author: CLEMENS, Commissioner.

text:
    Chester G. LIEBRUM, Employee, Plaintiff-Respondent, v. LACLEDE GAS COMPANY, Employer, Defendant-Appellant.
    No. 32708.
    St. Louis Court of Appeals. Missouri.
    July 18, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Sept. 12, 1967.
    Application to Transfer Denied Nov. 13, 1967.

      Joseph H. Mueller, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.
    Mantia, Madigan & Noble, by J. Martin Hadican, St. Louis, for respondent.
   CLEMENS, Commissioner.

The Industrial Commission awarded plaintiff $6,402.50 for disability arising from a heart ailment that occurred upon inhaling ammonia fumes while he was servicing air conditioners. On the defendant’s appeal, the circuit court affirmed plaintiff’s award. Defendant again appeals. The main issue is whether the plaintiff’s disabling heart disease was the result of either an accident or an occupational disease.

The evidence came from claimant, 55-year-old Chester G. Liebrum, a 30-year employee of defendant; Dr. James W. Fletes, his physician; and Dr. Charles W. Miller, the defendant’s medical examiner. We summarize their testimony, in a light consistent with the commission’s award in favor of claimant.

Chester Liebrum testified: During the spring and summer of 1962 he worked on industrial heating equipment and home air-conditioners. He spent about a third of his time servicing air conditioners containing ammonia gas. This service involved the “purging” of pipes containing ammonia and the repairing of leaks, i. e., leaking ammonia fumes. Mr. Liebrum said that while working on these gas air-conditioners he would “cut them out” and a “big cloud of fumes would come out”; he would have to run away from the cloud of gas to get some air. He would then “cough and spit up the stuff” and get his breath. After a short interval he would go to work again. These exposures to the ammonia gas fumes irritated his eyes, nose and throat and caused shortness of breath, coughing seizures and chest pains. He said the chest pains scared him because it “felt like I was having a heart attack.”

On cross-examination Mr. Liebrum said he had worked on twelve gas air-conditioners during the spring and summer of 1962; that while working on a “leaker” he sometimes came in contact with ammonia fumes “maybe five or six, maybe ten times”; that he got chest pains only when working on gas units that were leaking ammonia fumes; that he first noticed the chest pains in early summer but they started to increase in September.

In the first part of December 1962 Mr. Liebrum went to the company nurse complaining of a headache, a cold and chest pains; he told her that he had been exposed to ammonia fumes the past summer. Later, on another visit, Mr. Liebrum told-the nurse he still had chest pains and was going to a doctor “if they don’t go away.” On December 14 Mr. Liebrum went to his wife’s doctor, Dr. James W. Fletes. He told the doctor about his cold and chest pains — how they would get worse when he went up and down steps — and that he thought he was going to have a heart attack.

In sum, Dr. Fletes said he believed Mr. Liebrum was one-third disabled from his work by sclerotic heart disease, aggravated by a series of exposures to ammonia fumes that brought on anginal pains and “cardiac neurosis.” Dr. Fletes’ first examination was at his office in December 1962, after Mr. Liebrum’s cold and the series of exposures to ammonia. Mr. Liebrum was “overly anxious” and complained of chest pains on. effort or emotional stress. To Dr. Fletes, Mr. Liebrum’s description of these pains indicated angina pectoris: sudden pain, breathlessness and apprehension brought on by suffocation of the heart muscle due to inadequate blood supply. These pains, Mr. Liebrum told Dr. Fletes, had first come on after exposures to ammonia fumes, and subsided after he got away from the ammonia and rested. Electrocardiogram examination showed a contraction of the arteries that nourish the heart muscle, which had been damaged by lack of adequate blood supply. Dr. Fletes sent Mr. Liebrum to the hospital for further examination and treatment.

At the hospital, X rays and another electrocardiogram showed an enlarged heart and a narrowing of the blood vessels that nourish the' heart muscle. By then Mr. Liebrum was developing a cardiac neurosis. Dr. Fletes explained this, saying that the fear of dying often comes upon heart patients; it is an “emotional fear response to physical symptoms.” This cardiac neurosis is aggravated by physical or emotional stress.

After Mr. Liebrum’s four days in the hospital, Dr. Fletes prescribed prolonged rest, diathermy, nitroglycerine to dilate the cardiac vessels, digitalis to stimulate the heart, B-12 injections for the nervous system — and he “bombarded Mr. Liebrum with reassurance” to help relieve the cardiac neurosis. Dr. Fletes kept Mr. Lie-brum off work for about a year and a half, and then let him return to do light clerical work for the defendant. Just a week before the hearing Mr. Liebrum had heard a rumor he was being transferred from clerical to physical labor, and he came to Dr. Fletes’ office “in panic,” flushed and complaining of heart pains. Examination showed a loss of heart beat rhythm, a normal reaction of a person with cardiac neurosis.

At the hearing, almost two years after his first examination of Mr. Liebrum, Dr. Fletes diagnosed his condition as one-third disabled, ten per cent of the disability being due to coronary sclerotic heart disease and ninety per cent due to cardiac neurosis. In response to hypothetical questions, Dr. Fletes gave his opinion that before Mr. Liebrum’s first acute symptoms upon exposure to ammonia fumes he had been developing a progressive hardening or narrowing of the coronary blood vessels that nourish the heart. Dr. Fletes said that a coronary sclerotic heart condition is gradually progressive with age. He said Mr. Liebrum had an existing coronary sclerotic heart disease but it was sub-clinical — without symptoms — before inhaling ammonia fumes, which then brought on the anginal pains. This condition was not enough to necessarily bring on Mr. Liebrum’s anginal heart pains, but in his condition oxygen supply was critical and each exposure to ammonia fumes cut off this vital oxygen supply enough to cause “precardial pain or distress.” It was Dr. Fletes’ opinion that “the coronary heart condition was accelerated by the shock to his heart caused by the inhalation of the ammonia fumes,” that this . in turn was aggravated by Mr. Liebrum’s emotional reaction to his physical symptoms, and that the described circumstances were “the competent producing cause of his cardiac neurosis.”

As said, the defendant produced Dr. Charles W. Miller, who had examined Mr. Liebrum. He diagnosed his condition as “coronary sclerosis manifested by anginal seizures,” and said that persons in this condition “regularly develop a severe state of anxiety or neurosis.” Dr. Miller gave his opinion that there is no relationship between inhaling ammonia fumes and heart disease.

On this evidence the referee found as facts the exposure to ammonia fumes, the anginal condition, and the cardiac neurosis. He did not, however, find a causal connection between inhalation of the ammonia fumes and Mr. Liebrum’s anginal condition. The Industrial Commission found otherwise:

“That while there was no direct causal connection between the hereinabove mentioned accidents and exposures and the pre-existing heart condition of claimant (arteriosclerosis with angina pectoris heart disease) when isolated and considered apart and exclusive of the subject neurosis, the accidents and exposures hereinabove mentioned, together with the neurosis directly caused thereby, aggravated the pre-existing heart condition of claimant contributing to the disability suffered; * *

The commission also found that Mr. Lie-brum’s “accident or occupational disease” arose out of and in the course of his employment. We deal with these alternate findings in turn.

We must reject the commission’s finding that Mr. Liebrum’s acts of exposing himself to ammonia were accidents. These acts were intentional and did not meet the statutory requirement of § 287.-020, V.A.M.S., defining “accident,” because they were not unexpected or unforeseen events. The commission found Mr. Lie-brum’s acts were “unexpected and unforeseen as to the dangerous degree, extent and result thereof.” True, but that will not support a recovery for statutory accident, because it is the event — not just the result — that must be unexpected and unforeseen. Thus, where a deliberate act or series of acts causes an unexpected physical injury, as here, there is no com-pensable accident. See Tines v. Brown Shoe Co., Mo.App., 290 S.W.2d 200 [1-3], and the oft-cited case of State ex rel. Hussman-Ligonier Co. v. Hughes, 348 Mo. 319, 153 S.W.2d 40 [4]. From this conclusion that there was no accident, we turn to the commission’s finding that Mr. Liebrum suffered an occupational disease.

In determining the validity of this finding of occupational disease, we are not confined to the former judicial interpretations of that term; instead, we look to the statutory definition enacted in 1959, now § 287.067, V.A.M.S. Prior cases (see 29A Mo.Digest, Workmen’s Compensation, held that the necessary elements of an occupational disease were that the disease be the natural result of the employment, that it be a disease peculiar to the employment, and that there be a known relationship between the disease and the employment. By paragraph 1 of § 287.067, V.A.M.S., enacted in 1959, the legislature defined occupational disease. We quote that statute, numbering the sentences serially and emphasizing the words that reflect the same necessary elements of an occupational disease that existed before its enactment:

“[1] In this chapter the term ‘occupational disease’ is hereby defined to mean a disease arising out of and in the course of the employment. [2] Ordinary disease of life to which the general public is exposed outside of the employment shall not be compensable, except where the said diseases follow as an incident of an occupational disease as defined in this section. [3] A disease shall be deemed to arise out of the employment only if there is apparent to the rational mind upon consideration of all the circumstances a direct causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause, and which does not come from a hazard to which workmen would have been equally exposed outside of the employment. [4] The disease must be incidental to the character of the business and not independent of the relation of employer and employee. [5] The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.”

Thus, the legislature has not thrown open the door to provide compensation merely because a workman’s disease is somehow affected by or arises during his employment. Essentially, the statute defining occupational disease is declaratory of the necessary elements that courts formerly prescribed by judicial interpretation.

There are two grounds on which we conclude that the commission erred in finding an occupational disease, as that term is defined by the statute. First, by inescapable inference heart disease is excluded by the statute. Second, the heart disease did not arise out of Mr. Liebrum’s employment.

By its second sentence § 287.067, V.A.M.S., excludes “ordinary diseases of life to which the general public is exposed.” By its fourth sentence the statute requires that “the disease must be incidental to the character of the business.” It is common knowledge that sclerotic heart disease is an ordinary disease, afflicting people in all walks of life, particularly in middle and advanced age. And there was no evidence — and probably could be none — to show that sclerotic heart disease was incidental to the character of the defendant’s business. Although the Workmen’s Compensation Act is to be liberally interpreted, we cannot read into it a provision that all diseases which are incurred during — or worsened by — an employment are occupational diseases.

