of the fiscal courts. The fiscal courts may close a road or bridge and the public must walk around or get to its destination the best way it can; but, if it does so, it should give an appropriate signal or warning thereof. The county may not be financially able to afford some road or bridge repairs at the very time of need. Floods or other unusual conditions may increase cost of road repairs beyond the income of a county. As often happens throughout Kentucky, fiscal courts provide for the appointment and designation of individual members as “committees” to inspect, report and be responsible for the roads in their respective districts. In which event, the personal responsibility of the individual member of the fiscal court may or may not be limited to the district in which he is so designated. All of these questions, and possibly more, may be important factual situations in determining the legal liability, if any, of the individual members of the fiscal courts. We do not know the facts of the present case; we only have the claim of appellants as contained in their complaint.

It is not alleged that defendants had notice of the defective condition described.

In the present case, we do not hold that appellees or any of them are legally liable for the damages claimed. We simply conclude the allegations of the complaint are sufficient to get appellants into court, so that they may have an opportunity to develop the facts and have their “day in court.”

Finally, appellants complain that the trial court erroneously relieved appellees of the requirement of answering appellees’ interrogatories. This ruling of the trial court was apparently a consequence of its ruling on motion to dismiss for failure to state a cause of action. On remand of the case, appellants will be entitled to a ruling on the propriety of the questions contained in the interrogatories.

The judgment is reversed for proceedings consistent herewith.

MONTGOMERY, Judge

(dissenting).

I think that the majority opinion is wrong in holding that the duties as set forth therein of the individuals composing the two fiscal courts are ministerial. Under the definition of ministerial and discretionary duties quoted from the Clinton County case, I think that the duties should be classified as discretionary. The establishment, maintenance, and operation of the county road system require the exercise of judgment and discretion on the part of the fiscal court members as to what shall be done in this respect in regard to any particular road or part thereof, having consideration for many factors, including the money available with which to do so. The members of the fiscal court constitute the management of the county government. The amnorities cited say that an official is not liable for judicial or discretionary acts.

Further, the majority opinion does not clearly define whether liability is based on ordinary negligence or wanton negligence.

For these reasons I respectfully dissent.

STEWART, J., concurs.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Clarence ROGERS et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Deddo G. Lynn, Dept, of Highways, John E. Smith, Dept, of Highways, Lexington, for appellant.
    E. F. Prichard, Jr., Frankfort, Clay Shackelford, Shackelford, Burnam & Thompson, Richmond, for appellees.
   CLAY, Commissioner.

This is a condemnation case, tried prior to our decision in Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, in which the jury awarded the landowners $7,500 for land taken and $20,000 as damages to the remainder. The Commonwealth appeals principally on the grounds that the damages were excessive and were based upon incompetent evidence. We agree.

The property involved is an eight-acre tract of land in Madison County. It is divided and devoted to two entirely distinct and different uses. Facing Kentucky Highway 52 {not here involved) is a substantial residence with an extensive backyard enclosed by a rail fence. Beyond the fence to the rear are some buildings which comprise a sausage plant operated by the landowners.

The property taken by the Commonwealth is less than an acre from the rear of the property behind the sausage plant. This consisted of a strip 40 to 50 fee; in width on which was built a fill for a new highway. In taking this strip, the Commonwealth removed a smokehouse, a fuel tank, some fencing, and 12 feet from the back of an 80 foot long holding pen for hogs.

The landowners’ witnesses placed values up to approximately $8,000 on the land and improvements taken, and estimated damages ranging from approximately $42,000 to $63,000 to the remainder. (The entire eight-acre tract was listed for tax purposes at $7,500.) The Commonwealth objects to a major portion of this appraisal testimony on many grounds, including unfamiliarity of the witnesses with the property involved, references to irrelevant factors, and the absence of supporting factors upon which to base the opinions. We will not go into these matters specifically because one objectionable feature impairs the competency of most of this testimony.

It is clear from reading this record that the appraisal evidence offered by the landowners relating to damages was based almost entirely upon the injury to appel-lees’ sausage business by reason of the taking. These witnesses obviously considered the sausage plant a profitable and going concern and implicit in their testimony was the probable loss of business resulting from reduction of the plant area and the removal of some improvements. An example of typical testimony in this case is the following question directed to one of appellees: “Does that decrease the market value of your sausage plant?” (Our emphasis.) (Answer, “Very much.”)

We have, of course, held time and time again that business losses resulting from condemnation are not compensable. Henderson v. Lexington, 132 Ky. 390, 111 S.W. 318, 22 L.R.A.,N.S., 20; City of Newport Municipal Housing Commission v. Turner Advertising, Inc., Ky., 334 S.W.2d 767; Com., Dept. of Highways v. Smith, Ky., 358 S.W.2d 487; Com., Dept. of Highways v. Fultz, Ky., 360 S.W.2d 216; Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844; Com., Dept. of Highways v. Eubank, Ky., 369 S.W.2d 15; Com., Dept. of Highways v. Fister, Ky., 373 S.W.2d 720; Com., Dept. of Highways v. Ray, Ky., 392 S.W.2d 665. The very large damage estimates of these witnesses can be attributed only to the use of this improper factor. The verdict cannot stand on such evidence.

