author: STONE, Presiding Judge.

text:
    Willie R. WHITEHORN, Plaintiff-Appellant, v. G. W. DICKERSON, Defendant-Respondent.
    No. 8612.
    Springfield Court of Appeals. Missouri.
    Sept. 29, 1967.
    James R. Hall, Doniphan, Graham Moore, Memphis, Tenn., for plaintiff-appellant.
    John A. Casey, Poplar Bluff, for defendant-respondent.
   STONE, Presiding Judge.

In this court-tried action for rental reserved under a written lease agreement executed under date of September 20, 1962, by plaintiff Mrs. Willie R. Whitehorn, as lessor, and by defendant G. W. Dickerson, as lessee, plaintiff appeals from a judgment in favor of defendant. The leased premises, a portion of a building owned by plaintiff in Covington, Tennessee, consisted of a ground-floor office suite remodeled by plaintiff according to “his [defendant’s] own plans” for the latter’s use in his practice as a chiropractor. The term of the lease was for the period of five years from and after October 1, 1962. The rental reserved for that term was $7,500 “payable monthly in advance in 60 monthly installments of $125.00 each.” After making eight monthly payments in the aggregate amount of $1,000, defendant quit the leased premises “because of his financial condition” and later moved to Missouri, where this action for subsequent installments was instituted.

Since the situs of the leased premises was in Tennessee and the lease was negotiated and executed there, the substantive rights of the respective parties are determinable under the law of Tennessee [Consolidated Sun Ray, Inc. v. Oppenstein, 8 Cir., 335 F.2d 801, 803(2); Broadwell v. Banks, D.C.Mo., 134 F. 470, 474; C. H. Little & Co. v. Gay Apparel Corp., D.C.N.Y., 108 F.Supp. 762, 763(2); annotation 15 A.L.R.2d 1199, 1203], and the parties so stipulated in the trial court. Relying upon Karns v. Vester Motor Co., 161 Tenn. 331, 30 S.W.2d 245, the only authority cited in his brief, defendant lessee asserts that case “imposes upon the landlord the duty to make a reasonable effort to rent the abandoned premises in order to minimize the lessor’s damage” and that instant plaintiff “was under an obligation to rent the abandoned premises even if said premises had to be rented at a lower rental.” So defendant contends that, upon his admitted abandonment of the leased premises, plaintiff had a duty to mitigate her damages, which she failed to discharge. Upon that theory the trial court was persuaded to enter a general judgment for defendant and we are urged to affirm.

But if plaintiff had such duty to mitigate damages (of which more anon), her failure so to do would not have destroyed her cause of action [Brown v. Kroger Company, Mo.App., 358 S.W.2d 429, 432] or barred her entirely from recovery, but only would have prevented the recovery of such damages as might have been avoided by reasonable efforts on her part. Brown v. Kroger Co., supra, 358 S.W.2d at 432; Cline v. City of St. Joseph, Mo.App., 245 S.W.2d 695, 702(10); Lokey v. Rudy-Patrick Seed Co., Mo.App., 285 S.W. 1028, 1033(12); 25 C.J.S. Damages § 33,1. c. 703. Hence,, this would have been an affirmative defense, as was recognized by defendant who pleaded it as such in his answer; and the burden of proof as to such defense would have rested upon defendant regardless of whether action had been instituted in Missouri [Cline v. City of St. Joseph, supra, 245 S.W.2d at 702 (11)] or in Tennessee. International Correspondence School v. Crabtree, 162 Tenn. 70, 34 S.W.2d 447, 449, 78 A.L.R. 330; Plesofsky v. Kaufman & Flonacker, 140 Tenn. 208, 204 S.W. 204, 206(2), 1 A.L.R. 433; Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785, 792 (12); Price v. Osborne, 24 Tenn.App. 525, 147 S.W.2d 412, 413(6, 7).

Upon cross-examination of plaintiff, the only witness, it was developed that she had made no affirmative effort to rent the leased premises after defendant had abandoned them, and that she had entertained the belief, perhaps mistakenly (so Karns v. Vester Motor Co., supra, would seem to indicate) but nevertheless honestly after advising with her then Tennessee counsel, that, if she had relet the abandoned premises on terms other than those in the lease executed by defendant, such action would have worked an acceptance of defendant’s surrender by operation of law, which would have extinguished the leasehold interest and released defendant from liability for payment of subsequent monthly installments. See Von Schleinitz v. North Hotel Co., 323 Mo. 1110, 23 S.W.2d 64, 74-78(1-3) ; Zoglin v. Layland, Mo.App., 328 S.W.2d 718, 722-723(7). However, she referred to defendant the “one or two” persons who called her about the leased premises, and her then Tennessee counsel even “drew up a. lease for a loan company who we thought would take it” but did not. There was no showing that any “reasonably acceptable tenant” was tendered by defendant or was otherwise available to plaintiff. See note 55 Mich.L.Rev. 1029, 1031. So it fairly could not have been said that plaintiff absolutely and arbitrarily refused to relet. Furthermore, there was no evidence as to (a) when the “one or two” persons or the “loan company” had contacted plaintiff, or (b) the date, rentals or terms upon which any person or firm would have leased the abandoned premises.

Accordingly, if it was plaintiff’s duty to have made an effort to mitigate her loss, the record before us would not have permitted a finding by the trier of the facts as to when that duty was breached, if so, or what diminution of damages would have resulted but for such breach. This was acknowledged by defendant’s counsel in his oral argument on appeal when, overlooking the fact that plaintiff’s alleged failure to mitigate her damages was an affirmative defense and that the burden of proof with respect thereto rested upon defendant, counsel frankly conceded that plaintiff would have been entitled to have recovered the stipulated rentals to the date on which she had (so he asserted) “refused to rent the premises” but vigorously insisted that the general judgment for defendant should be affirmed in the absence of evidence as to when she had so refused.

This brings us to the clear conclusion, with which our opinion properly might be terminated, that the judgment for defendant cannot stand. However, mindful that the case must be remanded for retrial, we are moved to discuss the basic question as to whether, under Tennessee law, plaintiff had a duty to take affirmative action in an effort to mitigate her damages. As we have noted, instant defendant insists that Karns v. Vester Motor Company, 161 Tenn. 331, 30 S.W.2d 245 (1930), imposed such duty. We do not so read and understand that case. In Karns, plaintiffs lessors were informed by defendant lessee that the latter intended to vacate the leased premises. Thereupon, plaintiffs notified defendant lessee that they declined to accept surrender of the lease and would continue to look to it for the rent but that, to minimize the loss, they would undertake to rent the premises for lessee’s account, still holding it responsible for any loss. The only issue was as to whether or not plaintiffs lessors, by thereafter rerenting the premises to others, “consented, as a matter of law, to the surrender of the premises” [30 S.W.2d at 245] and the only ruling necessary for disposition of the case on appeal was that, in the stated circumstances, there was no acceptance of surrender. Instant defendant relies upon the last sentence in Karns, supra, 30 S.W.2d at 246, that “[w]e do not hesitate, therefore, to adopt the broad and just rule stated above, which conforms to a general rule approved by this court, requiring the injured party to a contract to do everything possible to minimize his damages.” (Emphasis ours) But “the broad and just rule stated above” was the rule as to what works an acceptance by the lessor of the lessee’s surrender of leased premises, and the italicized portion of the above-quoted sentence shows that the court simply pointed out that such rule conformed to a general rule in the law of contracts.

In an annotation at 110 A.L.R. 368 on the subject “when landlord’s reletting, or efforts to relet, after tenant’s abandonment or refusal to enter, deemed to be acceptance of surrender,” the Karns case, supra, was cited with others in which “it has been held, apparently as a matter of law, that there was no acceptance of surrender.” 110 A. L.R. at 376. But Karns was not cited in either of two exhaustive annotations at 40 A.L.R. 190 and 126 A.L.R. 1219 on the basic issue in this case, i. e., “duty of landlord, on abandonment of premises by tenant before expiration of term, to use due diligence to procure another tenant.”

The appellate courts of Tennessee have cautioned the bar that “[w]hat we say in an opinion should be confined to, and limited by, the facts of the case under consideration and the questions necessary for a decision of that case.” Staten v. State, 191 Tenn. 157, 232 S.W.2d 18, 19(5); Textile Workers Union v. Brookside Mills, Inc., 47 Tenn.App. 663, 341 S.W.2d 758, 760. See Taylor v. Taylor, 162 Tenn. 482, 40 S.W.2d 393, 395. For similar warnings by our Missouri courts, see State ex rel. Bixby v. City of St. Louis, 241 Mo. 231, 239-240, 145 S.W. 801, 803; Ragsdale v. Brotherhood of Railroad Trainmen, Mo.App., 157 S.W.2d 785, 787(3). “ ‘Courts sometimes go beyond the point necessary for a decision in a lawsuit and make expressions on certain things there involved which are not necessary for a determination of the lawsuit. Such statements by a court are known as dictum * * * and [are], therefore, not a controlling statement to courts when the question rises again that has been commented on by way of dictum.’ ” Frost v. State, 203 Tenn. 549, 314 S.W.2d 33, 35(3).

In fine, we think that Karns, supra, is Tennessee authority that, in circumstances such as there shown, the lessor’s reletting does not work an acceptance of surrender of the leased premises (or, otherwise stated, that the lessor has the right in such circumstances, after appropriate notice to the lessee, to relet for lessee’s account and hold him for the difference) but does not constitute an authoritative precedent or contain a controlling statement as to the lessor’s duty vel non, upon the lessee’s abandonment of the leased premises prior to expiration of the term, to use due diligence to secure a new tenant. Furthermore, if the last sentence in Karns, supra, were treated as dictum suggesting that the lessor might have such duty, we would be unwilling to prophesy that the appellate courts of Tennessee would so rule if that issue were directly presented. For, as pointed out in the annotation on this subject at 40 A.L.R. 190, 194: “In several states where the courts have held, when the question was directly before them, that a landlord is under no duty to procure a new tenant when premises are abandoned before the end of the term, there are dicta to the opposite effect in other cases. This is usually so in cases where the court decides that, if the lessor does procure a new tenant, his doing so does not release the former one from obligation under the abandoned lease.” The quoted observation was strikingly illustrated and supported by cited cases from no fewer than five jurisdictions. In this connection, see 32 Am.Jur. Landlord and Tenant § 519, p. 423.

