author: RUARK, Presiding Justice.

text:
    Dorothy E. IRVIN, Plaintiff-Appellant, v. Donald IRVIN, Defendant-Respondent.
    No. 8070.
    Springfield Court of Appeals. Missouri.
    May 5, 1962.
    Cohn & Lentz, Waynesville, for plaintiff-appellant.
    T. A. Shockley, Waynesville, for defendant-respondent.
   RUARK, Presiding Justice.

This is an appeal by a plaintiff-mother from a judgment denying her motion to modify a divorce decree which gave custody of their minor son to the defendant-father.

The parties were married in 1956. At that time plaintiff had a girl child by a former marriage. The child here involved, Royce Wade, was born later that year. Apparently both plaintiff and defendant worked,- and the defendant’s mother kept Royce at least a part of the time. In June 1959 plaintiff left the defendant, taking Royce with her, and filed suit for divorce. In the interim before the hearing in the divorce suit she supported the child. Then she was hospitalized. Defendant filed a crossbill and on January 21, 1960, was granted a divorce and custody of Royce. At that time plaintiff was recovering from surgery, was not yet well enough to work, and did not appear at the hearing. A year later she married one Searle, a career soldier stationed at Fort Leonard Wood. The motion to modify now before us was filed on July 18, 1961. Royce was almost five years old at the time of the hearing on the motion in September 1961.

After the divorce, defendant took Royce to his parents’ home near Dixon and was living with them there at the time of the present hearing. Admittedly these parents are “good people.” They live in a four-room frame house with a large porch and yard but without indoor plumbing. However, the grandparents expect to bring water into the house soon. One of the witnesses described it as “a modest American home,” clean and well-kept. Defendant and his son share a bedroom. The grandparents are in their late fifties. The grandfather is employed in a shipping company warehouse.

The defendant receives a monthly disability pension because of injuries he incurred in the Korean war. With the child, the total is $90. He is employed by an automobile agency, where he is engaged in a three-year veteran’s training program. At the time of trial he was being paid for this work $155 a month, with a prospect of increase in wages. Under the program he and the child are entitled to government-provided medical and dental care. He testified that he assists in caring for the child and does not go out more than three or four nights a month. His evidence is that the child is abundantly supplied with suitable clothing and toys, is taken to Sunday school “most of the time,” and receives religious training at home.

Plaintiff, her present husband, and her six-year-old daughter by her first marriage live near Waynesville in a four-room rented house which is “modern.” Plaintiff is not working. At the time of trial the husband had served more than eighteen and a half years in the Army and expected to retire when he has completed twenty years. He did not anticipate being given a foreign assignment. His retirement income would be $167 a month, and he planned or hoped to supplement this by work as a civil service employee at Fort Wood. He also has a child in another state by a previous marriage, whom he supports by allotment. He said he “very much” wanted Royce. If the petitioner had custody, Royce would receive free medical care at Fort Wood. The half-brother and sister are fond of each other, and when Royce is permitted to visit they play well together.

Plaintiff’s evidence is that she takes Royce to her home for visits about twice a month, but defendant said she has on occasion not seen him for more than six weeks. Evidence on her behalf is that sometimes when she calls for him his clothes are ragged and a little dirty and that she almost always has to have his hair cut. Defendant’s mother, on the other hand, asserts that the plaintiff keeps the good clothing the child wears on his visits to her and returns him in “rags.” Plaintiff paid for polio shots and other immunization for the child and had two of his teeth removed because they were rotten. She first told the father he needed these services and he said he could get them done free but failed to do so, so she did it. The child needs other dental work which plaintiff had arranged to have done, but defendant would not let her take him after the motion to modify was filed. Hence this work was not done. There was also some evidence that on one occasion the father had Royce with him when he was drinking in a local tavern. Another time he left the child alone in the car ten or fifteen minutes while he went inside the tavern, and when he returned he was “staggering.” On another occasion he was seen in a car with the child and another man and was drinking from a whisky bottle. Defendant denied he ever had Royce with him when he was drinking. With reference to the immunization, defendant said he did not know the child needed the shots. He and defendant’s mother knew the teeth were decayed but said they were baby teeth and the child did not complain about them.

In this case the only question is whether there has been such a change of conditions as to require the modification of the judgment in respect to custody.

Under the evidence we think there is no doubt that there has been a change of condition. The plaintiff has apparently recovered her health, has remarried, and is not working. She has a suitable home and a husband who, very commendably, has expressed the desire to have the child in his home and help care for him.

But a simple change of condition is not, in and of itself, sufficient to justify a modification. The conditions so changed must, when taken with the whole circumstances, be such that the welfare of the child will be best promoted by the modification. Schumm v. Schumm, Mo.App., 223 S.W.2d 122, 126; Hurley v. Hurley, Mo.App., 284 S.W.2d 72(3); Cherry v. Cherry, Mo.App., 272 S.W.2d 700, 703; Wilson v. Wilson, Mo.App., 260 S.W.2d 770(8).

There are some circumstances which argue that the welfare of the child would be promoted by a modification. The most important of these we consider to be the fact that apparently neither the defendant nor the paternal grandmother has paid too much attention to the health of the child in regard to rotten teeth and immunization shots. Neglect of health of the child, whether it results from inattention, inadvertence, or ignorance, if continued, might in and of itself warrant an order depriving the father of further custody.

There is further the alleged fact that the father has indulged in drinking in the presence of the child and has taken such child into a tavern or left him to wait outside while he went in. This, however, is flatly denied by the father, and we must assume that the trial court, who had the witnesses before him, found this fact in favor of the father. Although we are bound to reach our own conclusions, in case of irreconcilable conflict of testimony, we give deference to the judgment of the trial court in respect to the credibility of witnesses who testified before him. Langshaw v. Langshaw, Mo.App., 331 S.W.2d 15, 18; Mitchell v. Mitchell, Mo.App., 319 S.W.2d 906, 908; White v. White, Mo.App., 312 S.W.2d 167, 169.

There is also the fact that the actual daily care of the child must necessarily fall on the paternal grandmother, as opposed to the natural mother, who wishes to take care of her child in her own home. And there is for consideration the fact that, with the mother, the child would have the advantage of growing up with his half-sister.

All the foregoing facts give us considerable concern. But there is another side to the picture. The child is with his grandmother, who seems to have had a goodly portion of the care of the child (because of a working mother) even before the divorce of the parents. This is “a good Christian home” and the child receives good moral training from the grandmother. We do not regard seriously the (disputed) testimony of the plaintiff that sometimes when she gets the child for visits he is dirty and ragged. It is not unusual for playing children to get dirty. Nor is the fact that a child of this age sometimes has ragged clothes too important. Although we might expect the mother to be concerned, history shows that many great Americans grew up in ragged clothes.

Although the mother has shown a change of conditions, the trial court could well have been doubtful as to whether the conditions in respect to the mother’s home and support are yet permanent. The marriage to the present husband is recent and apparently it follows a recent divorce on his part. Without meaning in any way to disparage the present husband, his present position is uncertain. He will retire soon. He will draw a retirement pension, but that alone will not be sufficient to support a family of four in the present home and also to contribute to the support of a child by previous marriage outside the home. He has no present assurance of steady employment. Circumstances might require the change of domicile and the necessary disruption of the present home. The “conditions” under which plaintiff lives have not yet become fixed with any degree of certainty. The courts will not indulge in experiments with so important a trust as a child’s welfare. Birrittieri v. Swanston, Mo.App., 311 S.W. 2d 364, 367; Stricklin v. Richters, Mo.App., 256 S.W.2d 53, 57.

The onus of proof was on the movant. Le Claire v. Le Claire, Mo.App., 352 S.W.2d 379, 381; Hensley v. Lake, Mo.App., 274 S.W.2d 493, 495; Simmons v. Trenter, Mo.App., 327 S.W.2d 936, 939. And we do not “lightly disturb” the findings of the trial court. We defer to his judgment unless from a consideration of all the facts it appears that his findings are in conflict with a clear preponderance of the evidence. Noble v. Noble, Mo.App., 341 S.W.2d 307, and cases cited at p. 310; Le Claire v. Le Claire, supra, 352 S,W.2d 379, 382. We do not find such conflict in this case, and for that reason the judgment is affirmed.

McDOWELL and STONE, JJ., concur.


source: Caselaw Access Project

author: JOHN J. KELLY, Jr., Special Judge.

license: Public Domain

text:
    Joseph RUSSO, (Plaintiff) Appellant, v. Glen (Red) GARRISON, d/b/a Red’s Village Service, (Defendant) Respondent.
    No. 30726.
    St. Louis Court of Appeals. Missouri.
    May 15, 1962.
    William R. Kirby, St. Louis, for appellant.
    Fred B. Whalen, Whalen, O’Connor & Grauel, St. Louis, for respondent.
   JOHN J. KELLY, Jr., Special Judge.

This is an appeal by the plaintiff, Joseph Russo, from a judgment for the defendant in the Circuit Court of St. Louis County, Division No. 4. The prayer in the Plaintiff’s Amended Petition upon which the case was tried was for the sum of Fifteen Thousand Dollars ($15,000.00) and costs: jurisdiction lies, therefore, in this court.

Plaintiff’s Amended Petition alleged that the defendant was the owner and operator of the filling station where the accident occurred and that plaintiff was a business invitee who, while upon the premises, was caused to step into a hole and sustain injuries as a direct result of defendant’s negligence in (1) allowing an open hole to be on the premises without warning plaintiff or covering or barricading the said hole, and (2) defendant’s failure to provide sufficient cover that would not move or become displaced when one stepped upon it.

Defendant’s Answer consisted of a general denial and by way of affirmative defense, (1) contributory negligence, and (2) that plaintiff’s employer, Monark Petroleum Company, while maintaining control of the service station premises in constructing an all-weather surface on the premises, placed, installed and maintained a loose and insecure cover over a manhole into which plaintiff fell, and that the employer’s negligence was, therefore, the direct cause of any injuries or damages plaintiff sustained at the time and place in question.

