text:
    Calon Wayne WHACK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 7, 1965.
    Calón Wayne Whack, pro se.
    Robert Matthews, Atty. Gen., Charles Runyan, Asst. Atty. Gen., for appellee.
   WADDILL, Commissioner.

The appeal is from an order summarily overruling appellant’s motion to vacate the judgment whereby he was convicted of murder and sentenced to life imprisonment. That judgment was affirmed after a consideration of the merits on an appeal to this Court. Whack v. Commonwealth, Ky., 316 S.W.2d 856.

In his motion filed in the circuit court appellant alleged several grounds for vacating the judgment. Having reviewed each one we conclude that with a single exception these grounds would not possibly invalidate the judgment of conviction. It would serve no useful purpose to discuss them further. Walker v. Commonwealth, Ky., 386 S.W.2d 452; Warner v. Commonwealth, Ky., 385 S.W.2d 62, 65.

We need therefore consider only the ground of inadequacy of counsel. The trial judge took judicial notice of the fact that appellant had engaged the services of a leading criminal lawyer to represent him. Under similar facts we have previously discussed the allegation of inadequate representation by counsel and concluded that when a defendant has counsel of his own choosing he ordinarily waives the right to complain of the way in which he was represented. King v. Commonwealth, Ky., 387 S.W.2d 582. Moreover in the instant case the trial judge properly found that counsel had ably represented appellant both upon trial and upon appeal to this Court.

As in Maye v. Commonwealth, Ky., 386 S.W.2d 731, it was unnecessary to hold a hearing upon appellant’s motion.

There being no merit to appellant’s contentions of error we conclude the motion made pursuant to RCr 11.42 was properly overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Walter A. SHAW et al., Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.

      Robert F. Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Dandridge F. Walton, Madisonville, Raleigh O. Jones, Louisville, for appellant.
    John L. Dorsey, Jr., Henderson, for ap-pellees.
   HILL, Judge.

Commonwealth of Kentucky, Department of Highways, condemned a strip of land 10 by 468 feet along with another adjacent and parallel strip 10 by 454 feet for a temporary easement in order to widen U. S. 41 between Henderson, Kentucky, and Evansville, Indiana. These two strips were taken off the front of appellees’ land which was used as a commercial nursery, and which fronted 468 feet on U.S. 41. Affected by the taking were appellees’ horseshoe driveway and the display area containing shrubs, plants and trees located in the middle of the horseshoe. The jury in the Henderson Circuit Court awarded a total verdict of $11,930 damages — $9,360 for the difference in market value of the property before and after the taking, and $2,570 for the temporary easement. The Commonwealth appeals.

Appellant’s initial contention is that the evidence of two of appellees’ witnesses, Walter A. Shaw, the landowner, and Woodring Fryer, was irrelevant and incompetent.

Walter Shaw first gave his valuation testimony (Before: $122,000; after: $85,-000; difference: $37,000), and then on direct examination he stated he took into consideration an item of $1800 spent for labor in removing shrubbery and loss of plants in transplanting. The appellant strenuously argues that this factor (the $1800 cost of removal of plants and shrubs out of the condemned area) is invalid, in that, it involves an irrelevant factor or measure of value and, therefore, that Shaw’s original estimates became irrelevant and were inadmissible and his entire testimony should have been stricken.

We have held that removal and relocation costs are not compensable in Kentucky. In Chain Belt Co. v. Commonwealth of Kentucky, Department of Highways, Ky., 391 S.W.2d 357 (decided March 19, 1965), we held condemnee could not recover expenses incurred for removal and relocation of machinery and equipment from condemned property. Also in Commonwealth of Kentucky, Department of Highways v. Dowdy, et al., Ky., 388 S.W.2d 593 (decided March 26, 1965), we decided one con-demnee could not recoup expenses for removing a building, another could not recoup expenses for moving a sign and tanks from condemned property. Following this line of authority, we held in Commonwealth of Kentucky, Department of Highways v. Eaves, et al., Ky., 388 S.W.2d 573 (decided March 26, 1965), that condemnee could not recover the cost of moving junked automobiles from condemned property.

It should be noted that the cost of removing these shrubs and trees was not introduced to show additional damage to which appellees were entitled. Rather, this $1800 removal cost was given as a factor which Mr. Shaw used to determine the diminution of the value of the land after the taking. Since this factor is noncom-pensable, the testimony of Mr. Shaw may be based at least partly on an irrelevant factor.

From the authorities above, it is clear that this character of testimony was partly based upon an improper factor and which we have consistently condemned. However, we conclude appellant did not properly object to this testimony.

In a number of recent cases we have been confronted by the situation where a valuation witness, after giving proper and competent testimony on direct examination, is led to admit on cross-examination that he has included in his estimate of value some improper factor. At the conclusion of his cross-examination a motion is made to strike his entire testimony, as was done in this instance. When the witness’s valuation is “based solely or primarily on an' improper factor his estimate becomes invalid and is subject to a motion to strike.” West Kentucky Coal Company v. Commonwealth of Kentucky, Ky., 368 S.W.2d 738, 743. But when the improper factor can be eliminated from his calculations and the estimate revised accordingly the appropriate remedy is an admonition to the jury not to consider the improper factor and a requirement of the witness that he revise his figures and give an opinion on the correct basis. Commonwealth, Dept. of Highways v. Mayes, Ky., 388 S.W.2d 125 (1965). In such an event, we are agreed that even though a motion to strike all of the witness’s testimony is inappropriate and properly overruled, the trial court of its own volition could appropriately admonish the jury and require the witness to eliminate the improper factor from his calculations and revise his estimate accordingly. However, it is counsel’s responsibility to request the relief to which he is entitled, and in the absence of an appropriate motion the trial court’s failure to act on its own volition is not an error. The court is of the opinion that a blanket motion to strike the entire testimony of the witness is not sufficient to make it incumbent on the trial court, upon correctly overruling the motion,, to initiate some other and more appropriate action. As a matter of fact, it may be that counsel would prefer that the witness not be given a gratuitous opportunity to correct his testimony.

Appellant also complains that the witness, Woodring Fryer, stated that he considered costs in removing plants and advertising signs in front of the nursery and that these costs were included in the difference in the before and after value. However, since this witness did not voluntarily place a monetary value on these removal costs, and was not requested to do so, it is now, at this late date, impossible to determine the extent to which this factor influenced his estimate of values. Furthermore, based upon our discussion earlier in this opinion, we conclude that appellant did not properly object and was not entitled to strike all the testimony of this witness.

Appellant next contends that the court below erred in declining to strike testimony of appellees’ witnesses placing specific values amounting to $20,000 on shrubs, trees and other plants growing on the back part of the land not taken. This testimony was improper. Commonwealth Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, and Commonwealth Dept. of Highways v. Tyree, et al., Ky., 365 S.W.2d 472. However, as the same figures were reflected in the “after” values as well as the “before” values given by the witnesses, the error cancels out. In some instances we would regard such an error as prejudicial anyway, in that, it may convey to the jury a false impression both of the overall value of the property and the factors that determine that value. But in view of the testimony as a whole in this case we are not convinced that this particular irregularity actually had a prejudicial effect.

Appellant finally asserts that the testimony of witnesses, Hunt and Fryer, was somehow “tainted with considerations reflecting loss of business, which is clearly incompetent.” The gist of appellant’s argument is that both witnesses relied on the fact that the landowner lost part of his display and advertising area, and particularly that Mr. Fryer relied on removal costs of signs and shrubs. We have already pointed out that the effect of Fryer’s reliance on these factors was not shown, since no effort was made to determine what, if any, monetary value was assigned to these costs. Likewise, there is no allegation or evidence to indicate that Mr. Hunt placed a specific value on loss of display area or advertising or to what extent this influenced his final estimate. Furthermore, the question is not saved by proper objection as noted above.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. W. R. FANCHER et al., Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.

      Robert F. Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Richard H. Peek, Paducah, for appellant.
    Holland G. Bryan, Paducah, for appel-lees.
   HILL, Judge.

This is an appeal from a judgment of $10,000 for 6.52 acres of land taken, and $2,780 for damages to the remainder of ap-pellees’ property.

Listed in appellant’s brief are the following arguments:

“I. The court committed prejudicial error in failing to exclude testimony of damages because of limitation of access.
“II. The court committed prejudicial error in failing to exclude damages because of circuity of travel.
'TIL The trial court committed prejudicial error by permitting testimony of appellees’ witness who testified that he did not know what was meant by ‘Fair Market Value,’ which testimony was incompetent and had no probative value.”

The tract of land sought is to be used for relocation of U.S. Plighways 62, 93 and 641 around the town of Kuttawa. By Kuttawa we mean the new city which officially came into existence November 22, 1961, and replaced the old town of Kuttawa which will be flooded by Barkley Dam. Before the taking of this land, the appellees owned what they considered to be a 20-acre tract of land with the usual improvements thereon which they had occupied since 1936 as their residence and on which they did light farming. The highway engineers say the tract contained 26.5 acres. After the taking, appellees will have a 3.8-acre tract on the north side of the new highway and 16.18 acres on the south side. We shall refer to the new highway as No. 641. The residence and other buildings on the land are on the south side and there is a general north slope all the way across the farm. The construction of the new highway necessitates a cut of approximately 300 feet in length, ranging in depth from 2.5 to 11 feet; the remainder of the road consists of a fill ranging from 0 to 13 feet. Before the construction of the highway, the appellees traveled an old WPA road known as the Ross Ferry Road. However, before the construction, appellees were required to travel over adjoining land now owned by the new town of Kuttawa in order to get to the Ross Ferry Road.