No reported Tennessee case ruling the issue as to the lessor’s duty to mitigate having been found in the exhaustive A.L.R. annotations on that subject [40 A.L.R. 190 and 126 A.L.R. 1219] or in the A.L.R. Blue Books of Supplemental Decisions or having been disclosed by our independent research, we are cognizant of no public statute or judicial decision of Tennessee [V.A.M.R. Rule 55.23(b)] which controls resolution of the basic issue in this case. In these circumstances and with Tennessee being a common-law state as we know judicially [Rositzky v. Rositzky, 329 Mo. 662, 680, 46 S.W.2d 591, 599], the common law there is presumed to be the same as here [Ragsdale v. Brotherhood of Railroad Trainmen, supra, 157 S.W.2d at 788 (4); General Aviation Supply Co. v. Insurance Co. of North America, D.C.Mo., 181 F.Supp. 380, 383(2), affirmed 8 Cir., 283 F.2d 590; Boland v. Love, 95 U.S.App.D.C. 337, 222 F.2d 27, 32(6, 7); Restatement, Conflict of Laws, § 622, p. 737] and the basic issue as to the lessor’s duty to mitigate is to be determined by the common law of Missouri. Gray v. Metropolitan Life Ins. Co., Mo.App., 150 S.W.2d 563, 564(1); Boyer v. North End Drayage Co., Mo.App., 67 S.W.2d 769, 770(3); Industrial Acceptance Corp. v. Webb, Mo.App., 287 S.W. 657, 660(10, 11). Though it is said that the common law imports a system of unwritten law, not evidenced by statute, but by tradition and the opinions and judgments of the sages of the law [Riddick v. Walsh, 15 Mo. 519, 536; State ex rel. O’Malley v. Musick, 145 Mo.App. 33, 130 S.W. 398, 402(7)], the common law is inseparably identified with the decisions of the courts and can be determined only from such decisions in former cases bearing upon the subject under inquiry. Musser v. Musser, 281 Mo. 649, 656-660, 221 S.W. 46, 47-48(2).

The only Missouri case here cited by counsel is Jennings v. First Nat. Bank of Kansas City, 225 Mo.App. 232, 30 S.W.2d 1049, an action “to determine the right to $2,500” deposited by lessee when the lease was executed [225 Mo.App. at 234, 30 S.W. 2d at 1050], in which the court declared that “the disposition of this case must turn upon the question as to whether or not the lease before us provides for a penalty or for liquidated damages.” 225 Mo.App. at 238, 30 S.W.2d at 1052. In an extended discussion of Von Schleinitz v. North Hotel Co., 323 Mo. 1110, 23 S.W.2d 64, it was said [225 Mo.App. at 237-238, 30 S.W.2d at 1052] that “our Supreme Court [there] held that upon abandonment of leased premises by the tenant the landlord has an election either to permit the premises to remain vacant until the end of the term and then sue for recovery of the stipulated rents, or he may mitigate the loss of rents by getting what he can out of the premises and recover the balance from the tenant” and again, still referring to Von Schleinitz, supra, that “at the time of the abandonment and before the unconditional acceptance of the surrender the landlord had the right to hold the tenant for the payment of the entire rent stipulated in the contract, or, upon proper notice, for damages for failure to pay.” Touching upon the same subject in considering the state of facts presented in Jennings, supra, the court stated that “if nonpayment of rent should occur, the landlord might then elect to refuse to accept a surrender and compel the tenant to hold him harmless from a failure to pay rent for the entire term, or to declare a forfeiture and seek to hold the deposit” made by the tenant when the lease was executed. 225 Mo.App. at 238, 30 S.W.2d at 1053.

In Von Schleinitz, supra, the primary holding was that, where upon the tenant’s abandonment the landlord had made no protest about resuming possession of the leased premises and had given no notice that he was doing so for the account of the tenant and would hold it liable for any deficiency, the trial court was justified in finding that the landlord had accepted the tenant’s surrender by operation of law, thereby terminating the landlord-tenant relationship. 323 Mo. at 1131-1138, 23 S.W.2d at 74-78 (1-3).

In Crow v. Kaupp, Mo., 50 S.W.2d 995, the lease specifically provided that, in the event of default by lessee, lessor “may relet said premises for the account of [lessee], for and during the remainder of the term of this lease” [50 S.W.2d at 996] and thereby “authorized the lessor, as the lessee’s agent, to relet the premises for the latter’s benefit * * 50 S.W.2d at 998. Accordingly, lessor’s reletting upon such contingency was “presumed, in the absence of any fact indicating the contrary, to have been intended by him to be for the benefit of the lessee. This because it was his [lessor’s] duty, under both the lease and the law, to relet the premises for the benefit of the lessee in order to minimize the damages. Jones on Landlord and Tenant, § 551. The reentry and reletting of the premises by the plaintiff [lessor] as alleged in the petition did not effect a surrender by operation of law.” 50 S.W.2d at 998(9, 10). Hence, the judgment nisi for defendant lessee entered upon sustension of a general demurrer to plaintiff lessor’s petition was set aside and the cause was remanded. Putting out of mind the provocative question as to whether it was either necessary or proper to declare that it was lessor’s “duty" under the above-quoted permissive provision of the lease (i. e., that lessor “may relet * * * ”) to relet the premises to minimize damages, we have no hesitancy in expressing the view that the italicized portion of the statement as to lessor’s duty (i. e., “it was his duty under * * * the law, to relet the premises for the benefit of the lessee in order to minimize the damages”) properly must be classified in the same category of nonau-thoritative and noncontrolling dicta as the last sentence in Karns, supra, 30 S.W.2d at 246, for in both of those cases (and also in Von Schleinitz, supra) the determinative question was as to whether or not there had been an acceptance by lessor of lessee’s surrender of leased premises.

Since no Missouri case turning upon, and dealing directly with, the lessor’s duty vel non, upon the lessee’s abandonment of the leased premises prior to expiration of the term, to use due diligence to secure a new tenant (as distinguished from the lessor’s right in such circumstances, after appropriate notice to the lessee, to relet for his account) has come to our attention, and since a final determination as to the lessor’s duty is unnecessary to proper disposition of the instant appeal, we do not rule that question and thereby foreclose counsel from rendering to the trial court, upon further investigation of Tennessee and Missouri law, all possible assistance in resolution of this basic issue.

Of course, if counsel’s search for a controlling Tennessee or Missouri case is no more productive or conclusive than ours has been, precedents in other jurisdictions will become persuasive. Musser, supra, 281 Mo. at 660, 221 S.W. at 48-49(3). In that event, it may be said confidently that the overwhelming weight of judicial authority elsewhere is that, in the absence of a provision in the lease to the contrary, lessor is under no duty to seek a new tenant when the latter abandons the leased premises prior to expiration of the term but may let the premises lie idle and collect the rents reserved as they accrue. 52 C.J.S. Landlord and Tenant § 498a, p. 276; 32 Am.Jur. Landlord and Tenant § 519, p. 423; 1 American Law of Property § 399, 1. c. 392; 1 Tiffany, Landlord and Tenant, § 182h, p. 1170; annotation 126 A.L.R. 1219; annotation 40 A.L.R. 190; note 55 Mich.L.Rev. 1029. See McNally v. Moser, 210 Md. 127, 122 A.2d 555, 563(16), 60 A.L.R.2d 388; Gruman v. Investors Diversified Services, 247 Minn. 502, 78 N.W.2d 377, 379-380, and cases there collected.

The judgment for defendant is set aside and the cause is remanded for further proceedings not inconsistent with this opinion.

HOGAN and TITUS, JJ., concur.


source: Caselaw Access Project

author: STEINFELD, Judge.

license: Public Domain

text:
    William H. CARTMELL et al., Appellants, v. The URBAN RENEWAL AND COMMUNITY DEVELOPMENT AGENCY OF the CITY OF MAYSVILLE, Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.
    Donald L. Wood, Fox, Wood & Wood, Maysville, Robert F. Stephens, C. Gibson Downing, Stoll, Keenon & Park, Lexington, for appellants.
    Robert G. Zweigart, Royse, Zweigart & Kirk, Maysville, for appellees.
   STEINFELD, Judge.

Owners of real estate in Maysville whose property is about to be taken under a plan for urban renewal and rehabilitation brought this action to enjoin the taking. From a judgment dismissing their suit they have appealed. We affirm.

In April 1967 the Urban Renewal and Community Development Agency of the City of Maysville sued Louis and Cecile Brown in one action; Alice S. O’Neill in another and William H. Cartmell, et al in the third, to condemn the parcel of land owned by each of them. KRS Chapter 99. Each answered and alleged that the agency had “no right to condemn the land sought to be condemned because of its failure to comply with the provisions of KRS 99.370, thereby making the development plan illegal.” Exceptions to the amount of the award were filed, but no additional issues were presented. KRS 99.420(6). The record in each of those three suits shows the following:

“This matter coming on to be heard, on the answer of the defendants contesting plaintiff’s right to condemn and the Court having heard the same and being advised, IT IS NOW ORDERED AND ADJUDGED that the said defense be, and now is, denied and said answer dismissed. Let this Order be entered this 1st day of July, 1967.
/s/ John A. Breslin Circuit Judge”

The agency then made “Demand For Interlocutory Judgment”, whereupon the trial court entered in each case the following:

“1NTERLOCUTORY TUDGMENT
It appearing that the Commissioners have duly made their Report and Award and that Plaintiff has made demand for Interlocutory Judgment pursuant to KRS 99.420(9) and that all legal requirements have been satisfied, including deposit of the Commissioners’ Award, in the sum of $-, with the Mason Circuit Court Clerk,
NOW THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff is granted and awarded immediate possession and full and complete use and control of the property sought to be condemned herein, as described in the Complaint, and Plaintiff is hereby entitled to take possession thereof, and to use and control same, including the right to remove, demolish, raze and do away with all buildings, structures, and appurtenances thereon or thereunto belonging, without let, hindrance, interruption or interference by Defendant or anyone claiming under them, to the extent and boundary hereby condemned as fully as if title were conveyed to Plaintiff, this 1 July 1967.
1 July 1967.
/s/ John A Breslin_ Mason Circuit Judge”

On July 27, 1967, the defendants in those three condemnation actions, individually and as taxpayers, jointly sued the Urban Renewal and Community Development Agency of the City of Maysville, Kentucky, and its members individually naming them, together with the City of Maysville, Kentucky and its City Commission members individually and as City Commissioners naming each of them. They charged that the Urban Renewal Agency “is not a legally constituted acting body in that the City of Maysville did not make the findings of fact required by KRS 99.350(1), prior to the creation of U. R. A.”; that the area sought to be condemned is “not a slum or blighted area” as required by KRS 99.360(1) (2); that the plan “is illegal and void because it does not give maximum opportunity to private enterprise as required by KRS 99.450”; “because its purpose is to provide parking” which purpose is not included in Chapter 99 of KRS, and because “no public hearing was held as required by KRS 99.370(3)”. They alleged other violations of KRS 99.370(3) (4) (6) and demanded that the defendants “be enjoined from razing and destroying the buildings and improvements located on the premises” owned by appellants.

