author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. James Samuel HAYES, Appellant.
    No. 51041.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Taken as submitted by appellant.
   HIGGINS, Commissioner.

James Samuel Hayes was found guilty by a jury of stealing a motor vehicle, a felony. Section 560.161, RSMo 1959, V.A. M.S. After finding that defendant had been convicted and sentenced previously for the felony of grand larceny in accordance with Sections 556.280 and 556.290, RSMo 1959, V.A.M.S., punishment was fixed by the court at imprisonment in the penitentiary for a term of six years. Sentence and judgment followed and defendant has appealed.

Appellant has filed no brief so we review assignments of error properly preserved in the motion for new trial. State v. Kukovich, Mo., 380 S.W.2d 324, 325 [1].

The evidence adduced by the state was that George Calderon of 2434 Mont-gall, Kansas City, Jackson County, Missouri, was the owner of a 1957 light blue, two-door, Ford automobile; that on February 22, 1964, at approximately 6:30 p. m., he parked the car in front of his home; that at about 8 p. m. he saw that the car was gone. He reported the loss to the police about 9 p. m., and about two hours later the police notified him that the car had been found. He identified the car on February 24, 1964, in a demolished condition. He did not know appellant and had not given him or his codefendant permission to take the car. Around 10:35 to 10:40 p. m., Patrolman James Frentrop of the Kansas City Police Department responded to a call to an accident on Southeast Freeway at 23rd Street. He saw the Ford, which was later identified as Calderon’s, lying on its back (top) in a wrecked condition. He also saw that an off-duty officer was holding a gun on appellant and his companion. Appellant stated to him that he was driving the car. Later on he changed this story to say that a Wilson whom he had met at Green Duck Tavern was the driver, and that he was only riding in the car. Patrolman Frentrop described the area as having chain link fences 8 to 10 feet high on both sides of the freeway. He did not see the accident or who had been riding in the car. He said that appellant had a strong odor of alcohol on his breath but was not intoxicated. William Allison, a police accident investigator, also went to the scene at about 10:40 p. m. He said that appellant told him at the scene that a Mr. Wilson had been the driver but later, at the police station, nodded his head “Yes” to a question whether he had been driving. Detective James K. Moore questioned appellant on February 23, 1964, at which time appellant denied stealing the car and accused William Wilson of having the car and being the driver at the time of the accident. Moore followed this accusation through an investigation and interrogation of Wilson, after which he released Wilson without charge. Appellant, through his witnesses, claimed an alibi for the time from 6 to 9 p. m., and, through his codefendant, that Bill Wilson (deceased at time of trial) had the car, invited appellant to ride and, after wrecking the car, somehow got out and ran away. Don Holt testified in rebuttal that he was driving on Southeast Freeway about 10 p. m., February 22, 1964, when he heard a screeching noise approaching from his left and a blue car shot past, cut in front of him, and then flipped over and skidded on its top. He went to the car and tried to open the doors but could not do so because they were stuck. He saw only two men in the car and did not see anyone run from the car. The car was the one identified as belonging to Calderon. Obviously the jury disbelieved appellant’s theory, and the recited evidence supports the charge. State v. Williams, Mo., 343 S.W.2d 58.

In his motion for new trial appellant claims the court erred in receiving testimony from the rebuttal witness, Don Holt. In making this point he concedes that the law in Missouri is that a rebuttal witness does not have to be endorsed on the information. State v. Malone, Mo., 301 S.W.2d 750, 758 [25]. He contends, however, “that this witness was not a rebuttal witness, and did not rebut any of the defense testimony.” In State v. Odom, Mo., 353 S.W.2d 708, 711 [4], we said: “ ‘It is a well settled rule * * * that, where either party introduces part of an act, occurrence, or transaction, * * * the opposing party is entitled to introduce or to inquire into other parts of the whole thereof, in order to explain or rebut adverse inferences which might rise from the fragmentary or incomplete character of the evidence introduced by his adversary, or prove his version with reference thereto * * *.’ 22A C.J.S. Criminal Law § 660c, pp. 655, 657, 658.” The scope of rebuttal testimony was stated in State v. Arrington, Mo., 375 S.W.2d 186, 195 [21], as being “ ‘ * * * largely within the sound discretion of the trial court, and, unless the court has abused its discretion, or a defendant’s rights are prejudicially affected, an appellate court will not reverse on that ground, even though the evidence in question is not strictly rebuttal evidence.’ ” Examination of the previously noted testimony of witness Holt shows that it tended to counteract or disprove the statement that Bill Wilson had gotten out and run away from the car before the arrest of appellant was made because he had the car under his observation while it was still moving and after the time it came to rest on its top with its doors stuck. Thus, the evidence was proper rebuttal which did not require endorsement of the witness; no abuse of discretion occurred thereby, and the point is without merit.

Appellant’s next four points are, because of their lack of detail and particularity, insufficient to preserve anything for appellate review under Criminal Rule 27.20, V.A.M.R. The assignments, with authority for holding them insufficient, are: “2. The verdict against the defendants is against the evidence, the weight of the evidence, and the law and evidence in this case,” State v. Ivory, Mo., 327 S.W.2d 870, 871 [1]; “3. The verdict of the jury is based upon prejudice against the defendants, and is contrary to the evidence in this case,” State v. Kukovich, supra, 380 S.W.2d l. c. 326 [6-8]; “4. The verdict against the defendants is the result of the jury disregarding and ignoring the evidence and the instructions in the case,” State v. Anderson, Mo., 375 S.W.2d 116, 120 [12, 13]. Appellant’s fifth point is “That these defendants were denied a fair and impartial trial for each and all of the reasons here-inbefore set forth in this motion.” None of the previous points presented a ground for a new trial and, as a result, this ground is without merit.

In addition, we have examined those matters in the record for which no assignment of error is required. Criminal Rule 28.02, V.A.M.R. The information is in proper form and is sufficient; defendant was arraigned and he pleaded not guilty; the verdict is in proper form and is responsive to the issues, and the punishment fixed by the court is within legal limits; defendant was heard on his motion for new trial and was granted allocution.

Defendant had the benefit of counsel throughout his trial.

The judgment is affirmed.

HOUSER and WELBORN, CG, concur.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: BOHLING, Special Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lewis R. ELGIN, Appellant.
    No. 51011.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Robert B. Curtis, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Robert E. B. Bunch, and William J. Gil-wee, Kansas City, for appellant.
   BOHLING, Special Commissioner.

Lewis R. Elgin was charged with the murder in Jackson County of his wife in the second degree. He was found guilty of manslaughter and sentenced to confinement in the county jail for one year. §§ 559.070, 559.140. Statutory references, unless otherwise indicated, are to RSMo 1959 and V.A. M.S. He questions the indictment, the admission of testimony, the submissibility of the State’s case, and the refusal of instructions.

Defendant’s motion to quash the indictment, filed just before the trial, was overruled. He now claims error because the indictment was not signed by the prosecuting attorney, although it was signed by an assistant prosecuting attorney of Jackson County. He stresses § 545.040 and State v. Bruce, 1882, 77 Mo. 193.

Said § 545.040 (new § 1798 of RSMo 1879) reads: “Every. indictment must be signed by the prosecuting attorney, and when the grand jury return any indictment into the court the judge must examine it, and if the foreman has neglected to endorse it ‘a true bill,’ with his name signed thereto, or if the prosecuting attorney has not signed it, the court must cause the foreman to endorse or the prosecuting attorney to sign it, as the case may require, in the presence of the jury.” See also § 540.250 (§ 1795 of RSMo 1879) on certifying a true bill.

In State v. Bruce, supra, the indictment was not signed by any attorney. The court, stating prosecuting attorneys had not been required to sign indictments prior to said § 1798, also said (77 Mo. 1. c. 193) : “This section is imperative with regard to the signature of the prosecuting attorney.” And (1. c. 195) : “We are satisfied that no paper can be regarded as an indictment without the signature of the prosecuting attorney, and the certificate of the foreman of the grand jury that it is a true bill. Both are required, and neither is a mere formality that may be dispensed with.”

In State v. Falbo, Mo., 1960, 333 S.W.2d 79, 284[2, 3], we held an indictment' signed by an assistant prosecuting attorney instead of the prosecuting attorney was not invalid. However, in that case the court’s attention was not directed to § 545.040 or to the Bruce case. See State v. Swinney, 1887, 25 Mo.App. 347. We think the Falbo case was correctly ruled for several reasons.

The Constitution of 1875, Art. II, § 12, so far as pertinent here, provided: “That no person shall, for felony, be proceeded against criminally otherwise than by indictment * * RSMo 1879, p. LVI and RSMo 1899, p. 64. Said §.12 was amended November 6, 1900, to permit prosecutions for felonies and misdemeanors to be by indictment or information, making them “concurrent remedies.” Laws 1899, p. 382; Laws 1905, p. 314; RSMo 1909, p. 48 and Mo.Const.1945, Art. I, § 17 (said § 12 as amended), V.A.M.S.

We have adopted rules (V.A.M.R.) hearing on this subject matter. Consult Mo. Const.1945, Art. V, § 5.

Rule 24.01 provides: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney, and the indictment shall also be signed by the foreman of the grand jury.” Rule 24.16 provides: “ * * * An information shall be signed by the prosecuting attorney ⅝ ⅝ ⅝ iji ⅜ ⅝ ft

Rule 36.05 provides: “As used in these Rules, the term * * * ‘Prosecuting Attorney’ shall include the * *■ * associate and assistant prosecuting attorneys, * * * where, by law, they are authorized and permitted to act.”

Assistant prosecuting attorneys are authorized for Jackson County and are required to possess the same qualifications and are subject to the same penalties for neglect of duty as the prosecuting attorney. § 56.-150. They “shall attend the grand jury of the county if required so to do by the prosecuting attorney; assist and advise said body; examine witnesses and preserve their testimony,” and may sign in their own name informations in criminal cases. §§ 56.180, 56.150 and see §§ 540.130 and 540.140.

