author: WADDILL, Commissioner.

text:
    PEOPLE’S SERVICE STATION, INC., Appellant, v. Virginia Louise PURVIS, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    May 15, 1964.
    Armer H. Mahan, Davis & Mahan, Louisville, for appellant.
    Edward T. Ewen, Jr., Louisville, for ap-pellees.
   WADDILL, Commissioner.

The parties to this appeal agree that the sole question presented is whether the death of J. T. Purvis arose out of his employment within the meaning of KRS 342.-005(1). The Workmen’s Compensation Board answered this question in the affirmative and awarded the dependents of Purvis benefits under KRS 342.070. The case is before us on appeal from the judgment of the Jefferson Circuit Court upholding the award of the Board.

Appellant operates a gasoline service station in Jefferson County which remains open for business during the night. Sometime during the night of August 20, 1961, while Purvis was the sole attendant on duty at this station, he was brutally slain. Officer D. E. McQuillen, who conducted the investigation at the scene of the crime, testified that six quart-cans of oil had been used to beat Purvis about the head. The only thing shown to have been missing from the service station was a two gallon can of oil which was later found at the home of Freddie Joe Adkins, who had confessed that he killed Purvis.

According to Adkins, who had pleaded guilty and was serving a prison term for the killing of Purvis when his deposition was taken, it was his custom to stop at this service station either as a customer or to chat with Purvis and assist him in cleaning windshields of cars which stopped there to be serviced.

Adkins stated that on August 20, 1961, he arrived at appellant’s service station at approximately 11:00 P.M., and found Purvis on duty. After they had conversed awhile he went to a tavern and drank two beers. About one hour later he returned and resumed his conversation with Purvis which gravitated to the subject of women. What happened thereafter is not clear, but the fair import of Adkins’ testimony is that, following a disagreement between them, Purvis ordered him to leave and when he refused, shoved him toward the door. This precipitated a fight, the details of which Adkins could not remember.

The manager of appellant’s service station testified that he had frequently instructed Purvis not to permit anyone to loaf about the station or to assist him in the performance of his duties. On the night before the killing he had specifically warned Purvis that he would be discharged if he persisted in allowing Adkins to violate this rule.

The term “arising out of” refers to the cause of the accident, that is there must be a causal connection between the accident and the employment. City of Prestonsburg v. Gray, Ky., 341 S.W.2d 257. An injury which is the natural and necessary incident or consequence of the employment, although not foreseen or expected, arises out of it. Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524. Also see Larson, Workmen’s Compensation, Vol. 1, Section 29.10, pp. 442-445.

Appellant contends that the only competent and probative evidence, either direct or circumstantial, is to the effect that the cause of the killing was a personal grievance arising out of an argument which had nothing whatever to do with employment.

The Workmen’s Compensation Board rejected this contention. The Board found that the evidence and inferences that can reasonably be drawn therefrom, show that there was a definite causal connection between the assault and the effort of Purvis t@ make Adkins leave the service station in compliance with the instructions of his employer. We conclude that the Board correctly decided the question presented in this case and we therefore affirm the judgment upholding the award.

The judgment is affirmed.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Parker HEMPHILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 15, 1964.

      C. B. Upton, Williamsburg, for appellant.
    Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., Frankfort, Carlos B. Pope, Commonwealth’s Atty., Barbour-ville, for appellee.
   DAVIS, Commissioner.

Parker Hemphill was convicted of voluntary manslaughter by the Knox Circuit Court for the slaying of Jim Smith, a police officer of Barbourville. He appeals, seeking reversal of the conviction and consequent sentence of 21 years’ imprisonment.

Appellant submits five separate grounds for reversal. It is our conclusion that the judgment must be reversed for error in the court’s instructions to the jury, hence, we omit a list of other claimed errors.

The homicide occurred in the front yard of appellant’s residence in Barbourville about 10 p. m. in July, 1962. The prosecution’s evidence showed that Jim Smith, victim of the homicide, was then on duty as a police officer of Barbourville, and was in the company of his fellow officer Mays. Mays testified that as he passed the appellant’s home he was hailed by appellant’s 74-year-old mother from her wheelchair on the porch of the residence. Mays responded to Mrs. Hemphill’s cries, and was asked by her to go into the residence to see what appellant had done toward “tearing up the house.” At that time the victim Smith was not present. Mays entered the home and found appellant, who asked whether Mays had a warrant.

Mays responded that he had no warrant and was not there to arrest appellant. The witness said that he observed Nancy Hampton sweeping dishes, glass and food that had been broken on the floor. Meanwhile, Jim Smith had come into the house; appellant then latched the screen door to the porch and told his mother she would have to stay out. Then Mays unlatched the screen, walked onto the porch and was followed there by Smith. Mays swore that appellant “got kindly mad about the screen being unlatched.”

Mrs. Hemphill then said to Mays, “Don’t leave me. If you do, he will kill me.” (In her testimony, Mrs. Hemphill denied this.) The officers explained to Mrs. Hemphill that they could not arrest appellant without a warrant; Smith went next door to telephone the county judge pro tam with a view to obtaining a warrant for appellant’s arrest. Mays said that appellant’s mother warned that appellant had a shotgun, but Mays reassured her that appellant “don’t want to hurt nobody.”

Just then Mays heard the back door slam and then two shotgun blasts in the back yard. Nancy Hampton came to the front door and inquired, “You reckon he shot my car up?” At this Mays started around the right side of the house to the back yard, when Jim Smith came running out of the next door house and “hollered” at Mays. Thereupon Mays, followed by Smith, went back across the Hemphill yard, at which time appellant came from the end of the porch with a shotgun. Mays testified that appellant held the gun on him and told Mays he would shoot out his guts. Mays pleaded with appellant, suggesting they were friends, and that appellant would get in trouble if he fulfilled his threat. Appellant agreed, “cussing.”

Smith had come closer by then, and appellant told Mays to get in the police cruiser and leave, but then turned to Smith and said, “You can’t ride. You are going to have to walk.” Smith then turned toward appellant, but said nothing, at which appellant shot Smith in the groin. Appellant and Smith “was right up against each other” then, said Mays. Smith’s pistol was still in the holster when appellant shot him, then Smith drew the weapon and fired all of the six shots from it, and appellant was wounded in six places. Mays withdrew to a point behind the cruiser and fired his revolver four times, but it is not known whether any of his shots struck appellant.

Mays said that appellant shot at him twice, but neither shot hit him. Appellant and Smith grappled after Smith was shot, and they fell to the ground together. Smith died a few minutes later.

Appellant’s version of the tragedy is quite at variance with Mays’ account. He testified that Smith ran toward him with his pistol drawn, while appellant had the shotgun in a nonoffensive position — that Smith’s first shot struck the shotgun and appellant — that appellant was knocked to the ground, and that the shotgun was accidentally discharged as the result of this. Appellant denied that he had fired the shotgun twice, or at all, in the back yard. He made a vague reference indicating that he may have fired the shotgun while lying on the ground, and after the shotgun had been discharged accidentally, “trying to get away from them.”

Some neighbors testified to facts indicating Smith was attempting to disarm appellant. Appellant’s mother acknowledged that she had requested the officers to take the gun from appellant, not because she feared he would hurt anyone, but because she felt this would prevent appellant’s going to his farm that night.

By Instruction 1, the trial court submitted the questions of willful murder and voluntary manslaughter, substantially as set out in § 868, Stanley’s Instructions to Juries.

Instructions 2 and 3, as given by the trial court, also are patterned precisely from the second and third instructions set out in § 868, Stanley’s Instructions to Juries.

The third instruction was the usual self-defense instruction. If the evidence on a new trial is substantially the same as in the instant trial, the self-defense instruction should be qualified to reflect that appellant may not avail himself of self-defense if appellant brought on the difficulty. See § 897, Stanley’s Instructions to Juries, and collected cases therein.

The fourth instruction given by the court is as follows:

“4. Although the jury may believe from the evidence beyond a reasonable doubt that the defendant shot and killed deceased with a gun, as in Instruction No. 1, described, if they believe from the evidence that he committed the act without previous malice, but shall believe from the evidence beyond a reasonable doubt that such shooting and killing was unlawfully and wilfully done by defendant in a sudden affray or in sudden heat and passion and with felonious intent to kill deceased, or shall believe from the evidence beyond a reasonable doubt that the shooting and killing of deceased, if done by defendant, was the direct and natural, though unintentional result of a reckless, wanton or grossly careless use or handling, if any of said gun by defendant in struggling with deceased for its possession, when he knew it was dangerous to life if so handled by him, they should find him guilty of voluntary manslaughter, and fix his punishment at confinement in the penitentiary for not less than two nor more than twenty-one years.”

