author: WOLFE, Presiding Judge.

text:
    Willard Leon DAVIDSON, Employee, Claimant, Appellant, v. SCULLIN STEEL COMPANY, Employer, and American Insurance Company, Insurer, Defendants-Respondents.
    No. 32364.
    St. Louis Court of Appeals. Missouri.
    Oct. 18, 1966.

      Douglas W. O’Neill, St. Louis, for claimant-appellant.
    Emil J. Kohl, St. Louis, for defendants-respondents.
   WOLFE, Presiding Judge.

This appeal concerns a claim filed with the Division of Workmen’s Compensation of the Industrial Commission of Missouri. The claimant sought compensation for an injury he sustained while working as an employee of the Scullin Steel Company. The hearing on his claim before a referee of the Division of Workmen’s Compensation resulted in an award to him of $47.50 a week for a period of weeks. The employee then made an application for a review by the full commission. Upon review the commission affirmed and adopted the referee’s award. This was followed by an appeal to the circuit court which affirmed the award of the commission. The claimant then appealed to this court from the judgment of the circuit court affirming the award.

The claimant here contends that evidence does not support the award of the commission and that the testimony of one doctor was erroneously admitted.

The Scullin Steel Company has a scale in its scrap yard for weighing furnace cars loaded with scrap iron. The cars operate on rails and carry iron to the smelting furnace. The cars are weighed as they stand on tracks and the mechanism of the scale which weighs them is underground. It is located in a room below the tracks which is reached by an 8 foot ladder. On May 28, 1964, the claimant, who was a man 32 years of age, was down in this room making an adjustment on the scale. The scale arm was a solid steel bar 6½ feet long, 4 inches thick, and 8 inches wide. It was fastened at one end but the end on which the claimant was working fell as he had his arm under it and it “jerked” him “maybe eight or ten inches to the ground.”

Claimant estimated the weight of the bar to be between 1,500 and 2,000 pounds. He testified: “It came down driving my right arm into my right side, jerking me all the way to the ground. It hurt my right leg, my right side. It hurt my back. I heard popping in the upper part of my back. I had smothering — I couldn’t breathe. I had hurting in my chest, and also my left shoulder hurt.” He was unable to get up the ladder without help and after reaching the ground level he went to the company dispensary. There he was X-rayed and given “pain pills,” massage and heat treatment. He went back to work on May 31, but he did not work the following five days. He went back to work on the 6th and 7th of June and thereafter he did not return to work until July 2.

Claimant was treated at the company-dispensary on 19 occasions and Dr. Suba, the company doctor, prescribed a rib brace which claimant wore for a short time. Claimant complained of blood in the urine and was sent to St. John’s Hospital for examination. He first declined to enter the hospital but was finally persuaded to do so and he remained there from June 19 to June 25. At the request of Dr. Suba he was examined there by Dr. Brennan, a urologist specializing in genital urology. He was released on June 25 and lost a total of 37 days of work.

At the time of the hearing claimant testified that he had constant pain in his back and neck. He said the pain went up into his head and it got worse when he lifted. He described it as being like a toothache. He said when he lifts he feels like all the leaders and muscles of his back were torn out. He also stated that when he climbs stairs he gets smothering spells and blackouts and fainting spells. He said when he drinks liquids such as coffee, tea or milk he gets a sharp pain in his chest “just like you would stick a knife in there.” Every time he goes to sleep he wakes up during the night with no feeling in either arm. Feeling comes back after 35 or 40 minutes in the right arm and approximately 45 or 50 minutes in the left arm after he wakens. He stated he still had blood in his urine and blood in his stool.

A Dr. Stephens testified on behalf of claimant and stated that he examined the claimant on July 14, 1964 and on November 30, 1964. Upon these examinations claimant complained of pain in his upper back between his shoulder blades. The doctor stated that claimant described the pain to be constant like an ache and at times sharp. He said that the claimant stated that the pain was aggravated by bending and he avoids heavy lifting. He also stated that the claimant had daily episodes of nausea and vomiting towards the evening but no complaints of abdominal pains. An examination of the claimant’s back showed good alignment with no muscle spasms in the paravertebral muscles but he had diffused tenderness about the paravertebral muscles in the mid-dorsal region. X-rays were negative and there was no objective symptom of any kind. Dr. Stephens drew the conclusion that the claimant’s complaint regarding the dorsal region of his back were consistent with some soft tissue injury in that region and it was his opinion that the claimant was about 15% permanently disabled.

On cross-examination the doctor testified that he would diagnose the condition as a strain or sprain of the dorsal region, describing that as part of the back from the base of the neck to about three inches above the waistline. Upon cross-examination the doctor stated that the strain of the dorsal spine muscles would not be consistent with the claimant’s complaint of sharp shooting pain in his chest when he drank liquids. He also stated that the claimant’s smothering spells when he climbed steps were not consistent with his diagnosis of a sprained back nor did he find any connection with the diagnosis he had made with the claimant’s statement that he lost circulation of blood in both of his arms at night while lying down. Dr. Stephens stated that it was not likely that one would find sharp pain like a toothache, which claimant stated he had in the back of his neck at all times, associated with the sprain which the doctor thought the claimant had. The doctor also conceded that there would be muscle spasms if the strain were severe enough to cause nausea or vomiting and he did not find muscle spasms in claimant’s back at any time. He found no objective evidence of injury and the only evidence upon which he could base a diagnosis were claimant’s subjective manifestations of pain and his complaints. He was asked upon redirect examination if there was any causal relation between the blood in the urine and the accident and the doctor testified that he was not qualified to answer that.

The report of Dr. Brennan who made a cystoscopic examination in the hospital was also offered in evidence by the claimant. Dr. Brennan found no blood in the urine visible to the naked eye but microscopic examination disclosed some blood cells. In his report he stated: “ * * * about all I can say is that this man apparently does have red cells in his urine and the only finding really is the veins in the bladder are engorged and whether this is the tail end of an inflammatory process or whether he strains real hard to urinate I don’t know, but I don’t think it’s anything serious. * * * »

The claimant stated that he quit his work at Scullin because he could not do the work such as climbing and lifting. He had been working five hours a day at a second job at the Commercial Cartage Company where he did lubrication work and repaired tires but he quit that work following the injury because he could not do the lifting and could not do the washing of trucks which he testified had to be done with an 18 inch brush on an extension. After that he worked at a Shell Filling Station at the intersection of Union and Delmar Boulevards from October 10, 1964, to December 14, 1964.

The proprietor of the filling station testifying as a witness for the employer said that claimant’s work at his station consisted of routine filling station work. He said that claimant did not ask for any time off because of any physical disability nor did he appear to be in any distress while performing his various duties or ever complain of pain. He stated that he discharged the claimant because he was incompetent, dirty and not capable of performing his duties.

The employer also called Dr. Suba, medical director, at the Scullin Steel Company plant. He had examined the claimant in the hospital but could find no visible evidence of any injury. He ordered some medication to relax his muscles but he did not institute any program of therapy for him because he did not think it was necessary. The last examination he made was November 27, 1964. He stated that at that time he could find no points of tenderness along the course of the cervical, thoracic and lumbar spine and there was no costo-vertebral angle tenderness. Dr. Suba testified that he was not at any time able to see blood in the urine. The claimant had never complained to him of blood in his stool. He stated that he saw no causal relationship between the accident and the hematuria that was present subsequent to that date. He testified that he did not think the claimant had any permanent partial disability.

It was upon the evidence above stated that the referee for the Division of Workmen’s Compensation made his award for temporary total disability for a period of 37 days or weeks, concluding his award with the statement: “I further find from the evidence that there is not sufficient credible evidence to support a finding of permanent partial disability.”

As stated, the full commission affirmed the award and the circuit court affirmed the commission. Our function as a reviewing court is fixed by the 1945 Constitution of Missouri, Art. 5, § 22, V.A.M.S. The pertinent part of the section states: “ * * * such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.” Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647. The scope of our review was elaborated upon in Francis v. Sam Miller Motors, Mo., 282 S.W.2d 5, 1. c. 12, wherein the court stated: “In determining whether the Commission could have reasonably made its findings, and reached the conclusion it did reach, upon consideration of all the evidence before it, we view the record in a light most favorable to the findings of the Commission, consider the favorable inferences which the Commission had a right to draw from the evidence before it, and then determine whether the Commission’s findings, even if supported by competent and substantial evidence are contrary to the overwhelming weight of evidence in the whole record. Thacker v. Massman Const. Co., Mo.Sup., 247 S.W.2d 623, 627.”

Under those rules we cannot disturb the findings of the commission based on an acceptance by it of one of two conflicting medical conclusions unless the conclusion accepted was against the overwhelming weight of the evidence. Cole v. Best Motor Lines, Mo.App., 303 S.W.2d 170; Tebeau v. Baden Equipment and Construction Co., Mo.App., 295 S.W.2d 184. The only objective evidence of any of the things of which claimant complains was a microscopic finding of the hematuria. This was never related to the accident by any medical witness. The claimant’s own doctor found only subjective evidence of a back sprain and concluded that it had resulted in a 15% permanent disability to the man as a whole. The testimony of Dr. Suba was that there was no permanent disability and the commission believed Dr. Suba. We cannot say that they erred in so doing.