Our Rule of Jeofails provides that the proceedings on an indictment or information shall not be stayed or affected “for want of the averment of any matter not necessary to be proved; or, thirteenth, for any other defect or imperfection which does not tend to the prejudice the substantial rights of the defendant upon the merits.” Rule 24.11; § 545.030(15, 18); RSMo 1879, § 1821.

In proper instances an information charging the same offense may be substituted for an indictment defective in form or substance. Rule 24.02. Section 545.300 is the predecessor of Rule 24.02 in its application to indictments and was § 3564, RSMo 1929, which appears to have been first enacted by Laws 1925, p. 195, § 3908a.

In view of the changes in the law, an indictment should not now be held a nullify on the ground it is signed by an assistant prosecuting attorney instead of the prosecuting attorney. Compare Rule 24.01 with § 1798, RSMo 1879, now § 545.040. The assistant prosecuting attorney is presumed to have been lawfully in attendance upon the grand jury for the discharge of the prosecuting attorney’s official duties. State v. Carey, 318 Mo. 813, 1 S.W.2d 143 [1-3]; State v. Falbo, supra; 67 C.J.S. Officers § 151. The fact that no attorney signed the indictment in the Bruce case distinguishes it from this case. Apparently § 545.040 places the foreman of the grand jury and the prosecuting attorney on the same level with respect to signing indictments. State v. Mertens, 1851, 14 Mo. 94, held the requirement that the foreman certify the indictment over his signature to be a true bill was merely directory, and that it was too late after a defendant was convicted to raise the objection that the indictment had not been properly certified. The Mertens case was approved in State v. Burgess, 1857, 24 Mo. 381, 69 Am.Dec. 433. The Bruce case, notwithstanding the language there used, mentioned the Mertens and Burgess cases but did not overrule them; and they have been followed since. See State v. Majors, Mo., 237 S.W. 486, 488 [1], The constitutional provision that an accused has the right “to demand the nature and cause of accusation” (Art. I, § 18(a)) requires an indictment or information to state all the essential elements of the offense (State v. Schultz, Mo., 295 S.W. 535 [2]). The ministerial act of a prosecuting attorney in signing an indictmenc goes to the form in which the charge is presented. The substance of the offense is to be found in the body of the charge. We doubt if in any criminal trial there has been an attempt to prove as part of the merits that the prosecuting attorney signed the indictment. As.sistant prosecuting attorneys have authority to sign informations (State v. Easley, Mo., 338 S.W.2d 884[1, 2] and citations), and in-formations may be substituted for defective indictments. It logically follows that the signing of an indictment by an assistant prosecuting attorney does not now cause the indictment to become a nullity.

Under Rule 25.06 (see § 545.220) defenses and objections that can be determined without trial of the general issue are to be raised by motion before trial; and paragraph (e) thereof reads: “Any motion filed under the provisions of these Rules shall specify clearly the defense or grounds of objection relied upon by the defendant and unless it does so it shall be disregarded by the court.”

Defendant’s motion to quash the indictment charged a general violation of § 545.040 and failed to specify whether defendant’s objection involved a failure of the foreman of the grand jury to properly sign the indictment, or that the prosecuting attorney had not signed the indictment, or that an assistant prosecuting attorney signed the indictment in lieu of the prosecuting attorney. If in these circumstances the court decided to disregard defendant’s motion to quash, we are not disposed to interfere.

We perceive of no reason why an information should not be substituted for the indictment in this case. Rule 24.02; § 545.300. The better practice is to obviate questionable defects of this nature by substitution or amendment rather than risk the reversal of a judgment after the time, trouble and expense of a trial and an appeal.

Defendant says the State failed to make a case, having failed to establish that the shooting was not accidental.

Several of the State’s witnesses (defendant offered no witness) testified defendant admitted he shot his wife, Norma Jean Elgin, with a 12-gauge shotgun on December 8, 1962, stating che shooting was accidental. Mrs. Elgin died that day of the wound received. Defendant’s statements were to the effect his wife, after carrying some laundry to their automobile, returned and stood in the doorway of their home waiting for him; that he went to a closet for a shotgun he intended to “hock”; that he did not know the gun was loaded; that he got the gun, threw it in a more or less shooting position; that the gun fired and he had shot his wife. The gun, taken at the scene, had an empty or fired shell in its barrel and two loaded shells in its magazine.

There was testimony from Mr. and Mrs. Cecil Peterson, Mrs. Elgin’s parents and with whom the couple had lived for some time, and also from a neighbor at a different location, that defendant had threatened to kill his wife on several occasions.

Two officers of the Kansas City, Missouri, Police Laboratory testified they made many tests trying to make said shotgun misfire, and that they were unable to cause it to fire accidentally.

The jury was not bound by defendant’s self-serving statements that the shooting was accidental. State v. Tompkins, Mo., 277 S.W.2d 587, 590[1]. The case was for the jury.

The State, over objections, adduced evidence from two of its witnesses, to the effect each had seen an insurance policy on the life of Mrs. Elgin in which defendant was the named beneficiary. The fact that the policy was for $10,000 was also placed before the jury. There was no showing for the admission of this secondary evidence that this policy was unavailable to the State, or that it was in force and effect, or was in the possession of the defendant, or that it had been lost. State v. Tucker, 234 Mo. 554, 137 S.W. 870[1, 2]; State v. Salmon, 216 Mo. 466, 115 S.W. 1106, 1123 [3]. The State, not questioning the rule of evidence involved, would justify the admission of this testimony on the theory it was on a collateral issue immaterial to any issue in the case and not prejudicial to defendant. State v. Hicks, 319 Mo. 28, 3 S.W.2d 230, 233[9-11]. Evidence tending to show that defendant’s motive was to obtain the proceeds of policies of insurance on the life of his wife is on a material issue and admissible if properly presented. 40 C.J.S. Homicide § 235; State v. Hancock, 340 Mo. 918, 104 S.W.2d 241, 246 [8]. The testimony should not have been admitted in the circumstances of record. Baker v. Atkins, Mo.App., 258 S.W.2d 16, 20[6] and citations; Wilson v. Motors Ins. Corp., Mo.App., 349 S.W.2d 250, 254[3].

The State submitted its case under instruction No. 2 on murder in the second degree and instruction No. 3 on manslaughter. The defense was the shooting was an accident. Defendant alleges error in refus-ng his instructions Nos. 10 and 11, which he states submitted the converse, respectively, of instructions Nos. 2 and 3. The State’s said instructions carried the clause that unless the jury found the facts to be as there stated, the defendant was to be acquitted of the charge therein submitted.

The State discusses defendant’s contention only with respect to its instruction submitting manslaughter, defendant not having been convicted of murder in the second degree. See State v. Brookshire, Mo., 353 S.W.2d 681, 689 [22], cer. den. 371 U.S. 67, 83 S.Ct. 155, 9 L.Ed.2d 119.

There is no evidence of record that any provocation existed for defendant shooting his wife, and his sole defense of an accidental killing negatives the theory of a justifiable homicide. State v. Dodson, Mo., 29 S.W.2d 60, 62[4]; State v. Foster, Mo., 338 S.W.2d 892, 896; State v. Baker, Mo., 277 S.W.2d 627, 629[3-5].

Defendant’s refused instruction No. 11 required the jury to find before convicting defendant of manslaughter, the State had established beyond a reasonable doubt that “defendant ⅜ * ⅜ intentionally shot and killed the deceased and that the shooting of the deceased was not done accidentally.” The State says said instruction was not a converse of the State’s manslaughter instruction in that a finding that “defendant * * * intentionally shot and killed the deceased * * * ” was not a necessary element of the offense of manslaughter under the evidence in this record. This position, we think, is ordinarily correct; but in this case the State’s manslaughter instruction required the jury to find beyond a reasonable doubt that defendant “ * * * wil-fully, and feloniously did make an assault” upon deceased with a “shotgun * * * and shot and killed” deceased. The instructions, for the purposes of the case, told the jury: “ ‘Wilfully’ means intentionally, not accidentally.” The fault is common to each instruction and the State is in no position to take advantage of this claimed error to justify the refusal of defendant’s instruction No. 11. Consult State v. Morris, Mo., 307 S.W.2d 667, 674[7]; State v. Brown, Mo., 62 S.W.2d 426[4]; Arnold v. Fisher, Mo.App., 359 S.W.2d 602[8].

Defendant, as we read this record, was guilty of murder in the second' degree; or he was guilty of manslaughter in that he was culpably negligent in the killing of his wife without malice and without premeditation; or he should be acquitted, the killing being an accident and excusable. See the definition of manslaughter in § 559.070. The statutes do not define voluntary and involuntary manslaughter but, so far as applicable to this record, they may be distinguished in that the former embraces an intentional killing (40 C.J.S. Homicide § 40) while the latter extends to an unintentional killing while culpably negligent (Id., §§ 55, 62). Consult, among others, State v. Morrison, 104 Mo. 638, 16 S.W. 492; State v. Grote, 109 Mo. 345, 348, 349 (II), 19 S.W. 93; State v. Duncan Mo., 316 S.W.2d 613, 615 [3 et seq.]; State v. Foster, supra; State v. Baker, supra [7, 8].

State v. Boyd, 354 Mo. 1172, 193 S.W.2d 596, 597[1], is to the effect a defendant must formulate and offer a proper converse instruction if he wants one given. See State v. Engberg, Mo., 377 S.W.2d 282, 286[11]. The parties appear agreed that, as stated in the Engberg case: “[T]he rule now seems established that a defendant is ordinarily entitled to have given a correct instruction submitting the converse of the state’s main instruction; but, if the given instructions fully and fairly cover the same subject matter contained in defendant’s converse instruction, it is not prejudicial error to refuse the instruction offered. * * * [Citations omitted.]” We need not further develop this issue.