It would appear that the genesis for the quoted instruction may have been § 883, Stanley’s Instructions to Juries. It is observed, however, that the form as contained in § 883, op. cit., was published before the effective date of KRS 435.022. That statute became effective June 14, 1962, approximately one month before the instant homicide. By the terms of KRS 435.022 the crime of involuntary manslaughter is separated into two degrees; the first degree is a felony in which the range of punishment is confinement in the penitentiary from one to fifteen years. The second degree of the offense is a misdemeanor for which the punishment may be imprisonment in the county jail not longer than twelve months, or a fine not exceeding five thousand dollars, or both.

There is no statute in this jurisdiction defining the common law offense of voluntary manslaughter, but KRS 435.-020 prescribes penalty of not less than two nor more than twenty-one years in the penitentiary for one convicted of the crime. Prior to the enactment of KRS 435.022 our cases classified homicides resulting from wanton or reckless conduct as voluntary manslaughter. See Lambert v. Commonwealth, Ky., 377 S.W.2d 76, and Combs v. Commonwealth, Ky., 378 S.W.2d 626, and cases therein discussed. It is our view that KRS 435.022 specifically removes from the framework of voluntary manslaughter those homicides resulting from negligence; therefore, the new statute makes inapplicable the cases equating negligent homicide with voluntary manslaughter, no matter how gross the negligence. It follows that the quoted Instruction No. 4 was erroneous in classifying negligent homicide within the crime of voluntary manslaughter punishable by imprisonment of 2 to 21 years.

Instruction No. 4 also was erroneous, and confusing, in that it resubmitted the common law offense of voluntary manslaughter, which already had been fully covered in Instruction No. 1. Upon another trial of the case, if the evidence is substantially the same as on the first trial, the court will give the first three instructions as submitted on the first trial (subject to the qualification of the self-defense instruction), but Instruction No. 4 will be as follows:

4(a) If the jury believe from the evidence, beyond a reasonable doubt that in Knox County, Kentucky, and before the finding of the indictment herein, the defendant shot and killed James Smith with a shotgun, and that such shooting occurred by reason of any act or acts of the defendant creating such extreme risk of death or great bodily injury to the said James Smith as to manifest defendant’s wanton indifference to the value of human life according to the standard of conduct of a reasonable man under the circumstances, then you should find the defendant guilty of involuntary manslaughter in the first degree, and fix his punishment at confinement in the penitentiary for not less than one nor more than fifteen years, in your discretion.
A wanton act, as used in this Instruction, is a wrongful act done on purpose in complete disregard of the rights of others, with conscious knowledge of and complete disregard for the probable consequences.
4(b) If the jury believe beyond a reasonable doubt that the defendant shot and killed James Smith, as described in Instruction 4(a), and that such shooting was the result of conduct of the defendant, reckless according to the standard of conduct of a reasonable man under the circumstances, then you should find the defendant guilty of involuntary manslaughter in the second degree, and fix his punishment at confinement in the county jail for a term not exceeding twelve months, or by fine not exceeding five thousand dollars, or by both such fine and imprisonment, in your discretion.
Reckless conduct, as used in this Instruction, is conduct done with indifference to the rights of others, and indifference whether wrong or injury will result from the act done.

Instruction No. 5, as given on the first trial, was more favorable to the defendant than warranted by law. If the evidence of another trial warrants any instruction on accidental shooting, it should follow the form set out as numbered paragraph 3, § 883, Stanley’s Instructions to Juries.

Upon another trial the court will modify Instruction No. 6, as given on the first trial, so as to include involuntary manslaughter in the first and second degrees among the list of offenses for which a verdict may be returned.

We do hot reach the question whether error was committed in obtaining jurors from an adjoining county. Upon another trial the court will be guided by ICRS 29.-262 and RCr 9.33, and make a fair effort in good faith to obtain an unbiased jury from Knox County citizens before obtaining veniremen from an adjoining county.

On the trial, the prosecuting attorney made reference in his opening statement to a telephone call received by Barbourville Chief of Police from appellant’s brother at Ft. Knox. The Chief of Police also was permitted to testify concerning this call. It is proper for the Chief of Police to explain that he came to the scene of the killing as a result of a call from appellant’s brother, but no reference should be made to any report to the officer incorporating- any charge of appellant’s misconduct or violation of law. Comments of the prosecuting attorney likewise shall be limited.

Neither do we decide whether error was committed in the manner in which the jury’s view of the crime scene was had. On another trial care will be taken that the accused is permitted to accompany the jury, under the trial judge’s personal supervision, if a jury view is had. KRS 29.268.

There was no error in admission of evidence that about eight months prior to the shooting appellant (when arrested by Smith for another crime) had said that Smith “had bought a one-way ticket.” This reference tends to disclose a feeling of animosity against the victim by the accused. It bears upon the attitude of appellant _ toward decedent and supports the prosecution’s theory of malice; it affords basis for motive. Under these circumstances the evidence is proper, even though it collides with the general rule against admission of other crimes. See Roberson’s New Kentucky Criminal Law and Procedure, 2nd Ed., § 1794, pp. 1899, et seq; and collected cases 6 Ky.Dig. 1, Criminal Law, «^369(15), 372(1, 12).

The statements of appellant’s mother, some of which she admitted, were properly received in evidence. She was so closely enmeshed in the events that her utterances were clearly those of an actor in the event. See the well-reasoned opinion in Louisville Ry. Co. v. Johnson’s Adm’r, 131 Ky. 277, 115 S.W. 207, 20 L.R.A.,N.S., 133. Her statements were part of the res gestae-, they are not to be considered mere outcries of a bystander. The fact that Mrs. Hemphill was not a party to the litigation does not preclude her status as an actor within the meaning of res gestae. 20 Am.Jur., Evidence, § 674. By the same standard, the utterance of Nancy Hampton was properly admitted. She too was an actor. In short, as has been well said, these statements were the facts speaking through the person rather than the person talking about the facts. 20 Am.Jur., Evidence, § 662.

The judgment is reversed for proceedings consistent with the opinion.

      . Nancy Hampton, a friend of appellant, was there to look after appellant’s mother; there is contrariety in evidence whether she was to spend the night.


author: MONTGOMERY, Judge.

text:
    Roy COOK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 15, 1964.

      W. D. Bratcher, Greenville, for appellant.
    Robert F. Matthews, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MONTGOMERY, Judge.

Roy Cook was convicted of rape and sentenced to imprisonment for life. It is urged on appeal that: (1) The Commonwealth’s attorney elected to prosecute for attempted rape; (2) evidence was erroneously admitted; (3) corroborating evidence of the victim’s testimony should be required; (4) the Commonwealth’s attorney was guilty of improper argument; and (S) a juror was guilty of improper conduct. The first contention may be dismissed with the statement that the record shows an election by the Commonwealth’s attorney to try on the charge of rape.

The first question relating to the improper admission of testimony concerns the testimony of George Butler. Appellant insists that it was too remote to constitute res gestae. Alice Ann Powell, the wife of Donald Powell, testified that appellant raped her in her home; that her husband came home about an hour afterward; and that she told her husband what had happened as soon as he came home. He had been working for Butler, who was waiting in his car. After Donald Powell had been in the house about five minutes, he went out to the car and Butler came back to the house with him. At that time the prose-cutrix told Butler what had happened, and Butler questioned her at length concerning the incident.

On the trial Butler was permitted to testify in detail what the prosecutrix had told him. Appellant claims that this testimony by Butler constitutes prejudicial hearsay not admissible under the res gestae exception. The Commonwealth insists that such testimony is admissible as res gestae or under the law of the case rule. For first appeal, see Cook v. Commonwealth, Ky., 351 S.W.2d 187.

The rule is stated therein to be that the fact of complaint by the prosecutrix may be proved if her statements as to what occurred are controverted by the accused for the reason that the fact of complaint corroborates the testimony of the prosecutrix. However, the evidence must be confined to the bare fact that complaint was made; the details or particulars of the complaint not being admissible as substantive evidence, unless the statement is part of the res gestae. The admission of the prosecutrix’s statement made six hours afterward to a police officer was held to be reversible error.

