author: PALMORE, Judge.

text:
    ASHLAND TREE EXPERTS, INC., Appellant, v. Spencer SMITH et al., Appellees.
    Court of Appeals of Kentucky.
    March 22, 1963.
    Hamm, Taylor & Milby, London, William A. Rice, Harlan, for appellant.
    Doyle & Doyle, Harlan, for appellees.
   PALMORE, Judge.

It requires hut slight evidence, in the absence of proof to the contrary, to support a finding that the parties to a Workmen’s Compensation proceeding are subject to the provisions of the Act. Collier v. Wright, Ky.1960, 340 S.W.2d 597. In Harvey Coal Corp. v. Morris, 1951, 314 Ky. 781, 237 S.W.2d 70, evidence that the em ployer had settled a previous compensation claim and that the parties had theretofore elected to operate under the Act was held sufficient to sustain a finding that they were covered by the Act at the time of another injury 5 days after receipt of the settlement. In Joyce-Watkins Co. v. Industrial Commission, 1927, 325 Ill. 378, 156 N.E. 346, 349, the fact that the employee was paid compensation following the injury, together with the character of the employer’s business (creosoting and shipping railroad ties), was held, in the absence of proof that the payments were made under a misapprehension of the employer’s rights, to warrant the conclusion that the employer was operating under the terms of the Act.

In this case it is not seriously questioned that the employer or its insurer paid compensation to the claimant at the rate of $26 per week (his wages had been $40' per week) for the period from April 9, 1959, the date of the injury, until October 29, 1959, and that the insurer caused him to be brought to Lexington for a physical examination. There was introduced in evidence a letter from the Lexington office of the Insurance Company of North American Companies to the employer’s office manager enclosing a draft for 4 weeks’ compensation to be forwarded the claimant with a notification that the date for his examination at Lexington had been postponed. In the absence of any evidence to explain away these circumstances, the contention that the Workmen’s Compensation Board had no valid basis to find that the parties were covered is untenable. The question of es-toppel is not involved.

The claimant was a man 42 years of age who had been accustomed to hard manual labor. In reply to a question as to what kind of health he enjoyed prior to the injury he said he had “never been to a doctor but twice in my life, had tonsillitis and flu,” and “could stand on any building and ■do carpenter work, anything I wanted to do.” He had “logged, timbered, worked in mines, carpentered, hoped lay block, anything there was to do.” This testimony was corroborated by others for and with whom he had worked, including a 22-year old fellow-employee who said the claimant could do as much as he. The evidence thus provided ample basis for the statement in the hypothetical question that he had been “a strong able-bodied man.”

More than a year after the accident, in which he suffered a sudden, severe and completely disabling strain while attempting to lift the end of a log over a stump, the claimant was still wholly unable to work. His own physician, who had known him for 20 to 25 years, was of the opinion that this condition was caused by the accident. The orthopedic surgeon who examined him in Lexington was of the same opinion, and did not think he was malingering, though he felt that the condition was mostly a “hysterical situation,” which “would fit in with the so-called traumatic neurosis, that ■often results from apprehension over an injury.” A psychiatrist in Harlan said that he was suffering some type of psycho-neurotic disorder and was unable to work, and that in the absence of evidence to exclude other causes the assumption would be that the accident was the cause. In his opinion the more or less constant jerking motion in the claimant’s legs was “involuntary.”

Against the foregoing medical testimony a neurosurgeon of Knoxville, Tennessee, on the basis of a physical examination and the negative results of a myelogram, said positively that the claimant was not suffering from a traumatic neurosis, and he believed that the jerking of his legs was in a large measure voluntary.

Whatever may be the medical label placed on it, whether traumatic neurosis or some type of psychiatric disorder, we do not see how it could possibly be maintained that there was insufficient competent evidence to support the board’s finding that a total disability existed and was caused by the injury on April 9, 1959.

The only part of the hypothetical question put to all the medical witnesses that may not have been fully supported by the foundation evidence was the reference to the claimant’s shaking all over his body, as distinguished from his legs alone, but we do not believe this was a material or prejudicial inaccuracy in view of the fact that each of the doctors conducted a physical examination.

The judgment is affirmed.

MONTGOMERY, J., dissents from that portion of the opinion which holds that the evidence was sufficient to support a finding that the parties were covered by Workmen’s Compensation.


source: Caselaw Access Project

author: STEWART, Chief Justice. '

license: Public Domain

text:
    Sidney RICE, Appellant, v. David L. DAVIS, Warden, Kentucky State Reformatory, LaGrange, Ky., Appellee.
    Court of Appeals of Kentucky.
    March 22, 1963.

      Sidney Rice, pro se.
    John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., Frankfort, for appellee.
   STEWART, Chief Justice. '

Appellant, Sidney Rice, was convicted in the Bourbon Circuit Court of the offense of wilfully and maliciously shooting and wounding another with intent to kill, and sentenced to 20 years’ imprisonment in the state reformatory at LaGrange. See KRS 435.170(1). Thereafter he filed in the Old-ham Circuit Court a petition for a writ of habeas corpus. The writ was denied without a hearing and the petition was dismissed. He now appeals from the judgr ment entered.

Appellant’s petition was supported by affidavits made by himself, his wife, his son and three persons not related to him. These affidavits were not challenged by the Commonwealth and constitute the bulk of the proof in this case. The errors and irregularities pointed up by these affidavits, if true, tend to support the proposition that certain of appellant’s fundamental or constitutional rights were ignored or disallowed.

The record of appellant’s trial consists of the indictment, the instructions, the verdict, a motion for, and the denial of, probation, a motion and grounds for a new trial, and an order overruling this motion and the granting of an appeal to this Court. There is no transcript of evidence. According to the statements of appellant and his affiants, he asked his attorney to obtain a court reporter and, when this person failed to do so, he requested the trial court either to provide a reporter or permit him to hire one. The trial court refused to furnish a reporter or allow him time to secure one, it is asserted.

It is possible that a bystander’s bill of exceptions would have been accepted by this Court. However, it appears appellant’s attorney was less than diligent in his handling of this matter since he did not undertake to prepare one. Other charges of an extremely grave nature are set forth in the affidavits which, because they are not rebutted, must-be presumed to show that appellant’s counsel either refused or failed to afford him adequate representation.

The instant action is an attack on a judgment and, generally speaking, habeas corpus jurisdiction will only lie where the judgment is void. See Smith v. Henson, 298 Ky. 182, 182 S.W.2d 666. Ordinarily, in such a proceeding in this forum the only questions open to review after a conviction are whether the court had jurisdiction of the person and the offense; and whether the sentence pronounced was one authorized by law. In the absence of exceptional circumstances, habeas corpus is not to be resorted to as a substitute for an appeal or as an alternate remedy for the correction of errors either of law or fact.

However, for “incurable, radical and fatal defects plainly and indisputably manifest of record, relief should be granted even on habeas corpus.” 39 C.J.S. Habeas Corpus § 15, pp. 444 — 448. Also, this same volume on the same subject on page 449 states that “ * * * the use of the writ of habeas corpus has been held to extend to cases where the conviction has been in disregard of the accused’s constitutional or fundamental rights which result in the absence or loss of the jurisdiction of the court, and the writ is the only effective means of preserving those rights.”

In state courts, the usual inquiry in proceedings of the type before us, under the older view, is limited to questions of whether the court had jurisdiction of the offense and the person of the accused. The newer view is that a judgment may be void and thereby subject to attack for certain extreme irregularities other than the lack of jurisdiction of the offense and the person after the judgment or sentence. See Annotation, 146 A.L.R. 386. Such states as Georgia, Kansas, Oklahoma, West Virginia, Pennsylvania, Nevada, and New York have recognized this rule. See same Annotation, pp. 388 to 394. Also the United States Supreme Court adheres to this principle of law. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

KRS 28.430 provides, in part:

“(1) (a) Upon any trial or proceeding if either party requests the services of the reporter, * * * the presiding judge shall direct the reporter to, and the reporter shall, take full stenographic notes of the proceedings.
* * * * * *
“(2) In all criminal proceedings, upon the motion of either party the court shall order the reporter to make a full and accurate transcript * *

In Woods v. Commonwealth, Ky., 305 S.W.2d 935, this statutory provision was held to be a mandatory requirement and a failure of the trial court to comply therewith was reversible error. An examination of the record in the Woods case discloses that it included a bystander’s bill of exceptions, signed by the appellant’s attorney, narrating the evidence presented and reciting that the appellant asked for a reporter and his request was disallowed. Also in that record, in a paper entitled “Proceedings, Jury and Verdict,” the fact was stated that the circuit court overruled the appellant’s motion for a court reporter. Thus, appellant in the Woods case had some record to bring to this Court on appeal but it was deemed insufficient and it was ruled a substantial right was denied when the trial court refused to have the case reported.

In the present case, due to the lack of diligence on the part of his attorney, appellant. had nothing to present to this Court in the event of an appeal, because in the absence of the transcript of evidence no error claimed to have been committed during the trial was available for review. Such errors may be preserved for consideration by this Court only if the proof is taken down and made permanent.

Ordinarily the right to appeal is not a constitutional one, or an essential to the due process of law; however, such a right may become so closely related to the preservation of a constitutional safeguard, where the liberty of an individual is involved, as to warrant the use of habeas corpus as a corrective measure to prevent the unlawful deprivation of such a right. See Annotation, 19 A.L.R.2d 792.

Appellant’s right to assistance by counsel is guaranteed by Section 11 of the Constitution of Kentucky and by Amendment VI to the Constitution of the United States. This-Amendment has been interpreted by the federal courts to mean “effective” assistance. See Thomas v. District of Columbia, 67 App.D.C. 179, 90 F.2d 424. In Berry v. Gray, D.C., 155 F.Supp. 494 (a Kentucky case in which the Honorable Roy Shel-bourne sat as judge) the petitioner was convicted of rape and his punishment was fixed1 at life imprisonment. After his petition. for a writ of habeas corpus was denied by the courts of this state, he applied to the-United States District Court for the Western District of Kentucky. The facts in the petition in the latter court posed the same-question that was raised in the state court. This was that he did not have adequate-representation by counsel at his trial. It was decided the allegations of the petition-on this point were supported by the evidence. The district court held:

“It is immaterial whether such counsel was appointed by the Court or selected by the accused, in the absence of facts constituting a waiver of the right. (Citing cases.) The prejudice to a defendant from the failure to have the effective assistance of counsel results whether counsel is court appointed or selected by the accused. The right ‘is too fundamental and absolute-to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.’” (Citing cases.)