Next, we note that the first sentence of § 287.067, V.A.M.S., defines an occupational disease as one arising out of the employment. The third sentence requires that there be a direct causal connection between the working conditions and the disease. Dr. Fletes testified that Mr. Lie-brum’s coronary sclerotic heart disease was progressive and existed before his exposure to the ammonia fumes. The commission found a “pre-existing heart condition of claimant (arteriosclerosis with angina pectoris heart disease) * * So, Mr. Liebrum’s heart disease arose at some unspecified prior time, and its origin was unrelated to the conditions of his employment. It follows that his disease did not arise out of his employment.

These conclusions, that Mr. Lie-brum’s heart ailment was an ordinary disease and that it was not causally connected with his employment, leave only one issue: the commission’s finding that the exposure to ammonia fumes “aggravated the pre-ex-isting heart condition of claimant contributing to the disability suffered.” Considering our rulings that at the time of exposure to ammonia fumes Mr. Liebrum did not have an occupational disease, but only an ordinary disease, the commission’s finding of aggravation poses this question: Where a workman is suffering from an ordinary disease and that disease is aggravated by non-accidental conditions of his work, is the aggravated physical condition an occupational disease? Nothing in the statute declares it so. Logic rejects the conclusion. Almost any working condition can adversely affect an ordinary illness. A workman’s pre-existing tuberculosis, pneumonia or even a common cold could well be aggravated into disability by the conditions of his work. The ensuing illness would not thereby become an occupational disease. Were it otherwise, a workman could convert any ordinary progressive disease into an occupational disease merely by going to work, instead of visiting his doctor or staying home. We hold that Mr. Liebrum’s pre-existing heart disease did not become an occupational disease merely by being aggravated by his working conditions.

We have considered that the claimant’s cardiac neurosis followed as the natural result of the aggravation of his preexisting heart condition. Disabling though it was, this neurosis was not an occupational disease. Both Dr. Fletes and Dr. Miller testified that persons afflicted with heart disease often suffer from neurosis, a nervous disorder manifested by anxiety. Thus, neurosis in itself is an ordinary disease to which the general public is exposed. By the last clause of the second sentence of § 287.067, V.A.M.S., such an ordinary disease is compensable only if it “follows as an incident of an occupational disease.” The anginal heart disease was not an occupational disease, so neither was the incidental cardiac neurosis.

Because § 287.067, V.A.M.S., has not been previously interpreted by our own courts, we have examined opinions of the courts of Indiana and Illinois, states that have occupational disease statutes virtually identical with our own: Burns’ Ind.Ann. St. § 40-2206, and Smith-Hurd’s Ill.Ann.St. Ch. 48, § 172.36(d). We summarize four of those opinions, not because they are controlling here but because they relate to our own analysis of § 287.067, V.A.M.S.

In the case of Star Publishing Co. v. Jackson, 115 Ind.App. 221, 58 N.E.2d 202 (banc), the claimant was a linotype operator, and after many years of work his left hand would cramp and draw up as he worked. Medical testimony was that the tendons, nerves and arteries of the claimant’s arm appeared normal but were affected by chronic fatigue. His doctor diagnosed the claimant’s condition as a neurosis resulting from this chronic fatigue. In denying recovery the court said this evidence showed that the chronic fatigue resulted from the claimant’s work, and that the neurosis resulted from the fatigue. The court held that the neurosis was a non-occupational disease and would be compensable only if it resulted from a preceding occupational disease. Relying, on the second sentence of the occupational disease statute (“Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, * * *”), the court ruled that the initial fatigue “is in its very nature common to nearly all employments and to countless other of the ordinary activities of life. * * * We therefore hold that chronic fatigue, if a disease at all, was not in this case shown to be an occupational disease as defined by law.”

By contrast, in Chevrolet Muncie Division of General Motors Corporation v. Hirst, 113 Ind.App. 181, 46 N.E.2d 281 (banc), recovery was granted for an occupational disease because the disease was caused initially by peculiar working conditions. In November 1936 claimant was a healthy man. He then began work in a department where he was exposed to chemical fumes. In early 1937 he began coughing violently and by December of 1937 he became disabled. (Another workman was affected in a like manner but to a lesser extent). These symptoms were caused by inflammation of the lungs and bronchial tubes, brought on by inhaling the chemical fumes. This physical debility then brought on bronchiectasis, an ordinary disease of life to which the general public is exposed. In affirming claimant’s award the court held (1) that the inflammation of the claimant’s lungs and bronchial tubes was an occupational disease arising out of his employment, and (2) that the bronchiecta-sis followed as an incident of the occupational disease.

In the case of Kniat v. Industrial Commission, 378 Ill. 210, 37 N.E.2d 810, the workman had first developed a chronic hernia because of heavy lifting over many years; he then had a fall which injured his side and produced an acute hernia; he died as a result of pneumonia following hernial surgery. In denying the claim the court construed the occupational disease statute, saying it is not sufficient for a claimant to show that the chronic hernia arose out of the employment, and adding: “He must also show that such hernia is not an ordinary disease of life to which the general public outside the employment is exposed, * * The court further said: “There is no doubt that hernia is an ordinary disease of life to which the general public is exposed. People in all walks of life have hernias, and the causes of them are so numerous that it cannot be said they are peculiar to any employment.”

Even more like our case is that of Stewart Warner Corp. v. Industrial Commission, 376 Ill. 141, 33 N.E.2d 196. There the employee tested refrigerators, going back and forth many times a day from a cold room to a hot room. In the cold room he was exposed to sulphur dioxide, which caused violent sneezing and coughing. Before this the employee was strong and well. About four months after he quit work he was found to have pulmonary tuberculosis. His doctors testified that claimant “had an old tuberculosis” which had not interfered with his work, but that the intermittent chillings of his body caused him to lose weight and reduced his resistance to germs; that an acute respiratory infection developed which activated the old tubercular process, and that “the working conditions thereby had a direct influence on his death.” The court applied its statutory definition of occupational disease, and in denying compensation said: “There are persons of all ages and in all walks of life who have tubercular bacilli in their bodies. There is no proof that the germ infection was a hazard of the work in which deceased was engaged. Proof that the hazards of the employment produced a weakened physical condition and a lowered resistance to germs does not establish that such a hazard was the direct cause of the tuberculosis. It is well known that there are many things that weaken the physical condition and lessen the resistance to germs which are not in any way related to an employment. Even though the temperature changed and the sulphur dioxide gas caused the change in the deceased’s physical condition, it does not follow from such proof that tuberculosis had its origin in the hazards of the employment and that it came from such hazard as a rational consequence as is required by the statute. It is a disease referred to in the statute as one of the ordinary diseases of life to which the general public is exposed outside of employment.” In that case the claimant’s strongest medical testimony was that “sulphur dioxide itself would not cause the tuberculosis but it would cause an activation; * * * there would be a gradual infection of the respiratory tract, causing an irritating condition which would help the germs in the lung tissue to become active.” The court said: “Such evidence merely shows conditions which will activate tubercle bacilli and cause tuberculosis. It does not show that he was poisoned or that he had an occupational disease.”

In summary, we hold that the commission erred in each of its alternate findings of accident and occupational disease. The claimant was not disabled by an accident, because his disability arose from his deliberate acts. Nor was the claimant disabled by an occupational disease, because his disease had a natural rather than an occupational origin.

The judgment affirming the award should be reversed, and the cause remanded with instructions to enter a new judgment reversing the award of the Industrial Commission.

PER CURIAM:

The foregoing opinion of CLEMENS, C, is adopted as the opinion of this court. Accordingly, the judgment affirming the award is reversed, and the cause is remanded with instructions to enter a new judgment reversing the award of the Industrial Commission.

ANDERSON, P. J., WOLFE, J., and SAMUEL E. SEMPLE, Special Judge, concur.


source: Caselaw Access Project

author: STEINFELD, Judge.

license: Public Domain

text:
    SERVICE LINES, INC., et al., Appellants, v. Thomas A. MITCHELL, Ancillary Administrator, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    April 28, 1967.
    Rehearing Denied Nov. 10, 1967.

      Frederick E. Nichols, Earle M. Nichols, Nichols & Nichols, Madisonville, for appellants.
    Maubert R Mills, Mills, Spain & Mitchell, Madisonville, Rogers, Howard, Redden & Mills, Birmingham, Ala., for appellees.
   STEINFELD, Judge.

This is an appeal from a judgment rendered in favor of the Ancillary Administrator of the estate of two infants who were killed when the disabled automobile in which they were passengers was struck from the rear by a tractor-trailer truck owned by the appellant, Service Lines, Inc., and driven by appellant, Leon Locke.

The collision occurred about 10 o’clock on the night of June 12, 1964, on U. S. Highway 41-A in Hopkins County about 13 miles west of Madisonville, Kentucky. This highway was one of the most heavily traveled in western Kentucky and was the main route from St. Louis, Missouri to Nashville, Tennessee. The collision occurred near the center of a stretch of road which was straight and level for almost .7 of a mile. The paved portion is about 18 feet wide and is divided into two driving lanes. There is conflicting testimony (which we will discuss later) relating to the condition, width and angle of the shoulders of the highway. It had rained a short time before the accident and a mist caused poor visibility.

The automobile belonged to, and was driven by, James L. Johnson. His wife and their three children were with him. They were traveling eastwardly and had entered a section of the highway, the grade of which is gradually downward, when the motor of the automobile began to operate improperly. Mr. Johnson adjusted various controls in an effort to cause the car to resume proper operation. These efforts continued for approximately .4 of a mile, when finally the car came to a complete stop in the east-bound traffic lane with its left wheels approximately 15 inches south of the center line of the road. Mrs. Johnson and the youngest of their three children were riding in the front seat with Mr. Johnson. Debra Jean and James Anthony, respectively ages seven and three, were in the rear seat.

Johnson and his wife immediately got out of the car. He raised the hood and with Mrs. Johnson holding a cigarette lighter to illuminate the motor, Mr. Johnson attempted to start the car. His efforts continued without success for about 15 minutes. They tried to obtain aid from passing motorists but none stopped. During all of this time, according to the testimony of Mr. and Mrs. Johnson, the parking lights on the automobile were lighted and clearly visible.