The judgment is reversed and the cause is remanded for error in the admission of testimony.

PER CURIAM:

The foregoing opinion by BOHLING, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Kenneth Lowell GORDON, Appellant.
    No. 50757.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.

      William H. Costello, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, William O. Sawyers, Jr., Sp. Asst. Atty. Gen., St. Joseph, for respondent.
   WELBORN, Commissioner.

Kenneth Lowell Gordon appeals from a judgment and sentence of the Jackson County Circuit Court of ten years’ imprisonment on a charge of assault with a deadly weapon with malice. Section 559.180, RS Mo 1959, V.A.M.S.

On October 16, 1963, Steven Wayne Belr lew, an employee of the Automatic Canteen Company, was driving a truck used to service vending machines. He stopped at the Western Auto Company building at 20th and Grand in Kansas City and entered the building to service machines. Upon returning to his truck, he saw a man whom he identified as Kenneth Lowell Gordon standing near his truck. Gordon pulled a gun and ordered Bellew to “come here.” Bel-lew entered the truck as did Gordon. At Gordon’s direction Bellew lay face down on the floor of the truck and then another person entered the vehicle. After obtaining the keys from Bellew, the other person drove the truck away. Gordon asked Bel-lew for the money and Bellew gave Gordon a key to a safe located in the floor of the truck. After the truck had been driven a short distance to the vicinity of 20th and Walnut Streets, it was stopped. One of the two other persons in the truck reached in Bellew’s pocket and removed his billfold. The person who did so took Bellew by the right shoulder, pulled him over on his side and shot him through the chest just over the heart. The two intruders then left the truck. Bellew staggered from the vehicle and sought assistance. Bellew recovered from the injury he sustained.

On October 26, 1963, Gordon was arrested in Omaha, Nebraska, and was returned to Kansas City where Bellew identified him in a police line-up as his assailant. The charge on which this conviction was based was subsequently filed.

On this appeal two matters are urged as error. The first relates to the interrogation of two state witnesses regarding prior statements which they allegedly made. The second relates to the introduction in evidence of a pistol identified by a ballistic expert of the Kansas City Police Department as having been the weapon used to fire the shot which injured Bellew. With respect to the first matter, a member of the Omaha Police Department testified concerning Gordon’s arrest in that city. He also testified that Gordon told him he had been accompanied to Omaha by James Fisher, Charles Garrett and a Donald Henderson.

Another witness for the state testified that, around the time of the crime, he observed a new model Pontiac convertible bearing Michigan license FL-8399 in the vicinity of 20th and Grand. He stated that he saw four persons in the automobile at one tiipe and at another time two persons. He could not identify Gordon as being one of the occupants of the car, but he did testify that the occupants were colored. Gordon is a Negro.

The state called as a witness one Walter Fisher. Although the transcript is not clear, Walter Fisher may have been the same person as James Fisher who had accompanied Gordon to Omaha. After testifying to his name, his address and the fact that he knew Gordon, Fisher was asked a series of questions regarding his ownership of a 1962 Pontiac convertible and whether or not Michigan license FL-8399 had been attached thereto. In response to all of these inquiries the witness refused to answer “on the grounds I might tend to incriminate myself.” The prosecuting attorney had marked as an exhibit a statement purportedly given by the witness to a police officer at some prior date. The witness declined to identify the statement again on the grounds it might tend to incriminate him. The prosecuting attorney proceeded to read the questions found in the statement together with the answers. Following each question and answer, the prosecutor asked the witness, “Did you make that answer to that question?” to which the witness to a series of some six preliminary questions replied, “I refuse to answer on the grounds I might tend to incriminate myself.” Thereupon the prosecutor asked: “Was this question asked of you: ‘Question: Are you familiar with a 1962 Pontiac convertible, aquamarine col- or, bearing Michigan license FL-8399?’ and did you give this answer: ‘Yes, this is my license number, I had on my car on October 16, 1963.’ Did you give that answer to that question?” “A. I refuse to answer on the grounds I might tend to incriminate myself.” The defendant’s attorney objected to this line of questioning. The court stated that he felt that there were some matters in the statement which should be omitted in the questioning, but advised the prosecuting attorney that he might inquire as to the questions which the court had marked. The defendant’s attorney restated his objection, which was overruled, and a continuing objection was made to further questioning. After repeating the question last referred to, the prosecuting attorney asked the witness : “I want to ask you now, was this question asked of you: ‘Were you in possession of your car on that date ?’ and did you give this answer, ‘No, I had loaned it to Donald Henderson, who lives in the 24 hundred block on Troost’?” ' The witness again refused to answer on the grounds that it might tend to incriminate him. Whereupon the prosecuting attorney asked the following question: “Was also this question asked of you: ‘Question: I am showing you two 1963 Michigan license No. FL-8399 and ask you if these are the license plates that were on your 1962 Pontiac on October 16, 1963, when you loaned it to Donald Henderson about 11:00 a. m. on that date.’ And did you give this answer to that question: ‘Answer : Yes.’ ” Again the witness refused to answer on the grounds of self-incrimination. The witness was thereupon excused.

Another state’s witness, Cynthia Wynn, after giving her name and address, likewise refused to answer further questions on the grounds of self-incrimination. A similar procedure was followed by the prosecuting attorney who read questions propounded to the witness and answers she had allegedly given in a previous interrogation by the prosecuting attorney in his office prior to the trial. When asked whether or not she had made such answers to the questions, in each case she declined to answer on the grounds of self-incrimination. This witness’s statement related primarily to her possession of a pistol which the defendant had given her sometime after October 16, 1963. Another state’s witness had testified that Cynthia Wynn had given her a pistol around October 29. This pistol was taken from the latter witness upon'her arrest for shoplifting and was subsequently identified as the pistol used in the assault on Bellew.

Subsequently the court, apparently on reading the prior statements of the witnesses, concluded that by giving such statements the witnesses had waived their right to claim the privilege against self-incrimination. He so advised counsel. Cynthia Wynn was subsequently recalled as a witness and, upon claiming the privilege against self-incrimination, was directed by the court to answer the questions propounded to her. She did so, although obviously in a reluctant fashion, and testified to little, if any, of benefit to the state. She did testify that Gordon had given her a pistol although she could not identify the weapon introduced in evidence as the pistol which Gordon had given her. She also testified that she had returned the pistol to Gordon prior to the time that he went to Omaha.

On this appeal appellant contends that the procedure employed in the interrogation of witnesses Fisher and Wynn denied the defendant the right of confrontation of the witnesses against him in violation of Section 18(a) of Article I of the Constitution of Missouri, 1945, V.A.M.S., and the Sixth and Fourteenth Amendments to the Constitution of the United States.

The state on this appeal concedes that the procedure followed in the trial court “could probably he held erroneous.” Of this we have no doubt. A party calling a witness when surprised by affirmative evidence which aids the opposing party may cross-examine that witness to show that he had given former statements contrary to his testimony. However, where a witness merely fails to testify in favor of the party calling him, he cannot he cross-examined or impeached by such party. Randazzo v. United States, 8 Cir., 300 F. 794. See State v. Gregory, 339 Mo. 133, 96 S.W.2d 47. Here, as to the witness Fisher, there is no basis for his impeachment by use of the prior inconsistent statements because he gave no testimony. He merely refused to testify. It is obvious that the object of the examination by the use of the prior statement given by the witness was not to impeach the witness but to obtain the benefit of the statements which the witness had previously made. That this is a denial of the constitutional right of a defendant to confront witnesses against him is clear under the recent decision of the United States Supreme Court in Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934.

The state would avoid the effect of the ruling in that case on the grounds that no prejudice resulted to the defendant from the matters contained in the statements of Fisher. However, examination of the entire record convinces us that the matters were significant and were relied upon by the state to establish the guilt of the appellant. The state sought to show that the appellant was a friend of Henderson and that Henderson had Fisher’s automobile in the vicinity of 20th and Grand at the time of the crime. That the state considered this evidence significant is pointed out by the prosecuting attorney’s closing argument wherein he stated: “Sergeant Hug testified. I told you in my opening statement I was bringing him down here for one purpose, to show to you, give you evidence that this defendant and Henderson ran together. We heard this not only from Sergeant Hug but we also heard it from the defendant himself. He took the stand and he told you that he went to Omaha with Henderson. Why? Because Henderson is the one that had the car.” He further argued: “Fisher is the one that had the car with the license plate on it, FL-8399, that was seen in the area of the shooting by Mr. Curd, loaned the car to Henderson, all three of these boys went to Omaha together.” Further he argued: “Anyway, Tommy Curd told you that he saw this late model Pontiac convertible with the license plate Michigan FL-8399 right down there in the area. This is the same type of car that Fisher says he loaned Henderson. This is the same license plate that Fisher had on his car. So we know the car was there. So this all ties it together. This shows the fact that at least as far as Fisher says and tells you, that one of this boy’s running mates had a car.” (Emphasis ours).

Evidence that Fisher owned a Pontiac convertible bearing the license plate in question and that he loaned it to Henderson can be found only in the answers given by Fisher to the statement used in examining him. Even had Fisher testified otherwise, as he did not, and the prior statement had been used to impeach him, the matters stated in the prior statement would have no probative value of such matters stated and could be used only for the purpose of impeachment. State v. Kinne, Mo.Sup., 372 S.W.2d 62, 67-70(6).

Here the state obviously attempted to use the statements of Fisher as evidence despite the objection of defendant’s counsel. The repeated reference to the matters referred to in the prosecuting attorney’s closing argument clearly shows that they are not, as the state contends on the appeal, matters of no significance. They were used to prove the presence of the defendant at the vicinity of the offense and the use of such statements as evidence over the objection of defendant’s counsel is clearly erroneous.