Effective representation by counsel, in order to satisfy the accused’s constitutional right to a fair trial, is a rule of law that has been strictly construed. It must mean representation so lacking in competence that it becomes the duty of the court to observe such a condition and correct it. Allegations of serious mistakes on the part of an attorney, standing alone, even where harm results, are not a ground for habeas corpus. In all the cases decided on this subject, the circumstances surrounding the trial must be such as to shock the conscience of the court and make the proceeding a farce and a mockery of justice. See Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667.

Furthermore, the lack of skill and the unfitness of the attorney may be imputed to the defendant who employed him, the acts of the attorney thus becoming those of his client unless they are rejected and such a fact is made known to the court. See Tompsett v. State of Ohio, 6 Cir., 146 F.2d 95, at page 98, which made this statement on the same point: “A defendant cannot seemingly acquiesce in his attorney’s defense of him or his lack of it and, after the trial has resulted adversely to the defendant, obtain a new trial because of the incompetency, negligence, fraud or unskill-fulness of his attorney.” This case also held this principle may not be relied upon when it is made to appear that “the defendant is ignorant of his rights and unacquainted with the course of proceedings in criminal cases.”

Upon the basis of the facts presented we conclude appellant has made out a prima facie case that he was not afforded effective assistance of counsel at his trial in the Bourbon Circuit Court. There were, assuming the affidavits truthfully state what occurred, many reversible errors committed during the course of the trial which tend to show he was the victim of injustice. If appellant had had adequate representation the proper steps would no doubt have been taken to preserve the errors of the trial court for consideration and possible rectification by this Court. Since the appeal channel was never open to him and, furthermore, since he was apparently deprived of a fair trial, we believe appellant is entitled to a full and complete hearing on each of the material issues raised in this proceeding.

We are changing the rule in Kentucky applicable to habeas corpus, so that it will conform to the federal rule, noted above. Therefore, to the extent our former holdings on this subject are in conflict with this opinion they are overruled. See Kentucky Digest Habeas Corpus @⅞9.

Wherefore, the judgment is reversed with directions that the writ issue.


author: STANLEY, Commissioner.

text:
    Robert ELPERS, Appellant, v. Edward L. KIMBEL et al., Appellees. Catherine M. JOHNSON et al., Appellants, v. Edward L. KIMBEL et al., Appellees.
    Court of Appeals of Kentucky.
    March 22, 1963.

      J. L. Richardson, Jr., Charles Morris Leibson, Louisville, for Robert Elpers.
    C. M. Leibson, Goldstein & Leibson, Louisville, for Catherine M. Johnson, and others.
    J. Walter Clements, J.'L. Richardson, Jr., Louisville, for appellees.
   STANLEY, Commissioner.

Multiple actions and cross-actions arose out of an intersection automobile collision at Goss and Texas Avenues in Louisville on July 31, 1959. The appeals present several legal problems.

Robert Elpers was driving south on Goss Avenue and Edward L. Kimbel, who had been driving north on the same street, was in the act of making a left turn westwardly on Texas Avenue when the cars collided in the southwest quarter of the intersection. Both drivers and their guests were injured. On the joint trial of the respective actions and cross-actions, the jury expressly found both drivers to have been negligent and denied them damages, one against the other. Verdicts for each of Elpers’ three guests were returned against both drivers, the awards being apportioned %o against Elpers and ¾0 against Kimbel. But the court entered judgment non obstante veredicto, denying two of those guests damages against Elpers, as hereinafter described. The verdict awarded Kimbel’s guest, Miss Sandra Webb, $3,000, and the owner of the car, Mrs. Martha Kimbel,, $250 for damages to it, against Elpers alone.

We have two appeals: (1) Elpers, appellant, against Kimbel, Sandra Webb (who has since married Kimbel) and Anna Mary Herbold, appellees; and (2) Catherine M. Johnson and Marie Elpers, appellants, against Kimbel and Elpers,, appellees. The appeals have been consolidated. Kimbel has not appealed from the judgments against him, nor Elpers from Mrs. Kimbel’s small judgment.

ELPERS V. KIMBEL ET AL.

Elpers contends that the court should have directed a verdict in his favor as Kimbel was solely responsible for the accident. He maintains that the adverse evidence was only that he had been driving at an excessive speed (contrary to his own evidence), but, even so, that speed was not a proximate cause. This would, of course, result in directing a verdict for damages in his favor against Kimbel and denying verdicts and judgments for all other parties against him.

Contingent upon the event this court decides that basic claim against him, Elpers contends (1) the court should have granted him judgment n. o. v., relieving him from the award of Mrs. Anna Mary Herbold, as he did from the awards of Elpers’ other two guests, Mrs. Johnson and Mrs. Elpers, on the ground that they had made judicial admissions barring their claims of negligence on Elpers’ part. He contends (2) the trial court erred in the first place in authorizing the jury to apportion any damages they might award Mrs. Herbold, and, in the second place, that the court should have adjudged that the recovery against Kimbel should be for one-lialf instead of one-tenth of the jury’s award to Mrs. Herbold.

I.

Goss Avenue inclines three or four degrees downward from a point 200 to 250 feet to the Texas Avenue intersection, so that cars coming from the north (as was Elpers) are not clearly or fully visible until after they get over the crest.

Kimbel testified, in brief summary, that he approached the intersection at 20 or 30 mph, had the green light, switched on his lefthand flasher turning signal lights when about 100 feet from the intersection, slowed down, looked ahead up the hill and did not see any car coming down Goss Avenue. He started to turn on Texas Avenue, and when he was about one-third of the way into the opposite lane (or under the traffic light, as he stated elsewhere) he saw Elpers’ car coming down the hill at what he estimated to be 60 mph as it got close to him. In that instant he realized he could not go ahead without being struck and stopped his car still. The brakes on the other car were “squealing” as it ran into the front side of his automobile.

Kimbel’s testimony is substantiated fully by Sandra Webb, his guest, and is substantiated in part by two young men who were at a gasoline service station on the southwest corner of the intersection. They too testified as to the rate of speed of Elp-ers’ car.

Police officers testified there were skid marks 45 or 50 feet long made by Elpers’ car. They described the location of the debris in the intersection. The maximum speed limit for the zone was 35 mph.

Robert Elpers’ testimony was that as he came over the crest of the hill on Goss Avenue the traffic light turned green; he was going approximately 30 mph; he saw Kimbel’s car coming, and it gave no signal of an intention to turn. At the moment Kimbel’s car started to turn left in front of him, he, Elpers, applied his brakes “in full force,” but the Kimbel car continued on without stopping, and when it was about one-third of the way across the center line of the street, it struck the left front side of Elpers’ car.

The above is a broad outline of the testimony. All of the witnesses used an enlarged (27" x 36") aerial photograph of the street intersection in pointing out and describing the many locations about which they were testifying. Every one of them made marks of identification on the picture. It has been brought up with the record, but the marks are so numerous and confusing that the testimony is as incomprehensive as if they had not been made. Also, miniature car models were used by the witnesses to exemplify their testimony. Of course, that demonstrative evidence is not portrayed in the record.

We cannot accede to the appellant’s argument that the only evidence tending to prove negligence on his part was that of excessive speed, and that it cannot be regarded as either a proximate or contributing cause of the accident or that it proves Kimbel was solely negligent.

In the case of Brown v. Crumpton, Ky., 252 S.W.2d 670, relied on, the only question was which of meeting automobiles was on the wrong side of the road. In other cases, such as Rabold v. Gonyer, 285 Ky. 618, 148 S.W.2d 728, 730, and Davis v. Kunkle, 302 Ky. 258, 194 S.W.2d 513, only one reasonable conclusion could be drawn, namely, one car had, in fact, turned suddenly in front of the other. There were no other factors. In the instant case the court initially, and the jury finally, could reasonably conclude from all the evidence (1) that Elpers saw the Kimbel car making the turn and had he been driving at a lawful rate of speed, he could have brought his car to a stop instead of skidding 45 or 50 feet to the point of the collision; or (2) that he could have swerved and avoided the collision. As in Pillsbury-Ballard, Division of Pillsbury Mills v. Scott, Ky., 283 S.W.2d 387 (to cite only one case), speed could well be regarded as a proximate or contributing cause of this accident.

In exercising the province of an appellate court to determine whether there was sufficient evidence to submit the questions of negligence and proximate cause to a jury, we recognize that the trial court heard the oral testimony and had full opportunity to observe the demeanor of the witnesses. We are of opinion it was proper to submit the case to the jury and that the verdicts for the guests in both automobiles are sustained by the evidence.

II.

With respect to the argument that the court should have ruled that Mrs. Herbold had made judicial admissions that the appellant, Elpers, was not negligent, which barred her from recovering damages of him, we deem it enough to say here that her testimony to that effect was weaker than that of the other two guests because of her inattention and the unsubstantialness of her statements as proof. The applicable law of judicial admissions is discussed in considering the appeal of Mrs. Johnson and Mrs. Elpers following.

III.

As related, a verdict was returned against Elpers alone for $3,000 in favor of Sandra L. Webb and $250 in favor of Mrs. Martha Kimbel, the owner of the car driven by her son, Edward. Judgment was rendered for Elpers against Kimbel for one-half of those verdicts as being contribution. KRS 412.-030; Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165. That part of the judgment is not questioned. But Elpers vigorously contends he was entitled to similar contribution of one-half against Kimbel for portions of the verdict against him in favor of Mrs. Herbold for $4,500. It may be again noted that the jury also awarded her $500 against Kimbel. The verdicts were under an instruction that if the jury found both drivers negligent, they might award their guests a “sum in gross” against both defendants or “award them a separate and different amount against each.”