Leon Locke had been a driver for Service Lines, Inc. for almost 17 years. On his truck route between Nashville and St. Louis, going in both directions he had traversed the road at that point about six days per week for the previous 15 years. On this fatal night, between 10 and 15 minutes after the Johnson car stopped, he was driving the tractor-trailer on that part of the highway in an easterly direction in his usual and customary manner traveling about 40 miles per hour. He testified that there were a number of motor vehicles coming toward him and that each of them had bright burning headlights and that the headlights on his tractor were burning. He claims he did not see the disabled automobile parked on the highway until he was only approximately 50 to 75 feet from it. He blames his failure to see the Johnson car on the headlights which were coming toward him and which blinded him momentarily, but all had passed by the time Locke saw the Johnson car. He testified that he could not stop suddenly because the tractor-trailer would have “jack knifed” and turned over on the car. To avoid colliding with the Johnson car, he braked slightly and turned to the northern side of the highway and attempted to go around it. The tractor and the front part of the trailer cleared the automobile but the trailer at a point about 10 feet from its front end collided with the Johnson car dragging it 166 feet down the road. Debra Jean and James Anthony were killed instantly. Neither the infant on the front seat nor the parents who were out of the car were injured.

Immediately before the collision Mrs. Johnson, who was on the right side of the vehicle, started moving from the front toward the rear. Mr. Johnson saw the truck and realized that a collision was imminent, therefore, he made a dive for Mrs. Johnson and they both went out on the shoulder on the south side of the road and into the ditch.

There is some conflict in the testimony as to whether or not the Johnsons were residents of Indiana or Alabama, but it is agreed that they were non-residents of Kentucky. Thomas A. Mitchell made application to the County Court of Hopkins County, Kentucky, and by orders entered in that tribunal he was appointed as Ancillary Administrator of the estates of the two infants. Suit was brought in the name of the Ancillary Administrator for the two estates. After a lengthy trial the jury rendered a verdict in the amount of $50,000.00 for the estate of Debra Jean and a verdict for a like amount for the estate of James Anthony Johnson. Judgment was entered for those amounts against Locke and Service Lines, Inc. Both appeal. The appellants assign a number of alleged errors to support their claim that the jugment should not stand and that the two estates should have no recovery.

The first point asserted is that the appointment of the Ancillary Administrator is void because there is no primary administrator, and that he has no standing in court. Appellants also claim that by reason of the provisions of KRS 395.170 the estate of a non-resident may proceed only in an action brought by, and in the name of the executor or administrator appointed in the jurisdiction of the residence of the person whose estate is seeking the recovery.

The term “Ancillary Administrator” serves only to distinguish that representative from the primary administrator. 34 C.J.S. Executors and Administrators § 989, p. 1234. This court has approved the appointment of an Ancillary Administrator without the prior appointment and qualification of a primary administrator. Trotta’s Adm’r v. Johnson, 121 Ky. 827, 831, 90 S.W. 540; Stell v. Williams’ Adm’r, 233 Ky. 441, 26 S.W.2d 8. We see no reason to deviate from this rule which has been generally adopted. 21 Am.Jur. 853, section 857.

We find no merit in the contention that an action for wrongful death of a nonresident may proceed only in the name of the executor or a primary administrator under the provisions of KRS 395.170. The right of an Ancillary Administrator to sue is clear. Whisler v. Allen, Ky., 380 S.W.2d 70; Jewell Tea Company v. Walker’s Adm’r., 290 Ky. 328, 161 S.W.2d 66; Chesapeake & Ohio Railway Co. et al. v. Ryan’s Adm’r., 183 Ky. 428, 209 S.W. 538; Brown’s Adm’r v. Louisville and Nashville Railroad Co., 97 Ky. 228, 30 S.W. 639.

Secondly, Locke and his employer vigorously argue that Locke was guilty of no act of negligence and that the motion they made for a directed verdict at the close of evidence on behalf of the two estates was overruled erroneously. One of the facts in dispute is the speed of the truck. Locke testified that when he was blinded by the lights he took his foot off of the accelerator and the truck slowed down to at least 35 miles per hour. The only testimony of greater speed was from Johnson who said it was traveling 60 or 70 miles per hour; however, this evidence has little probative value for he was observing an oncoming vehicle in the nighttime with little opportunity to fairly judge its speed. Bowling Green-Hopkinsville Bus Co. v. Edwards, 248 Ky. 684, 59 S.W.2d 584; Chesapeake & O. Ry. Co. v. Prater’s Adm’x, 269 Ky. 174, 106 S.W.2d 625; Roberts v. General Industries, Inc., Ky., 320 S.W.2d 619. Locke stated that the Johnson car was from 50 to 70 feet ahead of him when he first saw it and he tried to maneuver the truck to the left to go around the car. The automobile was dragged 166 feet. Before coming to a stop the truck proceeded an additional 53 feet with the trailer sliding sideways and partly overturned for the last 30 feet. There was sufficient evidence to submit to the jury the question of whether Locke, when passing through the glare of blinding headlights was violating duties imposed on him. In Duncan v. Wiseman Baking Company, Inc. et al., Ky., 357 S.W.2d 694 we said:

“The modern rule, generally accepted, is that a motorist so blinded is not required .to stop instantly but his duty is determinable by the standard of ordinary care under the particular circumstances, although the rule is subject to a number of exceptions. A motorist is not entitled to proceed as if he could see ahead, but is required to take additional precautions for the safety of himself and others which are commensurate with the existing danger, such as slackening his speed and bringing his car under such control that he is able to stop it in time to avoid any discernible object in the road ahead or within such distance as he can at all times see what is ahead of him. 5 Am. Jur., Automobiles, §§ 332, 707, 1072 ; 60 C.J.S. Motor Vehicles, § 294; Blashfield, Cyclopedia of Automobile Law, § 744; Notes 22 A.L.R.2d 300 et seq.
“Our later decisions are, generally, to the same effect. City of Providence v. Young, 227 Ky. 690, 13 S.W.2d 1022; Commonwealth v. Daniel, 266 Ky. 285, 98 S.W.2d 897; Knight v. Silver Fleet Motor Express, 289 Ky. 661, 159 S.W.2d 1002; Wilson v. Dalton’s Adm’r, 311 Ky. 285, 223 S.W.2d 978; Harris v. Luster, Ky., 259 S.W.2d 489; Slusher v. Brown, Ky., 323 S.W.2d 870. Several of these cases and others are reviewed in Ashton v. Roop, Ky., 244 S.W.2d 727, and notice is taken of some inconsistencies. * * *
“It seems to us the instruction should have been that when (he) was blinded or his vision of the highway was obscured by the headlights of the Murray car, it was his duty to take such protective measures for his own safety as an ordinarily prudent driver would take under the same or similar circumstances. The jury may regard that precaution to have required sounding the horn or slackening speed or even stopping, according to the particular circumstances of a case, *

Also see Morrison v. Hibbard, Ky., 375 S.W.2d 685; Hisaw et al. v. Hendrix et al., 54 N.M. 119, 215 P.2d 598, 22 A.L.R.2d 285; Hughes v. Great American Indemn. Co. (CA 5th La.) 236 F.2d 71, cert den 352 U.S. 989, 77 S.Ct. 386, 1 L.Ed.2d 368; Stafford v. Freightways, Inc. (DC Mo) 117 F.Supp. 903; Shields v. Buffalo County, 161 Neb. 34, 71 N.W.2d 701; Badurina v. Bolen, 114 Ohio App. 478, 183 N.E.2d 241, 19 Ohio Ops.2d 469; Egan v. Boyce, 83 R.I. 178, 114 A.2d 402; Superior Steel Products Corp. v. Zbytoniewski, 270 Wis. 245, 70 N.W.2d 671.

There was conflicting evidence as to whether the rear lights were burning on the Johnson automobile and should have been seen by Locke. The question of the adequacy of the headlights on the truck was another issue. These matters were properly presented to the jury.

The third contention of appellants is that the parents of the Johnson children were contributorily negligent as a matter of law. KRS 411.130(2) (d) precludes negligent parents from obtaining a recovery for a tortious act to the child. Emerine v. Ford, Ky., 254 S.W.2d 938; Bays v. Cox’ Adm’r, 312 Ky. 827, 229 S.W.2d 737; Caldwell v. Jarvis, 299 Ky. 439, 185 S.W.2d 552. They predicate their argument of parental negligence on two theories — first that Johnson should have removed his disabled automobile from its position on the highway to a place where as much of the car as was reasonably possible would be off of the paved portion of the road; secondly, that the three children should have been taken out of the car.

The paved side of the road on which the Johnson car was traveling was approximately nine feet in width, and the shoulder varied from four to six feet. At the place where the car stopped the evidence indicates that the shoulder had a width of four feet. There was a drainage ditch beyond the shoulder and then swampy land.

Johnson testified that as the automobile moved forward with the motor off he looked for a place to get off the road but saw none. After the car stopped he observed the shoulder and found that it was covered with grass and weeds averaging two feet in height. He admitted that he made no examination to determine whether or not, with reasonable safety, the car could have been moved on to that shoulder. Testimony of another witness showed that at least a portion of the shoulder of the road could have been used, and later was used for vehicles to move around the wreck.

KRS 189.450(1) requires that a vehicle not “be left standing upon the main traveled portion of the highway” with certain exceptions, one which is as follows:

“(a) A vehicle that has been disabled while on the main traveled portion of such a highway in such a manner and to such extent that it is impossible to avoid the occupation of the main traveled portion or impracticable to remove it from the highway until repairs have been made or sufficient help obtained for its removal * * *»

Appellants contend that Johnson violated the statute in that the vehicle he was driving and the surrounding circumstances did not bring it within the exception just quoted. We do not agree. The general rule is stated in 60 C.J.S. Motor Vehicles § 332, p. 775 as follows:

“ * * * it is generally the rule that where a vehicle becomes disabled to such an extent that it is impossible to avoid stopping and temporarily leaving it in an improper place, or where it is impossible or impracticable to move it to such a position on the highway as would be proper in a case of ordinary stopping or parking, it is not negligence or negligence per se to permit it to stand out toward the center of the highway, provided proper precautions, are taken in other respects, and the disablement did not occur as a result of the operator’s negligence.”

We have adopted that rule. American Fidelity and Casualty Co. v. Patterson, Ky., 243 S.W.2d 472; Branch v. Whitaker, Ky., 294 S.W.2d 948. In Banner Transfer Company v. Morse, Ky., 274 S.W.2d 380, we said:

“As we construe the statute, a disabled vehicle must be removed from the highway unless it is impracticable to do so. * * * It was for the jury to determine whether defendant’s driver was negligent in failing to remove, or attempting to remove, the truck from the highway.”

