text:
    William H. PETERMAN, Administrator of the Estate of David Timothy Peterman, Deceased, Appellant, v. Ivan DARBY et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.

      Thomas Burchett, Sr., Burchett & Burchett, Ashland, for appellant.
    Charles M. Daniels, Greenup, Jack R. Kibbey, Vanceburg, A. W. Mann, Ashland, for appellee.
   STEINFELD, Judge.

David T. Peterman, 17 years of age, was killed in an automobile collision on July 8,1963. He was a passenger in a pick-up truck driven by his friend, William I. Darby, and owned by William’s father, Ivan Darby. The truck collided with an automobile operated by Charles W. Reffett. William H. Peterman, administrator of the estate of David T. Peterman, brought a wrongful death action against Ivan Darby, William I. Darby and Charles W. Reffett. The court sustained motions for a directed verdict and stated “that the plaintiff has failed in his duty to establish that either Charles W. Reffett or William I. Darby acted negligently in any way, * * * Judgment was entered dismissing the suit as to all defendants. Peterman, administrator, appealed. We reverse.

The pleadings admitted the appointment and qualification of Peterman as administrator; that Ivan Darby was the father of William I. Darby; William’s age at the time of the accident; that the 1954 Chevrolet pick-up truck which William was driving when the accident occurred was used with the consent, permission and acquiescence of Ivan Darby with whom William resided and that it was a vehicle used for the convenience and pleasure of the family. The Darbys cross-claimed against Reffett. They demanded indemnity, contribution and $500.00 for damage to their truck.

The Low Gap Road is hard surfaced and generally runs in an east west direction. Walker Lane is a dirt road which forms a T intersection with Low Gap Road. Proceeding westwardly on Low Gap Road one encounters a slight turn to the right immediately before reaching the intersection of Walker Lane, and shortly thereafter the road makes a slight turn to the left. At the time of the collision the shoulders of Low Gap Road were grown up in high weeds and bushes. Photographs introduced clearly showed that this road is of sufficient width for two vehicles proceeding in opposite directions to pass each other without difficulty.

The administrator testified that David T. Peterman was a senior high school student and was in good health. He said that he measured the blacktop portion of Low Gap Road at the place of the accident and that it was 14 feet in width. Later he said “it was 14 or 16 feet wide at that time.” He also testified that William I. Darby

“told me they discussed how far they was from his home to Tygart Creek before they left his home, and he said then they proceeded on their trip and after he rounded this curve he said he saw Reffett’s car but he didn’t think any more but what he would stop. Then he proceeded on and he said the last thing they were talking about was how far they had come. He looked down at the mileage register on his car and when he looked up Reffett’s car was in his face. He cut to the left and froze and he said that’s all he could remember.”

Patricia Reffett was called as a witness for plaintiff. She testified that she was the wife of Charles W. Reffett; that he was driving the car; that she was riding as a passenger in the front seat of the Oldsmobile as it traveled along Walker Lane and approached Low Gap Road. She said that when they reached the intersection they came to a stop but because of the weeds and trees they could not see even though they had looked both ways. They moved “just barely on” to the highway and came to a second stop. She said that “I don’t even know if our tires was even touching the highway or not. It might have been just touching. We wasn’t way up on the highway.” By that time she first saw the Darby truck coming from their left and it was “almost on us and he was coming fast.” She said that they were in the process of making a left turn onto the highway and that their car was “pointed to the left to some degree.” The right front of the Darby truck collided with the right front of the Reffett automobile.

The next witness for plaintiff was Estill Coleman, a Kentucky State Police Officer, who arrived about 30 minutes after the accident occurred. He testified as to the positions of the vehicles when he arrived. He made excellent photographs of the highway and the vehicles. They show extensive damage to the right front of the Oldsmobile and the right front and right side of the Darby truck. These photographs were introduced in evidence and are of substantial aid in understanding the testimony of the various witnesses.

The plaintiff then presented Wanda McCoy, a daughter of Peterman, the administrator. She testified that on a number of occasions William I. Darby told her “Wanda, I killed him. It was my fault. I did not see the car until the truck hit it.” She was asked and answered:

“Q. 7 Did he tell you what he was doing just before it happened?
A. He was talking about looking at the speedometer. They had been judging how far they had come to that time.”.

The parties stipulated that David T. Peterman died as a result of the injuries he sustained in the accident. The plaintiff then rested whereupon the respective counsel for all defendants moved for the directed verdict contending that plaintiff had “proved no substantive negligence on the part of anybody.” CR 50.01. The court sustained the motion for the peremptory instruction. Counsel for plaintiff objected strenuously and later moved for a new trial.

The appeal as to Reffett has been dismissed. We must determine if a directed verdict in favor of Ivan and William I. Darby was proper.

The weight of the evidence and the credibility of the witnesses could not be considered — that is for the jury. West Kentucky Transportation Company v. Dezern, 259 Ky. 470, 82 S.W.2d 486 (1935); Louisville & Nashville Railroad Co. v. Quinn, 187 Ky. 607, 219 S.W. 789 (1920); Cochran v. Downing, Ky., 247 S.W.2d 228 (1952). Speculation, supposition and surmise must be eliminated. Wright v. Hickman, 308 Ky. 634, 215 S.W.2d 553 (1948); Whalen’s Adm’x v. Sundell et al., 303 Ky. 752, 199 S.W.2d 426 (1947); Schuster v. Steedley, Ky., 406 S.W.2d 387 (1966). No consideration may be given to evidence that is entirely at variance with physical laws, or where certain physical facts are of such character as to make that evidence unbelievable. Couch’s Adm’r v. Black, 301 Ky. 24, 190 S.W.2d 681 (1945); National Linen Supply Co. v. Snowden, 288 Ky. 374, 156 S.W.2d 186 (1941).

The claimant against whom the motion was made is supported by evidence in the form of admissions favorable to him. Watson v. Watson, Ky., 245 S.W.2d 586 (1952). His proof includes any facts developed on cross examination. Clendenin v. Colonial Supply Co., 267 Ky. 544, 102 S.W.2d 992 (1937). He is entitled to the benefit of the whole evidence. City of Ludlow v. Albers, 253 Ky. 525, 69 S.W.2d 1051 (1934).

Giving the benefits and imposing the restrictions we have stated and admitting that every fact shown by that evidence is true and after drawing all reasonable inferences that fairly and reasonably may be drawn therefrom, if these are sufficient to support a verdict, the motion should be overruled. Nugent et al. v. Nugent’s Executor et al., 281 Ky. 263, 135 S.W.2d 877 (1940); K & I T. R. R. Co. v. Cantrell, 298 Ky. 743, 184 S.W.2d 111 (1944); Aubrey’s Adm’x v. Kent, 292 Ky. 740, 167 S.W.2d 831 (1943); Ky. Transfer Co. v. Campbell, 299 Ky. 555, 186 S.W.2d 409 (1945).

A witness stated that the Oldsmobile was not moving at the time of the impact and placed it as being slightly onto the Low Gap Road, the paved portion of which was at least 14 feet wide. Accepting this testimony as true there was ample room for the Darby truck to avoid colliding with it. Russell v. Prater, Ky., 419 S.W. 2d 764 (decided October 20, 1967). The testimony of another witness showed that the Darby boy admitted that he was not keeping a proper lookout ahead. KRS 189.290. We hold that this testimony together with the stipulation and the admissions in the pleadings was sufficient to overcome the motion for a directed verdict made on behalf of Ivan Darby and his son.

The judgment is.reversed with directions to grant a new trial against Ivan Darby and William I. Darby.

All concur.


source: Caselaw Access Project

author: EDWARD P. HILL, Judge.

license: Public Domain

text:
    Myrtle WALTERS, Appellant, v. Mack G. WALTERS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.

      Frank E. Haddad, Jr., Louisville, Marion Rider, Frankfort, for appellant.
    Earl S. Wilson, E. F. Schaeffer, Jr., Lexington, for appellee.
   EDWARD P. HILL, Judge.

The judgment appealed from granted the wife a divorce, $37,500 lump sum alimony, $200 monthly alimony, a Buick automobile, and some furniture. She demands a reversal on the theory (1) that the chancellor undervalued an item of appellee’s property in arriving at his net worth; (2) that she is entitled to greater alimony, all in a lump sum; (3) that she is entitled to a lump sum in alimony equal to or in excess of one-third of her husband’s net estate ; and (4) that $1000 paid by her to two appraisers, who made appraisement and testified for her, should be taxed as costs.

We approach a solution to the questions presented conscious of CR 52.01 which limits the reviewability of findings of fact by the chancellor. Such findings of fact will not be disturbed unless found to be clearly erroneous.

The parties were married in 1945. It was a second marriage for appellant. Appellant had one child, Patricia Ann Rule, age eight, at the time of her marriage to appel-lee. This child was educated by the parties herein.

Early in 1965, according to appellant, the husband lost his affection for her and wanted a divorce. At the instance of ap-pellee, the appellant filed suit for divorce on April 14, 1965.

The chancellor found appellee’s net estate to be worth $178,200.

Included in the gross valuation is an item of $80,000 found and used by the chancellor as the worth of appellee’s one-third interest in a tobacco warehouse partnership known as Old Globe Tobacco Warehouse. This is the only item in the list making up appellee’s gross estate that is seriously questioned by appellant in this court. She contends appellee’s one-third interest in the partnership far exceeds $80,000, the amount found by the chancellor.

The evidence shows the fair market value of the real estate owned by the partnership was $400,000 and that its liabilities were $160,000. The chancellor apparently deducted the liabilities from the value of the real estate and took one-third of the remainder as the value of appellee’s interest in the partnership. Appellant complains that no value was placed on “going concern” or “good will.”

The partnership earned the following amounts during the years listed:

1964 $69,256.08
1965 47,500.47
1966 78,250.89

Appellee drew cash in the following amounts for the years indicated below:

1964 $21,724.47
1965 18,676.87
1966 22,525.54

The balance sheet of the partnership shows the book value of the interest of ap-pellee at $75,208.87 for 1964 and $77,715.24 for 1966.