Since we are reversing the judgment n. o. v. denying Elpers’ other two passengers judgment against him, his argument concerning apportionment of Mrs. Herbold’s judgment becomes applicable to those cases.

In the law of negligence, “contribution” connotes a share in causation. Ballentine’s Law Dictionary. The right of contribution of one tortfeasor against his co-wrongdoer is statutory. KRS 412.030. We have recognized that the right exists where there was concurring or combined negligence causing the same injury. Consolidated Coach Corp. v. Burge, 245 Ky. 631, 54 S.W.2d 16, 85 A.L.R. 1086. Under present procedure (though not formerly) the right may be asserted in the same action by a cross-claim. Clay, CR 13.07, Comment 3; 14.01, Comment 2. Cf. Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165, a suit for indemnity.

The question we have here is the measure and apportionment of contribution in all the cases. Ordinarily, if one of two tortfeasors is forced to discharge the entire liability, he may recover one-half of the reasonable amount paid. Consolidated Coach Corp. v. Burge, supra; Southeastern Greyhound Lines v. Myers, 288 Ky. 337, 156 S.W.2d 161, 138 A.L.R. 1461; 13 Am.Jur., Contribution, § 57. In the present case, as stated, that right of Elpers to recover one-half of the judgment in favor of Sandra Webb was recognized and enforced.

IV.

We come to the apportionment of the verdicts for the appellant’s three passengers.

Our statute, KRS 412.030 (originally enacted in 1926), which abrogated the common law rule, gives the right of contribution among joint tortfeasors or parties in pari delicto where the wrong involves no moral turpitude. A corollary statute, KRS 454.040 (originally enacted in 1839) provides that in actions of trespass the jury may assess joint or several damages against the defendants. This statute has long been construed as applying to all actions of trespass of whatsoever kind, including that upon the person. Central Passenger Ry. Co. v. Kuhn, 86 Ky. 578, 6 S.W. 441, 9 K.L. R. 725, 9 Am.St.R. 309. Among later cases are Saad v. Brown, 144 Ky. 178, 137 S.W. 834, 35 L.R.A.,N.S., 1165; McCulloch’s Adm’r v. Abell’s Adm’r, 272 Ky. 756, 115 S.W.2d 386; Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165; Murphy v. Taxicabs of Louisville, Inc., Ky., 330 S.W.2d 395.

The statute has also been consistently construed as authorizing a verdict in such proportions as the participation of the respective defendants in the tortious act may justify. The verdict is conclusive, and the trial court properly ruled Elpers not to be entitled to recover one-half the damages assessed against him in the Herbold case.

JOHNSON ET AL. V. KIMBEL ET AL.

As related, Elpers’ passengers were Mrs. Marie Elpers, his mother; Mrs. Catherine Johnson, his aunt; and Mrs. Anna Mary Herbold, his greataunt. All of them instituted actions against both Elpers and Kimbel for personal injuries. The verdict for Mrs. Johnson and Mrs. Elpers each was $2,700 against Elpers and $300 against Kimbel. The verdict for Mrs. Herbold was $4,500 against Elpers and $500 against Kimbel. But, as stated in the foregoing opinion, judgments n. o. v. set aside the verdicts for Mrs. Johnson and Mrs. Elpers and denied them recovery of Elpers on the ground that they had made “judicial admissions.” They appeal.

Mrs. Elpers was riding on the front seat, and the other ladies were in the rear. They were on the way to a birthday party for Mrs. Elpers’ mother, and as they approached the intersection of Texas Avenue, Mrs. Elpers and Mrs. Johnson were engaged in conversation, and, apparently, were paying no attention to the way the car was being driven. Mrs. Herbold, just before the accident, was looking out the car window “trying to locate a friend’s house” on Goss Avenue.

Mrs. Elpers had turned and handed Mrs. Johnson a paper, and as she again faced forward (when “probably entering the intersection”), she saw the Kimbel car turning in front of them and heard the screech of the brakes, and then came the crash.

On direct examination Mrs. Elpers stated she had not noticed her son speeding or doing anything reckless in driving the car. On cross-examination she testified that he had been driving normally and slowly. She estimated his speed at 25 or 26 mph. She had seldom ridden with anyone but her son, and her judgment as to speed was based upon the way he usually drove. In answer to a leading question, if at the time she had seen her son do anything that “contributed to the happening of the accident, so far as you could see?,” she answered, “No, sir.” In the same way she stated she had not seen or noticed anything unusual about the way he was driving.

Mrs. Herbold testified she had not noticed any recklessness or speeding by the driver that made her afraid. On further cross-examination she testified she had not been watching the driver, but she knew he was not going fast, and she did not know of anything he had done that she thought improper. She insisted she was “not a good judge of speed,” but she knew when “somebody is going fast.”

Mrs. Johnson “judged” or “believed” her nephew had been driving “28 mph” during the whole trip, and said he had done nothing to make her afraid for her safety. During the course of her cross-examination she answered leading questions that he appeared “to have his car under reasonable control and to be driving normally.” Her qualification for judging speed was that she usually rode with her boss and watched his speedometer. She was looking ahead when she heard the brakes squealing. She saw some cars in front in the same lane going in the same direction, but she did not see the Kim-bel car before or as it was turning.

This and other courts have sometimes inaccurately called “judicial admissions” testimony of a party adverse to his claims when it would have been more accurate to designate the testimony as binding admissions against interest or favorable to the opposing party, although there may be formal admissions or positive testimony of a character that come within the term. Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021; Fannon v. Hensley, Ky., 320 S.W.2d 614; Schoenbaechler v. Louisville Taxicab & Transfer Co., Ky., 328 S.W.2d 514; Annotation, “Binding effect of party’s own unfavorable testimony,” 169 A.L.R. 798. The Annotation reveals diversity of opinion as to whether a party having made adverse admissions may rely on other evidence more favorable to his cause or defense.

In Sutherland v. Davis, supra, and City of Lexington v. Clarke, 290 Ky. 290, 160 S. W.2d 653, we held that if the circumstances and conditions give rise to the probability of error in the party’s adverse admissions, he may not be bound by them as a matter of law; otherwise, they are binding upon him, and he cannot avert the consequences thereof.

In Halbert v. Lange, 313 Ky. 648, 233 S.W.2d 278, a defendant had testified in a pretrial deposition to facts indicating his own negligence. The plaintiff introduced it on the trial. The defendant, on the trial, modified or qualified that testimony. We held the statements in the deposition not binding on the defendant, stating that they must be considered together with his testimony on the trial. Thompson v. Marcum, Ky., 249 S.W.2d 139, is to the same effect.

In the City of Lexington case, supra, plaintiff’s statement relied on as a judicial admission was “purely a matter of estimation or guesswork on his part and the probability of error in his testimony is easily recognizable.” We held plaintiff was entitled to rely on other testimony supporting his case. In the Sutherland case, supra, the plaintiff’s admissions, held to have barred recovery, were clear and positive, and they stood alone. The admissions in Bell v. Harmon, Ky., 284 S.W.2d 812, were of like character in that the party was in a position to observe and did observe what he deliberately testified.

In the more recent case of Zipperle v. Welsh, Ky., 352 S.W.2d 556, the plaintiffs were guests in one of the defendants’ automobiles which collided with the other’s car at a street intersection. The only issue presented was which driver ran a red light. The plaintiffs testified they had no specific complaint respecting their host’s operation of the car which might have caused the accident. We affirmed a judgment n. o. v. for the defendant on the ground that plaintiffs had made judicial admission that he was not negligent.

In Halbert v. Lange, supra, 313 Ky. 648, 233 S.W.2d 278, in the course of the opinion, discussing judicial admissions, we observed :

“It appears difficult to lay down an ,ironclad or entirely satisfactory rule. The true test seems to be whether the party’s testimony is merely a narrative of events observed or participated in, wherein there is always present the obvious possibility that he, like any other witness, could be mistaken, or whether he was testifying to facts peculiarly within- his own knowledge. See Harlow v. LeClair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973. This can be observed by taking into consideration all the conditions and circumstances proven in the case.”

And in Bell v. Harmon, Ky., 284 S.W.2d 812, we made this comment with reference to the inconclusive nature of judicial admissions :

“The rule should be applied with caution because of the variable nature of testimony and because of the ever-present possibility of honest mistake. A judicial admission of this kind should in essence contain the elements of waiver. See Alamo v. Del Rosario, 69 App.D.C. 47, 98 F.2d 328. It is in some respects similar to an election of causes of action. See Rowe v. Shepherd, Ky., 283 S.W.2d 188.”

Our decisions are in accord with Wig-more’s rationale. The eminent author on evidence questions, for given reasons, the conclusive nature of a party’s testimony as a judicial admission. IX, Wigmore on Evidence, § 2594a, p. 597. He says, p. 601:

“In the first place, the proposed rule is not a simple rule of thumb, but a flexible one, requiring especial judicial wisdom for its sound application. Therefore, while seeking justice, it might often do injustice. In the second place, it affords one more ground for an appeal on a question of law, and thus one more element of delay and technical disputation. In the third place, its purpose can usually be as well attained by a ruling upon the insufficiency of evidence for the jury (ante, § 2494). In the fourth place, and chiefly, it assimilates testimony on the stand to formal deliberate admissions. But testimony cannot be treated that way. Testimony in court is an elusive matter of mental operations. It is the culmination of much talk and reflection and memory-stirring between all concerned. It is full of surprises at the trial. The truth of the case depends on a comparison of what all the witnesses say and all the circumstances indicate. A rule which binds a party to a particular statement uttered on thé stand becomes an artificial rule. It is out of place in dealing with testimony. Let the judge test each case by itself.”

We look to the application of the law to the case at bar.