One other item of evidence requires consideration. A witness testified to an offer the landowners had received for their property at a public auction. This offer was inadmissible. Commonwealth, by State Highway Commission v. Combs, 229 Ky. 627, 17 S.W.2d 748; Brock v. Harlan County, 297 Ky. 113, 179 S.W.2d 202; Com., Dept. of Highways v. Raleigh, Ky., 375 S.W.2d 384.

The unreliability of this auction bid is made more manifest by reason of the character of property here involved, which leads us to a matter of importance to all parties on a retrial. This property is unique in that it is devoted to two entirely different uses, which from the standpoint of the ordinary buyer would be incompatible. As before mentioned, the front part of the tract is occupied by an attractive residence with accompanying yard, trees and landscaping. The rear portion of the lot is devoted to a commercial enterprise which bears no useful relationship to the residence. As a matter of fact, this business usage would tend to impair the value of the residential area, and vice versa.

Considering the practical aspects of the problem, which always play a part in our rules of evidence, it would appear almost impossible to fix a fair market value for this land either before or after the taking, when considered as a unit. To the hypothetical buyer who wished to live on the premises and operate a sausage business, the property would have much greater value than it would have to a buyer who did not wish to use the land in this dual capacity. This disparity in possible values to different kinds of buyers is reflected by the wide divergence of appraisals in this case. The witnesses simply had no adequate guide to the fair market value of the whole tract (either before or after) when devoted to two such unrelated uses. We think this is illustrated by the following statement of one of the expert witnesses:

“No one is going to buy the house for what it is worth unless he is planning to go into the sausage business, where he can have both together and have his business, and it would be hard to find anyone to buy a home there without the plant, it has hurt both places, very much so.”

This witness was undertaking to prove that damage to the sausage plant “hurts the market value of the house”, but it is obvious from his statement that it was the incompatibility of the two uses of the property which “hurt” the before as well as the after value.

The difficulties above discussed have led to the development of the rule that a landowner may not rightfully claim damages to his remaining land, even though contiguous, when the taking affects a parcel devoted to a special use unrelated to the remainder. See Nichols on Eminent Domain, 3rd Ed., Vol. 4, section 14.31(1), page 728; Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211; United States ex rel. Tennessee Valley Authority v. Indian Creek Marble Co., D.C.Tenn., 40 F.Supp. 811; Cameron v. Chicago, M. & St. P. R. Co., 51 Minn. 153, 53 N.W. 199; Board of Supervisors of Monroe County v. Sherlo Realty, Inc., 32 Misc.2d 579, 224 N.Y.S.2d 244. This Court has considered the implications of the rule where a road separated two parcels of land. Com., Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851. The circumstances of the present case demand its application.

It is true that one of the landowners testified that damaging the sausage plant damaged his residence, but as explained by a qualified appraisal witness, this simply could not be so. Obviously the owner was considering only how the taking affected him personally and he was duplicating damages which the “different use” theory was adopted to avoid. See the Cameron case cited above. Another witness testified along the same lines as the landowner, but did not justify his conclusion. The pictures in the record demonstrate more eloquently than words that taking a strip of land from behind the sausage plant, thereby removing a portion of the hog pen, could not possibly lessen the value of the parcel devoted to residential use.

Returning to the auction bid offer, for the reasons above outlined and others, it would not constitute a fair basis of market value. The landowners attempted to introduce this bid to prove after value of the whole tract. It would have been just as unfair to the landowners if the Commonwealth had introduced an offer to prove before value. We are inclined to believe that inconsistent uses of the property tend to lessen both the before and after values of the tract when considered as a unit. In any event, offers could differ widely depending upon whether a buyer planned or did not plan to operate a sausage plant in connection with his residence. This is the type of case in which the portion of the property affected by the condemnation, devoted to a special use independent of and foreign to the use of the other portion, should be valued separately. Consequently on a new trial the before and after values of the land, exclusive of that area devoted to residential use, should be used as the basis upon which damages are awarded.

The judgment is reversed for proceedings consistent with this opinion.


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. H. S. SHEFFER et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.
    Rehearing Denied March 25, 1966.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Dandridge F. Walton, Madisonville, John E. Smith, Lexington, for appellant.

      William L. Sullivan, Dorsey & Sullivan, Henderson, for appellees.
   MONTGOMERY, Judge.

H. S. Sheffer was awarded a total of $7,640 in a condemnation action filed by the Department of Highways. On appeal the Department urges, inter alia, that the verdict is excessive.

The property owned by Sheffer fronted on U. S. 41 near Henderson for 108 feet and had a depth of 250 feet. There is a slope upward from the front to the rear of the lot where a frame residence and a two-car garage are located on a knoll. The property is being used for residential purposes only.

The property taken consisted of a strip 10 feet wide and 108 feet long across the front of the lot plus an adjacent area of 10 feet by 10 feet for a catch basin, or a total of 1,180 square feet. A temporary easement 30 feet deep and 108 feet long, or 3,240 square feet, was taken for construction of the catch basin and in order to connect the existing driveway to the new driveway. A lamp post and three shrubs were removed. The jury awarded $7,000 for the difference in the market value of the property before and after the taking and $640 as the fair market rental value of the temporary easement.