The evidence viewed most favorably from the viewpoint of the defendant was that on the day plaintiff was injured he was in the employ of the Monark Petroleum Company as a wholesale tractor-trailer gas tank driver making a delivery to the Red Garrison Service Station situated on the southwest corner of St. Louis and Glen Echo Avenues in the Village of Hillsdale, Missouri. The service station building itself faced a generally northerly direction and was a new building which had been constructed to replace a former service station which had burned down prior to the time defendant commenced operating the business in January, 1959. In the course of reconstruction two underground gasoline storage tanks were installed in the lot adjacent and to the east of the service station building and two gasoline service pumps and a blacktop driveway were installed on the north side of the service station. The two storage tanks were laid in a north-south direction, parallel to the east side of the building, and the one at which plaintiff sustained his injury was the easternmost tank some eleven to twelve feet east of the building itself, and about three feet south of the blacktop driveway. Each tank had a fill-cap for the delivery of gasoline into the tank at the south end of the tank, and at the north end had what was referred to in the evidence as a “pit” or a “well” over a pump located on top of each tank for the purpose of pumping gas from the tank to the island gas pumps where the gas was delivered to the consumer. The “well,” as it shall be referred to hereafter, was about four feet in depth and lined with a horizontally corrugated metal “casing” some two feet in diameter. Each “well” was covered with a sheetmetal lid which fit into the metal casing and was held in place by a four cross-member angle-iron one-half inch in thickness and located on the underside of the cover. The cross-member angle-irons, which in the evidence were referred to as “lugs,” were made to rest on one of the horizontal ridges of the corrugated casing in the “well” so as to hold the cover securely in place. The lugs on the cover were too short to prevent the cover from slipping back and forth in the “well” and the defendant had in the past experienced difficulty in keeping the covers in place; in fact, he testified that he knew the covers were not safe and for that reason he had on prior occasions parked small trailers, fifty gallon oil drums and his own car over the covers to keep other persons and vehicles from passing over them. Due to the settling of the ground around the storage tanks the casing lining the “well” extended above the surface of the ground some two to three inches and the area in the vicinity of the tanks had not as yet been covered with chat, but had been filled in with dirt and brickbats.

On the day of the occurrence, March 5th, 1959, plaintiff drove the tractor-trailer onto the premises of the service station to make a delivery of gasoline and was directed by the defendant to fill the easternmost of the tanks first because that was the tank for the “regular gas” and he was short of “regular gas.” Plaintiff drove southwardly along the east side of the lot on which the tanks are located and stopped on the partially filled surface of the lot. The tractor faced southwardly when he brought it to a stop some four feet to the east of the cover on the “well.” Plaintiff alighted from the tractor on the left, or driver’s side, walked northwardly to the rear of the trailer and removed therefrom a fourteen foot length of hose used for delivering the gas from the trailer to the tank, and then pulled it out of the trailer its full length. Plaintiff then walked southwardly, picked up the other end of the hose and while walking backwardly pulled the hose with both hands towards the fill-cap on the south end of the tank. While so engaged plaintiff stepped on the cover which became displaced causing plaintiff’s left leg to go into the hole over the easternmost of the tanks and be injured. When defendant’s father and wife arrived on the scene a few minutes after the plaintiff fell, the cover was observed in a tilted condition. Defendant, likewise, found the cover tilted when he arrived. At all times the cover and casing which extended two to three inches above the surface of the ground were visible, and it could be observed that the cover was warped and did not fit securely into the corrugated casing by anyone who looked down into the casing. On the day of the injury the defendant did not warn the plaintiff of the condition of the cover nor the casing.

Plaintiff contends that the trial court committed errors in the following respects:

1. The Court erred in overruling Plaintiff’s Motion for Directed Verdict at the close of the entire case.

2. The Court erred in giving and reading to the jury Instruction No. 3, an instruction presenting to the jury the defense of contributory negligence.

3. The Court erred in giving and reading to the jury Instruction No. S, an instruction to the effect that the jury could not find negligence from the “mere fact of the occurrence.”

4. The Court erred in overruling plaintiff’s objections to defendant’s questions pertaining to the duty or agreement of the Monark Petroleum Company with the defendant whereby Monark Petroleum Company was to make repairs on the premises of the service station.

5. The Court erred in sustaining defendant’s objection to plaintiffs use of the word “Landlord” in plaintiff’s closing argument.

Inasmuch as we-have reached the conclusion that the giving and reading to the jury of Instruction No. 3 constituted prejudicial error and misdirection, the other alleged errors will not be treated in this opinion except that some comment will be made relative to plaintiff’s charge that the trial court erred in overruling Plaintiff’s Motion for Directed Verdict at the close of the entire case. The other alleged errors, if such they were, may not occur again in a retrial of the case.

There was evidence in the case from which the jury could have found that the plaintiff had been on the premises prior to the date of his injury when the condition of the casing and the cover over the “well” were readily visible and that the defendant had warned the plaintiff of the dangerous condition of the casing and the cover. If the jury should find these facts to be so, a case of contributory negligence would be made to be submitted to the jury under proper instructions.

Instruction No. 3 as given and read to the jury is as follows:

“The Court instructs the jury that if you find from the credible evidence in this case that the casing of the pit that enclosed the motor for the gasoline pump owned by Monarch (sic) Petroleum Company, extended two or three inches above the level of the filling station surface, and had a cover which was loose and insecure, and if you find that such condition of the casing and the cover was open and obvious, and if you find that in the exercise of ordinary care plaintiff would have seen the condition of the casing and the cover and should have avoided stepping on same, then in that event you are instructed, that if you find plaintiff stepped on the casing and cover because he failed to exercise ordinary care to look and see the condition of the casing and cover, then plaintiff was negligent, and if you find that such negligence, if any, directly caused or contributed to cause plaintiff to be injured, then plaintiff is not entitled to recover against defendant in this case and your verdict must be in favor of defendant.”

Plaintiff contends this instruction is erroneous because, among other reasons, it omitted essential fact findings by the jury that the condition of the cover was dangerous and that the plaintiff had knowledge, either actual or constructive, that the condition aforementioned was dangerous. We are of the view that plaintiff’s contention is well taken.

An essential element of contributory negligence is that the plaintiff acted or failed to act with knowledge and appreciation, actual or constructive, of the danger of injury. That one has knowledge of the general condition from which the danger arose does not necessarily constitute knowledge and appreciation of the danger. Bartlett v. Taylor, 351 Mo. 1060, 174 S.W. 2d 844, 1. c. 851; Ezell v. Kansas City, Mo.Sup., 260 S.W.2d 248, 1. c. 250.

This case was tried on the theory that the plaintiff stepped on a loose and insecure cover and was thereby injured. There was no evidence that the plaintiff tripped over the casing in the “well.” While there was testimony that if one looked directly down at the cover it could be seen that the cover was loose and insecure, there was no evidence that one could detect that this cover would become displaced, unless he picked up the cover, removed it from the “well” and examined the angle-irons which were to hold it in place. The instruction as given permitted the jury to find the plaintiff guilty of contributory negligence if it found (1) the casing of the pit which enclosed the motor for the gasoline pump extended two or three inches above the level of the surface of the ground; (2) that it had a cover which was loose and insecure; (3) that the condition of the casing and cover was open and obvious; (4) and that in the exercise of ordinary care the plaintiff would have seen the casing and cover; (5) that from those facts alone it could find that the plaintiff “should” have avoided stepping onto same, and (6) that if he stepped on it because he failed to exercise ordinary care to see the condition of the casing and cover, plaintiff was then contributorily negligent and could not recover from the defendant. The instruction is fatally defective in that it did not require the jury to find, in addition to the facts recited, that the plaintiff in the exercise of ordinary care either knew or should have known that to step on the cover under the circumstances hypothesized would be likely to cause him some injury.

This cover over the “well” was an invitation for one walking over and along the premises and in the vicinity of the gasoline storage tank to step upon it if it was in his path. It could properly be used for that purpose. The cover, of itself, did not constitute such an open and obvious danger in its loosened condition as would constitute stepping upon it negligence per se. There had to be a finding that the plaintiff stepped upon the cover with knowledge and appreciation, either actual or constructive, of the danger of injury before he could be found guilty of contributory negligence; and this the instruction fails to require.

The trial court erred in giving and reading to the jury Instruction No. 3 and, therefore, this case must be reversed and remanded with directions for the trial court to enter an order for a new trial.

ANDERSON, P. J., concurs.

RUDDY, J., took no part in the decision of this appeal.


author: PALMORE, Judge.

text:
    Thomas H. HODGE et al., Appellants, v. T. D. LUCKETT et al., Appellees.
    Court of Appeals of Kentucky.
    March 9, 1962.
    Rehearing Denied June 8, 1962.
    J. W. Jones, Louisville, for appellants.
    James L. Taylor, Boehl, Stopher, Graves & Deindoerfer, E. R. Johnson, Louisville, for appellees.
   PALMORE, Judge.

This is a “spot zoning” controversy in which a group of residents and property owners in the unincorporated community of Lyndon in Jefferson County appeal from a circuit court judgment affirming the rezoning of an 18½ acre tract, owned by the appellee Foeman, from a residential to light industrial classification.

A comprehensive zoning plan for the unincorporated areas of Jefferson County has been in effect since 1943. No property within about 4 miles of Lyndon has ever been zoned as industrial. Naturally, therefore, no industrial development has since occurred in the area. There are, however, several nonconforming uses carried over from pre-zoning days. The land in question is within and completely surrounded by an area that is zoned residential. The nearest non-residential zone is the commercial property at the main business corner of Lyndon some 2 or 3 blocks away.

The main trouble with this 18½ acres is that it is low land which receives surface waters from a large area and does not drain well. It is “crawfish” ground on . which water frequently stands. There are no public sanitary sewer facilities in the vicinity, and percolation tests made on the tract in 1957 indicated much of it to be unsuitable for septic tanks. Only the westernmost portion of the property, variously ' estimated from 20% to 50%, could possibly be developed for residential use under existing circumstances. There was testimony, however, that as a whole it probably could be adapted to certain types of industrial use, though even this would require remedial 'measures against the drainage problems.