Appellees answered and among other things alleged that “This independent action Is barred by the doctrine of res judicata * * * ”; that the issues were “finally decided” in the condemnation cases; that plaintiffs “are estopped from collaterally attacking the orders entered in” those actions and that plaintiffs have waived their rights “by failing to exhaust their claims, remedies and appeals”.

The trial court made findings of fact and entered conclusions of law. CR 52.01. Among other things it said that “all merits of Plaintiffs’ claims * * * were fully considered and finally determined in (the) condemnation actions”. It is also stated that under the doctrine of res judicata and collateral estoppel the appellants were barred from further contesting the right of the Urban Renewal Agency to condemn the property, therefore, it dismissed the suit.

KRS 99.420 sets out the procedure to be followed in urban renewal eminent domain proceedings. We note that the owner who puts in issue the right to take his property is without protection after an adverse judgment, in that the agency may be given authority to take possession under KRS 99.420(9) and the improvements may be demolished before the issue is finally determined. That statute does not provide for an appeal from the decision of the right to take until after a final judgment is entered in the action. For these reasons several members of this court question the constitutionality of that statute. However, this question is not raised so we meet only the issues before us. In the suits to condemn, pursuant to that statute, it was proper for the trial court to determine whether the agency had the right to take the property. Idol et al. v. Knuckles, Ky., 383 S.W.2d 910 (1964).

The suit now before us was correctly dismissed but not for the reasons stated. No final judgment had been entered in the condemnation actions. Peters v. Board of Education of Hardin County, Kentucky, Ky., 378 S.W.2d 638 (1964); Williams v. McMinn County, 207 Tenn. 585, 341 S.W.2d 730 (1960).

In Vaughn’s Adm’r v. Louisville & N. R. Co., 297 Ky. 309, 179 S.W.2d 441, 152 A.L.R. 1060, we said:

“The rule of res judicata means that when a court of competent jurisdiction has determined a fact or question which was actually and directly in issue in a former suit, the judgment until reversed or modified, is final and conclusive in respect to such fact or question as between the parties to the suit and their privies. Co-operating Land & Development Co. v. Swiss Oil Corporation, 226 Ky. 526, 11 S.W.2d 109; Ewald’s Ex’r [and Trustee] v. City of Louisville, 192 Ky. 279, 232 S.W. 388.”

In that same opinion we referred to Freeman on Judgments, 5th edition, vol. 2, §§ 676 and 677 wherein it was said:

“Where the cause of action in the second action is the same as that in the first action, a final judgment in the latter upon the merits is a complete bar to the maintenance of the second action.”

In Wallace et al. v. Ashland Oil and Transportation Company et al., Ky., 305 S.W.2d 541 (1957) we wrote:

“Generally it may be said a plea of res judicata is a bar to a subsequent action where a former judgment has been rendered by a court of competent jurisdiction between the same parties upon the same matter directly involved in the prior suit.”

Finality of decision is a prerequisite to the defense of res judicata and collateral estoppel. The orders “dismissing the answers” were interlocutory, just as are the Interlocutory Judgments in the condemnation actions. These cases were still pending and awaiting final adjudication. It was improper to institute this suit rather than seek prohibition here and substantially follow the procedure explained in Stillpass v. Kenton County Airport Board, Ky., 403 S.W.2d 46 (1966) which originated in a county court. The appellants had failed “to exhaust their claims, remedies and appeals”, which was another defense interposed by appellees.

This court granted “a temporary injunction restraining the appellees, their agents, servants, employees, contractors and attorneys, from razing and demolishing those properties known as 30, 36 and 38, West Front Street, Maysville, Mason County, Kentucky.” CR 65.08. We ordered that this “injunction shall remain in effect until further orders of this court.” It is our opinion that the injunction should be continued until mandate issues in the proceedings now before us and it is so ordered.

For the reasons expressed in this opinion the judgment is affirmed.

All concur.

        . The amount of the award was shown, Brown $17,690., O’Neill $14,102., and Cartmell $16,234.


author: R. C. TARTAR, Special Commissioner.

text:
    Louis W. GORMAN et al., Appellants, v. TPA CORPORATION, Gerald Deters d/b/a Deters Bros. Construction Company, Appellees.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.
    Rehearing Denied Nov. 17, 1967.

      Louis W. Gorman, Gus Sheehan, Jr., Covington, for appellant.
    Charles Deters, Covington, for appellee.
   R. C. TARTAR, Special Commissioner.

This appeal involves the law governing the respective rights and duties of persons using a common or party wall to support their buildings, on severance by one of them of his building from the wall. The litigation giving rise to the problems now before us erupted when the appellee TPA Corporation, one of the defendants below, razed its building then contiguous and connected to the wall, preparatory to the erection of a new structure some three feet therefrom. Deters, the other appellee and defendant below, was employed by TPA to demolish its building. Thereafter, the appellants Gorman brought this action alleging that, without any notice to them, Deters trespassed upon their property and was so negligent in the performance of the demolition as to damage the wall and leave it in an unsightly condition, and that through the joint negligence of the defendants in erecting the new structure the lateral support adjoining the plaintiff’s building was so changed as to cause water to seep into their cellar, all to their damage in the sum of $3,000.

The defendants denied these allegations, a trial was had, and at the conclusion of the evidence the court directed a verdict for the defendants. The plaintiffs have appealed from the judgment entered on that verdict, dismissing their complaint.

Hereinafter the plaintiffs, will be referred to as the Gormans, and the defendants as TPA and/or Deters.

The Gorman property fronts on Eighth Street, and TPA’s property fronts on Scott Street, in Covington. The deed to the Gormans, who have owned their property since 1945, calls for lines running “east-wardly through the North side of 8th Street 18½ feet more or less to a dividing wall of a double brick house situated on the within described property and the property next east thereof and from the front extending back northwardly between parallel lines to Scott Street 33 feet.”

The deed to TPA calls for lines “parallel with Eighth Street 61u/l2ths feet, more or less to the west wall of the double brick house facing Eighth Street” and “thence Southwardly and parallel with Scott Street 33 feet to the north side of Eighth Street.” And it is sufficiently clear that this “dividing wall” (whether double or not is not shown) was and had been, at least since the Gormans purchased their building and until the demolition of the TPA building, structurally a part of both buildings, the former being three stories high and the latter only two. The two buildings received common support from this wall.

This is all we have in the record, with sufficient degree of historicity, as to the title to these properties, their devolution, or the circumstances in which this wall first came into being or became a common wall. While we do not doubt what is said about all this in the brief of appellees, it is not evidence and cannot form the basis of our decision in any respect.

Still, on the facts and history of record which we have stated, and despite the contention of the Gormans to the contrary, we have no hesitation in holding that in law this was a party or common wall, and that this was so whether it stood equally or partly on the land of both of these parties or wholly on the land of only one of them. The principles and presumptions clearly enunciated in the decisions of this and other courts make this conclusion unavoidable. See Henry v. Koch, 80 Ky. 391, 4 Ky.Law Rep. 282; Smith v. Martin, 4 Ky.Law Rep. 442, 11 Ky.Opin. 818; Bright v. Bacon & Sons, 131 Ky. 848, 116 S.W. 268; Farmers Nat. Bank of Danville v. Moore, 282 Ky. 502, 139 S.W.2d 420, citing Hendrick v. Haley, 4 Ky.Law Rep. 356; 40 Am.Jur., Party Walls, §§ 2, 5 and 6, pp. 485-488; 69 C.J.S. Party Walls § 3, p. 4. Even if in fact (which we do not find it necessary to decide) this wall is wholly on the land of the Gormans, it was still a party wall under the authorities cited; nor could such fact be considered as detracting from TPA’s right to detach its building or as increasing its obligation or liability to the Gormans in so doing.

It is the law in this state that either of the adjoining owners “may remove his own building without liability for resulting damages to the other, provided he gives proper notice of the removal and uses reasonable care and caution to protect the wall and remaining building.” 40 Am.Jur., Party Walls, § 27, p. 501, the quotation being duly supported by our own case of Clemens v. Speed, 93 Ky. 284, 19 S.W. 660, 19 L.R.A. 240; see also Annotation, 9 A.L.R. 1329.

While it is conceded that TPA gave the Gormans no express or formal notice of the demolition, the testimony of the Gor-mans themselves is an admission that they knew about it from start to finish. Gorman testified that he was planning to remodel their building at the same time and that he was stopping by there once or twice a week. He saw the TPA Building “about three-quarters way down,” and he knew that “they were in process of demolishing it.” He said nothing to Deters who was there on the job.

The function of notice was to enable Gorman to look to his own protection. Clemens v. Speed, supra. In the admitted circumstances described, there can be no doubt that Gorman’s own actual knowledge served every purpose of the requirement that TPA give him notice and thus superseded that requirement. See Cable Piano Co. v. Lewis, Jr., 195 Ky. 666, 672, 243 S.W. 924 ; 39 Am.Jur., Notice and Notices, §§ 5 and 12, pp. 235-236, 238. We add only that there is no showing on this record that the Gormans suffered any damage by want of express notice from TPA.