As for the second objection on this appeal regarding the identification of the pistol, the defendant testifying in his own behalf admitted that he had given the pistol to Cynthia Wynn. Teresa Johnson in whose possession the pistol that was introduced in evidence was found testified that she had received the weapon from Cynthia Wynn. Ballistic tests showed that the pistol introduced in evidence was the one which fired the shot which injured Bellew. When Cynthia Wynn finally testified, she could not identify the weapon introduced in evidence as the one which the defendant had given her, but stated she had returned that weapon to the defendant prior to his going to Omaha.

On this state of the record we would not declare that the admission in evidence of the pistol was error. It was identified by a ballistic expert as the weapon which fired the shot. Teresa Johnson testified that she had obtained the weapon from Cynthia Wynn. Cynthia Wynn was called as a witness by the state although she was obviously a very reluctant one. She admitted she had received a weapon from the defendant, but had returned it to him. The state was not bound by her testimony that the weapon had been returned to the defendant. State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 804-805(4, 5). Under all of the circumstances the jury could reasonably have believed that Cynthia Wynn had, as Teresa Johnson testified, given the weapon to her and in view of testimony that a weapon had been given to Cynthia Wynn by the defendant that such weapon was the weapon actually introduced in evidence. State v. Lindner, Mo.Sup., 282 S.W.2d 547, 552.

The judgment is reversed and the cause remanded for a new trial.

HOUSER and HIGGINS, CG, concur.

PER CURIAM.

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


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Ralph Glen KACKLEY and Gaylord Robert Kackley, Appellants (four cases).
    Nos. 50927-50930.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.

      Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
    Taken as submitted by appellants.
   HENLEY, Judge.

These are appeals in forma pauperis by defendants, prisoners in the custody of the Warden of the Missouri Penitentiary, from orders and judgments denying their joint motions to vacate and set aside prior sentences and judgments of conviction in each of four criminal cases. The allegations of the motion filed in each case are identical and identical orders were entered in each. The issues being the same, on motion of respondent, the four cases were consolidated for briefing and argument. Defendants were permitted to and did appear in this court in person and presented oral arguments in their own behalf. On consideration of the transcript of the record in each case, the brief of respondent and oral arguments we determine that one opinion will suffice to dispose of the issues in the four cases.

In each of four amended informations filed October 29, 1963, the defendants were jointly charged under the Habitual Criminal Act with convictions of prior felonies and in separate counts with (1) forgery of a check, and (2) uttering a forged check. On the same date, Count I (forgery) of each information was dismissed by the prosecuting attorney and each of the defendants admitted the prior convictions and entered a plea of guilty to each charge of uttering a forged check. The cases were numbered 9663, 9664, 9665 and 9666 in the trial court. In case No. 9663 Ralph Glen Kackley was sentenced to confinement in the custody of the State Department of Corrections for seven years; the sentence of Gaylord Robert Kackley was for a term of six years. In cases numbered 9664, 9665 and 9666, each defendant was sentenced to a like term as that imposed on him in Case No. 9663, the sentence in each to run concurrently with his sentences in the prior numbered cases.

Seven months later defendants filed their joint motions to vacate and set aside the above-mentioned sentences and judgments under and pursuant to Rule 27.26. (All references to rules are to Supreme Court Rules and V.A.M.R.) The orders and judgments of the trial court resulting in these appeals were made upon a review by it of the motions, files and records of the cases without hearing evidence, the court being satisfied from such review that the defendants were not entitled to the relief prayed. The procedure followed by the court was in accord with the provisions of Rule 27.26. State v. Kitchin, Mo., 300 S.W.2d 420, 421 [2], certiorari denied, 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1429.

This court reviews the matter de novo. Rule 28.05.

From the morass of entangled allegations of defendants’ motions we have extracted these as the substance of their contentions in the trial court and here: that they were denied due process of law in that (1) after sentencing, their personal property was levied upon and sold under an execution for costs accrued in these cases, (2) each information was insufficient because it did not inform them of the nature of the charges against them and was duplicitous, and, (3) they were denied the assistance of counsel.

The allegation that defendants’ property was levied upon and sold under an execution for costs does not state a ground for relief under Rule 27.26. Somewhat allied to this allegation is the contention that defendants’ automobile and suitcases were searched and their property seized after their arrest and outside their presence without a search warrant. Perhaps the only justification for saying that the allegation and contention are somewhat allied is their close proximity within the motion although there is the rather vague suggestion that the sheriff had no right to seize the property under execution because he was not armed with a search warrant as well as the execution. There is no merit in the suggestion. It is not alleged or contended .that evidence was seized by an illegal search and used against them. However, they do say, in which they describe as “Amendments to Appeal” forwarded to this court and lodged in the files since the appeal was perfected, that the articles taken from their automobile “were to be used as evidence.” (Emphasis added.) But that would avail them nothing even had it been alleged in their motion to vacate for it is insufficient to raise any issue cognizable under Rule 27.26. Had evidence thus acquired been used against them, the proper procedure to challenge the validity of the method used to obtain that evidence is by a timely motion to suppress the evidence; not by a collateral attack on the judgment. State v. Howe, Mo., 364 S.W.2d 546, 547 [3], certiorari denied, 373 U.S. 943, 83 S.Ct. 1552, 10 L.Ed.2d 698.

The allegations of defendants’ motions that the informations are insufficient and do not inform them of the charges against them because they are “misleading, ambiguous and untruthful recital [s] of the facts” are conclusions and are insufficient to state grounds for relief under Rule 27.26. The motion must state facts sufficient to establish grounds for the relief contemplated by the rule; not mere conclusions. State v. Ninemires, Mo., 306 S.W.2d 527, 530 [8]; State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 807 [5]. As to the charge that the informations were duplicitous the transcript of the record shows that each information was originally in two counts, the first count charging forgery and the second count charging uttering of a forged check. The prosecuting attorney dismissed the first count leaving the second count charging “uttering” only. There was no other charge in the second count, either compatible or incompatible with “uttering”; the information was not duplicitous. In reviewing the matter de novo we have examined carefully the information in each case and find that it contains all essential averments to charge an offense under Section’561.011 (3) RSMo 1959, V.A.M.S.

The final contention of defendants is that they were denied the assistance of counsel. They say that because of this and their alleged ignorance of court proceedings they were somehow taken advantage of by the court and the prosecuting attorney. This is not supported by the record which affirmatively refutes the contention. The cold record shows, and their appearance in this court confirms, that they were not ignorant of court proceedings nor of their rights, but that they have, through experience, acquired considerable practical knowledge of criminal procedure. The transcript contains a full account of what transpired on the date defendants entered pleas of guilty to these charges. The record shows that for their own reasons they did not want either their own employed counsel or court-appointed counsel to represent them. Their oral argument in this court indicated that their reason was that they were of the opinion they could do as well or better for themselves without counsel. When the cases were first called, defendants appeared with counsel of their own selection who asked and were granted leave to withdraw for the stated reason that defendants were dissatisfied with their services. After a recess granted on defendants’ request for time to talk with the prosecuting attorney, they indicated that they desired to plead guilty. But the court would not accept their pleas without first explaining to them and making certain they understood all their rights. The able and conscientious trial judge then took considerable time and meticulous care to explain to each defendant the nature of the charges against him and the range of the punishment provided therefor, that each had the right to employ other counsel and time in which to do so, and that the court was willing to and would appoint counsel to represent him and allow time in which to prepare his defense. It is apparent that defendants understood these explanations To each of the court’s inquiries each defendant replied unequivocally that he did not desire to employ other counsel and that he did not want the court to appoint counsel. They said they were guilty and wanted to so plead, and indicated that the sooner they could get this over with, the better. The court found that the defendants intelligently waived their rights to the benefit of counsel, and that failure to appoint counsel under these circumstances would not result in an injustice to defendants. With this we agree. On this their final contention, they have again alleged only conclusions. It was aptly said in State v. Glenn, Mo., 317 S.W.2d 403, 408 [5,4], “It was never contemplated by the adoption of Supreme Court Rule 27.26 that a prisoner in custody may allege in a motion, by way of conclusions which are directly in conflict with what is shown by the files and records, that he was so ‘ignorant’ at the time he entered his plea of guilty and expressly waived counsel that he did not know what he was doing, and thereby require the state to transport him from his place of confinement to the circuit court which imposed sentence in order to hold a hearing on that issue”, but he is required “to allege facts, as distinguished from conclusions, which if true would authorize a finding that he was not competent to waive intelligently his right to assistance of counsel.”

Defendants’ motions to vacate in cases numbered 9663, 9664, 9665 and 9666 in the trial court, considered in connection with the files and records of each case, show to the satisfaction of this court, as they did to the trial court, that defendants are entitled to no relief. Accordingly, the orders and judgments of the trial court in each of these cases are affirmed.

All concur.

      . The four informations are identical with the exception of the dates, amounts, names of the makers and payees of the checks and the names of the persons defrauded; three are drawn on the same hank and one on another.


author: HILL, Judge.

text:
    Jack HENRY, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 28, 1965.
    Jack Henry, Jr., pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
   HILL, Judge.

On September IS, 1964, appellant filed motion in the Crittenden Circuit Court under RCr 11.42. On November 18, 1964, the trial court overruled this motion without a hearing, from which order this appeal is prosecuted.

On June 30, 1964, the appellant was tried and convicted under a 2-count indictment charging him with possession of burglary tools and storehouse breaking. He was given three years on the first count and two years on the second. He was represented at the trial by counsel of his own selection. No appeal was prosecuted.

This attempt in forma pauperis relies on the alleged insufficiency of the evidence to sustain the verdict. His complaint is that he was convicted wholly on the testimony of an accomplice without any evidence to support it. This question could have been presented by direct appeal from his original conviction but is not the subject of review under RCr 11.42.