Aside from the drainage situation there are other reasons why this property may be better suited (or, at least, less unsuited) for industrial than residential development. It is bounded on the north by the right-of-way of. the L & N Railroad Company, on the east by an unimproved, dead-end street or lane called Ormsby Road, on the south by an unimproved street named Violet Avenue, and on the west by the'rear of several residential lots qf considerable depth which front on Grant Avenue, a street running from Violet Avenue to the railroad. The railroad tracks are situated on a fill 12 to 15 feet high, which detracts from the desirability of adjacent property for residential purposes. (Nevertheless, the property along the railroad from Crescent Hill in Louisville to Anchorage, on the other side of- Lyndon, has continued to develop resi-dentially.) A large’, high-tension electric power line runs across the easternmost portion of the property in question, just west:of Ormsby Road, and across the stree’t ' on the east side of Ormsby Road are a substation of the Louisville Gas & Electric Company and an old building that houses a woodworking concern, 'a plumbing contractor and a small trucking company. The electric substation is a permissive use under zoning -'laws. The other activities constitute an i “inherited” non-conforming use. •. ' '

Foeman bought the’property in 1957. Almost at once he optioned it to the Kentucky Rural Electric Cooperative' Company and applied to the Louisville and Jefferson County- Planning ánd Zoning Commissibn for a rezoning that would permit the contemplated use of the tract by the prospective purchaser. Between then and now this deal has fallen through, but that was the genesis of the proceeding before us today. Concededly, it was privately initiated for private purposes and did not grow out of any public planning.

Since 1955 some 50 to 60 homes in the $15,000 to $20,000 class have been built along two streets intersecting Violet Avenue from the south in the proximity of the Foeman tract. Owners of these homes are prominent among the objectors to the instant rezoning. They invested in their property on the strength of the prevailing pattern of zoning, and they invoke the protection of the law against a change they contend will be a detriment to them and a benefit to no one but Foeman.

The trial court made findings of fact that (1) the Foeman property is “unsuitable for residential use,” (2) it is “best suited” for industrial development as provided by the action of the zoning commission, and- (3) r'eténtion of the residential restriction upon it would be “unwise and unsound.” Strictly speaking, these are opinions rather than facts, but they fall within the category of factual determinations that are conclusive on appeal if sup■ported by substantial evidence, which is to. say, if they are not clearly erroneous. CR 52.01; Louisville & Jefferson County Planning and Zoning Commission v. Cope, Ky., 1958, 318 S.W.2d 842.

The conclusions of law reached by the ' court were that the residential classification of the Foeman property constituted an unreasonable and arbitrary restriction on its use, not reasonably related to the public health, safety, morals or general welfare, and that the zoning commission had properly exercised its* power in changing the classification.

Much has been written on the subject of “spot zoning,” and we shall not attempt any ■ further" definition here.* See Yokley, Zoning Law and Practice, Vol. 1, pp. 202-224, §§ 90-95; and annotation, “Spot Zoning,” 51 A.L.R.2d 263-315. The question of just what circumstances will suffice as a “reasonable ground or basis for the discrimination,” validating a reclassification that would otherwise be stricken down as illegal spot zoning, is not neatly answerable. Mathis v. Hannan, Ky.1957, 306 S.W.2d 278, 280. However, several broad currents of principle can be identified in the ocean of case law on the subject. Probably the most common example is a substantial change of conditions in the vicinity of the affected property. Cf. Louisville & Jefferson County Planning & Zoning Commission v. Cope, Ky.1958, 318 S.W.2d 842. Another, as it was recently expressed in Fritts v. City of Ashland, Ky.1961, 348 S.W.2d 712, 714, is where the particular reclassification is made pursuant to a “coordinated plan designed to promote zoning objectives.” See Leutenmayer v. Mathis, Ky. 1959, 333 S.W.2d 774, 776. A third recognized category consists of those cases in which the condition or character of the property itself distinguishes it from the surrounding property and shows a reasonable basis for different classification (or, to put it another way, the property was improperly classified in the first place). Byrn v. Beechwood Village, Ky.1952, 253 S.W.2d 395; Shemwell v. Speck, Ky.1954, 265 S.W.2d 468; Keller v. City of Council Bluffs, Iowa, 1954, 246 Iowa 202, 66 N.W.2d 113, 51 A.L.R.2d 251.

“When an application is made for reclassification of a tract of land from one zone to another, there is a presumption that the zones established by the original zoning ordinance were well planned and arranged and were intended to be more or less permanent, subject to change only when there are genuine changes in conditions. Therefore, before a zoning board rezones a property, there should be proof either that there was some mistake in the original zoning or that the character of the neighborhood has changed to such an extent that reclassification ought properly to be made.” Offutt v. Board of Zoning Appeals of Baltimore County, 1954, 204 Md. 551, 105 A.2d 219.

The reclassification in this case is not part of an orderly and systematic scheme of planning, nor has there been any change of condition in the surrounding territory except that it has become more instead of less residential in character. Under no theory can the zoning change be sustained unless it falls within the third category we have mentioned, in that the condition of the property itself is a reasonable basis for differentiation.

Thus far these three avenues of justification, or grounds for special treatment, have been mentioned as if they were of equal weight. However, a rezoning that rests entirely on some difference existing from the time of the original zoning is inherently weak. The time for the owner to speak was when the unfortunate classification of his property was first proposed or put into effect. Neither he nor his successor in title is in a good position to assert the error after others have invested in neighboring property in reliance on the zoning plan. True, his property ought not to be forever consigned to oblivion, but if he has remained silent when he should have spoken it is no injustice to impose the condition that in order to justify a reclassification he show by clear and convincing proof that there will be no substantial resulting detriment to others.

The evidence in this case was directed almost wholly to the unsuitability of this particular property to residential development, and its suitability for industrial purposes. Actually its suitability for residential purposes is a relative proposition. Foeman himself lives on it. It is suitable for pasture and truck gardening, having been so used all along. That a parcel of real estate cannot be cut up into small lots and thereby developed to the uttermost degree as a residential subdivision does not necessarily brand it as unsuitable for a residential classification. Nor, obviously, is the purpose for which the property will have the greatest sale value a fair test of its best use with due regard for the common good of the community. Cf. Fritts v. City of Ashland, Ky.1961, 348 S.W.2d 712. An industrial concern might be willing to pay a high price for the whole 18½ acres in this case in order to utilize only that portion which is fit for residential construction, leaving the marshy bottom even less used than it is at present. The practical result of rezoning would thus be limited to that portion of the property which in fact is not distinguishable in condition or character from the surrounding residential area, and which there is absolutely no basis to rezone. We point out these facets of the situation not to refute the judgments of the zoning commission and the learned trial court, but to underscore what was said in Fritts v. City of Ashland, supra, to the effect that the only real and solid basis for rezoning is planning, and not the exigencies of the moment.

Without passing on the other factual findings of the trial court, we conclude that the determination that it would be “unwise and unsound” to retain the existing classification of the 18½ acres is clearly erroneous. Under the rule we have here announced, where the sole basis for change is that the property is different in condition or character from the surrounding property in the same zoning classification, a finding to the effect that a rezoning would promote the welfare of the community as a whole (which is tantamount to “sound and wise”) must be supported by evidence not only proving the difference in situation, but also negating in clear and convincing fashion the probability of substantial resulting detriment to other property likely to be affected. In this case there was no substantial proof to the latter effect; on the contrary, from the evidence introduced there is very little doubt that the residential property in the community would be adversely affected, and probably to a material degree.

The cause is reversed with directions to enter a judgment setting aside the order of the zoning commission.


author: PER CURIAM.

text:
    Will Tom SANDUSKY v. COMMONWEALTH of Kentucky.
    Court of Appeals of Kentucky.
    May 11, 1962.
    Stanley Lemon, Liberty, for appellant.
    John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant was convicted of illegally possessing liquor for the purpose of sale in a dry territory and his punishment fixed at a fine of $50 and 30 days at hard labor. The record shows no error.

Judgment affirmed.


author: CLAY, Commissioner.

text:
    Burgess BLANTON, an Infant 17 Years of Age, et al., Appellants, v. Mary Alice METZ, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1962.
    Rehearing Denied June 8, 1962.

      Harry F. Riddle, John W. McKenzie, Ashland, for appellants.
    Clarence B. Creech, Ashland, for appel-lee.
   CLAY, Commissioner.

The plaintiff appellee recovered a $10,-000 judgment against appellant defendants for alleged back injuries caused in an automobile accident. Defendants contend the judgment was erroneous for several reasons.

Defendant Burgess Blanton was driving an automobile south on 24th Street in the City of Ashland on a rainy, winter night. At the intersection of this street with Carter Avenue he collided with an automobile moving west on Carter Avenue in which the plaintiff was riding.

Carter Avenue by city ordinance had been designated a boulevard. A small stop sign was placed on 24th Street in a hedge off the sidewalk and it was very difficult to see. Defendant Burgess Blanton did not see it and he did not stop for the intersection. He admitted that he did not see the other car until just about the time of the impact.

Defendants contend there was error in the instructions. There was some evidence that several years before the date of the accident plaintiff had complained to a physician of a “low backache” and the doctor found that she had a “bilateral minimal sacroiliac arthritis”. He treated her for aching in the “dorsal spine”. Defendants offered an instruction which in substance provided that the jury should not find damages for any injuries they might believe were caused at some other time or by some other means.

Under the instruction given by the court the jury could only find for the plaintiff for such injuries as were directly caused by the negligence of the defendants. Plaintiff’s offered instruction was in substance the converse of this and would have had a tendency to confuse rather than clarify the issue. See Lexington Glass Company v. Zurich General Accident & Liability Insurance Company, Ky., 271 S.W.2d 909. In addition, if defendants’ position were correct, the detailing of every circumstance to be taken into consideration when fixing damages would be an endless process and would obviously tend to emphasize the defendants’ side of the issue. No error appears here.