The testimony of Butler concerns statements made by the prosecutrix at least an hour and five minutes after the happening of the alleged rape. The viciousness of the objectionable Butler testimony is pointed up in two other particulars: the suggestion by Butler that the prosecutrix might obtain $1,000 from appellant and the statement that “She said that Roy Cook told her that he had done other women this way, and I don’t think he ought to get by with it.” His testimony was clearly hearsay and was inadmissible as res gestae. Fitzgerald v. Commonwealth, 9 Ky.Law Rep. 664, 6 S.W. 152; Ratcliffe v. Commonwealth, 231 Ky. 337, 21 S.W.2d 441; Williams v. Commonwealth, 234 Ky. 729, 29 S.W.2d 11; Long v. Commonwealth, 262 Ky. 619, 90 S.W.2d 1007; Daws v. Commonwealth, 314 Ky. 265, 234 S.W.2d 953. In the cases cited, statements made from three or four minutes to an hour afterward were held inadmissible as res gestae. On another trial the rule as to admission of testimony concerning the fact of complaint should be strictly adhered to as pointed out in the opinion on the first appeal. Cook v. Commonwealth, Ky., 351 S.W.2d 187. Neither the husband nor Butler should be permitted to testify to any such conversations had with the prosecutrix, except as to the fact of complaint.

The admission of Butler’s testimony cannot be sustained under the law of the case rule based on the first opinion herein. A reading of that opinion shows that the husband and Butler testified only to the complaint without giving details of what the prosecutrix said.

Under cross-examination the prosecutrix made voluntary statements, unresponsive to questions, concerning appellant as follows:

“Witness: And that is not all he has did, he is the daddy of a baby that was horn dead.
“Mr. Bratcher: Now Judge, I ask that this jury he discharged again—
“Witness: And he didn’t even pay for that.”

Other testimony was admitted to the effect that the appellant had had sexual relations with a teen-age girl. Such testimony had no relation to this case and should not have been admitted. Cargill v. Commonwealth, 13 S.W. 916, 12 Ky.Law Rep. 149, and 93 Ky. 578, 20 S.W. 782; Turpin v. Commonwealth, Ky., 352 S.W.2d 66. The asking of questions when the only possible .object is to arouse in the minds of the jury a suspicion that an accused has been guilty of other offenses than that for which he is being tried has been condemned. Canterbury v. Commonwealth, 234 Ky. 268, 27 S.W.2d 946.

The prosecutrix was permitted to relate hearsay statements of what the doctor had told her concerning her examination and condition. The court correctly sustained objections, but the record reveals no admonition to the jury concerning the effect of such testimony. In view of the reversible error already discussed, it is unnecessary to consider the prejudicial effect of failure to admonish the jury concerning such testimony.

Appellant argues that the rule in ■ rape cases should he changed so as to require evidence in corroboration. The Court, after consideration, does not feel that any change should be made now.

The alleged misconduct of the Commonwealth’s attorney doubtless will not recur on another trial and needs no further comment. For the same reason the alleged misconduct of the juror will not be discussed.

Judgment reversed.


author: STEWART, Judge.

text:
    O. K. SMATHER, Appellant, v. Dewey MAY et al., Appellees.
    Court of Appeals of Kentucky.
    May 15, 1964.

      Hamm, Taylor & Milby, Robert L. Mil-by, London, for appellant.
    John C. Dixon, J. W. Jordan, Barbour-ville, for appellees.
   STEWART, Judge.

This is an appeal from a judgment on a verdict in the Knox Circuit Court awarding appellee, Dewey May, the sum of $1000 for damages incurred when a truck owned by appellee, May, and driven by Tommy Warren, another appellee herein, collided with a motor vehicle owned and operated by O. K. Smather, appellant herein.

Appellees have failed to file briefs in this appeal, although they have obtained nine extensions of time in which to do so. Appellant finally moved to invoke the provisions of RCA 1.260(c) (3), asking this Court to regard appellees’ failure to file briefs as a confession of error and to reverse the judgment without considering the case on its merits. This Court issued an order submitting this cause and we have elected, in accordance with RCA 1.260(c) (1), to accept appellant’s statement of the facts and issues as correct.

Appellant urges reversal on the ground that appellees failed to comply with the provisions of CR 36.01 which reads, in part:

“After commencement of an action a party may serve upon any other party a written request for the admission by the latter of * * * the truth of any relevant matters of fact set forth in the request. * * * Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after service thereof * * * the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part, * *

Appellees filed suit against appellant for personal and property damages growing out of the collision of the truck of appellee, May, with the car of appellant, Smather. Appellant filed a motion to dismiss and an answer. Shortly thereafter appellant served a request for admissions on appel-lees but the request was never answered by either of them. Appellant later filed a counterclaim and another request for admissions, but this request was also ignored, appellees filing only a reply to the counterclaim.

At the trial appellant moved the trial court to find against appellees on their complaint and for him on his counterclaim upon the basis that the matters of which admissions were requested, but not responded to, should be deemed admitted as established facts. The motion was overruled. The case was tried, resulting in a verdict of $1000, as heretofore mentioned, in favor ot appellee, May. Appellant thereafter moved for judgment notwithstanding the verdict and filed a motion and grounds for a new trial.

Appellant’s request for admissions asked that appellees admit as truth that:

1. Appellee, Warren, gave an arm signal only 75 feet before the intersection where he turned, which is less than the distance of 100 feet required by KRS 189.380 (2), before such a turn is made.
2. Although the truck was so constructed as to require that it be equipped with signals as required by KRS 189.380 (4), the truck was not so equipped.
3. An agency relationship existed between appellee, May, the owner of the truck and appellee, Warren, the driver of the truck.
4. Appellee, Warren, negligently and carelessly operated the truck so as to cause it to collide with appellant’s car.
5. Appellant’s car was damaged $1500 and he incurred $580 medical expenses.

It has been held under Federal Rule 36 (a), which is the counterpart of CR 36.01, that where there is no sworn statement denying specifically the matters of which an admission is requested, or setting forth in detail why the party cannot truthfully admit or deny those matters, they are deemed admitted and may be the basis for a summary judgment. See O’Campo v. Hardisty, 9 Cir., 262 F.2d 621; Walter Hammer Arrester Corp. v. Tower, 7 Cir., 171 F.2d 877; Batson v. Porter, Adm’r, 4 Cir., 154 F.2d 566.

In the case of Lyons v. Sponcil, Ky., 343 S.W.2d 836, Lyons, the plaintiff, sued Spon-cil, the defendant, for damages for the alleged negligent operation of his motor truck in causing it to collide with the plaintiff’s car. There was an answer denying the averments of the complaint. The plaintiff served a request for admissions, including one that the defendant “did negligently and carelessly allow the motor vehicle which he was operating to run into the rear end of the automobile owned and operated by the plaintiff, Lyons, while said automobile of the plaintiff was legally stopped for a traffic control signal.” There was no response to the request for this admission. When that case came on for trial, a motion was made by the plaintiff that the jury be instructed to find the admission was true. The motion was overruled; the action proceeded to trial; and a verdict adverse to the plaintiff was rendered.

The judgment entered on the verdict was reversed and ordered set aside on an appeal to this Court. The opinion held that whether the defendant, Sponcil, at the time of the accident, was operating his motor vehicle negligently or carelessly, was an admissible fact and, when the defendant failed to answer as required by the rule, such a fact stood admitted and required no proof in respect thereto. In remanding the case for a new trial, the opinion on this point said (343 S.W.2d 838): “The court should peremptorily instruct the jury to find for the plaintiff the amount of the special damages admitted by the default of the defendant and any additional special and general damages for personal injuries which the plaintiff may prove.” See also Sims Motor Transportation Lines, Inc. v. Foster, Ky., 293 S.W.2d 226.

In Clay’s Rules of Civil Procedure, in commenting on CR 36.01 in Vol. 6, p. 488, it is stated: “The Rule is self-executing with respect to admissions when no answers or objections are served by the party to whom the request is directed. Failure to respond to the request constitutes an admission of the fact. However, the requesting party should file proof of the service of the request as required by Rule 5.03 with a statement that the other party had failed to respond.”

The record shows appellant on two occasions served a request for admissions on appellees. The trial court’s order of January 28, 1963, recites the fact that no answer was made to them by either of appel-lees.

Wherefore, the judgment is reversed and directed to be vacated; and an order shall he entered dismissing the complaint and taking the allegations of the counterclaim as confessed; hut only the special items of damages, set forth in the request for admissions, shall be awarded. The trial court shall at a new trial instruct the jury to find for appellant, not to exceed $25,000 in amount, any additional special and general damages for personal injuries which he may prove.


author: MOREMEN, Judge.

text:
    COMMONWEALTH of Kentucky DEPARTMENT OF HIGHWAYS, Appellant, v. Ottis LANTER et al., Appellee.
    Court of Appeals of Kentucky.
    May 15, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Deddo G. Lynn, Dept, of Highways, Lexington, for appellant.
    Ottis Lanter, William F. Threlkeld, Wil-liamstown, Edwin R. Denney, Lexington, for appellees.
   MOREMEN, Judge.