There remain only the issues of the care used by TPA and Deters, and of the damages, if any, suffered by the Gormans by reason of any failure on the part of TPA and Deters to use reasonable care in the demolition and subsequent construction. Looking first at the removal of the two walls and the roof of the TPA Building from the common wall, there is really no evidence of failure to use due care unless it is to be implied from the condition in which the common wall and the Gormans’ building was left.

Gorman’s testimony is that the whole side (or part between the side walls of the TPA Building) of “my wall” had been defaced and left in an unsightly condition, that plaster on the interior of the rear wall of the TPA Building (the exterior of the common wall) had been left exposed and unremoved, that they had dug into his building about 6 inches, and that they had left bricks from the walls of their building “hanging on” his building or “protruding” from it.

Al Doming, a local contractor, also testified for the Gormans on these issues. He had examined the premises and the wall after the removal of the TPA Building. The wall was “a mess,” “raggedy looking,” “all chewed up.” There were “a lot of depressions” in the wall where bricks had been removed and there were “a lot of bricks sticking out” or “jutting out,” where the walls of the old TPA Building had joined the common wall. There were 15 or 20 “spots” of these kinds, where bricks would have to be shorn off or replaced. The plaster left on the exterior of the common wall would have to be taken off; then a new cement finish would be placed over it and painted. Doming estimated that all of this, plus water-proofing the basement to take care of seepage, would cost $3,000. He was asked on cross-examination whether the “depressions” would weaken the wall or whether the work he recommended was “because of the looks,” and he replied, “That’s right. Looks.” And then on redirect, asked whether the “depressions” would tend to cause a weakness in the wall if the recommended work was not done, Doming replied, “It wouldn’t do it any good. The building certainly isn’t going to cave in on account of it. That’s my story.”

This is the whole case made on this score. It is apparent that the Gormans have produced no evidence of substance that either the common wall or their building was structurally damaged by the removal of the TPA Building. It is apparent that very, nearly the whole weight of their evidence goes to the “looks” of the wall, and to the unsightly condition in which it was left, and that the damages sought represent the claimed reasonable cost of giving the exterior of the wall an appearance which it has never had during their ownership of their building. The law, however, provides no compensation on this account, none merely because the wall has been left unprotected, exposed, or in an unsightly condition. 40 Am.Jur., Party Walls, § 27, p. 501; Annotation, 9 A.L.R. 1329. Moreover, the damages claimed are simply blanketed under a total figure of $3,000. There is no particularization or segregation of damages, item by item. Even if there were any showing of negligence on the part of TPA or Deters or both, and even if there were any showing of a compensable item of damage, neither court nor jury would be able on this record to fix its amount.

This applies as well to the final claim, namely that TPA and Deters in erecting the new building negligently altered the lateral support next to the Gormans’ building, thereby causing water to seep into and damage their cellar. Gorman testified that after TPA removed its building, it dug footings some 6 feet deep for the foundation of its new building 3 feet from the old common wall. In the meantime, it rained. He happened to go into the basement of his building and found “a half-inch” or “approximately three inches” of water there. He examined the TPA premises and found that the excavation (footing) had about three feet of water in it and that water was coming from it into his cellar, “coming off the walls.” And Doming testified that he had been there once, that there was some seepage in the Gormans’ basement, water running or seeping through the ground and through the foundation, which in his opinion (an objection was sustained) was-caused by the construction of the new TPA building.

Again, there is a total failure to show the extent of this claimed item of damage or to ascribe any amount in dollars to it. There is nothing upon which any assessment might be made in this account. Besides, neither TPA nor Deters was under any duty in tearing down the old building or in erecting the new one to protect the Gor-mans’ building from the elements. The doctrine of lateral support does not reach this case, nor is any negligence shown on the part of TPA or Deters proximately causing the alleged water seepage. See Clemens v. Speed, supra; City of Covington v. Geyler, 93 Ky. 275, 19 S.W. 741; 40 Am.Jur., Party Walls, § 27, pp. 501-502; Annotation, 9 A.L.R. 1329. The case of Henry v. Koch, 80 Ky. 391, cited by the Gormans, bears no similarity to this case in fact or in law. Here, as in Clemens v. Speed, supra, the claimed damages are “damnum absque injuria, and no action will lie.”

Considering all the evidence favorable to the Gormans to be true and considering all inferences favorable to them that may be drawn from the evidence, they failed to make out the elements of a case. The burden was on them in all respects. The court properly granted the motion of TPA and Deters for a directed verdict.

The judgment is affirmed.

All concur.


author: CULLEN, Commissioner.

text:
    William M. O’BRYAN, Individually, and William M. O’Bryan, Trustee, Appellants, v. James BICKETT and Edmond Bickett, Appellees.
    Court of Appeals of Kentucky.
    June 30, 1967.
    Rehearing Denied Nov. 17, 1967.

      Wilson & Wilson, Owensboro, for appellants.

      Bratcher, Rummage, Beard & Flaherty, Rhodes Bratcher, William Rummage, John W. Beard, Joseph R. Flaherty, Charles J. Kamuf, Owensboro, for appellees.
   CULLEN, Commissioner.

James and Edmond Bickett (brothers) brought this action against William M. O’Bryan, individually, alleging that he had purchased a tract of timberland for his own account in violation of a partnership or joint adventure agreement under which the land was to be acquired jointly, with the Bicketts paying for and owning a one-half interest. Subsequently “William M. O’Bryan, Trustee” was made a party, it having appeared that title to the land had been taken in that name. Judgment was entered, after a jury trial of certain issues of fact, adjudging that the Bicketts were entitled to acquire a half interest in the land and adjudging that O’Bryan (individually and as Trustee) convey a half interest to them upon their paying one-half of the amount paid by O’Bryan toward the purchase price.

O’Bryan, individually and as trustee, has appealed. His substantive contentions are:

A. There was no enforceable agreement between him and the Bicketts because (1) no final agreement was intended; (2) the alleged agreement lacked mutuality; (3) there was no agreement as to a number of terms essential to a contract; and (4) the agreement was not to be performed within one year and therefore, being oral, violated the Statute of Frauds, KRS 371.010(7).
B. If there was an enforceable agreement it was one merely for purchase of the land as joint tenants, which did not create such a relationship as would furnish the basis for invoking a constructive trust.

Two basic propositions, which the appellant does not dispute, are established by our cases, particularly Stewart v. Stovall, 191 Ky. 508, 230 S.W. 929, and Appleby v. Buck, Ky., 351 S.W.2d 494. See also Eubank v. Richardson, Ky., 353 S.W.2d 367. They are (1) that a partnership agreement or joint adventure agreement, to deal in land for profit, creates a confidential relationship the violation of which by one of the parties, by purchasing the land for his individual account, will give rise to a constructive trust in favor of the other party; and (2) that the Statute of Frauds does not apply to constructive trusts, because the trust does not rest on contract but on fraud or breach of confidence.

We think the basic flaw in the appellant’s argument is in his assumption that a partnership agreement or joint adventure agreement, in order to create such a relationship as will furnish the basis for decreeing a constructive trust, must be one that so conforms to all contract requirements as to have been enforceable by a decree of specific performance. If this were so, an oral agreement to buy land jointly could not give rise to a constructive trust because the agreement, being in violation of the Statute of Frauds, was itself not enforceable. But this is exactly contrary to what our cases, supra, have held. The trust may be invoked even though the agreement out of which it arose was not legally enforceable. The point is that invoking the trust is not enforcing a contract but is providing equitable relief from a fraud or breach of confidence. The trust arises by virtue of the relationship and the cases do not require that the relationship be a legally enforceable one. Otherwise, the remedy of the complaining party would be a simple suit at law for breach of contract and there would be no need to resort to equitable forms of relief. And if, as our cases hold, a constructive trust may arise out of a relationship that would not be legally enforceable because it does not meet the requirements of the Statute of Frauds, there would seem to be no reason to say that the agreement must conform to any other requirements of law for an enforceable contract.

It has been held that where an agency agreement has been entered into for purchase of land for the principal’s account, and the agent thereafter purchases the land for his own account in violation of the agreement, a constructive trust will be declared even though there was no consideration for the agreement and it therefore was not a legally enforceable contract. See 54 Am.Jur., Trusts, sec. 237, pp. 180, 181.

Where a constructive trust is sought to be invoked out of a business relationship, such as an agency or a partnership or joint adventure, it is our conclusion it is enough that the relationship be sufficiently definite as to warrant equitable recognition. In the instant case the parties agreed upon the basic framework of a “deal” —that they would jointly buy, as a profit-making venture, a specific tract of land at a specific price. The fact that some of the details had not been agreed upon does not make any less unconscionable the conduct of O’Bryan in buying the land for his sole account. And the fact that the agreement may have violated subsection (7) of the Statute of Frauds, KRS 371.010, in that it may not have been performable within one year, is of no more significance than its admitted violation of subsection (6) (contract for sale of real estate), because our cases hold that the Statute of Frauds is not a matter of concern in constructive trust cases.

What we have said thus far disposes of the appellant’s first point, and supplies the answer to some secondary offshoots of that point. There was no prejudicial error in the instructions in relation to whether or not the parties had agreed on essential terms and conditions of a contract because, as we have pointed out, such agreement was not required — if was sufficient that there was an agreement on the basic framework of their deal. The fact that the trial court, in entering judgment, was required to specify some details, does not mean that the court was making a contract for the parties which they had not made for themselves — it simply means that the court was exercising traditional powers of a court of equity to fix the terms and conditions of equitable relief.

The appellant’s second argument, that the agreement between the parties was one for simple joint ownership and not one of joint adventure, is not supported by the record, which shows clearly that the agreement was to buy the land for speculation or development or both, as a profit-making venture. This was the same in principle as the agreements in Stewart v. Stovall, 191 Ky. 508, 230 S.W. 929, and Appleby v. Buck, Ky., 351 S.W.2d 494.

The appellant makes a final contention of a fatal defect of parties. He argues that the trust (as an entity) in the name of which the land in question was taken, and the beneficiaries of that trust, were indispensable parties to this action.