Appellant uses two systems to determine the value of appellee’s one-third interest in the partnership: (1) The book value plus four times the “excess income” gives a value of $135,888.68; (2) Capitalization of “net income at eight percent” gives a value of $136,544.92.

The partnership contract, dated October 14, 1963, after defining the respective duties of the three partners, provides that in case of “death” or “incapacitation” of either partner, the remaining partners shall have an option to purchase the interest of the departed or incapacitated partner on the basis of the valuation in effect at the time of death or disability.

Without going into further detail on the value of appellee’s interest in the tobacco warehouse partnership, it may be said that the chancellor’s value of $80,000 was low and could have been higher. However, there are many elements to be considered in fixing the values of one’s estate for the purpose of determining alimony. One element is the husband’s ability to pay. Under this factor the court may consider the means necessary to raise the amount of alimony allowed, such as, quick sales and tax obligations incurred in connection with liquidating one’s estate. In this case, according to appellee’s brief, we have a good example of a tax obligation resulting from the sale of appellee’s farm. The chancellor fixed the value of the farm at $225,000. We are told that after the judgment the farm sold for $217,000, out of which arose a tax liability of $28,000 leaving appellee with a net of $189,000, or $36,000 less than the chancellor valued the farm.

It is concluded the value placed by the chancellor on appellee’s interest in the partnership is not clearly erroneous.

Turning to appellant’s argument that she is entitled to more alimony, all in a lump sum, it may be stated as a general rule that “alimony should be allowed to the wife in a lump sum if the character of the husband’s estate will permit it to be done.” Cf. Yung v. Yung, 294 Ky. 369, 171 S.W.2d 1017, 1019 (1943); and Ralston v. Ralston, Ky., 396 S.W.2d 775 (1965).

In Ralston at page 777 this court said :

“Of course, numerous factors are involved, including the value of the husband’s estate, his income, age, health, capacity and ability to labor, and the extent to which the wife has been instrumental in helping to accumulate his estate. The wife’s age, health, station in life, the time she has devoted to the marriage, having and caring for a child or children, and other circumstances must also be considered.”

See also Hicks v. Hicks, Ky., 290 S.W.2d 483.

The facts in the case at bar indicate there were no children born to the marriage; that appellee inherited substantially all his estate; that during the twenty years of their marriage their liabilities increased; that appellee spent considerable money toward the support of appellant’s child by her former marriage; that appellant strove to be a faithful companion to appellee, always mindful of his success and welfare.

The net value of appellee’s estate was fixed at $178,200, one-third of which amounts to $59,400. The lump sum of $37,500 added to the value of $200 monthly allowance benefits to appellant comes to a sum nearing amounts we have customarily approved. Appellant is about forty-eight years of age with life expectancy of about twenty-five years.

Regarding the ability of appellee to pay a lump sum amount, it should be kept in mind that after the sale of appellee’s home and farm, he realized only about $44,000 after payment of mortgage debts. This amount is sufficient to pay the lump sum provided by the judgment but leaves appel-lee more than $30,000 in debt. It is apparent that the allowance of a greater amount of lump sum alimony would have forced appellee to liquidate his interest in the tobacco warehouse and thereby cut off substantially all of his income.

The entire circumstances considered, we cannot say the judgment is clearly erroneous in not awarding a greater amount of alimony in a lump sum.

There remains the question of costs. Appellant engaged two qualified appraisers to value the property of appellee. They both testified for appellant and were paid $500 each by her. The chancellor allowed only $150 for each appraiser, or a total of $300. Under KRS 453.120 in an action for divorce, the husband is liable for the costs. The large amount paid the appraisers is an extraordinary item of costs. We think, under the circumstances, the chancellor was vested with some discretion in allowing and allocating a portion of this item against ap-pellee. We cannot say his discretion was abused or that his conclusion was clearly erroneous.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    Walter WOOLSEY, Appellant, v. Sadie Pearl WOOLSEY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.
    Damon A. Vaughn, Madisonville, for appellant.
   DAVIS, Commissioner.

In this divorce action the only issue presented upon appeal is whether the appel-lee-wife should be denied alimony on the ground of her moral delinquency. The trial court granted divorce to the appellant-husband.

The husband has filed a brief, but the wife has not filed any brief. Pursuant to RCA 1.260(c), we reverse the judgment upon the basis that appellant’s brief reasonably appears to sustain such action and because we regard the appellee’s failure to file brief as a confession of error warranting reversal. As was said in Wilcox v. Wilcox, Ky., 287 S.W.2d 622, 623: “The general rule is that where the divorce is granted to the husband and the wife is guilty of any moral delinquency, she can recover no permanent alimony.” The findings of the trial judge and the assertions in appellant’s brief reflect appellee’s moral delinquency.

The judgment is reversed only as it relates to alimony with directions to enter a new judgment denying alimony to the appellee, Sadie Pearl Woolsey.

All concur.


author: CLAY, Commissioner.

text:
    McKinley FLEMING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.

      Harry M. Caudill, Whitesburg, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

Appellant was convicted of grand larceny (stealing copper wire) under KRS 433.220 and sentenced to three years in the state penitentiary. On appeal he raises two questions for consideration.

At the trial the Commonwealth relied on the presumption of guilt created by virtue of appellant’s proven possession of the stolen property. See Chaney v. Commonwealth, Ky., 307 S.W.2d 770.

Appellant’s evidence consisted of his own testimony and that of five corroborating witnesses. He testified that one afternoon he took a load of coal to the home of Raymond and Louise Davis in McRoberts and while there a Jason Benge and Gay Bates showed him the wire and offered to sell it to him. This story was supported by Mr. and Mrs. Davis. Appellant testified he then drove back to Jenkins and that Bates and Benge followed him shortly thereafter. Russell Wyatt and Bobby Wyatt, cousins of appellant, and Chase Johnson, nephew of appellant, were at his home. They corroborated appellant’s testimony that he inspected and bought the wire from Bates and Benge that night. The whereabouts of Bates and Benge is unknown.

Appellant asserts on appeal that the possession of stolen property creates only a rebuttable presumption of guilt, rather than a conclusive one, and since he rebutted the presumption by unimpeached and uncontra-dicted witnesses, there was not sufficient Rogers v. Commonwealth, 289 Ky. 83, 158 evidence to sustain a conviction. He cites S.W.2d 144.

In the Rogers case the defendant was convicted of stealing hogs and the Commonwealth proved only that he had them in his possession. Three disinterested witnesses corroborated defendant’s testimony that he had bought the hogs from an unknown third person. Two testified that the third person had sought to sell them these hogs, and the other said he loaned the defendant money to make the purchase. Six other witnesses testified that defendant’s character and reputation had always been good. This case was so strong for the defendant that the attorney general frankly admitted the evidence was insufficient to sustain a conviction, which the court decided.

In the case at bar the evidence of appellant is not contradicted in the main, yet the credibility of the testimony is questioned.

Appellant operated a junk yard, but did not keep any record of his purchase of the copper wire as specifically required by KRS 365.251. His failure to comply with this statute casts a shadow on the alleged transaction. In addition, the witnesses for the defense could not arrive at any exact date in December when appellant allegedly bought the wire. Appellant stated it was sometime late in December. Louise Davis testified it was in December, sometime before Christmas. Russell Wyatt testified it was early in the month, about the tenth of December. Bobby Wyatt testified it was around the eighth of December.

Two of the witnesses were friends of appellant; two were cousins, and one was a nephew.

Furthermore, on arrest, appellant was unable to identify from whom he had purchased the wire. Yet, at the trial it appeared he knew the names of both of the boys from whom the purchase was allegedly made, and had known Benge for a considerable time.

In Crouch v. Commonwealth, Ky., 249 S.W.2d 540, where on arrest the accused’s story about how he had obtained a stolen car was different from that which he gave at the trial, the court held that the jury was not compelled to accept his explanation as true, even though uncontradicted by the Commonwealth.

In Burke v. Commonwealth, Ky., 249 S.W.2d 764, it was held the accused was not entitled to a directed verdict even though his testimony was uncontradicted since that testimony may be discredited in light of the circumstances surrounding it.

It is stated in Bower v. Commonwealth, Ky., 357 S.W.2d 333, 336:

“If such a person’s evidence does not establish conclusively that he came by the appropriated property in a blameless manner, his mere retention of the stolen property under the circumstances not only warrants the submission of the case to the jury but likewise is sufficient to sustain a verdict of conviction.”

We think that here the jury could well believe appellant did commit the offense in view of the circumstances heretofore mentioned, since they were not under any obligation to believe the accused or his witnesses, or that he came by the property in a blameless manner. Therefore we think the trial court was correct in submitting the case to the jury.

The other contention is that a new trial should have been granted because the trial court erred in receiving the verdict of the jury when one of the jurors, upon being polled, stated that she “guessed” it was her verdict. To establish an absence of unanimity, upon being polled the juror must connote that the verdict was given by her involuntarily, or forced upon her, or against her will. A showing of mere reluctance is not enough. See Cannon v. Commonwealth, 291 Ky. 50, 163 S.W.2d 15, and Coomer v. Commonwealth, Ky., 238 S.W.2d 161. In Hall v. Commonwealth, Ky., 402 S.W.2d 701, two jurors stated the verdict was against their “better judgment” and it was held a new trial should not be granted.

The words “I guess so” fall within the realm of mere reluctance, rather than indicating the juror’s vote was against her will or was involuntary. Therefore, we believe the verdict of the jury was unanimous and correctly received, and that the trial court properly overruled appellant’s motion for a new trial on this ground.

The judgment, is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    Edward HOPPER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.

      Dee L. McNeill, Hickman, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Edward Hopper was convicted of aiding and abetting Charles Davis and Mack Arrington in the commission of the robbery of Taylor Walker. He appeals from a judgment sentencing him to serve ten years in the penitentiary. Davis and Arrington had previously pleaded guilty. Davis was found to be an accomplice of Hopper.

The crucial question raised on this appeal is whether Davis’ testimony is corroborated as required by RCr 9.62. This rule reads:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. In the absence of corroboration as required by law, the court shall instruct the jury to render a verdict of acquittal.”