The testimony of these elderly ladies throughout their several vigorous cross-examinations reveals a natural purpose not to blame their son and nephew. Yet, it is to be noted that in the main they expressed only broad legal conclusions that he was operating his car properly, and opinions as to speed without having proper qualifications to judge the rate. The testimony, as that in City of Lexington v. Clarke, supra, 290 Ky. 290, 160 S.W.2d 653, was “purely a matter of estimation or guesswork.” In Head v. Russell, Ky., 307 S.W.2d 557, a case much like the present, similar testimony of two lady guests in an automobile involved in an intersection collision was likewise regarded as not constituting judicial admissions of no negligence on the part of their host, whom they were suing. We so held “since they do not establish unequivocally that the sole cause of the accident was the negligence of another as was required in Bell v. Harmon, Ky., 284 S.W.2d 812. See also 31 C.J.S. Evidence § 381d. The facts and circumstances revealed by these witnesses as well as by others were sufficient to raise a question for the jury.”

In the instant case, we think the “admissions” were of a character that entitled the plaintiffs to the benefit of other and more definite testimony concerning the excessive speed of the driver of the car, Elpers, and the reasonable inference, among other things, that he did not have it under control under the circumstances. The trial court was in error in holding these were fatal judicial admissions.

Moreover, as we have &bserved, there was another prime factor which could well be deemed negligence on the driver’s part, namely, his failure to avoid the collision by going around Kimbel’s car. If it was moving, he might have gone behind it. If it had stopped, he could have gone either in front or behind it. The. plaintiffs did not undertake to testify concerning that factor.

We are of opinion that the judgment n. o. v. in favor of the defendant was error. The judgment is accordingly reversed with directions to enter another according to the verdicts.

The judgment in Elpers v. Kimbel is affirmed.

The judgment in Johnson v. Kimbel is reversed.

      . The rule is not applicable in cases of master and servant, since liability of the master is derivative. Baldwin v. Wiggins, Ky., 289 S.W.2d 729; Daniel v. Patrick, Ky., 333 S.W.2d 504.


author: MILLIKEN, Judge. PALMORE, MOREMEN and WILLIAMS, Judges

text:
    H. B. CAMERON et al., Appellants, v. Simon LEBOW et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 14, 1962.
    Rehearing Denied April 19, 1963.

      Sandidge & Sandidge, Thos. E. Sandidge, Owensboro, for appellants.
    William G. Craig, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellees.
   MILLIKEN, Judge.

This is the sequel to Cameron v. Lebow (1960), Ky., 338 S.W.2d 399, wherein we reversed a judgment entered on the pleadings under CR 12.03 and concluded that both issues of law and fact were presented which required development “by further pleading and perhaps proof. The complaint invites the issue of abandonment (of a 1939 oil lease), but also contains allegations tending to impair this defense.” In the present appeal the trial court had found that the lessees, Cameron, et al., appellants and plaintiffs below, had abandoned their 1939 lease, and that Lebow, et al., appellees and defendants below, holders of a later (1956) lease on the same property, had acquired their lease as bona fide purchasers. It is the appellants’ contention that the trial court’s finding of facts and conclusions of law are clearly erroneous.

In our previous opinion we pointed out “that a chronic source of difficulty is a finding of an intention to abandon, but this is likewise a question of fact which may be inferred from the acts of the parties” and that “mere lapse of time and nonuser, unaccompanied by any other evidence showing intention, as a general proposition may not of itself be enough to constitute abandonment” yet, “in view of the nature and purpose of an oil and gas lease and the practical necessities for expeditious development, the fact of abandonment may be more readily found than in other legal relationships,” citing authorities. With these general criteria to steer by and bearing in mind that the burden of proof is upon the party relying on abandonment, let us see how the evidence here persuades us.

In 1938 a gas and oil lease upon three adjoining tracts of land comprising 160 acres was executed by the owners to A. D. Shaffer who assigned the lease interest in approximately 55 acres which assignment, by mesne conveyances, became the property of the appellants in 1939. In that year the appellants drilled a dry hole on their 55 acres of the leasehold at an expense of about $8,000. Later in 1939 four producing oil wells were drilled on the remaining 105 acres by the holders of the lease interest on that portion and oil in commercial quantities has been produced thereon ever since. On the basis of the terms of the particular lease here involved and after an extensive analysis of decided cases, we concluded in our former opinion, Cameron v. Lebow (1960), Ky., 338 S.W.2d 399, 405, that the production on the 105-acre portion absolved the appellants (Cameron, et al.) from pursuing development on their 55-acre portion unless notice and demand therefor were made upon them by the lessors, and that their failure to pursue development did not constitute a forfeiture of their interest in the circumstances. No such demand was ever made upon them, so the key question remaining is whether the appellants abandoned their interest by not developing it for sixteen years.

Since the intention to abandon must be shown by “clear, unequivocal and decisive evidence” in order for an abandonment to be established, Hoff v. Girdler Corporation (1939), 104 Colo. 56, 88 P.2d 100, it necessarily follows that the attitudes of the original lessor and his successors in. interest as well as the attitude and conduct of the appellants (lessees) concerning their assigned interest in the lease are most relevant. We have said that “abandonment of a mineral lease consists of surrender of the property, coupled with an intention to relinquish the lease and is, in fact, to be determined in each case upon the surrounding facts and circumstances.” Browning v. Cavanaugh (1957), Ky., 300 S.W.2d 582.

The trial court concluded that the appellants abandoned their interest “before March 1947,” a conclusion with which we cannot agree. It was at this time that the appellant H. B. Cameron had a conversation with Mr. E. W. Richmond, then owner of the lessor interest, about the appellants’ failure to drill upon the 55-acre tract and was assured by Mr. Richmond, later confirmed in writing, that the appellants might continue as they had until Mr. Richmond notified them to resume development. For most of the period from the time of the test drill in the fall of 1939 until early 1947 World War II was being waged and Federal controls over oil production were in effect. This situation together with correspondence between H. B. Cameron and his colleagues after the failure of the test drill in 1939 to locate oil on the tract are rather convincing evidence that the appellants had no intention to abandon their lease during that period of time. Is there anything of a convincing nature after 1947 which establishes abandonment?

Since the production on the other 105 acres of the original Shaffer lease kept the appellants’ sublease on the remaining 55 acres alive until notice from the owners to drill (Cameron v. Lebow, above), it must be assumed that the appellants have not abandoned their interest unless convincing evidence points otherwise. No offset wells to the 55 acres had been drilled prior to August, 1956, there was apparently no production within a half mile of the 55 acres, no oil was being drained therefrom, and the appellants had operating wells nearby. The fact that no accounting records pertaining to the 55-acre lease were presented by the appellants does not seem to us to be a matter of any significance because there was nothing to record during the period. Furthermore, the fact that only H. B. Cameron, of all the appellants, was on hand during most of the period, does not impress us as indicating an intention to abandon. H. B. Cameron represented the appellants, developed other oil properties in the neighborhood, and admittedly informed Mr. Hartsough, one of the appellees, in September, 1956, that the appellants owned the lease, had not abandoned it, and impliedly notified Mr. Hartsough that he and the other appellees were trespassing when they drilled on the tract. Although Mr. Cameron had producing wells on another tract a half mile away and possibly did know of appellees’ drilling on the 55-acre tract, his aforesaid conversation with ap-pellee Hartsough is the only direct evidence we have of the time appellants first knew appellees were drilling on the 55 acres. Despite this the appellees started another well on the tract in the fall of 1956 and another in the summer of 1957 after the present litigation was begun, making three wells on the tract which produced oil in commercial quantities.

While it is true that the appellees had the title to the lease examined and Mr. Richmond was prevailed upon to give the top or later lease to the appellees because he was assured that the appellants had abandoned their lease in legal effect, the stark facts still were there which would have caused the appellees to alter their course had they not wanted to do otherwise. First, Mr. Richmond told appellees’ counsel of the appellants’ lease, and, second, the lease was in the chain of title. With the ubiquitous Mr. H.''B. Cameron always available, it would have been quite simple for the appellees or their counsel to ascertain whether the appellants still claimed an interest in the property. Instead, it seems to us, they studiously avoided doing so, the type of conduct condemned in Walter v. Ashland Oil & Refining Company (1945), 300 Ky. 43, 197 S.W.2d 425.

We conclude that in all the circumstances of this case the appellants’ lease is still good and that the evidence establishes that they did not abandon it.

The judgment is reversed.

PALMORE, MOREMEN and WILLIAMS, Judges

(dissenting).

We believe the chancellor’s finding of fact that the first lease was abandoned was supported by substantial evidence and therefore was not “clearly erroneous” under CR 52.01. For that reason we dissent from the majority opinion.


text:
    The HOME INSURANCE COMPANY OF NEW YORK, Appellant, v. Lewis CAUDILL et al., Appellees.
    Court of Appeals of Kentucky.
    March 22, 1963.
    Pat Rankin, Stanford, for appellant.
    • Cabell D. Francis, Stanford, for appel-lees.
   STANLEY, Commissioner.

On August 3, 1954, the Home Insurance Company of New York through its local agent at Stanford, O. M. Yeary d/b/a O. M. Yeary Insurance Company, issued a fire insurance policy to Lewis and Serilda Caudill, covering a farm dwelling house and its contents and a barn. The amount of indemnity for the house and contents was $3,000. The term was for five years. The premium was $148.25, payable in five installments of $29.65. Yeary collected one-fifth of the premium, $29.65, when the policy was issued. For the balance the insured executed a promissory note, payable in installments of $29.65 on the first day of August, 1955, 1956, 1957 and 1958. Fire destroyed the property on July 31, 1958. The company denied liability on the ground that the premium installment due August 1, 1957, had not been paid; and under the terms of the policy, as well as of the note, the insurance protection was suspended, and the company was not liable for loss during such default.

Two issues evolved: (1) whether the Caudills had, in fact, paid the premium due August 1, 1957, to Yeary through his office; and (2) if Yeary received the payment, whether he did so as the company’s agent or as Caudill’s agent for forwarding it to the company at its office in Chicago, where the contract provided the premium should be paid. And there is another question that demands consideration, namely, a waiver of default in prompt payment of that installment.

The trial court submitted the question of fact of payment to a jury and ruled as a matter of law that if the premium was so paid to Yeary, he received same as the company’s agent. The verdict was for the plaintiffs, and judgment was entered in accordance therewith and with the ruling of the court.