This is a highway condemnation suit.. Appellee, Ottis Lanter, and his wife were owners of approximately 36 acres (we are going to disregard fractions) of land located on Barnes Road near the corporate limits of Williamstown. Appellees lived in a well-constructed house which had been built in 1951. It was connected with the road about 75 feet away by an adequate driveway.

The Commonwealth condemned 24 or 27 acres of this tract — there is a controversy about the quantity — but the house was not taken. It was necessary for the Commonwealth to condemn almost all the frontage on Barnes Road. The Department of Highways made a vertical cut within 40 feet of the house, about 28 feet in height. This had the effect of denying appellees access near their house to the new approach. In an attempt to mitigate the severity of this situation the Department built a 300 foot rock access road on its own right-of-way. This road runs parallel with the cut or cliff and 2 to 4 feet from its edge. No guardrails were constructed. In leaving by car from the Lanter home, one must back his car toward this vertical drop.

The commissioners appointed by the county court awarded appellees $5,438.00 for the land taken and $6,300.00 for damage to the remainder, or a total of $11,738.00. Both sides filed exceptions to the report. On the trial in the circuit court, appellees were awarded $6,000.00 for land taken and $6,500.00 for damage to the remainder, or a total of $12,500.00. The Commonwealth has appealed.

On this appeal it is insisted the court erred in that (1) appellees’ witnesses were allowed to base their estimate as to the amount of land taken upon incompetent evidence; and (2) the verdict of the jury was so excessive as to appear to have been given under the influence of passion and prejudice.

It is argued that since a competent professional engineer, who testified for the Commonweakh, stated that 24 acres were being condemned, his testimony was accurate arid should be controlling on the question of acreage. It was pointed out that áppellees had stated that 27 acres were being acquired. This acreage figure had been taken from a Department of Highways map filed in the county tax commissioner’s office for the purpose of showing how much land should be removed from the tax rolls and what remained to the individual owners along the right-of-way after part of their land had been condemned. It is insisted by the Commonwealth that the mathematical formula used by its witness for determining acreage is based upon scientific laws not known or used by the ordinary layman, and that when a proven expert has testified concerning such a matter his evidence may be refuted only by an opposing expert and not by a layman’s confused statements.

We find it unnecessary to pass upon the question as to whether engineers or persons highly skilled in mathematical science are the only ones who are able to calculate the amount of acreage because in the case we have under submission it is not required. Most 'of the witnesses (the majority of those introduced by both sides were highly qualified real estate experts) placed no undue, emphasis on the amount of the acre.age. A reading of their testimony discloses that they were familiar with the boundary .of the farm and recognized the amount of ground that was to be taken., It was upon this familiarity that they based their estimate or opinion as to the fair market value of the property before and after the taking. In addition, it was not shown in this record that the map, from which appellee Lanter testified, was, in fact, inaccurate. There were some suggestions during the course of the trial that the Department of Highways changes its plans from time to time and draws new maps, but there was no definite proof that this had been done with this particular map. Lanter, an attorney, had practiced law in the community for about twelve years, handled the legal end of real estate transactions and had more than an ordinary person’s understanding of real estate descriptions and values in the community. Although the question as to the amount of ground taken was vigorously contested at the time Lanter was on the witness stand, it was not pursued thereafter. Three eminently qualified witnesses introduced in behalf of appellees stated, without objection by the Commonwealth, that 27 acres of land had been taken. Nor did the Commonwealth request a special instruction on this point (in fact the case was submitted to the jury under instructions offered by the Commonwealth) ' and we do not believe that it was a real issue in the case. Both parties were directly concerned with the difference between the true market value of the land before1 and after the taking. This case was tried on February 22, 1962, before the opinion was rendered in Commonwealth Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 244 (decided March 22, 1963) wherein the distinction between the taking damages and the resulting damages was abolished. That opinion specifically states that it was to have only prospective application. The witnesses in the instant case separated the damages and the amount of the taking and arrived correctly, we think, at the difference between the market value of the property before and after the condemnation.

Appellant’s second ground of appeal is excessiveness of the verdict — $12,500.00. The Commonwealth’s witnesses testified • that the differences in before and after values were $4,275.00; $6,690.00; $4,950.00. The landowners’ witnesses testified to the following differences in market value: $15,-675.00; $15,391.12; $14,500.00; $14,000.00.

The amount of the verdict was within the limits of the testimony and we believe that it was a fair valuation.

The judgment is affirmed.


author: JOHN B. RODES, Special Commissioner.

text:
    Mary Virginia Martin ROBERTS, Individually and as Executrix of the Estate of William Penn Roberts, Deceased, Appellant, v. C. S. LOWERY et al., Appellees.
    Court of Appeals of Kentucky.
    May 15, 1964.
    Hughes & Gregory, Murray, for appellant.
    James M. Lassiter, Murray, for appel-lees.
   JOHN B. RODES, Special Commissioner.

This is a suit for the death of an aged man, William Penn Roberts, against Lillian Lowery and her husband, caused by Roberts’ coming in contact with an automobile being driven by Mrs. Lowery in Murray on the evening of December 26, 1961, at about 5 :30 p. m.

Appellant alleged that while Roberts was “proceeding along the curb of West Olive Street or crossing Olive Street” he was negligently struck by Mrs. Lowery’s car and seriously injured, from which injuries he died on June 6, 1962. The case is novel in that Roberts never regained consciousness before his death and Mrs. Lowery was the only eye witness to the accident.

The decision depends on her testimony, together with any physical facts involved in the collision. The record shows that in the dusk or semidarkness of that early winter evening Mrs. Lowery was driving home, with her lights on, on her own right-hand side of the road in a path about thirty inches from the curb at a reasonable rate of speed of twenty-five miles per hour, with her car under control and keeping a lookout ahead. It is claimed that Roberts was in the street or so near thereto that by the use of ordinary care she could have observed his presence in time to have prevented the collision. The accident did not occur at a street intersection or at a crosswalk but on Olive Street between 8th and 9th Streets.

Mrs. Lowery saw on her right a shadowy figure rise up as if from a crouched position, not in the street hut from a point above the curb and in the area of the grass plot slanting from the sidewalk to the-curb, followed almost immediately by a bump on the right side of her car near her right door. The front of her car did not strike Roberts, who came in contact with the Lowery car on the driver’s right. Mrs. Lowery responded promptly to the movement she sensed on her right by applying her brakes and bringing her car to a stop in twenty-four feet.

Negligence will not be presumed from the naked fact of injury but must be proven by evidence, either direct or circumstantial. Hatfield v. Sargent’s Adm’x, 306 Ky. 782, 209 S.W.2d 306; Hoskins v. Hoskins, Ky., 316 S.W.2d 368.

If the deceased rose up from a point above the curb and stepped the short distance into the street and against the side of the Lowery car, it is evident, nothing else appearing, there can be no liability in this case.

But it is claimed that the physical facts of this injury contradict Mrs. Lowery, in that the injuries of Roberts were on his right side, with his broken right hip and his broken right arm, and that from this physical fact it must be presumed that Roberts was in or alongside the gutter of Olive Street, facing in whole or in part the Lowery car, thus giving Mrs. Lowery the •opportunity to see Roberts in the street before striking him.

Such a presumption is neither necessary nor logical. The injured man was eighty-four years old, over six feet tall, heavy-set, and weighing over two hundred pounds. It may just as reasonably be conjectured that he stepped into the street and that when bumped or brushed by the passing car was toppled and turned so that he struck the ground on his right side, thus inflicting the injuries from which he died. Nor can liability be imposed when based on conjecture or surmise. Hollon v. Greyhound Corporation, Ky., 272 S.W.2d 329; Milburn’s Adm’r v. Rager, Ky., 352 S.W.2d 198.

— -I-t—is-our-conclusion that no actionable negligence is shown and that the lower court properly sustained appellees’ motion for a directed verdict. Potts v. Krey, Ky., 362 S.W.2d 726, is distinguishable on the basis of better visibility.

It is our opinion that the judgment should be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


text:
    W. L. CROWDER, dba Buck Crowder Tractor Co., Appellant, v. AMERICAN MUTUAL LIABILITY INSURANCE CO., Appellee.
    Court of Appeals of Kentucky.
    May 15, 1964.

      Marshall Funk, Bowling Green, for appellant.
    J. D. Raine, Louisville, for appellee.
   DAVIS, Commissioner.

Appellant challenges a judgment of the Warren Circuit Court denying his motion to set aside a default judgment. CR 55.02 and 60.02.