The contention is made that the verdict is excessive. Appellee urges that the best use of the property is a combination of commercial and residential uses; that appel-lee will have 20 feet less of the lot for commercial purposes; that the driveway grade had been changed; that the lamp post had to be moved and reinstalled and three shrubs removed; that the entrances were restricted; and that the extension of the catch basin above the ground surface would constitute an interference with the enjoyment and use of the property. In spite of the contentions made by appellee, which the appellant has undertaken to answer, it is considered that the award, as said in Commonwealth, Dept. of Highways v. Merriman, Ky., 392 S.W.2d 661, strikes the judicial conscience at first blush as being excessive. In that case $3,000 was awarded for a strip 6 feet by 159 feet on which were situated a wire fence and shrubs, plus $25 for a temporary easement. See also Commonwealth, Dept. of Highways v. Ray, Ky., 392 S.W.2d 665; Commonwealth, Dept. of Highways v. George, Ky., 387 S.W.2d 580; Commonwealth, Dept. of Highways v. Taylor County Bank, Ky., 394 S.W.2d 581 (decided October 1, 1965).

In determining that an award is excessive, the Court does so in the face of the valuations by the landowner and his witnesses, including qualified real estate appraisers. In looking at a cold record in such case, one is free from the persuasive eloquence of counsel. At the same time the Court is not altogether unlearned in land values, if for no other reason because of the plethora of condemnation cases before this Court. One is not compelled to accept as true, testimony of value which exceeds any rational appraisal or estimate of the damages and which at first blush shocks the judicial conscience. 22 Am.Jur.2d, Damages, Section 366, pages 472-4.

Other questions raised have previously been decided. See Commonwealth, Dept of Highways v. Belk, Ky., 389 S.W.2d 920; Commonwealth, Dept. of Highways v. Napier, Ky., 387 S.W.2d 861; Commonwealth, Dept. of Highways v. Shaw, Ky., 390 S.W.2d 161; Commonwealth, Dept. of Highways v. York, Ky., 390 S.W.2d 190; Commonwealth, Dept. of Highways v. Priest, Ky., 387 S.W.2d 302.

Judgment reversed.

PALMORE, J., not sitting.


author: HILL, Judge.

text:
    Raymond T. DAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Rehearing Denied March 25, 1966.

      Jack M. Lowery, Jr., Thomas Burton, Louisville, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

This is an appeal from the Jefferson Circuit Court wherein the appellant, Raymond T. Davis, was sentenced to two year’s confinement in the penitentiary for the offense of uttering a forged instrument in writing, as denounced by KRS 434.130. More specifically, the appellant presented a promissory note to the Citizens Fidelity Bank and Trust Company in Louisville Kentucky, (hereinafter referred to as Citizens) bearing the allegedly forged signatures of W. Ray Stark and Emma L. Stark, his wife.

In 1960, the appellant and Mr. and Mrs. Stark jointly formed a business corporation which was primarily financed by various bank loans. From time to time they would jointly execute promissory notes and obtain these bank loans by pledging Mr. Stark’s securities as collateral.

In March of 1962, after some discussion, the Citizens Bank advised the appellant that they would consolidate these preexisting loans at various banks into one loan. For this purpose the Citizens Bank furnished the appellant with a blank promissory note form upon which the signatures of the Starks, as well as the appellant and his wife, were to be affixed. Subsequently, the appellant delivered this same note form to Citizens, completely blank, except for the signatures of the appellant, his wife, and Mr. and Mrs. Stark.

It is the signatures of Mr. and Mrs. Stark on this note to Citizens which are alleged to be forgeries and which are the subject matter of the indictment. Later, the blanks in the note were filled in by a Citizens bank official, resulting in its completion as it appears in the indictment. As a result of this transaction between Citizens and the appellant, the other banks were paid in full and the various notes executed by the appellant and Mr. and Mrs. Stark at the other banks were can-celled.

The first important issue raised in this case is whether the note uttered by the appellant to Citizens Bank had legal efficacy and, therefore, the proper subject of forgery. The appellant contends that the answer to this question should be “No” since the note was not filled in with the particulars as to the date and amount. It is true that a writing must be of apparent legal efficacy or the foundation of a legal liability to be the subject of forgery. Colson v. Com., 110 Ky. 233, 61 S.W. 46 (1901); Com. v. Cochran, 143 Ky. 807, 137 S.W. 521 (1911); Carter v. Com., 311 Ky. 252, 223 S.W.2d 900 (1949).

However, it is pointed out in the evidence that the appellant authorized a Citizens bank official to fill in the blanks when the amount of indebtedness was ascertained. The Uniform Commercial Code [KRS 355.3-115(1)], in stating that an incomplete instrument has legal efficacy after it is completed in accordance with the authority given, provides as follows:

“When a paper whose contents at the time of signing show that it is intended to become an instrument is signed while still incomplete in any necessary respect it cannot be enforced until completed, but when it is completed in accordance with authority given it is effective as completed.”

In other words, the legal effect of giving an incomplete promissory note to another with the authorization to fill in the blanks is the same as delivering a complete instrument. It is the opinion of this Court that there is no merit in appellant’s contention that the instrument in question was without legal efficacy and, therefore, not the proper subject of forgery.