In King v. Commonwealth, Ky., 387 S.W.2d 582, this Court, in an effort to assist all concerned with the proceedings under RCr 11.42, set out certain types of contentions which may not be entertained under RCr 11.42. The first type so listed was “[t]hat the evidence at the trial was insufficient to justify conviction.”

On the authority of the King case, supra, and the cases therein cited, the judgment is affirmed.


author: STEWART, Judge.

text:
    DEPARTMENT OF ECONOMIC SECURITY, DIVISION OF PUBLIC ASSISTANCE, Earle V. Powell, Commissioner, Appellant, v. Arvil Lee MILLS, Appellee.
    Court of Appeals of Kentucky.
    May 28, 1965.

      Paul E. Tierney, Forest Smith, Frankfort, for appellant.
    J. W. Jordan, Barbourville, for appellee.
   STEWART, Judge.

This is an appeal from a judgment of the Knox Circuit Court that set aside an order of the Appeal Board of the Department of Economic Security, Division of Public Assistance. The order denied aid to Arvil Lee Mills for his dependent offspring; the judgment found he was totally and permanently disabled and ordered that he receive public assistance for his child.

Appellee has not filed a brief and we have elected to dispose of this case in accordance with Rule 1.260, subsection 1, paragraph (c), that is, “Accept the appellant’s statement of the facts and issues as correct.”

Appellee, then 29, initially applied for public assistance for his only daughter on November 8, 1961. Based upon medical reports made at the time, he was found to be eligible for public assistance. He was placed on the rolls and received aid from January 1, 1962, until July 12th of the same year. Payments to him were stopped after the latter date because the Appeal Board concluded, as a result of an extensive investigation, that his incapacity to work no longer existed.

A reapplication dated October 24, 1962, was denied by the Appeal Board on August 6, 1963. This denial was primarily premised upon the medical opinions of two Lexington specialists who had been directed to examine Mills. Mills’ complaints in his application were listed as duodenal ulcer and osteoarthritis of the right knee, which' he contended disabled him so he could not work at a gainful occupation. Dr. Eugene Q. Parr, who is associated with the Lexington Clinic, X-rayed his stomach and duodenum and found no trace of ulceration or other lesion. Also, he stated that X-rays of the knee failed to reveal any arthritis.

Dr. Donald I. George, a psychiatrist, gave Mills extensive psychophysiologic tests and came up with the diagnosis: “This man has not made a satisfactory vocational adjustment when there was anything more than minimal stress in the past. He has lacked drive and aggressiveness and has passively drifted along. Despite this, I suspect that he does more than he will admit and at his age I do not see how he can be written off as a disabled person.”

The question before us is whether the Knox Circuit Court, in its review of the record in this case, erred in reversing the Appeal Board’s order which determined, upon the basis of the two medical reports, that Mills had ceased to be eligible for aid for his dependent child. KRS 205.230(5) (a) restricts a review in circuit court, in a case such as the one before us, to a determination of whether there was any substantial evidence that supports the finding of the Appeal Board. See also Powell v. Bailey, Ky., 376 S.W.2d 532.

As shown above, the evidence before the Appeal Board discloses that medical specialists stated, after objectively examining Mills, that he was capable of returning to gainful employment. The burden of proving that he is unable to work and earn a living for his family rested upon him. This burden was not sustained by him.

The mere fact that an able-bodied father lacks drive and aggressiveness and has been content merely to drift along is insufficient justification for absolving him of his statutory duty to support his offspring and for rewarding him with a monetary grant at the public expense.

The circuit court went beyond its scope of review when it resolved the conflicting probative evidence contrary to the Board’s conclusion. This was error. Powell v. Bailey, supra.

Wherefore, the judgment is reversed with directions to enter a new one sustaining the order of the Appeal Board,


author: DAVIS, Commissioner.

text:
    CHAIN BELT COMPANY, Appellant, v. COMMONWEALTH of Kentucky, DEPT. OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    March 19, 1965.
    Rehearing Denied July 2, 1965.
    James W. Stites, James W. Stites, Jr. (Stites, Peabody & Helm) Louisville, for appellant.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., James J. Shannon, .Jr., and W. R. Patterson, Jr., Dept, of Highways, Frankfort, for ap-pellee.
   DAVIS, Commissioner.

This condemnation proceeding presents the question whether the appellant con-demnee is entitled to recoup the expenses it incurred for removal and relocation of its machinery and equipment from the condemned property. The trial court, by dismissing appellant’s appeal from the Jefferson County Court, effectively determined that the expenses incident to removal and relocation of the machinery and equipment are not compensable.

Appellant had its entire operation — office, laboratory and factory — at its site at Jackson Street and River Road in Louisville. The plot contained about 4½ acres, and was considered by appellant as “highly satisfactory and quite ample for necessary expansion.” The appellee Department of Highways elected to acquire the appellant’s site incident to certain interstate highway construction. The Department and appellant agreed that $475,000 is the fair market value of the property acquired (the entire tract was taken). However, appellant insisted that in addition to that sum it should be awarded a sum equal to its actual expense in removing and relocating its machinery and equipment from the condemned site. By appropriate judgment in the Jefferson County Court in this condemnation proceeding, the sum of $475,000 was awarded appellant for the property taken; the question as to whether appellant should recover the expenses of removing and relocating the machine: y and equipment was reserved for adjudication. The removal and relocation expenses amount to $46,193.-23; it is not contended that the sum so expended is unreasonable.

The appellant urges that §§ 13 and 242 of the Kentucky Constitution require the payment of the expenses in question. It is observed that § 13, Kentucky Constitution, provides in pertinent part: “ * * * nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.” The expression “just compensation” also occurs in § 242 of our Constitution. Appellant reasons that these constitutional sections impel the conclusion that “the property owner should be compensated for the losses he sustains as a result of the taking of his property by the State for public use.” This argument is buttressed by quotation from East Ky. Rural Electric Coop. Corp. v. Smith, Ky., 310 S.W.2d 535, wherein this Court said:

“In determining what compensation should be paid for an easement taken under the power of eminent domain, the measure is its market value to the owner of the land taken and the loss caused to him by the taking and depriving him of its use. He is entitled to just and full compensation for both.”

The quoted language is not authority for the argument. It is noted that the same opinion construes the very language as the Court’s basis for holding that the property owner is entitled to show every legitimate use of his land and “everything that affects market value.” We consider that the phrase “the loss caused to him by the taking and depriving him of its use” as used in the just quoted passage ultimately relates to the question of difference in market value, before and after the taking. This is made plain by this further quotation from the same opinion:

“In short, the appellees here were entitled to recover such sum as would equal the difference in the market value of their entire property immediately before the taking and after the easement is taken, that market value being in a large degree its value as a potential subdivision to the growing city which it adjoins.” ibid. 310 S.W.2d, p. 539.

Appellant cites Commonwealth v. Ball, 246 Ky. 584, 55 S.W.2d 413. In that opinion reference is made to evidence that the owner would have to move his house hack from 30 to SO feet, at an estimated cost of $3,600. This Court there said that this evidence was proper, as it affected “damage [s] to the remainder of the property.” It is clear, we believe, that the rationale of the Ball opinion on this point rests upon the then prevailing practice of instructing the jury to make separate findings as to the value of the land taken and the resulting damages to the land left. That precept was abandoned in Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844. There are at least two other features distinguishing the Ball case from the one at bar; in the Ball case a part of the land was taken, but here the entire tract is taken. In the Ball case the matter dealt with was a part of the freehold — realty—here we are dealing with personalty.

Appellant directs attention to Commonwealth v. Means & Russell Iron Co., 299 Ky. 465, 185 S.W.2d 960. The widening of a road made necessary the relocation of nearly 3,000 feet of water pipe line, although only 653 feet of the pipe lay within the area of the condemned easement. It was shown that the water system could not function without the relocation of the 3,000 feet of pipe. The actual cost of relocation was proven, and the Court peremptorily instructed the jury to allow the condemnee the undisputed cost. The Highway Commission contended that the cost of relocation was not compensable. This Court rejected that contention, and pointed out that the actual cost of the relocation was an appropriate means for compensating the condemnee for the “minimum damages” sustained through the condemnation of its easement. It readily appears that the Means & Russell case was another in which only a part of the property was taken; under the rule then prevalent the condemnee was entitled to resultant damage — the method used afforded a valid yardstick. We consider the case no more apposite than the Ball case, supra, and for the same reasons.

The position is taken by appellant that the United States Constitution, Fifth Amendment, is materially different from Kentucky’s §§ 13 and 242. It is said that the provisions of the United States Constitution merely require just compensation for the property and not to the owner. Monongahela Navigation Co. v. United States, 148 U.S. 312, 325, 326, 13 S.Ct. 622, 37 L.Ed. 463. The Supreme Court, as well as other tribunals in the federal system, have consistently adhered to the view that “just compensation” is for the property and not the owner. Thus, it is reasoned that Kentucky’s Constitution must be construed differently, since its language clearly states that the “just compensation” must be “made to him” (i. e. the property owner). The argument is ingenious and has found acceptance in some jurisdictions. See Jacksonville Expressway Authority v. Henny G. Du Pree Co., Fla., 108 So.2d 289; Harvey Textile Co., Inc. v. Hill, 135 Conn. 686, 67 A.2d 851; F. del Vecchio v. New Haven Redevelopment Agency, 147 Conn. 362, 161 A.2d 190; Hunter Press v. Ives, Com’r, 150 Conn. 32, 183 A.2d 842; Humble Oil & Refining Co. v. State of New York, 15 A.D.2d 686, 223 N.Y.S.2d 448; In re Ziegler’s Petition etc. v. Dake Corp., 357 Mich. 20, 97 N.W.2d 748.

