author: PALMORE, Judge.

text:
    Frank SECREST, Appellant, v. Eddie B. WELLMAN et al., Members of the Greenup County Board of Election Commissioners, and James Miller, Appellees.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.
    H. David Hermansdorfer, Diederich & Hermansdorfer, Ashland, Frank Warnock, Greenup, for appellant
    L. H. Nicholls, Greenup, P. H. Vincent, Ashland, for appellees.
   PALMORE, Judge.

In the general election held November 3, 1964, Frank Secrest and' James Miller were candidates for membership on the Greenup County School Board from Educational Division No. 5, consisting of two precincts. Miller was certified the winner by a vote of 322 to 321. On November 10, 1964, Secrest filed a recount proceeding pursuant to KRS 122.100. In defense, Miller pleaded that the integrity of the box containing absentee ballots had been violated in the interim since the election. At the close of Secrest’s evidence on this question the court entered findings of fact and a judgment denying a recount. Secrest appeals.

The voting machine tabulation, 320 for Miller and 312 for Secrest, is not contested. According to the records of the county court clerk 14 absentee votes were received for the two precincts in question. The election commissioners testified that four were rejected, one was unmarked, and 11 were counted, making a total of sixteen. Some kind of confusion is evident at once.

After the votes were counted on election night the absentee ballot box was properly-locked and delivered to the office of the county court clerk, where it was lcept under guard until the next afternoon. The county clerk then placed it in custody of the circuit court clerk, who had the only lockable vault in the court house. On Friday morning, the third day after the •election, the election commissioners took the box to the circuit court room and opened it for the purpose of examining the four sealed envelopes containing the rejected ballots. It was apparent, of course, that a recount was in prospect, and the commissioners took it on themselves to call on several attorneys to examine the envelopes, which was done in their presence.

The absentee ballot box remained open In the court room from about 10:00 A.M. until 1:30 P.M. on Friday, November 6, 1964. Except for a five-minute interval during that time one or more of the election commissioners were present and the evidence is rather conclusive that no impropriety took place. The focus of the case is on that five minutes, in which the sheriff was away investigating an accident, one of the commissioners had gone to take his little girl to school, and the other commissioner had found it necessary or desirable to go downstairs for a moment.

The handling of the ballots took place on a table in that portion of the court room within the bar. There were several interested spectators outside the bar in the seats provided for the general public. Among them, at various times, were Miller and his wife, though it does not appear whether either of them was present during the crucial five minutes. Two of the spectators, both of whom later signed as sureties on the cost bond Secrest was required to execute in order to maintain this recount proceeding, testified positively that no person was present inside the bar while all three commissioners were absent, and that at no time during the day had anyone other than the commissioners and the attorneys entered that particular area of the court room. The gist of this evidence is that no one touched the ballots or the ballot box except in the presence of one or more of the commissioners.

The trial court denied a recount on the ground that the evidence produced in support was not sufficient to establish the integrity of the absentee ballot box.

“While the burden is on the contestant to establish the integrity of the ballots, the requirement in that respect must be reasonable, and it is incumbent upon him only to prove circumstances from which a logical inference can be deduced that the ballot boxes and their contents have not been disturbed.” Combs v. McKenzie, 289 Ky. 360, 158 S.W.2d 938, 940 (1942). When the evidence raises no more than a suspicion of tampering, the rule is that the contents of the box or boxes should be examined and that the evidence derived from such inspection be considered by the court in determining the allowability of a recount. Monroe v. Graves County Bd. of Election Com’rs, Ky., 293 S.W.2d 725, 727 (1956).

From the evidence thus far heard in this case it is doubtful even that a “suspicion” has been raised. If the ballots were disturbed during the brief interval when none of the commissioners were present, several persons present in the spectator section of the court room are bound to have witnessed it. Let them come forward. In the absence of countervailing evidence it is our opinion that a prima facie case has been established entitling Secrest to a recount.