Before the taking, appellees’ property was bounded on the north side by the Ross Ferry Road, a distance of 1175 feet; after the taking only 775 feet fronted or joined this old road.

The corporate limits of the town o.f Kut-tawa extend up to the appellees’ eastern boundary line. Very recently, grading and draining operations by the promoters of a shopping center on the land adjoining ap-pellees’ property have obstructed their use of the former access to the Ross Ferry Road. It is not shown the appellant was in any way responsible for this obstruction.

First, we discuss the contention of appellant that certain testimony pertaining to interference with appellees’ access should have teen stricken.

It should be noted that although some of the witnesses referred to the new highway, U.S. 641, as a “limited” access road, it is not such a road in the present meaning of the phrase. Appellees are provided an approach to the new highway, both from their 16.18-acre remaining tract, and from their 3.5-acre tract on the north side of the highway. Yet, in order for appellees to get from their large tract to the small one they must travel 700 feet to a cross-over and back 700 feet to where the approach leads off to the smaller tract.

In Commonwealth of Kentucky, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104 (1962), this Court decided that “the only access right the landowner has is a right of reasonable access to the highway system.” Also in Commonwealth of Kentucky, Department of Highways v. Raybourne, Ky., 364 S.W.2d 814 (1963), this Court, in discussing access as an element of .damages, said:

“This was not a valid element of damage because, there being reasonable access to the old highway, the land owners had no property right of access to the new road.”
See also:

Department of Highways, Commonwealth of Kentucky v. Jackson, 302 S.W.2d 373 (1957); Commonwealth of Kentucky, Department of Highways v. Herndon, Ky., 378 S.W.2d 620 (1964); Commonwealth of Kentucky, Department of Highways v. Denny, Ky., 385 S.W.2d 776 (1964); Commonwealth of Kentucky, Department of Highways v. Roberts, Ky., 388 S.W.2d 604 (decided March 26, 1965); and Jennings v. Commonwealth of Kentucky, Department of Highways, Ky., 388 S.W.2d 133.

We quote from Denny, supra:

“ * * * The rationale of the admitted rule of the Jackson case, supra, is that the enhancement in value of land attributable to the mere convenience of the routes of travel which it enjoys is something that does not inure to the landowner as property. The same rule is applicable in the case at bar.”

Following this rule, we said in Jennings v. Commonwealth, Department of Highways:

“The appellants’ land will have the same access after the condemnation that it had before, which access was adequate for the use to which the land was being devoted (farming). The state did not condemn or take any property right of access.”

Appellant contends the appellees’ evidence is permeated with the element of loss of access. Appellee counters that the idea of access was injected by “tricky” questions which counsel for appellant “fires” at every witness. Let us see.

“Q — Go right ahead with your explanation on the damages.
“A — The fact is I damaged it $200.00 an acre because it could have been developed as one tract of land, now, it will have to be developed as two tracts. The additional expense involved in the roads, he will have to build and it is going to be greater. He had the right of access to the WPA road anywhere along there that he wanted to go in and out and now the rest of his land, the 16 acres — well, the 20 acres left on the south side of the new road has no access to the Ross Ferry Road, except through this little — well, honestly when I was down there, I couldn’t see any access. Now, they may have built one since, but now down there the other day, they had not given him any access.
“Q — And so you based it on the fact that they were cut in two and loss of access and the fill in front of it?
“A — Right.
“Q — In other words, you are saying he had been damaged because he has got no way to get from this tract to this tract and from this tract to this tract (pointing out same on exhibit) ?
“A — I am saying my damage is based on the fact that his farm is broken into two pieces, that his 20 acres, his 26 acres, is now broken into two pieces and that before it could have been developed as one tract. It would have been worth more money that way. Now, it would have to be developed, the 4 acres that is left on the Ross Ferry Road will have to be developed separately from the 16 acres that is left on the other side.
“Q — What price did you put on those 4 acres?
“A — Same value I put on the other.
“Q — And you reached that damage because he can’t get to it?
“A — I said he can’t get back and forth.
“Q — And that is why you put that damage on it?
“A — Yes, sir, one reason.
“Q — What were some of the others?
“A — The other reason is the fill which — well, it is all connected in with the fact that he can’t freely go anywhere on his land that he wants to go.”

Appellee testified the value of the 6.52-acre tract was $14,960 and the damage to the 3.8-acre tract was $23,050. Appellant’s witnesses fixed the value of land taken at $3,000 and $3300, respectively. They found no damages to the remainder. They based their testimony on comparable sales of $375 and $400 per acre. In fact, the land adjoining appellees’ property sold to the new city for $400 per acre.

Appellees’ witness, Milliken, fixed the value of land taken at $7,824 and damages to remainder at $4,950. With respect to the element of access, Milliken said:

“Q — Now, let’s get to the damages, Mr. Milliken. On the $7,824.00 we won’t take that up. On the damages to the remainder, just tell the jury how you reached that.
“A — All right, sir, on the approximately 4 acres I valued it $1200.-00 per acre, since it is cut off from the remainder of Mr. Fan-cher’s land and has limited access to the new 641.
“Q — Did it ever have access to 641 ?
“A — 641 wasn’t there, no.”

Bill Williams, another of appellees’ witnesses, fixed damages to the remainder at $3,000. While he did not specify the element of access, we think it is implied in his testimony.

Appellees’ witness, Chumbler, fixed the damage to the remaining 3.8 acres at $7,775 and considered the loss of access.

We have concluded this element or factor threading through the testimony of appellees’ witnesses was improper and prejudicial to the appellant, and that appellant is entitled to a new trial. On such a new trial, should there be one, we should point out that in Commonwealth, Department of Highways v. Shaw et al., Ky., 390 S.W.2d 161 (decided today) the manner of saving the question for appeal in regard to evidence containing improper elements is specifically defined.

The second ground for reversal complains of evidence based on “circuity of travel.” This is an improper factor. See Cranley v. Boyd County et al., 266 Ky. 569, 99 S.W.2d 737 (1936). Upon proper objection on another trial, the court should not allow the witnesses to use this factor in arriving at values.

The third and final ground urged by appellant for reversal complains of the competency of evidence of witnesses who admitted they did not know the meaning of “market value.” As we have many times observed in such a situation, lay witnesses cannot be expected to give a legal definition of “fair market value.” It is common practice for one of the attorneys or the court to define for a prospective witness the meaning of fair market value. The testimony of these witnesses clearly indicates that they had had considerable experience in real estate transactions, especially in this locality, and that they showed considerable common sense and practicality concerning the subject about which they testified. We cannot agree that this testimony should have been taken from the jury. Commonwealth, Department of Highways v. Citizens Ice & Fuel Company, Ky., 365 S.W.2d 113 (1963).

The judgment is reversed with directions to grant appellant a new trial.


author: CULLEN, Commissioner,

text:
    KENTUCKY UTILITIES COMPANY et al., Appellants, v. PUBLIC SERVICE COMMISSION of Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    Rehearing Denied June 4, 1965.

      Malcolm Y. Marshall, Ogden, Robertson & Marshall, Louisville, Clifford E. Smith, Smith, Reed, Yessin & Davis, Frankfort, William L. Wilson, Wilson & Wilson, Owensboro, for appellants.
    J. Gardner Ashcraft, Public Service Comm., Louis Cox, Hazelrigg & Cox, Frankfort, Julian M. Carroll, Emery & Carroll, Paducah, for appellees.
   CULLEN, Commissioner,

The appeal is from a judgment of the Franklin Circuit Court upholding an order of the Public Service Commission granting a certificate of convenience and necessity to Big Rivers Rural Electric Cooperative Corporation (hereinafter “Big Rivers”) for the construction of certain electric generating and transmission facilities, and granting authority to borrow money from a federal agency for the cost of the facilities. The appellants, who were protestants in the proceedings before the Public Service Commission, are Kentucky Utilities Company (hereinafter “KU”), Louisville Gas and Electric Company (hereinafter “LG&E”), City Utility Commission of the City of Owensboro (hereinafter “OMU”), and the City of Owensboro.

Big Rivers was organized in 1961 under KRS Chapter 279 for the purpose of generating and transmitting electric energy for its members, which are the following three rural electric cooperatives which for a number of years have been distributing electric energy in western Kentucky: Henderson-Union Rural Electric Cooperative Corporation (hereinafter “Henderson-Union”), Green River Rural Electric Cooperative Corporation (hereinafter “Green River”), and Meade County Rural Electric Cooperative Corporation (hereinafter “Meade County”).

Big Rivers’ application to the Public Service Commission was made in 1962. It sought a certificate of convenience and necessity authorizing: (1) The construction of a steam generating plant with a capability of 75,000 KW, designed to supply the generating needs of Henderson-Union and Green River commencing in 1966, and the needs of Meade County commencing in 1969; (2) the construction of transmission lines from the generating plant to the lines or load centers of Henderson-Union and Green River, to commence service in 1966; and (3) an interconnection line between its generating plant and power-producing facilities of Southeastern Power Administration (hereinafter “SEPA”) at Barkley Dam, also to commence service in 1966. The application also sought an authorization to borrow the cost of the proposed system ($18,000,000) from a federal agency. The application was granted by the Public Service Commission as made.

At the time the application was made Henderson-Union and Green River were being supplied with power by KU, and Meade County was being supplied by LG&E. Henderson-Union and Green River were in a position to, and did, make commitments with Big Rivers to buy power from Big Rivers commencing in 1966, but Meade County had a contract with LG&E extending through 1968, so it could make no commitments with Big Rivers for service prior to 1969. However, Meade County did enter into a contract with Big Rivers to buy power commencing in 1969. The capacity of the proposed generating plant of Big Rivers is designed to accommodate the needs of Meade County, but no authority was sought in the instant proceeding to construct transmission lines to serve Meade County.