The claimant asserts that Dr. Suba’s testimony is of no value and cannot be considered. He bases this assertion upon one answer given by Suba. Dr. Suba was asked his reason for his statement that there was no permanent partial disability and his answer was: “Because all the subjective complaints that this individual has are entirely out of proportion to our objective findings on physical examination, x-rays, fluoroscopy, and with a G.U. consultation, which is Doctor Brennan, who also concurs — ”

At that point in the testimony counsel for claimant objected to the answer of Dr. Suba on the ground that Dr. Suba was basing his opinion on the opinion of Dr. Brennan. The referee struck that portion of the answer which related to Dr. Brennan’s opinion. Claimant now asserts that Suba’s, conclusion is of no value as evidence. With this we cannot agree. Dr. Brennan’s opinion which was put in evidence by the claimant related only to the hematuria. There was no medical evidence that this was causally connected with the accident nor that it related to the disability which claimant’s doctor concluded was permanent. Suba had treated and repeatedly examined the claimant from the day of the accident. It was upon this that he formed his opinion regarding the strain from which claimant’s physician stated that claimant was still suffering. We find the point without merit.

Judgment is affirmed.

ANDERSON and RUDDY, JJ., concur.


source: Caselaw Access Project

author: RUDDY, Judge.

license: Public Domain

text:
    Mary GACHIOCH, Plaintiff-Appellant, v. William G. WITTMANN, Edna Wittmann, and A. A. B. Investment Corporation, a Corp., Defendants-Respondents.
    No. 32153.
    St. Louis Court of Appeals. Missouri.
    Oct. 18, 1966.

      Donald S. Hilleary, Clayton, for plaintiff-appellant.
    Charles R. Oldham, St. Louis, for defendants-respondents.
   RUDDY, Judge.

This is an action on a promissory note, wherein plaintiff, Mary Gachioch was payee and William G. Wittmann and Edna Witt-mann, defendants, were the makers of said note. It was admitted that the corporate defendant, A.A.B. Investment Company assumed the aforesaid note obligation in writing. The verdict was in favor of the plaintiff and against all defendants in the amount of $4939.94. The trial court sustained defendants’ motion for new trial because of alleged error in the giving of plaintiff’s instruction No. 1. Plaintiff’s appeal followed. We shall refer to Mary Gachioch as plaintiff; to William G. and Edna Witt-mann as defendants; and to the A.A.B. Investment Company as the corporate defendant.

On May 31, 1962, plaintiff sold a piece of real estate known as and numbered 4101— 03 North Twentieth Street, St. Louis, Missouri to the defendants. A part of the consideration for the purchase of the property was a promissory note for $4000 dated May 31, 1962, executed by the defendants and payable to plaintiff. This note on its face indicated that it was secured by a deed of trust on the aforementioned property. The principal and interest of said note was to be paid in monthly instalments of $45.42 beginning the first day of July 1962, and a like amount on the same day of each succeeding month thereafter, until the note was fully paid. The note contained an acceleration clause in the event of failure to pay any of the monthly instalments when due. If the unpaid indebtedness due on the note was accelerated because of default the defendants agreed to pay all costs of collection, including a reasonable attorney’s fee.

The issue in the case was whether or not the defendants had made the payment due on December 1, 1962, prior to the time they received notice from the plaintiff of acceleration of the balance due.

It is undisputed that the payment due July 1, 1962, was made by check dated July 13, 1962; the payment due August 1, 1962, was made by check dated August 9, 1962; the payment due September 1, 1962, was made by check dated August 27, 1962; the payment due October 1, 1962, was made by check dated October 19, 1962; and the payment due November 1, 1962, was made by check dated November 21, 1962. It is undisputed that all of these payments were made by check and were sent through the mail and were received by plaintiff and cashed by her. Plaintiff had agreed that the checks could be sent by mail.

Plaintiff testified that she did not receive a check for the payment due December 1, 1962. She consulted Harry Hilleary, an attorney, who was the brother of her trial attorney, about the second or third of January, 1963. Pursuant to the direction of the plaintiff the attorney wrote a letter to William G. Wittmann and mailed a carbon copy of the letter to defendant, Edna Witt-mann on January 4, 1963. The letter declared the note in default and made a demand upon the defendants for payment in full of the principal amount of $3900 plus interest from December 1, 1962. Defendants admitted they received the letter on January 6, 1963. Harry Hilleary, attorney for the plaintiff, testified that about the middle of January, 1963, plaintiff came into his office and had in her possession two checks, one of the checks was dated December 11, 1962, and the other was dated January 5, 1963. The maker of these two checks was the corporate defendant. These two checks obviously were in payment of the instalments due December 1, 1962, and January 1, 1963. The two checks were returned to the defendants by the attorney, with a letter dated January 17, 1963. Plaintiff returned all checks received thereafter in payment of the monthly instalments.

Defendant, William G. Wittmann, testified that the checks dated December 11, 1962, and January 5, 1963, were mailed by him to the plaintiff on the day each was issued, which in both instances was prior to receiving, on January 6, 1963, the letter written by plaintiff’s attorney accelerating the unpaid indebtedness on the note. This witness further testified that each month from February through September 1963, he mailed a check to plaintiff. He admitted that all of the checks were returned along with a letter from the attorney and that none of these checks had been endorsed by the plaintiff or cashed by her. No more checks were sent by defendants because they had been informed by plaintiff’s attorney to stop sending the checks. It was admitted by plaintiff that defendants at the time of the trial in November 1964, tendered the sum of $1090.08 to plaintiff and that said sum represented the instalment payments then due.

As we have pointed out heretofore the trial court sustained the motion for a new trial of the individual defendants and the corporate defendant because of an alleged error in giving instruction No. 1. Said instruction No. 1 is as follows:

“The Court instructs the jury that if you find from the evidence that on or about January 4, 1963 the plaintiff, by and through her attorney, mailed to defendants, William Wittman and Edna Wittman, letters dated January 4, 1963 if you so find, and if you further find that the aforesaid letters were received by defendants, William Wittman and Edna Wittman, if you so find, and if you further find that said letters contained language therein which indicated to the defendants, William Wittman and Edna Wittman, that plaintiff declared her intention to treat the entire unpaid amount of principal due and payable, and if you further find that prior to the time of the receipt of the aforesaid letters by the defendants, William Wittman and Edna Wittman, the defendants had neither paid to the plaintiff the installment due on December 1, 1962, nor had they tendered to the plaintiff payment of the installment due December 1,1963, if you so find, then your verdict shall be in favor of the plaintiff and against the defendants.” (Emphases ours).

The trial court sustained the motion for new trial of all of the defendants “ * * * for error in date of ‘December 1, 1963’ contained in plaintiff’s instruction #1.”

As an aid in discussion of the contention urged by the individual defendants and the corporate defendant that the instruction was misleading and confusing and constituted prejudicial error we set out instruction No. 3, submitted by all of the defendants, which reads as follows:

“The Court instructs the jury that if you find and believe from all the evidence that defendants made tender to plaintiff of the monthly installments of the note mentioned in the evidence for December, 1962 through November, 1964 in the amount of One Thousand Ninety and 08/100 Dollars ($1,090.08), and if you further find from all the evidence, that plaintiff authorized and assented to the defendants paying the monthly installments on said note by mail, and that defendants mailed the monthly payment for December, 1962, on said note to plaintiff before the plaintiff declared the balance of said note due and payable, then your verdict should be for the plaintiff in a sum not to exceed One Thousand Ninety and 08/100 Dollars ($1,090.08). * * *” (Emphases ours.)

As a further aid to our discussion we set out parts of the jury argument of both plaintiff and defendants’ counsel. Plaintiff’s counsel, inter alia, said:

“ * * * Now, that instruction goes on further and says that ‘if you further find that prior to the time of the receipt of the aforesaid letters by the defendants, William Wittman and Edna Wittman, the defendants’ — had done neither of the two things — if they had done either of the two things, they are entitled to a verdict- — the defendants had neither paid to the plaintiff the installment due on December 1, 1962, nor had they tendered to the plaintiff payment of the installment due December 1,1962 — if you find those facts — up to that point, no issue the letter was mailed, they received it on January 6th. The dispute arises whether they made payment or whether they had tendered payment to us prior to the time they received our letter.” (Emphases ours).
⅜ ⅜ ⅝ ⅜ sfc ⅜
“ * * * I believe, we are entitled— and we have accelerated; we have not been tendered the payment nor have we been paid prior to the time they received our letter.”

In the closing argument of the defendants’ counsel the following was said, inter alia:

“ * * * Now, originally, this note was on the second deed of trust; it was for $4000.00; five payments were made on it, and, then, there is a question about the sixth payment. * * * ”

Defendants’ counsel further said in referring to instruction No. 3:

“ * * * Then, the court tells you that if you find from the evidence that the defendant mailed the check, if you find from the evidence that he mailed the check to Mrs. Gachioch, the plaintiff, and that Mrs. Gachioch consented and agreed to him sending, and receiving these payments by mail, and this check was mailed prior to the time they, through their attorney, declared the note in default, then, plaintiff is entitled only to the amount of money we have offered, $1090.08. * * * ” (Emphasis ours).
⅝ ⅜ ⅜ ⅝ ⅝ ‡
“ * * * Now, the crux in this case, the whole issue in this case is whether or not this particular check was mailed prior to January 5th or 6th of 1963. * * * ”
* * * * * *
“I have tried to limit this case to the issues which are really before you. * * * whether or not a check was mailed in December * *

The date of the instalment due referred to in instruction No. 1 which reads “December 1, 1963” is obviously a typographical error and that it is such an error becomes unmistakably clear when it is seen that the balance of the same instruction and instruction No. 3, when referring to the tender or payment of the same instalment due, gives the date “of the instalment due” as December 1, 1962. The sole question for determination is whether this typographical error misled and confused the jury causing it to bring in a verdict for plaintiff under instruction No. 1 instead of a verdict as directed under instruction No. 3 submitted by all of the defendants.