The weight of authority, however, is that removal and relocation costs are not com-pensable. This fact is recognized by the Florida Court in the Jacksonville Expressway case, first above cited. Moreover, there was statutory authority in Florida upon which that decision turned. Differences in constitutional and statutory provisions in the jurisdictions referred to in the list of cases just cited m:.y well distinguish the cases from the general rule disallowing recovery for such items as are now under consideration.

“It has been held in the majority of states that the owner is not entitled to recover the cost of removing personal property or damages for injury to such property resulting from its removal, since such loss is not a taking of property. The arguments in support of the rule rejecting such element of damage are based either on the proposition that such costs do not affect the value of the property taken or that they are '.too hypothetical and speculative in character.” 4, Nichols, Eminent Domain, 3rd Ed., § 14.2471 [2], pp. 661-663.

However that may be, this jurisdiction is firmly committed to the proposition that the “just compensation” due an owner in condemnation proceedings is the difference between the fair market value of the property before and after the taking. We have specifically recognized that enhancement in after value may be considered by the jury. We have repeatedly held that it is “not the value to the owner” but the fair market value which controls. The landmark case of Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, and the numerous decisions of this Court which have followed it, suffice to support the proposition that Kentucky is committed to the rule that the difference in before and after market value is “just compensation.”

We are mindful of H.B. 16-1, Ch. 50, Acts 1964, KRS 177.065, whereby the Department of Highways is enabled to adopt rules and regulations permitting payment of reasonable and necessary moving expenses, not to exceed $200 in the case of an individual or family and not to exceed $3,000 in the case of a business concern, including a farm. The Act has no effect here, as it became effective March 17, 1964, and this is recognized by the parties. The appellant suggests that the Act is unconstitutional since it imposes a ceiling upon the amount to be allowed for removal and relocation. Although we do not have that question before us, we think it is plain that the General Assembly could not constitutionally impose a ceiling upon “just compensation” as assured by §§ 13 and 242 of our Constitution. For whatever light it may shed on the matter, it would seem that the General Assembly has by the 1964 Act expressed its own belief that removal costs do not fall within the meaning of “just compensation,” as we must assume that the legislative body would not deliberately enact legislation it considered unconstitutional.

We believe the policy denying" recovery for removal and relocation costs— absent statutory authority — is a sound one. We are, as noted, mindful of the ably presented arguments for the contrary view, but are persuaded that “just compensation” within the meaning of the Kentucky constitutional provisions is fully requited upon payment of the difference in market value before and after the taking.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    KENTUCKY STATE AFL-CIO et al., Appellants, v. Jesse PUCKETT, Mayor, et al., Appellees.
    Court of Appeals of Kentucky.
    May 28, 1965.

      Herbert L. Segal, Louisville, Bert T. Combs, Lexington, for appellants.
    H. B. Kinsolving, III, Shelbyville, for ap-pellees.
    Robert T. Caldwell, Ashland, for inter-venors Cities of Morganfield and Horse Cave.
   CULLEN, Commissioner.

This, appeal is from a judgment upholding the validity of a “right-to-work” ordinance of the City of Shelbyville. Appellants are labor organizations and certain members and officers thereof, who had sought a judgment declaring the ordinance to be unconstitutional.

The significant provision of the ordinance is:

“ * * * the right of persons to work shall not be denied or abridged on account of membership or nonmem-bership in, or conditioned upon payments to, any labor union, or labor organization; * * *.”

In substance the ordinance (for violation of which penalties are provided) undertakes to outlaw “union shops” and “agency shops.” The initial question with which we are faced is whether Congress has pre-empt-ed the field of regulation of such union-security agreements to the extent that local political subdivisions of a state have no power to legislate in the field (as affects interstate commerce).

Section 14(b) of the National Labor Management Relations Act, as amended, 29 U.S.C.A. § 164(b), provides:

“(b) Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” (Our emphasis.)

If the view be taken that by Section 8 (a) (3) of the National Labor Management Relations Act, as amended, 29 U.S.C.A. § 158(a) (3), Congress did not intend to preempt at all the field of union-security agreements, then Section 14(b) would serve no purpose other than to restate and emphasize that fact, and the use of the words “State or Territory” in Section 14(b) would have no particular significance. See Berke and Brunn, Local Right to Work Ordinances: A New Problem in Labor and Local Law, 9 Stan.L.Rev. 674.

On the other hand, if it be considered that by Section (8) (a) (3) Congress did intend to pre-empt the field of union security agreements then Section 14(b) would seem to serve the function of making a special exception out of the pre-emption. See Painter’s Local Union No. 567, etc. v. Tom Joyce Floors, Inc., Nev., 398 P.2d 245. Under the latter view, the words “State or Territory” very well could be meant to so limit the exception as to exclude local subdivisions. See Finman, Local “Right to Work” Ordinances: A Reply, 10 Stan.L. Rev. 53.

In our opinion the latter construction is required by the terms of the Act and by its general import and purpose. The proposition that only by reason of Section 14(b) is the Federal Act precluded from making a full pre-emption is supported by the following statement from Retail Clerks International Ass’n v. Schermerhorn, 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179 (at 375 U.S. 102, 84 S.Ct. 222):

“ * * * Yet even if the union-security agreement clears all federal hurdles, the States by reason of Section 14 (b) have the final say and may outlaw it. There is thus conflict between state and federal law; but it is a conflict sanctioned by Congress with directions to give the right of way to state laws barring the execution and enforcement of union-security agreements.”

As so indicated, Section 14(b) makes an exception out of the otherwise full pre-emption by the Act. The exception should be strictly and narrowly construed because it represents a departure from the overall spirit and purpose of the Act. See Thomas E. Basham Co. v. Lucas, 6 Cir., 21 F.2d 550; Walling v. Home Loose Leaf Tobacco Warehouse Co., D.C., 51 F.Supp. 914. We think it is not reasonable to believe that Congress could have intended to waive other than to major policy-making units such as states and territories, the determination of policy in such a controversial area as that of union-security agreements. We believe Congress was willing to permit varying policies at the state level, but could not have intended to allow as many local policies as there are local political subdivisions in the nation.

It is our conclusion that Congress has pre-empted from cities the field undertaken to be entered by the Shelbyville ordinance. It is true that there may be a tiny area of purely intrastate activity to which the federal Act does not apply and to which the ordinance validly could apply (cf. Chavez v. Sargent, 52 Cal.2d 102, 339 P.2d 801), but obviously the ordinance would not have been enacted to govern only that tiny area, so we think the ordinance must be held invalid in its entirety, as inseparable.

We find it unnecessary to discuss the questions of whether the ordinance in issue is within the scope of the police power of a Kentucky city, and whether the ordinance contravenes the public policy of the state as expressed in KRS 336.130.

The judgment is reversed with directions to enter judgment declaring the ordinance in question to be invalid and unenforceable.


text:
    DEPARTMENT OF ECONOMIC SECURITY, DIVISION OF PUBLIC ASSISTANCE, Earle V. Powell, Commissioner, Appellant, v. Lester MILLS, Appellee.
    Court of Appeals of Kentucky.
    May 28, 1965.
    Paul E. Tierney, Forest Smith, Frankfort, for appellant.
    J. W. Jordan, Barbourville, for appellee.
   STEWART, Judge.

This appeal is from a judgment of the Knox Circuit Court which reversed an administrative order denying aid to Lester Mills for his dependent children. The judgment pronounced him eligible for public assistance and directed that he receive support from the Department of Economic Security, Division of Public Assistance, for his children.

A summary of the essential facts is that Mills had filed three applications for assistance for his dependent children, the most recent on April 17, 1962. All applications were denied for the reason that appellee’s physical incapacity as a breadwinning parent was not established, according to rulings of the Appeal Board of the Department of Economic Security, Division of Public Assistance. A denial of the last application was upheld on December 14, 1962, by the Appeal Board. Mills then filed a petition for review in the Knox Circuit Court which reversed the order of the Board, holding that his children should be added, as of February 8, 1963, to the rolls of those receiving assistance.

The sole issue to be determined in this case is whether the Appeal Board had before it sufficient evidence of probative value to sustain its finding that Mills is fully capable of working and gaining a livelihood for his children. KRS 405.-020(1) provides that the father shall be primarily liable for the nurture and education of his minor children. The burden of proving that he is unable to do so rests upon him.

Mills, now approximately 30 years of age, claimed at the time he filed his application he was physically disabled by reason of an ulcerated stomach, arthritis, back trouble and chronic nervousness. The Appeal Board on May 1, 1963, authorized that a comprehensive examination of him be made at its expense. At the direction of the Appeal Board, three doctors undertook this task and we state their evaluations of Mills’ condition.

Dr. Gilbert R. Hamilton of the Harlan Memorial Hospital found Mills to have an irritable colon and to be subject to depressive reactions; however, he thought neither of these impairments had progressed to the point that he could not engage in a useful occupation. Dr. Albert Shiflet, an orthopedic specialist connected with the same hospital, stated there was “insufficient clinical and X-ray findings to substantiate his (Mills’) complaint of disability.” Dr. William F. Gallivan of Knoxville, Tennessee, performed a myelogram test on Mills which, in his opinion, gave no evidence of a spinal tumor or of a herniated disc. As regards the low back strain of which Mills had complained to him, he remarked: “I would anticipate that this strain will improve if he follows a strenuous back exercise program.” He said he had instructed Mills in the specific exercises he should take.

Against this medical data, verified by laboratory and clinical tests, Mills introduced the report of Dr. E. V. Gregorich on October 5, 1963. As to Mills’ general condition, he concluded: “I consider his case complete disability as far as his back is concerned.” This report was not filed in this case until after the Appeal Board had made an administrative determination to deny Mills’ application for the relief he sought.

In a case such as the one before us, it is the function of the Appeal Board, and not of the courts, to determine the sufficiency of the proof; and, if there is substantial evidence to uphold the finding of the Appeal Board, the courts are bound thereby and may not disturb such finding. See Barnes v. Turner, Ky., 280 S.W.2d 185; Powell v. Bingham, Ky., 350 S.W.2d 150.