It is next contended that the evidence was fatally at variance with the indictment. This is on the theory that the indictment was defective in that it should have stated all of the facts connected with the issuance of the note in order for there to be legal efficacy stated in the indictment. The appellant points out that it is absolutely undisputed that at the time of its utterance the note was completely blank in every particular with the exception of the signatures of the makers. However, as pointed out in the U.C.C., supra, the legal effect of giving the incomplete promissory note to the Citizens bank official with the authorization to fill in the blanks was the same as delivering a complete instrument, and this Court has stated in Eldridge v. Com., Ky., 54 S.W. 7, 8, (1899) “* * * [T]hat an indictment should state the facts constituting the defendant’s guilt, but it has always been allowable to state them according to their legal effect.” The appellant goes on to say that the variance between the proof and the indictment was misleading to the appellant in his defense. It is well settled that any variance between the indictment and the proof which misleads the accused in making or preparing his defense is fatal. Miller v. Com., 234 Ky. 224, 27 S.W.2d 957 (1930); Braswell v. Com., Ky., 339 S.W.2d 637 (1960). It is the opinion of this Court that the variance complained of was not such as to mislead the accused in making his defense.

The third contention is that the instructions of the court were erroneous because they did not properly relate to the proof introduced at the trial. The appellant’s argument is that the trial court submitted a factual issue to the jury which was completely unsupported by the evidence. The appellant complains that the trial court instructed the jury that the appellant could be convicted if the jury believed beyond a reasonable doubt that he uttered “the note mentioned in the indictment and evidence in this case.” This argument is predicated upon appellant’s theory that the indictment erroneously alleged that the note in question was complete and valid at the time of its utterance. However, the argument here is the same as the arguments hereinbefore discussed concerning the sufficiency of the indictment, and it is the opinion of this Court that the answers are the same. The legal effect of giving the incomplete instrument to the Citizens bank official with the authorization to fill in the blanks was the same as delivering a complete instrument.

It is further argued that the court erred in refusing to give a directed verdict for the appellant. This is on the theory that there was a complete absence of any proof whatsoever of an intent to defraud. The argument is that one cannot be convicted of uttering a forged instrument without proof that the instrument was in fact forged, and in order to prove the latter it must be shown that the person who actually signed the name had a fraudulent intent. As to whether the instrument was in fact forged, the evidence shows that the bank furnished the appellant with the blank promissory note form and that subsequently he delivered the same note form to the bank, completely blank, except for the necessary signatures. It is further shown in the evidence that the signatures of Mr. and Mrs. Stark, as testified to by a handwriting expert, were in fact forged; also, Mr. and Mrs. Stark deny ever signing the note in question. However, the appellant goes on to argue that there could have been no intent to defraud because, under the circumstances, the appellant did not gain nor seek to gain anything whatsoever as a result of the alleged uttering.

It is well settled that an intent to defraud is an essential element of the offense of uttering a forged instrument, Flaugher v. Com., Ky., 279 S.W.2d 775 (1955), but the actual accomplishment of a fraud is not a necessary element of the offense, Com. v. Fenwick, 177 Ky. 685, 198 S.W. 32, L.R.A.1918B, 1189 (1917); Fain v. Com., 287 Ky. 507, 154 S.W.2d 553 (1941). In the case at bar, it is true that the appellant obtained no money or property from this transaction. However, this argument loses sight of the fact that the appellant had been directed to remove his business from the Liberty National Bank and pay off the loans upon which he and Mr. Stark were obligated to pay because of irregularities in the appellant’s personal checking account. Thus, by consolidating these various loans into one loan from the Citizens Bank, the appellant could, and apparently did, receive some benefit from the standpoint of attempting to keep this knowledge that the Liberty Bank had from Mr. and Mrs. Stark. Furthermore, Finley v. Com., Ky., 259 S.W.2d 32 (1955), held that the forgery of a renewal note in order to get an extension of time was sufficient to show fraudulent intent.

The fifth contention relates to the admission of incompetent evidence. The appellant complains that the trial court committed reversible error in permitting the Commonwealth to introduce evidence of prior acts of misconduct. Mr. Stark testified to the following portions of the evidence:

“Q. 30. * * * Did you ever get anything from Mr. Davis for the money that was borrowed and turned over to him?
“A. Not a thing.

And again:

“Q. 52. How many meetings (of the WR & R Corporation) were ever held ?
“A. Never a meeting.
“Q. 53. What assets do you know of that the corporation ever owned?
“A. It never owned any * * *.
“Q. 55. Did you ever do anything in this business venture other than supply the money?
“A. That’s right.”

In our opinion this evidence was so interwoven with the alleged offense that it should be considered competent as tending to show a motive, scheme or plan. Miller v. Com., 301 Ky. 66, 190 S.W.2d 864 (1945); Hedger v. Com., 294 Ky. 731, 172 S.W.2d 560 (1943). Furthermore, the appellant complains that the trial court should have admonished the jury as to the limited purpose for which this testimony could be received and considered, but the obvious answer here is that the appellant failed to request such an admonition.