In support of the court’s action the individual defendants and the corporate defendant say that throughout the trial there was constant reference to dates other than December 1, 1963. They refer to the evidence that shows the tender of payment from January 1963 until September 1963. The answer to this is that we have examined the record in this case thoroughly and have failed to find a single reference to the date of December 1, 1963 by any witness or contained in any exhibit. These defendants contend that there were other errors in the instruction which would tend to confuse and mislead the jury. It was admitted by the defendants that they received on January 6, 1963 a letter dated January 4, 1963, accelerating the unpaid indebtedness due on the note and the only finding that had to be made by the jury was whether, prior to the time of the receipt of the letter by the defendants, they had either paid to the plaintiff the instalment due on December 1, 1962, or had tendered to the plaintiff payment of said instalment. If the jury found that defendants had neither paid it, nor had tendered the payment to the plaintiff, it was directed to find in favor of plaintiff and against the defendants under instruction No. 1. On the other hand, if the jury found under instruction No. 3 that the defendants made the tender to the plaintiff of the December 1, 1962 instalment and the others due at the time of the trial and that defendants mailed the monthly payment due December 1962, before they received the letter from the attorney for plaintiff accelerating the unpaid balance due, then the jury was directed to find their verdict in favor of the plaintiff in a sum not to exceed $1090.08. There was nothing about instruction No. 1 which would tend to confuse or mislead the jury, with the possible exception of the typographical error referred to.

It will be noted that the two dates in instruction No. 1, namely, December 1, 1962, and December 1, 1963, had reference to an instalment due “prior to the time of the receipt of” the letter dated January 4, 1963. Defendants admitted receiving this on January 6, 1963. This admission was a part of the evidence heard by the jury. Any reference in instruction No. 1 to an instalment due in December prior to January 6, 1963, had to mean December 1,1962, and not December 1, 1963. We do not believe the jurors in this case, who are presumed to possess the intelligence required under the law, were misled and confused. They would have recognized that the date December 1, 1963 was merely a typographical error. This becomes more evident when we know that at no time or place in the evidence was the date December 1, 1963 mentioned. Instruction No. 3, submitted by all defendants, when referring to the same matter, namely, the date of the instalment due, shows December 1962, and requires the jury to find that the payment of this instalment, namely, December 1962, was mailed “ * * * before the plaintiff declared the balance of said note due and payable, * * *.” As we have pointed out several times the plaintiff declared the balance of the note due and payable on January 4, 1963 in a letter forwarded to the defendants which they acknowledge receiving on January 6, 1963.

The sole issue presented to the jury in the opening statements, throughout the evidence by all the parties, in the instructions, (with the exception of the typographical error referred to) and in the final arguments of counsel was whether the instalment due December 1, 1962, had either been paid or tendered to the plaintiff prior to the time defendants received (January 6, 1963) the letter of January 4, 1963, written by the attorney for the plaintiff accelerating the unpaid balance due on the note. Plaintiff’s counsel in his closing argument, when calling the jury’s attention to the content of instruction No. 1, made it clear that the sole dispute submitted was whether payment was made or tendered of the instalment due December 1, 1962, prior to the time defendants received plaintiff’s letter. Defendants’ counsel in his argument to the jury, when referring to instruction No. 3 submitted by all of the defendants, told the jury that “the whole issue” was whether or not the check for the instalment due December 1, 1962, “* * * was mailed prior to January Sth or 6th of 1963.” It is readily apparent to us, as it must have been to the jury, that the date in the instruction No. 1, “December 1, 1963,” was intended to mean “December 1, 1962.” We agree with plaintiff’s contention that if the date of December 1, 1963 was actually intended it would be submitting a failure to tender an instalment not due for some eleven months after January 6, 1963. This obviously would be an illogical presentation.

A case somewhat similar to the instant case is that of J. W. Tipton Cotton Co. v. Clayton, 231 Mo.App. 247, 99 S.W.2d 549. In that case, in a verdict directing instruction, the trial court inadvertently used the date of June 12, 1934, instead of June 12, 1933. In holding this was not prejudicial error but was an apparent typographical error, the court said; (99 S.W.2d l.c. 556)

“It is urged that the instruction was misleading because the date June 12, 1934, was used instead of June 12, 1933. This is apparently- a typographical error, since the correct date June 12, 1933, appears immediately preceding the date 1934 in the instruction and there was no evidence as to the market in New York for June, 1934, but all the evidence as to the market quotation was for June 12, 1933. We think the jury could not have been misled by such mistake.”

In the case of Wegener v. St. Louis County Transit Company, Mo., 357 S.W.2d 943, the trial jury returned a verdict for defendant and plaintiff appealed. The trial court refused to give plaintiff’s instruction No. A submitting the humanitarian failure to warn or swerve. The Supreme Court of Missouri en banc, in finding that the court should have given the instruction, and in holding that when read as a whole it was not confusing or misleading or unintelligible, said:

“Defendant contends that there was no error in refusing Instruction No. A submitting humanitarian failure to warn or swerve because it was not properly drafted. * * * We think the misuse of the word ‘west’ was a mistake ‘so evidently clerical as to permit no possibility of error on the part of the ordinary reader,’ Trustees of Christian University v. Hoffman, 95 Mo.App. 488, 497, 69 S.W. 474, 476. As stated in respondent’s brief ‘All the evidence clearly showed that the motorbus was approaching from the east,’ and in view of the unanimity of the witnesses on both sides with reference to the direction from which the bus was approaching, this clerical error could not possibly have misled the jury. Nor did the use of the word ‘eminent,’ instead of ‘imminent,’ justify the refusal of the instruction. The obvious misspelling of the word was an insubstantial and trivial imperfection. Absolute perfection in form is not the test. The test is whether the instruction is substantially correct. * * * While Instruction No. A may not have been ‘technically perfect’ in that it contained a patent typographical error and a word obviously misspelled, it was substantially correct in form and substance and for this Court to justify its refusal for such slight and inconsequential deviations would be to set the standard above that required in the practical administration of justice. * * * ”

In the case of Edwards v. St. Louis Public Service Company, Mo., 365 S.W.2d 483, the court held that the inadvertent use of the word “right” for “left”’ was a clerical or typographical error and could not have been misleading or prejudicial because the evidence was uncontroverted as to the true facts, both parties’ evidence showing the entire bus was south of the center line of the street.

We think the mistake in instruction No. 1 in the instant case is so obviously clerical as to permit no possibility of error on the part of the ordinary reader. We are aware of the rule as urged by all of the defendants that when a trial court sustains a motion for a new trial an appellate court may be more liberal in upholding the court’s action than it would in reversing a judgment on the same ground. Edie v. Carlin, Mo. App., 369 S.W.2d 610. However, as said in the case of Warren v. Kansas City, Mo., 258 S.W.2d 681, l.c. 683:

“ * * * If in point of fact an instruction is not erroneous as to a matter of law or it is not fairly demonstrable upon the record that the instruction was misleading or may have otherwise deprived the losing party of a fair trial the rule is inapplicable. * * * ”

We do not believe the instruction in question misled or confused the jury nor do we believe said instruction deprived the defendants of a fair trial. For the reasons given the judgment is reversed and the cause remanded with directions to reinstate the verdict and judgment in favor of the plaintiff.

WOLFE, P. J., and ANDERSON, J., concur.


author: WADDILL, Commissioner.

text:
    Curtis CAUDILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.
    Curtis Caudill, pro se.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Curtis Caudill, incarcerated in the penal institution at Eddyville, appeals from an order overruling his motion to vacate a conviction for rape.

The record discloses that this is the second attempt by Caudill to obtain post-conviction relief pursuant to RCr 11.42. The grounds he now relies upon were previously presented to and rejected by the circuit court. Neither our Rules of Criminal Procedure nor our case law provides for a second assault to be made upon the judgment of conviction. RCr 11.42; Jennings v. Commonwealth, Ky., 400 S.W.2d 233; Tipton v. Commonwealth, Ky., 398 S.W.2d 493. The proper procedure for Caudill to have followed was the timely filing of an appeal to this court from the original judgment denying the relief he sought under his first RCr 11.42 motion.

The. judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Lark HUNT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.

      Joe P. Tackett, Prestonsburg, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Having been convicted of the offense of selling alcoholic beverages in local option territory, KRS 242.230, Lark Hunt has filed a motion for appeal seeking to reverse the judgment imposing punishment of imprisonment for 45 days and a fine of $50.00. KRS 21.140(2). The chief contention of appellant relates to the failure of the trial court to compel the prosecutive officials to furnish the name of an informer.

Appellee suggests in its brief that the motion for appeal should be denied because the record on appeal was filed one day later than permitted by RCr 12.58. We consider that appellee waived that point by its failure to make timely motion to invoke the rule. RCr 12.58 is a counterpart of CR 73.08. As observed in Elam v. Acme Well Drilling Co., Ky., (decided September 30, 1966), failure to seasonably move for dismissal of the appeal effectively waives any right to demand dismissal for late filing. The same principle is applicable in the case at bar.

Under former Criminal Code Section 336(3), (4), this court held in a series of cases that the failure to file the record within 60 days was irretrievably fatal. See Patton v. Commonwealth, Ky., 247 S.W.2d 38, and cases collected in 6 Ky.Dig. 2, Criminal Law, ©=> 1106(2), (3). It is to be observed that former Criminal Code Section 336(3) provided that filing an appeal in a criminal case was taken by lodging a certified transcript of the record in the Clerk’s office of this court. However, RCr 12.52(1) provides that such an appeal is now taken by filing a notice of appeal with the circuit court. As observed in Clay, CR 73.08, Author’s Comment 6, p. 358, the time for filing the record in a civil appeal is not jurisdictional; late filing may be waived. So it is in a criminal appeal. Our cases under former Criminal Code Section 336 to the contrary are no longer authoritative on this point.