The appellant rests his appeal on the grounds that (1) his failure to appear and defend was the result of excusable neglect, and (2) the complaint did not state a cause of action upon which relief could be granted.

Appellant had been a dealer for Massey-Ferguson farm machinery. Incident to this relationship he had entered into a dealership contract with Massey-Ferguson. The latter had obtained certain indemnity from the appellee company, designated as a Fraudulent Conversion Bond, by the terms of which appellee agreed to indemnify Massey-Ferguson against loss by reason of fraudulent conversion of money or personalty due Massey-Ferguson from its dealer, appellant.

Massey-Ferguson terminated its contract with appellant, and asserted he owed $8,086.52 on account of merchandise received but not accounted for. The claim against appellant was presented to the ap-pellee, and appellee paid Massey-Ferguson in full. Appellee took from Massey-Ferguson a document styled, “Release and Sub-rogation Receipt,” which effectively assigned to appellee the right to proceed against appellant to recoup the sum paid Massey-Ferguson.

On August 18, 1961, appellee filed its complaint against appellant in Warren Circuit Court, and filed as exhibits with the complaint the dealership agreement, the Fraudulent Conversion Bond, and the Release and Subrogation Receipt. Recovery in the sum of $8,086.52 was sought. Summons was served on appellant in Warren County on August 25, 1961.

Appellant neither served nor filed any answer or other defense of any kind; neither did he appear in the action.

Accordingly, upon proper motion, judgment by default was entered by the Warren Circuit Court September 27, 1961, in the sum sought in the complaint. No further step was taken in the action until an execution was issued January 26, 1962; on that same date appellee filed appropriate affidavit for attachment allowed by KRS 425.190. Pursuant to that action garnishment was served upon appellant’s bank, effectively impounding $8,533.05, plus $5.00 costs.

This aroused appellant to action. On February 6, 1962, appellant filed his motion to vacate the default judgment; .in the motion he asserted every ground prescribed in CR 60.02, but has now reduced his attacks to the two we have mentioned. In support of his motion, appellant filed his own affidavit asserting that shortly before the summons was served on him he had been involved in a minor traffic accident; that the adversary driver was insured; that he assumed the summons related to that incident; that he forthwith took the summons to the office of an attorney. The attorney was not then in his office, so appellant left the summons with the attorney’s secretary, with the request that the attorney handle the matter.

Appellant had no further communication with the attorney about the summons, except a casual conversation on the street in which he asked the attorney if there had been any action and learned there had been none. There is no suggestion by anyone that the attorney was in any manner derelict in this transaction.

Appellant attempts to bolster his position by pointing out that his formal education was limited to the eighth grade, and that he is not knowledgeable of court papers. He insists that he has a valid defense, and that Massey-Ferguson is indebted to him in a sum in excess of the amount of the judgment. He tendered an answer, an amended answer and third-party complaint, and a cross-complaint.

Appellee countered with the affidavit of its representative, asserting that the representative had fully explained to appellant prior to the filing of the suit that such suit would be filed. Neither the affidavit of appellant nor that of appellee’s agent was denied.

In a memorandum opinion the trial court noted that records of the Warren Circuit Court reflect that at or about the time of the present suit the appellant had been a litigant in two other cases. The trial judge noted that he was unable to find, from the record, that appellant is illiterate or lacking in business experience. Under all the circumstances here presented we agree with the findings of the circuit court. We hold that the appellant has failed to make any showing of excusable neglect warranting relief under CR 60.02. Richardson v. Brunner, Ky., 327 S.W.2d 572; Dant v. Progress Paint Mfg. Co., Ky., 309 S.W.2d 187; Pound Mill Coal Co. v. Pennington, Ky., 309 S.W.2d 772.

Neither is there merit in the claim that the complaint was fatally defective. It is true that a default judgment may not be based on a complaint which completely fails to state a cause of action, but it is also true that much leniency is shown in construing such a complaint; it need not possess the qualities of immunity to attack by demurrer (or attack under CR 12.02(7)). 30A Am.Jur., Judgments, § 213. The allegations of the complaint, when construed with the exhibits filed with it, as in this case, adequately support the judgment. The judgment was in the sum sought by the allegations and prayer of the complaint.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    CITY OF HICKMAN, INC., Appellant, v. Paul CHOATE et al., Appellees.
    Court of Appeals of Kentucky.
    May 12, 1964.
    Rehearing Denied June 19, 1964.

      D. L. McNeill, Hickman, for appellant.
    James H. Warren, Fulton, for appellees.
   PALMORE, Judge.

The City of Hickman appeals from a judgment denying its petition under KRS 81.210 to annex an area adjoining its east and southeast city limits.

As presently constituted the city embraces 398 acres. According to the 1960 census its population totalled 1531. There was a conflict in evidence on the area of the proposed addition. The mayor said it contains 250 acres. Testifying for the remonstrants, the county surveyor figured it from the map at 517 acres. Estimates of its population varied from 1200 to about the same number as the present city population. Some 250 dwellings and several business establishments, including a garment factory, are located within it, and much of it has been laid out for residential subdivision.

The back-and-forth recruitment and proselyting of remonstrants against and supporters for the proposed annexation among the resident voters of the affected area was permitted to continue through and after the trial, with the final result that the trial court concluded the remonstrants had a majority of 12. Though it was technical error for the court to permit addition and deletion of names after entry of an order taking the case under submission, cf. Town of Bloomfield v. Muir, 221 Ky., 815, 299 S.W. 976 (1926), the question becomes immaterial in view of our conclusion on the merits, which is that there was insufficient evidence of material injury to warrant a denial of the annexation.

Hickman, county seat of Fulton County, is a picturesque old town on the banks and bluff overlooking the Mississippi River at the mouth of Bayou de Chien, near the southwest tip of the state. Preferring progress and prosperity to the deadening tranquillity of nostalgia, its leaders and governing body regard annexation of the area here in question as one of the steps conducive to attracting industry and bringing the community out of the doldrums. The city itself is fully developed from the standpoint of population, there being no more room within its limits for residential construction. There would seem to be little doubt that the contiguous territory sought to be annexed will soon be as densely populated as the city, though it may be less so at the instant time. The late and learned trial judge expressed the opinion on several occasions during the proceedings that some of the proposed addition ought to be annexed and some ought not. The question here involves the extent to which the courts may interfere in the discretion of the city council as to where the lines should be drawn.

The city has a fire engine and station, one paid full-time fireman, and 10 volunteer firemen. Its police department consists of a chief and three policemen, equipped with one patrol car. The city owns a water and sewer system and a natural gas distribution system and is already providing water and gas service to the residents of the area sought to be annexed.

The territory outside the city limits is under the police protection of the county sheriff, whose office is, of course, located at the court house in Hickman. Fire protection is available on a fee basis from an independent “rural” fire company which has a fire truck comparable with the city’s. The city has a contract with the operator of this independent service to assist in connection with city fires, but an ordinance forbids the use of its own facilities beyond the city limits. Whereas the city is sewered, the only sewage disposal in the area sought to be annexed is provided by septic tanks or, in at least one instance developed in the evidence, by natural surface drainage. The city is presently engaged in a proposed project to construct a sewer system in a substantial part of the territory embraced within the annexation ordinance.

The proposed extension as shown on the map looks somewhat like the old-fashioned pair of kidney-shaped water-wings children used to wear at the beach before the advent of today’s variety of exotically fashioned plastic creations. The right wing extends out from the east boundary of the city and the left puffs southward from the southeast corner of the city. The wedge formed by this corner of the city accentuates the wing-like appearance of the two extremities by narrowing the nexus between them. The sewer system extension as immediately planned will, if realized, serve the portion we have described as the right or east wing, which apparently is more thickly populated than the lower or left wing. The latter, however, lies between the city and a by-pass highway and, though a good portion of it is now used agriculturally, appears from the evidence to be adaptable to urban development within the reasonably proximate future.

The tangible property in Hickman is assessed for city tax purposes at $1,111,183, reflecting 30% to 40% of actual cash value. Bank shares assessed at $246,250 round out the ad valorem tax basis, in addition to which there is an occupational license tax and an annual city license tax on motor vehicles. The ad valorem tax rate is $1.35 per $100, which represents the maximum 75‡ under Const. § 157 plus a 60‡ excess rate levied to retire a 4% refunding general obligation bond issue as directed by a 1948 judgment in favor of the bondholders. The balance of principal payable on these bonds at the beginning of 1963 was $45,000, and the schedule of payments extends through 1978. Regardless of what mismanagement may have led to the creation of the indebtedness necessitating the excess tax rate, an audit made by certified public accountants for the calendar year 1962 shows that the city is now operating within its means, has met the bond payments on schedule, and has accumulated in the form of U. S. Treasury bonds a sinking fund in the amount of $26,000 for payment of the bonds yet unmatured.