The judgment is reversed for further proceedings consistent with this opinion.

      . We are further mystified by the fact that both briefs say the final tabulation was 321 to 320 in favor of Miller, which would mean that only nine absentee votes were counted. That would tally with the clerk’s record of 14 received.

      . The trial court found that aside from the time it was in the court room on November 6 the box had been “securely locked” until the day of the hearing.

      . One of these witnesses was the school superintendent.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Robert WISE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.
    Wesley Bowen, Newport, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Appellant was convicted of the offense denounced by KRS 435.100(1)(b), namely, carnal knowledge of a female of the age of twelve years and under sixteen. His appeal seeks to upset the judgment imposing sentence of imprisonment for five years.

Appellant assigns these claimed errors: (1) the trial court should have directed a verdict of acquittal, (2) the verdict is so palpably contrary to the evidence as to require reversal, (3) the trial court erred in admitting evidence relating to a prior incident of alleged misconduct by appellant toward the prosecutrix, and (4) in any event the court should have admonished the jury with respect to the consideration it could give to the evidence of prior misconduct of appellant toward the prosecutrix.

It is not necessary to recount the evidence in detail. Suffice it to say that the prose-cutrix, who was just past twelve years of age at the time of the claimed offense, positively testified that the appellant, not her husband, and over twenty-one years of age, had sexual relations with her. She asserted that the act was accomplished entirely against her will. The indictment presented two counts, embracing forcible rape as denounced by KRS 435.090 and so-called “consent” rape condemned by KRS 435.100. The trial court submitted the case to the jury only upon the “consent” theory.

Appellant stoutly denied the charge and sought to establish an alibi. It is our view that the evidence warranted submission to the jury of the issue whether appellant had sexual relations with the prosecutrix. The testimony of the prosecutrix, uncorroborated as to the actual act of intercourse, is not so incredible as to require a directed verdict of acquittal. See Ashcraft v. Commonwealth, Ky., 317 S.W.2d 179; Riley v. Commonwealth, Ky., 271 S.W.2d 882. Neither may it be said that the verdict is palpably against the evidence.

In the course of her testimony the prose-cutrix told of an incident which she said occurred in July prior to the date in October on which she charged that the sexual act occurred. She said that in July, while she was walking home, appellant offered her a ride to her home in his automobile. Instead of going to her home, appellant drove the car “down a little alley street that goes down to the river.” Her evidence then was as follows:

“Q. Did anything happen there?
“A. Yes, he tried to have relations with me then.
“Q. What happened then, after he tried to have relations with you as you said?
“A. I wouldn’t let him. I kept fighting him off and so he just gave up then.”

Appellant’s counsel objected to the foregoing evidence, and requested that the court admonish the jury not to consider it. The objection was overruled and no admonition was given the jury. It is our view that the evidence was competent, but that the court should have admonished the jury as to the consideration it could accord the testimony. Browning v. Commonwealth, Ky., 351 S.W.2d 499; Ashcraft v. Commonwealth, Ky., 317 S.W.2d 179; 6 Ky.Digest 2, Criminal Law,

The prosecution contends that no admonition was necessary because the July incident was not a prior crime. We cannot accept this argument, as it is our view that the testimony of the prosecutrix did charge a prior crime. Since the prosecutrix was under the age of consent, the effort of appellant to have sexual intercourse with her in July was, at least, a violation of KRS 435.110 (detaining a woman against her will with intent to have carnal knowledge of her). See Merriss v. Commonwealth, 287 Ky. 58, 151 S.W.2d 1030. The claimed activities of the appellant toward the prosecutrix in July would support a conviction of attempted “consent” rape. See Nider v. Commonwealth, 140 Ky. 684, 131 S.W. 1024, Ann.Cas.1913E, 1246.

The failure of the trial court to admonish the jury as to the limited effect of the testimony relating to the July incident was prejudicial error.