On January 27, 1966, the indictment was returned against the appellant by the terms of which it was charged, in part, that appellant : “Sold to another person six 16 oz. cans of beer for $3.00 in Local Option Territory.”

On February 1, 1966, appellant, by counsel, moved for a bill of particulars as authorized by RCr 6.22, and specifically requested that the prosecution be required to furnish the name of the individual referred to as “another person” in the indictment. By an order entered March 31, 1966, the trial court sustained the motion for the bill of particulars, and directed that the prosecutive officials furnish the name of the person referred to. In the order the court directed that such information should be furnished “ * * * so that the defendant will have time within which to investigate the matter and be ready for trial on the date the case is set, April 22, 1966.”

On April 18th, 1966, the Commonwealth’s Attorney filed a statement in the nature of a bill of particulars in which it was recited that Garry Johnson (a state police officer) was the purchaser of the alcoholic beverages from the defendant-appellant. The statement pointed out that Garry Johnson had subscribed an affidavit on November 11, 1965, in which he had recited that he had been the purchaser in the case.

When the case was called for trial, appellant stated to the court that he was not ready for trial because he had not been furnished the name of an informer who had allegedly accompanied Officer Johnson at the time of the asserted sale of the contraband beverages. It was made known that Officer Johnson had testified before the grand jury that he had been accompanied by such an informer, but had professed that he did not know the name of the informer. The officer had related to the grand jury that the informer had been made available to him by an agent of the Alcoholic Beverage Control Board, but when the latter officer was called before the grand jury he was not able to furnish the name of the informer. In short, the appellant was never able to elicit the information identifying the informer.

Appellant insists that the failure of the Commonwealth to advise him of the informer’s identity prevented his having a fair trial. We are not able to accept the contention. In the first place, appellant made no affidavit or other representation to the trial court as to what he expected to prove from the lips of the unnamed informer. RCr 9.04 precludes appellant’s right to assert that he was prejudiced by not having the “evidence” of the informer — he has never told any court what “evidence” he expects from the informer. Thus, he demonstrates no prejudicial error. RCr 9.24.

Additionally, we are unaware of any rule or reason which would require the prosecution to disclose to the defense all of its apparatus in the matter of crime detection and law enforcement. Confidential informants play an important role in law enforcement. It is quite obvious that such informants would be materially stifled as sources if their identity could be demanded by the accused. This is not a case involving confrontation of an accuser, nor it is one in which the reasonableness of a search warrant may be tested only if the source of the affiant’s knowledge is disclosed. Here the officer’s testimony alone was fully sufficient to prove every element of the crime; there was no search or search warrant. For these reasons we conclude that there is no merit in appellant’s contention.

The motion for appeal is denied, and the judgment is affirmed.


author: HILL, Judge.

text:
    Arthur WHITE etc., Appellant, v. KENTUCKY ALCOHOLIC BEVERAGE CONTROL BOARD et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.

      Edward F. Prichard, Jr., Frankfort, for appellant.
    Frank M. Dailey, Frankfort, Thomas P. Bell, Lexington, for appellees.
   HILL, Judge.

Appellee Walgreen Drug Company was granted retail liquor and beer licenses for one of its stores located at 38th Street and Winston Avenue in the City of Covington. Appellant Arthur White protested the order of the Kentucky Alcoholic Beverage Control Board granting the licenses and prosecuted an appeal to the circuit court, where the action of the Board was upheld; thereafter, he appealed to this court.

KRS 243.580 provides that in our present situation an order of the Board issuing license shall not become effective until the appeal in circuit court has been finally determined. The statute governing appeals to the Court of Appeals is silent with respect to the effective date of the license. So, to say the least, the granting of the licenses by the Board must be suspended during the prosecution of appeal to the circuit court. We are not called upon in this case to determine whether or not the issuance of the licenses is suspended pending the appeal to the Court of Appeals.

Appellant contends that the granting of the licenses to appellee Walgreen Drug Company constituted a monopoly due to the “multiple ownership” of other stores by the drug company and that the granting of such licenses would constitute a “threat of monopoly and danger to free, individual, competitive enterprise.” We are not furnished with citation of any authority in support of this position; and, offhand, we do not think of any.

The judgment is affirmed.


text:
    Kelly NOBLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.

      Rose & Short, Beattyville, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for appel-lee.
   WADDILL, Commissioner.

Kelly Noble appeals from a judgment which convicted him of having alcoholic beverages in his possession for the purpose of sale in local option territory. KRS .242.230. The sole question presented is whether testimony relating to Noble’s possession of alcoholic beverages was admissible. Noble contends that the evidence resulting in his conviction was obtained by an unreasonable search in violation of Section 10 of the Constitution of Kentucky.

Trooper Jesse O. Bach testified:

“ * * * Myself and Deputy Hobbs were riding in the police cruiser, and we observed his truck sitting by the side of the public highway and Mr. Noble outside his truck, relieving himself. We checked on him and saw that he was drunk. We drove on past his truck for a little ways and turned and came back to v/here he had the truck. I asked him for his license. He had got back into the truck and when I asked him for his license he got out of the truck and when he opened the door of the truck to get out I could see this beer in the truck. One carton of the beer was open and I could see the beer in the cartons stacked in around the front of the truck. One of the 6-packs was open on the seat and the whiskey was stacked on the floor in the front of the truck and you could see what it was.
“Q. You say, Trooper Bach, that you observed this beer stacked in the front of the truck. You mean that it was visible there in the truck and you could observe it without any search of the truck?
“A. Yes, sir. It was night, but not too dark, and when he got out of the truck you could observe the beer and whiskey in his truck. * *

Noble was subsequently found not guilty of the drunkenness charge. Contrary to Noble’s argument his acquittal of that charge does not determine the question of the admissibility of this evidence since the knowledge that Noble had liquor and beer in his truck did not arise pursuant to a search incident to arrest. The testimony of Trooper Bach shows that Noble’s truck was already stopped and that the liquor and beer were in plain view.

The material facts of this case are not distinguishable from those in Ferrell v. Commonwealth, 204 Ky. 548, 264 S.W. 1078. In that case we said:

“Appellant now insists that the evidence obtained by the sheriffs against him was incompetent because the sheriffs had no warrant to search his automobile, and he insists that the search was unlawful for which reason the evidence thus obtained was incompetent against him. This case is very different from most cases where that contention is made. True, there was no search warrant, but none was necessary under the facts in this case. If, however, appellant had not opened the door, the sheriff would not have been justified in searching the car without a warrant. But when appellant, Ferrell, opened the door as the deputy sheriff approached and inquired if he were a ‘hijacker/ and thus exposed the kegs in the car, at the same time releasing the odors of liquor therein pent up, it was manifest that a public offense was being committed in the presence of the officers, and they and each of them had the right to arrest appellant and his companion for having in possession intoxicating liquors.”

Also see Reynolds v. Commonwealth, Ky., 273 S.W.2d 569.

The contention that Bach made an unauthorized search of Noble’s automobile is without merit.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    James Leon PIERCE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 17, 1966.

      Stuart L. Lyon, David Kaplan, James Ñ. Webb, Louisville, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

James Leon Pierce appeals from a judgment which sentenced him to imprisonment for two consecutive five-year terms pursuant to a verdict finding him guilty of storehouse breaking and carrying concealed a deadly weapon. The sole ground of error relied upon is that Pierce’s constitutional rights were violated by the giving to the jury of an oath concluding with the words “So help me God.” Pierce objected in advance to the form of the oath and subsequently moved to discharge the jury. However, no juror objected to the form of the oath.

The Rules of Criminal Procedure do not set forth the form of oath to be given the jury in criminal cases, but merely provide, in RCr 9.42, that the “jury shall be sworn to try the issue.” Section 217 of the former Criminal Code of Practice did prescribe the form of oath, but it did not include the words “So help me God.” The oath prescribed by KRS 29.300 to be given the jury in civil cases does not contain those words. It appears, therefore, that any use of the words in administering oaths to juries in Kentucky has been attributable to a tradition, either actual or imagined, in the particular court. We have no idea to what extent the use of the words in question is common throughout the state.

Certain things are clear. First, there is no requirement by our constitution, statutes, or rules, that the oath to a jury contain the words “So help me God” or any other reference to God. Second, any person, including a juror, has the privilege of substituting an affirmation for an oath. See KRS 454.170; Commonwealth v. Jarboe, 89 Ky. 143, 12 S.W. 138. Third, there could be no violation of constitutional guaranties of religious freedom by demanding that a person, if he does believe in a God, invoke that belief as a guaranty of truth rather than merely declaring a recognition of the sanctions of a perjury prosecution. Fourth, the use of the words “So help me God” in the juror’s oath does not mean that the juror will decide the issues the way he thinks God would want them decided, but only that the juror will, as God is his witness, decide the issues according to the evidence. Fifth, if perchance a juror not believing in a God should take the oath containing the words in question, without voicing any objection, the effect could not be that the juror was under no sanction at all, but that he was subject only to the perjury sanction.

It has been held by this Court that if a person being sworn makes no objection to the form of the oath it will be presumed that the form conforms to his conscience. Commonwealth v. Jarboe, 89 Ky. 143, 12 S.W. 138. We think this is an entirely reasonable presumption, and it would not be reasonable to require of the officer administering the oath that he first ask each oath taker whether the form is satisfactory.

Since in the circumstances here presented no juror was compelled to take a particular form of oath against his will, no one was excluded from jury service for any reason related to the oath, and no religious qualification was imposed on jurors, we do not see how the appellant could possibly claim that his rights were violated.