The final contention is that the following interruptions and comments made in the presence of the jury by the trial judge during the cross-examination of the appellant by the Commonwealth exhibited disbelief in the appellant’s testimony:

“BY THE COURT: Did you give him any collateral, Mr. Davis? Yes or no.
“WITNESS: Outside of a note, no sir.
“BY THE COURT: Now you know whether you did or you didn’t. Either you did or you didn’t?
“WITNESS: To my knowledge, I did not.
“MR. BURTON: Objection.
“BY THE COURT: He knows what he did with it.
“MR. BURTON: We object to the comments of the Court and we object to the constant badgering by the Commonwealth.
“BY THE COURT: Both of your objections are overruled.
“MR. BURTON: Exceptions.
“BY THE COURT: Just a minute. You know whether he asked you that or not.
“WITNESS: The notes, no, sir.
“BY THE COURT: Answer yes or no.”

It is the opinion of this Court that this contention is without merit because the appellant was very evasive in regard to many of his answers. The trial judge was only trying to get the appellant to give a responsive answer rather than showing a disbelief in appellant’s testimony. This was not prejudicial. Ragland v. Wickware, 27 Ky. 530 (1830).

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Mabel DURRETT, Appellant, v. WILLIAMS & MILLER FUNERAL HOME et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Rehearing Denied March 25, 1966.
    Morris Butler, Greensburg, Robert M. Spragens, Lebanon, for appellant.
    Edward T. Ewen, Jr., Richard D. Rem-mers, Louisville, Shelby M. Howard, Hodg-enville, for appellees.
   WADDILL, Commissioner.

The Workmen’s Compensation Board decided that the widow and children of Sam Durrett, who was killed in an accident on January 16, 1963, were not entitled to dependent benefits provided by our Compensation Act, KRS, Chapter 342. The decision and order of the Board was based upon a finding that Durrett was not working as an employee of the Williams & Miller Funeral Home at the time of his accident. The Larue Circuit Court upheld the Board’s order and from that judgment Durrett’s widow and children have appealed seeking reversal on the ground that the evidence conclusively shows that the accident causing Durrett’s death arose out of and in the course of his employment with the funeral home. Hence, it is argued that the dependent widow and children of Durrett are entitled to an award of .compensation benefits.

The facts establish that R. T. Williams and Roy Miller operate, as a partnership, a funeral home business under the name of Williams & Miller Funeral Home, located at Hodgenville, Kentucky. This business was being operated under the provisions of the Workmen’s Compensation Act of Kentucky at the time of Durrett’s accident.

Williams and Miller also had developed a small subdivision known as Summitt Heights, wherein they had built eleven houses, one of which was occupied by a tenant who had failed to pay the rent. This business was not being operated under the Workmen’s Compensation Act. When the tenant agreed to move, Miller sent Joe Puckett, a regular employee of the funeral home, to borrow a truck to help move the tenant’s furniture. Miller asked Durrett to help Puckett perform this task, and, when these two found that they needed help, they picked up Sam Williamson. These three men proceeded in the borrowed truck to Summitt Heights, loaded the truck and started on the trip to haul the furniture of the former tenant to another house. During the course of this trip Durrett fell from the truck and sustained injuries that caused his death.

In behalf of appellant it is argued that, since Miller’s testimony established that Durrett was engaged in moving a delinquent tenant from a house owned by Miller and his partner for the purpose of creating good will for their funeral home, Durrett was an employee of the funeral home at that time. The fallacy of this contention is that the Board, as a fact-finding agency was not so persuaded. Jones v. Commonwealth, Ky., 389 S.W.2d 927. In disposing of a similar contention in Lee v. International Harvester Company, Ky., 373 S.W.2d 418, we said:

“As a fact-finding agency the Board is in the same position as a jury, and the same rules apply. The claimant, bearing the burden of proof, ‘has the risk of not persuading the Board in his favor.’ Columbus Mining Co., v. Childers, Ky., 265 S.W.2d 443, 445 (1954). Standing alone, unimpeached, unexplained, and unrebutted, his evidence may or may not be so persuasive, that it would be clearly unreasonable for the Board not to be convinced by it. There are, therefore, some cases in which no evidence whatever is required in ‘support’ of a negative finding, and among them are those in which the claimant’s evidence would justify a favorable finding but would not require one as a matter of law. In such instances the Board’s finding is conclusive whether it be for or against.”

While the Board would have been justified in deciding that Durrett was an employee of the funeral home, we are unwilling to say that the evidence in the case requires such a finding as a matter of law.

The judgment is affirmed.


text:
    Ralph Booten BATES, Appellant, v. Beckham BATES et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Rehearing Denied March 25, 1966.

      Harry M. Caudill, Whitesburg, Bert T. Combs, Julius Rather, Lexington, for appellant.
    Stephen Combs, Jr., Stanley R. Hogg, LeRoy W. Fields, Whitesburg, for appel-lees.
   STEWART, Judge.

Appellee, Beckham Bates, has title to the minerals in land located on Beaver Dam Branch and Myra’s Branch of Rockhouse Creek in Letcher County. To the north and west of Beckham Bates’ property is an adjoining tract owned by his brother, Ralph Booten Bates, appellant herein. Still farther to the north is the property of the heirs of L. W. Fields.