As shown heretofore, there is ample clinically verified probative evidence in the record to sustain the finding of the Appeal Board that Mills is capable of working and earning a living for his children. The circuit court went beyond its scope of review when it undertook to resolve the conflicting probative evidence introduced and, under the facts presented, make a finding contrary to the Appeal Board’s conclusion.

Wherefore, the judgment is reversed with directions to enter a new one sustaining the order of the Appeal Board.


text:
    Henry JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 23, 1965.
    Rehearing Denied July 2, 1965.
    Henry L. Spencer, Jackson, for appellant.
    Robert Matthews, Atty. Gen., Frank D. Berry, Asst. Atty. Gen., for appellee.
   DAVIS, Commissioner.

Appellant seeks to reverse the circuit court’s order which overruled his RCr 11.-42 motion to vacate a judgment of the same circuit court, whereby he was sentenced to imprisonment for life on a murder charge. KRS 435.010.

The murder conviction occurred in 1953; the RCr 11.42 motion was filed in 1964. After the motion to vacate was filed the trial court appointed counsel for appellant and afforded him a hearing.

There were six purported grounds for the motion to vacate, as prepared by appellant pro se, which may be thus summarized: (1) newly discovered evidence; (2) the verdict was contrary to the law and evidence ; (3) personally employed counsel for appellant failed to afford him adequate representation; (4) the evidence was purely circumstantial “by the illegal search and sei-sure (sic) of articles there in that was instituted as evidence” (sic) ; (5) the indictment was null and void, “and was returned by prejudice methods used by the Court”; (6) no warrant was ever served on the appellant. However, the prime basis urged for reversal is the irregularity in the method used in selecting the jury which convicted appellant at the murder trial.

The orders of the court upon the murder trial reflect that when the case came on for trial only two members of the jury panel qualified, whereupon “the parties moved that a jury be obtained from some outside county.” The orders further recite that “the parties failing to agree upon the submission of a list of three counties each, the court ordered and directed [the sheriff] to proceed to Jessamine County” to summon 50 persons for jury service. By subsequent order the sheriff was dispatched to Jessamine County to summon 60 additional veniremen, since the first panel of 50 had been exhausted with only three men qualifying for service. From the second group five more persons qualified, whereupon the court directed the sheriff to obtain 60 veniremen from Madison County. From the latter group the jury, including an alternate thirteenth juror, was completed and sworn. So, as the jury was finally composed, eight were from Jessamine County and five from Madison County.

After the jury was so completed the appellant moved to set aside the swearing of the jury for irregularity in its selection, inasmuch as neither Jessamine nor Madison is a county adjoining Breathitt County, and because the jury was composed of some members from each county.

The Criminal Code, applicable at the time of the murder trial, made provision for obtaining a jury from an adjoining county, under appropriate conditions. Crim.Code, § 194. There was no provision for obtaining jurors from a county other than one adjoining the county in which the trial was held. Neither was there any provision authorizing a jury composed of members from two or more counties, whether adjoining or not. (Cf. presently applicable RCr 9.33 and KRS 29.262.)

Kentucky Constitution § 11 provides, in pertinent part, that an accused “ * * * shall have a speedy public trial by an impartial jury of the vicinage.” The Sixth Amendment, U. S. Constitution, makes similar provision, although we are cited no case wherein the Supreme Court has specifically made applicable to states that portion of the Sixth Amendment relating to trial “ * * * by an impartial jury of the State and district wherein the crime shall have been committed * * * ” insofar as it relates to the particular question at hand. In any event, Breathitt, Jessamine and Madison Counties all lie within the Eastern District of Kentucky’s U. S. District Court. 28 U.S.C.A. § 97.

In Baxter v. Commonwealth, 292 Ky. 204, 166 S.W.2d 24, this court dealt with the meaning of vicinage as related to the constitutional guarantee of an impartial jury of the vicinage; there it was held that the fact that a resident of Jessamine County sat as a juror in a Fayette County trial did not contravene any constitutionally guaranteed right. Reference to that opinion will disclose adequately our view on the subject.

KRS 29.025 (2) specifically provides:

“The fact that a person not qualified served on a grand or petit jury shall not be cause for setting the indictment or verdict aside, nor shall exception be taken to any juror for lack of qualification after the jury has been sworn.”

The trial order in the murder case reflects that no objection to the qualification of the jury was made by the appellant until after the jury was sworn. That objection came too late. Since, as reflected by the Baxter opinion, supra, there was no constitutional right denied, there could have been no denial of due process; the relief envisioned by RCr 11.42 is not available. See King v. Commonwealth, Ky., 387 S.W.2d 582 (decided February 26, 1965) and cases therein cited and discussed.

The other grounds presented for relief clearly are unavailable as bases for relief under RCr 11.42. See the King opinion, supra, and Lawson v. Com., Ky., 386 S.W.2d 734 and cases there cited.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. William T. CHAPMAN et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.
    Rehearing Denied July 2, 1965.
    Robert F. Matthew, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, James H. Lucas, Charles W. Huddleston, Bowling Green, for appellant.
    Clarence Bartlett, Woodward, Bartlett & McCarroll, Owensboro, Carmol D. Cook, Lake & Cook, Hartford, for appellees.
   HILL, Judge.

The Department of Highways of this Commonwealth seeks 6.53 acres out of a tract containing between 60 and 72 acres, referred to herein as the Chapman tract, for use- in constructing the Western Kentucky Toll Road. The appellees, property owners, were given judgment in the county court for $7200.00, and a verdict and judgment in circuit court for $22,200.00. The Commonwealth appeals.

The surface of the land taken is owned by the heirs of one Dewey Chapman, twelve in number. The coal and mineral rights beneath this surface were severed by reservation many years ago and are now owned by the heirs of Q. S. Southard, which include the surface owners and more than ninety known and named defendants.

All appellees in this action are heirs of Southard who died intestate many years ago the owner of a 157-acre tract, including the Chapman tract above referred to. Subsequently the 157-acre tract was divided and in the deeds consummating this division, the coal was expressly reserved and held in common by all the Southard heirs.

The jury awarded the Chapman heirs $11,000.00 for the surface, and the South-ard heirs, which included the Chapman heirs, $11,200.00 for the coal “in and under said land.”

Appellant advances the following grounds for upsetting the verdict and judgment:

I. Incompetent and prejudicial evidence was erroneously admitted.

II. It was improper to admit evidence of the appellees’ ownership of coal underlying 157 acres of which the 60-acre tract involved in this action was formerly a portion.

III. It was error to allow a separate evaluation of the surface ownership and the coal ownership of the land involved in this action.

IV. The instructions of the court were erroneous and prejudicial.

V. The verdict of the jury was so excessive as to appear to have been given under the influence of passion or prejudice and in disregard of the evidence.

We have carefully examined the record and grounds assigned by appellant for a reversal and find no substantial support for any of those grounds.

True the amount awarded by the jury appears to us to be most liberal to the land and mineral owners. However, we cannot say, as a matter of law, that the award appears to have been made under influence of passion and prejudice. One of the appellees’ witnesses testified the land and damage amounted to $30,000.00, while another fixed the before value at $90,000.00, and practically no value after the taking. Of the 60 to 72 acres of surface involved, 53 acres were “landlocked;” and of this, 35 acres were in 14"-and-up oak timber, including 100 walnut trees.

Appellant cites Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963) in support of its position that evidence of the market value of the 157-acre tract of mineral, of which the 60-acre tract is a part, was incompetent and prejudicial. It also complains of evidence of the separate valuation of the surface and mineral rights on the 60-acre tract. Gulf Interstate Gas Company v. Garvin, Ky., 368 S.W.2d 309 (1963) is relied on. We think it proper that these cases be discussed and distinguished, especially, since our recent opinion in Commonwealth, Department of Highways v. Gearhart, Ky., 383 S.W.2d 922 (1964).

In the above cases the rule has been established that in fixing before and after values, as a general proposition, there should be no separation of surface and mineral values. In the Gearhart case there had been no severance of the mineral as we have in the case at bar. In our present case, one group of heirs (Chapman) own the surface in the 60-acre tract, while a much larger group of heirs (Southard), and including the Chapman heirs, 90 in all, own the mineral heretofore severed, under the 157-acre tract. The 60-acre tract is a part of the 157-acre tract. Here, w.e have a situation in which the different owners of the separate estates are entitled to a determination of the values of those estates. The question is shall the determination be made by the same jury, separate jury, or by the court? This leaves us with two courses in situations such as we have here. One, to allow evidence of separate values and submit the entire question to- one jury, as was done in this case, or to limit evidence to the before and after value to the whole estate, surface and mineral included, and have a separate determination of the values of the separate estates by a later jury. This latter plan is not feasible in the present case for the reason that the separate estates are not coextensive and the owners of the larger mineral estate (157 A. Minerals) are entitled to prove the value of the entire tract before and after.

The philosophy of avoiding multiplicity of actions is another reason for the rule that all issues may properly be determined by one jury in one trial. Chicago, B. & Q. R. Co. v. F. Reisch & Bros., 247 Ill. 350, 93 N.E. 383, from which we quote:

“It was undoubtedly a proper practice for the jury to first fix the value of the entire property by their verdict and then to apportion the total value of the property as found by them among the several parties who were interested therein.”

This rule was adhered to in actual practice in United States of America v. 342.81 Acres of Land, D.C., 134 F.Supp. 430, as shown by this quotation:

“In a proper case where the mineral interests and the surface interests are owned by different parties, a verdict may be returned finding the fair market value of the whole property with the minerals in place and a separate verdict as to the value of the mineral interests.”

Also Korfhage v. Commonwealth, Ky., 296 S.W.2d 476 (1956).

The facts in the Gearhart case, supra, are entirely different from the facts in the present case. The rule applied here in no way conflicts with Gearhart.