Upon trial Davis testified that Hopper had not only instigated and planned the robbery but had participated in it. Specifically Davis stated that he, Arrington and Hopper had met in Cairo, Illinois, and Hopper told them of his plans to rob Taylor Walker. After these plans were discussed they drove in Hopper’s car to a place on Bluff Road near Columbus, Kentucky, where Walker operated a fishing camp on a bank of the Mississippi River. Hopper, whom Walker knew, stayed in the car and Davis and Arrington walked to the fishing camp, found Walker alone, robbed him of approximately $800 and returned to the place where Hopper was waiting for them in his car. The three of them then returned to Cairo, Illinois, in Hopper’s car, where they were arrested.

Taylor Walker, the victim of the robbery, testified that during the afternoon of December 23, 1965, two men who were unknown to him came to his fishing camp and robbed him of $803. He stated that the sheriff took him that night to Cairo, Illinois, where he identified Davis and Arrington in a police lineup as the men who had robbed him. He stated that he had known Hopper since he was a child and that Hopper had been at the camp prior to the robbery, had purchased fish and had sought information about the operation of his camp.

Mrs. Louise Henley, who lived near Columbus, Kentucky, was acquainted with Hopper and could recognize the automobile he owned. She testified that during the afternoon of the robbery she saw Hopper driving his car on Bluff Road. She stated that her attention was attracted to Hopper by his unusual conduct in repeatedly driving up and down the road past her home.

Her testimony contradicts that of Hopper. While Hopper admitted that he had driven his automobile past the Henley residence during the afternoon of the robbery, he claimed this occurred only while he was en route to Hickman, Kentucky, on a personal mission. He maintained he had no • connection with the robbery and knew nothing about it.

The corroborating testimony required is that it should tend to connect the defendant with the commission of the offense. Williams v. Commonwealth, 257 Ky. 175, 77 S.W.2d 609; Mann v. Commonwealth, Ky., 79 S.W. 230, 25 Ky.Law Rep. 1964. It is sufficient if it be of such nature and character as to inspire belief in a reasonable and unprejudiced mind that it points toward guilt and links up with the principal fact under investigation. Hamershoy v. Commonwealth, Ky., 408 S.W.2d 624; Hartsock v. Commonwealth, Ky., 382 S.W.2d 861.

Applying these guidelines we believe that the testimony, although circumstantial, when considered with the fact that Hopper had visited the fishing camp seeking information from Walker about its operation, is sufficient corroboration of Davis’ testimony to warrant submission of the case to the jury and to sustain a guilty verdict.

While the record does reflect that some incompetent testimony was elicited during the course of the trial, we have carefully reviewed it and find that it could not have been prejudicial.

The judgment is affirmed.

All concur.


text:
    Gladys H. JACKSON, Appellant, v. Chris S. JACKSON, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.
    James G. Sheehan, Jr., Danville, for appellant.
    James F. Clay, Sr., Clay & Clay, Dan-ville, for appellee.
   WADDILL, Commissioner.

Appellant, Gladys Jackson, and appellee, Chris Jackson, were granted a divorce in the Boyle Circuit Court in February 1962. At that time the court found appellee’s net worth to be $81,800 and awarded appellant property valued at $30,000 as lump sum alimony plus monthly alimony of $500. During March 1966 an agreed judgment was entered reducing the monthly alimony to $275. In January 1967 appellee asked the circuit court to relieve him of further payments of alimony. Appellant objected to this motion being heard on the ground that appellee was in contempt of court for failure to make two monthly payments of alimony.

In ruling on appellee’s motion the circuit court found that the financial circumstances of the parties had changed and concluded that a lump sum payment of $3000 by ap-pellee to appellant would “satisfy in full all alimony, now due or to become due.” This payment is payable prior to March IS, 1970.

Appellant contends the circuit court erred in considering appellee’s motion because appellee was in contempt of court. The appellant does not allege nor does the record show that she ever sought or obtained an order of contempt against appel-lee. The failure of appellee to timely make alimony payments in and of itself does not preclude him from being heard on his motion. See Knight v. Knight, Ky., 341 S.W.2d 59; 17 Am.Jur.2d, Contempt, Section 106, at page 63.

Appellant next contends the circuit court erred in depriving her of the two delinquent alimony payments. It is apparent from the findings of the circuit court that the award of $3000 included all payments due appellee, the two delinquent installments of alimony being collectible at any time and the balance being deferred to 1970.

Finally, appellant urges that the lump sum award is so inadequate as to constitute an abuse of discretion. Appellant received an adequate lump sum alimony at the time the divorce was granted. Ralston v. Ralston, Ky., 396 S.W.2d 775. The circuit court found that appellee’s income was greatly decreased while appellant’s has improved. Appellant does not attack this finding. Under the circumstances of the instant case the circuit court did not abuse its discretion.

The judgment is affirmed.

All concur.


author: MILLIKEN, Judge.

text:
    Ray Kelly LEM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.

      John C. Bondurant, Hickman, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   MILLIKEN, Judge.

The appellant, Ray Kelly Lem, was convicted of armed robbery of the sheriff of Fulton County and sentenced to life imprisonment. On this appeal he raises two questions:

(1) Does conviction upon federal charges of interstate transportation of a stolen automobile (U.S.C. Title 18, Section 2312) and sentence imposed in keeping with the penalty provided for such conviction, work as a bar to state prosecution for an independent criminal act, to-wit, armed robbery?
(2) Is an instruction on robbery — as distinguished from armed robbery — mandatory when all evidence disclosed that the victim was rendered helpless at gun point, thereafter being bound and tied by his assailant and then robbed of his possessions?

On the day of the crime, the sheriff received a request to investigate a disturbance and in responding to it he and his deputy found no disturbance but did happen upon an automobile in which the appellant and two other persons were passengers. The sheriff believed this automobile to be one which had been stolen. The officers stopped the vehicle and asked the driver of it, James Pinion, alias Bobby Joe Jones, for his license or other indicia of ownership. Pinion could not produce any such document and thereupon, the sheriff left the vehicle and walked to his police car to obtain his citation book while his deputy stood by the automobile. As the sheriff stood by his police car in the process of writing a citation, he was given an order by one of the occupants of the automobile, which one he did not know, to “freeze”, and was told that if he did not do so his deputy would be shot. The sheriff then saw that the driver of the automobile had alighted and had placed himself in a position behind the deputy and was holding the deputy at gun point. A second occupant of the automobile, one Evelyn Haws Lem, was also standing by the automobile with a pistol which was pointed midway between the sheriff and the deputy. The appellant removed the deputy’s gun, advanced on the sheriff and took the sheriff’s gun from the hold of the police car where it had been placed by that officer in keeping with his assailant’s directions. The sheriff and his deputy were then forced at gun point back into their automobile by Pinion. The two vehicles, one occupied by the sheriff and his deputy and operated by the sheriff at Pinion’s gun point, and the stolen automobile, occupied by appellant and Evelyn Haws Lem, were then driven to a farm where a deserted barn was located.

Upon arrival, the sheriff at gun point turned over to Pinion the keys to the police car. Pinion then obtained from the trunk of the sheriff’s car a pair of handcuffs and another revolver. While Pinion obtained the handcuffs, the appellant and Evelyn Haws Lem held the sheriff and his deputy at gun point. The trio then forced the sheriff and his deputy into the barn where the sheriff was handcuffed to a post and the deputy was bound by rope to another post. While Pinion was tying up the deputy, the appellant and his female companion robbed the sheriff of his personal effects. The property taken from the sheriff consisted of $90.00 in cash, a watch and a pocket knife. Thereafter, other property belonging to the sheriff was removed from his car by the trio.

Appellant’s first contention presents to this court a rather novel theory. It is maintained that the federal judge, prior to imposing sentence upon the appellant, after his plea of guilty, for his federal criminal act of interstate transportation of a stolen automobile, (U.S.C. Title 18, Section 2312), examined and took into consideration the state charge then pending in this state court against the appellant, namely, armed robbery. Upon this assumption appellant maintains he has been previously tried and convicted by the federal courts for the state criminal acts. There is no contention made that the federal courts did not have jurisdiction to try the appellant on the federal charges, or that the federal judge did not have the power and authority to impose the sentence rendered which was the maximum sentence allowable.

There is no relationship between the federal and state charges for which appellant was convicted. Each required entirely different evidence to sustain it. This is so factually obvious that it is unnecessary to discuss instances where the same criminal act is a violation of both state and federal law, but even then the plea of double jeopardy is not available. United States v. Mandile (D.C.N.Y., 1954) 119 F.Supp. 266; Ferina v. United States (8th Circuit, 1965), 340 F.2d 837; cert. denied 381 U.S. 902, 85 S.Ct. 1446, 14 L.Ed.2d 284; United States v. Sutton (D.C.Md., 1965) 245 F.Supp. 357, affirmed 363 F.2d 845 (1966).

On the second point raised by the appellant — that he was entitled to an instruction on “robbery” as distinguished from “armed robbery” because no gun was pointed at the sheriff at the time his property actually was taken — that the gun was pointed at him only until he was securely hitched to the post, we can only observe that the appellant’s course of criminal conduct was a continuous act so far as the law is concerned. If the appellant’s logical contention were legally sustainable, a well-informed bandit could point his gun at his victim and say politely, “Please place your wallet on the table for me so that I may be relieved of the consequences of forcibly taking it,” and after the victim had acceded to the polite request, the punishable stick-up would become merely an enjoyable pick-up for the courteous criminal.

The judgment is affirmed.

All concur.


text:
    Clifford PAYNE, Appellant, v. Robert E. PETRIE, Mayor et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.

      Leland Logan, Bowling Green, for appellant.
    Jerry L. Moore, August Winkenhofer, Jr., City Sol., and Charles H. Reynolds, of Bell, Orr & Reynolds, Bowling Green, for appellees.
   DAVIS, Commissioner.

This appeal tests the validity of an ordinance adopted by the City of Bowling Green, a second-class city, imposing a 1% occupational license fee upon persons, associations and corporations engaging in occupations, trades, professions and businesses within the city. The trial court adjudged that the ordinance was valid.

The bases of appellant’s attack on the judgment may be summarized as: (1) irregularity in the passage of the ordinance and (2) unconstitutionality of the ordinance.