As hereinbefore pointed out, this action originally was brought only against William M. O’Bryan individually. The action so proceeded to verdict, although pleadings and evidence showed that the deed to the land was to “O’Bryan Trust No. 1, Wm. M. O’Bryan, Trustee, Being a Trust created by a Trust Declaration for the use and benefit of Edna O’Bryan Hicks, Nell Wathen O’Bryan Bale, and Ruth Helen O’Bryan Wright, dated September 15, 1965.” (The record shows that the beneficiaries are the children of O’Bryan, but no facts appear in regard to the terms of the trust.)

It appears that the original option for purchase of the land was taken by O’Bryan in his individual name. This action was commenced on September 16, 1965, and summons was served on O’Bryan on that day. The deed was dated September 16 (referring to the trust as having been created on September 15) but it was not signed and delivered until September 17. These facts tend to put the creation of the trust in proper perspective.

After verdict had been returned, O’Bryan moved to dismiss the action for absence of indispensable parties. The court then ordered “William M. O’Bryan, Trustee” to be made a party, and that was done. No additional pleadings were filed by the plaintiff and O’Bryan as trustee moved for dismissal because no claim had been asserted against him. The court overruled that motion and ordered O’Bryan as trustee to answer. He did so, not raising any defenses not previously raised by himself individually. The court then entered a double judgment, ordering a conveyance of a half interest in the land by O’Bryan individually and as trustee.

We find no material significance in the fact that O’Bryan as trustee was not brought into the action until after verdict or in the fact that no pleadings were made asserting a claim against him as trustee. As far as this record shows his status as trustee put him in no different posture from his individual one; he knew what the claim was and he had ample opportunity to defend. He shows no prejudice — he merely asserts a formal error.

Likewise, we find no substance in the contention that the trust as an entity should have been joined as a party. Again, this would have served only the purpose of formality.

The only point of any concern is in regard to the failure to join as parties the beneficiaries of the trust. It is our conclusion on this point that, no special circumstances or conditions having been shown to exist, it must be considered, as relates to the issue of indispensable parties, that the trustee was competent to defend on behalf of the beneficiaries and therefore they were not indispensable parties. This seems to be the prevailing view. See 67 C.J.S. Parties § 32, p. 948 ; 54 Am.Jur., Trusts, sec. 593, p. 458.

The judgment is affirmed.

All concur.


author: MONTGOMERY, Judge. OSBORNE, Judge.

text:
    CITY OF ST. MATTHEWS, Appellant, v. Shelton B. ARTERBURN et al., Appellees.
    Court of Appeals of Kentucky.
    June 16, 1967.
    Rehearing Denied Nov. 17, 1967.

      Bert T. Combs, Julius Rather, Lexington, Clay Copeland, J. W. Jones, Louisville, for appellant.
    Robert L. Sloss, Stuart E. Lampe, Wyatt, Grafton & Sloss, Louisville, for Shelton B. Arterburn, Alice M. Arterburn, Covington Arterburn and Louisville Shopping Center, Inc.
    Kent McElwain, McElwain, Dinning, Clarke & Winstead, Louisville, for Bluegrass Manor, Inc.
    E. P. Sawyer, Louisville, for Fiscal Court of Jefferson County.
   MONTGOMERY, Judge.

The City of St. Matthews appeals from a judgment dismissing its petition to annex certain property between St. Matthews and the Watterson Expressway. The trial court held that the lapse of five years, six months and twenty-six days between the date of notice to the Jefferson County Fiscal Court of the introduction of an ordinance proposing annexation and the date of adoption of the ordinance in 1965 constituted an unreasonable delay which invalidated the annexation proceeding. Other questions presented are not considered in view of the lower court’s holding.

St. Matthews is a fourth-class city. KRS 81.010. The property sought to be annexed lies southeasterly from St. Matthews near the juncture of Shelbyville Road and Wat-terson Expressway. On part of the property lies a large shopping center known as “The Mall.” Only one registered voter resides within the territory sought to be annexed. Appellees Shelton B. Arterburn, Alice M. Arterburn, and Covington Arterburn own in fee all of the land involved. Appellees Louisville Shopping Center, Inc., and Bluegrass Manor, Inc., each have 99-year ground leases covering most of the territory concerned. The Fiscal Court of Jefferson County is also an appellee. The appellees, with the exception of the fiscal court, protested the annexation by answer which raised several defenses. The fiscal court answered but did not protest or present any defense. The petition was dismissed on motion of the remonstrants.

On motion to dismiss apparently the question was raised whether the fiscal court was properly notified.

Annexation proceedings in fourth-class cities are governed by KRS 81.220 et seq. However, in counties containing a city of the first class, notice of the introduction of an ordinance proposing annexation must be given to the fiscal court of the county. KRS 81.290. In substance the statute provides that the notice must be given “at least seven days prior to enactment” of the ordinance proposing the annexation. Under the statute failure to give the notice renders the ordinance null and void. It is also provided that the fiscal court shall be made a party to any protest suit. Further, the statute is silent as to what part the fiscal court shall play in the proceedings.

The petition and exhibits show that a letter dated April 14, 1960, was mailed to the Jefferson County Fiscal Court, advising of the proposed ordinance. The letter purported to contain a copy of the proposing ordinance and a map of the territory sought to be annexed. As noted, the fiscal court answered in this proceeding. From this state of facts it is sufficiently shown that the fiscal court received notice. This conclusion disposes of appellees’ argument that judicial notice should be taken of the fact that the composition of the fiscal court in 1960 and 1965 might vary so that the court as composed in 1965 might not have had notice of the proceeding. A reading of the fiscal court’s answer and the absence of a brief in its behalf indicate that the Fiscal Court of Jefferson County has no objection to the annexation.

The question resolves itself into whether the delay was unreasonable. The only pertinent statutory provision as to time is that a copy of the ordinance proposing annexation “shall be forwarded to the Fiscal Court of such county * * * at least seven days prior to enactment.” Since the facts alleged in the pleadings were accepted on consideration of a motion to dismiss, this requirement was met.

It is recognized that a court may not legislate by fixing an arbitrary time limit in the absence of a statute fixing a maximum time. Further, annexation proceedings must be conducted and completed within a time that is reasonable. 2 McQuillin Mun. Corp. (3rd Ed.), Section 7.28, Page 419. A lapse of some two years between the enactment of the proposing ordinance and the enactment of the annexing ordinance has been held not to invalidate the annexation. McClain v. City of Independence, Ky., 351 S.W.2d 512. It was pointed out therein that the lapse of several years in such matters is not infrequent. It was also suggested that there had been no showing of “any prejudice or any detriment resulting from the delay.”

An affidavit tendered on behalf of appellant indicates that there may have been some justification in the delay or that the delay may have been induced by appellees. The pleadings raise no issue of unreasonable delay except as urged on the motion to dismiss based on the bare passage of time. Whether unreasonable delay should have been asserted as an affirmative defense is not before us.

The extension of city boundaries is of considerable import to the city and to the property owners. Without holding that the delay was unreasonable, we hold it was error to dismiss the petition without a hearing at which the cause of the delay could have been determined. On the record there is nothing except the passage of time to indicate any unreasonable delay. The delay may have been justifiable or excusable. This is a factual issue which should have been determined from testimony heard. The ruling on the motion was premature in the absence of a statute fixing a time limit.

Judgment reversed.

WILLIAMS, C. and HILL, MILLI-KEN, PALMORE and STEINFELD, JJ., concur.

OSBORNE, J., dissents.

DISSENTING OPINION

OSBORNE, Judge.

The question before the court in this proceeding is whether a delay of over 5*4 years between the action of a city council proposing to annex territory and the enactment of the final ordinance annexing it is unreasonable. The trial court found as follows:

“ * * * the Court finds in the case at bar that the period of time elapsing between the introduction of the ordinance on April 12, 1960, and its adoption on November 9, 1965, was an unreasonable delay and amounts to an abandonment. Therefore, the notice was defective, and the attempted adoption was void.”

I see no reason to disturb these findings. The majority opinion seems to say 5½ years is not unreasonable, citing McClain v. City of Independence, Ky., 351 S.W.2d 512, wherein we held a two year lapse was not unreasonable. I believe this holding likewise was erroneous. The opinion is more in the nature of one in per curiam than the normal opinion rendered by this court. It cites no authority whatsoever for the holding when there was considerable law upon the subject at the time. So, I would therefore reverse this decision. In Tuell v. Meacham Contracting Company, 145 Ky. 181, 140 S.W. 159, the council of Henderson passed upon its first reading an ordinance providing for the improvement of certain streets on May 4, 1909. On June 1 of the same year the ordinance was again publicly read but failed of passage. On August 3 it was again brought up and received the required number of votes. In a well-considered opinion this court held on a close question that two months was not an unreasonable delay, and further pointed out that what would be unreasonable must depend upon the facts and the circumstances of each case. The pertinent portion of the opinion reads as follows:

“We are of opinion that inasmuch as the ordinance in question was passed in compliance with the requirements of the statute, and the public had two meetings at which their objections to the ordinance were or might have been heard, the validity of the ordinance should be upheld. It is not shown that between June 1st, when it was defeated, and August 3d, when it was passed, conditions had in any wise changed. This being true, appellants are in no more condition to complain than they would have been had the motion to reconsider been made and passed upon the night when the ordinance was defeated. Council unquestionably has a right to reconsider its action at any time, provided the motion is made within a reasonable time.
“What would be a reasonable time must depend upon the facts and circumstances of each particular case.
“In the case at bar we hold that two months was a reasonable time.”