We find the verdict to be sustained. It was the jury’s province to accept the Caudills’ evidence over Yeary’s contradictory evidence.

The question is as to Yeary’s authority as agent of the company to accept the premium payment for and in its behalf. The trial court based his ruling upon the course of dealing in the matter of paying and receiving previous installments of the premium and the acquiescence and ratification on the part of the insurance company, for it accepted other remittances made directly by Yeary and never at any time before the fire questioned his authority, or, apparently, treated the policy as suspended or canceled.

The company has relied on the letter of the contracts — policy and note — -and the insureds’ failure to observe it strictly.

The note recited the insureds’ promise to pay the four installments to the company “at its office in Chicago or New York.” It also contained the agreement that in case any one of the installments should not be paid when due, the company would not be liable for loss during such default and the policy would lapse until payment was made to the company “at its office in Chicago or New York.”'

The policy contained the provision, “Payments of notes or installments must be made to the said insurance company at its Farm Department Office, as specified in the note, or to an authorized person having possession of such note or obligation for collection.”

It is admitted that the agent, Yeary, had authority to collect, and that he did collect, for the company the initial installment of the premium when the policy was issued August 3, 1954. He had charged that premium to Caudill’s account with his agency and remitted the amount to the company’s general office on September 30, 1954, but he did not collect from Caudill until December 28, 1954.

The 1955 and 1956 installments, at Cau-dill’s request to take care of the premium (notice of maturity, it appears, having been received by Caudill), were paid in cash to Yeary, and he made the remittances by his checks. This was done, as Yeary maintained, as a personal favor to Caudill, since he was under no obligation and had no authority to collect the premium.

Concerning the crucial installment due August 1, 1957, the evidence as to the actual payment to Yeary is in dispute. Caudill’s testimony is that on August 5, 1957, Yeary came to him while he was sitting in a car in Stanford and asked him to pay the premium, saying that he had sent in his personal check. Cash was promptly taken by Mrs. Caudill to Yeary’s office and paid to his clerk. This transaction was denied by Yeary and his clerk. As stated, the issue was decided by the jury in favor of the Caudills. But there is more. Caudill and his wife testified that on November 30, 1957, Yeary came out to their home and requested that he be paid his money, repeating that he had sent in his check for the premium. Although Caudill insisted the premium had been paid, he testified that after some dispute he gave a $20 check to Yeary (a photostatic copy of which was filed in the record), and the balance of $9.-65 Caudill claimed was paid by his son at Yeary’s office, for which he obtained a receipt, which he says was destroyed in the fire. Yeary’s version of this is that the payment was made in partial adjustment of an account for premium on an automobile liability policy and a guardian’s bond. His evidence is more plausible.

Concerning the installment due August 1, 1957, Yeary testified that about August 15, 1957, he received notice from the Chicago office that the installment had not been paid, and about the 15th or 20th he went to see Caudill about it. Caudill told him he didn’t have the money and could not assure him when he would have it. He then told Caudill he was unable to pay it for him, and after that, said Yeary, “I just lost sight of it.”

When Yeary heard about the fire which destroyed the property, he went to see the Caudills, who were occupying a neighbor’s house. Yeary testified he assured them they didn’t have anything to worry about “if their policy was in order.” The Caudills testified he told them, “It’s a good thing you had insurance with us,” and not to worry too much, as it wouldn’t be but a few days until they had their money.

A few days afterward, Yeary and W. Gr. Satterly, the company’s adjuster, went to see the Caudills and told them they would have to have an itemized list of the destroyed household contents. There is no contradiction about this. Yeary testified, “We didn’t know the policy status at that time.” Caudill further related that the next day he met Yeary on a road and he asked him for “another year’s premium.” Caudill replied he would have to go get the money, and went to his employer and got a check for $14 owing him and turned it over to Yeary and paid the balance to him in cash, for all of which he was given a receipt. He filed an original receipt of the Yeary Insurance Agency dated “8/1/1958” for $29.65, bearing the notation, “Policy #93-43-705,” which is the policy involved in the lawsuit. Yeary’s testimony is that Caudill came to his office and paid the money.

Remittance of this installment payment was made by Yeary to the Chicago office on a form furnished by the company, which is stamped, “Received, Aug. 5, 1958.” This, it will be noted, was after the fire.

Thomas L. Paul, manager of the defendant’s Chicago accounting department, testified concerning the practice or mode of operation of the company with respect to installment premium remittances. It is that fifteen days before an installment is due, notice is mailed to the insured, advising him of the approaching maturity. In the event remittance- is not received, a notice to that effect is mailed to the company’s local agent and it becomes the agent’s duty to collect the premium. The witness testified that his records indicated notice had been sent Caudill for the 1955, 1956 and 1957 installments but none for 1958 because the policy was suspended and had been cancelled. Thus, it is admitted that the local agent had authority to collect the first part of the premium on these policies and to collect and receive past due installments. This is not in accord with the policy provision that installments must be paid to the Farm Department Office (which was in Chicago) or an authorized person who had possession of the note for collection.

In summary: Yeary, as agent of the company, had the express authority to collect the first payment of the premium and to collect past due installments of the note, although the policy and note provided the installments should be paid at the Chicago office or to “an authorized person having possession of such note or obligation for collection.” There is no claim that Yeary ever had possession of the note after it was sent into the office when the policy was issued. Yeary admittedly did receive payments of the 1955 and 1956 installments from Caudill and did remit the payments by his checks, and same were accepted by the company as being payments by the insured. While the installment due August 1, 1957, was not remitted by Yeary (because he claimed it was not received), yet, he admits that under authority he tried to collect that installment fifteen or twenty days after maturity but was unsuccessful.

The course of dealing with the insured in relation to the installment payments will not permit the company to say that failure of the insured to remit the August 1, 1957, installment directly to the Chicago office was no payment at all. Its course of dealing with these policyholders with respect to the payment of previous premium installments amounted to a custom •or habit justifying the insured in believing that his payment to the local agent as being to one having authority was sufficient and binding on the company by the agent’s acceptance thereof. Couch on Insurance, 2d, •§§ 26.57, 26.58; 29 A Am.Jur., Insurance, § 1096; Brown v. Fidelity Mutual Life Insurance Co., 197 Ky. 430, 247 S.W. 47; Fidelity Phenix Fire Ins. Co. v. Flora, 235 Ky. 439, 31 S.W.2d 699; Cf. Westchester Fire Ins. Co. of New York v. Gray, Ky., 240 S.W.2d 825, 33 A.L.R.2d 608.

So much on the question of Yeary’s authority to receive the payment of the installment due August 1, 1957, which prevented lapse of the policy before the fire July 31, 1958.

There are other reasons why the insurance company may not avoid liability on the policy, even if its contention as to absence of its agent’s authority to receive payment before or after due date of the 1957 installment should be sustainable.

The policy was never canceled in accordance with its provisions, which were, in part, to give the insured five days’ written notice of cancellation. It provided that the company should not be liable for any loss that might occur while any installment of the premium remained past due and unpaid. The effect of such provision is to suspend the policy during the period of delinquency. Fidelity Phenix Fire Ins. Co. v. Flora, 235 Ky. 439, 31 S.W.2d 699. Where there is such suspension, the payment of an overdue installment automatically revives the policy back to the due date of the installment. 45 C.J.S. Insurance § 581.

It is of importance that after Yeary knew about the fire, he collected an installment of the premium note and remitted it to the company’s Chicago office. It is well settled that an insurance company cannot treat the contract as valid for the purpose of collecting the premium and invalid for the purpose of paying the indemnity. Kentucky Live Stock Ins. Co. v. Stout, 175 Ky. 343, 194 S.W. 318; Inter-Southern Life Ins. Co. v. Omer, 238 Ky. 790, 38 S.W.2d 931; Cheek v. Commonwealth Life Ins. Co., 277 Ky. 677, 126 S.W. 2d 1084.

It is said in 29A Am.Jur., Insurance, § 1089 :

“As a general rule, the acceptance by an insurance company of the payment of a premium note after the maturity of the note is a waiver of a forfeiture of a policy caused by the prior default in the payment of the note, even though such payment is received after a loss covered by the policy and the policy provides for a suspension of liability during default in the payment of premium notes.”

We have had a number of cases involving the same or similar provisions of policies of the appellant.

It is admitted that fifteen or twenty days after the August 1, 1957, installment was due Yeary, within his express authority, made an unconditional request for payment thereof. In Walls v. Home Ins. Co., 114 Ky. 611, 71 S.W. 650, 102 Am.St.Rep. 298, it was held that a condition contained in a policy and notes, that the policy should lapse and the company not be liable for loss during default in the payment of a note, was waived where the insurance company not only retained the note after it was due but also unconditionally requested payment in full for the current year. In Morgan v. Home Ins. Co., 216 Ky. 589, 288 S.W. 321, after fire had destroyed the property, the company’s local agent mailed the insured’s check for a past due installment of the note to the company’s Chicago office, but the check was promptly returned with the cancelled note. While we held there had been no waiver of the default, upon citation of numerous previous cases we observed, “In this state the rule that such stipulation may be waived by the insurer’s retention of the note and making an unconditional demand for payment is equally well settled.” In Home Ins. Co. v. Westerfield, 266 Ky. 494, 99 S.W.2d 464, the decision turned on the fact of whether the company had written a letter containing an unconditional request for payment of a past due installment of the premium note. The company denied having written such letter, and the insured claimed he had received it but it was lost. We held proof of its loss was not sufficient to authorize the admission of secondary evidence as to its contents and that the trial court should not have submitted the case to the jury. However, in the course of the opinion we noted that “a less imperative notice” than a request to remit an installment of the premium without delay which said nothing concerning the suspension of the company's liability during the time the premium remained unpaid had been held in several cases cited to be an unconditional demand for payment.