The most vigorous attack of the appellants is upon the finding of the Public Service Commission that there is an inadequacy of existing service. However, applying to the facts of this case the principles enunciated in Kentucky Utilities Co. v. Public Service Commission, Ky., 252 S.W.2d 885 (hereinafter “East Kentucky”), we conclude that the attack must fail.

One of the alternative tests of inadequacy stated in East Kentucky is “a substantial deficiency of service facilities, beyond what could be supplied by normal improvements in the ordinary course of business” (252 S.W.2d @ 890). The deficiency is not to be measured by the needs of the particular instant, but by “immediately foreseeable needs” (252 S.W.2d @ 893). Clearly, in view of the substantial period of time required to construct and place in operation a major electric service facility, the immediately foreseeable future may embrace a number of years. We said, in East Kentucky (252 S.W.2d @ 893):

“Perhaps the strongest proof of inadequacy of present facilities is found in the proposed eight-year expansion plan of K.U., filed with the Public Service Commission in connection with hearings in this case, which calls for increasing the capacity of the generating plants of K.U. by some 300,000 KW, and for the construction of additional transmission lines. This plan, based on anticipated load growths, is a clear admission of the inadequacy of existing facilities to supply immediately foreseeable needs.”

In the instant case the evidence showed that KU planned to add 165,000 KW of generating capacity in 1967, and another 165,000 KW in 1970, or a total of 330,000 KW in a period of eight years from the date of Big Rivers’ application, or four years from the date of Big Rivers’ proposed commencement of operations. In addition, LG&E will need an additional 180,000 KW unit in 1966, and OMU plans to add a 151,000 KW unit in 1968. Actually, the 10-year programs of the protesting utilities, taken together, call for the adding of 1,700,000 KW of generating capacity. KU states that its proposed new 165,000 KW unit planned for 1967 will be necessary whether or not the Big Rivers plant is built.

The situation with respect to needs of the immediate future for transmission facilities is similar. For example, KU planned substantial extensions of its transmission facilities, in the West Kentucky area, by 1968. New load centers will require service, and many existing load centers do not have direct power delivery.

The appellants maintain that their planned additions of generating and transmission facilities should be classed as “normal improvements in the ordinary course of business.” However, they concede that they would be required to obtain certificates of convenience and necessity for the construction of these facilities, which concession puts them in an untenable position, because under KRS 278.020 a certificate is not required for the construction of “ordinary extensions of existing systems in the usual course of business.” In our opinion major facilities of the size contemplated cannot be considered to be mere ordinary extensions or normal improvements within the meaning of the statute or within the meaning of the rule laid down in East Kentucky.

Actually, everyone in this case agrees that the existing service facilities are inadequate to meet the needs of the immediately foreseeable future. Although the appellants undertake to argue that there is no inadequacy, the real import of their argument is that the existing utilities, rather than a newcomer, should be allowed to supply the inadequacy. The question of who should be permitted to supply the inadequacy is involved in this case, in the overall consideration of public convenience and necessity, but the fact that the existing utilities are willing and able to supply the inadequacy by major additions to plant does not negative the existence of the inadequacy.

As their second argument, the appellants maintain that the proceedings before the Public Service Commission were premature and should have been dismissed because (1) the Big Rivers plant will not be economically feasible unless it serves Meade County; and (2) the question of whether Rig Rivers will be permitted to serve Meade County when its existing contract with LG&E expires in 1969 must be determined by a subsequent application.

As we view it, the question of whether the consumer market in the immediately foreseeable future will be sufficiently large to make it economically feasible for a proposed system or facility to be constructed (this is mentioned in East Kentucky as a significant factor for consideration) is not one which must be answered with absolute certainty; it is sufficient that there is a reasonable basis of anticipation. In our opinion, Meade County’s being available as a market for Big Rivers’ power could, under the circumstances of this case, be anticipated with sufficient reasonableness to warrant authorization for construction of a plant by Big Rivers designed to accommodate the needs of Meade County. And we think that in view of the long range planning necessary in the public utility field, an anticipation in 1966 of the needs of 1969 is not too remote. Furthermore, it would appear that even if Big Rivers were not granted authority to serve Meade County, the resulting temporary excess capacity of the Big Rivers generating plant could be utilized by the existing utilities (whose needs will constantly be growing), just as KU now utilizes the excess capacity of the OMU plant. It may be pointed out that the anticipation by OMU, in planning its 1964 plant, of serving Green River and Henderson-Union was not fulfilled but nevertheless there is an adequate market for the power from the 1964 plant.

Several arguments are made by the appellants with respect to the overall feasibility of the Big Rivers proposal. One is that the system would not be sufficiently dependable because initially it will have only one interconnection with a source of emergency or stand-by power, and peaking power. In our opinion the evidence as to the possibilities of the Big Rivers plant and the interconnection source having simultaneous outages or failures was not such as to indicate any serious danger of a complete failure of service, and therefore the Public Service Commission was justified in finding that there was a reasonable assurance that Big Rivers will have an adequate supply of reserve power.

Another argument addressed to feasibility is that Big Rivers cannot supply power at a cost as low as that of the existing utilities. The evidence for Big Rivers would warrant a finding that the cost of Big Rivers power will be substantially lower than present costs. At the most, the evidence for the existing utilities shows only that they might supply power for a few cents less per KWH than could Big Rivers. The rates of Big Rivers would be reasonable on the basis of any appropriate standard. In our opinion, as concerns feasibility, no more is required.

It is argued by OMU that Big Rivers’ entire case, as concerns feasibility, rested upon a Power Load Study about which a Mr. Brown testified, and that his testimony was incompetent because the study was not prepared by him or by persons working under his supervision. We think the contention is without merit because: (1) Mr. Brown testified that he was responsible for making the original estimates upon which the Power Load Study was prepared; that the estimates subsequently were checked by field men (not working directly under him) and they verified all of his estimates except in one minor respect; (2) the Public Service Commission is not bound by strict rules of evidence; (3) there is no showing that there is any probability of error in the study or that an opportunity to cross-examine the field men would have been of any significant value; and (4) the circumstances of the preparation of the study were such as to warrant its being accorded reasonable reliability. Furthermore, it appears that the Power Load Study was addressed primarily to showing the existence of a sufficient consumer market, and there really is no serious contention in this case that the consumer market will not be sufficient to make the Big Rivers plan feasible.

The appellants argue that the construction of the Big Rivers plant will result in wasteful duplication which, as defined in East Kentucky, embraces an excess of capacity over need, an excessive investment in relation to productivity or efficiency, or an unnecessary multiplicity of physical properties.

There is really no basis for any argument that there will be an excess of capacity over need. As concerns transmission lines there is evidence that the main transmission lines of the existing utilities will have use to their full capacity without serving the distribution cooperatives, and that if Big Rivers were not permitted to operate the distribution cooperatives would be required to construct a large number of miles of tap-on lines. As concerns generating facilities, there is an admitted inadequacy of existing facilities. KU argues that its new 165,000 KW plant, proposed to be constructed in 1967, will be needed regardless of whether the Big Rivers plant is built, but at the same time KU says its new plant will provide enough capacity to serve the cooperatives and KU’s other loads. We have a little trouble following that argument. It appears to us that if the new KU plant will be needed regardless of the cooperatives’ needs, its ability to serve the cooperatives in addition to KU’s other loads could be only of a short duration. That this is true is indicated by evidence that KU could avoid having an excess of capacity simply by postponing the construction of its new plant for one year.

With respect to an excessive investment in relation to productivity or efficiency, the main argument is that the existing utilities can expand their facilities, to meet the continuing needs of the cooperatives, at a cost considerably lower than the cost of the Big Rivers system. As concerns generating facilities the argument is not valid because the proof does not show that the existing utilities can build generating plants more cheaply than can Big Rivers. It may be that the cost of the portion of KU’s proposed 1967 generating plant that could be devoted to supplying the needs of the cooperatives would be less than the cost of Big Rivers’ entire plant, but as hereinbefore pointed out, this would relate only to a temporary saving and would have little significance in the long range picture. It may be also that large plants can produce power at a lower unit cost than small plants, but unless the difference in cost assumes major proportions (which is not shown here) there cannot he said to be a wasteful inefficiency in the small plant. As concerns transmission facilities it is argued that KU could expand its transmission lines sufficiently to meet the needs of the cooperatives at a cost of some $1,800,000, whereas Big Rivers proposes to spend some $5,500,000 for transmission lines. These cost comparisons are not entirely valid, because the Big Rivers costs embrace facilities that would not be provided by the KU plans, and some of the costs, such as those for the interconnection line with SEPA, might more properly be classed as generating costs rather than transmission costs. In any event, as pointed out in East Kentucky, cost is only one factor to be considered. Other questions are (1) will the lines parallel each other (if not, there is no duplication) ; (2) would it be feasible to distribute Big Rivers power over KU lines; and (3) would such service be adequate? The record is not such as to require affirmative answers to the latter questions. For example, there is evidence that the proposed KU lines would not provide for delivery of power directly to the load centers of the cooperatives, and in a number of instances would not meet high voltage needs. Actually, no one seriously suggests in this case that it would be feasible to distribute Big Rivers power over KU lines. The evidence warrants the conclusion that the overall investment in the Big Rivers system, as a unit, will not be excessive in relation to productivity or efficiency, so the possible fact that one part of the system, if taken alone, would involve an excessive investment is not important if, as is the case here, that part is not feasibily separable. It is our conclusion that the Public Service Commission was warranted in finding that there will be no duplication from the standpoint of excessive investment.