See also Bass v. City of Chicago, 195 Ill., 109, 62 N.E. 913, wherein it is held that the lapse of more than a year after certain estimates had been made and a public hearing held and the enactment of the last ordinance was an unreasonable delay. See also McLaughlin v. City of Chicago, 198 Ill. 518, 64 N.E. 1036, which holds that a delay in the enactment of a state improvement ordinance was not unreasonable. The supreme court of New Jersey in De Vincenzo v. Town of West New York, 120 N.J.L. 541, 1 A.2d 36, 37 held that any unlawful break in the continuity of action in the passing of an ordinance renders the ordinance invalid. The opinion states:

“The ordinance was introduced and given a first reading on September 28, 1937, when it was laid over * * *. The next regular meeting was on October 26, 1937, and the ordinance was advertised for that meeting. At the meeting on October 26, 1937, opposition developed to the passage of the ordinance, and the minutes of the meeting disclosed that ‘In view of the many objections the Commissioners decided that the adoption of the ordinance be deferred.’ * * * Without further advertisement of the purpose to consider the Board of Commissioners did take up and finally pass the ordinance at its meeting on November 23rd. It was said in Jersey City, H. & P. St. Ry. Co. v. Passaic, 68 N.J.L. 110, 52 A. 242, 243, that ‘the public has the right to know when action upon an ordinance is to be taken, and if, by failure to act or other cause, an ordinance is stayed in its progress to final passage, through a failure of proper continuance by the council, it dies with the end of the last vitalizing action.’ See, also, Farish v. [Mayor, etc.] Linwood City, 112 N.J.L. 285, 170 A. 249. The continuity in the municipal action • was broken when the meeting of October 26, 1937, adjourned without day (sic) for the consideration of the ordinance. That was the end of the last vitalizing action.”

5 McQuillin Mun. Corp. (3rd Ed.), Section 16.33 provides:

“The public has a right to know when action is to be taken upon an ordinance. Accordingly, where an ordinance is unduly stayed in its progress to final passage, as in case of failure to take action on it at the time to which it has been continued, it dies. Continuity is broken where a measure is considered at a regular meeting to which it has previously been laid over and where the adoption of the measure is deferred at such regular meeting, which adjourns, without the measure being continued over to a fixed day.”

It is my opinion that municipal councils should follow a certain continuity of action so that the public can be continually apprised of the proceedings before it. A delay of 5½ years in the enactment of an ordinance from notice of its initial introduction seems to me unreasonable. The majority opinion makes the statement "It is recognized that a court may not legislate by fixing * * * a maximum time.”

I believe it is also recognized that a court has the authority and must in these instances determine what is a reasonable time. If this interval had been 50 years, would we have still held it reasonable? If it had been 20 years, what would have been the result? Or even 10 years. It seems that when the delay is such that public attention is lost, thereby defeating the purposes of public notice, it is unreasonable. Without such rule the entire philosophy of unreasonable delay becomes meaningless. Here the delay was unreasonable because the interested parties had lost notice of the pendency of the ordinance and the council’s ultimate action was action without notice.

For the foregoing reasons, I dissent.


text:
    Norma C. LOEW, Administratrix of the Estate of Essie P. Cundiff, Deceased, Appellant, v. James B. ALLEN, Administrator of the Estate of Flora Allen, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.

      James F. Clay, Clay & Clay, Danville, for appellant.
    John W. Murphy, Jr., Oliver Popplewell, Liberty, for appellee.
   STEINFELD, Judge.

On February 6, 1965, Flora Allen was a passenger in an automobile driven by Essie P. Cundiff. It collided with another vehicle and both ladies were killed almost instantly. James B. Allen, as administrator of the estate of Flora Allen sued Norma C. Loew, administratrix of the estate of Essie P. Cun-diff. He claimed that the negligence of Mrs. Cundiff caused the death of Mrs. Allen. The jury awarded $10,913.50. From a judgment for that amount the defendant appeals. We affirm.

The opening paragraph of the complaint was couched in the following language:

“Comes now the plaintiff, James B. Allen, as Administrator of the estate of Flora Allen, and for this his cause of action herein against the defendant, Norma C. Loew, as Administratrix of the estate of Essie P. Cundiff, deceased and says and alleges as follows, to-wit

Allegations were made regarding residence, appointment of the two personal representatives, heirs-at-laws, accident and negligence of the driver. The pleading then alleged:

“That as a result of the death of the said Flora Allen, the surviving husband and daughter and each of them have been and are now deprived of the comfort, protection and society of the said Flora Allen, all to their damage in the amount of $20,000.00, * * *
“ * * * that damages resulted to the estate of the said Flora Allen in' the amount of $913.50 for funeral expenses for the burial of the said Flora Allen * * * ”

The demands of the plaintiff were for those amounts. The administrator made no other claim and the surviving husband and daughter were not made parties.

The case was consolidated with a suit brought against Loew, administratrix by Melvin Johnson, the owner of the car with which the Cundiff automobile collided. We will relate only those occurrences which pertain to and bear upon the issues now before us.

While tesifying J ames B. Allen was asked the age of his wife. An objection to this question was overruled. Later he was asked “Since that time (accident) have you all been living by yourselves ?” An objection was sustained. No evidence was introduced with respect to Mrs. Allen’s condition of health or her capabilities. The proof showed only that Mr. and Mrs. Allen had been living together and that no one else resided with them.

The court instructed the jury as to the duties of the parties, and subject to its conclusion of violation of those duties, authorized the jury to “find damages for James B. Allen as administrator of the estate of Flora Allen * * * such a sum in damages as you believe from the evidence will fairly and reasonably compensate her estate for the reasonable funeral expense of Flora Allen, not to exceed the sum of $913.50 and such further sum as you may believe from the evidence will fairly and reasonably compensate her husband, James B. Allen, for the loss of comfort, protection and society of his wife, not to exceed the sum of $20,000.00, the amount claimed, * * *

Together with the instructions, the court furnished to the jury a series of questions submitting all theories of the case. These were arranged so that if the jury found in favor of the claims being asserted by reason of the death of Flora Allen, it was directed to answer Questions No. 5a and No. 5b. These two questions and the answers were:

“Question No. 5a: What sum of money do you find from the evidence will fairly and reasonably compensate James B. Allen for the loss of the comfort, protection and society of his wife, Flora Allen ?
Answer $10,000.00
“Question No. 5b: What sum of money do you find from the evidence will fairly compensate James B. Allen for the funeral expense for Flora Allen, deceased?
Answer $913.50”

The record reveals that no objection was made to the instructions or the questions. The record does not indicate whether the parties tendered instructions but the brief for Allen, administrator, states that Loew, administratrix, “submitted instructions (which were accepted in toto by the court)”. This is not denied by Loew, therefore, we will assume that this occurred.

When the jury first returned, the court found an inconsistency in the verdicts and kept the jury assembled. Counsel for Allen moved that the jury be required to correct the verdict and special finding under Question No. 5a and one other. The attorney for appellant, Loew, objected on the ground that it would be error for the court to direct "the jury to return a verdict in some amount for the loss of consortium to the plaintiff, James B. Allen, for the reason that under the complaint there is no recovery asked for the destruction of the power to earn money of the decedent which would be a right of recovery due her estate, but only a claim for loss of consortium and services of the surviving husband which is a claim for loss of consortium personally for him and not for the benefit of the estate, and under the pleadings it is not necessary that the jury award damages for the loss of consortium, nor is the plaintiff entitled to recover for destruction of the power to earn money, and that it was within the discretion of the jury not to allow damages for the loss of consortium * * * The court sustained Allen’s motion. Willett v. Bradas & Gheens, 283 Ky. 525, 142 S.W.2d 139 (1940); Smith v. Crenshaw, Ky., 344 S.W.2d 393 (1961). The final verdict which is that shown above was rendered on February 17, 1966.

On February 22, 1966, Loew, administratrix, filed a motion for a new trial and “to set aside so much of the verdict of the jury as awarded damages for the loss of consortium to the plaintiff as administrator of the estate of Flora Allen, deceased, for the reason that the right of recovery for loss of consortium is a personal right of the surviving husband individually and not as Administrator of her estate and could not be recovered in an action by the Administrator for the damage to her estate.” Complaint was made that “after the jury had returned its verdict in open court” it should not have been directed to return to the jury room and award damages to the estate for the funeral bill.

Allen’s attorney moved that he be permitted to amend the complaint “by substituting the capacity in which the plaintiff filed said action as ‘James B. Allen, Administrator of the Estate of Flora Allen, deceased’ to ‘James B. Allen, individually and as Administrator of the estate of Flora Allen, deceased.’ ” He also asked to be permitted to amend his complaint “to conform to the proof and evidence * * * which * * * was to the effect that said complaint was based both in his individual capacity as the surviving husband * * * and as administrator.” CR 15.01, 15.02 and 15.03.

The motion to amend was never passed upon by the trial court, but the motion to set aside the verdict was overruled. Judgment was entered, “That the plaintiff, James B. Allen, etc., recover of the said defendant, Norma C. Loew, etc., the sum of $913.50 for the funeral expenses of the decedent and that he recover the further sum of $10,000.00 as damages for the loss of comfort, protection and society of his wife, the decedent, in all the sum of $10,913.50; with interest thereon at 6% per annum from date of Judgment until paid, and his costs herein expended.”

Loew, administratrix, has abandoned her claim that the award of $913.50 for funeral expenses was erroneous. Judgment for $913.50 is affirmed.

She says that there were two causes of action which might have been brought by Allen; one as administrator for the destruction of the power of the deceased to earn money, Archer v. Bowling, 166 Ky. 139, 179 S.W. 15; the other as the surviving husband, for loss of consortium. However, as to the latter she points out that there could have been no recovery by the husband because Mrs. Allen died immediately. She cites Eden v. Lexington & Frankfort R. R. Co., 53 Ky. (14 B. Monroe) 204; Rogers v. Fancy Farm Telephone Co., 160 Ky. 841, 170 S.W. 178; Louisville & Nashville Railroad Co. v. McElwain, 98 Ky. 700, 34 S.W. 236, 18 K.L.R. 379, 34 L.R.A. 788, 56 Am. St.Rep. 385; City of Paducah v. McManus, 256 Ky. 405, 76 S.W.2d 254; McGuire v. East Kentucky Beverage Company, Ky., 238 S.W.2d 1020; 27 Am.Jur., “Husband and Wife,” sec. 510, page 109.

Allen counters by contending that “the right of recovery by the plaintiff was put in issue for the first time in the Court of Appeals.” He cites many cases. We will consider this contention only as to the claim that because of the instant death of Flora Allen the husband could not recover. That point is raised originally in this court. The issue of defect of party plaintiff was asserted below on the motion to set aside the verdict, but not before.