Defendants next contend the court should have given their offered instruction which treated this intersection as an unregulated one (because of the difficulty of observing the stop sign). To give this instruction would violate KRS 189.330(3) and the ordinance passed by the city. Carter Avenue had been properly designated a preferential highway, and an impossible situation would be created if the rights of the parties were dependent upon whether or not one of them had actual notice of the applicable regulation. As a matter of fact, the court imposed upon the driver of plaintiff’s automobile the duty to yield the right of way if the jury found certain circumstances to exist, and this instruction was perhaps more favorable to the defendants than they had a right to demand. Certainly no instruction should have been given which would have deprived the plaintiff of the right to rely on the city ordinance. Defendants’ instruction was properly refused.

It is contended that a question asked one of the defendants injected the question of insurance into the case. We consider the question proper on at least two grounds and it does not appear to have been asked to draw attention to insurance.

It is contended the damages in the amount of $10,000 were excessive. In view of the nature of the injury and the extensive hospitalization which the jury could properly find was necessitated thereby, we are not impressed with this argument.

Admittedly the jury allowed the plaintiff an amount which was $44 in excess of that authorized for medical expenses. Such error would not justify a reversal and the matter may be taken care of by amending the judgment.

The judgment is affirmed with directions to modify and amend the judgment by reducing the amount thereof in the sum of $44.


author: STANLEY, Commissioner.

text:
    L. FORRESTER et al., Appellants, v. G. H. TERRY et al., Appellees.
    Court of Appeals of Kentucky.
    May 11, 1962.

      Reed & Hines, Paducah, for appellants.
    Harry W. Roberts, Jr., Clinton, James 'Warren, Fulton, for appellees.
   STANLEY, Commissioner.

Pursuant to KRS 262.700 et seq. (an Act of 1956) a “Joint Board of Supervisors” of County Soil Conservation Districts of Hickman, Graves, Carlisle and Fulton Counties on June 23, 1956, formally declared, upon a petition filed June 1, 1956, and after a public hearing upon due notice, the need for the creation of the “Obion Creek Watershed Conservancy District.” The description of the district is broad and general. It embraces a watershed of 202,-000 acres lying betwen the town of Cuba, in Graves County, and the Mississippi River.

On July 21, 1956, a referendum election was held on the proposition of establishing the conservancy district. KRS 262.725. There were 168 votes cast for and two against it. The organization of the district with a board of directors followed.

On March 30, 1959, the directors levied a tax of five mills (.005) on each dollar of the fair cash value of the property within the district. Upon certification to the respective counties the tax was included in the tax bills to be collected by the respective sheriffs.

This action was instituted by a number of citizens and taxpayers within the area of the district on October 1, 1959, against appropriate parties seeking to have the court declare (1) the statute unconstitutional, and (2) the tax levy void. Injunctive relief was prayed, but as no temporary or interlocutory injunction was sought, the taxes were collected and the development of the project has proceeded.

I.

The plaintiffs alleged several grounds of unconstitutionality, but as appellants they contend only that the statute grants or permits the exercise of arbitrary power, hence, offends § 2 of the Constitution. Specifically, it is claimed there is no redress or right of appeal from arbitrary or capricious action by the officers of the Watershed Conservancy District with respect to the inclusion or detachment of property upon which taxes may be levied and to the rate thereof.

In support of the argument the appellants rely on Williams v. Wedding, 165 Ky. 361, 176 S.W. 1176. The case concerned an Act of 1912 (Ch. 132) which provided for establishing and functioning of drainage districts. The court held invalid a part of the act which, in effect, denied a hearing and an appeal by property owners of assessments of property and levy of taxes by the managing board of the district. The ground was that the provision authorized arbitrary action and deprived the owners of their property without due process of law. The present statute is different. It provides that the assessment of property for taxation to develop and support the Watershed Conservancy District shall be the assessment made by the county tax commissioners as equalized by the State Department of Revenue. KRS 262.765, 262.-760. Ample remedies for overassessment of property are made available by the statutes relating thereto. The present statute authorizes a tax levy sufficient to meet the budget of the district not to exceed five mills upon the dollar of valuation. KRS 262.760. Thus, the taxing power is limited.

With respect to the inclusion or detachment of property, it may be said that the courts are always open for redress against the exercise of arbitrary power by administrative officials which may result in injury to any person. § 14, Kentucky Constitution.

We do not think there is any merit in the appellants’ contention with respect to unconstitutionality of the act.

II.

The attack upon the formation of the Obion Watershed Conservancy District is two-fold: (1) defective organization and (2) invalid referendum election.

The circuit court indicated the view that all preliminary proceedings were terminated and merged in the favorable public referendum. The appellees affirm that position. The court regarded the complaint, at least in part, as being the contest of an election, for which a special procedure is provided in KRS 122.140, and as constituting a collateral attack upon the election, which action may not be maintained except where the election was void for want of authority of the court or body which called it. Cary v. Simpson, 239 Ky. 381, 39 S.W. 2d 668; Hessler v. Garner, 266 Ky. 507, 99 S.W.2d 461; Ray v. Spiers, 281 Ky. 549, 136 S.W.2d 750. The appellants contend their action is not an election contest and the referendum was but a step in or an incidence of the whole procedure, and fatal defects in the organization of the District revealed in the records rendered it void.

We believe that on the whole the appellants’ view as to the character of their action is sound. See Elliott v. Garner, 140 Ky. 157, 130 S.W. 997; Gregory v. Franklin-Simpson County Board of Ed., 302 Ky. 404, 194 S.W.2d 961. But their complaint with respect to insufficiency of the notices of the election and the form of a ballot must be regarded as of a character that could only have been presented in an election contest under KRS 122.140, which prescribes the time and the procedure for contesting a referendum on a public question. Cary v. Simpson, 239 Ky. 381, 39 S.W.2d 668. Those conditions and terms concededly were not observed. However, if the proceedings were so defective as to .require a decision of invalidity, then, of course, the election was ordered and held by only a putative body and was of no effect.

This leads back to the consideration of the formation of the District as a public corporation. On this phase of the case the appellants contend that the records reveal that there was never a lawful organization.

The statutes, KRS 262.700 et seq. particularly define the conditions for the formation of a watershed conservancy district and prescribe certain steps to be taken. The circuit court found as a fact that the several statutory procedures had been substantially observed. We think the finding is supported by the evidence.

There is a mixed question of law and fact that is important and basic, and demands special consideration. It is the sufficiency or definiteness of the description of the boundary or area contained in the order of the joint board of supervisors setting up the district.

The statute requires that the land embraced in such a district shall be contiguous and lie within a well-defined watershed, excluding the boundaries of any city or town, lands within another conservancy district and within a soil conservation district. KRS 262.705. It is incumbent upon the organizing body to “define, by metes and bounds or by legal subdivisions, the boundaries of the district.” KRS 262.-720(2).

The area of the Obion Creek Watershed Conservancy District was described and defined as follows:

“All the lands lying within the watershed of said Obion Creek, excluding town lots within the incorporated towns and unincorporated villages of the above named counties. The Obion Creek drainage area which rises in Graves County in the vicinity of Cuba, Kentucky, and flows northwest, west and then southwest to its confluence with the Mississippi River near Hickman, Kentucky. Of a total watershed of 202,000 acres, approximately 102,000 acres are in Hickman County, 60,000 acres in Graves County, 28,000 acres in Carlisle County and 4,000 acres in Fulton County.
“There are approximately 145 miles of main and tributary channels. Excluded therefrom are all lands and territories inluded in any incorporated city or town.”

The description is definite as being the watershed of Obion Creek, its source and general meanderings to its mouth and its tributaries. It is also definite as to the estimated acreage lying in each of the four counties. It does not, however, define the area “by metes and bounds” in the conventional or usually accepted sense. The generally accepted meaning of that term is the boundary lines and corners of a piece of land with their terminal points and angles. Bouvier’s Law Dictionary; Bal-lentine’s Law Dictionary. We take this from 27 Words and Phrases p. 239:

“ ‘Metes and bounds’ means the boundary line or limit of a tract, which boundary may be pointed out and ascertained by rivers and objects, either natural or artificial, which are permanent in character and erection, and so situated with reference to the tract to be described that they may be conveniently used for the purpose of indicating its extent. The metes and bounds of a tract are as definitely fixed by locating its center line and naming the width of the tract as if the lines of its true boundary had been given by acres and distances, and the description thus given would in such a case prevail over a description given by acres and distances. People v. Guthrie, 46 Ill.App. 124, 128; U. S. v. 5.324 Acres of Land, D.C.Cal., 79 F.Supp. 748, 755.”

In locating lines or boundaries of land, it is a familiar rule that “monuments” — including streams and other natural objects — are superior to all other calls in a description. We have had many broad descriptions in old land grants and patents that were equally as general as the present one, but none have ever been declared void on account of indefiniteness.

The establishment of these water conservancy districts is “for the purpose of developing and executing plans and programs relating to any phase of conservation of water, water usage, flood prevention, flood control, erosion prevention and control of erosion, floodwater and sediment damages.” KRS 262.700. Considering the general purpose and the contemplated magnitude of the area, the term “watershed” is the overriding admeasurement, and the statute in respect to outlining the area should be construed liberally to accomplish the objective. Compare Curtis v. Louisville & Jefferson Co. Met. Sewer District, Ky., 311 S.W.2d 378, op. cit. 382. Here, there was a substantial compliance with the directive of the statute. It is noted there is a provision for the later detachment of any lands which cannot be benefited by their inclusion in the district. KRS 262.785.

In finding the boundary of the Obion Creek Watershed District sufficiently definite to meet the requirements of the statute, the learned trial court said:

“It is within the knowledge of the court and all reasonable persons that a farmer or one occupying farm lands in a relatively small area as that comprising the watershed of Obion Creek is well aware of the direction in which his land drains or whether or not it drains into one particular creek or another. These matters address themselves to general knowledge and sound reasoning by all thinking individuals. The court is well aware that there may be conflict as to the exact location of the line between adjoining owners; however, in the hands of trained individuals with proper instruments, all such points can be accurately determined, and the same would be true as to the exact location of a dividing line of a watershed. It can be located generally by any sound thinking individual and can be located with accuracy and particularity by a person trained in the field of engineering.”