The judgment is reversed for proceedings consistent with this opinion.

HILL, J., dissenting.


text:
    KENTUCKY TAX COMMISSION, etc., et al., Appellants, v. JEFFERSON MOTEL, INC., a Kentucky Corporation, Standiford Field, Appellees.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.

      William S. Riley, Frankfort, Francis Dale Burke, Pikevillc, William M. Dish-man, Danville, for Kentucky Dept, of Revenue and Kentucky Tax Commission.
    Mark Davis, Jr., Asst. County Atty., Louisville, for Judge of Jefferson County Court and the Jefferson County Tax Com.
    Lucian L. Johnson, Louisville, for Richard Van Hoose as Supt. of Jefferson County School Dist.
    W. C. Fisher, Jr., Louisville, for Chief Finance Officer of City of Louisville.
    Henry A. Triplett, Louisville, for Samuel V. Noe as Supt. of Louisville Public Schools.
    Earl S. Wilson, Bullitt, Dawson & Tar-rant, Louisville for appellees.
   PALMORE, Judge.

The Kentucky Tax Commission, Department of Revenue, and various officers of Jefferson County, the City of Louisville, and the school boards of Louisville and Jefferson County appeal from a judgment of the Jefferson Circuit Court invalidating a state and county ad valorem tax assessment for the year 1961 against a leasehold owned by Jefferson Motél, Inc. (hereinafter called Jefferson). Cf. KRS 133.120.

The assessment was held void on constitutional grounds, as discriminatory under fundamental principles announced long ago in the leading case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Since we concur in that analysis it is unnecessary to consider the irregular manner in which the assessment originated.

The tangible property on which Jefferson has a lease is the Standiford Motor Hotel, located on and including a 10-acre tract owned by the Louisville & Jefferson County .Air Board. Insofar as the Air Board is concerned, it • is assumed by the parties that such property is tax exempt under KRS 183.138.

. In order to make possible the financing that was required for construction of the motel, Jefferson and the Air Board entered into a contractual arrangement whereby (1) the Air Board conveyed 10 acres of relatively unimproved ground to Jefferson, (2) Jefferson built a 198-unit motel at a cost of $971,922.35 ($850,000 of which was obtained through a mortgage loan), (3) Jefferson conveyed the property back to the Air Board (subject to the mortgage), and (4) the Air Board then leased it to Jefferson for a term of 20 years with three 5-year extension options. Jefferson pays all the loan installments, reimburses the Air Board for all fire and extended coverage insurance premiums, and pays rent at the rate of $6,000 per an-num or 10% of the gross revenues from the property, whichever is the greater. Jefferson agrees also to pay the City of Louisville annually an amount equal to current city taxes based on a valuation of $404,620 multiplied by the prevailing ratio of assessed value to fair cash value.

The board of tax supervisors used a figure of $883,825 as the value of the improvements and applied to it the 40% ratio of assessed value to fair cash value which the tax commissioner, Mr. Trager, says is standard in Jefferson County, resulting in an assessment of $353,530 against Jefferson, Jefferson appealed to the Kentucky Tax Commission. After a hearing devoted entirely to an exposition of the arrangements between Jefferson and the Air Board, the cost figures, and the method by which Mr. Trager arrived at.his valuation, the Commission entered an order referring to the property under assessment as “the leasehold interest” of Jefferson and.reducing the valuation to $181,814.40. There is not a line in the record to suggest what factors, if any, went into the calculation of this figure, nor is there any explanation of the shift in terminology describing the subject matter of the controversy. We are forced to assume, as did the trial court, that the Commission actually intended to evaluate a different property interest, the leasehold, from that which had been assessed in the first place, to-wit, the physical improvements on the land.