The judgment directed that “the plaintiff, James B. Allen, etc., recover of the said defendant, Norma C. Loew, etc., the sum of $913.50 for the funeral expenses of the decedent and that he recover the further sum of $10,000.00 as damages for the loss of comfort, protection and society of his wife, the decedent, in all the sum of $10,913.50; * * * ”. Since the administrator had no claim for loss of consortium, our interpretation is that the judgment was in favor of James B. Allen, individually, who was not a party to the action. A judgment in his favor was not authorized. Mulligan, et al. v. First National Bank & Trust Co. of Lexington, Ky., 351 S.W.2d 59 (1961); Kentucky Coal Lands Co. v. Smith, 149 Ky. 794, 149 S.W. 979 (1912); Williams, et al. v. Hamilton’s Adm’r, Ky., 29 S.W. 873, 16 Ky.Law.Rep. 794 (1895). The pleadings did not support the judgment for the husband but this may be waived. Howard v. Howard, 264 Ky. 311, 94 S.W. 2d 652 (1936). Flora Allen died immediately after the accident. “An action for the loss of consortium is * * * limited to compensation for the loss which accrued to the husband from the date of the injuries to the date of death or recovery of the wife.” McGuire v. East Kentucky Beverage Co., Ky., 238 S.W.2d 1020 (1951). There was no loss of consortium to support an award of $10,000.00.

CR 46 requires a litigant to “[make] known to the court the action which he desires the court to take or his objection to the action of the court.” He has “an obligation to assist the trial judge in the avoidance of error.” Little v. Whitehouse, Ky., 384 S.W.2d 503 (1964). Apparently appellant chose not to advance the defenses available to her for fear of alerting appellee to follow a different course. If the issues now asserted had been raised properly in the trial court, the judgment in favor of the husband or the administrator (if entered) would have to be reversed and the award set aside, but they were not. The appellant tendered, and the court gave the instruction which authorized the jury to make an award to “fairly and reasonably compensate her husband, James B. Allen for the loss of comfort, protection and society of his wife, not to exceed the sum of $20,000.00, the amount claimed, * * * The trial judge could assume the parties had accepted the instruction as correctly stating the law for the jury. Cox v. Hardy, Ky., 371 S.W.2d 945 (1963). Loew was required to object to preserve her contention on review. CR 51. Chaney v. Slone, Ky., 345 S.W.2d 484 (1961). She cannot attack the verdict on the ground that it is contrary to law, (Claspell v. Brown, Ky., 332 S.W.2d 851 (1960)) or complain of the judgment which was entered in the situation which she created.

The judgment is affirmed.

All concur except EDWARD P. HILL, J., who dissents.


author: PER CURIAM.

text:
    KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Lance KOHLER, Respondent.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.
    Paul E. Braden, Frankfort, for complainant.
    Lance Kohler, Lexington, pro se.
   PER CURIAM.

The Kentucky State Bar Association made complaint against the respondent, Lance Kohler, a member of the Kentucky State Bar Association, for his failure to pay the prescribed dues as a practicing attorney. On March 8, 1967, by order of this court the respondent was suspended from practicing law for nonpayment of Bar dues. Pursuant to RCA 3.530 a rule was issued against the respondent to show cause why he should not be disciplined for alleged unauthorized practice subsequent to the order of March 8, 1967.

In his response the respondent admitted that he had practiced law following his suspension on March 8, 1967, and undertook to explain his delinquency in payment of dues as resulting from a misunderstanding in the office administration of a firm of attorneys with which he was formerly connected.

The issues were referred to Honorable Henry Meigs, the regular judge of the Franklin Circuit Court, as a Special Commissioner. Pursuant to the admission of the respondent of all the material allegations of the complaint, the Special Commissioner concluded that no just cause was shown why the respondent should not be held in contempt and recommended that the rule against him should be made absolute and the respondent suspended and enjoined from the practice of law, conditioned that the respondent may purge himself of such contempt by payment of all delinquent Bar dues, plus a fine of $25.00 together with the costs of this disciplinary action.

Our review of the record persuades us that the finding and recommended order of the Special Commissioner should be, and they are, accepted and approved. It is ordered, therefore, that the respondent, Lance Kohler, be and he is hereby held to be in contempt of this court and is suspended and enjoined from the practice of law in Kentucky subject, however, to his right to purge himself of such contempt by payment of all delinquent dues to the Kentucky State Bar Association, together with a fine of $25.00 and the costs of this action, to be accompanied by his application for reinstatement as an attorney in the regular and customary manner.

All concur.


author: OSBORNE, Judge.

text:
    Raymond BOOTH, Juanita Booth, Mae Gray and Dollie McIntyre, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.

      Lloyd A. MacDonald, William T. Walton, MacDonald & Walton, Flemingsburg, for appellants.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   OSBORNE, Judge.

This is an appeal from a judgment of the Fleming Circuit Court finding four appellants guilty under three indictments. Raymond Booth was convicted of false swearing under KRS 432.170 and sentenced to one year in the penitentiary. Juanita Booth was convicted of subornation of perjury under KRS 432.180, and sentenced to one year in the penitentiary. Juanita Booth, Mae Gray and Dollie McIntyre were found guilty of conspiracy to present perjured testimony under KRS 437.110. Juanita Booth was fined $2000, Dollie McIntyre $1000, and Mae Gray $1000 and was given a 30-day jail sentence.

The evidence produced in this case is extensive and confusing. On March 29, 1966, all of the appellants were present at the Booth home. There were certain disturbances and the sheriff was called. As a result of his visit to the Booth home two local men were arrested, Hanley Tucker and Eddie Wayne Zornes. The next day the appellants appeared before the Fleming County Grand Jury and testified against these two men. Raymond testified that he saw them running away from the farm, and the rest testified to various elements of the previous night’s disturbance. Indictments were returned against those accused. Subsequently these indictments were dropped, and the appellants herein were indicted and tried on the basis of their testimony before the grand jury.

The Commonwealth’s evidence is of three types: First, the testimony of each of the accused corroborated by one or more relatives that they were at home at the time of the disturbance; secondly, evidence that part of the disturbance was caused by some of the appellants, and finally, evidence of previous ill feelings between the appellants and those accused.

To prove the crime of false swearing it must be shown not only that the statements sworn to were false but that the defendant knew they were false at the time he made them. Greenwell v. Commonwealth, Ky., 316 S.W.2d 353. The Commonwealth’s proof herein shows that the statement was false by the testimony that those identified were elsewhere at the time. But the only proof presented that Raymond knew that it was false was that of the surrounding circumstances. The fact that those accused were elsewhere is as consistent with mistaken identification as it is with a statement known to be false at the time it was made. .Mistaken identification is a prevalent fact of life in trials of all sorts and is not the type of willful false swearing that is denounced by KRS 432.170. Greenwell v. Commonwealth, supra, and Johnson v. Featherstone, 141 Ky. 793, 133 S.W. 753.

The Commonwealth attempts to show this knowledge by showing previous misunderstandings and the fact that Raymond pointed out bullet holes that some of the other appellants had made to the sheriff as being caused by the accused. The overall testimony indicates that he very likely was unaware of the activities of the others and honestly believed what he said at the time he said it. The totality of proof is as consistent with a mistaken identification as it is with a willfully false statement. This does not meet the burden of proof required to sustain a guilty verdict. Rose v. Commonwealth, Ky., 385 S.W.2d 202 and Brown v. Commonwealth, Ky., 340 S.W.2d 471. Indeed this is even more necessary in a perjury case for as was said in Goslin v. Commonwealth, 121 Ky. 698, 90 S.W. 223, “ * * * it is a matter of first importance in the administration of justice that witnesses should feel themselves safe in testifying to their own conception, recollection, and honest belief as to the fact forming the subject of inquiry in the courts.” The facts in this case are similar to those in Thompson v. Commonwealth, 239 Ky. 627, 40 S.W.2d 287, where the testimony is suspicious but the proof just isn’t adequate to sustain a criminal conviction for false swearing.

This disposes of the other convictions as well. Juanita Booth was convicted of suborning Raymond Booth or two others not indicted to give perjured testimony. It simply wasn’t shown that the others perjured themselves, and we have found above that the evidence doesn’t show that Raymond Booth gave perjured testimony. Even if they had, the evidence of subornation is strictly inferential. The evidence of the conspiracy count is based on their presence at the home the preceding night, alleged bad feelings toward those accused and slight inconsistencies in the testimony of the appellants. It nowhere rises to that level required to sustain a conviction. Johnson v. Commonwealth, 295 Ky. 520, 174 S.W.2d 769.

The conviction of Raymond Booth for false swearing and of Juanita Booth for subornation of perjury are reversed for the reasons set out above. Although the convictions of Juanita Booth, Mae Gray and Dollie McIntyre for conspiracy are equally erroneous, we are unable to reverse them. They were convicted of a misdemeanor and failed to file a motion for appeal within the proper time as required by KRS 21.140 and RCr 12.52. Where a motion for appeal is required, it is jurisdictional. Hopper v. Commonwealth, 309 Ky. 288, 217 S.W.2d 640 (1949); Pickett v. Commonwealth, 293 Ky. 842, 170 S.W.2d 876 (1943), and Adams v. Commonwealth, 285 Ky. 803, 149 S.W.2d 727 (1941). This rule must stand regardless of the manifest injustice of this situation, for what is jurisdictional can not be waived. This seems to be a situation where executive clemency would be extremely proper.

The judgment is reversed as to Raymond Booth on false swearing and Juanita Booth on subornation of perjury.

The judgment is affirmed as to Juanita Booth, Mae Gray and Dollie McIntyre on conspiracy.

All concur.


text:
    URBAN RENEWAL AND COMMUNITY DEVELOPMENT AGENCY OF LOUISVILLE, Appellant, v. Harry W. FLEDDERMAN, d/b/a Little Liquor Store, and Carrie Davis Fledderman, his wife, Appellees.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.

      Robert W. Zollinger and Dennis J. Haugh, Louisville, for appellant.
    Henry V. B. Denzer and Henry A. Triplett, Hogan, Taylor, Denzer S¿ Bennett, Louisville, for appellees.
   CULLEN, Commissioner.