This is the application of the old legal phrase,.“That is certain which can be made certain. The maxim allows great liberality in the matter of description of land. Ken-Tex Exploration Co. v. Conner, Ky., 251 S.W.2d 280.

It is noted that none of the appellants have claimed their property could not be identified as being within the watershed of Obion Creek.

We concur in the finding of the trial court that the boundary and area of the District are defined with sufficient certainty.

On the whole case we are of opinion the judgment should be and it is

Affirmed.


author: MONTGOMERY, Judge.

text:
    Lena Mae SCOTT, Appellant, v. McLEAN COUNTY BOARD OF EDUCATION et al., Appellees.
    Court of Appeals of Kentucky.
    May 11, 1962.

      Gwin & Iler, Owensboro, for appellant.
    William E. Quisenberry, Calhoun, John S. Hager, Sandidge Holbrook, Craig & Hager, Owensboro, for appellee.
   MONTGOMERY, Judge.

Lena Mae Scott sued the McLean County Board of Education and Superintendent of Schools to compel them to enter into a contract and for damages. She appeals from a judgment denying relief based •on an adverse verdict.

The issue, as stated in appellant’s brief, is whether the trial court erred in not directing the jury to return a verdict for appellant. At the conclusion of the introduction of all of the testimony, the record shows, appellant made an oral motion for a directed verdict which was overruled.

The appellees make several contentions, but it is necessary to discuss only one as decisive. Appellees insist that the trial court’s ruling on appellant’s motion for a directed verdict is not reviewable here because the grounds on which the motion was made do not appear in the record. CR 50.01. No response to this contention is made by appellant in her reply brief.

The rule is that where the record does not show the grounds on which a party’s motion for a directed verdict is made, the ruling denying such motion is not reviewable on appeal. Carr v. Kentucky Utilities Company, Ky., 301 S.W.2d 894; Whitesides v. Reed, Ky., 306 S.W.2d 249; Lucas & Hussey Loose-Leaf Tobacco Warehouse, Inc., v. Howell, Ky., 320 S.W.2d 613. The principles controlling are fully discussed in the cases cited and in the authorities contained therein. The correctness of the ruling by the trial judge is not reviewable.

Judgment affirmed.


author: MILLIKEN, Judge.

text:
    George W. NORTON, III, et al., Appellants, v. CITIZENS FIDELITY BANK & TRUST COMPANY, Trustee u/w Lucie U. Norton, et al., Appellees.
    Court of Appeals of Kentucky.
    May 11, 1962.

      Hubert T. Willis, Louisville, for appellants.
    Rucker Todd, Brown, Ardery, Todd & Dudley, James W. Stites, Jr., Stites, Peabody & Helm, Louisville, for appellees.
   MILLIKEN, Judge.

This case turns on whether two testamentary trusts are reasonably susceptible to the construction placed upon them by the trustee, Citizens Fidelity Bank & Trust Company, a construction acceptable to both the appellant-life beneficiaries and the individual appellees-remaindermen. Because the United States Internal Revenue Service contended that certain trust income is properly taxable to the life beneficiaries, the latter paid the Federal taxes claimed in order to stop possible incurment of interest and penalty thereon, sued for recovery of the payment in the United States District Court at Louisville, and that Court deferred decision until a ruling of this Court was obtained on the construction of the two Kentucky testamentary trusts involved herein. The present declaratory judgment action was initiated by the trustee, Citizens Fidelity Bank & Trust Company, and resulted in a judgment below upholding the construction placed upon the trusts by the trustee.

The trust income is principally derived from oil leases on several hundred thousand acres of Texas land left in trust by the will of George W. Norton, I, who died in 1889, the owner of approximately 1,500 parcels of land in several states which he was unable at the time to properly evaluate or to distribute satisfactorily among his loved ones, so he left it in trust for his trustee to lease or sell as business prudence later suggested. To each of his daughters, Lucie U. Norton and Mattie A. Norton, he devised one-seventh of the general residue of his estate (including the income from the Texas lands) and directed that two-thirds of each one-seventh was to be held in separate, individual, subsidiary trusts for his daughters for life. (The trustee of the George W. Norton, I, estate created in 1927 a Texas Liquidating Trust to facilitate the oil development and issued proportionate share certificates to the beneficiaries of the will of George W. Norton, I.) From the time of the death of George W. Norton, I, in 1889, all liquidating distributions alloca-ble to Miss Lucie and Miss Mattie were distributed to them one-third outright and the remaining two-thirds were placed in the subsidiary or individual trusts created for them by the will of George W. Norton, I, and the income from each of the individual trusts was paid to Miss Lucie and Miss Mattie as their needs required.

When the Texas Liquidating Trust was created in 1927 as aforesaid, Mattie A. Norton’s Subsidiary Trust received 560 shares of beneficial interest in the Texas Liquidating Trust and Lucie U. Norton’s Subsidiary Trust also received 560 shares of beneficial interest in the Texas Liquidating Trust. Thus each of those Subsidiary Trusts received, in accordance with the will of George W, Norton, I, two-thirds of the one-seventh share of the daughter for whom the Subsidiary Trust was created.

From time to time the Texas Liquidating Trust made liquidating distributions to Lu-cie U. Norton’s Subsidiary Trust and to Mattie A. Norton’s Subsidiary Trust. When the Texas Liquidating Trust made liquidating distributions to the two Subsidiary Trusts, the trustee of those trusts treated all of each such distribution as principal of the Subsidiary Trusts. In other words, whatever the nature of the transaction that created cash in the Texas Liquidating Trust — whether sale or mineral development-all of each liquidating distribution was treated as principal in the Subsidiary Trusts.

This fundamental principle of administration of the Texas Liquidating Trusts and of the Subsidiary Trusts was consistently applied in Lucie U. Norton’s Subsidiary Trust for some ten years and in Mattie A. Norton’s Subsidiary Trust for almost twenty years, and it was specifically approved by a Jefferson Circuit Court judgment dated September 24, 1948, in Citizens Fidelity Bank & Trust Company v. George W. Norton, Jr., et al.

On July 9, 1936, Mattie A. Norton and Lucie U. Norton each executed substantially identical wills with certain reciprocal gifts. Item Four of each of the wills, the provision directly relevant in this action, reads in pertinent part as follows:

“All the residue of my estate, of whatever nature, owned by me or over which I have power of disposition by will, I devise and bequeath to George W. Norton, Jr., as Trustee, to be held in trust for the period, with the powers and for the purposes hereinafter set forth. He shall have the same power of control, management, investment, sale and reinvestment of the principal of the trust estate or any part thereof, as I myself would have, if then living.
“He shall collect the income as it may accrue from the trust property. After the payment of taxes and proper administration expenses, he shall pay over the balance of such income as follows:
“(1) During the life of my sister (Mattie A. Norton or Lucie U. Norton), he shall pay to her all such net income, making such periodical payments thereof as she may direct.
“(2) After the death of my sister, (Mattie A. Norton or Lucie U. Norton), he shall pay such net income thereafter accruing, until the termination of the trust herein created, in appropriate periodical payments, subject to augmentation or termination as hereinafter set forth, to the following nephews and nieces, or their issue per stirpes: George W. Norton, Jr., one-fourth, Margaret Norton Davidson, one-fourth, Dorothy Norton Clay, one-fourth, William C. Coleman, one-fourth.”

When she died in 1937, Miss Lucie had acquired 1,312 shares of beneficial interest in the Texas Liquidating Trust and Miss Mattie, who died in 1946, had acquired 1,452 such shares, and these respective shares became a part of the Lucie U. Norton Testamentary Trust and the Mattie A. Norton Testamentary Trust, respectively. The trustee of the two trusts, Citizens Fidelity Bank & Trust Company, has consistently allocated to principal of the respective trusts all of each liquidating distribution made to them by the Texas Liquidating Trust whether the liquidation reflected a sale of land or income from oil or mineral leases. This was the principle of allocation applied to the original George W. Norton, I, general liquidating trust, the principle applied to the distributions received during the lifetimes of Miss Lucie and Miss Mattie to the distributions from the Texas Liquidating Trust, and was never questioned by them nor has it been questioned by the beneficiaries of their own testamentary trusts.

When the Internal Revenue Service took the position that the trustee of Miss Lucie’s and Miss Mattie’s testamentary trusts should not allocate to principal of the trusts but should distribute as income to life beneficiaries all liquidating distributions from the Texas Liquidating Trust which accrued from rentals, delay rentals, royalties, etc., it precipitated this litigation.

The issue in this case is whether or not certain distributions from a common law trust made to two nearly identical testamentary trusts shall be credited to principal or income accounts of the testamentary trusts. The distributions largely represent royalties, bonuses, and delay rentals from Texas mineral leases, legal title to which is held by the trust for the use of its beneficial interest certificate holders. Citizens Fidelity, as trustee of the two testamentary trusts here involved, is such a holder.

The salient facts recited are extracted from the pleadings and clearly show the interpretation and treatment over the years accorded the distributions received from the liquidating trusts of the George W. Norton, I, estate. Whether the distributions reflected sales of property or income from leases it was allocated to principal under the will of George W. Norton both before the creation of the Texas Liquidating Trust in 1927 and thereafter when the distributions were made in proportion to the beneficial interest certificates held by the interested parties.

With such an admitted background, it is reasonable to assume that Miss Lucie and Miss Mattie considered their beneficial interest certificates as the property, the res they set aside as trust property, and that whatever income (a term not defined in their wills) which was derived from it should be allocated as principal to their respective testamentary trusts, as had been the principle followed in the administration of the trusts for their benefit in the will of their father. It was the income from the respective testamentary trusts to which the beneficiaries were entitled and not the income as such from the beneficial interest certificates held by the testamentary trustee. When we consider that much of the value of the Texas real estate is its mineral value, its oil and gas, the depletion of the property by oil and gas operational development indicates that the remainder interests are being best protected by the principle of administration pursued. In cases involving trusts created after 1956, the Uniform Principal and Income Act (KRS, Chapter 386) may prove helpful.