It is obvious of course that improvements, which regardless of who made them are nevertheless part of the real estate and are tangible property, constitute a different class of property from the leasehold interest which, being a contract right, theoretically is intangible personal property, often called a “chattel real.” Appellants take the position “that the difference in terminology is immaterial. In numerous cases, courts have measured leasehold interests in land on the basis of the value of improvements placed upon the land” by the lessees. Without reviewing the authorities cited to that effect, we do not question the proposition that if a lessee’s addition of improvements is a prudent investment the value of his leasehold interest is enhanced accordingly. And if the benefits and burdens of the lease are otherwise equal, the value of his leasehold should substantially coincide with the current value of what he has added to it. If that were not so, presumably he would not make the investment. Basically, however, the proper criterion of fair cash value for any property, including a leasehold, is the price a seller willing but not forced to sell would take and a buyer willing but not forced to buy would give for it. And that figure may or may not approximate the value of the lessee-added improvements, depending on the circumstances. We therefore cannot say we are dealing with a mere semantic trifle.

In Fayette County Board of Supervisors v. O’Rear, Ky., 275 S.W.2d 577 (1955), it was held that the leasehold and the fee may not ordinarily be separated for ad valorem tax purposes. Cf. KRS 132.-220(3). The underlying reasons for that approach are practical in nature. When the lessor is not tax-exempt he bears the incidence of ad valorem taxes on the entire yalue of the property as a whole, and he passes it on to the tenant through the rental rate agreed upon between them. Hence, even though the lessee may have the better of the bargain (e. g., if the rent is lower than another lessee would be willing to pay), the taxing authority still collects a tax on the full value of the property. But this is not so when the landlord is tax-exempt, and in such a case we agree that if the non-exempt lessee’s contract right has a fair cash value it is taxable. This does not violate the uniformity requirement of Const. § 171. In fact, it is not fundamentally a question of tax classification at all; it is more a mechanical matter of sifting a clearly taxable private property interest from a non-taxable public interest with which it has been commingled. This viewpoint is entirely consistent with the principles enunciated in Raydure v. Board of Sup’rs of Estill County, 183 Ky. 84, 209 S.W. 19 (1919). In the absence of a statute specifically so declaring, we perceive no reason why a private party’s investment of money through the device of adding buildings to public property on which it has a lease should or legally can be any less subject to taxation than other assets in which it might have invested the same money. Cf. Trimble v. City of Seattle, 231 U.S. 683, 34 S.Ct. 218, 58 L.Ed. 435 (1914). To hold otherwise would equate the investment with tax-free state and municipal securities, for which there is no legal justification or authority.

The trial court expressly reserved judgment on the question of whether the improvements in this case were subject to assessment. In some instances, probably in reliance upon such cases as Louisville Garage Corporation v. City of Louisville, 303 Ky. 553, 198 S.W.2d 40 (1946), and Steiden Stores, Inc., v. City of Louisville, 303 Ky. 637, 198 S.W.2d 983 (1947), the Jefferson County Tax Commissioner evidently has made a practice of assessing to the lessees the value of improvements on property owned by tax-exempt landlords. He testified, however, that he has never assessed leaseholds as such, which is the basis on which the trial court held, and we agree, that the assessment of this particular leasehold interest is discriminatory. We do not hold that private leaseholds on tax-exempt real estate, if properly evaluated by uniform methods, cannot be taxed.

The judgment is affirmed.

      . Instead of himself making the assessment and serving notice as provided in KRS 132.450(2), the tax commissioner recommended it to the board of tax supervisors, which “increased” a theretofore non-existent assessment from “zero” to $353,530 and notified the- taxpayer accordingly.

      . For the year ending February 28, 1961, the rent paid was $55,020.99, which was expected to increase to $60,000 in the following year.

      . Not school taxes, however.

      . The tax commissioner testified that he depends on the cost of reproduction less depreciation method of valuation.