KRS 81.220 is a peculiar statute. It says that if less than 50% of the owners in the property to be annexed remonstrate, the annexation (a) must be for the interest of the city arid (b) must cause no material injury to the affected property owners. But if more than 50% remonstrate, the literal sense of the section is that only the second of these two requirements applies, in which event it would be unnecessary for the city to prove any benefit to itself. To clarify this apparent absurdity, we are of the opinion that this cannot have been the intention of the legislature. The result is that the issues are the same regardless of the percentage of remonstrants. The only distinction is that if the remonstrants exceed 50% the burden is on the city to show a prima facie case of benefit to itself and to the property proposed to be annexed. When it has done this, the burden shifts to the property owners to prove material injury. Cf. Buchanan v. City of Dayton, Ky., 363 S.W.2d 92, 94 (1962); McClellan v. Central City, Ky., 375 S.W.2d 823, 824 (1964).

In City of Louisville v. Kraft, Ky., 297 S.W.2d 39, 42 (1956), City of Prestonsburg v. Conn, Ky., 317 S.W.2d 484 (1958) and Mitchell v. Central City, Ky., 354 S.W.2d 281, 282 (1962), it was suggested that if the territory sought to be annexed is adaptable to municipal development, then obviously its absorption is in the best interests of the city unless the capacity of the city to function as a sound going concern would be overextended. Though some of the streets of Hickman remain unpaved, there is no evidence of substance to indicate any real possibility that its capacities would be overextended by the proposed annexation. The additional tax revenue alone, whatever it may be, is an item of tangible benefit, and among the intangible but nevertheless substantial advantages that will accrue to both the city and the owners of property within the affected area is the unifying force of one government for what is in fact one community. 3000 people working together can do more than 1500 people working together on one side of the fence and 1500 people working separately, or not at all, on the other. Annexation, in short, holds the promise of a better and more effective government for all concerned than they now enjoy separately.

The clear policy of the law toward encouragement of municipal expansion and against a fine weighing of the relative benefits and burdens rests upon justice and good sense. This case presents an example. Here are 1200 to 1500 people with water and gas service they would not have except for the instrumentality of the city. Yet because they already have it they are able to say that coming into the city offers them no new advantages. Their lot was made better by the city, and having accepted its benefits they cannot defeat an annexation unless it is so unfair to them as to border upon arbitrariness. This rather blunt statement is intended to illustrate and emphasize the public policy out of which have sprung the salient principles applicable to this case, which are:

1.' “The courts are authorized to interpose only where there will be the clear and obvious imposition of material and substantial burdens.” City of Louisville v. Kraft, Ky., 297 S.W.2d 39 (1956).
2. There “must be a substantial excess of burdens over benefits in order to defeat annexation.” City of Greenville v. Gossett, Ky., 355 S.W.2d 311 (1962).
3. “Municipal taxation and regulation do not constitute material injury under KRS 81.220, but are burdens to be considered in relation to benefits.” McClellan v. Central City, Ky., 375 S.W.2d 823 (1964).
4. “That the territory annexed will be subject to pay a pre-existing debt of the municipality is not, as such, a dispositive objection to annexation.” Buchanan v. City of Dayton, Ky., 363 S.W.2d 92 (1962).
5. Though some of the property to be annexed is not urban in nature, the question of material injury is to be determined on the basis of “the entire area and not the separate parcels of real estate in isolation.” Mitchell v. Central City, Ky., 354 S.W.2d 281 (1962).

It is our opinion that the evidence was sufficient to establish a prima facie case of substantial benefit both to the city and to the area proposed to be annexed. Together they should be able to have better police and fire protection, which in turn should conduce to lower insurance rates in the annexed territory. Zoning jurisdiction will be vested exclusively in the city, whereas now it is divided and at best could only be shared with the county. A larger and stronger city government will enhance efforts to secure new industries and provide greater support for public projects. Community planning can be more intelligently carried forward. To deny all this would defeat the very purpose of annexation laws, which is to prevent the stagnation and stifling of municipal government.

Except for city taxation and license fees, which do not constitute “material injury” within the principles germane to the case, the property owners did not show any injury except that one man might not be able to keep a stockyard and others might not be allowed to keep farm animals in the city. Presumably a city ordinance prohibits these uses, though it was not introduced in evidence. Nevertheless, such isolated instances of detriment do not amount to material injury to the property of the whole area. Mitchell v. Central City, Ky., 354 S.W.2d 281 (1962).

The remonstrants having failed to prove a “clear and obvious imposition of manifest and substantial burdens,” the judgment was erroneous unless it can be sustained on the theory that the annexation will violate KRS 81.280. In brief, this statute provides that an unincorporated area in which an industrial plant is located cannot be annexed without the consent of the plant unless it is embraced within a broad, comprehensive plan of annexation, is contiguous to the city, and is itself compact and contiguous, and unless the number of voters in the area equals or exceeds the number of persons employed by industrial plants therein.

An industrial plant, Hickman Garment Company, is located within the area being annexed in this case. A letter from its president to the trial judge endorsing the annexation program was filed in the record. The remonstrants contend that this does not constitute competent proof of the company’s consent. Without deciding that point, we find nothing requiring such a consent. Our construction of the statute is that it was intended to protect industries against “spot” annexation. The instant annexation reflects a broad and comprehensive plan, the area is contiguous to the city and is itself contiguous and reasonably compact, and there is no suggestion that the number of voters in the area does not equal or exceed the number of persons employed by the industrial plant or plants therein. When these requirements are met there is no need for the consent or waiver permitted by KRS 81.280(3).

The cause is reversed with directions that a judgment be entered sustaining the annexation.

      . The latter figure appears to be more nearly correct.

      . We say “technical error” because the order of submission could have been vacated to allow further proof on this phase of the matter.

      . See City of Hickman v. First Nat. Bank in City & State of N. Y., 307 Ky. 702, 211 S.W.2d 801 (1948).

      . Which at the time of trial had increased to $28,000.

      . Cf. KRS 100.S50, 80S.

      . City of Greenville v. Gossett, Ky., 355 S.W.2d 311 (1962).


author: CULLEN, Commissioner.

text:
    Harry BRUMLEY, Appellant, v. Lorene H. BRUMLEY, a Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    May 15, 1964.
    Richard A. Robertson, Robertson & Robertson, Owensboro, for appellant.

      Louise G. Kirtley, Clarence Bartlett, Woodward, Bartlett & McCarroll, Owens-boro, for appellees.
   CULLEN, Commissioner.

Harry Brumley owned land lying south of land owned by the widow and children of Jesse Brumley. Harry claimed that the boundary line was so located as to include within his land a disputed tract of 10 acres. In Harry’s action of ejectment against the widow and children of Jesse, judgment was ■entered adjudicating that the defendants •owned the disputed tract. Harry is here .appealing from that judgment.

Harry’s main contention is that -the description in the deed by which Jesse ■obtained his land, particularly that part of •the description stating the length of the west line of Jesse’s land, is such that it could not ■embrace the disputed tract. There is at least a partial answer to this contention in •the fact that the length of the east line of Jesse’s land as stated in his deed is such that, in order to close the description of the land 'by the stated courses, the west line must be ■ extended. However, regardless of this, the •contention is futile because the plaintiff •in an ejectment action cannot prove his ■ own title by showing that the disputed tract is not embraced in the defendant’s deed. Howard v. Howard, 238 Ky. 533, 38 S.W.2d 441. The plaintiff must recover on the strength of his own title and not on the weakness of his adversary’s title. Monroe w. Rucker, 310 Ky. 229, 220 S.W.2d 391.

The description in Harry’s deed "begins at a point on the bank of Flat Lick Creek. Starting on the bank of that creek, .as now located, the description in Harry’s ■ deed will not embrace the disputed 10-acre ■tract. Harry undertook to prove that at the •time the description originally was drawn, -some 50 years ago, Flat Lick Creek ran •some 300 feet north of its present location. "However, he failed to produce such proof .-as to require the court to find that such was -¡the fact. His surveyor’s testimony concerning the former course of the creek was so vague and speculative that the court struck it.

Harry undertook to prove that there was an established boundary line in an old ditch, but there was evidence for the defendants to the contrary.

Another fact that militates against Harry’s claim is that if his claim were sustained, Jesse’s land would consist of only 93 acres whereas his deed called for 108 acres, and Harry’s land would amount to 86 acres whereas his deed called for only 74.