With respect to the claimed formal irregularity of passage of the ordinance, it is to be observed that Bowling Green is served by a bicameral legislative body, and it is the action of the twelve-member Board of Council which is questioned. When the ordinance came on for vote at a regular meeting of the council, October 3, 1966, all twelve members of the council were present and six of them affirmatively voted “yea” for passage of the ordinance. Five members of the council voted “nay,” and one member “passed.” Thereupon, motion was made, duly seconded and unanimously adopted that the council “ * * * suspend the rules and regulations at this time and have second reading.” Accordingly, a second reading was given the ordinance; and when it was put upon its passage, the affirmative vote was again six “yeas,” five “nays” and one “pass.” The ordinance was declared to be adopted.

One of the council members who voted for the ordinance on each of its readings was councilman Newman. The appellant asserts that councilman Newman had moved from the first ward from which he had been elected and had thereby vacated his office. The trial judge heard evidence touching this issue and found as a fact that councilman Newman had not abandoned his residence in the first ward at the time he voted for the ordinance, October 3, 1966. Our examination of the record convinces us that the factual finding of the trial judge was supported by evidence warranting the finding and that the finding is not clear or at all erroneous. In such case we accept the finding. CR 52.01. It follows that the claimed disqualification of councilman Newman is without merit.

Appellant calls attention to KRS 84.070 and 84.100(1) and (3) and asserts that these statutory provisions make inapplicable the common law rules which have obtained in other situations not involving similar statutes.

KRS 84.070 defines a quorum for a board of councilmen of a second-class city as “[a] majority of the members of the board”.

KRS 84.100(1) appears to have no significant bearing on the issues at bar, and appellant does not suggest in what manner he considers . that particular section of the statute as inhibiting the actions taken by the Bowling Green Board of Council. KRS 84.100(3) provides:

“No ordinance or resolution shall be passed until it has been voted for by a majority of the members of each board, on a viva voce vote entered in full on its journal, and has been read in each board at two separate meetings and free discussion allowed thereon; but the requirement of a reading at two separate meetings may be suspended by a vote of two-thirds of the members of the board in which the proposed ordinance or resolution is pending.”

Appellant contends that the questioned ordinance failed of being adopted as required by the just quoted statute in two respects. First, it is maintained that the ordinance was not read at two separate meetings. We think there is no merit in the argument on this point. The statute specifically provides that the requirement of a reading at two separate meetings may be suspended by a vote of two-thirds of the members of the board. As shown, the requirement was suspended by a vote of all members of the board. Appellant contends that the Bowling Green council had never adopted any rules and, therefore, could not vote to suspend non-.existing rules. We are unable to accept that argument and consider that the statutory suspension was appropriately adopted, and the ordinance was effectively enacted insofar as the reading at two separate meetings is concerned.

A more serious attack upon the formal passage of the ordinance rests upon the fact that only six members of the Board of Council voted affirmatively for passage while it is provided by KRS 84.100(3) that: “No ordinance * * * shall be passed until it has been voted for by a majority of the members of each board, on a viva voce vote entered in full on its journal, * * * ” six is not a majority of twelve, and unless the “pass” vote of one member can be counted as a “yea” vote, the ordinance failed of obtaining the required majority. The question at bar has been before this and other courts on numerous occasions, and the applicable rule has been stated in varying language. Some of the cases in which the question has been faced include Pierson-Trapp Co. v. Knippenberg, Ky., 387 S.W.2d 587; Morton v. Jungerman, 89 Ky. 505, 12 S.W. 944; Ray v. Armstrong, 140 Ky. 800, 131 S.W. 1039; Lawrence County v. Lawrence Fiscal Court, 191 Ky. 45, 229 S.W. 139; Montgomery v. Claybrooks, 213 Ky. 493, 281 S.W. 469; Hyden v. Tarter, 302 Ky. 184, 194 S.W.2d 174; Craft v. Hall, Ky., 275 S.W.2d 410; City of Springfield v. Haydon, 216 Ky. 483, 288 S.W. 337; and Napier v. Gay, 264 Ky. 359, 94 S.W.2d 682.

In Pierson-Trapp Co. v. Knippenberg, Ky., 387 S.W.2d 587, 588; it was written:

“The rule is that when a quorum of a governing body is present those members who are present and do not vote will be considered as acquiescing with the majority.”

We adhere to that rule, but amplify it to point out that the word “majority” as used in the rule does not mean a numerical majority of the entire elected membership of the board, but means a majority of those present and voting. In the case at bar, six members voting “yea” constituted a majority of the eleven members who voted. Under the rule as stated, the “pass” vote must be counted as voting with the six, thereby making seven affirmative votes. Seven, of course, is a majority of twelve. Obviously there is no question of quorum, since the entire membership was present.

In Craft v. Hall, Ky., 275 S.W.2d 410, the rule did not come into effect because there were only two members voting in a board composed of four. Two was not a majority of the four; hence the two abstaining voters could not be regarded as voting with a non-existing maj ority group.

We are not persuaded that the requirement that the votes be “viva voce” affects the case at bar. See 44, Words and Phrases Viva Voce p. 522, in which it is said:

“The word ‘ballot’ is used as a symbol of secrecy, while ‘viva voce’ is used as a symbol of publicity. Day v. Walker, 247 N.W. 350, 351, 124 Neb. 500.
“The term ‘viva voce,’ when applied to elections, is used in opposition or contradistinction to the ballot, and simply means that the voter shall declare himself by voice, instead of by ballot. In re Brearton, 89 N.Y.S. 893, 899, 44 Misc. 247.”

It appears that less formality is required for a “viva voce” vote than for a secret or written ballot. We can perceive no basis for concluding that the voice vote prescribed by the statute removed it from the long-established rule in this jurisprudence.

The appellant seeks to attack the ordinance as being an unlawful interference upon interstate commerce in contravention of Article 1, § 8 of the United States Constitution. He cites Kentucky State AFL-CIO v. Puckett, Ky., 391 S.W.2d 360. We need not reach the question presented inasmuch as the appellant does not claim that he is engaged in interstate commerce, and thus he does not have standing to attack the ordinance on the ground that it unduly burdens interstate commerce. Kohler v. Benckart, Ky., 252 S.W.2d 854.

The judgment is affirmed.

All concur.


text:
    Jesse RUSSELL, Appellant, v. Phillip PRATER, by his next friend, Christine Prater, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.
    J. K. Wells, Paintsville, for appellant.
    Arnett Mann, Salyersville, for appellee.
   CLAY, Commissioner.

Appellee, who was riding a motorcycle, collided with appellant’s parked automobile and recovered a substantial judgment for personal injuries. The only question raised on appeal is whether appellant was entitled to a directed verdict on the ground that ap-pellee was contributorily negligent as a matter of law.

In the daytime, on a public highway in Magoffin County, appellant’s car was parked on the right hand side as appellee approached. It extended partially onto the traveled portion somewhere between two and four feet. The position of the car was on a curve to the left, but there was substantial evidence (not contradicted by ap-pellee) that the automobile was in a clearly observable position from a distance of at least ISO feet.

Appellee’s version of how the accident happened is that he did not see the automobile until he was 30 or 40 feet from it, at which time he said he was operating his motorcycle at a speed of from 35 to 40 miles an hour. There was ample room for ap-pellee to avoid striking the automobile by going slightly to the left in his own lane, there being no other obstructions, but he said he did not make this maneuver because it would cause the motorcycle to “slide out from under you”.

Clearly appellant was negligent in having his automobile parked partially upon the traveled portion of the highway. KRS 189.450(1). If, however, appellee was con-tributorily negligent, he cannot recover.

Except for sympathetic considerations, we cannot believe that reasonable minds could conclude under the facts of this case that appellee was not negligent. To say that a person on a motorcycle is exercising due care when, in broad daylight, he runs over an automobile partially parked on a public highway in plain view for a substantial distance, is simply contrary to any concept of a motorist’s responsibility.

If we accept appellee’s statement that he did not see the automobile until he was 30 or 40 feet away, he could not have been keeping any prior lookout whatever. If by any stretch of the imagination he was keeping a proper lookout, he clearly did not have his motorcycle under reasonable control since he was unable to slow down and swerve it a very few feet to avoid this obvious obstruction. He testified, “I thought I was going slower”. While the facts are somewhat different, the principles applied in Banner Transfer Company v. Morse, Ky., 274 S.W.2d 380, are applicable here. Appellee was contributorily negligent as a matter of law.

Appellant’s motion for judgment notwithstanding the verdict should have been sustained.

The judgment is reversed with directions to enter judgment for the defendant.

All concur.


text:
    Jewell WIARD, Appellant, v. KEN-WEL, INC., and Special Fund of Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Oct 20, 1967.

      Max M. Smith, Chancellor & Darnell, Frankfort, for appellant.
    C. W. Swinford, Stoll, Kennon & Park, Lexington, Paul Rehm, Versailles, for ap-pellees.
   EDWARD P. HILL, Judge.

This appeal is from a judgment upholding an order of the Workmen’s Compensation Board denying appellant’s claim for total permanent disability. She was, however, awarded temporary total disability and her medical expenses, with respect to which there is no controversy.

In appellant’s brief under “Questions Presented,” the following argument is relied upon for a reversal of the judgment:

“The Workmen’s Compensation Board and the Franklin Circuit Court erred in not awarding appellant total and permanent disability award where undisputed facts clearly proved that appellant was required to give up her only employment for health reasons brought about solely by her employment and suffers from permanent chemical changes in her body, impairing her health and is limited medically to the type of future employment she may obtain, and because of her age and limited education is unable to find employment and is therefore for all practical purposes removed from the economic market.”

Before pursuing this question further, let us look into the facts. Appellant, a widow, is fifty-five years of age. She has worked for appellee for twelve years, the last five of which were spent as a solderer on an assembly line engaged in the manufacture of ignition transformers for the oil burning industry. She was required to solder lead wire that goes into condensers.

Appellant claims to have experienced her first manifestation of pain or distress during September 1965. She complained of shortness of breath and chest pains. She was off from work with this condition part of September and October. She returned to work on October 12, 1965, but became ill at her work station and was hospitalized. Her doctor diagnosed her illness as acute pulmonary edema (excessive fluid on the lungs). She again returned to work on October 25, 1965, but within a week thereafter she again became ill with the same symptoms. Doctors Howard and Cowherd treated her, and they testified in her behalf in the proceeding before the Board.