The conclusion of the whole case is that the company is liable on its contract because (1) the jury having found the August 1, 1957, installment was paid to the company’s local agent, the course of dealing, coupled with the agent’s express authority to collect overdue payments, constituted an ostensible authority to receive the same; and (2) there was a waiver of prompt payment of that installment by subsequent actions on the part of the company and its agent.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Mrs. Tracy (Lorene) DAVENPORT, Appellee.
    Court of Appeals of Kentucky.
    March 22, 1963.

      John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellant.
    J. B. Johnson, Jr., Louisville, for appellee.
   MOREMEN, Judge.

Appellee, Mrs. Tracy (Lorene) Davenport was indicted in the Whitley Circuit Court for the offense of possessing alcoholic beverages for the purpose of sale in dry local option territory.

When the case came on for trial appellee filed motion to quash the affidavit and search warrant and to suppress the evidence obtained by reason of the execution of the warrant on the ground that the affidavit was insufficient. The circuit court sustained the motion and the appellee was found not guilty. The Commonwealth has appealed under Section 335 of the Criminal Code of Practice for a certification of the law.

The affidavit which was executed by the sheriff of Whitley County reads in part as follows:

“The affiant states that he bases the aforesaid belief on information furnished him by Isham Alder, a reputable citizen of Whitley County, Kentucky, and who is also a citizen and resident of Whitley County, Kentucky, and a Constable of said County and State, and who on today, July 30, 1961, told the affiant as follows:
“Loraine (Mrs. Tracy) Davenport is selling whiskey; that she just bought a big load of red whiskey, wine, gin, and other alcoholic beverages, and she has some whiskey, wine, beer, gin and other intoxicating beverages now in her house or premises adjacent thereto on today for the purpose of sale, gift, or barter in violation of the Local Option Law.”

In Henson v. Commonwealth, Ky., 347 S.W.2d 546, it was held that where an affidavit for a search warrant states the essence of illegal possession as an ultimate fact, the affidavit must relate how and when the fact was observed.

In Williams v. Commonwealth, Ky., 355 S.W.2d 302, it was pointed out that even before the Henson case, it was the rule that when an affidavit is based on information or belief, it must disclose when the observation was made by the informant. See also Williamson v. Commonwealth, Ky., 349 S.W.2d 825; and Messer v. Commonwealth, Ky., 350 S.W.2d 486.

It is argued by the Commonwealth in the case at bar that the expression, “who on today, July 30, 1961 told the affiant” definitely fixes the date and time the observation was made, the information obtained and imparted. The quoted expression, together with the statement that she had just bought a big load of alcoholic beverages and that she had some of such beverages in her house, is perhaps specific enough as concerns the time that appellee had in her possession the intoxicating liquors for the purpose of sale, but it does not state the manner in which the observation was made.

We are of opinion that the affidavit under consideration fails to meet the standard set forth in the cases above cited. The •court correctly sustained the motion to quash the affidavit and search warrant and to suppress the evidence obtained by reason of the warrant.

The law is so certified.


text:
    Odell BERRY et al., d/b/a Odell Excavating Company, Appellants, v. John B. WALTON et al., Appellees.
    Court of Appeals of Kentucky.
    March 22, 1963.
    Joseph C. Healy, Howell W. Vincent, Covington, for appellants.
    Sawyer A. Smith, Covington, for ap-pellees.
   PALMORE, Judge.

The dispositive question raised by this litigation is whether a mineral lease that does not specify a term and does not place on the lessee any express obligation except to account for and pay a royalty on whatever quantity of material he may remove is terminable at the will of the lessor.

We need not determine whether the lack of a definite or definable term was fatal to the contract. Even with a specific term, if a party has given no consideration for a contract under which he is free to perform or not, as he sees fit, it lacks mutuality and, to the extent that it remains unexecuted, is terminable at the will of the other party. Daniel Boone Coal Co. v. Miller, 1920, 186 Ky. 561, 217 S.W. 666; Soaper v. King, 1915, 167 Ky. 121, 180 S.W. 46.

The language of the Daniel Boone Coal Co. opinion indicates that the lack of mutuality in that case rested on an express right of termination reserved in favor of the lessee, and as the appellants in this case have correctly pointed out, a right in one party to terminate an agreement at will, without a corresponding right in the other, does not necessarily deprive the contract of mutuality and thus render it unenforceable. Cf. David Roth’s Sons, Inc., v. Wright and Taylor, Inc., Ky.1961, 343 S.W. 2d 389. But if the agreement is wholly ex-ecutory and one of the parties is not obligated even to commence the performance of it, there is a lack of mutuality. On this basis the result in the Daniel Boone Co. case was sound. It is not the right of termination (which, if the lessee is not. obliged to perform, is of no significance anyway), but the right of non-performance, that makes the agreement unenforceable.

The judgment is affirmed.


author: STEWART, Chief Justice. PALMORE, Judge

text:
    Goebel Lee NEWSOME, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 14, 1962.
    Dissenting Opinion Jan. 15, 1963.
    Rehearing Denied April 19, 1963.
    Francis M. Burke, Pikeville, for appellant.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STEWART, Chief Justice.

Appellant, Goebel Lee Newsome, was indicted for the wilful murder of Lawrence Robinson. He was convicted in the Pike Circuit Court of voluntary manslaughter and sentenced to 21 years in the penitentiary.

The evidence for the Commonwealth established that Newsome and his co-defendant, Roy Branham, and Lawrence Robinson and Ireland Robinson, the latter two being brothers, got together about 5:00 p. m. on the afternoon of November 11, 1960. They visited a number of places including a road house before going to the home of Charles “Bit” Elswick on the top of a remote mountain between Caney and Marrowbone creeks in Pike County.

After spending about on hour with Els-wick, his wife and some others who were visiting the Elswicks, Newsome, Roy Bran-ham and Lawrence Robinson went out of the Elswick house. A short time later Els-wick heard some commotion which caused him to open his front door and look out. He saw Lawrence Robinson lying face down and Newsome standing near him with a baseball bat in both hands. Ireland Robinson, the brother of the prone man, presently appeared and he and Elswick both testified that Newsome said: “I have killed your brother and I’m going to kill you too, damn you”, and started advancing and striking at him. Lawrence Robinson died early the next day from the injuries thus received.

Newsome’s defense at his trial was insanity. He testified that at the age of 12 he fell and severely injured his head. Since that time he has been subject to blackouts of varying duration. He stated he did not remember anything from a time shortly before the murder until he came to his senses, about four days later, and found himself in Harvard, Illinois, a town close to Belvidere in that state where he then resided. When his wife informed him he was wanted by the police, according to his testimony, he promptly surrendered himself.

Newsome’s wife and mother testified to the fact that he often had seizures during which time he became uncontrollable and violent. Two doctors testified that, from physical examinations and tests such as an encephalograph and a study of his past medical history, which included a mastoid operation, Newsome suffered from an organic deterioration of his brain cells and that such deterioration amounted to a mental defect or disease which led to the mental blackouts of which he complained and which produced a lowered control of his activities.

Appellant first argues that the M’Naghten Rule which is applied in Kentucky to determine criminal responsibility as to mentally defective persons should be struck down. The trial court instructed on insanity using the M’Naghten test. The M’Naghten Rule is to be found in 8 English Reports, Reprint, at p. 722 et seq. (1843), and was engendered by the excitement and fear which grew out of the acquittal of Daniel M’Naghten who had attempted to assassinate Sir Robert Peel, the then Prime Minister of England, but who instead shot Peel’s private secretary, Drummond, because M’Naghten had mistaken Drummond for Peel. See United States v. Currens, 3 Cir., 290 F.2d 751.

A fairly recent panel conference on mental disease as it relates to criminal responsibility was held at the Harvard Law School and this problem was considered at length. The participants were Professor Abram J. Chayes of the Harvard Law School, who had assisted in the preparation of the Durham opinion and who presented the view adopted therein (See Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d, 1430); Professor Herbert Wechsler of the Columbia Law School, Chief Reporter of the American Law Institute’s Model Penal Code, who presented the American Law Institute’s view (the Model Penal Code, which promulgated what might be called “the ir-resistable impulse” test, was adopted at a meeting of the American Law Institute in Washington in May of 1962); and Professor Jerome Hall of the Indiana University School of Law, who presented the M’Naghten view.

The proceedings of this symposium, in part, appear under the title of Mental Disease and Criminal Responsibility— M’Naghten versus Durham and The American Law Institute’s Tentative Draft in 33 Indiana Law Journal, pages 212 through 225. Professor Jerome Hall, the author of this law journal article, discusses critically the views mentioned above. For a fuller discussion of mental disease and criminal responsibility see the publications dealing with this subject in the footnote references to the law journal article.

The McNaghten Rule has become fastened onto the law of England and is controlling in practically all of the states, and has also been followed by nearly all of the federal courts. Kentucky has consistently adhered to this rule. See Corder v. Commonwealth, Ky., 278 S.W.2d 77; Sharp v. Commonwealth, 308 Ky. 765, 215 S.W.2d 983; Horn v. Commonwealth, 292 Ky. 587, 167 S.W.2d 58; and Cline v. Commonwealth, 248 Ky. 609, 59 S.W.2d 577. The simple formulations of the McNaghten Rule are thus set forth in Professor Jerome Hall’s law journal article at page 213:

“ * * * The McNaghten Rule is the rule of reason. It is stated * * * in two formulas * * *. One * * * is — does the defendant have the competence to understand ordinary everyday things and actions and the ordinary consequences of these actions? This is what psychiatrists talk about in terms of ‘the reality principle.’ And the other wing of M’Naghten asks, does he have the competence to understand ordinary valuations which, in the criminal law, means, e. g., does he know that it is wrong to bash in somebody’s head or to kill a human being? * *

Appellant’s chief criticism of the M’Naghten Rule is that it is archaic and obsolete, and that this Court should substitute therefor a so-called realistic and workable test to resolve the criminal responsibility of the insane or mentally ill, based upon present knowledge developed by research and study in this area by the medical, psychiatric and psychological professions.