The Maryland situation dealt with in Schowgurow v. State, 240 Md. 121, 213 A.2d 475, was entirely different. There the Maryland Constitution required a decía-ration of belief in the existence of God as a qualification for jury service. Persons not making that declaration were excluded from jury service. Not so here.

The judgment is affirmed.


text:
    Lawrence “Pigmeat” NICHOLS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.
    Lawrence “Pigmeat” Nichols, pro se.
    Robert Matthews, Atty. Gen., Darryl T. Owens, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Lawrence “Pigmeat” Nichols presents numerous grounds upon which he deems himself entitled to a reversal of a judgment imposing punishment of imprisonment for ten years and a fine of $500 upon his conviction of illegal possession of marijuana. KRS 218.020; 218.210(2). Our view of the case requires discussion of only one of the grounds advanced for reversal— whether the contraband narcotic was obtained as the result of an illegal search.

For purposes of testing the legality of the search we relate the evidence most favorable to the prosecution:

About 4:00 p. m. on September 14, 1965, a federal narcotics agent (Albert Cook), in company with Bowling Green police officers, Daryl Moody and Fred Lancaster, posted themselves in an automobile for the purpose of conducting a surveillance of a combination rooming house and beer tavern in Bowling Green. The officers had been on the “stakeout” for only a few minutes when they realized that they had been “made” — that is, persons going in and out of the premises recognized them as officers keeping a lookout. An individual named Freddie Webber saw the officers and ran; they overtook him r.nd inquired as to his identity. He assured them that he would be “vouched for” by appellant, “Pigmeat” Nichols.

Thereupon the three officers, accompanied by Webber, walked into the rooming house which “Pigmeat” managed, and one of them knocked on the door of appellant’s room. As Officer Moody related it, the following occurred after his knocking on the door:

“A. And he came to the door and I said: ‘You know me don’t you, Pig-meat?’ And he said: ‘Yes, sir, I know you Mr. Moody.’ And I introduced Mr. Cook as the Federal Narcotics Agent and I started to introduce Fred Lancaster and he said: T know Mr. Lancaster.’ And he invited us in at that point. We went inside and we were standing there talking to Mr. Nichols. He was sitting there on the bed and while we were there talking to him Officer Lancaster noticed a container with a green substance and he asked Mr. Nichols what it was. Lancaster said: ‘What is this, Pig-meat?’ [An objection was here overruled] * * * And he said: ‘What is this, Pigmeat — marijuana?’ And he said: ‘Yes, Web-ber brought it in.’ ”

After further objections had been overruled, the witness testified:

“And at that point I interrupted them and told them [appellant and Webber] that they didn’t have to say anything and that anything they would say could be used against them.”

Then it was that both Webber and appellant were arrested on the charge of possession of marijuana.

When Officer Moody was asked why he went into the room he replied that it was to comply with Webber’s request to be identified by appellant. The officer flatly stated that he had no reason to suspect that a felony was being committed in the room when he went in.

Officer Lancaster corroborated Officer Moody, and gave this account of his locating the marijuana:

“A. When we got inside the house we were talking to Mr. Nichols and Mr. Webber was in there and A1 Cook and myself and Daryl Moody. And I walked over to the side of the bed and I saw a coffee table and I noticed there was a sack laying on the table which was open and I looked inside of the sack and I put my hand down in it and I said: . ‘Is this what you are looking for,— marijuana?’ And Mr. Nichols said: ‘Yes, that is what it is but it is not mine. It belongs to Mr. Web-ber.’ ”

It is to be observed that Officer Lancaster later explained that he had addressed his question to Federal Agent Cook as to whether “this is what you are looking for ? ” There was some loose marijuana in the sack along with some sealed envelopes containing quantities of the drug.

Federal Officer Cook explained the sequence of events in the room:

“A. I believe the sequence would be Lancaster said: ‘What is this ? ’ and he stated it was marijuana. And after that I would have looked and I said: T believe it is.’ ”

Admittedly there was no search warrant nor arrest warrant. Appellant did invite the officers into his room, but it is not claimed that he gave any consent for them to search it. The vital, narrow issue is whether there was a “search”, or whether the contraband was plainly visible without a “search.”

In 79 C.J.S. Searches and Seizures § 1, pp. 775-776 it is written:

“The term ‘search,’ as applied to searches and seizures, is an examination of a man’s house or other buildings or premises, or of his person, with a view to the discovery of contraband or illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense with which he is charged. As used in this connection the term implies some exploratory investigation, or an invasion and quest, a looking for or seeking out. The quest may be secret, intrusive, or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a ‘search.’ ”

The text cited is recognized by virtually all jurisdictions including this one. See Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303; Simmons v. Commonwealth, 203 Ky. 621, 262 S.W. 972; Johns v. Commonwealth, Ky., 394 S.W.2d 890.

This jurisdiction has aligned itself frequently with those which recognize that it is not a “search” when an officer observes contraband which is clearly visible, and from a place where the officer has a right to be. See Clark v. Commonwealth, Ky., 388 S.W.2d 622; Childers v. Commonwealth, Ky., 286 S.W.2d 369; and Johnson v. Commonwealth, Ky., 291 S.W.2d 550.

With these tests in mind it remains to determine whether the contraband in the present case was in “plain view” within the meaning of the last cited cases. We concede for this discussion that the officers were lawfully in appellant’s room, and thus could view what was “plainly visible.” It will be recalled that Officer Lancaster said that the paper bag was open, and that he looked down into it, and placed his hand into it—following which he asked the federal officer whether “this is what [he] was looking for.” Significantly, the federal officer explained that after Lancaster had looked and felt in the sack he then looked too, and expressed the view that he “believed” it was what he was looking for. We find it difficult to characterize the contraband marijuana as “plainly visible” in the circumstances at hand. It seems clear that an identification of the material required Lancaster’s looking down inside the bag, plus his manual examination of its contents, supplemented by his inquiry of the federal officer—followed by an inspection by the latter.

In 38 Words and Phrases, “Search”, p. 401, numerous cases are compiled from many jurisdictions. Without undertaking-to cite each case, it is deducible from them that a “search” implies a “prying” into “hidden places” for that which is concealed, as opposed to discovery of that which is “open to view.” Other expressions, such as “exploratory investigation,” “invasion,’* “quest,” “looking for,” “seeking out,” are used as descriptive and definitive of “search.”

Of interest is Walker v. Commonwealth, Ky., 279 S.W.2d 816, in which a somewhat comparable situation was presented. In Walker a sheriff was serving a restraining order, under the terms of which he was directed to padlock all entrances to the building. As observed in the opinion: “It was while the sheriff was checking inside the building to see if anything had been left that might be damaged that he discovered beer in a Coca Cola box, three jars of whiskey in a paper box under the table, one jar in a dresser drawer, and another one-half pint somewhere about the premises.” Id., 279 S.W.2d 817. The evidence so obtained was suppressed because obtained by an illegal search, contrary to Section 10 of the Kentucky Constitution.

In Adams v. Commonwealth, 313 Ky. 298, 231 S.W.2d 55, this court suppressed evidence obtained by officers who had been admitted to a disorderly house — and who proceeded to “look around” upstairs. The facts in Adams reveal a more flagrantly illegal search than here, but the principles are quite similar.

The marijuana was not “plainly visible.” It came to light after some “prying” into “hidden places,” as the result of an “exploratory investigation.” It is plain that the marijuana was the object of a “quest” and was what the officers were “looking for” and “seeking out.” The fair inference from this record is that Officer Lancaster, even after he had peered into the bag and fingered its contents, needed further information from Federal Agent Cook before he could know that his “quest” was at an end.

The appellee urges that there was no “search,” and relies on Wilson v. Commonwealth, Ky., 258 S.W.2d 497, and Clark v. Commonwealth, Ky., 388 S.W.2d 622. In the Wilson case we recognized the principle that contraband which is plainly visible is subject to seizure without a search warrant, because no search is involved. The Wilson opinion points out that it is only when the contraband is “visible, open and obvious to anyone who even casually looks around” that there is no “search.” The import of the Clark decision is the same; there the contraband alcoholic beverage was “noticeable to the eye without strain” — it was located on the floor of an automobile, without any wrapping or covering. It is our view that the cited cases, and others of like tenor, merely establish the fact that this court is committed to the general rule which holds that no “search” is involved when the contraband is clearly visible, open and obvious to anyone who even casually observes. But we do not regard the present case as falling within that category.

Adkins v. Commonwealth, 202 Ky. 86, 259 S.W. 32, more nearly approaches the present case than do those just discussed. In Adkins an officer observed the neck of a bottle protruding from a sack in defendant’s car; the officer could not see what the bottle contained. The officer directed a fellow officer to obtain the sack, which was done. Examination of the bottle’s contents revealed contraband liquor. In Adkins the court recognized the rule which permits seizure of contraband when it is plainly visible, but held that the liquor was not plainly visible within the meaning of that rule. The opinion states, in part: “The evidence of the officers makes it perfectly plain that their ability to testify to appellant’s unlawful possession of liquor was due entirely to their search of his automobile, conducted without a warrant, and when, unless disclosed by such search, he was guilty of no offense.”

We are not unmindful of the unspeakable harm lurking in illicit traffic in drugs, nor are we unaware of the insidious efforts to introduce the nefarious traffic among the youth of our communities. Neither are we callous to the incessant assaults upon society by criminals — organized and unorganized. Yet none of these appealing factors should deter us from enforcement of constitutional guaranties. The problem is not a new one. See Bruner v. Commonwealth, 192 Ky. 386, 233 S.W. 795.

The judgment is reversed with directions to grant appellant a new trial, at which the evidence relating to the discovery and seizure of the marijuana shall be excluded.