Appellee offered no evidence. Therefore, we must look to appellant’s evidence to determine whether or not the evidence was so forceful and convincing as to require the Workmen’s Compensation Board to accept her version of the case and award her total permanent disability. This court will not substitute its judgment for that of the Workmen’s Compensation Board or reverse its orders, decisions, or awards unless they are clearly erroneous on the basis of reliable probative and material evidence contained in the whole record. KRS 342.285(3) (c) and (d). Also, where the evidence is not clear cut and convincing, the Board had the right to find that the injury did not arise out of and in the course of the employee’s employment and its findings could not be overturned by the courts. Cf. Columbus Mining Company v. Childers, Ky., 265 S.W.2d 443. This court has continued to follow the rule in Childers, supra, in many later cases. See Lee v. International Harvester Co., Ky., 373 S.W.2d 418; Savage v. Claussner Hosiery Company, Ky., 379 S.W.2d 473; Miller v. Olin Mathieson Chemical Corporation, Ky., 398 S.W.2d 472; Shaw v. Sippi Products, Ky., 411 S.W.2d 926, and Graves v. Merit Laundry and Dry Cleaning Company, Ky., 416 S.W.2d 736.

Appellant’s evidence, without contradiction, shows she is not totally and permanently disabled. Dr. Howard was asked the following question and answered thus:

“Q. With this idea in mind and based upon your findings do you have any opinion as to whether or not Mrs. Wiard has sustained any loss of ability to obtain work as a result of these factors ?
“A. Certainly at Ken Wei she has. I don’t think that this is a permanent disability at all, she has had. I think it is a very temporary thing but I do think it ought to keep her from going back to Ken Wei but not keep her from any other position — let me take that back — there are many other positions or jobs she can perform.”

Dr. Howard stated that appellant was allergic to the “fumes” or conditions that existed at her place of employment with Ken-Wel; that she was also allergic to “several things,” such as penicillin, codeine, and the mycin drugs; that he also had appellant’s history from another doctor, who reported she was allergic to “penicillin, all myecin (sic) drugs, aspirin, codeine, sulfa, Pento-thal, Darvon and novocain.” Dr. Howard went on to state: “Yes, I think her general makeup is such — some people are allergic to most anything and have a tendency to be allergic to a lot of things. I think Mrs. Wiard is one of those and that has nothing to do with employment or what she comes around or what. Some people are more prone to have allergies than others and she apparently is one of these.” He stated appellant had three separate attacks of pneumonia previous to the illness she complained of in this case.

The sum and substance of the testimony of Dr. Howard is that appellant is not totally and permanently disabled but only disabled, in his opinion, from performing the work she customarily did at Ken-Wel due to the presence of “fumes” or to the inherent atmospheric conditions in that particular plant. Such “fumes” or the condition of the air at Ken-Wel did not affect other employees; only appellant was affected due to the chemical make-up of her system, the cause of which he could not explain.

The evidence of Dr. Cowherd, Dr. Howard’s partner, was substantially the same as that of Dr. Howard.

Without question, disability from the inhalation of noxious gases is com-pensable and has been since the 1924 amendment to the Workmen’s Compensation Act. See T. M. Crutcher Dental Depot v. Miller, 251 Ky. 201, 64 S.W.2d 466. Incidentally, appellant relies upon Crutcher and other similar cases, such as: Harlan Colleries v. Arthur Smith, Ky., 396 S.W.2d 67; Good v. Russell Fork Coal Co., Ky., 387 S.W.2d 842; and Royal Jellico Coal Co. v. Cunningham, Ky., 411 S.W.2d 928.

It is noted that in Crutcher, the claimant had a total permanent disability which the Board found to have been caused by inhaling gases. In the present case appellant’s medical testimony, as noted above, shows she has recovered from her illness caused from inhaling “fumes.”

Cunningham, supra, involved a hip injury to a coal miner who had worked in the mines for thirty-five years. This court upheld the award of the Board finding Cunningham disabled to perform work in his “former occupational classification.” Smith, supra, was a silicosis case but rested on the same rule of law as Cunningham.

Appellant argues that due to her uncon-tradicted medical evidence advising against her returning to her former work and her age and limited education she comes within the rule in Cunningham and Miller, supra.

We observe a vast difference between the “occupational classification” of a coal miner and a person engaged to do a particular item of work in a factory. In the former, the first qualification of a coal miner is a strong back and a fearless disregard for dark, damp underground hazards, such as rock and slate falls, rock dust, danger of electrocution, injuries from machinery and from delayed explosions. It is a specialized occupation with knowledge of hazards and pitfalls handed down from generation to generation.

On the other hand, the occupation of appellant involved the doing of one particular piece of work, requiring only a short period of training with little or no previous skill or experience. She could just as easily have been trained to do another “item” of work in which no “fumes” were present. Or she may have obtained other employment requiring no more training or experience than was necessary for the performance of her work with appellee. In fact, there was testimony she was offered other work by appellee, which she declined.

To summarize, the appellant has no permanent disability to do ordinary work which she is capable of doing. She is merely unable to tolerate the atmospheric conditions of the particular work she was performing at the time of her illness. These conditions did not affect any of the other persons working along side of appellant. Her difficulty was, and is, in her sensitivity to the “fumes” or atmospheric conditions at her work station. Her system is allergic to the impurities of the usual air conditions at her work place. In fact, her system is allergic to many other things. This is unfortunate but noncompensable under our statute and case law.

Our recent case, McDonald v. Goodwin Brothers, Ky., 379 S.W.2d 54 (1964), is identical to the present case. McDonald, age sixty-five with a seventh-grade education, was an automobile mechanic who suffered from exposure to plastic filler dust in automobile body work. This court said in McDonald that claimant failed to sustain his burden of proof that the use of plastic filler is so widespread as to preclude his employment opportunities and that he (McDonald) “is able to do work which is available for him to do.”

Shaw v. Sippi, Ky., 411 S.W.2d 926, is indistinguishable from the present case. The facts in Shaw are similar in that Shaw claimed “contact dermatitis” due to handling clay products containing chemicals. Compensation was denied in Shaw.

The judgment is affirmed.

All concur.


text:
    Payne RICE, Individually and d/b/a etc., et al., Appellants, v. Hollie CONLEY et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.
    J. K. Wells, Paintsville, for appellants.
    G. C. Perry, III, Paintsville, Earl Cooper, Salyersville, Robert L. Milby, Hamm, Taylor & Milby, London, for appellees.
   WADDILL, Commissioner.

On the appeal of the above captioned case we affirmed the judgment which had sustained an award of Workmen’s Compensation to appellee, Hollie Conley. Rice v. Conley, Ky., 414 S.W.2d 138. Although a supersedeas bond had been executed, our mandate was issued without awarding Conley 10% damages under KRS 21.130. Conley has moved to amend the mandate and to grant him 10% damages.

Conley contends that upon affirmance of the judgment inclusion of damages in the mandate was required pursuant to KRS 21.130. This section provides in pertinent part:

“ * * * where the appeal is from a judgment for the payment of money, the collection of which, in whole or in part, has been superseded, as provided in the Rules of Civil Procedure, ten percent damages on the amount superseded shall be awarded against the appellant.”

In sustaining a motion for damages pursuant to this statute in Illinois Central Railroad Co. v. Commonwealth, 143 Ky. 217, 136 S.W. 222, we said:

“The statute above quoted is peremptory. The court is given no discretion. When a judgment for the payment of money has been superseded, 10 percent damages on the amount superseded must be awarded against the appellant as a matter of right. The failure of the clerk to enter the judgment for damages as required by the statute was a clerical error. * * * »

We further observed in Baker v. Fidelity & Deposit Company of Maryland, Ky., 355 S.W.2d 150, that:

“To permit an appellant to stay and delay without penalty, as was done in this case, contravenes the purpose of the penalty provision and is wrong. * * * >>

Appellants insist that KRS 21.130 is inapplicable because a judgment affirming an award of the Workmen’s Compensation Board is not a judgment “for the payment of money.” They contend that in a Workmen’s Compensation case a judgment for the payment of money can be obtained only in a proceeding under KRS 342.305 which provides a method of converting an award of the Board to a circuit court judgment. The contention overlooks the fact that KRS 342.285 also provides a means of obtaining a judgment upon an award of the Board. When an award setting forth the amount and time of payment has become a part of a circuit court judgment, it constitutes a money judgment.

The Board awarded Conley $33.33 a week for 425 weeks. We hold that an enforceable money judgment was obtained by Conley upon the affirmance of the award in the circuit court. KRS 342.285. Hence, Conley is entitled to 10% damages on so much of the superseded judgment as was due and payable at the time the mandate of this court issued.

The motion is sustained and the clerk of this court is directed to amend the mandate accordingly.

All concur.


author: DAVIS, Commissioner. OSBORNE, Judge

text:
    James HALLAHAN, Clerk of Jefferson County Court, Appellant, v. Orville MOODY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 19, 1967.

      E. P. Sawyer, Edith F. Stanley, Louisville, for appellant.
    Richard M. Trautwein, Louisville, for appellee.
    Robert Matthews, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., Frankfort, Robert L. Durning, Jr., Harris J. Berman, Louisville, amici curiae.
   DAVIS, Commissioner.

The appellee, Orville Moody, and five other residents of Jeffersontown presented to the appellant, James Hallahan, Clerk of the Jefferson County Court, a nominating petition and requested that their names be placed upon the ballot as candidates for six councilmanic seats to be voted upon in Jeffersontown at the general election, November 7, 1967. The nominating petition was presented to the appellant-clerk after the date of the primary election held in May 1967. The appellant-clerk declined to accept the nominating petition because it had not been filed at least forty-five days before the day of the May 1967 primary as required by KRS 86.225. The petition was not alleged to be deficient in any other respect.