There is no real contention that there will be a duplication from the standpoint of a multiplicity of physical properties.

It is contended by KU that economic waste will result from the construction and operation of the Big Rivers plant because the expansion of publicly owned power facilities (1) places the privately owned utilities in a less favorable position in the money market, increasing their financing costs, and (2) hinders the growth of unified, single power systems. However, there is no suggestion that this will result in any serious rate disadvantage to the consumers of the existing utilities. In substance the argument is that competition is bad in the public power field and that the public interest is best served through a large regulated monopoly. While it may be conceded that a large monopoly is in theory capable of rendering cheaper and more efficient service, there are other considerations that enter into the question of whether the monopoly system best serves the public interest. There has been no declaration of public policy of this state that the type of ownership that will provide the lowest rates is the only type of ownership that will be permitted to operate a utility service. See Public Service Commission v. Cities of Southgate, etc., Ky., 268 S.W.2d 19. Whether, in the overall public interest, competition has advantages that offset those of monopoly is a question our legislature has chosen to leave to the decision of the Public Service Commission.

It is argued by OMU that the consumers in Owensboro will be subjected to an additional cost of $260,000 as a result of construction and operation of the Big Rivers plant, and that this shows that the Big Rivers project will cause economic waste. It appears that the claimed additional cost will grow out of fixed charges incurred or to be incurred by OMU in anticipation of the construction of a new generating unit which OMU had planned for 1968, but which might be delayed until 1971 by reason of the Big Rivers project. OMU says that in order to prevent a temporary excess of capacity it will be required to delay for perhaps three years the construction of its new unit in anticipation of which it already has incurred fixed charges for land, water supply, railroad facilities, etc. Assuming that OMU had made definite plans to construct the new unit in 1968 (the record indicates that the plans were far from definite and that the ultimate decision to build would be made by KU), it would appear that the solution to OMU’s problem would be to delay for three years the construction of the Big Rivers plant. However, the evidence indicates that this would deprive the cooperatives of substantial savings in costs. Also, it seems that the claimed cost to the Owensboro consumers is attributable to the terms of OMU’s contract with KU, and that if the Owensboro consumers lose, the KU consumers gain. When we consider all of the consumers involved we are not convinced that there will be any significant net economic loss from the immediate construction of the Big Rivers plant.

OMU maintains that an addition to its generating plant, completed in 1964, has enough capacity to serve the needs of Owensboro and of Green River for perhaps 10 years in the future. However, KU has contracted to buy, and it will have a market for, all power from the OMU plant in excess of the needs of Owensboro, so there will be no unused capacity in the plant even if the cooperatives do not use OMU power.

KU contends that the Public Service Commission did not make adequate findings of fact and did not apply proper standards. We have examined carefully the Commission’s order and in our opinion it embodies all essential findings of fact and applies proper standards.

By way of conclusion it may be said that the basic issue in this case is whether, in a situation of inadequacy of existing facilities to supply immediately foreseeable needs, the existing utilities should be allowed to supply the inadequacy to the exclusion of a newcomer. As we view it, if the newcomer’s proposal is feasible (capable of supplying adequate service at reasonable rates) and will not result in wasteful duplication, the Public Service Commission is authorized to grant a certificate to the newcomer. The Commission is not restricted to making a close comparison of whose rates will be lowest and whose service will be most efficient. Cf. Public Service Commission v. Cities of Southgate, etc., Ky., 268 S.W.2d 19. The existing utilities have no absolute right to supply the inadequacy. East Kentucky. Nor do they have any right to be free of competition. Tennessee Electric Power Company v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543.

Upon the whole record we cannot find that the determination of public convenience and necessity in this case, by the Public Service Commission, is unlawful, unreasonable or without adequate factual support.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    George CANTRELL et al., Appellants, v. Hiram ANDERSON et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.
    T. L. Hibbits, Pikeville, Glyn R. Phillips, Clintwood, Va., Robert T. Winston, Jr., Norton, Va., J. Ervin Sanders, Sanders & Redwine, Pikeville, for appellants.
    Francis Dale Burke, Pikeville, for appel-lees.
   CLAY, Commissioner.

This is a controversy over the right to the use of church property. It was initiated by a minority group against a majority group on the ground that the latter had departed from fundamental doctrines of the original church. The trial court so found and adjudged that the plaintiff appellees were the owners and entitled to the possession of the property.

In 1947 eight or ten persons organized the Hylton Church of the Old Regular Baptists of Jesus Christ. In 1948 one of the defendant appellants conveyed real estate to the Church, which deed provided:

“This property to be used exclusively for Old Regular Baptist Worship or whatever might be done by order of the Church.”

The Hylton Church joined a “Union Association”, but it was congregational in character and not subject to control by the Association. In 1962 the Church left the “Union Association” and joined the “Bethel Association”. Both Associations subscribe to the same “Articles of Faith” but one of the other churches in the “Bethel Association” had fallen into disfavor with the “Union Association” because of a dispute about certain Baptist beliefs.

The Article of Faith about which this controversy revolves provides as follows:

“We believe that sinners are called, converted, regenerated and sanctified by the Holy Spirit and all who are so regenerated and born again by the Spirit of God shall never fall finally away.”

It appears that in the interpretation of this Article a difference of opinion developed as to whether (1) prayer was of benefit to sinners, (2) preaching was a benefit to sinners, and (3) a believer is a child of God during travail.

The parties agree that when there is a schism in a congregational church, the group adhering to the fundamental doctrines of the church as advocated and practiced at the time of its organization is entitled to possession of it as against those who have departed or deviated from such fundamental doctrines. Fleming v. Rife, Ky., 328 S.W.2d 151.

Appellants contend that they have not departed from the fundamental doctrines of the Church, principally because the differences of opinion relate to matters about which the congregation had no fixed beliefs and matters of interpretation and application of the doctrine which appears in the quoted Article of Faith. However, there was substantial evidence that one of the leaders of the majority group was preaching theories (accepted by appellants) which were contrary to certain understandings, beliefs and interpretations that constituted fundamental doctrines of the Old Regular Baptists. The court found there was a substantial and fundamental departure from these doctrines. Without reciting the evidence, it was amply sufficient to sustain the court’s basic findings.

The court also found in effect that at the time of the organization of the Church the majority of its members had fixed beliefs on the questions at issue, and appellants contend such finding was not supported by the evidence. Assuming they are correct in this contention, the finding was unnecessary to the decision. The issue concerned the fundamental doctrines of the Old Regular Baptist churches, not the individual beliefs or lack of beliefs of the individual members. See Maynard v. Headen, Ky., 334 S.W.2d 930.

Appellants further contend that the provision in the deed with respect to use of the property did not create a specific trust. It seems clear that the intention was to restrict the use of the property to Old Regular Baptist worship as long as it was held by the Church, with a right of the Church to dispose of it so that there would be no reversion.

We find no merit in appellants’ contention that appellees had no right to sue.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    John BLAIR, Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, a Corporation, et al., Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.

      Maubert R. Mills, Mills, Spain & Mitchell, Madisonville, Raymond C. Stephenson, Louisville, for appellant.
    Carroll Franklin, Franklin & Franklin, Carroll Morrow, Moore & Morrow, R. Giles Eirk, Madisonville, H. G. Breetz, J. F. Wheeler, M. D. Jones, Louisville, for appel-lee.
   MONTGOMERY, Judge.

John Blair sued the Louisville & Nashville Railroad Company, Russell Beshears, administrator of the estate of James Carl Morgan, deceased, and Ashley Franklin. Blair appeals from a judgment based on the verdict for the defendants, now appellees.

Blair was the engineer on an L & N train. The truck of Ashley Franklin, driven by James Carl Morgan, collided with the train at a point where Kentucky Highway 502 crosses the L & N tracks near the Coiltown tipple in Hopkins County. Morgan was killed. Blair claims that he was injured.

Appellant’s case against Franklin and Beshears, the administrator, is based on the alleged negligence of Morgan, the truck driver, in failing to see the train and in not stopping the truck. His claim against the railroad company is based on the alleged negligence of a fellow worker in failing to inform him of the approaching vehicle. See Federal Employers’ Liability Act, 45 U.S. C.A. § 51 et seq.

On appeal Blair argues that he was entitled to a directed verdict and that the court erred in the instructions given.

The collision occurred about 10:30 a. m., on November 21, 1958. The weather was clear. The two-ton truck, loaded with coal, was being driven northwardly. The train, consisting of two diesel locomotives and one car, was moving forward in a westward direction at four to six miles per hour. The truck and front engine of the train collided at the intersection of the tracks and highway, with the truck striking the left side of the front engine.

The jury was instructed on the issues of negligence of the respective parties, as well as on the issue of damages claimed to have been sustained by appellant. The verdict was in favor of the defendants, now appel-lees. There was no indication as to whether the verdict constituted a finding of no liability or of no damages, or both.

Appellant contends that there is strict liability on the part of a driver who runs into the side of a moving train on a highway crossing. He says that the failure, if any, of the engineer to give a warning was as a matter of law not the proximate cause of the accident because the truck driver was given more immediate and imperative notice by the obvious presence of the train itself. Appellant relies on Louisville & N. R. Co. v. Mischel’s Adm’x, 272 Ky. 295, 114 S.W.2d 115; Chesapeake & O. R. Co. v. Switzer, 275 Ky. 834, 122 S.W.2d 967; Illinois Central R. Co. v. Maxwell, 292 Ky. 660, 167 S.W.2d 841; and Louisville & N. R. Co. v. Branson, Ky., 267 S.W.2d 945. Those cases hold that the presence of the train standing on or moving over the track across the highway becomes a condition which is in itself notice to the driver of the obstruction and eliminates the need of giving of notice by the railroad company. Such presence is not deemed negligence or an effective cause of the accident.