      . Restatement of Property, § 9; American Law of Property, § 3.12 (Yol. 1, p. 205); 32 Am.Jur. 39 (Landlord and Tenant, § 16). Unquestionably, however, a leasehold is an “interest” in the nature of real estate, and-we do not necessarily imply that it cannot or should not be so classified for purposes of ad valorem taxation. See Purcell v. City of Lexington, 186 Ky. 381, 216 S.W. 599, 602 (1920).

      . Certainly the $971,922.35 expended in the construction of the Standiford Motor Hotel is an investment on which the return will go to Jefferson rather than to the Air Board.

      . Of. KRS 132.190(3).

      .The question of classification would arise only if the leasehold were assessed at a different percentage of fair cash value, or taxed at a different rate, from, real estate. It is not suggested that a leasehold, though technically “intangible,” comes within the purview of KRS 132.-240, which requires the listing of intangibles at “face value.”


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ella Risner MILLER, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Reed D. Anderson, Jackson, for appellant.
    Henry L. Spencer, Jackson, for appellee.
   WILLIAMS, Judge.

In this highway condemnation action the property owners were allowed $1385 in county court as compensation for the taking of their property. They appealed to the dircuit court where a jury awarded them $3500. The Commonwealth now attempts an appeal to this Court.

Appeals to the Court of Appeals may not be' taken as a matter of right in civil cases where the amount in controversy is less than $2500. KRS 21.060. Where the amount is as much as $200 but less than $2500 a party may appeal only by filing a motion for an appeal in the Court of Appeals. KRS 21.080.

The Commonwealth failed to appeal from the county court judgment, which had the effect of limiting the circuit’ court’s jurisdiction to a determination of the inadequacy of the award as questioned on appeal by the landowners. Texas Gas Transmission Corporation v. Rose, Ky., 365 S.W.2d 332 (1963). To the extent,of the amount awarded in county court the question of excessiveness in the circuit court was closed. Commonwealth, Department of Highways v. Barker, Ky., 379 S.W.2d 481. The only thing in controversy is the amount the circuit court judgment exceeded the county court award.

The difference between the circuit court award and the county court award is $2115. That is less than $2500; consequently the Commonwealth was not entitled to appeal as a matter of right.

.The circuit court in its order overruling the Commonwealth’s motion for a new trial stated that the amount in controversy exceeded $2500. It is only when the judgment does not, when construed in connection with the pleadings, certainly fix the amount in controversy, that the court shall fix it. KRS 21.070. Here the circuit court judgment was for $3500 and the county court award appealed from was $1385. The difference between the two is apparent on the face of the instruments and is fixed at $2115. As a consequence, the valuation was not subject to interpretation by the circuit court

The appeal is dismissed.


author: HILL, Judge. STEWART and PALMORE, JJ.,

text:
    COMMONWEALTH of Kentucky ex rel. KENTUCKY RAILROAD COMMISSION et al., Appellants, v. RAILWAY EXPRESS AGENCY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.

      John B. Breckinridge, Atty. Gen., H. N. McTyeire, Asst. Atty. Gen., Frankfort, for appellants.
    Lively M. Wilson, Louisville, Stites, Peabody & Helm, Louisville, of counsel, for appellee.
   HILL, Judge.

This is an appeal from the judgment of the Franklin Circuit Court setting aside an order of the Kentucky Railroad Commission directing the Express Agency to continue the operation of its Morganfield, Kentucky, express office.

This opinion will refer to the appellants as the Commission; to the appellee as the Agency.

The Agency gave proper notice of its proposed intention to consolidate its Morgan-field office with its Evansville-Henderson office. No written protest was filed thereto. Notwithstanding the absence of protest, the Commission proceeded to hold hearings on the proposal, and thereafter entered an order denying the application to consolidate. The Agency gave notice of its intention not to comply with the order, and the Commission filed this action under KRS 276.370, to enforce compliance with its order.

The circuit court found the order of the Commission was not “supported by substantial evidence” and dismissed the appeal.

For a reversal of the judgment, the Commission presents the following arguments:

“A. The Commission found that consolidation would adversely affect the service.