HILL, J., dissenting.


author: CLAY, Commissioner. MONTGOMERY, Judge

text:
    FREEPORT TRANSPORT, INC., Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    April 29, 1966.
    Rehearing Denied Dec. 9, 1966.

      McElwain, Dinning, Clarke & Winstead, Louisville, J. K. Wells, Paintsville, for appellant.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Ji., Asst. Atty. Gen., H. C. Smith, Sp. Asst. Atty. Gen., Frankfort, Edmond H. Tackett, Pikeville, for appellee.
   CLAY, Commissioner.

Appellant’s truck skidded off U. S. Highway 23 in Lawrence County, causing extensive damage to the vehicle and cargo. A claim for approximately $6,000 was filed with the Board of Claims against the Department of Highways. The Board denied the claim on the grounds that (1) the defect in the highway was not negligently created, and (2) the Highway Department had no notice of the condition. The Board’s decision was upheld on appeal by the circuit court. Appellant contends the finding was erroneous as a matter of law because unsupported by substantial evidence (which we will treat as the question of whether appellant’s proof was of such nature as to require a favorable finding).

In November 1961, the Department spot-sealed with a bituminous mixture a short section of the highway on a sharp curve. It started raining a few days thereafter, and the uncontradicted testimony is that the surface material began to flake off, exposing the primer coat. This surface would become very slippery when wet. Approximately eight months after the repair work had been done, appellant’s truck, while rounding the curve at a reasonable rate of speed, completely lost traction at this point, and slid into the ditch.

There was conflicting evidence as to whether the patching job had been done properly. We may accept the Board’s finding that it was, but this does not justify a denial of the claim. It is uncontradicted that a dangerous condition (when the highway was wet) developed shortly after the work was done and existed for approximately eight months. The Board did not make a contrary finding and tacitly assumed the existence of such an intermittently hazardous condition.

The alternate basis of liability of the Highway Department, if any, is the negligent failure to discover and remedy the defect. Admittedly it was not remedied until after the accident, so the narrow issue is whether the Department, by the exercise of ordinary care and diligence, should have known of its existence and could have guarded the public against injury. See Commonwealth Dept. of Highways v. General & Excess Insurance Co., Ky., 355 S. W.2d 695, 697. There is no evidence the Department had actual knowledge, but circumstances may have been such that knowledge was imputed or presumed. See City of Dayton v. Thompson, Ky., 372 S.W.2d 407. The time element of course is an important factor.

As before noted, the undisputed evidence established that the condition had existed in the neighborhood of eight months. There was testimony to the effect that for eight or nine years prior to this accident there had been none on this curve, but that after the patching job there had been seven accidents within the eight-month period. Although the times when these accidents took place were not shown and it was not proven that they were all similar to the one here involved, at least one was caused by slipping off the road and a fair inference is that the condition was a contributing cause of the others.

The Board and the trial court emphasized the fact that this dangerous condition was exposed only when the highway was wet, and in effect ruled that the Department had no duty to inspect or learn of conditions except when the highway was dry. This is a rather novel theory. The latent nature of the defect would of course make it less easily discoverable, but this is just one of the circumstances to be considered in determining whether it should have been discovered over a long period of time. Another important circumstance is the type of highway, i. e., whether it is a principal and much traveled thoroughfare (as this one was) or a country road.

We may not reverse a finding of fact of the Board based on conflicting evidence, but an ultimate' conclusion may be erroneous as a matter of law. See Columbus Mining Co. v. Childers, Ky., 265 S.W.2d 443; Lee v. International Harvester Co., Ky., 373 S.W.2d 418. Here the nature of the defect and the length of time it had existed were not in dispute. The delicate issue of mixed law and fact is whether the Department should be held to notice of this condition. In our opinion the Board erroneously assumed the Department had no duty to be cognizant of wet conditions on a national highway, and this assumption led to the finding of lack of constructive notice. We think the only reasonable conclusion to be reached under the circumstances shown was that this dangerous latent defect had existed so long the Department should have had notice of it. The failure to discover and to protect the public from this hazard constituted negligence for which the • Department must respond in damages.

The judgment is reversed with directions to remand the case to the Board for a finding of damages.

MONTGOMERY, Judge

(dissenting).

The majority opinion is the most unrealistic decision this court has reached. The effect of the holding is that it is made the duty of the Department of Highways to keep under constant inspection, wet weather or dry, every mile of the many thousands of miles in this state. This includes toll, interstate, federal, primary, secondary, and rural highways. When it rains how often must the Department inspect for slick spots the road up Chicken Gizzard Ridge and over to Possum Trot?

This decision holds that the Department is responsible for any accident attributable to any so-called defective road condition that has existed for eight months because it is presumed that the Department will by then have notice of the condition. The availability of funds for such purpose is not considered.

The opinion is also unsound. In the face of a finding by the Board of Claims, adequately supported by substantive evidence, that the patching was properly done, the opinion disregards the finding. It holds that a dangerous condition developed whenever the road was wet, as if this were not a very common and prevalent condition over much of our highways, even the best, when wet. The opinion says that the alternate basis of liability “is the negligent failure to discover and remedy the defect.” Is the Department to be held liable for all roads that become slick when wet? It is admitted that here the condition existed only when the road was wet and that there was no evidence of actual notice to the Department.

Much weight is given some testimony that there had been seven accidents at this, point since the road was repaired. Only one was in any way attributed to slipping and none of the others was shown to have occurred while the road was wet, the only time it was claimed to be slippery. Thus, there is no showing as to the cause of the other vehicles going off the road, whether because of careless driving, drunken driving, slick tires, sleepiness, or whatever causes one to run off the road. Such testimony is not a sound basis for the decision.

For these reasons I respectfully dissent.

WILLIAMS, J., concurs.


text:
    Henry JORDAN, Appellant, v. INTERSTATE AUTO SUPPLY COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.
    Hatcher & Lewis, Elizabethtown, for appellant.
    Faurest & Collier, Elizabethtown, for ap-pellees.
   WADDILL, Commissioner.

Workmen’s compensation claimant, Henry Jordan, appeals from a judgment sustaining an award of 30% permanent disability. Jordan contends that under the evidence the Workmen’s Compensation Board was required to find hita permanently and totally disabled and to award him compensation benefits pursuant to KRS 342.095.

On June 7, 1964, while performing his duties as night watchman for appellee, Interstate Auto Supply Company, Jordan was attacked by trespassers and shot in the leg and chest. After a period of medical treatment he filed his claim seeking permánent total disability because of a crippled left leg resulting from this attack.

During the course of his convalescence Jordan was treated by three physicians. Dr. Rudy Ellis opined that, as of September 1965, Jordan would have been able to resume his duties with appellee if it were not for the fact that the condition of his leg prevented him from climbing stairs. This physician testified that appellant does have some permanent disability. However, his testimony indicates to us that he expected Jordan’s leg condition to improve sufficiently for him to return to work.

Dr. C. B. Clegg testified that Jordan’s condition disabled him from performing his duties with appellee. This conclusion was premised on a belief that, due to limitation of leg movement and shortness of breath, Jordan could not climb steps or walk as much as his job required.

Dr. B. M. Heine, a thoracic surgeon, had not seen Jordan since he was released from the hospital but he stated that Jordan would not have any disability from his chest injury. Hence Dr. Heine’s testimony supports a determination that Jordan is not disabled from performing his employment duties for appellee on account of a chest condition due to the accident.

The difficult question is whether the board was obligated to find permanent total disability stemming from appellant’s leg condition. We think not. Dr. Ellis testified Jordan was presently disabled but indicated his leg would probably improve so as to permit him to return to work. Dr. Clegg considered Jordan to be permanently and totally disabled but this was based on both a chest condition and the leg injury. The quantum of evidence concerning the extent of Jordan’s disability is not so clear-cut and convincing as to require a finding of permanent total disability as a matter of law. Akers v. United Carbon Gas Co., Ky., 386 S.W.2d 957. The evidence of Jordan’s impairment to perform certain other income producing labor also failed to conclusively establish his permanent total disability.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    Norman F. NORTON and Commonwealth of Kentucky Department of Highways, Appellants, v. Wilma HUGHES, Appellee.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.
    Rehearing Denied Dec. 9, 1966.
    Jackson W. White, Denney, Landrum, White & Patterson, Lexington, Robert Matthews, Atty. Gen., William A. Lam-kin, Jr., Asst. Atty. Gen., Phillip K. Wicker, Highway Dept., Somerset, for appellants.
    C. Homer Neikirk, Somerset, for appel-lee.
   MOREMEN, Judge.

Appellant, Norman F. Norton, brought suit for damages for injuries received in an automobile accident on Highway No. 80 in Pulaski County some four miles from Somerset. He was traveling west to Somerset and appellee, Wilma Hughes, was traveling east and down hill at an estimated speed of forty miles an hour to her home which lay a few miles beyond. The accident occurred about 10:30 a. m. The day was clear and cold and the sun was shining. The hill is generally called Sugar Hill; it is rather long and contains several curves. Appellant testified that he first saw ap-pellee’s car about 150 to 200 feet ahead and it was in a skid or slide. He thought the car would skid over an embankment to its right, but as it drew near him it changed its course, spun to his side of the road and collided with his car. Appellee could give no clear explanation as to what caused the accident except to say that when she began the descent of this ¼⅛-½-mile decline in the hill she was traveling at a speed of about forty miles an hour and when she came to the two curves she slid on the highway and lost control of the car.

The case was submitted to the jury under proper instructions and it found for the appellee defendant.

On this appeal it is argued that appellee was negligent as a matter of law in operating her automobile and therefore the trial court erred in refusing to give appellant a peremptory instruction. This argument requires that we give some description of the highway and the condition-under which travelers on the road were operating their vehicles, and the information which the parties had of that condition.