The cases cited are inapplicable because the train here was approaching the crossing at the same time as was the truck. They reached it almost simultaneously. The truck collided with the side of the front unit of the train. As the truck was approaching the crossing, the train was neither moving over it nor standing still on it. Thus, it was not a condition under the principle of the cases cited. This fact distinguishes this case from the cases cited by appellant and justifies the denial of a directed verdict as to the truck driver’s estate and to the owner of the truck.

Appellant sought to hold the railroad liable under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., by an allegation that the locomotive fireman failed to keep a proper lookout for motor vehicles and failed to give appellant, as the engineer, timely warning of the approaching truck. Although appellant argues the negligence of his fellow employees and seeks to include alleged negligence of the train conductor, the record does not include any pleading which justifies such argument. An amended complaint containing an allegation of negligence by reason of the conductor’s failure to keep a proper lookout was offered and withdrawn. Thus, appellant is confined to the alleged negligence of the fireman in failing to keep a proper lookout and to warn the engineer.

On cross-examination appellant admitted that the fireman kept a proper lookout as follows:

“200. I will ask you whether or not the fireman was keeping a look-out at the time you approached that crossing?
“A. Yes, sir.
“201. Was he keeping a proper lookout?
“A. Yes, sir, I think so.”

In addition there was testimony that the train was traveling slowly and that the fireman first saw the truck when the front part of the engine was about thirty or thirty-five feet from the crossing. At that time the truck was about two hundred and fifty feet from the crossing. At that point the fireman’s view was partially obscured by trees and it was not apparent whether the truck would stop or continue across the tracks. In a matter of seconds the fireman determined that the truck was traveling too fast for it to stop, called to the engineer to stop, and appellant immediately applied the brakes in emergency. This evidence, together with the appellant’s admission of a proper lookout on the part of the fireman, was sufficient to deny appellant a directed verdict against L & N for failure of the fireman to keep a proper lookout and to give a timely warning.

Instructions IV, VI, and VII were to the effect that it was the duty of appellant, L & N, and its servants to ring the bell or sound the whistle and to stop the locomotive as soon as possible to prevent the collision, and that appellant could not recover if contributorily negligent in this respect. KRS 277.190 makes it the duty of the railroad to provide each locomotive with bell and whistle and to ring the bell or sound the whistle, “outside of cities, at a distance of at least fifty rods from the place where the track crosses upon the same level any highway or crossing at which a signboard is required to be maintained, and the bell shall be rung or the whistle sounded continuously or alternately until the engine has reached the highway or crossing.”

Appellant contends that it was error to give these instructions on the theory that the presence of the train was in itself notice of the obstruction to the driver, thus relieving L & N and its servants, including appellant, of the necessity of warning by bell or whistle. As has been pointed out, the Mischel, Switzer, and Branson cases, on which appellant relies, have been distinguished from the situation in this case.

The evidence was conflicting as to whether any warning was given by a bell or whistle. Two witnesses testified that either no warning was given or none was heard. Thus, appellant was not entitled to a directed verdict on this conflicting issue as to the estate of the truck driver and the truck owner.

L & N contends that it was entitled to a directed verdict in view of appellant’s admission of a proper lookout on the part of the fireman, since his recovery against L & N would have to be based on the fireman’s negligence. In view of the verdict for the appellees, it is unnecessary to discuss this contention at length except to say that when error is claimed in an instruction, such error cannot be prejudicial if the party against whom the error is claimed is entitled to a directed verdict. Chesapeake & O. R. Co. v. Switzer, 275 Ky. 834, 122 S.W.2d 967; Louisville & N. R. Co. v. Galloway’s Adm’x, Ky., 267 S.W.2d 90; Fryrear v. Kentucky & Indiana Terminal R. Co., 310 Ky. 250, 220 S.W.2d 546. Such is the case here. Redding v. Independent Contracting Co., Ky., 333 S.W.2d 269.

Under the circumstances there is no merit in the claim of undue prominence by reference to the bell or whistle warning in Instructions IV, VI, and VII. Number IV defined the duties of appellant and presented the contributory negligence defense of L & N. Number VI set forth the duties of appellant with reference to the contributory negligence plea of the truck driver’s estate and the truck owner. Number VII defined the duties of all the agents of L & N in the operation of the train. The fact that the duties of one of the parties were set out in more than one instruction does not give undue emphasis and is not prejudicial to the party upon whom the duties rest. Trent v. Chesapeake & O. R. Co., 221 Ky. 622, 299 S.W. 556; Vandivier v. Tye, 231 Ky. 630, 21 S.W.2d 1006; Wallis v. Illinois Cent. R. Co., 247 Ky. 70, 56 S.W.2d 715.

The evidence was conflicting on the issue of whether appellant received any injuries attributable to the collision. He testified that he was riding on a seat on the right side of the locomotive next to a window, directly opposite a similar window on the left side. The windows were .of safety glass and were two feet square. He testified that coal from the colliding truck knocked out the window opposite him and struck him as he was seated about five feet across the cab. He admitted that his glasses were not broken and that he was not cut about the face or body.

Appellant was taken to the hospital and was discharged the next day. He reported for work in seventy-two hours and continued to work from the last of November until January 14, 1959, except for two weeks off for a trip to Texas. He went back to work on January 20 and worked until about April 29, 1959. He had a periodic medical examination by a railroad doctor on April 13. He said that after the accident vibration from the locomotive caused suffering which made it necessary to quit work. Following cessation of work he stayed in a hospital about seven days, during which time he was in traction. He also was supplied -with a neck collar. He applied for retirement by the railroad and was retired in October 1959.

Appellant described his pain as follows: “I have a headache that it appears to be something tied around the head right tight, and the pain runs to the back of my neck, and then to my left shoulder, and my left arm has a numb feeling in it and my fingers tingle like they had been asleep at times.” He said that he had worn a brace around his body. He was wearing a neck collar at the trial. He said that he wore the collar when in his car and when walking but did not “wear it around home” and had not worn it during the time he had worked after the collision.

Appellant was sixty-six years old at the time of the collision. He said that his health had been good prior to the accident except for aches and pains after a hard day’s work which disappeared after a night’s rest. Appellees contend that the physical complaints of the appellant, considering all of the medical testimony, are as attributable to natural causes as they are to the accident. Drs. Calhoun, Bartley, and Glover testified for appellant. Drs. Mayes and Sutherland testified for the appellees.

The only medical testimony that tended to connect appellant’s physical complaint with the accident was given by Dr. Glover, an orthopedic surgeon, who examined appellant about six months before the trial. In his opinion appellant had a permanent “disability resulting from traumatic aggravation of an arthritic condition of his cervical spine, dorsal spine, and injury to the muscles and ligaments of the neck, with secondary nerve compression causing pain in proportion to his activity engaged in.”

The other four doctors, one of whom was appellant’s family physician who had treated him at the hospital, found that appellant was suffering from pre-existing osteoarthritis. None of them found any connection between this condition and the accident.

The court, by Instruction III, told the jury that if they believed that the injuries of which appellant complained were not caused by the collision but were caused at some other time or by some other means they should find for the appellees. No complaint is raised to this instruction.

There is ample testimony on which the jury could have found the verdict for the appellees on the issue of damages. Blair’s own statement lacks persuasiveness. Most of the medical testimony, including that of appellant’s family physician, indicates that appellant’s complaints were not related to the accident. The verdict is adequately supported by evidence that justified the jury in finding for the appellees under Instruction III. Hilsenrad v. Bowling, 292 Ky. 368, 166 S.W.2d 847; Simons v. Allen, Ky., 309 S.W.2d 775.

This case is unique in the respect that there is such a strong conflict in the evidence on the issue of damages. The medical testimony, other than that given by Dr. Glover, shows that appellant’s injuries are not attributable to the collision. The conflicting evidence on this issue is an additional reason for denial of the motion for a directed verdict in favor of appellant.

Judgment affirmed.


author: STEWART, Judge.

text:
    LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT, Appellant, v. Dr. Philip E. KIRK, Appellee.
    Court of Appeals of Kentucky.
    May 7, 1965.

      Raymond F. Bossmeyer, James G. Becker, Louisville, for appellant.
    Harry L. Hargadon, Sr., Henry V. B. Denzer, Louisville, for appellee.
   STEWART, Judge.

This action was instituted by appellee, Dr. Philip E. Kirk, to recover damage to his residence at 739 Southwestern Parkway in the City of Louisville allegedly resulting from the breach of an easement contract by appellant, Louisville and Jefferson County Metropolitan Sewer District (hereinafter referred to as “Metropolitan”), in failing to properly maintain a sewer beneath the house. The case was heard by a jury and resulted in a verdict and judgment of $13,-000 for appellee.

In July of 1909, L. Simon and Lucy Simon conveyed an easement to the Commissioners of Sewerage of Louisville. Metropolitan was created and organized pursuant to KRS Chapter 76 enacted by the General Assembly in 1946; and that same year it took over from the Commissioners of Sewerage the Louisville sewer system, succeeding to all assets, rights, obligations and contracts of its predecessor.