The judgment is affirmed.


text:
    Leo J. ROEHRIG, Appellant, v. MERCHANTS AND BUSINESSMEN’S MUTUAL INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    May 28, 1965.
    Ralph H. Logan, Hardy, Logan & Tross, Louisville, for appellant.
    John T. Ballantine, Ogden, Robertson & Marshall, Louisville, for appellee.
   STEWART, Judge.

This appeal is from a summary judgment entered upon the ground that the instant action was not commenced at the time the complaint was filed.

This litigation arises from an undertaking by appellant, Leo J. Roehrig, to recover in circuit court from appellee, Merchants and Businessmen’s Mutual Insurance Company, the proceeds of a policy which allegedly covered his property against loss from an explosion. The complaint alleges that on or about October 7, 1962, while the policy was in full force and effect, the property insured by appellee was completely destroyed by an explosion. The amount of loss claimed is $5000.

Appellee, when demand for payment for the loss was made upon it, denied liability. This action followed. The complaint was filed October 2, 1963, and summons of the same date was made out to be executed upon appellee by delivery of a copy to its agent in Louisville. This summons was served on October 7, 1963, upon the agent, but the latter’s relationship to appellee was not stated in the summons or on the return.

On October 29, 1963, appellee filed its answer and counterclaim, averring, so far as we need consider in this appeal, that the circuit court lacked jurisdiction over it, because no summons had been served upon it in the manner required by KRS 304.094(1).

This statutory subsection authorizes a foreign or alien insurer to appoint the Commissioner of Insurance “ * * * to receive service of all legal processes issued against it in this state upon causes of action arising within this state. Service of legal process against such foreign or alien insurer can be had only by service upon the commissioner.”

Appellant on November 6, 1963, caused a new summons to issue directed to the Commissioner of Insurance which was in due course served on that officer. On December 2, 1963, appellee filed its supplemental answer and counterclaim pleading the one-year-limitation provision contained in the policy agreement.

On December 13,1963, appellee moved for summary judgment, which was granted, with the result that the complaint was dismissed.

KRS 413.250 reads: “An action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action.” CR 3 provides: “A civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.”

The trial court found that the first summons directed to the agent of appellee was not issued in good faith; that, on the other hand, the action was not actually commenced in good faith until the issuance of the summons directed to the Commissioner of Insurance on November 6, 1963; and that, as the one-year-limitation period set out in the policy had expired when the new summons was secured and executed, the action was deemed to have been filed too late.

What is the meaning of “good faith” as that expression applies to the facts presented ? It can be, and usually is, something less than perfection or complete accuracy. Above all, it means not to take advantage of, not to deceive, not to be underhanded. Black’s Law Dictionary states on this point: “Good faith consists in an honest intention to abstain from taking any unconscien-tious advantage of another, even through the forms or technicalities of law, together with an absence of all information, notice, or belief of facts which would render the transaction unconscientious.”

In the case of Hausman’s Adm’r. v. Poehlman, 314 Ky. 453, 236 S.W.2d 259, 27 A.L.R.2d 233, a wrongful death action filed against a nonresident motorist, summons was served on the Secretary of State as was then required, but the address of the nonresident was erroneously given and in consequence the registered letter of notification of the pending action was returned unclaimed. Later, the correct address was ascertained and a new summons was placed in process of execution; however, the new summons was served and the new notification was given after the expiration of the one year provided by the applicable statute of limitations.

In reversing the trial court, which ruled the action was barred because the first summons had not been procured in good faith, this Court stated: “In the present case the facts fail to show that the first summons was not issued in good faith in spite of the fact that by exercising greater diligence than was exercised the correct address of the appellee could have been discovered. * * ⅜ j>

In the case of Rucker’s Adm'r. v. Roadway Express, Inc., 279 Ky. 707, 131 S.W.2d 840, 843, which involved an action based upon a tort, summons was issued and delivered to the plaintiff’s attorney. The latter being unable to ascertain the name of the defendant’s process agent and by reason of the illness of his wife, failed to forward the process to the sheriff for execution. The original summons then became lost. A new one was issued and executed more than six weeks later and after the expiration of one year from the date of the injury out of which the litigation grew. We held that the action was commenced in time because bad faith in the retention of the first summons was not established.

During the course of the opinion it was said: “ * * * Plaintiff’s attorney was undoubtedly guilty of negligence, negligence which comes perilously near to barring his client’s right of action, but the statute (Section 2524, Kentucky Statutes) does not say that negligence in the execution of a summons after it is issued will bar the right of action.”

See also Louisville & N. R. Co. v. Alexander, 277 Ky. 719, 127 S.W.2d 395.

The rule seems to be that if, when the summons was issued, the plaintiff had a bona fide, unequivocal intention of having it served presently or in due course or without abandonment, the summons was issued in good faith. See Louisville & Nashville Railroad Company v. Little, 264 Ky. 579, 95 S.W.2d 253, 255.

That the original summons, or notice thereof, was misdirected, as in Hausman’s Adm’r. v. Poehlman, supra, or that it was not served because the plaintiff’s attorney lost it, as in Rucker’s Adm’r. v. Broadway Express, Inc., supra, — these circumstances were held not to constitute a lack of good faith.

Under the authority of these cases, it cannot be said there was a lack of good faith when appellant, in the first instance, inadvertently served appellees agent with summons instead of the Commissioner of Insurance. This latter officer he promptly caused process to issue against when apprised of his mistake.

Wherefore, the judgment is reversed for proceedings consistent with this opinion.


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DIVISION OF FORESTRY, DEPARTMENT OF CONSERVATION, Appellant, v. Emma FARLER and Kentucky Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.
    Rehearing Denied July 2, 1965.

      Craft & Haynes, Hazard, for appellant.
    M. B. Fields, Hazard, for appellees.
   WADDILL, Commissioner.

The Commonwealth of Kentucky, Department of Conservation, has appealed from a circuit court judgment setting aside an order of the Workmen’s Compensation Board wherein it had denied compensation benefits to the widow of Ray Farler who was a part-time forest fire fighter for the department.

The crucial question presented is whether the board erred in holding certain testimony incompetent.

Farler, who was 55 years old, was called to help fight a fire near Jeff, Kentucky, on November 17, 1963. The only witness who testified to pertinent events on that day was Elmer Eldridge, an employee of the department, who supervised the fighting of this fire. He testified:

“ * * * I came down the road picking up these fellows, fighters. As I come along as usual, he come up the hill from his house into the road and got in the truck and we went to this fire on Highway 7 around Jeff. He went up one side of the fire and I went up the other side. He didn’t get all the way to the head end of the fire, which is the hot spot of the fire. He was on the side. They left him watching a log and a stump or something and we got the fire out, I think we was around hour or hour and half on the fire, and he came back and got in the truck, and I noticed there was something wrong with him. They offered him some water and he wouldn’t take the water. I asked him what was wrong, and he said, I can’t hardly get my breath, and I have got a hurting in my chest. I said, I guess I had better take you to the Doctor then and I brought him to the hospital down here.”

Dr. M. B. Payne, the attending physician, testified over objection:

“ * * * the history was related by a member of the family — I don’t remember who, that he had been helping fight fire up in the neighborhood in which he lived, and he had fought very hard and breathed a lot of smoke and got real hot. This was later confirmed by the patient when he got able to speak. * *

He further testified that Farler died two days after he was admitted to the hospital of myocardial infarction.

Concluding that the statements made to the physician by Farler were not necessary to determine Farler’s condition or treatment, the board held that this testimony was incompetent and refused to consider it on the authority of Marion v. Frank R. Messers & Sons, Inc., 306 Ky. 743, 209 S.W.2d 321. Without this testimony the record contains no evidence to show that Farler had exerted himself at the scene of the fire so as to cause his heart attack. Accordingly, the board found that Farler’s death did not result from injuries arising out of his employment with the department.

Upon appeal the circuit court, relying on Valentine v. Weaver, 191 Ky. 37, 228 S.W. 1036, held that it was competent for Dr. Payne to testify about the information he had received concerning Farler’s activities and physical condition at the scene of the fire, but it was incompetent for him to testify as to the location of the fire. The circuit court set aside the board’s order.

The applicable rule is that the history of an injury which has been related to a physician by his patient is competent insofar as it might have aided him in diagnosing and treating the patient. Marion v. Frank R. Messers & Sons, Inc., supra; Valentine v. Weaver, supra.

It is reasonably apparent from the record that the case history related to Dr. Payne by Farler was helpful in diagnosing and treating him. Therefore the evidence concerning the patient’s case history, held incompetent by the board, should have been considered by it in determining whether Farler’s death resulted from an accident arising out of and in the course of his employment with the department.

The judgment is affirmed to the extent it holds the case history related to Dr. Payne by Farler is competent and the circuit court will remand the case to the board with directions to consider this testimony in determining whether appellee is entitled to an award of compensation benefits.


text:
    CROWN CREDIT CORPORATION, Appellant, v. Andy J. BLANTON at al., Appellees.
    Court of Appeals of Kentucky.
    May 28, 1965.
    G. C. Perry, III, Paintsville, for .appellant.
    R. B. Harrington, Paintsville, for appel-lees.
   CULLEN, Commissioner.

A motion for an appeal was sustained in this case.

From appellant’s brief it appears that although appellant was a holder in due course of the negotiable note of the appellees on which this action was brought by the appellant, nevertheless the trial court entered judgment, upon a jury verdict, deducting $2,000 from the amount due on the note by reason of alleged defective performance by the original payee of the note in the rendering of services and the furnishing of materials in payment for which the note was given.

Appellees have filed no brief.

Under RCA 1.260(c) (2) we are reversing the judgment because appellant’s brief reasonably appears to sustain such action.

The judgment is reversed with directions to enter judgment for the full amount due on the note.