The O. K. Coal Company, owned and operated by J. D. Banks, hereinafter referred to as Banks, obtained mineral leases from the above landowners and mined coal under these leases from 1955 to 1959. Under the terms of the lease with Beckham Bates, Banks was obligated to pay twenty cents per ton for the coal mined. Appellant, Ralph Booten Bates, and the Fields heirs leased their mineral rights to Banks for a royalty of twenty-five cents per ton for the coal removed. Banks also agreed to pay Beckham Bates five cents per ton for coal mined from the Fields heirs’ property and hauled through underground passageways of Beckham Bates’ property.

Banks conducted mining operations according to an engineering map prepared by one C. D. Lynch, hereinafter referred to as the Lynch Map. In order to calculate the royalties owed the different landowners, the Lynch Map was used to determine from whose property the coal was mined. The books and records of Banks, which the parties have stipulated as correct insofar as the Lynch Map is correct, indicate the following amounts of coal mined and royalties paid during the years 1955 through 1959:

Landowner Tons Mined Royalty Paid
Beckham Bates 39,634 I 7,926.97
Ralph Booten Bates 56,668 14,167.15
Fields Heirs 18,748 4,687.14
115,059 826,781.26

In addition, the books indicate that Beck-ham Bates received $937.40 as haulage fees for 18,748 tons of coal mined from the Fields tract and transported through Bates’ underground passageways.

Banks completed his mining operations in March of 1959, and never resumed them on the properties involved. A short time later, Beckham Bates leased his land to the David Sexton Coal Company. The beginning date of this lease and the amount of coal mined by the latter company do not appear in the record. Before this company took over the mine, however, Beckham Bates employed the Roy Crawford, Jr., engineering firm, hereinafter referred to as Crawford, to determine the amount of coal that had been mined by Banks and by a company which held the lease prior to Banks.

On May 20, 1960, the survey reported by Crawford disclosed an engineering mistake of 37 degrees made in the preparation of the Lynch Map. Thus the mine entry and coal workings shown by the Lynch Map on the Beckham Bates and Ralph Booten Bates properties are swung downward, when oriented with the Crawford Map, in an arc 37 degrees to the south of where the coal workings appear. Crawford then made a survey of the land south of the Beckham Bates tract, which is owned by the Collins and Johnson Mining Company, and also of the land owned by the Fields heirs. This survey was completed on December 15, 1960, and a map was prepared which is hereinafter referred to as the Crawford Map.

In July of 1961 Beckham Bates brought suit against Banks, Ralph Booten Bates and the Fields heirs for $400,000. The complaint alleged coal had been wrongfully mined from Beckham Bates’ land, and that the royalties in settlement therefor had been erroneously paid to Ralph Booten Bates and the Fields heirs.

The Fields heirs employed a mining engineer to inspect their property and, upon his recommendation, they entered into an agreed order with Beckham Bates and Ralph Booten Bates. In this order all the parties agreed that no coal had been mined from the property of the Fields heirs; and that of the 18,748 tons of coal for which royalties had been erroneously paid to the Fields heirs, 7,377 tons had actually been mined from the land of Ralph Booten Bates and 11,371 tons from the land of Beckham Bates. The Fields heirs thereupon made restitution to Ralph and Beckham Bates in the amounts of $1,659.20 and $1,705.65, respectively.

Thereafter, Ralph Booten Bates moved that the Lynch Map be stricken from the record as incompetent evidence. This motion was overruled and the parties agreed that the cause be submitted to the trial judge for an opinion and a judgment by the court. After making calculations, which are not questioned on this appeal, the circuit court ordered that Beckham Bates recover from his brother, Ralph Booten Bates, the sum of $6,109.60, and that Banks recover from Beckham Bates and Ralph Booten Bates the sums of $3,000 and $1,527.40, respectively, for erroneous payments made according to the Lynch Map.

Appellant on this appeal contends the judgment should be reversed because the trial court committed reversible error, first, by admitting and considering the Lynch Map as competent evidence and, next, in holding that the Crawford Map was decisive as to the amount of coal taken from the respective properties.

It is argued the Lynch Map should not have been used as a basis for any of the findings of fact of the trial judge, because it was not introduced by its maker, and it had not been signed or certified by him. The trial judge ruled the Lynch Map was admissible.

It was shown that C. D. Lynch, the maker of the map, became sick and incapacitated, that his testimony could not be taken, and that he died shortly after this litigation began. H. H. Smith, a licensed practicing engineer, with thirty years’ experience, testified that he was associated with Lynch in engineering work for many years; and that he recognized the map as the handiwork of Lynch. Smith was employed by Banks during the last year of his operations on the properties and Smith made postings on the map as the mining by Banks progressed. Banks testified he was guided in his mining operations solely in accordance with the Lynch Map.

The engineer who prepared the Crawford Map stated that the Lynch Map was used only as an aid in making tonnage calculations when it was actually impossible to survey due to the bad condition of the mine.

In 20 Am.Jur., Evidence, sec. 930, p. 783, it is stated:

“The proof of authenticity required preliminary to the introduction of an instrument in evidence need not be by direct proof. Authenticity of documentary evidence may be shown, so as to render it admissible in evidence, by indirect or circumstantial evidence— that is, by facts and circumstances from which the jury may infer the execution of the document.”