In view of the admitted background, we think the trustee was justified in continuing to follow the principle of construction long acquiesced in by the parties. As is said in 90 C.J.S. Trusts § 165C:

“In construing a trust instrument, the court may not only consider what is expressed in such instrument, but may also look at the conduct of the parties affected by the instrument in their performance of it, at least where it contains equivocal language; and a construction, sought by a party, which would constitute a repudiation of a long continued course of conduct is not regarded with favor. Hence, the set-tlor’s subsequent acts are held to be of great significance in construing an ambiguous trust instrument; in ascertaining the intent of the settlor, resort may be had to evidence of his acts or conduct under the trust instrument, at least if the instrument is ambiguous or uncertain.”

The judgment is affirmed.


author: BIRD, JUDGE.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mitchell COMBS et al., Appellees.
    Court of Appeals of Kentucky.
    May 11, 1962.

      James J. Shannon, Jr., Frankfort, for appellant.
    James S. Chenault, Clay Shackelford, Richmond, Ben K. Wilmot, Frankfort, for appellees.
   BIRD, JUDGE.

Clay Shackelford served successfully as attorney for Mitchell Combs in his claim against the Commonwealth’s Department of Highways for workmen’s compensation. The Workmen’s Compensation Board, before whom the action was pending, ordered that the attorney’s fee be paid in a lump sum to attorney Shackelford. The fee will of course be deducted from the claimant’s total award and he does not object to the amount or its payment in a lump sum.

The Department of Highways, however, objected to the amount of the fee and to the order for lump sum payment and appealed to the Madison Circuit Court from the Board’s order. The Madison Circuit Court dismissed the appeal. The Department of Highways has appealed to this Court.

KRS 342.320 as amended in 1956 reads as follows:

“All fees of attorneys and physicians, and all charges of hospitals under this chapter, shall be subj ect to the approval of the board. No attorney fees shall be allowed or approved against any party not represented by said attorney, nor shall any attorney fee be allowed or approved exceeding an amount equal to twenty percent of the amount recovered. The board may reduce the attorney’s fee to an amount commensurate with the services performed, or may deny or reduce an attorney’s fee upon proof of solicitation of employment.
“The entire attorney’s fee in a lump sum shall be paid directly to the attorney of record, and the board in allowing or approving an attorney’s fee, as provided in this section, shall order the payment of same directly to the attorney, commuting sufficient of the final payments of compensation payable under the award to a lump sum for that purpose.”

The statute authorizes the Board to fix the fee and the statute makes it mandatory that sufficient payments of the award be commuted for the purpose of paying the attorney’s fee in a lump sum.

The employee and the attorney are the only parties who may object to the amount of a fee fixed by the Board. Certainly the employer has no right to question it.

Prior to the mandatory amendment of 1956 we held that commutation and lump sum payment of awards are administrative matters and that the courts will not review the Board’s order thereunto pertaining except in cases of fraud. Black Mountain Corporation v. Davenport, 280 Ky. 302, 133 S.W.2d 102. Under the mandatory amendment the Board cannot deny an application for commutation and lump sum payment of attorney fees. If the employer could not appeal from an order granting commutation and lump sum payment before the mandatory provision was enacted it most certainly cannot do it now.

The employer having no right to question the amount of the fee and having no right to appeal from the order for its lump sum payment, the Madison Circuit Court had nothing to review and properly dismissed the action.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    Robert SIDELL et al., Appellants, v. Edward G. HILL, Special Judge Designate of the 17th Judicial District, Appellee.
    Court of Appeals of Kentucky.
    May 11, 1962.
    Thomas F. Marshall, Funk, Chancellor & Marshall, Frankfort, Morris Weintraub, Newport, for appellant.
    Edward G. Hill, pro se.
   MOREMEN, Judge.

On the 13th day of September 1961, after an intense investigation of the condition of vice and crime, the Grand Jury of Campbell County returned many indictments. 'By order dated November 6, 1961, the Chief Justice of this Court appointed Honorable Edward G. Hill, who had presided over the Grand Jury, as special judge to preside over the Campbell Circuit Court during trial of persons charged by the indictments rendered by that Grand Jury.

Four of the persons indicted, Robert Sidell, Madeline C. Sidell, Stanley Shoemaker and Richard Busker, have petitioned this Court to set aside and withdraw its order of November 6, 1961, and to issue a writ prohibiting Judge Hill from trying the petitioners under the indictments against them and, further, to adjudge that the Honorable Louis Reuscher had been duly selected to hear pleadings directed at the validity and sufficiency of said indictments.

This petition for a writ of prohibition has the quality of a petition for rehearing in an ordinary case in that the problems we are requested to decide have heretofore been determined by us. In order to reconsider the actions taken by this Court a restatement of fact is required.

On September 15, 1961, the Honorable Ray L. Murphy, the regular judge of the Campbell Circuit Court, while exercising a sound sense of propriety, entered an order which reads:

“It being the opinion of Ray L. Murphy, the regular judge of the Criminal Common Law and Equity Division of the Campbell Circuit Court, that it would be improper that he preside as judge to hear and determine motions and demurrers attacking the validity or sufficiency of indictments returned by the recent Grand Jury impaneled on August 15, 1961, and which concluded its session and adjourned on September 13, 1961:
“NOW, THEREFORE, the regular judge removes himself from said hearings on said motions and demurrers, and vacates the Bench for said purpose; and in the event that the attorneys representing the several movants who are named in said indictments, and the attorney representing the Commonwealth of Kentucky, are unable to agree upon the appointment of a local attorney possessing all the necessary qualifications as special judge, this order of vacation shall be properly certified by the Clerk of the Campbell Circuit Court to the Chief Justice of the Court of Appeals for the appointment of a special judge to perform the duties relative to the hearing and determination of the aforesaid motions and demurrers.”

On the same day, September 15, 1961, a stipulation designating a special judge was filed under KRS 23.230. This stipulation was signed by the commonwealth’s attorney, Hon. William J. Wise, in behalf of the commonwealth, and various attorneys in behalf of the defendants indicted, including the attorneys for petitioners in this case. It reads in part:

“It is stipulated and agreed by and between William J. Wise, Commonwealth’s Attorney, and the undersigned attorneys for the respective defendants who have filed motions and demurrers attacking the validity of the above styled indictments, and attorney or attorneys who have indicated to the Commonwealth’s Attorney and the Court that they propose to file demurrers and motions attacking the sufficiency and validity of said indictments, that Hon. Louis Reuscher, an attorney of this court, be and he is hereby selected to act as Special Judge herein for the purpose of hearing and determining the above motions and demurrers, and entering all orders relating thereto which he may adjudge to be meet and proper * * *

On October 26, 1961, an original action was filed in this. Court styled Commonwealth of Ky. ex rel. John B. Breckinridge, Attorney General v. Wiliam J. Wise, Commonwealth’s Attorney, Ray L. Murphy, Judge, and Louis Reuscher, Special Judge —all of the 17th Judicial District.

Several officials of the City of Newport who also were under indictment attempted to intervene in this action for the purpose of sustaining the selection of Hon. Louis Reuscher as special judge. On November 1, 1961, this Court entered an order in which it was recited that all motions for intervention were overruled. The case was dismissed as to Commonwealth’s Attorney Wise on the ground that he was not a judicial officer, and Reuscher was prohibited and enjoined from sitting as special judge Regular Judge Murphy was disqualified as a matter of course to hear or try any of the indictments resulting from the Grand Jury above described. The opinion was filed in the case on November 22, 1961 (Ky., 351 S.W.2d 493). It does not assign in detail the reasons for issuing a permanent writ of prohibition — the simple fact remains that the writ was issued. Judge Milliken filed a concurring opinion which sets forth a firm basis for the action of the Court, saying:

“However, we believe it well to point out that this Court, like the highest court in any common law jurisdiction, has such supervisory powers, derived from the common law of England, as it may find essential for it to assure the effective administration of justice within this jurisdiction. 14 Am. Jur., Courts, Sections 264-274. The common law history of this development in England and the United States was traced by the Supreme Court in 1838 in Kendall v. United States, 12 Pet. 524, 9 L.Ed. at 1181. Section 110 of our Constitution is an express recognition of these supervisory powers and not a limitation of them.”

Section 110 of the Constitution referred to in the above opinion, which deals with the jurisdiction and the powers of the Court of Appeals, contains this specific delegation of authority:

“Said court shall have power to issue such writs as may be necessary to give it a general control of inferior jurisdictions.”

We will not attempt here to summarize the hundreds of cases, as evidenced by the opinions of this Court, wherein that power has been exercised, but we think it is a fair deduction from the reasoning in all of them that the Court has jealously guarded its right to do those things which are required to obtain fair and just administration of judicial duties in all courts of this commonwealth.

In the case under consideration it is argued that the appointment of Edward G. Hill as Special Judge of the Campbell Circuit Court was irregular and contrary to the statute relating to the appointment of Special Circuit Judges, and it is emphasized that Section 136 of the Constitution states:

“The General Assembly shall provide by law for holding Circuit Courts when, from any cause, the Judge shall fail to attend, or, if in attendance, cannot properly preside.”

Under that section the general assembly enacted KRS 23.230 which, in substance, provides that when, from any cause, the circuit judge cannot properly preside the parties may by agreement elect one of the attorneys of the court to perform the regular judge’s function and, if the parties cannot agree or if the regular judge determines that sufficient time is not available in which to ascertain if the parties can agree upon a special judge or if the regular judge determines that it is impractical to attempt to obtain an agreement because of the large number of parties to the action, the clerk of the lower court shall certify these facts to the Chief Justice of the Court of Appeals who shall designate a special judge to act.

The petition urged that after the regular circuit judge disqualified himself and the petitioners through their attorneys entered into an agreement with the commonwealth’s attorney and selected the Hon. Louis Reuscher as special judge, the Chief Justice had no power or authority under the statute and under Section 136 of the Constitution to appoint Judge Hill to act as special judge.