Appellants rely upon Mullins v. Bullens, Ky., 383 S.W.2d 130, but that case, is not comparable.. In Bullens the hood of the vehicle had come loose. The car was left standing in the traveled portion of the road while the occupants removed the hood and attempted to place it into the trunk when the accident occurred. That vehicle was not disabled. None of the other cases cited by appellant on this question causes us to believe that we should deviate from the rule above quoted from Banner Transfer Company v. Morse, supra.

We do not find that the failure of Johnson to move the disabled vehicle is negligence as a matter of law. Remmenga v. Selk, 150 Neb. 401, 34 N.W.2d 757.

Were Mr. and Mrs. Johnson as a matter of law, negligent in permitting the children to remain in the disabled automobile ? Appellants cite Acres v. Hall’s Adm’r, Ky., 253 S.W.2d 373, in support of their argument that they were. We find the circumstances in the Acres case to be entirely different, for in that instance there was no emergency. The parents selected a stopping place on a bridge and failed to properly supervise their four year old daughter. The Johnsons were confronted with two dangerous conditions. There was obvious danger in permitting the children to remain in the car which was parked in the nighttime on the paved portion of the highway. Obviously, it also was dangerous to remove three babies to a narrow shoulder of a road, grown up in weeds, and in close proximity to heavy traffic passing by at high speed. It is universally held that where a person is confronted with two dangerous conditions he is not required to select, in an emergency, the one which on mature reflection might appear to be the least dangerous. Agee v. Hammons, Ky., 335 S.W.2d 732, 735; Williams v. Ehman, Ky., 394 S.W.2d 905, 907. In Cyclopedia and Auto Law and Practice, (Blashfield) Volume III, page 388, section 2002 it is said:

“ * * * and the fact that, confronted with the peril created by the situation the course which he elects to pursue may not be the wisest in the light of cool deliberation does not render him negligent as a matter of law in choosing it.” Citing Brien v. Detroit United Ry. (DC Mich.) 247 F. 693; Grissom v. City of Seattle, 123 Wash. 131, 212 P. 264, but see Lawrence v. Fitchburg & L. St. Ry., 201 Mass. 489, 87 N.E. 898.

Such a situation existed in Flaherty v. Collins, 318 Mass. 153, 61 N.E.2d 12 in which there were two passengers in a burning taxicab. One jumped from it but the other remained until it came to a stop. The Massachusetts Court held that the passenger who jumped was not guilty of negligence, as á matter of law, but that the question of proper care was for the jury. The law in this state is the same.

Service Lines and Locke complain that the highway patrolman was permitted to testify that he observed, and that a photograph was admitted in evidence which showed that the left front parking light of the Johnson car was burning. He did not arrive at the scene of the accident until about 30 minutes after it occurred. The photograph was taken of the wrecked automobile before it was moved. We find no merit in the obj ection to the introduction of that testimony or the photograph. Young, Adm’r v. De Bord et al., Ky., 351 S.W.2d 502.

The officer was asked by the appellants to state whether in his opinion, from what he observed, if the Johnson car had been parked partially off the road and on the shoulder or at least half of it, there would have been a collision. It was proper for the court to refuse to permit the officer to express this opinion for this would invade the province of the jury. Dixie Ice Cream Co. v. Ravenna Grocery Co., 306 Ky. 182, 206 S.W.2d 824; Johannes v. Edward G. Becht L. Co. (Mo.) 274 S.W. 377. In Moore v. Norwood, 41 Cal.App.2d 359, 106 P.2d 939 it was said:

“In other words, whenever the question to be determined is the result of the common experience of all people of ordinary education, or such result is to be inferred from particular facts, such inference must be drawn by the jury and not by the witness.”

Also see 8 Am.Jur.2d 535, Section 983.

Other obj ections to the exclusion of testimony have been examined. It is our opinion that the rejection was proper.

The court clearly, carefully and properly instructed the jury of the duties of the driver of the truck with respect to its operation and the statutory requirements regarding headlights. Appellants complain that there was undue emphasis on some of these matters for they were not in issue. We find no merit in this contention (Sparks v. Doe, Ky., 379 S.W.2d 252) and no error in the instructions.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, OSBORNE, and PALMORE, JJ., concur.


author: OSBORNE, Judge.

text:
    Ellnor SEDLEY, Appellant, v. LOUISVILLE TRUST COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    May 26, 1967.
    As Modified on Denial of Rehearings Oct. 20, 1967.

      Wilbur Fields, Louisville, for appellant.
    William D. Lambert, M. Brooks Senn, B. L. Shamburger, William R. Mapother, Henry B. Mann, Garner M. Petrie, Squire R. Ogden, Homer A. Sobel, Louisville, for appellees.
   OSBORNE, Judge.

This is a consolidated appeal from the Jefferson Circuit Court. The appellee, Louisville Trust Company, brought the initial action to collect a promissory note in the amount of $70,000 against the makers, Joan E. Davis and Tyrus R. Davis.

In order to purchase a tract at 900 Alta Vista Drive in Louisville, Jefferson County, Kentucky, Mr. and Mrs. Davis had given the vendor of the property a promissory note in the amount of $70,000. This note was secured by a mortgage on the property. The note was assigned to the Louisville Trust Company by the vendors of the property. Citizens Fidelity Bank was named as a defendant in this action due to a recorded second mortgage it held on the property in question. Mrs. Elinor Sedley moved to intervene, claiming an interest in the property. It appears from the record that a series of promissory notes was executed by Mr. Davis which gave rise to Mrs. Sedley’s cause of action.

Appellant is seeking a reversal of three judgments of the Jefferson Circuit Court. On November 6, 1965, judgment was entered in favor of the Louisville Trust Company on the Davis’ note and mortgage reciting that the Louisville Trust Company claim was superior to any and all other claims. The court ordered the property sold at judicial sale.

On January 5, 1966, before the property was sold, another judgment was entered. This judgment was in favor of the Citizens Fidelity Bank. It adjudged that Citizens Fidelity had a lien which was superior to any and all liens and encumbrances except the lien of the Louisville Trust Company. The sale was held and the purchaser was Pruitt Built Homes. The purchase price was $84,000. The commissioners appointed by the court had appraised the property at $125,000.

Mrs. Sedley filed objections to the report of sale. Her grounds were that a cash sale of real property was contrary to KRS 426.700 and the Jefferson Circuit Court Rule 909; that the appraisal of $125,000 was unreasonable and arbitrary, and that the assessed value of the property was $158,600. Mrs. Sedley’s objections were overruled. The court confirmed the sale and ordered the master commissioner to execute a deed to the purchaser. This judgment was entered on September 2, 1966.

We have examined the record with care and are of the opinion the alleged errors have become moot. The statement of appeal discloses that there has been no super-sedeas bond executed. CR 73.04 expressly provides for a supersedeas bond to stay the proceedings on a judgment.

The status of an unsuperseded judgment was before us in the case of Rose v. Cox, 297 Ky. 458, 179 S.W.2d 871, 155 A.L.R. 1246, wherein the question decided was whether the purchaser of real estate at a sale made pursuant to an unsuperseded judgment acquired title to the property, irrespective of the fact that subsequent to the sale and confirmation that judgment was appealed and reversed.

Appellant prays that we set aside the sale of the property on the ground that it is void.

The alleged grounds for reversal in the Rose case, supra, were that the sale was void and that the purchaser was a pendente lite purchaser. The court, in reviewing these errors, held that when a court has jurisdiction of the parties and the subject matter of the suit and has statutory authority to decree a sale, then a subsequent reversal of the judgment decreeing the sale is a mere declaration that the judgment is erroneous, but it is not void, citing Johnson et al. v. Carroll et al., 190 Ky. 689, 228 S.W. 412, and Covington Trust Co. of Covington v. Owens, 278 Ky. 695, 129 S.W.2d 186.

In the instant case appellee, Pruitt Built Homes, has taken its title from the master commissioner. Pruitt was not a party to this litigation prior to the judicial sale and was not a pendente lite purchaser. Ward v. Lockwood, 234 Ky. 160, 27 S.W.2d 692. We are of the opinion that the case of Rose v. Cox, supra, must control the disposition of this case. The fact that the judgment ordering the sale of the property was not superseded prevents us from granting her the relief to which she is allegedly entitled.

The judgment is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    Richard Royce SALYER, Appellant, v. Gloria H. BOOHER, Appellee.
    Court of Appeals of Kentucky.
    June 23, 1967.
    As Modified on Denial of Rehearing Nov. 3, 1967.
    J. Walter Clements, Louisville, for appellant.
    Joseph C. O’Bryan, Louisville, for ap-pellee.
   WADDILL, Commissioner.

Richard Salyer appeals from a judgment awarding Mrs. Gloria Booher $5,069 as damages she allegedly sustained as a result of a collision between their respective automobiles. Salyer contends that Mrs. Boo-her was negligent as a matter of law, jury instructions were prejudicially erroneous and the evidence does not support the award of damages.

At about 9:00 a. m., December 7, 1963, Salyer and Mrs. Booher were each driving their automobiles north on Minors Lane, a road in Jefferson County which is divided into one northbound and one southbound traffic lane. Mrs. Booher testified that she was proceeding at about 25 mph and was intending to turn left into Shuck Lane. When she was about 200 feet from the intersection of Shuck and Minors Lanes she saw Salyer’s automobile four to six car lengths behind her. She stated that she activated her mechanical signal to indicate a left turn and gradually applied her brakes preparatory to making her turn, after an approaching southbound vehicle had cleared the intersection. Salyer attempted to pass Mrs. Booher on her left side as she turned left into Shuck Lane. The right front of Salyer’s automobile struck the left rear of Mrs. Booher’s automobile knocking it off the road and over a bank. Mrs. Boo-her was tossed about inside her automobile and sustained numerous injuries.

Salyer contends that Mrs. Booher was negligent as a matter of law because she did not signal her left turn nor ascertain the position of his car before initiating her turn into Shuck Lane. If Mrs. Booher’s testimony is accepted it should have been apparent to Salyer for a distance of 200 feet that she would turn left into Shuck Lane as soon as the southbound vehicle had passed the intersection.

The testimony of Salyer to the effect that Mrs. Booher was negligent did not require the trial court to direct a verdict in Salyer’s favor because his testimony, when considered in connection with that of Mrs. Booher, merely gave rise to questions of fact to be decided by the jury under appropriate instructions. Hainline v. Hukill, Ky., 383 S.W.2d 353; Swope Motors v. Tabb, Ky., 313 S.W.2d 592.