In the light of the facts and the applicable law we believe the trial court properly admitted the Lynch Map into evidence.

The parties by the execution of the agreed order conceded an engineering error of 37 degrees was made in the engineering map of C. D. Lynch, and that the parties were not correctly paid by Banks for the actual tonnage mined from the various properties. The Crawford Survey, insofar as the engineering error is concerned, has gone unchallenged. Ralph Booten Bates offered no evidence to refute the findings of the survey made by Crawford. This survey was properly authenticated by Roy Crawford, Jr., a registered engineer.

It is the contention of Ralph Booten Bates that the witnesses of Beckham Bates were unable to determine by actual survey the total tonnage mined by Banks. However, this is immaterial inasmuch as the parties stipulated 115,050 tons were actually mined and removed from all of the properties. The only question the trial court determined should be resolved is the extent to which Ralph Booten Bates has been unjustly enriched at the expense of Beckham Bates.

It is established by the survey of Crawford that part of the coal thought to have been mined from Ralph Booten Bates’ property, and for which he received payment, was in fact taken from the property of Beckham Bates, except for that portion removed from Ralph Booten Bates’ and Beck-ham Bates’ property for which the Fields heirs received payment. Since the Fields heirs have made restitution to the various parties, there is left for determination only the question of the amount of coal mined from Beckham Bates’ property for which Ralph Booten Bates received payment.

Based upon the actual tonnage figures of the Banks records, the correctness of which is not in dispute, and the survey made by Crawford, which is not under attack, it became a matter of arithmetical computation to determine the extent of unjust enrichment of Ralph Booten Bates at the expense of Beckham Bates and Banks.

The trial court found that only 33,496 tons of coal were mined from Ralph Booten Bates’ property and that, on this basis, he should have been paid only $8,374.00. This was, according to the Crawford Survey, an overpayment to him of $7,452.00. The trial court further found that 30,548 tons of coal owned by Beckham Bates were mined by Banks for which Ralph Booten Bates was paid $6,109.60. This is the amount the judgment decreed Ralph Booten Bates should pay Beckham Bates. The difference of $1,343.40 between $6,109.60 and the total overpayment to Ralph Booten Bates, plus an overpayment of $184 made by the Fields heirs to him, amount to $1,527.40. This is the sum the judgment awarded Banks.

We conclude the factual findings of the trial court, in respect to the payments due Beckham Bates and Banks, should not be disturbed, as we are of the opinion the evidence amply supports these findings.

Wherefore, the judgment is affirmed.


author: MILLIKEN, Judge.

text:
    Dock McCOWN, Appellant, v. HELLIER ELKHORN COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.

      Ronald W. May, Combs & May, Pikeville, for appellant.
    E. R. Hays, Baird & Hays, Pikeville, Stuart Alexander, Louisville (for Special Fund), for appellees.
   MILLIKEN, Judge.

This is an appeal from a judgment affirming an opinion and order of the Workmen’s Compensation Board which awarded compensation for partial disability, and the employee appealed.

Dock McCown, the appellant, was injured on August 4, 1962, while helping to load some lumber on a truck. He was employed at the time by the appellee, Hellier Elkhorn Coal Company. The appellant made a claim for injury to one of his testicles, and the claim was accepted by the appellee. McCown was operated on for the injury, made a complete recovery and returned to work without disability from that injury.

Several months later the appellant claimed that he had injuries to his back from the August 4, 1962, accident. The X-rays taken disclosed a compression fracture to the third lumbar which had healed, and some symptoms indicating lumbar muscular strain. The doctor could not say whether it was a result of the August 4, 1962, accident. Evidence was introduced which disclosed that the appellant had had a fracture of the transverse processes of the third lumbar vertebra in 1936, and that this old injury was the one which was causing pain.

On June 22, 1964, the Workmen’s Compensation Board, by and through its Referee, entered an opinion and award finding all issues in favor of appellant and awarded him 50% disability to the body. Both parties filed a motion for Full Board review, and on motion of the employee the custodian of the Special Fund was made a party.

On July 20, 1964, the Board, in an opinion and order, stated that it could not make a decision on the ultimate question of disability under the medical evidence contained in the file and, on its own motion, ordered the appellant to submit himself to Dr. T. Rothrock Miller for examination by an independent Board-appointed physician, and further ordered that Dr. Miller’s deposition be taken after his written report was filed. Dr. Miller conducted the examination and on deposition said that he would set the disability of the appellant at 15%. The Board then rendered an opinion awarding appellant 15% disability, payable by the Special Fund, and the Circuit Court affirmed the award. No cross-appeal was filed in behalf of the Special Fund.