The simple fact is that Harry failed to prove his title to the disputed tract.

The judgment would appear to be erroneous in adjudging title to be in the defendants, instead of merely dismissing the complaint, because the defendants did not by pleading ask that title be adjudged in them. However, the appellant does not assert this error as a ground of reversal.

The judgment is affirmed.

PALMORE, J., not sitting.


author: CLAY, Commissioner.

text:
    Charlie KEPHART, Appellant, v. R. T. RUCKER, Appellee.
    Court of Appeals of Kentucky.
    May 15, 1964.

      Thomas & Thomas, New Castle, for appellant.
    Berry & Floyd, New Castle, for appel-lee.
   CLAY, Commissioner.

This is an appeal from a judgment of the Henry Circuit Court in an action to quiet title to real estate. The present litigation is an outgrowth of two sales conducted by the Master Commissioner of the Henry Circuit Court in a former action in which the real estate of the late Jessie Stivers was sold.

The land of Stivers was a farm, situated partly in Shelby and partly in Henry counties. The Master Commissioner conducted two sales, one in Henry and the other in Shelby County. Appellant was the purchaser at the Henry County sale; appellee bought the property sold in Shelby. The Master Commissioner’s sale in each county was advertised and conducted according to the respective descriptions of the lands as recited in the pleadings and judgment in the first suit.

The description of the land bought by appellant was by reference to abutting owners, and was concluded with the expression “containing 2}4 acres, more or less.” The tract purchased by the appel-lee was described by courses and distances, purporting to embrace 20 acres, less a tract sold off, which off-conveyance was said to contain one acre, and was described by reference to abutting owners.

After the parties had made their respective purchases, and before the sales had been confirmed by the Henry Circuit Court, they arranged to meet on the property for the purpose of agreeing on the construction of a boundary fence between their respective parcels of land. They were unable to agree as to the proper location of the boundary. Thereupon they reported the situation to the attorney who had practiced the land sale suit, with a view to having the matter resolved. The attorney engaged the services of a surveyor, who went on the property, accompanied by the appellant and appellee. The surveyor made a survey, using the appellant and appellee as chain carriers. The appellant was not satisfied with the boundary line as determined by the surveyor, and made known to appellee and others his dissatisfaction.

It was brought out at the time of the survey that there had been an off-conveyance from the original 2i/á acres Henry County tract prior to the land suit, although reference to this had been inadvertently omitted from the pleadings and all other proceedings in the land suit. The surveyor testified that he accepted the boundary line between the tracts of appellant and appellee as pointed out to him by W. M. Rucker, father of appellee. W. M. Rucker testified that he had personal knowledge of the location of the established boundaries as recognized by the individuals who were former owners, and whose names appear as the abutting owners in the description of the appellant’s tract. The evidence disclosed that an old fence, now in had repair, exists on the boundary line used by the surveyor. W. M. Rucker testified that he had known of the existence of the fence for forty years. There was no testimony refuting this evidence of the boundary location.

The calculations of the surveyor revealed 1.55 acres in the tract surveyed to appellant and 24.43 acres in the tract surveyed to the appellee. Appellant continued to maintain that he was not satisfied with the results of the survey, but took no affirmative action seeking any remedy until accepting a deed from the Master Commissioner. In fact, the appellant filed no exception to the Master Commissioner's report of sale, but did move for permission to pay the purchase money bonds before maturity; this motion was sustained, and appellant paid the entire purchase price into court. Appellee did not file any exception to the report of sale and also paid his purchase money bonds before maturity.

The commissioner’s deed to appellant bears date August 4, 1959. It was not until April 7, 1960, that appellant instituted this suit wherein he asserted that he was entitled to 61/2 acres, more or less, rather than 2Y2 acres, more or less. He charged that there had been an error in the original land sale suit, and that he is entitled to be declared the owner of all the land in Henry County which had been owned by Jessie Stivers. Appellant asserted that appellee claims to be the owner of a portion of lands claimed by appellant, and asked that he be required to set up his claim or be barred, and prayed that his title be quieted and for injunctive relief to prevent appellee from coming on his land. The allegations of the complaint bring it within the framework of a quiet-title action authorized by KRS 411.120.

By the terms of the statute, and according to the decisions of this court, the plaintiff in a quiet-title action has the burden to establish his title; he may not succeed on the weakness of the title of his adversary. Madden v. Bond, 269 Ky. 31, 106 S.W.2d 95; Hunt v. Cassity, 297 Ky. 716, 181 S.W.2d 248; Noland v. Wise, Ky., 259 S.W.2d 46; Ellis v. Chestnut, Ky., 289 S.W.2d 740; Aluminum Co. of America v. Frazer, Ky., 328 S.W.2d 142.

The same authorities just cited support the proposition that the requisite proof of possession is waived, generally, when the defendant asserts ownership by counterclaim. However, the waiver of proof of possession does not waive the required proof of title by the plaintiff claimant.

The appellant, plaintiff below, failed to establish any title, record or otherwise, to any land in addition to the tract of 1.55 acres surveyed to him. Appellant’s right to the 1.55 acres was never contested by appellee. Appellant may take no comfort in any weakness in appellee’s proof on his counterclaim. Aluminum Co. of America v. Frazer, Ky., 328 S.W.2d 142.

Our conclusion makes it unnecessary to decide whether appellant’s conduct in accepting the commissioner’s deed and failing to file exceptions to the report of sale constituted a waiver of his claim, or whether such activity amounted to an estoppel against him. It is observed that the judgment of the trial court was predicated upon waiver and estoppel. We do not base our opinion here on either principle.

The judgment below dismissed the complaint without any adjudication of what land, if any, is owned by the appellant. In this respect, we believe the judgment erroneous. Since there is no issue between the parties as to appellant’s ownership of the 1.55 acres surveyed to him, the judgment shall be modified to reflect that fact. The lower court correctly adjudged that appellee owned the 24.43 acres, as between these parties.

The judgment is affirmed in part and reversed in part for proceedings consistent with this opinion.


text:
    Clay M. BISHOP, d/b/a New Hyden Coal Company, et al., Appellants, v. NON-MARINE UNDERWRITERS AT LLOYDS, LONDON, Subscribers to Certificate No. U-2501-K, Appellees.
    Court of Appeals of Kentucky.
    May 15, 1964.
    Roy W- House, Clay. M. Bishop, Manchester, for appellants.
    ■T. T. -Burchell, Manchester, .for appel-lees.
   CULLEN, Commissioner.

Appellee, Non-Marine Underwriters at Lloyds, London, paid two workmen’s compensation awards, one in favor of Elihu Smith and the other in favor of Joseph Steele, after the awards had been reduced to judgment in accordance with KRS 342.-305, and took assignments of the judgments. Appellee then brought action against appellant Clay M. Bishop, d/b/a New Hyden Coal Company and d/b/a Vanda Coal Company, who was the employer against whom the awards had been made, to recover the amounts paid in satisfaction of the awards. Judgment was entered in favor of appellee and Bishop has appealed.

Bishop had a self-insurance program for workmen’s compensation liability with Non-Marine Underwriters, under which the Underwriters were, in substance, merely sureties for Bishop, with the right to be indemnified by him for claims up to a certain total amount. The indemnity contract gave the Underwriters the right to control the conduct of proceedings on compensation claims against Bishop. The defense asserted by Bishop in the instant action was that the Underwriters had acted fraudulently, in bad faith, and in collusion with the claimants, in the handling of the Smith and Steele claims. A further defense (in the nature of an offset) was asserted that the Underwriters had handled compensation claims of other employes of Bishop’s fraudulently and in bad faith and in so doing had paid out improperly moneys that Bishop had placed on deposit with the Underwriters. The circuit court found that the evidence did not sustain these defenses.

As concerns the Elihu Smith claim, the record shows that it was fully and thoroughly litigated before the Workmen’s Compensation Board. The referee ruled against the claim on the ground that Smith did not have the back injury claimed by him, but on full board review, after receiving the report of a disinterested physi-cían, the board awarded compensation for 40 percent permanent disability. Bishop maintains that Smith was a malingerer, and that the Underwriters, as demanded by him, should have appealed the award to the circuit court. He offered nothing to back up his allegation of fraud, bad faith and collusion other than the simple fact that the Underwriters refused to appeal the award. It appears from the record that the case was adequately and competently presented before the board by competent attorneys, and that there was medical testimony to support the award. There is nothing to indicate that the probability of obtaining a reversal of the award by the circuit court was so great as to indicate even bad judgment by the Underwriters in refusing to take an appeal, much less fraud, bad faith or collusion. We agree with the finding of the lower court that the evidence does not sustain the pleaded defense as to the Smith award.