It is argued that the relation of mental illness to criminal responsibility should be left to the determination of experts, the psychiatrists and the psychologists, and that the courts should be guided by their more enlightened diagnosis of the particular mental disease under consideration. But the problem then arises, which experts shall we believe, for it is a matter of common observation that there are no basic psychiatric or psychological concepts that all psychiatrists or psychologists are able to accept unconditionally.

Psychology, including psychiatry, deals with vastly complex and impalpable data. Eminent psychiatrists themselves have testified as to the status of psychiatry: e. g., H. S. Sullivan, that “the best psychiatry is still more of art than of science”; and C. G. Jung, that “there are, in fact, many methods, standpoints, views and convictions which are all at war with one another.” See Psychiatry and Criminal Responsibility, 65 Yale Law Journal, 261, 772.

The purpose of this opinion is not to discuss in detail or undertake to evaluate the Durham Rule and the American Law Institute Rule. Appellant leaves us in the dark as to which of these rules he would have this Court adopt. At the present time, proponents of the one rule are unable to agree upon the principles underlying the other. As both of these rules have evolved from the research of psychiatrist and physiologist, we believe as Professor Jerome Hall states the proposition in the last sentence of his law journal article. He said: “But there must be a great deal of study before we can determine what is valid and how to use the insights and discoveries of clinical work effectively without destroying the values represented in our law.”

This Court concludes the M’Naghten Rule should be retained as the test for criminal responsibility in this jurisdiction.

Appellant next argues that he was entitled to a directed verdict of not guilty by reason of his insanity; that the Commonwealth was entitled to rely upon the presumption that he was sane; but that appellant’s uncontroverted evidence of insanity rebutted such a presumption and the jury had no evidence upon which to base its finding of sanity.

It is true the Commonwealth did not introduce any evidence to rebut the testimony of insanity. In criminal actions the mere fact that a defendant has some form of insanity does not relieve him from the consequences of his act; he must he so bereft of mind as to render him incapable of knowing right from wrong or, if knowing, incapable of controlling his actions.

It is apparent from the medical testimony introduced that the question of appellant’s insanity at the time of the commission of the act did not resolve itself into one of law but was an issue of fact to be determined by the jury. It follows that the Court did not err in overruling appellant’s motion for a peremptory instruction. See Sharp v. Commonwealth, 308 Ky. 765, 215 S.W.2d 983.

Appellant’s final contention is that “Instruction 4 — A” on drunkenness was erroneous and highly prejudicial to appellant’s substantial rights. We do not agree. The instruction given in the present case is almost identical to the model set forth in Vol. 3, sec. 902(2), p. 217, of Stanley’s Kentucky Instruction to Juries. It was approved in Arnold v. Commonwealth, 194 Ky. 421, 240 S.W. 87, and Mathley v. Commonwealth, 120 Ky. 389, 86 S.W. 988. In the former case, the defense against homicide was insanity. There was evidence offered that the defendant had been drinking. This Court stated:

“ * * * it would not have been error for the court to have instructed the jury that, if his lack of reason to know right from wrong, or lack of will power to govern his actions, arose alone from voluntary drunkenness, he should not be acquitted upon the ground that he was insane.”

In the present case, there was evidence offered that appellant and several others had been drinking intermittently from the time he started traveling to Kentucky until the death of Lawrence Robinson. Thus, it was proper for the court to instruct as it did.

Wherefore, the judgment is affirmed.

PALMORE, Judge

(dissenting).

Conceding that a combination of the M’Naghten and irresistible impulse tests is still fundamentally the most practical approach to the defense of “insanity,” it can and should be put in a clearer and better form than is stated in our standard instruction, taken from Abbott v. Com., 1900, 107 Ky. 624, 21 K.L.R. 1372, 55 S.W. 196. See Stanley’s Instructions, § 901.

In an address before the New York Academy of Medicine on November 1, 1928, the late Mr. Justice Cardozo, then a member of the Court of Appeals of New York, in reviewing the M’Naghten rule and expressing hope for its improvement, spoke as follows:

“In the early stages of our law, way back in medieval times, insanity was never a defense for crime. The insane killer, like the man who killed in self-defense, might seek a pardon from the king, and would often get one. He had no defense at law. Gradually there came in the law itself a mitigation of this rigor. A defense of insanity was allowed, but only within the narrowest limits. This was what has become known as the wild-beast stage of the defense. The killer was not excused unless he had so lost his mind as to be no more capable of understanding than if he were merely a wild beast. Then the limits of the defense were expanded, but still slowly and narrowly. The killer was excused if the disease of the mind was such that he was incapable of appreciating the difference between right and wrong. At first this meant, not the right and wrong of the particular case, but right and wrong generally or in the abstract, the difference, as it was sometimes said, between good and evil. Later the rule was modified in favor of the prisoner so that capacity to distinguish between right and wrong generally would not charge with responsibility if there was not capacity to understand the difference in relation to the particular act, the subject of the crime. The rule governing the subject was crystallized in England in 1843 by the answer made by the House of Lords to questions submitted by the judges in the famous case of McNaghten, who was tried for the murder of one Drummond, the secretary of Sir Robert Peel. The answer was in effect that ‘the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity it must be clearly proved that, at the time of committing the act, the accused was laboring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.’

⅜ ‡ ⅜ ⅜ ⅝ ‡

“I am not unmindful of the difficulty of framing a definition of insanity that will not be so broad as to open wide the door to evasion and imposture. Conceivably the law will have to say that the risk is too great, that the insane must answer with their lives, lest under cover of their privilege the impostor shall escape. Conceivably the twilight zone between sanity and insanity is so broad and so vague as to bid defiance to exact description. I do not know, though I am reluctant to concede that science is so impotent. Attempts at formulation of a governing principle or standard have been none too encouraging, but betterment is attainable, though it be something less than perfection. Many states * * * recognize the fact that insanity may find expression in an irresistible impulse, yet I am not aware that the administration of their criminal law has suffered as a consequence. Much of the danger might be obviated if the issue of insanity were triable by a specially constituted tribunal rather than the usual jury. Of this at least I am persuaded: the medical profession of the state, the students of the life of the mind in health and in disease, should combine with students of the law in a scientific and deliberate effort to frame a definition, and a system of administration, that will combine efficiency with truth. If insanity is not to be a defense, let us say so frankly and even brutally, but let us not mock ourselves with a definition that palters with reality. Such a method is neither good morals nor good science nor good law. I know it is often said, and very likely with technical correctness, that the statute ought not to be viewed as defining insanity. What it does, and all that it does is to state the forms or phases of insanity that will bring immunity from punishment. All this may be true, yet it is hard to read the statute without feeling that by implication and suggestion it offers something more. It keeps the word of promise to the ear and breaks it to the hope. Let us try to improve its science and at the very least its candor.”

It is well known that psychiatrists do not like to discuss mental abnormality in terms of the subject’s capacity to distinguish between right and wrong — particularly right and wrong in an abstract moral sense as distinguished from the criminality of the particular conduct in question. To some extent this objection results from a failure to appreciate the different objectives of medicine and the law. The law seeks to ascertain and reflect sound social policy, and a technically correct medical definition of insanity may be, and ordinarily will be, irrelevant to that purpose. Thus we have, and properly so, different criteria as to capacity to make a will, to enter into a contract, to commit a crime, and to stand trial. Still others apply to civil commitment. That a person is insane from the standpoint of medical definition need not, and of itself does not, suspend his obligation to obey the law unless the defect or disease impairs his capacity to do so. The social policy expressed by the M’Naghten rule is that if a man has enough wit to know right from wrong in the matter at hand it will be presumed that he is capable of submission to the deterrent effect of the law and its consequences. The rule has led a hardy existence because, like the fictional presumption that every man knows the law, it is socially useful. It helps to prevent chaos. And when the idea of irresistible compulsion (by reason of the infirmity) is added, the result makes pretty good sense.

“Whatever legal rule is laid down will reflect a judgment on the basic policy question of the extent to which the state should interfere with the liberty of the individual in the interest of all. The extreme libertarian will perhaps be willing to deprive a person of his liberty only when that liberty endangers others. As for the individual who is sane enough most of the time to understand that in his depressed phases he may commit suicide and who prefers to run that risk rather than go to the hospital, the libertarian extremist might want to allow that choice. At the other extreme are those who would allow the state to act for the person’s own good, even when he does not want it. In between, there is room for several other lines of demarcation for those 'Who would weigh individual liberty against aocial welfare. * * * In criminal law, it has been pointed out that the ‘test’ of insanity is not a clumsy effort by the profession to define a psychosis. It is an attempt to answer the policy question: granting that the defendant is more or less mentally abnormal, what should we do with him? Should he be dealt with by the state’s penal-correctional program, or by the medical-therapeutic? The answer depends upon our concept of ‘justice’ and the purpose of punishment, our penal policy, the institutional facilities we have available or that the taxpayers are willing to provide, and other considerations. The law, speaking for the community, has to consider the patient, his health and his rights and responsibilities as a free man, the interest of society in the health and safety of its members generally, and various other, perhaps competing interests. * * * It is true that where the legal rule concerns mentally disordered persons, any answer should accord with current psychiatric knowledge. * * * But the ultimate decision is not merely a psychiatric one. It is a major policy decision. This is the legal rationale of the point frequently made by psychiatrists that they ought not be asked for their opinions on this policy issue, but should testify only on the medical issue, the existence or non-existence of mental illness.”

In the paper from which the foregoing excerpts are taken the author goes on to say that there is no valid reason why medical witnesses, recognizing the true purpose of the “legal” definition, should be reluctant to testify in terms of right and wrong, and suggests that the “real reason why psychiatrists object * * * is not that such questions are legal and not medical, but that they are badly conceived and worded.”