The appellant argues that the Board did not cite the specific statute it invoked for the examination by an independent physician, and he asserts that under KRS 342.315 the filing of exceptions to the physician’s report is not required, which is true. We see no merit in this contention, for KRS 342.121(1), (4) governs in this area when the Special Fund is involved. (KRS 342.-315 governs the appointment of disinterested physicians when the Special Fund is not involved.) The statute (KRS 342.121 (1), (4)) says:

“(1) If on a claim for compensation for disability resulting from a subsequent injury by accident or occupational disease any medical question shall be in controversy, or a determination thereof necessary to the proper apportionment of liability therefor, the board shall refer the case to a physician appointed by it for the purpose of investigating and reporting to the board on the medical questions involved
“(4) The decision or award in the case shall conform to the findings and conclusions in such report insofar as restricted to medical questions, * * * no such findings of the physician shall be subject to review unless specific objections thereto shall be filed with the board * *

In the case of Roaring Fork Coal Company v. Wilder (1964), Ky., 380 S.W.2d 271, (applying KRS 342.121), it was held that the physician’s report is conclusive as to medical questions if neither party files exceptions thereto. However, in its order appointing Dr. Miller, the Board directed that his deposition be taken after his report was filed, and at the taking of the deposition appellant’s counsel thoroughly cross-examined Dr. Miller, a procedure which we think was equivalent to the filing of exceptions to the physician’s report. The cross-examination of Dr. Miller revealed that the 15% permanent disability he found was functional disability and not occupational disability. In its opinion on Full Board Review the Board commented, “Dr. Miller found the plaintiff to be disabled 15% to the body as a whole and-thought he would have had no disability except for a pre-existing condition that was aroused in action by this accident. There has been no objections filed to Dr. Miller’s report by either party which compels us to be governed by the findings of Dr. Miller, the disinterested physician. In accordance therewith it is the conclusion of the Board that the plaintiff has a 15% permanent disability to the body as a whole because of a pre-existing weakness and disposition to this type of injury.” It gave an award accordingly, chargeable wholly to the Special Fund.

It is obvious that the Board thus failed to properly translate the functional disability into terms of occupational disability —the degree of disability suffered by the claimant in performing the usual duties of his vocation. In October, 1964, the same month in which the Board issued its ruling in this ease, we wrote in Kilgore v. Goose Creek Coal Company, Ky., 392 S.W.2d 78, it is necessary for the Board to perform that function, summarizing, “Percentage of physical limitation is a medical question; percentage of disability is not.” See, also, Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905, and Congleton Brothers, Inc. v. Farmer, et al., Ky., 399 S.W.2d 722, this day decided.

The judgment is reversed and the cause remanded to the Workmen’s Compensation Board for proceedings consistent herewith.


text:
    CONGLETON BROTHERS, INC., Appellant, v. Willard FARMER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    J. W. Craft, Jr., Craft & Haynes, Hazard, for appellant.
    Edward Jackson, Beattyville, Earl Ash-craft, Irvine, for appellees.
   WADDILL, Commissioner.

The Workmen’s Compensation Board awarded appellee, Willard Farmer, compensation benefits based upon a finding that he had sustained fifteen percent permanent partial disability from a work-connected injury. Upon an appeal pursuant to KRS 342.285, the Lee Circuit Court set aside the award on the ground that there was insufficient evidence to support it. The circuit court then reviewed the evidence presented before the Board, made a new finding that Farmer was totally and permanently disabled by reason of his work-connected accident and entered a judgment in favor of Farmer against his employer, Congleton Brothers, Inc., for maximum compensation benefits provided by KRS 342.095, subject to a credit for compensation already paid. Congleton Brothers, Inc., has appealed to this Court contending that the finding and award of the Board were authorized by the evidence, hence, the judgment of the circuit court is patently erroneous.

The only question for the Board to determine was the extent and duration of Farmer’s disability. The record reflects that Farmer was 43 years of age, had worked for Congleton Brothers, Inc., for 16 years performing manual labor, had sustained a back injury at work which required surgery for the removal of a disc, had returned to work for about two months and had ceased working because of severe pain in his back.

Although the lay testimony uniformly indicated that Farmer was physically unable to perform heavy manual labor, the medical testimony concerning the extent of his disability was contradictory. The testimony of three physicians tended to show that Farmer could not perform hard manual labor while two physicians opined that his functional disability was 10-15 percent and that he was able to return to work. Under these divergent opinions the Board fixed Farmer’s occupational disability at IS percent. In making this determination it is quite possible that the Board, was unduly influenced by the expert medical opinions concerning his functional disability in contradistinction to his occupational disability. We consider it appropriate to repeat the admonition given in Kilgore v. Goose Creek Coal Co., Ky., 392 S.W.2d 78, that, while a medical examiner should evaluate the impairment of bodily function, it is a legal or administrative task to evaluate occupational disability. As stated in that case:

“ * * * . Whatever may be the degree of physical impairment established by the medical testimony, the board must make its own estimate, from the evidence as a whole, of whether and to what degree that impairment actually disables the claimant from performing the duties of his occupation. Percentage of physical limitation is a medical question; percentage of disability is not.”

Also see, Deby Coal Co. v. Caldwell, Ky., 383 S.W.2d 905.

Answering the question presented on this appeal, we find ample evidence to justify the findings and award of the Board even though the award appears to us to be conservative. The evidence introduced on behalf of Farmer was apparently not as convincing to the Board as the expert medical evidence introduced on behalf of Congleton Brothers, Inc., to the effect that Farmer was still able to perform manual labor. The making of this determination was not one of law, but was rather one within the exclusive prerogative of the Board as fact finder. Inasmuch as the award of the Board is supported by substantial evidence we must declare the judgment of the circuit court erroneous.

The judgment is reversed with directions to set it aside and enter a new one affirming the award of the Board.