Appellee, Mrs. Hughes, lived east of Somerset. One morning at about 8:30 she took her sick boy to town to a doctor’s office. She testified that it was cold and there was snow on the ground from her house to Somerset, but the only icy spot on the road was the one where she had the accident. She stated that there was no ice on her side of the road going into town and on the return trip to her home there were no icy spots until she got to Sugar Hill. She explained that when the accident happened “I turned around these two curves coming down the hill and really all I know I just slid on the ice and lost control of my car.” Other witnesses confirmed her statement that the only ice on the road was at the spot where the accident happened. When questioned as to whether she knew there was any ice on the road before she struck it, she testified: “As I came into town it seems like I kindly remember seeing some ice on the road but I had a sick boy in the car with me and I wasn’t worried about the road.”

Appellant contends that under the rules of law announced in Jones v. Carr, Ky., 382 S.W.2d 853 (1964) he was entitled to a peremptory instruction because appellee, under the facts shown, was negligent as a matter of law. In that case the Court reviewed previous opinions of this Court which dealt with the matter of inferences that properly could be drawn from the fact that a party had skidded on an icy highway. Some opinions had indicated that it was a matter of common knowledge that an automobile might skid on a slippery road without negligence in its operation.

In the Jones case we said:

“While our cases recognize, as a legal matter, that a jury may find the operator of a motor vehicle free of negligence when it skids on a slippery street or highway, it may be questioned that non-negligent skidding is a matter of common knowledge. The conclusion can only be reached under a specific fact situation. The implication of the statement is that skidding ordinarily occurs without negligence, whereas common experience suggests the opposite conclusion. This language stressed the probability of non-negligence, when the probabilities are the other way.”

It was emphasized in the Jones opinion, however, that the rule in Tente v. Jaglowicz, 241 Ky. 720, 44 S.W.2d 845 (1931) which has been followed many times in other cases was eminently sound and stood for the proposition that it cannot be held, as a matter of law, that the operator of a car is necessarily negligent when the car skids or slides on an icy street or road and that the proper inferences from that fact are to be drawn by the jury. It was said:

“In a case of this kind we need only recognize that the nature of the occurrence constitutes circumstantial evidence from which an inference of negligence fairly may or may not be drawn. The issue of negligence is then in the case and remains in the case until properly decided by the court or the jury. It must be resolved by the jury unless other circumstances (and fair inferences to be drawn from them) so clearly support or overcome the inference of negligence that reasonable minds could not differ about the ultimate conclusion.”

It was also remarked that the opinion was not to be interpreted as foreclosing the right of either. plaintiff or defendant to a directed verdict under exceptional circumstances where reasonable men could not differ about the fair conclusion to be drawn from the facts.

In the Jones case, the appellant, Mary Jones, a passenger in an automobile driven by appellee, Mary Carr, was injured when the Carr automobile skidded on an icy highway and collided with a truck. The Carr automobile had skidded twice on the highway prior to the time of the accident. At the crest of the hill defendant shifted gears from high to second and proceeded at a speed estimated at twenty to twenty-five miles an hour. Plaintiff, Mary Jones, testified that the automobile “gave a jerk when she changed gears, either that or she throwed her foot on the brakes.” It was held that a jury issue was presented by the facts in that case. We will not attempt to state or analyze the facts in the numerous cases cited in the Jones opinion, but in many of them it was held that the issue of negligence was properly submitted to the jury. The opinion discussed and criticized several cases where it was held that one party or the other was negligent as a matter of law. We see no need to re-discuss them. We believe the issue of negligence in the case at bar was properly submitted to the jury.

Finally it is contended that the trial court erred in permitting appellee’s counsel to ask appellant if he had received payment of his hospital and medical bills and workmen’s compensation benefits. The question caused a rather heated colloquy between counsel. The court at first indicated that the question might be proper and overruled the objection, but almost immediately, and before the witness had given an answer to any question, the court sustained the objection and the witness did not answer. We cannot see how this could in any way be prejudicial to appellant.

The judgment is affirmed.


author: STEWART, Judge.

text:
    Dan Green DAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.

      Dan Green Davis, pro se.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., -Frankfort, for appellee.
   STEWART, Judge.

This is an appeal from the McCreary Circuit Court denying a motion, without a hearing, to vacate a judgment pursuant to RCr 11.42. Appellant, Dan Green Davis, alleges in support of the motion that he was without counsel at the time of trial.

It is disclosed that on April 7, 1941, Davis was indicted for murder. He pleaded not guilty to the charge. A trial was held on the 29th and 30th of April, 1941, and he was found guilty and a judgment was entered sentencing him to life imprisonment.

The trial court, taking judicial notice of the record in the McCreary Circuit Court pertaining to Davis’ trial, denied the motion for a hearing on the ground that the record clearly indicated he was represented by counsel at every stage of his trial. An examination of that proceeding which, so far as it is pertinent, has been filed before us, states that Davis and one Leslie Vaughn were jointly indicted for wilful murder. On the day the trial of the two men was set, two orders were entered, which read as follows, omitting the captions:

“Came defendants, by attorneys, into open court and demurred to the indictment for wilful murder, said demurrer being overruled to which the defendants excepts.
/s/ Flem D. Sampson, Judge.”
“Came defendants, by attorney, and moved the court for severance of trial, and said motion being sustained and the Commonwealth elected to try Dan Green Davis first.
/s/ Flem D. Sampson, Judge.”

Appellant maintains, however, that the use of the words “attorneys” and “attorney,” without identifying any person who acted in that capacity, could easily refer to the Commonwealth’s attorney. We do not agree. There is no possible way that the word “attorneys,” used in the plural in the first quoted order, could rationally be construed to signify the Commonwealth’s attorney. Furthermore, the plain meaning of the expression, “Came the defendants, by attorneys,” conveys the unmistakable belief that counsel appeared at the trial in behalf of both the defendants.

The case at bar is one where the record of the original proceeding is sufficient on its face to negate any right to relief on the ground asserted in the motion. See Jones v. Commonwealth, Ky., 388 S.W.2d 601.

Wherefore, the judgment is affirmed.


text:
    Clarence L. LeBUS, Appellant, v. Nancy Saufley LeBUS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.
    Rehearing Denied Dee. 9, 1986.

      E. F. Schaeffer, Jr., Kincaid, Wilson & Trimble, Lexington, Clay Shackelford, Shackelford, Burnam & Thompson, Richmond, for appellant.
    Robert M. Odear, Stoll, Keenon & Park, Lexington, for appellee.
   DAVIS, Commissioner.

This appeal seeks reversal of an order of the trial court increasing the maintenance allowance for three children of the parties. This marks the second appearance of this domestic relations case in this court. See LeBus v. LeBus, Ky., 382 S.W.2d 873. In an effort to minimize confusion, we shall refer to the appellant as Mr. LeBus and to the appellee as Mrs. LeBus.

Mr. LeBus presents four assignments of error: (1) The chancellor failed to make findings of fact as required by CR 52.01; (2) the chancellor denied Mr. LeBus the right of effective discovery procedure; (3) the chancellor abused his discretion in increasing the maintenance payments without a showing of changed circumstances, and (4) Mr. LeBus did not have a fair and impartial trial of the issues.

On October 16, 1964, these parties entered into a written agreement relating to settlement of their property rights and, in so far as legally permissible, the matter of custody of their three infant children and the payment by Mr. LeBus to Mrs. LeBus of maintenance for the children. The parties were divorced by judgment entered October 17, 1964, and the agreement of October 16, 1964, was incorporated into and approved by the divorce judgment. On September 2, 1965, Mrs. LeBus filed a motion for an increase in the monthly maintenance allowance for the children. There followed various motions and rulings on the motions; Mrs. LeBus answered certain interrogatories propounded to her, and also gave her deposition and testified orally before the trial judge. The trial judge made an order temporarily increasing the maintenance payments to a total of $850 per month on October 2, 1965. On November 30, 1965, the chancellor entered an order fixing the maintenance allowance at $850 per month permanently, or until some further order. It is from the latter order that this appeal is prosecuted.

There is no merit in the contention that the order must be overturned because of the court’s failure to make findings of fact. CR 52.01 specifically excepts rulings upon motions from its mandate. It would have been better practice for the trial court to make findings of fact, but the cited rule does not make it mandatory. Inasmuch as the chancellor made findings of fact and conclusions of law in the divorce action (the record of which is before us) the transcribed evidence in the proceedings on the motion makes the court’s ruling susceptible to review without an additional finding of fact.

The record refutes the claim that Mr. LeBus was denied an opportunity to have discovery proceedings. Included in an order entered October 2, 1965, is the following language: “ * * * it is further ordered and adjudged that the defendant’s [Mr. LeBus] motion for an additional five (5) days in which to further respond to plaintiff’s motion and for at least thirty (30) days thereafter for the use of discovery procedures be sustained as to the hearing for a permanent increase in maintenance payments, but same is overruled as to the hearing on the motion for temporary increase thereof.” We do not find of record any motion or other application by Mr. LeBus for use of discovery procedures which were denied to him. It was not until November 30, 1965, that the court rendered his ruling on the motion for permanent increase.

The third assignment of error urged by Mr. LeBus is predicated upon the assertions that there has been a failure of proof of any such change in circumstances as would warrant the increase. Complaint is made that Mrs. LeBus did not present an intelligible accounting of her expenditures so as to justify the conclusion that the increased allowance for the children was necessary. Mrs. LeBus did present a large number of cancelled checks, and testified that for a twelve-month period beginning August 1, 1964, her actual outlay for the three children’s expenses amounted to more than $11,900. About the only “changes” in circumstances to which she testified were that another of the children has entered pre-school training, costs of living have risen, and the salary of a maid has been increased slightly.