The attempt to ascertain, by means of a jury trial, just what a man’s mental condition was at the time he committed an offensive act is, to me, one of the great follies of our time. So long, of course, as we have capital punishment it will be unavoidable in capital cases. But the truth is that there can never be a really satisfactory definition of sanity and insanity for purposes of determining guilt or innocence in a criminal trial. I suggest that some day we must drop the defense of insanity altogether, and focus our attention forward rather than backward, to the problem of what is to be done with the offender. The thing of public significance is that the act was committed. It makes the perpetrator a social problem under any circumstances, sane or insane, free will or not. If his conduct bespeaks a public menace, he must be taken in regardless of what is going on in his mind. To determine just what acts and conduct will necessitate a suspension of the actor’s liberty for the protection of the public, and to provide procedural safeguards, are policy problems and, therefore, purely legal functions. But an inquiry into his mental state is more properly addressed to the disposition stage: What, if any, treatment is indicated? Should he be sent to a penal or to a medical institution, or a combination of the two? In this phase of the matter, though the law must continue to have a vital interest, its traditional processes are inept and unsuitable, and certainly the courtroom trial can have no valid or constructive role. Here it must be acknowledged that the disciplines of medicine and psychology have a function of equal if not greater adaptability and value than that of the law.

In both public attitude and institutional facilities we are unready as yet to implement the inevitable. It is high time, however, that we scout ahead, if only in the mind’s eye. This opinion is an invitation to that end. And there is, in the meantime, room for improvement in our instruction on the defense of insanity. At least, as Prof. Weihofen suggested, it is badly worded if not badly conceived. To illustrate, in Thompson v. Com., 1913, 155 Ky. 333, 159 S.W. 829, this court itself seems to have misconstrued the M’Naghten rule when it rejected the contention that the instruction should be extended so as to submit “the question of whether the defendant knew right from wrong with reference to the particular offense charged * * (Emphasis added.) It may be that the case was argued from the viewpoint that “right and wrong” should be defined in a moral rather than a legal sense, and in this respect the court did follow the orthodox construction of M’Naghten to the effect that the defendant's understanding that he was acting “contrary to the law of the land” would be sufficient to justify conviction. But the appellant was correct in contending that the instruction should relate the test to the specific offense charged, and not to his knowledge of right from wrong in the abstract. The point is that the instruction does not make this clear to the jury, nor, on its face, does it even suggest whether “right and wrong” are to be considered in a moral or in a legal sense.

Section 4.01 of the Model Penal Code approved by the American Law Institute in 1962 proposes the following definition:

“(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality * * * of his conduct or to conform his conduct to the requirements of the law.
“(2) As used in this Article, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

In United States v. Currens, CA 3, 290 F.2d 751 (1961), the court dropped the xknowledge” feature of the test and suggested an instruction as follows:

“The jury must he satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated.”

It will be noted that both of these tests center on whether, by reason of defect or disease, the defendant lacked “substantial capacity.” In that they do not demand a complete impairment, both would relax the M’Naghten and “irresistible impulse” rules.

In the famous Durham case the approved criterion was whether the unlawful act was “the product of mental disease or defect.” As the majority opinion suggests, there is little indication thus far that this approach represents any improvement over what we had before, and particularly is it so if we are willing to make some reasonable improvements in what we had before.

My conclusion is that the rule stated in the Model Penal Code is reasonable and workable. It says in effect that if the defendant, by reason of mental disease or defect, was substantially unable to understand that he was violating the law, or, if he did understand it, was yet substantially unable to resist his impulses to break the law, he has a defense. This is not startlingly different from what our instruction tries to say but says badly. It preserves all that is sound in the policies reflected by the M’Naghten and “irresistible impulse” rules.

It is my opinion that the insanity instruction heretofore approved in this state is not adequate and that it should be revised substantially as follows:

“The law presumes every man sane until the contrary is shown by the evidence. Before the defendant can be excused on the ■giound of insanity the jury must believe from the evidence that at the time of committing the offense in question the defendant, as a result of mental disease or defect, (a) did not have substantial capacity to appreciate the criminal nature of the act or, if he did have such capacity, (b) did not have substantial capacity to conform his conduct to the requirements of the law.” When appropriate under the evidence (for example, when there is an indication of psychopathic or sociopathic personality), a qualification to the effect that the terms “mental disease or defect” do not include an abnormality evidenced only by repeated criminal or otherwise anti-social conduct should be added.

Because the instructions as given do not sufficiently state the defense I would reverse and grant a new trial.

MILLIKEN and MOREMEN, JJ., join in this dissenting opinion.

      . “What Medicine Can Do for Daw,” reprinted in Selected Writings of Benjamin Nathan Cardozo (Fallon Publications, New York, 1947), p. 371 et seq.

      . See, for example, KRS 202.010(1), which defines a mentally ill person as “a person having a psychiatric or other disease which substantially impairs his mental health.” (!)

      . Cf. Montgomery v. Com., 1889, 88 Ky. 509, 11 K.L.R. 40, 11 S.W. 475, and Southern v. Com., 1925, 209 Ky. 70, 272 S.W. 26.

      . Cf. Dr. Henry A. Davidson, “The Psychiatrist’s Hole in the Administration of Criminal Justice,” 4 Rutgers L.Rev. 578-96 (1950), reprinted in Nice, Criminal Psychology (Philosophical Library, New York, 1982), p. 13 et seq.

      .Henry Weihofen, “The Definition of Mental Illness,” 21 Ohio State Law Journal 1 — 16 (1960), reprinted in Nice, Criminal Psychology (Philosophical Library, New York, 1962), p. 194 et seq.

      . See annotation, “Modern status of the M’Naghten ‘right-and-wrong’ test of criminal responsibility,” 45 A.L.R..2d 1430, 1454-5.

      . See United States v. Currens, C.A. 3, 290 F.2d 751, 764 (1961), n. 15.

      . See Commentary, Model Penal Code, Tentative Draft No. 4, p. 156.

      . Durham v. United States, 1954, 94 App. D.C. 228, 214 F.2d 862, 45 A.D.R.2d 1430.


text:
    Paul L. KELLEY et al., Appellants, v. S. E. DAILEY et al., Appellees.
    Court of Appeals of Kentucky.
    March 22, 1963.

      Henry J. Burt, Jr., Louisville, for appellants.
    Daniel B. Boone, Henry A. Triplett, Louisville, for appellees.
   PALMORE, Judge.

KRS 75.010 authorizes the establishment of a fire protection district on the petition of at least 51% of the voters residing within its boundaries. In this case a fire protection district embracing ½ square mile was established on the petition of 24 voters. Two weeks thereafter, pursuant to KRS 75.020, the newly formed district instituted proceedings to annex an additional area of approximately 4½ square miles. (The entire 5 square mile area theretofore had been served by a voluntary fire department.) Several hundred persons (numbering, however, less than 51% of the freeholders of the territory sought to be annexed) joined in a remonstrance. Since KRS 75.020 provides for a hearing on the merits only if 51% or more of the freeholders remonstrate, the circuit court entered judgment sustaining the annexation without hearing any evidence except what was necessary in order to determine the percentage of freeholders represented in the remonstrance. The remonstrants appeal, contending that they were entitled to a hearing on the merits. They contend also, in effect, that even without such a hearing the facts disclosed by the record are such that the annexation cannot be sustained.

A fire protection district organized under KRS 75.010 is, of course, a type of municipal corporation. “The fixing of municipal boundaries is generally considered to be a legislative, and not a judicial function, and the legislative action is not reviewable by the courts, unless it is arbitrary, unreasonable or violative of constitutional rights.” 2 McQuillin, Municipal Corporations pp. 258-259, 299-301, §§ 7.03, 7.16. ■“Since the creation of municipalities and all matters in relation to annexation are political acts, whether they shall be done or not is within the power and discretion of the Legislature as the political department of the government; hence the assent or the will of the people particularly affected is not controlling, for they hold their property subject to the exercise of the legislative power.” Sanitation Dist. No. 1 of Jefferson County v. City of Louisville, 1948, 308 Ky. 368, 213 S.W.2d 995, 999; City of Louisville v. Kraft, Ky.1957, 297 S.W.2d 39, 42.

It follows from these principles that an annexation statute need not, in order to be valid, allow for any remonstrance at all. If it does not, when the statutory prerequisites of the proposed annexation are met there can be no defense except on constitutional grounds (including, of course, arbitrariness, per Const. § 2). The absence of any provision in KRS 75.020 for a consideration on the merits when the remonstrants number less than 51% is too conspicuous for us to read one into it by implication. Therefore, since the remonstrance did not assert or raise a constitutional question, the trial court was correct in entering a judgment sustaining the annexation without hearing evidence relating to the merits of the proposal.

Appellants are in error as to the import of Town of Latonia v. Hopkins, 1898, 104 Ky. 419, 47 S.W. 248; Gilley v. City of Russell, 1926, 212 Ky. 798, 280 S.W. 101; Hardin v. City of St. Matthews, Ky.1951, 240 S.W.2d 554, and City of Louisville v. Kraft, Ky.1957, 297 S.W.2d 39. These opinions do not stand or fall on the stark proposition that a city must have a “substantial period of existence” before it can annex further territory. The vital issue in each was whether the proposed annexation was for the best interest of the city. The brevity of its municipal existence had significance only insofar as that circumstance related to the city’s capacity to function as a sound going concern if burdened by the additional area to be served. Moreover, under the general annexation statutes for all classes of cities (as distinguished from the more limited type of municipal unit with which we are here concerned), if a remonstrance is presented there is always a jus-ticiable issue on the merits (e. g., burdens and benefits), regardless of the number of remonstrants; the number or percentage merely governs the burden of proof or narrows the issues. See KRS 81.110, 81.140, 81.190, 81.210, 81.230, and 81.240. In each of the four cases just cited there was a hearing on the merits. In Gilley v. City of Russell and Hardin v. City of St. Matthews the question on appeal was whether the proof was sufficient to sustain a favorable finding, and it was decided in the negative. In Town of Latonia v. Hopkins the question was whether the proof was sufficient to sustain an unfavorable finding, and it was decided in the affirmative. In City of Louisville v. Kraft a finding adverse to annexation was held unjustified by the evidence. In the instant case the law does not allow for a determination on the merits; hence these authorities are not applicable.

Appellants are right in their contention that KRS 75.020 permits territory to be annexed more easily than it could have been included in the original establishment of the fire protection district. As we have indicated, however, that is a legislative prerogative.

The judgment is affirmed.