Appellee Moody instituted this action seeking a declaration of rights and demanding that the names of the six proposed candidates be placed upon the ballot to be submitted to the electors of Jeffersontown at the November 7, 1967, election. The trial court granted the relief sought and held KRS 86.225 unconstitutional as being “ * * in violation of the Constitution of the Commonwealth of Kentucky, particularly but not limited to Section 59.”

The appellant challenges the propriety of the judgment and asserts that KRS 86.225 is constitutional and dispositive of the issues at bar. The appellee argues that the judgment of the trial court is correct and presents three bases in support of it: (1) KRS 86.225is not applicable to independent candidates nominated by petition; (2) KRS 86.225was repealed by implication by the ¡subsequent re-enactment of KRS 118.070, 118.080, and 118.130; and (3) in any event, KRS 86.225 is unconstitutional.

KRS 86.225 was enacted in 1960 and provides:

“No person shall be a candidate for any elective city office in a city of the fourth class that is operating under the council-manic form of government, unless his nomination papers have been filed with the county court clerk not less than forty-five days before the day fixed by law for the holding of primary elections.”

Jeffersontown became a city of the fourth class in 1966. KRS 81.010. It operates under the councilmanic form of government. Agreed statements of counsel upon oral argument disclosed that six persons filed nomination papers as Republican candidates for the councilmanic offices of Jeffersontown at least forty-five days before the date of the primary election of May 23, 1967. These individuals filed a brief as amici curiae, as did the Attorney General.

Appellee’s contention that KRS 86.225does not apply to candidates nominated by petition is an ingenious one, but we are not persuaded by it. Appellee contends that the words “nomination papers” as used in the statute have specific legal reference to the papers required to be filed by candidates in partisan primary elections. In support of this contention, appellee cites various sections of KRS Chapters 119 and 124 in which the expression “nomination papers” is frequently used as descriptive of the documents required to be filed in party primaries. The appellee suggests that the legislature should and would have used the words “nominating papers” in lieu of “nomination papers” had it intended that KRS 86,225 should apply to independent candidates nominated by petition. Without belaboring the point, we are convinced that the legislative intent deducible from reading KRS 86.225 plainly embraces all candidates for any elective city office in a city of the fourth class operating under the coun-cilmanic form of government. It should be observed that absent such a construction, there would have been no reason for the adoption of KRS 86.225, since other statutory provisions already required that the nomination papers of all but independent candidates be filed not less than forty-five days before the day fixed for holding the primary election.

Appellee points out that KRS 119.020(4) specifically excludes partisan primary elections for certain candidates in fourth-class cities operating under the commission form of government or the city-manager form of government. It is reasoned by the appellee that the real purpose of KRS 86.225 was to make it perfectly clear that the nomination papers required by KRS 119 are required for fourth-class cities operating under the councilmanic form of government in instances where candidates wish to represent major political parties. In our view this argument is untenable and requires a strained construction. We hold that KRS 86.225 is applicable to candidates for city offices in fourth-class cities operating under the councilmanic form of government whether they file in party primaries or as independent candidates, because we are persuaded that the legislative intent impels that conclusion. Asher v. Stacy, 299 Ky. 476, 185 S.W.2d 958; City of Frankfort v. Triplett, Ky., 365 S.W.2d 328.

Appellee points to the re-enactment of KRS 118.070, 118.080, and 118.130 as superseding KRS 86.225. This argument overlooks the fact that the three cited sections of KRS Chapter 118 were in force in 1960 when KRS 86.225 was enacted, and that the subsequent re-enactment in 1964 of KRS 118.070, 118.080, and 118.130 was accomplished for the sole purpose of affecting elections for members of boards of education. There was no change respecting the filing of nomination papers of candidates in fourth-class cities operating under the councilmanic form of government. We think the rationale of Dillon v. Stubbs, 267 Ky. 17, 100 S.W.2d 823, and West v. Hedger, Ky., 350 S.W.2d 624, rules the case at bar. In each of those cases, we dealt with the effect of re-enactment of statutes as affecting existing inconsistent legislation and held that the re-enacted legislation would not repeal apparently inconsistent legislation, because there was a complete absence of any language to reflect a legislative intent to amend or repeal the preexisting statutory law. It is clear that the legislature made no reference to fourth-class cities in its re-enactment of KRS 118.070, 118.080, and 118.130, and under the principles enunciated in the cases cited, the re-enactment of those sections did not supersede or impliedly repeal KRS 86.225.

It is urged that KRS 86.225 is violative of Kentucky Constitution §§ 6, 59, and 60. It is noted that the trial court ruled that the statute runs afoul of Kentucky Constitution § 59.

Turning first to the charge that the statute violates Kentucky Constitution § 6, we note that § 6 of the Constitution tersely states: “All elections shall be free and equal.” That constitutional requirement is not a limitation on legislative authority to enact reasonable regulations for naming of candidates by political parties and groups of voters. Asher v. Arnett, 280 Ky. 347, 132 S.W.2d 772; Rosenberg v. Queenan, Ky., 261 S.W.2d 617. We perceive no basis for holding that the filing requirements imposed by KRS 86.225 are unreasonable or unconstitutional as violative of Kentucky Constitution § 6.

Kentucky Constitution § 59 provides in pertinent part: “The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely: * * * Twentieth. To provide for conducting elections, or for designating the places of voting, or changing the boundaries of wards, precincts or districts, except when new counties may be created.” Kentucky Constitution § 60 forbids special laws. It is contended that there is no reasonable basis for requiring independent candidates for city offices in fourth-class cities operating under the councilmanic form of government to file their nomination papers before the primary when no such requirement is made in cities of other classes. Reliance is had upon City of Louisville v. Kuntz, 104 Ky. 584, 47 S.W. 592, 20 Ky.Law Rep. 805. That authority is not challenged, but its lack of impact in the present situation is illuminated by the construction placed upon it in Logan v. City of Louisville, 283 Ky. 518, 142 S.W.2d 161. In Logan it was specifically pointed out that the legislation struck down in City of Louisville v. Kuntz, supra, “had no relationship whatever to local municipal government”. The decision in Logan v. City of Louisville, supra, was posited upon Hager v. Gast, 119 Ky. 502, 84 S.W. 556, and express approval was given to Richardson v. Mehler, 111 Ky. 408, 63 S.W. 957, in which it was said: “In considering the question presented, all those parts of the constitution which relate to this matter [special and local legislation] must be considered together, and it must be borne in mind that section 156, with regard to municipalities is an exception to section 59.” Id. 63 S.W. at 961.

It becomes apparent that Kentucky Constitution § 156 which relates to the power of the legislature to classify cities affects any consideration of the alleged unconstitutionality of KRS 86.225 based upon that statute’s claimed violation of §§ 59 and 60 of the Kentucky Constitution. So long as the subject matter of legislation pertains to the local government or organization of a particular class of cities, differentiations between classes of cities have been sustained as constitutional in face of assaults upon them as violative of §§ 59 and 60. We cannot say that a differentiation among cities of the same class, by which cities with a councilmanic form of government must effect the selection of its officers in a manner different from that which applies to cities having a commission or city-manager form, is an unreasonable or illogical classification. In addition to the cases just cited, see Dieruf v. Louisville and Jefferson County Board of Health, 304 Ky. 207, 200 S.W.2d 300; Jobe v. City of Erlanger, Ky., 383 S.W.2d 675. It seems clear that KRS 86.225 may not be assailed as contravening any section of the Constitution of Kentucky, and the decision of the circuit court to the contrary was erroneous.

The views we have expressed make it unnecessary to consider or decide certain subordinate questions which have been presented in briefs and arguments. Since the nominating petition was not timely filed as required by KRS 86.225, the six names proposed as candidates are not entitled to be placed upon the ballot.

The judgment is reversed with directions to enter a new judgment denying the relief sought in the complaint.

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

OSBORNE, Judge

(dissenting).

I dissent from the holding of the majority in this case. Section 156 of our Constitution provides for the classification of cities on the basis of population.

“The cities and towns of this Commonwealth, for the purposes of their organization and government, shall be divided into six classes. The organization and powers of each class shall be defined and provided for by general laws, so that all municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.”

It is obvious that this classification is only for the purpose of “organization” and “government.” Certainly this does not pertain to elections. Section 59(20) provides,

“The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely: * * *.
“To provide for conducting elections, or for designating the places of voting, or changing the boundaries of wards, precincts or districts, except when new counties may be created.”

I do not believe KRS 86.225 relates to the organization and government of cities but does relate to the conduct of an election. The power of the legislature is restricted under section 59(20), therefore the statute is in violation of the Constitution.

For the foregoing reasons, I respectfully dissent.

      . Cf. Treadway v. Miller, Ky., 354 S.W.2d 500, in which the statute was construed as it pertained to party primaries.


author: MONTGOMERY, Judge.

text:
    Aggie SUTTON et al., Appellants, v. Evelyn COMBS et al., Appellees.
    Court of Appeals of Kentucky.
    June 30, 1967.
    As Modified on Denial of Rehearing Nov. 10, 1967.

      Cecil C. Sanders, Caywood Metcalfe, Lancaster, for appellant.
    Charles R. Coy, Chenault, Coy & Sword, Richmond, for appellees.
    Henry C. Cox, Lancaster, Guardian Ad Litem for appellee Ricky Sutton.
   MONTGOMERY, Judge.

Aggie Sutton et al., as contestants, appeal from the judgment upholding the will of Abbie Marsee in favor of Evelyn Combs et al., appellees. The question on appeal is whether the evidence offered in behalf of contestants is sufficient to present the issue of undue influence.

The appraised value of the estate was $106,408.97. The heirs at law of the testatrix were appellant Aggie Sutton, a sister, who received by the will $100; appellant Kinnaird Bourne, a brother, who received nothing; appellants Nancy Payne and Dorothy Holtzclaw, children of a deceased sister, who each received $500; and Sue DeShon, a sister, who received $500; and other nieces and nephews. The latter, excluding Virginia Black, together with other persons, received about $5,100. A church and cemetery received $2,500. The rest of the estate, about $96,000, was left to a niece, Virginia Black, and Virginia’s husband, Elvin, who were named as co-executors.

In contest of the will appellants sought to prove undue influence and the lack of mental capacity. A peremptory instruction removed the issue of lack of mental capacity from the jury’s consideration. The jury was unable to agree on the issue of undue influence and the court, under CR 50.02, granted a judgment upholding the will.