Salyer next contends that the instructions failed to properly set forth Mrs. Booher’s duties in the circumstances shown. He urges that Mrs. Booher, in addition to giving a turn signal, was required by KRS 189.350 and 189.380(1) to give way to the overtaking vehicle and to refrain from turning from a direct course until it could be done with reasonable safety. We reject this contention insofar as it would require Mrs. Booher “to give way to the overtaking vehicle.” However, we find the instruction given was faulty and therefore we must reverse the judgment. In the event of another trial, and if the evidence is substantially the same, the court will also give an instruction similar to the one approved in Weaver v. Brooks, Ky., 350 S.W.2d 639.

It is contended further that the evidence does not support the instruction which authorized the jury to award Mrs. Booher $600 as damage to her automobile. This is based upon the allegation that she failed to qualify as an expert witness on estimating the value of her automobile. We find no merit to this argument.

It is finally contended that damages awarded Mrs. Booher are excessive in that they are not supported by the evidence. Dr. Allen F. Zoeller, an orthopedic surgeon, testified concerning Mrs. Booher’s injuries, the pain she has suffered and the treatment she has undergone. He opined that Mrs. Booher:

“ * * * will have some permanent disability because the ligaments didn’t heal back completely and this disability will consist of episodes of neck and low back pain with radiation of pain into the right leg.”

This testimony alone is amply sufficient to sustain the award of damages.

The judgment is reversed with directions to grant appellant a new trial in accordance with this opinion.

All concur.


author: PALMORE, Judge.

text:
    CITY OF HAZARD, etc., Appellant, v. Rachael Tye BAKER, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    W. E. Faulkner, City Atty., Harold Garland Wells, Asst. City Atty., Hazard, for appellant.
    Bruce Stephens, Jr., Duff Arnett, Hazard, for appellee.
   PALMORE, Judge.

The City of Hazard, “acting as Local Public Agency for the City of Hazard Urban Renewal Commission,” brought this action under KRS 99.420 to acquire title to two adjoining parcels of real estate owned by the appellee, Rachael Tye Baker. Mrs. Baker’s answer did not contest the city’s capacity to bring the suit or its right to condemn her property. She demanded specifically that she be awarded the market value of the property and that a jury be empan-elled to try that issue.

Pursuant to the procedures set forth in KRS 99.420 the trial court appointed commissioners who thereupon heard evidence on the value of the property sought to be condemned and awarded the sum of $160,000, to which award Mrs. Baker excepted on the ground it was inadequate and the city excepted on the ground it was excessive.

At this stage of the proceeding the trial court called a pretrial conference and directed the parties to show cause why the action should not be dismissed. Following this conference the trial court entered “Findings of Fact and the Law” and, upon its own motion, a judgment dismissing the action as to one of the two parcels described in the complaint. The judgment was made final and appealable as authorized by CR 54.02.

The basis on which the trial court dismissed the action as to the parcel in question is set forth in its findings as follows:

“This action is instituted pursuant to provisions of Chapter 99 of the Kentucky-Revised Statute and the Court finds from that chapter of the statute that property to be included in an urban renewal development plan must be a slum area and a blighted area and other facts to be established as set out in KRS 99.370. The Court finds that the building which sets [sic] on Tract No. 1, set out and described in this action, is one of the newest buildings in the city of Hazard and it is of sound construction and, other than a store room, it has five or more apartments where families live and the Court has personal knowledge, outside of the record, that the housing situation in this section is very acute. The Court is of the opinion that the law was never enacted to tear down and destroy such buildings as is situated on Tract No. 1 in this law suit.
“The Court is of the opinion further that this proceeding is unconstitutional in that it is an apparent attempt to take property which would effect [sic] not only the defendant, but the public generally in the community, without due process of law and in violation of the United States Constitution.”

At the pretrial conference, counsel for Mrs. Baker conceded that the city has “a legal right to take the property * * * we didn’t raise this issue, it was raised by the Court * * * We did not intend, by any pleading, to raise this issue at all. As a matter of fact, we had had a conversation with the City as to agreeing about an interlocutory order. She has a lot of merchandise and I was trying to get the City to give her about six months to dispose of a lot of her merchandise, heavy stoves, television sets and so forth, and I think it would be to the worst interest of her for the Court to dismiss the case.”

The city appeals and has submitted its brief in support of a reversal. Mrs. Baker has filed a statement that she will not file a brief but stands on the position taken by her in the trial court and places no merit in the issues raised by the trial court.

It could hardly be maintained that the circuit court did not have jurisdiction of the subject matter and the parties in this proceeding. Mrs. Baker, the defendant, was the only party with standing to contest the city’s right to condemn, and she chose and still chooses not to do so. The trial judge was not and is not a party to the litigation. KRS 99.370 and 99.390 prescribe the appropriate avenue for contesting the location and establishment of an urban renewal project.

Section 371, subd. 2 of the Code of Civil Practice provided four grounds for dismissal of an action on motion of the trial court. The power of the court to effect such a dismissal was limited to those statutory grounds. Davis’ Adm’x v. Louisville & N. R. Co., 251 Ky. 398, 65 S.W.2d 90 (1933). The Rules of Civil Procedure adopted in 1953 do not provide for a dismissal on the court’s own motion. See CR 41. Nor do the statutes. Nevertheless, the absence of specific authorization in the Civil Rules does not mean that a trial court is left without its inherent power and discretion to dismiss sua sponte when a plaintiff unreasonably fails or refuses to prosecute his claim, or under other appropriate circumstances when it is necessary to an orderly disposition of the cases pending before it. Cf. Link v. Wabash Railroad Company, 370 U.S. 626, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962). We are of the opinion, however, that this record does not present such a case.

Since the landowner chooses not to challenge the city’s right to take, she waives the defense and the case should proceed to trial on the question of the amount of compensation.

The judgment is reversed with directions for further proceedings in accordance with this opinion.

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY, and STEIN-FELD, JJ. concur.


author: MONTGOMERY, Judge.

text:
    Robert L. WHITE et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee. Billy ROSS (sometimes known as William Chapman) et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    Tom Garrett, Paducah, for appellants.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

The question is whether the trial court abused its discretion in refusing a motion for continuance made in behalf of sureties on two bail bonds because of the attendance of their attorney in the General Assembly. The appeal is from two judgments entered against James C. Johnson and John Bri-zendine, sureties on both bonds.

The sureties had executed two bonds in the sum of $5,000 each for the appearance of Robert L. White and Billy Ross in two prosecutions in which they were convicted. Their convictions were affirmed. White v. Commonwealth, Ky., 394 S.W.2d 770. The mandate issued November 5, 1965.

On November 15, 1965, the trial court entered an order requiring White and Ross to surrender to the Hopkins County jailer on or before November 27, 1965. Notice was given to the sureties and to the attorney then representing White and Ross. On December- 18, 1965, notice was served on the attorney that the Commonwealth would move on December 22, 1965, for a forfeiture on the bonds and for warrants of arrest. On December 27, 1965, summonses were served on the sureties.

On December 23, 1965, the attorney for White and Ross moved for an extension of time to January 3, 1966. The motions were accompanied by his affidavits from which it appears that the attorney had talked with White by telephone on November 22, 1965. White was represented as saying in that conversation that he and Ross were together in California and would start immediately for Madisonville for the purpose of surrendering on November 27, 1965.

The sureties answered on January 8,1966, through their present attorney. The substance of their answers is that White and Ross were incarcerated somewhere in California and that they, the sureties, had made diligent efforts to locate them and had expended over $2,000 in such efforts.

Notice was duly served that judgments of forfeiture on the bonds would be sought on Monday, February 7, 1966. By a response filed February 7, 1966, and by a motion for continuance filed February 18, 1966, the responsibilities and obligations of the sureties’ present attorney as a state senator in the General Assembly then in session were set forth. It was asked in each that the hearing on the bond forfeitures be continued until after March 18, 1966, the adjournment date of the General Assembly. On February 23, 1966, the motions for continuance were overruled and judgments of forfeiture in the sum of $5,000 each were granted.

The failure to show that one who has been released on bail is unable to appear in the court where bail was granted is a proper basis for forfeiture of the bond. Vaughn v. Commonwealth, Ky., 395 S.W.2d 763. The detention of the principal in a jail or penitentiary outside the Commonwealth of Kentucky or in custody of the United States is a proper ground to resist the forfeiture. RCr 428(3). The affidavit of the officer having such custody is adequate evidence of such detention, but other affidavits may be considered as evidence.

Under the showing made here, White and Ross’ attorney reported in November 1965 that White had told him that they were returning to Kentucky immediately. By the affidavit of the sureties’ attorney it was shown that White and Ross were “incarcerated somewhere in the State of California.” It immediately appears that neither response is adequate. Over three months elapsed between the time when the sureties were ordered to produce White and Ross and the granting of the judgments. During this time two attorneys had sought to protect the interest of the sureties who were trying to locate White and Ross. There was no showing that the sureties could or would produce the principals in court after the General Assembly adjourned. In view of the inadequate response and the lapse of time, the trial court was justified in concluding that White and Ross were not going to appear voluntarily, that the sureties could not produce them, and that there was no further need to prolong the matter under such circumstances. The absence or presence of the sureties’ attorney would have availed nought; it was the presence of the principals that was needed.

A trial court has broad discretion in granting or denying a motion for a continuance, which should not be interfered with unless it has been clearly abused. Riordan v. Riordan, Ky., 252 S.W.2d 901; City of St. Matthews v. Smith, Ky., 266 S.W.2d 347; Stallard v. Witherspoon, Ky., 306 S. W.2d 299; Simpson v. Sexton, Ky., 311 S.W.2d 803. The action taken did not constitute an abuse of discretion.

Judgment affirmed.

All concur.


text:
    Walter CALLIHAN, Appellant, v. Edward J. KIRK, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    Charles S. Sinnette, Ashland, for appellant.
    Paul C. Hobbs, Ashland, W. Terry Mc-Brayer, Greenup, for appellee.
   WADDILL, Commissioner.

Appellant, Walter Callihan, instituted this action against appellee, Edward Kirk, seeking damages for alleged false imprisonment. Approximately eighteen months after Kirk had filed an answer, the trial court sustained Kirk’s motion to dismiss the complaint on the ground it did not state a claim. Thereafter the court refused to permit Cal-lihan to amend the complaint and entered a judgment dismissing the action. Callihan appeals contending that both rulings are erroneous.