Under a pretrial order it was stipulated, among other things, that liability, if any, arose solely from the 1909 contract whereby appellee’s predecessors in title granted an easement for the construction and maintenance of a sewer and that Metropolitan, which was not a party to the contract, could only be liable on an implied contract pursuant to KRS 76.070(1), under the provisions of which it assumed operation of the Louisville sewer system.

On the trial it was shown a monolithic-cast concrete sewer, five feet in diameter, was constructed in 1910 upon the easement granted. Between 1921 and 1931 the sewer was covered with twelve to fifteen feet of earth to make the land level with the street. In 1933 or 1934 a two and one-half story residence was erected above the sewer and in 1946 it was purchased by appellee. In 1952 Metropolitan repaired some deterioration on the inside of the sewer and in that same year appellee’s residence began to show signs of structural damage.

It is appellee’s theory that the defective condition of the sewer caused a leakage into it and that this leakage carried with it soil from beneath his residence until portions of the house sank, resulting in the damage for which he seeks recovery in this action.

In support of this theory a registered engineer and architect testified his examination of the interior of the sewer beneath appellee’s property showed it was in a bad state and that there was a leakage into it. In this connection he stated: “ * * * there were cracks across the top, there was water dripping into the sewer from the top, and there was some steel exposed.” A civil engineer gave as his expert opinion that the damage to the residence was caused by abnormal settling due to a carrying away of the subsoil over the sewer, thus lessening the density of the material over it and causing the soil to give away to pressure from above. Ap-pellee testified that when he purchased the property in 1946 there were no observable structural defects in it, but in 1952 a corner of the basement garage floor dropped about two inches and subsequently there was considerable cracking, warping and twisting of different parts of the house.

Metropolitan’s theory is that appellee’s damage was due to a subsidence of the fill upon which his residence was located and that this had been caused or aggravated by the severe flood in 1937 which spread over this area. In support of this theory a civil engineer testified that in the neighborhood of appellee’s residence he had observed depressions or sunken places in the earth’s surface and also cracking in nearby houses which were not in the immediate vicinity of the sewer. It was his considered view as an expert that the settling of appellee’s house was caused by its weight upon the fill which had been subjected to and weakened by flooding. A construction engineer testified his inspection of the sewer after the repairs in 1952 and again in 1957 demonstrated that it was tight and no water was coming into it from outside.

Metropolitan maintains the jury was permitted to speculate between conflicting inferences or conjectures as to the cause of the settling, with no more reason to accept appellee’s than appellant’s theory of causation, contrary to the rule stated in Fordson Coal Co. v. Whitt, 253 Ky. 484, 69 S.W.2d 992, and Kentucky Glycerine Co. v. Woodruff Development Co., 233 Ky. 325, 25 S.W.2d 736. However, the uncontra-dicted fact that appellee’s damage began suddenly in 1952, at least twenty years after the fill was in place, eighteen years after the house was built and fifteen years after the flood, gives persuasive force to his argument as to why his house subsided. Furthermore, one of Metropolitan’s witnesses, a civil engineer, indicated that any sinking which might occur to filled ground would become manifest within a reasonable time after the fill was made. Appellee asserts this evidence affords additional proof that the deteriorated condition of the sewer was the prime factor in causing the damage to his house. On this point we quote the following testimony of this witness:

“Q. Can you tell this jury, can you give any other explanation of the settling of this property, other than the defective sewer?
“A. Not if you rule out settlement in general, no sir.
“Q. You’ve already ruled out settlement, I believe, when you say that if this property remained stable from 1934 until 1946, that the settling would not have produced the damage, didn’t you?
“A. If the fill was stable for a period of twelve to fifteen years, then I would say that it would not settle in the future.
“Q. Would not the sewer’s condition then be the only explanation?
“A. That I would have no way of saying.
“Q. Could you suggest to this jury what other condition could possibly have produced this damage?
“A. No, sir, not if you rule out — rule out settlement.”

We conclude the jury had substantial evidence upon which to find that Metropolitan’s failure to properly maintain the sewer involved in this case produced the damage to appellee’s residence.

Metropolitan next asserts the trial judge erred in overruling its motion for a directed verdict for the reason that this action was essentially one based upon negligence and that, since Metropolitan has been held to be a governmental functionary, Gnau v. Louisville and Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754, it is protected from liability for its torts by the doctrine of immunity. This defense is now unavailing because this doctrine was abolished in Kentucky, insofar as it attaches to a public agency such as appellant, by the recent case of Haney v. City of Lexington, Ky., 386 S.W.2d 738.

As it was stipulated in this case that the liability of Metropolitan could only be on implied contract created by statute (KRS 76.070(1)), Metropolitan insists it could not be held answerable for damage resulting from a breach of such an agreement, unless there was some overt act of negligence committed by it in repairing or reconstructing the sewer. Stated differently, Metropolitan maintains that, since there is no clause or condition in the easement contract requiring it to keep the sewer in good repair, it should not be adjudged guilty of wrongdoing for its failure to do so. This argument is untenable.

By reason of the language in the easement contract we are of the opinion a right of recovery existed for acts of omission as well as acts of commission upon the part of Metropolitan. The easement contract states that the sewer should be placed at a depth of not less than seven feet and the land used should not occupy a larger width than twelve feet. A right of ingress and egress at all times was reserved to repair or reconstruct the sewer. It also states: “Nothing herein contained shall operate to prevent or in any way interfere with the full use, occupation and enjoyment by first parties (the Simons), their heirs or grantees, of the surface of the property herein described and the subsurface not included in the easement specifically granted.”

After providing how the sewer should be located, the easement contract states: “* * * that no damage shall be done by second party (Commissioners of Sewerage) or its successors in the right hereby granted, to improvements which may be made on or over the surface of the premises herein described or the subsurface not included in the easement specifically granted.”

Thus it was contemplated that, after the sewer was installed, improvements of the type subsequently erected might be located on the easement over it. Therefore, how could the full use, occupation and enjoyment of any improvements so located be maintained if the grantee under the easement thereafter allowed the sewer to fall into disrepair so that injury resulted to such improvements ? It would be meaningless to say that the property owner might construct a residence over the sewer and feel secure to live in it but that, if the residence were damaged by neglect on the part of the one in control of the sewer, the property owner would be without a remedy. More than that, it appears to us a positive responsibility was imposed upon Metropolitan under the easement grant to see “that no damage should be done to improvements which may be made on or over the surface” of the easement. Under this clause, it would be under a duty to act to forestall an injury to any improvement built over the sewer.

Metropolitan maintains the trial court committed error in instructing the jury in giving numerical paragraph 2. This instruction in brief told the jury to award ap-pellee such damage as would compensate him under the evidence for the depreciation, if any, in the market value of his house and lot, which directly resulted from the use of his ground by appellant in the •operation and maintenance of the sewer. It is Metropolitan’s view that the damage ■should have been limited to the difference between the market value of the property in good condition at the time of the injury and the market value of the property at the time of trial.

However, the appraisal witnesses for both Metropolitan and appellee testified that the damage which could be attributed to the •complained of condition of the house was the difference between the value of the property at the time of the trial, if it were in good condition, and the value of it in its damaged condition.

We believe the instruction adequately submitted to the jury the damage issue raised in this case, namely, the amount, if any, appellee’s property was reduced in market value as a direct consequence of Metropolitan’s violation of appel-lee’s rights contained in the easement contract. See Fidelity Trust Company v. Shelhyville Water and Light Company, 33 Ky. Law Rep. 202, 110 S.W. 239.

Metropolitan contends that the $13,000 verdict is excessive. We do not agree. The amount awarded is supported by competent evidence.

Although Metropolitan contends the trial judge erred in permitting counsel for appellee to make prejudicial and improper statements in his closing argument to the jury, we need not consider the merits of this contention since Metropolitan requested neither an admonition to, nor a discharge of, the jury, Meglemry v. Brunner, Ky., 344 S.W.2d 808, and received a favorable ruling on such objections as were made. See McCoy v. Carter, Ky., 323 S.W.2d 210.

It is urged that, when the trial judge sustained appellee’s motion to permit the jury to view the premises, reversible error was committed in confining the inspection to appellee’s property because this had the effect of forcing the jury to disregard Metropolitan’s evidence relating to alleged subsidence in other areas located away from the sewer. KRS 29.301 provides in part:

“Whenever, in the opinion of the court, it is proper for the jury to have a view of real property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. * * * ”

The trial judge determined that it would be impractical and beyond the purview of this statute to permit the jury to view other property merely because it was mentioned in the witnesses’ testimony. Certainly this was a reasonable exercise of the discretion given the trial judge.

Wherefore, the judgment is affirmed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Woodrow ARNETT and Lula Arnett, his wife, et al., Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Jarvis Allen, Pikeville, for appellant.
    Marcus Mann, Earl R. Cooper, Salyers-ville, C. D. Carpenter, Stanton, for appel-lees.
   DAVIS, Commissioner.

The appellees obtained judgment in the sum of $18,000 in this highway condemnation suit. The appellant Department of Highways seeks to reverse that award on the following claims of error: (1) It was error to permit valuation witnesses for ap-pellees to express value opinions absent a showing of their qualifications to do so; (2) it was error to admit in evidence certain color photographs; (3) the verdict is palpably excessive and is not supported by competent and relevant evidence of probative value.