We suppose that the members of an appellate court are not required to be less informed about matters of general public intelligence than is the average person and are granted the right to know when a certain area of their own state has become disturbed and is in a state of turmoil regardless of whether the condition was brought about as the result of some natural phenomena such as fire, windstorms, et cetera, or is self-induced because of malfeasance or misfeasance on the part of some of the officials of the community. The intense publicity through all media of communications concerning conditions in Campbell County was so great that this Court certainly was well within its rights in concluding that these conditions warranted investigation by a grand jury and trial of indictments, if any ensued, under a person who, up to the time of the initiation of the corrective action, was entirely remote from and not in any way subject to the stimuli of preconceived impressions, however slight. This Court, charged as it is by Section 110 of the Constitution with the heavy responsibility of overseeing all inferior courts, is not always restricted to the narrow field of vision seen only by judicial eyes. In addition, this Court, before the time of the appointment of Judge Hill, had been informed through its own records of the tumultuous conditions which were disturbing the people of Campbell County. As early as August 7, 1961, a petition for a writ of prohibition was filed in this Court and some of the members were fully informed about the grave happenings. Although facts are not stated in detail in the opinion, our conclusions may be found in Commonwealth v. Wise, Ky., 351 S.W.2d 491. See also Commonwealth v. Murphy, Judge, Ky., 351 S.W.2d 513.

It is disclosed by the proceedings before us and as a matter of general information that there were few public officials charged with law enforcement in Campbell County who were not under close scrutiny during most of the year 1961. In many cases the suspicions were groundless and the officials were completely absolved from even a suggestion of wrongdoing, but at that time it was certain that all parties, whether guilty or innocent, were under suspicion and the impartial administration of justice in the county was in high question. This Court concluded that all persons could best be served by a judge from a distant area in the state who was completely free to act, unhampered by past impressions concerning the situation or old associations or even familiar memories. These were cases for a stranger to try.

Counsel argue that the appointment of Judge Hill was not in strict accordance with the method set forth by the legislature in KRS 23.230. This Court in many instances has accepted guidance from that branch of the government in areas in which there was considerable doubt as to whether it had full power to act. This resulted from the fact that we must always bear in mind that judicial encroachment under constitutional doctrine is as repulsive as similar action by the legislative or executive branches. Therefore ⅛ the attempt to maintain the delicate balance of power and duties between the three departments of government we have not resisted infringement upon vested power unless that impingement was clear and certainly defined.

Here we are faced with an act of the general assembly under the right granted by Section 136 of the Constitution. The act set out a series of conditions which should exist before the Chief Justice is empowered to designate a special judge. We are also faced with the enormous responsibility placed upon us under Section 110 of the Constitution which reaffirmed and gave to this Court the ancient common law power of a supreme court to control the actions of an inferior court and its officers when conditions warranted it. In 14 Am.Jur., Courts, Section 264, it is written:

“The superintending control over inferior tribunals possessed by courts in various states in this country ‘is of ancient inception, and relates back to and has its origin in the power exercised by the King’s Bench in England.’ The exercise of this supervisory power is ‘recognized by the common law,’ apart from constitutional and statutory provisions. According to the common law, superior courts are entitled to a general superintendence over all subordinate courts for the purpose of keeping them within their prescribed sphere and of preventing usurpation. This common-law power has been carried into the Constitutions and statutes of many states, which directly give to superior courts a general superintending control over inferior courts of law and equity.”

Here again it must be stated that this was not a simple procedure in a single case as is anticipated by KRS 23.230, but involved the general administration of justice in that jurisdiction. The circumstances required action by this Court.

Some situations are so bad that they cannot be cured by half-measures. Serious and distressing faults in our judicial and social system invoke the exercise of full capacities of those who are charged with the duty of discovering and correcting them. This Court could easily have avoided that responsibility by pursuing the well-worn fork of the road as paved by Section 136 of the Constitution and its enabling act, KRS 23.230, and by ignoring the realities of the situation. We chose instead to follow the path marked by Section 110 of the Constitution.

. The petition for a writ of prohibition is denied.


author: STEWART, Chief Justice.

text:
    Alonzo SIZEMORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 11, 1962.
    J. Ervin Sanders, Sanders & Redwine, Pikeville, for appellant.
    John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., Frankfort, for appellee.
   STEWART, Chief Justice.

Appellant, Alonzo Sizemore, was convicted of voluntary manslaughter and sentenced to prison for 21 years. KRS 435.020. This was the second trial of the offense, and the appeal from the first conviction is reported in 347 S.W.2d 77 under the same style as the instant case.

The shooting occurred at the American Legion Club in Letcher County. Appellant, a deputy sheriff, owned the building and lived in an apartment upstairs. On March 4, 1960, Manuel Bentley, who was slain, and his brother, Roy Bentley, both of whom had been drinking, started a fight in the club. Appellant was called downstairs to separate the two brothers and, while he was herding them out the door, he shot Manuel Bentley in' the side. The latter died one week later. from the wound. Appellant claimed the shooting was accidental. He was indicted by the Letcher County grand jury, but the trial that resulted in his conviction was moved to Pike County after a motion for a change of venue was sustained.

On this appeal, appellant first urges as a ground for reversal that the lower court should have set aside the swearing of the jury and continued the case because of certain statements made by Roy Bentley while testifying for the Commonwealth.

On direct examination this witness was asked: “What if anything was said there? Just take your time and tell the jury as to what occurred at the time that Mr. Sizemore came in.” In his response the witness made a long, detailed answer, which was interrupted by several questions. He concluded by telling of an occurrence that was not related by him at the first trial. He said: “ * * * Then about that time Mrs. Sizemore arrived at the scene, from upstairs, and she said ‘Lord God, Alonzo, have you shot another man ?’ ” Appellant’s counsel objected to this statement and moved to exclude it. The trial judge sustained the objection and told the jury not to consider the remark. But the witness, unmindful of the trial judge’s ruling, kept talking. He said: “And so he says ‘Yes, I sure have’ and so — .” Appellant’s counsel then moved to set aside the swearing of the jury and continue the case because of “that statement.” The lower court overruled the motion, appellant’s counsel reserving an exception to this ruling.

Appellant argues that the language of the witness above quoted was shocking and, as a consequence, he did not receive a fair and impartial trial; and that the trial court’s action in overruling his motion amounted to an abuse of discretion. The Commonwealth contends the statement was part of the res gestae of the whole event and admissible as such, as it was substantially contemporaneous with the entire act. At any rate, the Commonwealth points out that the court promptly admonished the jury to disregard the evidence and appellant could not have been prejudiced thereby.

We believe the admonition given to the jury to disregard the answer, for the reason that it was not competent, may be presumed under the circumstances to have the effect of preventing any prejudice to appéllant’s substantial rights. The statement in and of itself does not make specific reference to any other crime committed by him. Moreover, the fact that a deputy sheriff may have shot more than one person in times past does not necessarily imply he has ever been guilty of perpetrating a wrongful act. Many law enforcement officers are obliged to use their fire arms while carrying out acts within the scope of their duties.

Therefore, it appears to us the response of Roy Bentley was so ambiguous in its import that, when considered in connection with the admonishment of the trial court, appellant was not entitled to a discharge of 'the jury. See Cox v. Commonwealth, Ky., 356 S.W.2d 766; Whitaker v. Commonwealth, 297 Ky. 279, 179 S.W.2d 448; Walton v. Commonwealth, 223 Ky. 393, 3 S.W.2d 764.

The next alleged error is that there was an improper separation of the jurors. See Section 244 of the Criminal Code of Practice.

There were thirteen jurors who qualified to hear this case — eight men and five women. These persons were lodged overnight in the Hatcher Hotel in Pikeville. Briefly stated, the foregoing section requires that jurors of each sex shall be kept together in the charge of proper officers. The eight men occupied four adjoining, but not connecting, rooms in the hotel on the second floor and their guard’s room was next to these. The men held the keys to their rooms and could lock and unlock their doors as they pleased. The women had four adjoining, but not connecting, rooms on the first floor, and their guard, Mrs. Harriett Raney, who stayed awake all night, put up in one of these rooms with one of these jurors. They also held the keys to their rooms.

The guards made affidavits that so far as they knew no one talked to the jurors at any time during the night. Affidavits of two hotel employees disclose that no telephone calls were received by any juror during the night; also that they did not see or hear any visitors to any room occupied by any juror. An affidavit from each juror was filed, indicating that none of them communicated with any outsider during the overnight stay. The evidence was that all doors were checked several times during the night and found locked on each occasion. It was brought out that there were no other hotel guests staying in the immediate vicinity of the rooms occupied by the jurors, and that no one went up or down the stairs after the time when the jurors were left for the night in their respective rooms by the guards.

Appellant maintains there was an opportunity afforded for the exercise of improper .influence on the jury. He cites Nicholas v. Commonwealth, Ky., 286 S.W.2d 542, wherein this Court held that where jurors in a homicide prosecution were bedded down doubly in hotel rooms that did not adjoin and doors to such rooms remained open during the whole night, so that jurors were free to come and go without the necessity of passing the bed of the officer in charge, there was such separation as would require reversal of a conviction for voluntary manslaughter.

The rule to be followed in interpreting Section 244 of the Criminal Code of Practice is thus set out in Hamilton v. Commonwealth, Ky., 285 S.W.2d 156, 157:

“In construing this section, we have held that prejudicial error has been committed where there has been sufficient opportunity afforded for the exercise of improper influence on one or more jurors. The burden is upon the Commonwealth to show that no opportunity for the exercise of improper influence existed, and a mere showing that no improper influence actually took place will not prevent a reversal where the opportunity itself has been shown.” (Cases omitted.) (Emphasis added.)

We are of the opinion that the affidavits filed in this case of the thirteen jurors, the male and female jury guards and the two employees of the hotel clearly indicate there was no sufficient opportunity for any improper influence to be brought to bear upon any of the jury. Hendrickson v. Commonwealth, Ky., 259 S.W.2d 1, is a case somewhat factually analogous to the one at bar. In that case this Court declared there was no opportunity for a separation of the jury within the meaning of Section 244 of the Criminal Code of Practice. We believe that case is controlling here.