These averments appear in the complaint:

“That on or about the 7th day of April, 1965, the plaintiff herein was taken into custody by the defendant herein, wrongfully and unlawfully lodged in the Green-up County jail by said defendant, all to his damage in the sum of TEN THOUSAND AND NO/100 ($10,000.00) DOLLARS.
“WHEREFORE, the plaintiff herein prays for a judgment against the defendant in the sum of TEN THOUSAND AND NO/100 ($10,000.00) DOLLARS, his Court costs herein, trial by jury and any and all other relief that he may be entitled to.”

Callihan contends that these averments are sufficient under our pertinent Rules of Civil Procedure (CR 8.01, 8.05, 8.06) and that the cases relied upon by Kirk, such as Rosenberg v. Bax, Ky., 258 S.W.2d 458 (1953), decided under our former Civil Code are no longer controlling. Kirk urges that the Rosenberg case, supra, “shows that the law of this state is that the police officer is presumed to have done his duty and the pleader [Callihan] must plead this denial of performance as set forth in CR 9.03.” Kirk further argues that, in the event we decide the complaint states a claim against him, the motion to dismiss the complaint should be treated as a motion for ■summary judgment and this motion should be sustained. The argument is based upon Callihan’s testimony upon discovery that shows the county judge was not at the court house but was at his home at the time of Callihan’s arrest. Therefore, it is contended that it was lawful to place Callihan in jail.

The basis of a cause of action for false imprisonment is an unlawful detention or restraint of the person of the plaintiff. Roberson’s New Kentucky Criminal Law and Procedure, Section 1053, page 129. Hence, in stating a claim of false imprisonment it is only necessary that the plaintiff aver in concise and direct language that he was damaged by the wrongful or unlawful detention or imprisonment by the defendant. CR 8.01, 8.05(1) and 8.06; also see Caldwell’s Kentucky Form Book, Third Edition, False Imprisonment, Chapter 45, page 549.

In the instant case the complaint satisfied the above stated requirement. Since the rules governing both our civil and criminal procedure were drastically changed after we decided Rosenberg v. Bax, supra, what was therein written on the subject of pleadings in this character of case is no longer controlling. The arguments that the imprisonment of Callihan was lawful because Kirk was performing his duties as a law enforcement official and that Kirk had substantially complied with the provision of RCr 3.02 are merely defenses that could have been raised by answer. See CR 8.03. We conclude that the complaint states a claim against Kirk.

We refuse'to construe the motion to dismiss as a motion for summary judgment. In this connection it is sufficient to say that such a motion should initially be made at the trial level and, moreover, we believe there is a genuine issue of a material fact presented by the record. It is unnecessary to dispose of other contentions.

The judgment is reversed with directions to set it aside and to overrule Kirk’s motion to dismiss this action.

All concur.


text:
    Clint CAMPBELL, Appellant, v. E. J. DAVIS, d/b/a, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    Darrell B. Hancock, Peter Davenport, Fowler, Rouse, Measle & Bell, Lexington, for appellant.
    Craft & Haynes, J. W. Craft, Jr., Hazard, J. Keller Whitaker, Workmen’s Compensation Board, Frankfort, for appellee.
   OSBORNE, Judge.

This is an appeal from a judgment of the Leslie Circuit Court which affirms an order of the Workmen’s Compensation Board wherein appellant, Clint Campbell, was denied compensation.

Appellant worked for appellee in a mine as a shuttle car operator. On December 30, 1965, he suffered a severe psychotic reaction in which he lost control of himself and for all practical purposes appeared to be intoxicated. He was helped from the mine by his coworkers and removed to the Veterans Hospital in Lexington, Kentucky, where he underwent treatment for an extended period.

Appellant now contends that his psychotic condition is compensable under the Workmen’s Compensation Act because it was triggered by an electrical shock which he received shortly prior to the reaction as a result of his shuttle car becoming grounded. The medical testimony offered by him, including the records of the Veterans Hospital, shows conclusively that he was suffering from an acute schizophrenic reaction, and the disease had, on previous, occasions, manifested itself in the form of hallucinations wherein appellant talked to God and God answered.

Dr. Wiesel testified the reaction which appellant suffered on the day in question was probably due to an increase in anxiety and an electrical shock could have caused such increase. There were no marks on appellant’s body, burns or otherwise, to indicate he did suffer shock.

Appellant contends the finding of the circuit court and the Workmen’s Compensation Board should be reversed because “there is not in the record one scintilla of positive evidence that appellant did not receive an electrical shock.” This is an ingenious contention, however, we believe the burden of proving that he received an electrical shock was on appellant himself and we further believe he had the duty of proving a connection between the shock and the disability. The principles of law governing the burden of proof are rather elementary and it is difficult to understand how appellant could get them so confused. The only issue before the circuit court was whether appellant’s proof was so strong as to compel a finding in his favor. Lee v. International Harvester Company, Ky., 373 S.W.2d 418; Thompson v. Mayflower Coal Co., Ky., 379 S.W.2d 459, and Akers v. United Carbon Gas Co., Ky., 386 S.W.2d 957. We do not view the proof as being so strong as to compel a finding in favor of appellant.

The court properly concluded that the findings of the Board were adequately supported by the evidence.

The judgment is affirmed.

All concur.

      . There is no contention that appellant was intoxicated. The phrase intoxicated is used only to describe his condition.


author: DAVIS, Commissioner.

text:
    James McCRAY, Administrator of the Estate of Rex Devere McCray, Appellant, v. DAVIS H. ELLIOTT COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.

      Davis Williams, Munfordville, for appellant.
    Norman A. Curtis, Louisville, for appel-lees.
   DAVIS, Commissioner.

The administrator of the estate of Rex Devere McCray seeks a reversal of a judgment dismissing his claim for wrongful death of the decedent pursuant to KRS 411.-130. The trial court granted summary judgment on the ground that the appellant’s decedent met his death during the course and scope of his employment by the appel-lee, Davis H. Elliott Company, Inc., at a time when both the decedent and his employer were covered by the provisions of the Workmen’s Compensation Act. KRS Chapter 342.

It is provided by KRS 342.015(2) as follows :

“If injury or death results to an employe through the deliberate intention of his employer to produce such injury or death, the employe or his dependent as herein defined shall receive the amount provided in this chapter in a lump sum to be used, if desired, to prosecute the employer. The dependents may bring suit against the employer for any amount they desire. If injury or death results to an employe through the deliberate intention of his employer to produce such injury of death, the employe or his dependents may take under this chapter, or in lieu thereof, have a cause of action at law against the employer as if this chapter had not been passed, for such damage so sustained by the employe, his dependents or personal representatives as is recoverable at law. If a suit is brought under this section, all right to compensation under this chapter shall thereby be waived as to all persons. If a claim is made for the payment of compensation or any other benefit provided by this chapter, all rights to sue the employer for damages on account of such injury or death shall be waived as to all persons.”

Appellant asserts that he is entitled to maintain this wrongful death action because the actions of the employer and decedent’s fellow employee, appellee Shoulders, constituted “deliberate intention of his employer to produce” the injury and death of the employee.

The allegations of the complaint seek to equate wanton and gross negligence with “deliberate intention” as used in KRS 342.-015(2). The alleged “deliberate intention” of the appellees is couched in this language in the complaint:

“ * * * the defendant, Davis H. Elliott Company, acting by and through its agents, servants and employees, did intentionally direct and order and command the decedent, Rex Devere McCray, to work on a tall pole in such an extremely dangerous and hazardous place in close proimity (sic) to a highly charged wire carrying many thousands of volts of electricity, well knowing at the time that the said Rex Devere McCray was an apprentice electrician and did not have the experience necessary to appreciate the danger and risk to his person in working in such an extra-hazardous position, and did fail to equip him with the proper equipment to handle and kill the live wires with which he was working. By said acts the defendants did deliberately intend to cause the decedent to come in contact with a highly charged wire, from which contact the decedent was electrocuted and did die of said electrical burns and shock on the 23rd day of November, 1963 to the damage of his estate in the sum of $172,000.00.”

Such allegations do not entitle the employee’s administrator to maintain this action at law in lieu of the remedies afforded by the Workmen’s Compensation Act. See Fryman v. Electric Steam Radiator Corporation, Ky., 277 S.W.2d 25.

Since appellee Shoulders was a fellow employee of the decedent, the provisions of KRS 342.015 preclude the action against Shoulders as well as the action against the Elliott Company. Miller v. Scott, Ky., 339 S.W.2d 941.

The judgment is affirmed.

All concur.


text:
    CITY OF GLASGOW, Kentucky, a Municipal Corp., et al., Appellants, v. Dale BURCHETT, Police Court Judge, City of Glasgow, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    Joe L. Travis, Glasgow, for appellants.
    Dale Burchett, Glasgow, for appellee.
   DAVIS, Commissioner.

Appellants challenge the judgment in a declaration of rights action in which it was adjudged that the appellee is the duly elected judge of the police court of Glasgow, a city of the third class, and that his salary for the current term is $6,000.00 per annum.

The appellants assert: (1) that the appel-lee vacated the office of city judge by accepting the incompatible position of city attorney of Cave City; (2) the legislature did not intend that KRS 26.170 be construed as mandatory and that it should be qualified by the provisions of KRS 64.580 and 64.730; and (3) that the City of Glasgow did effectively fix the salary of appellee at $300.00 per month as permitted by KRS 26.170.

It is conceded that the appellee was duly elected as judge of the police court of Glasgow for the four-year term beginning January 3, 1966. It is asserted that appellee vacated the office to which he was elected by accepting the office of city attorney of Cave City. This contention is without merit since it plainly appears that appellee merely accepted employment by Cave City, a fifth-class city, as attorney, to advise the city in its legal matters. Appellee is not and has never been a resident of Cave City as required by Kentucky Constitution, Section 234. It is plain, we think, that Kentucky Constitution, Section 165, in proscribing acceptance of incompatible offices does not prohibit the type employment shown to have been accepted by the appellee. It is significant that KRS 69.580, in providing for the office of city attorney in fifth-class cities, envisions and authorizes a city’s employment of an attorney who'does not reside in the city. Obedient to the mandate of Section 234 of the Constitution, KRS 87.160 prescribes residence and qualifications as a voter in the city as qualifications for officers of fifth-class cities.