With respect to the Joseph Steele award the evidence is very skimpy. It appears that his claim was settled by the Underwriters and an award was entered on the settlement agreement. Bishop testified that “I asked them [the Underwriters] to please take this case up because they could win the case.” His belief that “they could win the case” seems to have been based on the fact that Steele on several occasions had come to Bishop’s office drunk, and he believed Steele probably was drunk when he sustained the injury for which compensation was awarded. The evidence falls far short of showing fraud, bad faith, collusion, or even a mistake of judgment, in the settlement of Steele’s claim. Again we agree with the finding of the trial court.

Bishop’s claim that the Underwriters had paid claims of other employes fraudulently or in bad faith was supported only by his generalization to the effect that the Underwriters had “failed to prosecute” those claims. Testimony of an agent for the Underwriters showed that some of those claims were litigated to a conclusion before the Workmen’s Compensation Board, and that others which were settled had sufficient substance to justify settlement. The trial court was fully warranted in finding that the evidence did not prove fraud or bad faith.

Almost one year after he had filed his answer in ‘the instant action, Bishop tendered an amended answer and counterclaim asserting claims against the plaintiff for certain insurance commissions which Bishop alleged the plaintiff owed him as an agent. The court never ruled on Bishop’s motion to permit the filing of this pleading. We think it was incumbent on him to insist on a ruling. If the court’s failure to rule be treated as a denial of the motion the denial could not be considered erroneous, because of the long delay in tendering the pleading.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Orville NOLAN, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    May 15, 1964.

      Orville Nolan, pro se.
    Robert F. Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

This is appellant’s second attempt at habeas corpus. The first attempt was disposed of in Nolan v. Thomas, Ky., 370 S.W.2d 825 (1963), wherein it was held that the judgment entered on his plea of guilty was. valid.

On this appeal he alleges that his “commitment does not designate charges of felony whereby petitioner may be lawfully detained.” A copy of an order committing appellant has been filed with the record.

In this State a defendant is committed to the penitentiary, county jail or other institution by the judgment imposing sentence. KRS 431.215. Prior to the effective date of that statute, Criminal Code, section 293, provided that a judgment of confinement should be executed by furnishing a certified copy to the sheriff and no other warrant or authority was necessary to its execution. In Tippit v. Thomas, Ky., 355 S.W.2d 149 (1962), the Court said:

“ * * * Even if the mittimus were before us and we could find error in it, the fact remains that appellant is confined by the efficacy of the judgment and not by virtue of the commitment. Glenn v. Porter, 292 Ky. 719, 168 S.W.2d 32.”

The Lyon Circuit Court properly dismissed appellant’s petition for a writ of habeas corpus.

The judgment is affirmed.


text:
    Fred BRADFORD, Appellant, v. Kellon CLIFTON and Charles Clifton, dba Clifton and Sons, Appellees.
    Court of Appeals of Kentucky.
    May 15, 1964.

      Claude Asbury, W. G. Wheeler, Catletts-burg, for appellant.
    Wilhoit & Wilhoit, H. Rupert Wilhoit, Grayson, for appellees.
   WILLIAMS, Judge.

The appellant Fred Bradford sued to recover damages for an injury sustained upon the premises of Kentucky Christian College, where the appellees were building a library for the College. The Judge of the Carter Circuit Court directed a verdict against appellant and this appeal is from the judgment entered on the directed verdict.

Appellant had gone to the building under construction for the purpose of employing a plumber who was working there. While he was standing on the unroofed front porch of the library building, a wall partially collapsed. At the time of the collapse someone shouted, “Look out,” and appellant was injured while fleeing the scene.

The trial judge sustained the motion for a directed verdict on the ground that appellant was a trespasser, and no duty was owed to him other than the obligation not to suddenly increase a hazard if his presence were actually known.

It is clear that appellant was not an invitee, since he was on the premises on business of his own and not the business of either the college or appellees. It might be said that college campuses are semi-public places, and as such, frequented by many persons other than students, teachers, employees or invitees of the college, with the acquiescence of the college authorities. Habitual or customary use of property for a particular purpose, without objection from the owner or occupant, may give rise to an implication of consent to such use to the extent that the users have the status of licensees, where such habitual use or custom has existed to the knowledge of the owner or occupant and has been accepted or acquiesced in by him. 65 C.J.S. Negligence § 32.

However, the semi-public nature of a college campus does not extend to all areas therein. It can hardly be said that the public was invited to browse about the building under construction merely because it was located on the campus. The front porch of the library building was located 15 feet from a public sidewalk, and appellant was neither invited nor permitted where he was by the College or the appellees.

A trespasser is a person who enters or remains upon land in the possession of another without the possessor’s consent. Restatement of the Law, Torts, section 329. It is clear that appellant was upon these premises without appellees’ knowledge or consent, and the appellees had no reason to anticipate his presence there. He was a trespasser to whom the appellees owed no duty except the exercise of ordinary care to avoid injury to him after his position of peril was actually discovered. Chesapeake & O. R. Co. v. Nipp’s Adm’x, 125 Ky. 49, 100 S.W. 246 (1907).

Four of appellees’ employees were attempting to reset a number of large heavy steel “A” frames, which constituted the framework of the library roof. In the process they momentarily lost control, and the beams struck the front wall of the building causing' it to partially collapse. That occurrence would not fall within the acts denounced in Chesser v. Louisville Country Club, Ky., 339 S.W.2d 194 (1960), where it was said:

“The possessor of premises owes no duty to a bare licensee or a trespasser to keep the premises safe for use of either, but he must refrain from inflicting or exposing him to wanton or willful injury or from setting a trap for him. * * * ”

The trial judge properly directed the jury to find a verdict against appellant.

The judgment is affirmed.


author: MILLIKEN, Chief Justice.

text:
    James R. GRASTON, Petitioner, v. Frank A. ROPKE, Judge, Jefferson Circuit Court, Criminal Branch, First Division, Respondent.
    Court of Appeals of Kentucky.
    May 15, 1964.
    James R. Graston, pro se.
    Frank A. Ropke, Louisville, for respondent.
   MILLIKEN, Chief Justice.

On April 28, 1964, petitioner, a confinee of Eddyville State Penitentiary, filed this action pro se to compel Judge Frank A. Ropke of the Jefferson Circuit Court, Criminal Branch, to issue a final ruling on petitioner’s motion to vacate judgment under RCr 11.42 which he had filed in that court on February 10, 1964.

On April 1, 1964, petitioner’s motion was overruled by Judge Ropke whose order read in part as follows:

This case coming to be heard on movant’s Motion to Vacate Judgment and Affidavit to Proceed in Forma Pauperis and on the Motion of the Commonwealth of Kentucky to overrule same, and the Court being sufficiently advised, it is ordered and adjudged that this motion be, and the same is hereby overruled.”

To clarify a possible misinterpretation of the above order, on May S, 1964, Judge Ropke amended his order to read as follows:

“This case coming on for hearing on the Motion of Petitioner, James R. Graston, to Vacate Judgment herein pursuant to RCr 11.42, and on the Response of the Commonwealth of Kentucky, it is ordered that said Motion to Vacate Judgment be and the same hereby is overruled.”

Since the above amended ruling was entered at a date subsequent to the petitioner’s filing of this action in the Court of Appeals and before the case was submitted to us, the need for the order is now moot because the petitioner has been granted the relief prayed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v AMERICAN NATIONAL BANK & TRUST COMPANY, Trustee, et al., Appellees.
    Court of Appeals of Kentucky.
    May 15, 1964.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, James H. Lucas, Bowling Green, for appellant.
    Aaron F. Overfelt, Bowling Green, for appellees.
   DAVIS, Commissioner.

In this condemnation suit the Commonwealth of Kentucky, Department of Highways, appeals from a judgment of the Warren Circuit Court, in which a total award of $2,000 was made, pursuant to jury verdict. The appeal is here pursuant to RCA 1.180 and KRS 21.080.

Appellees have failed to file brief, although extension of time for filing of brief was granted to them. By authority of RCA 1.260 we accept appellant’s statement of the facts and issues as correct. Although we may and do regard appellees’ failure to file brief as their confession of error, we have examined the record and the brief of appellant, and are of the opinion that they reasonably appear to sustain our action in reversing the judgment as excessive and unsupported by evidence of probative value. Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472; Tennessee Gas & Transmission Co. v. Jackman, 311 Ky. 507, 224 S.W.2d 660.

Upon another trial the court will submit the issue of damages pursuant to the rule announced in Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844.

The judgment is reversed for proceedings consistent with the opinion.