Wherefore, the judgment is affirmed.


author: CULLEN, Commissioner.

text:
    Virgie SUMPTER, Appellant, v. Cullen FLANERY et al., Appellees.
    Court of Appeals of Kentucky.
    May 11, 1962.

      Harry M. Caudill, Whitesburg, for appellant.
    John D. W. Collins, Stanley R. Hogg, Whitesburg, for appellees.
   CULLEN, Commissioner.

Virgie Sumpter acquired title to a tract of land by purchase from the heirs of Mrs. Ritter Sumpter Smith, and thereafter she brought action against the heirs of Ed Polly to have adjudged void a deed Mrs. Smith had executed to Polly in 1929, for a right of way across the tract. The ground of attack upon the deed was that Mrs. Smith was mentally incompetent when she executed the deed. The court, after hearing evidence, found that Mrs. Smith had sufficient mental capacity to make the deed, and entered judgment for the defendants. Virgie has appealed.

In 1924 (five years before the deed was executed), Mrs. Smith was adjudged by the county court, in lunacy proceedings, to be mentally unsound. The sole contention of the appellant here is that the outstanding judgment of lunacy conclusively established Mrs. Smith’s lack of mental capacity to execute the deed. In this contention the appellant is in error. The firmly established rule in this jurisdiction is that an adjudication of insanity raises only a rebuttable presumption, and is only prima facie evidence, that the incapacity continues to prevail at a subsequent time. Johnson’s Committee v. Mitchell, 146 Ky. 382, 142 S.W. 675; Fugate v. Walker, 204 Ky. 767, 265 S.W. 331; Hale v. Hale, 245 Ky. 358, 53 S.W.2d 554; Sharp v. Commonwealth, 308 Ky. 765, 215 S.W.2d 983; Littreal v. Littreal, Ky., 253 S.W.2d 247. Also, the strength of the presumption is lessened in proportion to the remoteness of the adjudication. Fugate v. Walker, supra.

The judgment is affirmed.


text:
    James H. MACLIN, Appellant, v. Mary A. HORNER, Appellee.
    Court of Appeals of Kentucky.
    May 11, 1962.

      Alex Berman, Louisville, for appellant.
    Michael Hellmann, Louisville, for appel-lee.
   CULLEN, Commissioner.

Mary Horner was a passenger in an automobile owned by Ben Fallender and being driven by his son LeRoy. It was involved in a collision with a truck driven by James Maclin, as a result of which Mary sustained injuries. In her action for damages she recovered judgment upon a jury verdict for $14,000 against the Fallenders and $6,000 against Maclin. All of the defendants appealed but after the appeal was perfected the Fallenders satisfied the judgment against them and their appeal was dismissed. There remains the appeal by Maclin, who complains of error in the instructions, excessive damages, and improper use of a chart on which the plaintiff’s counsel computed damages.

The collision occurred in Louisville at the intersection of 18th Street (a two-way north-south street) and Chestnut Street (a one-way street for eastbound traffic). The Fallender car was going south on 18th Street and the Maclin truck was going east in the northern lane of Chestnut Street. Traffic at the intersection is controlled by a stop-and-go light and of course each driver maintained that the green light was in his favor.

In addition to instructing upon the rights and duties of each driver as governed by whether the light on his street was green or red, the court gave general instructions on the duty of lookout and the duty to drive at a rate of speed that was reasonable and prudent in regard to existing traffic and weather conditions. The appellant maintains that the only issue in the case was which driver had the green light; there was no issue of speed or lookout; and therefore the court erred in instructing on the latter. He relies on Lincoln Taxi Company v. Rice, Ky., 251 S.W.2d 867, in which this Court held that it was not error, under the particular circumstances of the case, to confine the instructions to the traffic light issue. On the other hand, the appellee .relies on Roland v. Murray, Ky., 239 S.W.2d 967, in which it was held that the giving of instructions on speed and lookout, in addition to a traffic light instruction, was not error.

The two cases respectively relied on are entirely consistent in recognizing that the answer to the question of whether the instructions should go beyond the traffic light issue depends upon whether in the evidence the parties have raised any other issue. In the instant case the matter of lookout was brought up by questions which elicited the answers that neither driver saw the other’s car until a moment before the collision. The question of speed was raised by evidence concerning the force of the impact of the two vehicles.

The verdict holding both drivers responsible must have been based upon a finding that one driver went through the red light and the other was negligent in not maintaining a sufficient lookout and not so controlling his speed as to avoid a collision. We think the evidence warranted such a verdict and, a fortiori, warranted the instructions on which the verdict was predicated.

It is our opinion that in cases involving collisions at intersections controlled by a traffic light the fact that a passenger plaintiff is involved should be given consideration in determining whether issues of negligence have been raised other than the simple one of running the light. Ordinarily the passenger (to whom the host’s negligence is not imputed) will be undertaking to raise every possible ground of negligence of both drivers. On the other hand, when the case is simply between the two drivers each will prefer to rest his case on the sole ground that the other ran the light, because if any other issue is raised both may lose on a finding of contributory negligence. So, in the instant case, we believe the trial court properly concluded that the plaintiff passenger had not confined the issues raised by her to the sole question of which of the defendant drivers had .run the light.

The next question concerns the alleged excessiveness of the damages. The plaintiff’s evidence showed special damages of $2,000, so the remaining $18,000 of the verdict may be considered to have been for pain and suffering and for future impairment of earning power. The appellant contends that the evidence does not support such an award for those two items.

, As concerns pain and suffering, Miss Horner’s injuries consisted of a broken arm, loss of some teeth, lacerations of the knee, forehead and chin, and minor abrasions. One of the lacerations became infected and a piece of glass had to be removed from scar tissue over the left eyelid. She wore a cast on her arm for three months. Her period of hospitalization amounted to 12 days. She testified that she suffered pain for some three months after the accident but at the time of the trial was no longer experiencing any pain.

It will be sufficient for us to say that the evidence would support a substantial award for the pain and suffering that was endured, conceding that there was no proof of the prospect of future pain. See Williams v. Larkin, Ky., 268 S.W.2d 394, and Marcum v. Hedger, Ky., 303 S.W.2d 558, where awards of $12,000 and $9,000, primarily for pain and suffering from a broken limb and abrasions, were upheld.

With respect to loss of earning power, there was evidence that Miss Horner probably would have a permanent 10 percent disability of her body as a whole resulting from a limitation of motion of her right wrist. She was 23 years of age, with a life expectancy of 50.73 years. She had been employed at a bakery, earning from $35 to $73 per week depending upon the number of days she was called to work.

Even if it were considered • that Miss Horner’s past earnings constituted the measure of the earning power she would have had for the future if physically unimpaired, the evidence would support an award for loss of earning power sufficiently large, when coupled .with an acceptable amount for past pain and suffering, to equal the amount of the verdict that was rendered here. We do not find the verdict excessive.

The final question concerns alleged impropriety in the treatment of a chart prepared and used by the plaintiff’s attorney in his closing argument. The chart consisted simply of sets of multiplied figures by which the attorney indicated what he considered to be the minimum amounts allowable for pain and suffering and for loss of future earning power, added to the amounts claimed for special damages. The total amount was $10,720.

After the jury had deliberated for several hours they returned to the courtroom and asked permission to take the chart with them into the jury room. The court denied this request but allowed the jury to look at the chart in the courtroom and the foreman to copy down the figures. The court also, of its own initiative, brought before the jury in the courtroom a blackboard on which the attorney for the Fallenders had written some calculations.

The appellant maintains that the permitted second view and copying of the chart constituted prejudicial error. In our opinion it was error but not prejudicial.

The chart was in the case only as a permissible part of the closing argument of plaintiff’s counsel. See Louisville & Nashville Railroad Co. v. Mattingly, Ky., 339 S.W.2d 155. While some of the figures used in the chart were in evidence, part of the figures represented only the attorney’s own evaluation of $2.00 per hour for pain and suffering. To permit the jury to reexamine the chart and to copy it amounted to allowing the jury to rehear part of the closing argument. Ordinarily a jury will not be permitted to take a deposition into the jury room, Louisville, H. & St. L. R. Co. v. Morgan, 110 Ky. 740, 62 S.W. 736; the reason being that doing so could result in the jury’s giving more weight or significance to the deposition than to the oral testimony heard on the trial. 53 Am.Jur., Trial, sec. 931, p. 664. The same principle is applicable to the question of allowing the jury to rehear part of the closing argument.

It is true that in Moore v. Beale, 20 K.L.R. 2029, 50 S.W. 850, it was held not error for the jury to take into the jury room a calculation by the plaintiff’s attorney of the amount due in an action upon a commercial account. But there the court pointed out that there was nothing on the paper that had not been introduced in evidence. In the instant case the chart contained some figures representing the attorney’s own evaluations.

While in our opinion it was error for the court to permit the jury to review and copy the chart we do not believe the error was prejudicial because, first, the court also directed to the jury’s attention the blackboard calculations of one of the attorneys for the defendants so as to give the defendants “equal time,” and second, because the verdict does not reflect that the chart calculations were a substantial influencing factor upon the jury.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky ex rel. DIVISION OF UNEMPLOYMENT INSURANCE, Appellant, v. Charles R. BEAM’S ADMINISTRATRIX, Kathryn Louise Beam, d/b/a, et al., Appellees.
    Court of Appeals of Kentucky.
    May 11, 1962.

      Paul E. Tierney, Samuel H. Cole, Christopher C. Frishe, Kentucky Division of Unemployment Insurance, Frankfort, for appellant.
    Maurice H. Harris, Lexington, for appel-lee.
   MILLIKEN, Judge.

This is an appeal by the Division of Unemployment Insurance from a judgment for $239.27, taxes plus penalty, against the appellees, jointly and severally, but which dismissed, for failure of proof, the claim against Mrs. Beam and the purchaser of the business for other taxes allegedly accrued after Mrs. Beam took over the business at the time of the death of her husband, who previously had owned and operated it, and under whose operation the $239.27 taxes adjudged due had accrued.

We have checked the record and agree with the conclusion of the trial court.

The appeal is dismissed.