Appellants contend that the exclusion of the brother of the testatrix and the inequitable bequests to her living sisters and two nieces of a dead sister, when compared with a devise of practically her entire estate to a niece and her husband, were unnatural, and being unexplained, only slight corroborative evidence was necessary to take the issue of undue influence to the jury.

The test used to determine the validity of a will contains an inquiry as to whether the testator knew the natural objects of his bounty, that is, his relatives and those dear to him, and recognized his obligation to them as such. It is natural that a person recognizes his relatives as the objects of his bounty unless there is some reason not to do so. Many reasons may exist to justify such failure. Undue influence exerted by one or more persons in favor of themselves or others frequently is the reason for an unequal or unnatural distribution of a testator’s estate or for a testator’s ignoring the natural objects of his bounty. For this reason an unnatural distribution of an estate, unexplained, is a factor for the jury to consider on the issue of undue influence.

The rule was stated in Walls v. Walls, 99 S.W. 969, 30 Ky.Law Rep. 948, as follows:

“It has often been said that, if under all the circumstances of the case the will is unnatural in its provisions and inconsistent with the obligations of the testator to the different members of his family, the burden rests upon the propounders to give some reasonable explanation of its unnatural character. * * * Incapacity opens the door to undue influence, and when opportunities for such influence are shown, and the favored devisees are the beneficiaries of a will unnatural in its provisions, to the exclusion of others having equal claims at least upon his bounty, very slight circumstances are sufficient to make the question of undue influence one for the jury.”

The rule appears to be that an unequal or unnatural disposition by itself is not enough to show undue influence, but when coupled with slight evidence of the exercise of undue influence or the lack of mental capacity it is sufficient to take the case to the jury. Kiefer’s Ex’r and Ex’x v. Deibel, 292 Ky. 318, 166 S.W.2d 430. It has been said that a will is the best evidence for or against itself, and a will making a just distribution of a testator’s estate will be held as strong evidence of his testamentary capacity; when one turns his property into unnatural channels it raises at least a contrary inference. Gay v. Gay, 308 Ky. 539, 215 S.W.2d 92. Inequity of disposition is a circumstance to be considered on the issue of undue influence. Shelley v. Chilton’s Adm’r, 236 Ky. 221, 32 S.W.2d 974. As such, it is one of the recognized “badges” of undue influence. Belcher v. Somerville, Ky., 413 S.W.2d 620. The same rule obtains in cases wherein it is sought to set aside a conveyance because of undue influence. Gay v. Gay, 308 Ky. 545, 215 S.W.2d 96.

The purpose of a motion for judgment n.o.v. is the same as that of a motion for directed verdict. It is normally used to save the time and trouble involved in a lengthy jury determination when (1) there is a complete absence of pleading or proof on an issue or issues material to the cause of action or defense, or (2) there are no controverted issues of fact upon which reasonable men could differ. When either motion is made the trial court must consider the evidence in its strongest light in favor of the party against whom the motion was made and must give him the advantage of every fair and reasonable intendment that the evidence can justify. On appeal the appellate court considers the evidence in the same light. Moore’s Manual, Federal Practice and Procedure, Section 22.10(1), pages 1630-1632; California Fruit Exchange v. Henry, D.C.Pa., 89 F.Supp. 580, affirmed C.A., 3 Cir., 184 F.2d 517. The trial court sustained the motion for judgment n.o.v. on the ground that considering all of the evidence with all reasonable inferences to be "drawn, the evidence was insufficient to support a verdict in favor of the contestants on the ground of undue influence.

In reviewing the evidence, as required above, we look to see if there was any evidence of probative value of undue influence or' if the evidence favorable to the proponents of the will is so strong that reasonable men could not have differed in concluding that there was no undue influence.

Abbie Marsee was sixty-nine years old at the time of her death. While Garrard County appears to have been her native county, she lived in the adjoining county of Mercer during most of her adult life. Her immediate family, with whom she was very close, had consisted of her husband, who died in 1947, and her son, who died in 1959. Shortly after her son’s death, she returned to her native county to be near her relatives. At that time she had two sisters, a brother, and several nieces and nephews there. Virginia Black, the principal beneficiary, is the daughter of Sue DeShon, a sister.

Charles Matherly, an attorney who lived in Mercer County, had represented the testatrix’s husband and son since 1930. He handled the settlement of their estates. The testatrix had relied on her husband and son in handling business matters. Matherly assisted the testatrix in handling her business affairs after their deaths. He handled tax matters for her and examined and approved the title for the home she bought when she moved back to Lancaster. He said that she was terribly upset and disturbed by the deaths of her husband and son, that she was completely demoralized, and that she was not physically or mentally normal. He testified that the testatrix did not know the value and extent of her property and that she was unable to make decisions without depending on someone to help her. It was his opinion that her condition would worsen and, upon examination of the will in question, that she could not have assembled the information contained in the will without a great deal of help. He did not prepare a will for her.

An attorney in Lancaster prepared wills in 1961 and 1962 for the testatrix. He said that the first will was prepared from a list of names and amounts which the testatrix brought with her. The total of the bequests left relatives, other than the Blacks, in the first will was materially reduced in favor of the Blacks in the second will. The Blacks remained as the named personal representatives.

The testatrix had a pulmonary tubercular condition which necessitated regular medical attention. Her physical condition worsened. She went to the hospital for two days’ observation in late June 1962, shortly after the will in question was executed on June 21, 1962. A lung abscess was removed on July 5, 1962. She was hospitalized until September 8, 1962, and continued under regular medical care until October 22, 1962. She died on March 3, 1963.

The evidence for appellants is that the testatrix was ill and physically infirm in her late years, that she was nervous, upset, and cried a lot, that she did not know the extent of her property, that she was easily influenced, and that she was mentally incompetent to make a will. Part of this testimony was based on related observations and incidents. The testatrix made various statements, inconsistent with her will, which indicated a desire to benefit certain of her relatives more than they were.

In general, the evidence when viewed in the most favorable light for the appellants shpws that they and Abbie’s relatives, except Virginia and her husband, had visited Abbie regularly in Mercer County. They continued to visit her and to assist her in many ways after she returned to Lancaster. The relationship between Abbie and all of her relatives appears to have been good.

After Abbie’s return, Virginia and Elvin Black began to visit with the testatrix. They took over the doing of small things for Abbie, such as cutting the grass, taking her car riding, shopping, and paying her bills, which had been done by other relatives. Virginia’s visits to look after Ab-bie’s needs became daily, which was more often than she visited her mother, who was older and lived in Lancaster. The testatrix was susceptible to flattery. Virginia flattered her and brought her expensive gifts, although she did not do that for her other aunts or her uncle.

In summary, there is evidence from which a jury qould conclude that the testatrix and all of her family, except Virginia, had maintained close ties while she lived in Mercer County; that these same ties had existed until her death; and that upon Abbie’s return to Lancaster the Blacks began to and did develop a close relationship with her to the extent that by the time of her death they were handling most of her affairs to the exclusion of her other relatives. The jury could have found that there was no satisfactory explanation why Abbie Marsee should make a will so favorable to the Blacks so late in her life, with minimal or no benefits to other members of her family who were as close or closer than were Virginia Black, a niece, and Virginia’s husband. A jury might well have concluded that her state of health may have been a factor in rendering her susceptible to the influence of the Blacks, who were with her daily. It is hard to understand that this older woman who had always been dependent on others would choose in her will to ignore her brother and almost ignore her sisters in favor of one niece. Other nieces and nephews had been kinder and closer to Abbie over the years than had Virginia Black until Virginia supplanted them.

Under the circumstances shown, the evidence was sufficient to present the issue of undue influence. The trial court correctly submitted the case to the jury despite the showing to the contrary made by the Blacks. The showing on behalf of the proponents cannot be said to be so strong that it destroys the testimony in behalf of the- contestants to the extent that reasonable men could not have differed in concluding that there was no undue influence. Meuth’s Ex’x v. Meuth, 157 Ky. 784, 164 S.W. 63; Helm’s Guardian v. Neathery, 226 Ky. 42, 10 S.W.2d 474; Franks’ Ex’r v. Bates, 278 Ky. 337, 128 S.W.2d 739; Gay v. Gay, 308 Ky. 539, 215 S.W.2d 92; Marcum v. Gallup, Ky., 237 S.W.2d 862; McKinney v. Montgomery, Ky., 248 S.W.2d 719; Roland v. Eibeck, Ky., 385 S.W.2d 37, 7 A.L.R.3d 992; Ward v. Norton, Ky., 385 S.W.2d 193. It was error to sustain the motion for judgment n.o.v. in favor of the appellees.

Judgment reversed with direction to grant a new trial.

All concur.


author: CULLEN, Commissioner.

text:
    J. Millard SHREVE, County Judge, Taylor County, Kentucky, E. Poe Young, County Clerk, Taylor County, Kentucky, Appellants, v. TAYLOR COUNTY PUBLIC LIBRARY BOARD et al., etc., et al., Appellees. Howard WHITLEY, etc., et al., Appellants, v. TAYLOR COUNTY, Kentucky, FISCAL COURT et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 17, 1967.

      Robert Dowell, Greensburg, Joseph J. Leary, Thomas F. Marshall, Frankfort, Clyde Williams, Jr., Campbellsville, Morris Butler, Greensburg, for J. Millard Shreve, and appellants.
    Barry Bertram, Charles Summers and Fred Faulkner, Jr., Campbellsville, for ap-pellee, Taylor County Public Library Board, and another.
    Morris Butler, Greensburg, Joseph J. Leary, Thomas F. Marshall, Frankfort, Robert L. Dowell, Greensburg, for appellants Howard Whitley, Etc., and another.
    Barry Bertram, Charles Summers, Fred Faulkner, Jr., Campbellsville, for appellees Taylor County, Kentucky, Fiscal Court, Etc.
   CULLEN, Commissioner.