Some of our cases have made reference to the importance of showing a change in conditions before any change in maintenance allowance for children shall be made. See, for example, Keith v. Keith, 270 Ky. 655, 110 S.W.2d 424, an authority relied on by Mr. LeBus. But KRS 403.070 pointedly omits reference to “change” as a condition precedent to the court’s power to modify its orders relating to custody and maintenance of children incident to divorce cases. As noted in that statute, and as often stated in our decisions, the interest and welfare of the children is the principal consideration in such proceedings. Mr. and Mrs. LeBus entered upon an agreement which provided maintenance payments of $200 per month per child — a total of $600 per month. Mr. LeBus has paid punctually the stated sums. Mrs. LeBus has asserted that the sum is not adequate in light of actual experience. Cf. Messer v. Drees, Ky., 382 S.W.2d 209, in which “change in condition” is said to be shown when subsequent events indicate that an award of compensation was induced. by a misconception. We think that principle is applicable here.

Mrs. LeBus adduced considerable evidence to support her claim. It is true, as Mr. LeBus complains, that her evidence did not present with mathematical nicety the exact sums spent for each child — nor is it entirely certain that all of the outlays of money redounded to the use and benefit of the children. It may well be that Mrs. LeBus used some of the $11,000 plus for herself. It is not amiss to point out that Mrs. LeBus should maintain better records, and should avoid commingling alimony payments made to her with maintenance payments which she receives for the children. This fact alone, however, should not be made the basis for depriving the children of payments needed for their appropriate maintenance.

It is proper to state that Mr. LeBus is a scion of a wealthy family. He testified to his future interest in a trust fund which he estimated to be valued at “ * * * a little over seven million dollars.” The record justifies the plain inference that the children of these parties will, in the normal course of affairs, be expected to take their places in an affluent society. It appears certain that had Mr. and Mrs. LeBus not been divorced these children would have been reared in circumstances requiring a monetary outlay of as much or more than has been fixed by the chancellor. No reason appears why they should suffer the consequences of the inability of Mr. and Mrs. LeBus to get along as husband and wife. It is not improper to point out that in considering the welfare of the children it must be contemplated that they may become relatively wealthy through inheritance — if they are reared in comparatively straitened circumstances it is not unlikely that a sudden change to independent wealth could have an undesirable effect. At any rate, we are not persuaded that the raising of the monthly allowance was an abuse of the chancellor’s discretion; on the contrary we find the ruling to be in keeping with the evidence.

Mr. LeBus suggests that he has some basis for suspicion that he has not been accorded a fair trial. The implication is that the trial judge was biased in favor of Mrs. LeBus. If Mr. LeBus ever entertained any such suspicion he failed to take any legal step which would enable this court to review any such claimed error. In deference to propriety we comment that the record before us does not warrant any assertion that the trial judge evinced any bias in the case.

The judgment is affirmed.


text:
    Abner J. DAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.
    Rehearing Denied Dee. 9, 1966.
    Abner J. Davis, pro se.
    Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Abner J. Davis appeals from an order of the Whitley Circuit Court overruling, after a hearing, his motion under RCr 11.-42 to vacate a 1962 judgment of conviction of storehouse breaking under which he is serving a 10-year sentence.

On the hearing the only two grounds for relief argued were (1) that Davis was not given a preliminary hearing and (2) that evidence obtained by an illegal search and seizure was used against him.

Neither ground warranted relief. As to preliminary hearing see Watkins v. Commonwealth, Ky., 398 S.W.2d 698. As to search and seizure see King v. Commonwealth, Ky., 387 S.W.2d 582.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    Lester KING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.

      Billy R. Paxton, Central City, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, David Murrell, Asst. Attys. Gen., for appellee.
   MILLIKEN, Judge.

This is a proceeding under RCr 11.42 to vacate a 1940 judgment and sentence of life imprisonment for murder. At King’s trial in 1940 his counsel moved for a continuance because of the absence of witnesses. The court overruled his motion when the Commonwealth permitted the reading of an affidavit as to what the absent witnesses would testify. The judgment of conviction was not appealed to this Court. After a hearing, the trial court denied the instant RCr 11.42 motion to set aside the conviction.

King asserts that the trial court in 1940 should have granted the motion for continuance so that his counsel would have a more reasonable time for the preparation of his case. The record indicates that counsel had been retained thirty days prior to the date of the trial. In support of his contention, he cites Woods v. Commonwealth, Ky., 305 S.W.2d 935, where this Court held that the accused and his counsel had a right to a reasonable time to prepare for trial. However, in the Woods case, supra, counsel had not been appointed until the day of the trial which is quite a different circumstance than prevailed at King’s trial. Furthermore, King’s counsel did not move -for a continuance for the purpose of preparing for trial, but because of the absence of some of his witnesses. In any event, this is no ground for relief under RCr 11.42.

In his motion King argues that the judgment should be vacated because the record does not show that he was present at all stages of his trial. It is fairly deducible from the record that he was present when the judgment was entered, and, of course, during the trial. King did not introduce any evidence on this issue at his RCr 11.42 hearing, so we consider it waived. Again, in any event, King’s assertion here is not specific enough for relief under RCr 11.42. Brown v. Commonwealth, Ky., 397 S.W.2d 160 (1965).

His last contention, that the judgment should be vacated because he was represented by an ineffective counsel, is not persuasive in light of the fact that his counsel was not court-appointed, but instead was retained by King’s father. An accused usually cannot complain about inadequate representation of counsel when the court did not appoint such counsel. Whack v. Commonwealth, Ky., 390 S.W.2d 161 (1965). On the RCr 11.42 hearing the trial court found as a matter of fact that King’s counsel at his murder trial, who is no longer alive, was a competent member of the bar.

Although this is not relevant to an RCr 11.42 proceeding, we note that the jury was given full instructions at King’s trial for murder, including instructions on murder, voluntary and involuntary manslaughter, killing in sudden heat and passion, and an instruction on self-defense. We conclude that there is no merit in any of King’s contentions and that none of them are relevant to an RCr 11.42 proceeding. King v. Commonwealth, Ky., 387 S.W.2d 582 (1965).

The judgment is affirmed.


author: W. R. GENTRY, Special Commissioner.

text:
    James C. JOHNSTON et al., Appellants, v. R. S. STAPLES, Judge, Henderson County Court et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.
    Rehearing Denied Dee. 9, 1966.
    Damon A. Vaughn, Dixon, for appellants.
    William L. Sullivan, Dorsey & Sullivan, Henderson, for appellees.
   W. R. GENTRY, Special Commissioner.

This appeal seeks to test the correctness of the trial court’s refusal to permit appellants to file an amendment to their original complaint.

Appellants are the owners of land included in the Highland Creek Watershed Conservancy District. The material substance of their original complaint, in general terms, undertook to challenge the validity of the referred to watershed conservancy district’s creation for allegedly failing to meet the requirements of KRS 262.700 et seq., and to prevent the making of an exploratory survey to determine the feasibility of creating such a district. A restraining order was obtained by appellants against appellees. Upon hearing, this order was set aside and a temporary injunction denied. The ruling was appealed to this Court, but affirmed. Appellants then sought and obtained two extensions of time within which to take their proof. At the conclusion of appellants’ proof, appellees moved for a summary judgment. Appellants then offered to file the amended complaint which alleged in substance that since much of the land which was included in the watershed district was embraced in Camp Breckinridge Military Reservation, it was not subject to taxation as required by KRS 262.760, and, consequently, the district was not legally constituted and not authorized by law. The trial court refused to permit the filing of the amendment.

The questions presented on this appeal are as follows:

A. Did the trial court err in refusing to permit the amendment to be filed?

B. Can a watershed conservancy district include land wholly under the jurisdiction of the United States?

C. Can a watershed conservancy district be legally created under KRS Chapter 262 which includes land not subject to taxation by the authorities?

After a motion for summary judgment has been made, a motion to amend a pleading rests in the sound discretioA of the trial court, and its ruling will not be disturbed unless an abuse of discretion is clearly shown. CR 15.01; Bradford v. Billington, Ky., 299 S.W.2d 601. The appellants do not claim that the court erred in granting summary judgment on their original complaint, hence it can only be concluded they did not sustain their cause of action and are resting this appeal on the refusal of the trial court to permit them to amend their complaint after the taking of proof had been completed.

Appellants seem to construe Kingwood Oil Company v. Henderson County Board of Supervisors, Ky., 367 S.W.2d 129, as prohibiting the inclusion of land under the jurisdiction of the United States (Camp Breckinridge) in the district because such is not subject to taxation provided by KRS 262.760. The Kingwood case did not so hold, but only that a lease of such property is not subject to taxation by local authorities. While KRS 262.760 does provide that all property within a watershed district shall be taxed, that provision is subject to a reasonable construction.

KRS 446.080 requires courts to liberally construe statutes with the view of promoting their objects and to carry out legislative intent. A reference to KRS 262.700 et seq., plainly shows the legislative intent to tax only property which is subject to tax, and not that all property within a watershed district shall be taxed. Such interpretation violates no legal right of any citizen. In fact, the Kentucky Constitution, Section 171, in substance requires only that taxation of property subject to taxation be uniform, and not that all property be taxed. To hold the legislative intent in enacting KRS Chapter 262 was otherwise would result in absurdity. Insofar as the record on this appeal discloses, the United States Government has not complained of the inclusion of its land in the watershed district and the appellants cannot do so.

It follows the trial court did not abuse a sound discretion in rejecting appellants’ offered amended complaint, and the judgment is affirmed.