The acquisition of right-of-way involved here is for construction of a portion of the Mountain Parkway, sometimes referred to as the Eastern Kentucky Toll Road. The appellees owned a rectangular parcel of land, situated about 1.3 miles south of the courthouse at Salyersville. Prior to the taking, the tract consisted of about 5.9 acres, according to evidence for appellant. (Appellee Woodrow Arnett expressed the opinion that the tract contained 6(4 acres.) The property had frontage on existing Kentucky Highway No. 7 of about 200 feet (a lot fronting on Highway No. 7 had been excepted from the appellees’ boundary, so that the average width of appellees’ tract was about 300 feet except for the lot carved from the northeastern corner). From Highway No. 7 the original tract extended about 960 feet hack to the Licking River.

The improvements on the tract consisted of a concrete block residence in which are four rooms and a bath on the first floor and three rooms on the second floor. There is a concrete block porch attached to a breezeway leading to a private garage. Also located on the property is a corn crib. None of these improvements was taken. Since the taking appellees have erected a barn on the remaining land.

The right-of-way acquired consists of a strip of land containing 2.14 acres, which traverses the original boundaries in such manner as to leave a landlocked tract of 2.73 acres adjacent to the river on the back of the original tract. The net result is to leave a small irregularly shaped tract of 0.72 acres on which the improvements are situated. This remaining tract has frontage on Kentucky Highway No. 7 for about 68 feet. The new highway lies between the 0.72-acre tract and the severed tract of 2.73 acres, so that no access will exist between the tracts, nor will appellees have any highway access to the severed tract of 2.73 acres.

There will he a ramp on the acquired right-of-way; the edge of the travelled portion of the one-way ramp will be about 42 feet from the corner of the residence, but the right-of-way boundary line will extend within ten feet of the same corner of the house. Kentucky Highway No. 7 (which is not being changed) is about 35 feet from the residence already. Prior to the taking the elevation of the residence was, and it still is, somewhat lower than Highway No. 7.

Appellee Woodrow Arnett, who is the County Court Clerk of Magoffin County, stated that a sewer line which had served, his residence before the taking had been clogged by reason of the taking, and that he will be required to take steps to correct this situation. He agreed that there is some periodic flooding of the rear portion of the original tract, but said that at the highest flood stage. the water lacked 300 feet of reaching to his residence. Appellee Arnett gave details of four apple trees, a pear tree, two grape vines and a locust tree taken.

The disparity in the testimony is shown by the following schedule of the appraisal evidence:

Appellant’s Witnesses
BEFORE VALUE AFTER VALUE DIFFERENCE
$13,600 $ 4,100 o O 1-0 oC 69-
$13,000 $ 4,500 o o to co -69-
Appellees’ Witnesses
$26,000
$26,000 $6,000 $20,000
$25,000 $6,000 $19,000
$25,000 $7,000 $18,000

Appellee Arnett testified that he had purchased the property, including its improvements, in 1955 for $9500; he estimated that he had made an outlay of about $4000 on the residence since he purchased it. (It is significant that Mr. Arnett did not undertake to relate that estimated $4000 improvement account to its actual enhancement in market value.) Having thus outlined an original cost of $9500, supplemented by $4000 so expended, Mr. Arnett justified his before value figure of $26,000 by his stated opinion that market values in the area had doubled since his 1955 purchase.

The chief factor ascribed by Mr. Arnett to his depressed after value of his property was his belief that he would need to raise the elevation of his residence. This will be required, he said, because the elevation of the ramp will be above the elevation of his home, and the noise of traffic on the ramp will be so intolerable as to require such remedial raising of the elevation of the house.

Mr. Arnett, and the other two valuation witnesses who testified in his behalf, sought to justify their before values by use of other sales considered comparable to the taken property. The difficulty is that the other sales upon which they relied were specific sales of building lots, and in at least one instance one of the witnesses for appellees was permitted to use as a “comparable” sale a lot acquired by the Department of Highways for this same right-of-way. When these witnesses were confronted, on cross-examination, with incidents of other sales (e. g., a 1960 sale of 60 acres, including a residence and barn, at $13,000, and a sale of four acres of bottom land with a residence for $11,000) they expressed some thought that appellees’ property had greater value than the cited sales, but relied chiefly on their own “comparables” of building sites. The witnesses demonstrated themselves to be “qualified” to express opinions of value in the area.

Under all the circumstances of this case, we do not believe it was error for the trial court to refuse to strike the total testimony of these witnesses. Their evidence had some probative value. Cf. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, 477. Under the rule enunciated in the Tyree case, since the evidence of these witnesses had some probative value, it was proper to overrule appellant’s motion to strike their entire evidence.

But here, as in the Tyree case, there is a material question whether the quantum of probative value deducible from this evidence is adequate to support the verdict. We are impelled to the conclusion that the verdict of $18,000, when considered in light of the entire record, is so palpably excessive as to shock the conscience at first blush. Thus, it appears that the jury below accorded more weight and value to the testimony of the witnesses for the appellees than its maximum probative value warranted; under these circumstances it is our responsibility to set aside the verdict. See Com., Dept. of Highways v. Lyons, Ky., 364 S.W.2d 336; Com., Dept. of Highways v. Williams, Ky., 383 S.W.2d 687; Com., Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922.

It will be recalled that the actual taking embraced 2.14 acres, and the landlocked area contains 2.73 acres. Thus, even assuming the landlocked 2.73 acres as utterly without value, appellees lose 4.87 acres of naked land. If this is rounded to five acres and ascribed a value of $2000 per acre (which is at a maximum even for town lot purposes, according to the evidence) the total award for land taken could be only $10,000. Then it would be necessary to conclude that the value of the 0.72 acres with all the improvements has diminished in value by $8000 in order to sustain the verdict. In addition to all this, it is necessary to conclude that the original investment of $9500 has nearly doubled, and that the approximately $4000 spent for improvement of the residence was all reflected in increased market value. Then, it would be required that the proximity of the ramp trafile (42 feet) be considered so depressing, along with the sewer line impairment, as to reduce the market value of the 0.72 acres and improvements by nearly 50%. We find this incredible.

What we have said disposes of points one and three urged by the appellant. We advert briefly to the second point having to do with the color photographs. The basis of the complaint against these pictures is that they are said to present a distorted view. However, there is no substantial showing that this is the case. The admission of photographs in evidence, so long as they may be said to fairly depict the matter sought to be portrayed, is too well established to admit of debate now. In the absence of a showing that the color scenes are inaccurate or misleading, we conclude there is no merit in the contention of the appellant that they should have been excluded from the evidence. See Com., Dept. of Highways v. Williams, Ky., 317 S.W.2d 482.

The judgment is reversed for new trial and proceedings consistent with this opinion.

HILL, J., not sitting.


author: WILLIAMS, Judge. MOREMEN, Chief Justice,

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Andrew YORK et al., Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Dept, of Highways, Somerset, for appellant.
    C. Homer Neikirk, Somerset, for appel-lees.
   WILLIAMS, Judge.

This highway condemnation proceeding originated in Pulaski County and involves the reconstruction and relocation of a portion of US 27. The judgment in the county court awarding $9,000 compensation for the .83 acre taken was appealed to the Pulaski Circuit Court. A jury in that court awarded a verdict of $20,000. From a judgment taken upon that verdict this appeal is brought.

Prior to this condemnation proceeding the appellees owned a 4-acre tract located on US 27 south of Somerset and in the general vicinity of Cumberland Lake. In 1950, a motel, containing eight units and an office, was constructed on this property. Two gravel entrances from the highway met in front of the motel building, providing a semicircular drive.

The land acquired by the Commonwealth was a strip 110 feet wide and 314 feet long, located behind the motel. The lateral lines and lateral field of a septic tank which served the motel were installed in the area taken by the Commonwealth and, as a consequence, were destroyed. The motel building now rests on a tract of 1.48 acres between the new road and the old road which, incidentally, has been kept open for public use and is maintained by the highway department. On the opposite side of the new road the appellees still have 1.69 acres. Access to both tracts from the new road is available.

At the trial the witnesses for the Commonwealth testified the difference between the before and after value was from $5,300 to $5,790. The witnesses for the landowners testified the difference between the before and after value was from $24,000 to $35,-000. The Commonwealth insists that the before value of at least two of the landowners’ principal witnesses was improperly founded and the testimony thereon should have been stricken.

The landowners’ first witness, Ambrose Dudley, qualified as an expert and testified that the value of the property before the taking was $48,000. One factor which he used to determine that figure was income which has been declared to be improper, especially where the income is derived mainly from the skill of the operator rather than from the productivity of the property. See Commonwealth, Department of Highways v. Smith, Ky., 358 S.W.2d 487 (1962) ; Commonwealth, Department of Highways v. Fister, Ky., 373 S.W.2d 720 (1963). The Court admonished the jury not to consider the income factor but refused to strike Mr. Dudley’s testimony.

Had the income factor been the only method used by the witness to determine the before value, his testimony should have been stricken. Mr. Dudley not only qualified as an expert witness, but he testified that he used comparable sales as another factor by which he determined the before value. Thus the witness did not determine his estimates solely on an erroneous factor but used competent ones as well. In West Kentucky Coal Co. v. Commonwealth, Ky., 368 S.W.2d 738 (1963), we stated that a witness’ estimate based solely or primarily on an improper factor is invalid and subject to a motion to strike. But, where other factors which are proper are employed, that rule does not necessarily follow.

Another witness for the landowners, Rue Wesley, revealed on cross-examination that he arrived at the before value by breaking down the component parts of the property. In other words, he put a value on the motel building, the land, the fence, the well, the electric sign, the landscaping, the septic system, and the driveway. That this was an improper method is clearly pointed out in Commonwealth, Dept. of Highways v. Stamper, Ky., 345 S.W.2d 640 (1961). But Mr. Wesley also relied on other factors to determine his before value estimate. That portion of his evidence which was based on proper factors was competent and was properly permitted to stand.