One of these two consolidated actions consisted of an appeal to the circuit court, by one member of the Taylor County Fiscal Court and two citizens and taxpayers of the county, from an order of the fiscal court, dated May 29, 1967, establishing a public library district for Taylor County pursuant to KRS 173.710 to 173.800. The other action was by the chairman and secretary of the theretofore existing Taylor County Public Library Board, against the county judge, county clerk and sheriff, seeking a mandatory order directing the county judge to appoint a district library board, the county clerk to include a library tax on the regular tax bills, and the sheriff to collect the library tax with the regular county taxes. The judgment dismissed the appeal action and granted the mandatory relief requested in the other action. The county judge, the county clerk, and the plaintiffs in the appeal action have appealed from the judgment.

The appeal action was dismissed on the ground that the order appealed from was not an appealable order. This was error, under the interpretation heretofore placed by this court on KRS 23.030, which provides that an appeal may be taken to the circuit court from “all orders * * * of the fiscal court * * * in civil cases where the amount in controversy * * * is over twenty-five dollars.” In Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815, this statute was construed to mean that the county judge or any other member of the fiscal court may appeal from any order which he deems detrimental to the interests of the county, and that, in fact, any person aggrieved may appeal from an order of the fiscal court. The right to appeal has not been limited to orders of a judicial character, because in the Howard case the order was strictly administrative (being for the employment of an auditor), and appeals have been upheld from other strictly administrative orders, such as one making an appropriation, Caldwell County v. Durret Const. Co., 180 Ky. 594, 203 S.W. 291; one issuing warrants for poor relief, Stumbo v. Clark, 255 Ky. 287, 73 S.W.2d 8; one approving allowances to the county clerk, Elliott v. Commonwealth, 144 Ky. 335, 138 S.W. 300; and one buying a right of way for a highway. Hoskins v. Leslie County Fiscal Court, Ky., 242 S.W.2d 874.

It is true that in Stieritz v. Kaufman, 314 Ky. 10, 234 S.W.2d 145, the court held that an order of a county court calling an election was not an appealable judgment, being a political rather than judicial matter. However, appeals from county courts are governed by a separate subsection of the statute, KRS 23.030(2), which particularizes the kinds of judgments that are ap-pealable; whereas the subsection dealing with fiscal courts purports to authorize appeals from all orders (in civil cases).

It may well be that over the years KRS 23.030(1) has been misconstrued; that in authorizing appeals from orders and judgments of the fiscal court “in civil cases” it was intended to limit appeals to those cases involving disputed claims for money. See Jefferson County v. Young, 120 Ky. 456, 86 S.W. 985. Support for this view is found in the rulings of some early cases that appeals from the fiscal court are to be tried de novo. See Jefferson County v. Young, 120 Ky. 456, 86 S.W. 985; Owen County v. Walker, 141 Ky. 516, 133 S.W. 236. Certainly it could not reasonably have been intended that orders involving administrative discretion or judgment would be reviewed de novo.

It also might be considered that no action of a fiscal court is truly judicial, so that in no case should the review on appeal be concerned with any question other than whether the action of the fiscal court was arbitrary (which we mean to include illegal). Cf. American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Commission, Ky., 379 S.W.2d 450.

We do not find it necessary to answer all the questions we have posed. We think we should answer the question of whether an order of the kind here involved properly is appealable under the statute, KRS 23.030(1). It is our conclusion on this question that it is a reasonable interpretation of the statute to hold that all orders of the fiscal court are appealable (the limitation to “civil cases” being sur-plusage because the fiscal court does not have any criminal jurisdiction). However, the matter of what kind of review the appeal shall embrace is another question.

In the general field of litigation there are various kinds of appellate review. One is pure trial de novo. Another involves application of the “clearly erroneous” test to the fact findings below. Another is limited to the question of whether the action appealed from was arbitrary. We think it is not essential to a proper decision of the case now before us to decide what is the proper scope of appellate review of a fiscal court order. We so think because at the very least the review would embrace the question of arbitrariness and in the instant case if the fiscal court’s order was based on an invalid petition (which is the contention on the appeal) the order would be arbitrary. Particularly is this true since the creation of a library district and the imposition of the library tax rest solely on the petition, without any election.

We conclude that there was a valid appeal of the fiscal court order, and that the allegations of the appellants on that appeal were sufficient to invoke appellate review of the validity of the petition. The allegations in substance were that the petition was invalid because (1) it was not properly certified, and (2) it did not contain the required number of qualified voters in that some of the signers did not list their addresses, some signatures were forgeries, some signatures were duplicates, and some of the signers were not registered. The appellees maintain that the allegations were not sufficiently detailed and they cite Stieritz v. Kaufman, 314 Ky. 10, 234 S.W. 2d 145, for the proposition that allegations of insufficiency of a popular petition must be definite and specific, naming names. The Stieritz case was decided before adoption of the Civil Rules and the accompanying liberalization of pleading requirements; its concepts of pleading are no longer valid. We think the allegations here were sufficient under the prevailing principle of notice pleading. (We distinguish this type of case from election contest cases the pleadings in which are governed by special statutes).

Having concluded that the issue of the legal sufficiency of the petition was properly put before the circuit court on the appeal from the fiscal court order, we now give our attention to some of the other complicating features of these two cases. After the appeal had been taken from the fiscal court order the fiscal court undertook to adopt a new order rescinding the one appealed from and rejecting the library petition. This activity was questioned by amended pleadings in the action in which the library people were seeking mandatory relief. In the latter action the defendants by way of defense alleged that the original fiscal court order was invalid because it was adopted at a special meeting of which notice had not been given to all members of the fiscal court, and because the order was not signed in the presence of the members. Thus, there were put in issue the questions of whether the original order ever was valid, and if so, whether it validly was rescinded. We think it is unnecessary that those questions be passed on, because if it should be decided that the original order was invalid, or was validly rescinded, we consider that the action brought by the library board is sufficiently broad in scope to embrace the question of whether the fiscal court should be mandated to adopt a new order establishing a library district, on which question the legal sufficiency of the petition would be the controlling consideration.

So in the final analysis the controlling question in this litigation is whether the petition presented to the fiscal court is legally sufficient. If it is, the fiscal court can be ordered to establish the district; if not, it makes no difference how many orders the fiscal court adopted or how valid they were, because the only one that undertook to create the district was properly appealed from.

To expedite disposition of this litigation we shall give our direct consideration to the alleged grounds of invalidity of the petition, to the extent that questions of law are involved.

First, it is contended that the petition was not “duly certified” as required by KRS 173.720(1). Each sheet of the petition contained the full prayer of the petition, and when presented to the fiscal court the sheets were fastened together, with a certification by two persons that they were duly qualified and registered voters and residents of Taylor County; that they had signed the petition; and that “the foregoing petition containing 2502 names, addresses and respective dates of signing constitutes more than 51 per cent of the total number of duly qualified voters who cast 4042 votes in the last general election in November 1966 in Taylor County, Kentucky, as required and provided in Kentucky Revised Statutes 173.720.”

The appellants argue that the certification should be that the signers were duly qualified voters. Assuming, without deciding, that this requirement is embraced in the ambiguous direction of the statute that the petition be “duly certified,” we think that the certificate in the instant case reasonably can be construed as certifying that the signers were duly qualified voters.

The appellants alleged that 959 of the petitioners did not list their addresses. It appears that the contention in reality is that the addresses listed were not sufficiently specific (because on a quick observation we find some address listed for every signer). The alleged insufficiency seems to consist mostly of failure to put the name of the city after a street address. We think it is a matter of sufficient common knowledge that Camp-bellsville is the only city in Taylor County with numbered .street addresses, so that any street address listed after a signer’s name would reasonably be understood as being one in Campbellsville. Cf. Ausmus v. Slusher, Ky., 382 S.W.2d 395. So we consider this particular insufficiency not to be fatal. Any other claimed insufficiencies of addresses can be determined in the trial court.

It is alleged that 110 of the signatures were forged, 66 persons signed twice, and “more than 200” of the signers were not registered. These allegations involve factual determinations for the trial court. However, we point out that, according to one of the various sets of figures in the record, the petition contained on its face some 400 signatures more than required, so even if all the 366 signatures just above mentioned were stricken the petition still would have enough names.

The judgments are reversed for further proceedings in conformity with this opinion.

All concur.


author: PER CURIAM.

text:
    CITY OF HOUSTON, Petitioner, v. Lee M. FOX, Respondent.
    No. B-228.
    Supreme Court of Texas.
    Oct. 18, 1967.
    Rehearing Denied Nov. 22, 1967.
    William A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor and Joseph G. Rolling, Senior Asst. City Atty., Houston, for petitioner.
    Sears and Burns, Houston, for respondent.
   ON MOTION FOR REHEARING OF APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Respondent’s motion for rehearing is granted and our Per Curiam opinion and judgment of July 19, 1967, are withdrawn and the following is substituted for our previous opinion:

The Respondent sued Petitioner for damages to realty because of loss of reasonable access to the street on which Respondent’s property fronted as a result of the construction of an underpass. Damages were awarded Respondent in a trial before the court. The holding of the Court of Civil Appeals in affirming the judgment of the trial court [412 S.W.2d 745] was as follows:

“In this'case it is obvious that appel-lee’s property is less valuable as a site for a retail business because of the construction of the underpass. It is true that appellee’s access to the side street has not been materially changed, and that he has access, though substantially less convenient than before, to Broadway. It is our opinion that a material consideration in determinng the questiion of reasonable access is the highest and best use of the property. The value of this property as a site for a retail business has been materially reduced by the construction of the underpass which in effect moved the property to a side street from a thoroughfare.”

The tests thus applied are in conflict with the previous opinions of this Court in Arch-enhold Auto Supply Co. v. City of Waco, 396 S.W.2d 111, (Tex.Sup.196S) and the companion case of DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.Sup.1965). The decision of the Court of Civil Appeals in effect sustained Respondent’s Counterpoint One before that court, and consideration was not given to other Counterpoints urged by Respondent in support of the judgment of the trial court.

Pursuant to Rule 483, Texas Rules of Civil Procedure, we reverse the judgment of the Court of Civil Appeals without granting the application for writ of error; we remand the case to that court for consideration of Respondent’s Counterpoints not decided. See Releford v. Reserve Life Insurance Company, 154 Tex. 228, 276 S.W. 2d 517 (1955).