In City of Somerset v. Reid, Ky., 413 S.W.2d 611, we construed KRS 26.170 and held that the effect of that legislation was to fix the salary of police judges in third class cities at $6,000.00 per year subject to the right of the cities to change the salary by ordinance to a sum not less than $2,400.-00 annually. We adhere to our ruling in City of Somerset v. Reid, supra. That decision is dispositive of the contention by appellants that KRS 64.580 and 64.730 affect KRS 26.170. By the plain terms of the latter statute the city is required to act affirmatively in changing the already fixed salary of $6,000.00 to any sum not less than $2,-400.00.

The statute requires that such a change be accomplished by ordinance. The City of Glasgow did not enact any ordinance to change or fix the salary of the police judge at a sum different than $6,000.00 per year following the enactment of KRS 26.170. The city council did pass a resolution on December 4, 1964, setting the salary of the police judge at $300.00 per month. The record reflects that the vote of the council at that session was six to four in favor of the resolution. That action upon the part of Glasgow’s council was not legally adequate to change the $6,000.00 salary already fixed by KRS 26.170. In the first place, the action by the council was not by ordinance as required by the statute. Secondly, the action by the council failed to receive a majority of two-thirds as required by KRS 85.110 (2). While we do not retreat from the rationale expressed in City of Somerset v. Reid, Ky., 413 S.W.2d 611, we find the case at bar clearly distinguishable from it for the reasons we have stated.

The judgment is affirmed.

WILLIAMS, C. J., and OSBORNE, PALMORE, MONTGOMERY, STEIN-FELD and MILLIKEN, JJ., concur.

EDWARD P. HILL, J., dissents.


author: CULLEN, Commissioner.

text:
    John Roy JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, Boyd F. Taylor, Hamm, Taylor & Milby, London, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

John Roy Johnson appeals from a judgment which sentenced him to a term of 21 years pursuant to a verdict convicting him of voluntary manslaughter in the death of one Lester Mullins. His primary contention is that the evidence was insufficient to warrant submission of the case to the jury. We agree.

Johnson and one Charles Houston were indicted jointly for the murder of Mullins. Johnson’s motion for a separate trial was sustained and he was tried separately. Houston did not testify at Johnson’s trial so the jury had only Johnson’s version of how Mullins’ death occurred, plus the circumstantial evidence produced by the Commonwealth.

The evidence for the Commonwealth was that Johnson, Houston and Mullins embarked one evening upon a venture of drinking and driving in Mullins’ car. During the period from 7:30 to 8:00 p.m. they were seen together in the car by a number of different persons, at different places. The evidence strongly indicated that Mullins at all times, until they reached the place where he met his death, was the driver of the car; Houston rode in the right front seat, and Johnson in the back. At one place, around 7:30, a witness saw two of the three men scuffling or punching each other but the witness did not know which ones they were. At two of the places where they were observed they appeared to be well inebriated and the car was being operated erratically. Finally, around 8:00 p.m., the car was observed by a witness in a stopped position in the road in front of Houston’s home (on a country road). The witness saw two men standing in front of the car;- one of them, who “favored” Houston, “walked over the bank” and disappeared; the other, whom the witness identified as being Johnson, came to the car, got in the driver’s seat after appearing to have moved something from the seat, and after a few minutes drove the car a few feet along the road, stopped, and then drove it off to the side of the road so that the witness could pass in his car. Later the sheriff’s office was called by some unidentified person and told that Mullins' "body” was in a car in front of the Houston home. Upon arriving at the scene the officers found Mullins dead in the front seat of the car, from a stab wound in the chest apparently made by a large knife. The officers then went to the Houston home where they arrested Houston. Shortly thereafter they located Johnson sleeping in a barn nearby. Upon his being arrested he said, “Boys, I didn’t have anything to do with that over there.” He told the officers that Houston had killed Mullins while he (Johnson) was out of the car.

Johnson’s testimony was that when the car arrived in front of the Houston home Houston and Mullins started fighting or quarreling over the remaining supply of whiskey. Johnson was unable to stop the fight so he got out of the car and walked up the road a short distance. He could hear the sounds of scuffling or struggling and then the sounds ceased. He returned toward the car and found Houston standing by the front of the car. Houston made as if to say something and then turned and walked away. Johnson then looked in the car and observed Mullins was bleeding “right smart.” He got in the seat with the view of driving to a hospital but Mullins was unable, to speak and appeared to have died, so he decided to summon an ambulance. He walked to the nearby home of Houston’s father, where he found Houston. He was told that an ambulance already had been called. Houston advised him to change or wash his shirt. He did not do so but headed to the barn to sleep and to “sober up.” The next morning, in the jail, he did wash his shirt but there was no blood on it. (No one testified to having seen blood on the shirt.)

As will have been observed from the foregoing recitation, the evidence showed little more than that Johnson was at or near the scene when Mullins was killed. It is argued by the Commonwealth that inferences of Johnson’s guilt can be drawn from the evidence that he and Mullins may have been the two who were seen scuffling in the car at 7:30; that when arrested Johnson had blood on his lip and on his right hand; that Johnson moved the car so that the witness Onas Patton could get by on the road without Johnson’s telling Patton that Mullins was then dead or dying; that Johnson got together with Houston after the killing and made no comment to Houston’s suggestion that he wash or throw away his shirt; and that Johnson concealed himself in the Houston barn in an effort to avoid arrest. The difficulty is that none of this evidence is more consistent with guilt than with innocence. As concerns the scuffling the evidence is only that Johnson could have been one of the participants. As concerns the blood, there was evidence by two disinterested witnesses that Johnson had a bad fever blister on his lip, and he had a plausible explanation for the blood on his hand in that he said he put his arm around Mullins and tried to prop him up when he found him dying in the car. Johnson’s actions after Mullins’ death were not particularly inconsistent with innocence especially when it is borne in mind that Johnson was in an advanced stage of inebriation.

In the overall evaluation of the circumstances and inferences, some consideration must be given to the fact that Houston did not choose to appear as a witness and deny Johnson’s testimony that Houston did the killing.

We think this case cannot be distinguished from Ratliff v. Commonwealth, Ky., 406 S.W.2d 728. There one member of a five-man drinking and motoring party was killed by stabbing. The remaining four all were indicted. Three of them pointed the accusing finger at the fourth. All were convicted. This court reversed the convictions of the three, holding that their mere presence at the scene, and their occupancy of the automobile in which the victim was transported after being stabbed, did not constitute sufficient evidence to sustain a conviction.

The trial court in the instant case submitted instructions on conspiracy and on aiding and abetting in addition to the instructions covering guilt as a principal. In our opinion the evidence was not sufficient to sustain a conviction on any of those theories. If upon another trial the evidence is substantially the same the trial court will direct a verdict for the defendant.

The judgment is reversed with directions for further proceedings in conformity with this opinion.

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


author: JAMES S. SHAW, Special Commissioner.

text:
    Otha BELL, Administrator of the Estate of Billy Hogan, Deceased, Appellant, v. Phillip COOKSEY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    R. B. Bertram, Bertram & Bertram, Monticello, for appellant.
    Eddie Lovelace, Hicks & Lovelace, Albany, for appellee.
   JAMES S. SHAW, Special Commissioner.

Appellant’s intestate, Otha Bell, instituted an action against Phillip Cooksey under the wrongful death statute, KRS 411.130, seeking to recover damages for loss to the estate of Billy Hogan, deceased, plus the recovery of the funeral expenses. It is alleged that Billy Hogan’s death was caused by the negligent and careless operation of a motor ve-hide driven by Cooksey on Highway No. 127, near the home of Lowell Collins in Clinton County. Cooksey pleaded contributory negligence on the part of Billy Hogan as a defense to the action against him, trial was held, the issues submitted to a jury and a verdict and finding of “Not Guilty” by the jury. Judgment was entered in the lower court in accord with the verdict, and an appeal has been perfected to this court seeking a reversal on a number of grounds which we will consider.

This accident occurred September 13, 1964, in Clinton County on Highway No. 127 in front of the residence of Lowell Collins about 4:30 p.m. as Cooksey was driving in a general northerly direction on the highway. Billy Hogan was standing beside his bicycle with a soft drink in his hand, having momentarily stopped in front of the Collins’ home in the process of enjoying his drink, and on the metal surface of the road. The highway was more or less straight for a distance of a quarter mile or more, and Cook-sey drove this distance at a speed of thirty miles per hour without slackening his speed any and ran into the bicycle and body of Billy Hogan, killing him. Appellee’s explanation for this conduct was that the sun was shining so bright in his eyes that “it nearly blinded me” for two tenths of a mile or a thousand feet, before he struck the boy. He further testified that he had a sun visor in his car, but although blinded by the sun, he failed to have in use the sun visor when the accident occurred. Mrs. Collins, the only actual eyewitness to this sad event, saw Billy before he was struck, saw that Cooksey travelled about a half mile during which time Billy could have been seen, had Cook-sey looked, and that there was nothing on the highway to block the view of Cooksey. Mrs. Collins’ testimony was not contradicted by Cooksey although testimony was presented tending to show that she could not have seen the accident.

In addition to the above, the appellee testified that there was nothing to obstruct his view, and when asked why he didn’t see Billy, he answered, “I don’t know.” After further interrogation, he responded, “From the time I could see him as he was standing there ?” and “not over two-tenths of a mile where he was standing,” both of which answers suggest that he saw Billy standing beside the road before hitting him. This was the essence of the testimony given relating to liability. At the conclusion of all the testimony, a motion for directed verdict on behalf of the appellant was overruled by the court. Following the verdict of the jury and judgment of the court a motion for a new trial was overruled as was a motion for judgment n.o.v. To reverse this judgment the appellant prosecutes this appeal. The facts are not in dispute, and the only thing this court is concerned with is the question as to whether or not these facts have been properly evaluated and a proper application of the law has been made by the trial court.

The general rule of law is that if there is evidence that a driver blinded by the rays of the sun continues to proceed ahead, causing injury to another in or near the roadway, this has been held to justify or require a finding of actionable negligence. Many of the states have adopted the so-called “assured clear distance” rule which requires a motorist to operate his vehicle, when blinded by lights or sun, or his view has become obstructed, so as to be able to stop within the “assured clear distance” ahead. In other words, a motorist when blinded by sun, fog, smoke or other vision obstructing element, must either stop or proceed at such a rate of speed that he would be able to stop in time to avoid striking any object in the road ahead. Kentucky has not seen fit to adopt this rule in so many words, but has judged each case and appeal on its own factual merits presented by the record. We have rejected the rule requiring a blinded motorist to stop or proceed at his peril and have adopted the rule that the motorist must slacken his speed and have his car under such control as ordinary care requires under the circumstances of each case. See Greyhound Corporation v. Hounshell, Ky., 351 S.W.2d 64.