In condemnation proceedings instituted by the Urban Renewal and Community Development Agency of Louisville the jury awarded the landowner, Harry Fledderman, $38,000 as damages for the taking in toto of a lot with two connected store buildings on it at the corner of First and Jefferson Streets in Louisville. Judgment was entered accordingly. The agency has appealed, asserting several grounds of error.

The first contention is that the trial court erred in ruling that the “date of taking” as of which the property was to be valued was the date of the first public hearing on the urban renewal project, which date, March 27, 1961, was some five years before the actual taking of the property in the condemnation proceeding. It is contended that this ruling was erroneous under the holdings in Tharp v. Urban Renewal and Community Development Agency, Ky., 389 S.W.2d 453, and Commonwealth, Department of Highways v. Claypool, Ky., 405 S.W.2d 674. We agree that the ruling was erroneous but we find that the appellant is in no position to complain of it. The record shows that prior to the trial, on the appellant’s motion for a pre-trial conference “in order to determine the effective date of taking,” an order was entered, “the Court having heard argument of counsel,” fixing the date of taking as March 27, 1961. No objections or exceptions were made by either party and upon the trial the agency proceeded to put on its proof using the fixed date as the date for valuation. Only at a late stage in the trial, when one of the condemnee’s witnesses was on the stand, did the agency raise the point that the order fixing the date was wrong. The fatal defect in appellant’s argument on this point lies in the fact that as far as the record shows the appellant may have asked the court to fix the 1961 date. There is nothing in the record to show that at any time prior to the late stage in the trial above mentioned the appellant had advocated any other date than the one fixed by the court. The appellant therefore is not entitled to raise the question on appeal.

Appellant’s second contention is that the trial court erred in allowing the condemnee to use as an appraisal witness a man who had been hired by the appellant to make an appraisal of the property in question but whose appraisal had been rejected by the appellant as being too high. The condemnee not only used the man as a witness but brought out and commented to the jury on the fact that the man originally had been employed by the renewal agency to appraise the property.

There is a division of authority on the propriety of one party’s using as a witness the other party’s paid expert. See Annotation, 77 A.L.R.2d 1182, at 1191. We believe that such use is proper and we concur in the views of the Georgia Court of Appeals as stated in Logan v. Chatham County, 113 Ga.App. 491, 148 S.E.2d 471, at 473:

“We see no valid reason why an independent real estate appraiser, who has knowledge of the facts pertaining to realty being condemned and who from that knowledge has applied his expertise and formed an opinion as to the value of the property, should not be subject to subpoena and offered as a witness by either party to the litigation, and that without regard as to which of the parties employed him to make the appraisal and paid his fee. The ultimate end of all litigation is the ascertainment and rendition of the truth. The truth can be determined only through the sworn testimony of witnesses. Thus, any person not privileged having knowledge of issues being tried should be made available to the parties as witnesses. Neither a real estate appraiser nor his opinion is privileged. While it is certainly true that a real estate appraiser cannot be compelled to expend his time and knowledge in making an appraisal and forming an opinion as to value without remuneration for his efforts (Schofield v. Little, 2 Ga.App. 286, 58 S.E. 666), nevertheless once he has made the appraisal and formed an opinion he may be compelled to testify at the instance of either party. As Judge Russell has stated ‘Only when expressly provided by law can the privilege of a witness resist the demand of justice for the truth, and the witness refuse to answer a legal question. A physician is competent to testify as an expert, and no expert can refuse to testify because he has not been compensated or will not be compensated for his testimony. An expert testifying as a witness, has no greater privilege than any other witness.’ Dixon v. State, 12 Ga.App. 17, 76 S.E. 794.”

To the same effect see State Highway Commission v. Earl, S.D., 143 N.W.2d 88.

As a third contention appellant maintains that the jury erroneously was permitted to consider enhancement in value of the property directly attributable to the urban renewal project, when in connection with the examination of one of the con-demnee’s witnesses a plat of the general area was shown to the jury bearing at different points the words “Holiday Inn,” “Howard Johnson” and “Ramada Inn.” It is argued that this improperly brought to the attention of the jury that three elaborate new motels were going to be constructed in the area, from which fact the jury might infer (although no one so testified) that the value of the piece of property being condemned would be enhanced. From our examination of the record we do not find any indications that the mere showing to the jury of the plat, with no comment by counsel or witness to call attention to or give significance to the three names upon it, was of prejudicial proportions.

The fourth claim of error relates to the denial of appellant’s motion that the jury be sent to view the property. Under the special statutes governing condemnation for urban renewal projects, KRS 99.420(7), a jury view is not mandatory but is within the discretion of the court. The trial court denied a jury view in the instant case because of the substantial change that had taken place in the general area of the condemned property as the result of the beginnings of the urban renewal work. The appellant argues that there was no change in the immediate proximity of the property in question, and that there was no evidence in the record of any change even in the general area. It is our opinion that in a case such as this one, involving a major urban project the progress of which is a matter of common observation and knowledge, the trial judge properly could resort to his observation and knowledge of the situation in the general area, without requiring formal evidence, in ruling on a motion for a jury view. And we cannot say the judge erred on the question of whether the jury reasonably could have confined its view to the immediate proximity of the condemned property.

Our attention is called to the fact that the trial court repeatedly refused to grant the condemnor’s motions, made prior to the setting of the case for trial, for an interlocutory order granting possession. The court did not award possession until after the trial. The appellant seeks no specific relief on this appeal with reference to this, but asks us to express an opinion for future guidance. We think it is sufficient for us to say that the statute, KRS 99.420(9), seems to contemplate the awarding of possession upon motion of the agency unless there is a genuine issue in the case as to the right to condemn.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MIL-LIKEN, OSBORNE, PALMORE and STEINFELD, JJ., concur.


author: PALMORE, Judge.

text:
    Joyce C. MATTINGLY, Petitioner, v. Hon. W. R. GENTRY, Judge, Nelson Circuit Court, and Roger M. McMurray, Respondents.
    Court of Appeals of Kentucky.
    June 30, 1967.
    As Modified on Denial of Rehearing Nov. 3, 1967.

      Lester H. Spalding, Robert M. Spragens, Lebanon, for petitioner.
    E. E. Hubbard, Bardstown, W. R. Gentry, Bardstown, Judge, Nelson Circuit Court, pro se, for respondents.
   PALMORE, Judge.

In McMurray v. McMurray, Ky., 410 S.W.2d 139 (1966), a conveyance of real estate to Joyce McMurray (now Mattingly) and her husband as tenants by the entirety was held voidable to the extent necessary to pay a debt of $12,200 owed by Joyce’s deceased husband to his father at the time of the conveyance, subject however to the right of dower Joyce would have had if the title had run solely to the husband. On remand of the case a controversy developed over the meaning of our opinion in the light of KRS 392.020, the dower statute, which reads as follows:

“After the death of the husband or wife intestate, the survivor shall have an estate in fee of one-half of the surplus real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple at the time of death, and shall have an estate for his or her life in one-third of any real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple during the coverture but not at the time of death, unless the survivor’s right to such interest has been barred, forfeited or relinquished. The survivor shall also have an absolute estate in one-half of the surplus personalty left by the decedent. Unless the context otherwise requires, any reference in the statutes of this state to ‘dower’ or ‘curtesy’ shall be deemed to refer to the surviving spouse’s interest created by this section.”

The property that was the subject of the litigation sold for $21,557.90. The widow, who brings this mandamus proceeding to enforce the mandate, cf. Logan v. Ward, Ky., 237 S.W.2d 526 (1951), takes the position that the statute gives her a one-half interest in the real estate before payment of the debt. The creditor (formerly her father-in-law) contends that the statute entitles her only to half of what is left after all the husband’s debts, whether secured or unsecured, have been paid.

Prior to 1956 the dower interest in real estate was a life estate in one-third. Since 1956 it has been an absolute fee in half the surplus, with these exceptions: (1) if the widow renounces the husband’s will her dower is reduced to what it was before the 1956 amendment (KRS 392.080); and (2) if at his death the husband was no longer seized of real estate held by him in fee simple during the marriage, and the wife had never relinquished or forfeited her inchoate dower interest, she is entitled to a one-third interest in such property for life (KRS 392.020).

Subject to these two exceptions we think it is clear that the sum and substance of the 1956 amendment was to put real estate and personal property on exactly the same footing with respect to dower and curtesy. “Surplus” is “what is left after payment of funeral expenses, charges of administration, and debts.” Towery v. McGaw, 22 K.L.R. 155, 56 S.W. 727 (1900).

The exceptions, however, reflect an unmistakable purpose to leave in the wife, as it had always been, an inchoate dower interest of which she could not be involuntarily deprived by any act of the husband or his creditors during his lifetime. This is the interest which we held in McMurray v. McMurray, Ky., 410 S.W.2d 139 (1966), cannot be disturbed by an action to set aside a fraudulent conveyance under KRS 378.020. Since the purpose of KRS 378.020 is to put the creditors back in the same position they would have enjoyed immediately prior to the voidable conveyance, they cannot reach what would have been the wife’s inchoate dower interest as of the same time. That interest is a life estate in one-third. KRS 392.020. The creditor can get today only what he could have gotten then. Cf. Walters v. Anderson, Ky., 361 S.W.2d 31, 32 (1962).

As it developed, the property sold for $21,557.90, an amount amply sufficient to pay the $12,200 debt without impinging upon what would have been the commuted value of the dower, so the problem anticipated in our first opinion did not arise. However, the trial court’s judgment was for $15,764.43, which represents the principal and interest accrued from January 1, 1960 (the date on which payment was demanded) to December 17, 1964, the date of the judgment. This was affirmed in Mc-Murray v. McMurray, supra. In addition to the face amount of the judgment it also bears interest at 6% from its date of entry. See KRS 360.040. In view of the foregoing, there may not be sufficient money to pay the principal and all accrued interest after the dower is computed. Therefore, the trial court should in making distribution compute and pay petitioner her dower interest first then apply the balance to the satisfaction of the judgment and interest. If there are funds remaining after the judgment and interest is satisfied they should be turned over to petitioner as her property because to that extent the conveyance was not fraudulent and has not been set aside.

Mandamus denied.

All concur.