Mr. Wesley did get into an untenable po-. sition when he was unable to satisfactorily explain how he arrived at his after value estimate, but the jury was well aware of that shortcoming and certainly in position to give it due consideration.

On the whole, we are not convinced that the before value estimates of any of the witnesses were subject to strike. The after value evidence of Mr. Wesley was so thoroughly impeached by the Commonwealth that it would have availed it naught had such evidence been stricken.

The case must be reversed, however, because the verdict is not sufficiently supported by evidence of probative value. This comes above because of a situation which prevails only in condemnation proceedings. Regardless of how lucrative an individual’s business is, if it depends upon the flow of traffic by his property, he is entitled to no recovery for loss of business or value of his property when that traffic is diverted along another route. DeRossette v. Jefferson County, 288 Ky., 407, 156 S.W.2d 165 (1941); Commonwealth, Department of Highways v. Slusher, Ky., 371 S.W.2d 851 (1963). It is understandably difficult for appraisers and landowners to ignore that factor when determining the amount of compensation to which a landowner is entitled when a portion of his property is taken.

In this case a major factor in the determination of estimates of the after value by each of the landowners’ witnesses was the belief that the septic system was destroyed and the property could no longer be operated as a motel. But qualified proof was presented by the Commonwealth that sewerage facilities could be installed on the property remaining for a cost of not more than $4,700. For that amount then the motel could have been operated as it had been previously, except the rear of the motel would have fronted the relocated highway. The business of the motel possibly would be reduced because the traffic was diverted from the front to the rear of the motel, but, as heretofore stated, that is not a compensable item. Since the sewerage facility could have been rebuilt for $4,700, no greater amount could be attributed to diminution of value of the property because of destruction of the septic laterals. It follows there was no competent evidence to support the $20,000 verdict of the jury.

The Commonwealth asked for an instruction on diversion of traffic as an element of value. There was no evidence by any witness concerning that factor, but, unfortunately, the trial judge sent the jury to view the premises with the following admonition:

“Now Ladies and Gentlemen, I am going to let you go down and view the scene — now you can see it down there yourselves. You will implement what you see with the evidence, you are the sole judge of it, whatever you see down there, implemented with the other evidence is evidence, and can guide you at arriving at a verdict * * * ”

The jury was advised that what they saw was evidence equally as competent as what they had heard from the witnesses. So being, an instruction on diversion of traffic should have been given because it was obvious upon inspection that traffic had been diverted from the front to the rear of the motel.

An instruction requiring the landowner to use ordinary care to remedy or repair the sewerage system, although improper, was more favorable to the Commonwealth than to the landowner.

On a new trial the jury should be instructed to find the fair market value immediately before the taking, the fair market value after the taking, and the difference between the two. Commonwealth, Department of Highways v. Priest, Ky., 387 S.W.2d 302 (1965).

The judgment is reversed for a new trial.

MOREMEN, C. J., and MILLIKEN, J., dissenting.

MOREMEN, Chief Justice,

with whom MILLIKEN, Judge, joins (dissenting).

The authority of the Highway Department to condemn property is found in KRS 177.081 and subsequent sections. A portion of KRS 177.087 reads: “All questions of fact pertaining to the amount of compensation to the owner or owners shall be determined by a jury, which jury, on the application of either party, shall be sent by the court, in the charge of the sheriff, to view the land and material.” Most condemnation statutes contain such a provision.

Section 242 of the Constitution of Kentucky, which deals with the subject of the taking of private property for public use, provides in part, “the amount of such damages shall, in all cases, be determined by a jury, according to the course of the common law.” We have interpreted that section to mean that a jury must reach a unanimous verdict to have any effect, while in other cases, nine jurors may reach a proper verdict. Only in criminal cases and in condemnation cases are unanimous verdicts required. Evidently in our development of law these two important subjects have been considered to be peculiarly within the province of a jury. Primarily the exercise of the right of eminent domain is by or through the sovereignty of government in this country, so reliance has been had upon a jury to resist any misuse of that power. Other administrators of the law have been relegated to a secondary position.

The majority opinion implies a viewing of the premises by the jury serves an empty purpose, that they should be permitted to see only that which is explained by evidence given in court. In addition it seems to place a duty upon the trial court to warn them against the use of any facts which .they actually observed at the scene. We believe that the jury is sent to the premises to obtain information that has not been described in the evidence — that this is not a sight-seeing interlude where each juror must wear the restricting blinders of evi-dentiary legal rules.

It is suggested that the charge given by the trial court quoted in the opinion was substantially correct. He should not be charged with the unusual and perhaps impossible task of giving an instruction to negate any condition which under our rules has been held to be an improper factor in determining just compensation.

If it is true that a jury may look but cannot see, then we are forced to the recollection of the old quatrain which went something like this: “Mother, may I go out to swim? Yes, my darling daughter, hang your clothes on a hickory limb, but don’t go near the water.”

We therefore respectfully dissent.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Archer O. SMITH et al., Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Richard H. Peek, Paducah, for appellant.
    John C. Lovett, Lovett, Lovett & Lovett, Benton, for appellees.
   DAVIS, Commissioner.

This is a second appeal in a highway condemnation action. The judgment on the first trial was reversed by this court in Com., Dept. of Highways v. Smith, Ky., 358 S.W.2d 487. The facts involved are amply stated in the first opinion and will not be reiterated.

Upon the second trial the jury awarded $18,000 to the appellees. Appellant seeks to reverse the ensuing judgment and presents two basic arguments: (1) That the trial court abused its discretion in terminating appellant’s cross-examination of an adverse witness, and (2) prejudicially erroneous testimony was admitted in evidence.

We find there is no merit in either of these contentions and affirm the judgment. We shall discuss the contentions in reverse order to their presentation by appellant.

The thrust of appellant’s objections to testimony of certain witnesses for ap-pellees is that these witnesses based their valuations on loss of business. It was for error in that respect that the first judgment was reversed. 358 S.W.2d 487. However, we have reviewed the challenged evidence and do not find it to be susceptible of the construction placed upon it by the appellant.

It is true, that upon cross-examination, witnesses for the appellees stated that they had taken into account the fact that the restaurant business would be destroyed. However, when this evidence is read in its proper context, it is apparent that these witnesses were expressing their views that the highest and best use of the property before the taking was as a restaurant; by reason of the taking, it cannot be used as a restaurant; therefore its highest and best use is destroyed, and its after market value is greatly reduced. The evidence warranted the conclusion that the property may no longer be used for restaurant purposes because of the destruction of its septic tank sewerage disposal system. There was uncontradicted evidence from the health officer of Marshall County showing that the character of soil in the remaining land is such that it will not function as a drainage area for the sewerage.

Even the witnesses for the appellant expressed opinions that the difference in market value would equal $12,000 to $12,595 if adequate sewer drainage field could not be had. The witnesses for the appellees expressed their opinions that the difference in before and after values would range from $24,000 to $28,000. The jury’s verdict approximately “splits the difference.” Recognizing, as do the parties, that loss of business is not a proper matter for evidence, we hold that the evidence complained of here did not address itself to loss of business, but to destruction of availability for the very business admitted to be the highest and best for which the property had been adaptable.

Counsel for appellant repeatedly sought to require one of appellees’ witnesses to admit on cross-examination that the witness had considered loss of business in his valuation testimony. After several interchanges between counsel and the witness, in some of which the trial court participated, and after it became apparent that no further useful purpose would be served by continuing the cross-examination, the trial court did terminate the right of appellant’s counsel to continue further cross-examination of the witness. Moreover, when ap-pellees’ counsel interrogated this same witness on re-direct examination, the trial court declined to permit appellant’s counsel to cross-examine touching any of the re-direct examination.

The parties agree that the right of cross-examination is a substantial and vital one, and that prejudicial error may be committed if a court unwarrantedly prohibits or limits it. Cumberland R. Co. v. Girdner, 174 Ky. 761, 192 S.W. 873. It is also recognized, however, that the trial court is vested with a sound judicial discretion as to the scope and duration of cross-examination. Were this not so, any trial could be rendered a farce and mockery; witnesses could be insulted and threatened; juries would become exhausted and exasperated; justice could be frustrated and thwarted.

Numerous decisions of this court are collated in the notes to former Civil Code of Practice § 593. Although that Civil Code Section is no longer extant, the rationale of the cases dealing with it remains pertinent. Repetitious questioning may be halted within the sound discretion of the court. Murphy’s Ex’r v. Hoagland, 32 Ky.Law Rep. 839, 107 S.W. 303; 19 Ky. Digest, Part 2, Witnesses, 282½. See also 58 Am.Jur. Witnesses, § 621, pp. 343-344, wherein it is said:

“It has repeatedly been declared that the extent of cross-examination with respect to an appropriate subject of inquiry rests in the discretion of the trial court, and it is only in cases of clear abuse of such discretion, resulting in manifest prejudice to the complaining party, that a reviewing court will interfere. This rule applies in both civil and criminal cases * *

We accept the quoted text as sound; it comports with CR 61.01 in directing that harmless error be disregarded. In the case at bar we are not able to perceive that any prejudice befell appellant by reason of the trial court’s actions. It is manifest from the record that further questioning of the witness could not have altered the impact of the evidence given by the witness. Under these conditions, we will not disturb the action of the trial court.

As to the refusal to permit cross-examination anent the evidence presented on re-direct we need say only that the matter touched upon in the short re-direct had already been fully covered in direct and cross-examination. There is no showing of prejudice to appellant’s cause; the contention is without merit.

The judgment is affirmed.