The factual situation in this case reveals that appellant was not suddenly blinded by the sun, but was blinded for a distance of nearly a quarter of a mile. Further, that in spite of his vision problem, he continued at the same rate of speed until after he had run down Billy Hogan, and that at all times he had a sun visor available in his car but failed to use it. The finding .of guilty of negligence as a matter of law upon the ap-pellee by this court must be predicated upon what he did or failed to do after he had become blinded. One may become suddenly blinded, but the question is what he does after he becomes blinded—from that point, what does the driver do in the exercise of ordinary care? He must exercise all ordinary and reasonable care and diligence to avoid an injury to anyone who might rightfully be on the road in front of him, if he couldn’t see ahead of him because of the bright sunlight in his eyes.

Applying the law to the facts of this case, can we say that the appellee reduced his speed using ordinary care or at all ? We cannot. Can we say that he used ordinary care by the use of an available sun visor? We cannot. Can we say he took one single solitary measure in the exercise of ordinary care for a distance of one quarter mile to protect or prevent injury to anyone using the highway at that time and place? We cannot. The appellant was guilty of negligence as a matter of law, and for this reason there was a failure on the part of the trial court to properly apply the law to the facts of this case.

The court calls attention to the digest of cases in 22 A.L.R.2d 292 et seq.; Barth v. Reichert, 34 IlI.App.2d 472, 181 N.E.2d 609; Ball v. Sears Roebuck & Co., 5 Cir., 223 F.2d 695; Dinkins v. Jackson Brewing Co., La.App., 57 So.2d 52, and the following Kentucky cases directly bearing upon the question involved—Louisville & I. R. Co. v. Bedford’s Adm’r, 203 Ky. 583, 262 S.W. 941; Marsee v. Hunt’s Adm’x, 246 Ky. 503, 55 S.W.2d 376; Lexington-Hazard Express Co. v. Umberger, 243 Ky. 419, 48 S.W.2d 1066; Slusher v. Brown, Ky., 323 S.W.2d 870.

In the case of Trevillian v. Boswell, 241 Ky. 237, 43 S.W.2d 715, 719, involving an obstruction to vision situation, this court held:

“In support of his argument for an instruction on an ‘unavoidable accident,’ he insists that dust interfered with the vision of the driver of his truck. If his vision was interrupted by a cloud of dust, it was his duty to exercise ordinary care under that condition to avoid a collision with other vehicles on the highway. Best’s Adm’r v. Adams, 234 Ky. 702, 28 S.W. (2d) 484. If he continued to travel with the knowledge of the presence of a cloud of dust which interfered with his vision, and with his operation of the truck with due regard to the presence and safety of other vehicles on the highway, in that event it was his duty, if necessary to avoid the collision, to bring his truck to a stop. Barnes & Bro. v. Eastin, supra; Dulaney v. Sebastian’s Adm’r, 239 Ky. 577, 39 S.W.(2d) 1000; Ware v. Saufley, 194 Ky. 53, 237 S.W. 1060, 24 A.L.R. 500.”

The question of contributory negligence of the decedent does not arise in this case. Billy Hogan was less than fourteen years of age, and there was no evidence introduced in the trial tending to prove that he possessed capabilities for contributory negligence. The trial was had prior to our decision in Williamson v. Garland, Ky., 402 S.W.2d 80, so that the trial court properly declined to instruct on contributory negligence. The appellee does not contend that he was entitled to a contributory negligence instruction.

For the reasons herein set out, the judgment of the trial court is reversed with directions to enter judgment on behalf of the appellant, administrator of the estate of Billy Hogan, deceased, and to properly submit to a jury the question as to the damages to he awarded the estate.

WILLIAMS, C. J., and PALMORE, MONTGOMERY, HILL, STEINFELD, and MILLIKEN, JJ., concur.

OSBORNE, J., dissents.


author: CLAY, Commissioner. STEINFELD, Judge

text:
    CITY OF MAYSVILLE et al., Appellants, v. Russell GREENLEE, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    Robert G. Zweigart, Royse & Zweigart, Maysville, for appellants.
    Michael A. Rowady, Winchester, for ap-pellee.
   CLAY, Commissioner.

Plaintiff appellee, police judge of the appellant City of Maysville, recovered judgment against the city for the difference between the salary of $2400 per annum established by an ordinance and $6000 which he alleges was prescribed by KRS 26.170. The city appeals.

KRS 26.170, which became effective in June 1964, provided for a salary of $6000 unless the city legislative body fixed the salary by ordinance at not less than $2400 per annum. On June 8, 1965, the city commission passed such an ordinance. This was prior to the time appellee filed for the office of police judge and prior to the primary election date. It is appellee’s position that the ordinance was void because not enacted prior to the first Monday in May 1965, as prescribed by KRS 64.580.

The facts in this case and the questions of law are almost identical with those considered in City of Somerset v. Reid, Ky, 413 S.W.2d 611. Under the authority of that case (which the trial court did not have an opportunity to consider), the ordinance was valid and effectively fixed appellee’s salary at $2400 per annum. Therefore the appellant city was entitled to judgment dismissing appellee’s claim for additional compensation.

The judgment is reversed with directions to enter judgment in conformity with this opinion.

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

STEINFELD and OSBORNE, JJ., dissent.

STEINFELD, Judge

(dissenting).

For the reasons expressed in the dissenting opinion in City of Somerset v. Reid, Ky., 413 S.W. 2d 611 (1967) I respectfully dissent.

OSBORNE, J., joins in this dissent.


author: EDWARD P. HILL, Judge.

text:
    Lois CANNON, Appellant, v. Sam CANNON, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    Kenneth H. Goff, Joseph M. Whittle, Leitchfield, for appellant.
    Clarence Bartlett, Woodward, Bartlett & McCarroll, Owensboro, for appellee.
   EDWARD P. HILL, Judge.

This is an appeal from a judgment dismissing the complaint seeking divorce, custody of children, and other incidental relief. The judgment appealed from recites that prior orders and judgments constituted res judicata of the issues raised in the complaint. The judgment appealed from dismissed the complaint after the court considered the pleadings and exhibits. No evidence was heard.

Lois and Sam Cannon were lawfully married in October 1941.

In 1944, Sam filed action for divorce in Lake Superior Court at Hammond, Indiana. Constructive service was had on Lois, and a default judgment of divorce was granted. Lois did not appear in the Indiana divorce proceeding.

Ignoring the divorce, Sam and Lois continued to live together and produced seven children in addition to two born before the divorce. In the meantime, they purchased a 700-acre farm and took- title in their joint names.

In the year 1964, after having moved to Ohio County, Kentucky, Sam filed an action in the circuit court of Ohio County in which he asked for custody of six of the youngest children. It was alleged in the complaint that Lois had custody of the youngest child. Sam further alleged in his Ohio County action that “prior to June 29, 1944, he and defendant Mary Lois Cannon were married and had nine children.” Notwithstanding this allegation, he also alleged that the parties were divorced in 1944 in Indiana.

Lois filed answer containing a general denial. In a response to a motion for rule against her to show cause, she filed a response in Ohio Circuit Court in which she alleged that “if said judgment (Indiana) relied on by plaintiff is valid, said children are bastards and the Ohio Circuit Court has no jurisdiction or authority to award the custody of said children to plaintiff (Sam Cannon).”

After hearing proof by both parties, in December 1964 the Ohio Circuit Court entered judgment in which full faith and credit were given the Indiana judgment. It also recited that the seven children were illegitimate and that Sam was “not the legal father of said children or any of them.” Loiá was adjudged the custody of the seven children. She attempted to appeal from the Ohio judgment, but her appeal was dismissed by this court on Sam’s motion, which stated her appeal was not properly perfected and that she could not appeal from a judgment in her favor.

The present action was begun August 16, 1965, when Lois filed her complaint alleging the 1941 marriage and in which she sought divorce, alimony, custody of the children, and division of their property. Answer was filed on September 4, 1965, on behalf of Sam in which it is admitted that he is the father of all the nine children. On the following June 3, 1966, Sam filed an amended answer in which he alleged the Indiana divorce judgment and charged that by reason of the birth of the children after the Indiana divorce the seven children were illegitimate. Certain exhibits were filed in support of the pleadings. The trial court sustained Sam’s motion to dismiss the complaint without hearing evidence thereon. It is the propriety of the judgment thus entered dismissing the complaint that is now questioned on this appeal. The resolution of this question requires discussion of CR 7.01, the pertinent part of which is quoted herein:

“There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim * * *. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.”

To review the pleadings, the original answer filed in the present proceeding was styled “Motion, Answer and Counterclaim.” The portion designated as a counterclaim sought only a restoration of property.

It should be kept in mind that in Sam’s first answer, he admitted that all nine of the children were born to their marriage and that he was the father of them. In his amended answer, filed some nine months later, he did an about-face by alleging the Indiana divorce judgment and the resulting illegitimacy of the seven youngest children. So it is apparent that the sustaining of the Ohio County, Kentucky, judgment declaring the seven children illegitimate is a matter of grave consequence not only to the immediate parties here involved but to the seven children, who are not parties to this litigation, and to the public generally.

The dismissal of Lois’ complaint in the present litigation, if allowed to stand, forever closes the door to her to litigate her property rights and could affect the right of inheritance of the seven children.

No reply was filed on behalf of Lois to either the answer or the amended answer in which Sam alleged the Indiana divorce as an avoidance of the parenthood of the seven children. However, Lois was not required under CR 7.01 to file a reply. If she desired to avoid the Indiana divorce decree by proof, for example, of a common law marriage in Indiana after the 1944 divorce, she had a right to introduce it in the present proceeding without having filed a reply. This being so, the trial court was in error in dismissing her complaint without affording her an opportunity to introduce evidence in avoidance of the allegations of the answer and amended answer.

Whether under other circumstances or in other respects the Ohio County judgment would be res judicata is a question we need not decide. In this particular situation, it is our opinion that public policy would not countenance such a result in which the seal of illegitimacy would be permanently stamped on seven innocent and unrepresented children through the mere tactical maneuvers of their parents in a custody fight. We hold that the Ohio County judgment cannot conclude the subject of their legitimacy.

The judgment is reversed with directions consistent with this opinion.

All concur.