“B. The Commission found that the applicant had not established a loss on its operation in Morganfield, Kentucky.

“C. The circuit court should not substitute its judgment for that of the Railroad Commission.”

Before taking up these arguments in the order listed, let us take a look at the scope of the power of this court to review the order of the Commission. In Railroad Commission of Kentucky v. Illinois Central Railroad Company, Ky., 265 S.W.2d 797, apparently the bellwether definition of the power of this Court in such case, the Court said:

“It follows that our review in this case is limited to the narrow question whether there is any substantial evidence, or, as said in some of the cases, any evidence of substance, to support the finding of the Railroad Commission.”

Before getting into the evidence to determine whether it “substantially” supports the finding of the Commission, we review the overall picture of the situation. Mor-ganfield, county seat of Union County, is a city with five thousand population, located on U. S. Highway 60 and U. S. 641, twenty-three miles southwest of Henderson, Kentucky. It is located on a branch line of the Illinois Central Railroad Company. Previous to the proposed consolidation, the Illinois Central motor truck picked up express at Evansville and delivered it to the office of the Agency in Morganfield. Outgoing express was loaded onto the I. C. truck at the office in Morganfield and hauled to Evansville to be forwarded.

Under the proposed consolidation, the Agency would eliminate the I. C. truck arrangement, pick up express at Evansville, consigned to Morganfield, and deliver it into Morganfield over a somewhat scheduled route as to time and direction. This same truck would have a pickup system as it proceeded on its rounds and, in addition, it would have definite and central points where it could call for and pick up express shipments. After consolidation there would be an area about the fringes of the city, including some villages nearby where the Agency would not have a pickup and delivery system. For this area, the Agency proposes to notify the consignee of the arrival of his express, await word from him, as to the day it should send the shipment out on its truck, so the consignee could meet the truck and receive his shipment.

Now, to the evidence of the protestants, upon which the Commission made its findings. Ferro Craft Corporation, the Agency’s best customer, accounts for ninety-five percent of the outgoing express shipments and seventy percent of its incoming business. Its representative testified as follows:

“Principally the reason that I give for opposing this new system is the fact of convenience of picking up the telephone and calling the local express agent. * * * There are times, because of limited space at the plant, that production items have to be moved out right now and the local truck here at your agency will come over and pick up a load and deliver it to his warehouse here in Morganfield. Many times that has occurred. We pick up the phone and call him and he will immediately dispose of it, whereas if we wait on a truck there is times that it might be sitting outdoors.”

Sidney Hulett, another protestant, testified relative to the reduced rates under the consolidation. He said:

“I don’t feel like the Railway Express Agency has waited long enough to see what this incentive rate will do. * * * Fortunately we have a good man here, Mr. Hubbard, if he gets something and he thinks you need it and you have said something to him about it he will call you up and he will' get it to you or you can go get it. All of that we will not have.”

Mike Waller, Jr., the third and next to last protestant, testified substantially as follows:

“ * * * we no longer will have a local representative here * * * to come around and acquaint me with various advantages that have resulted from incentive rates. * * * All things being equal, I am more included (inclined) to do business with an organization that maintains local offices and as I regard as being a part of the community.”

Mayor Lowell Truitt concluded the evidence offered in opposition to the proposed' consolidation. This is what he says:

“I think that I would be derelict in my duty as Mayor of the City of Morgan-field if I didn’t protest any move that would, I believe, conscientiously hurt the people of Morganfield in our trade area. * * * there should be some office here where people could come and ship out their express and receive it * * * shipment facilities that we should try to increase them and try to keep the office here and keep the clerk here if possible.”

In order to minimize the prolixity of this opinion, the evidence offered before the Commission will be summarized. It shows the Agency has an. agreement with one b.undred seventy-eight railroads in the United States; that the Agency has been losing millions of dollars annually; that before we built our highways, the Agency had offices at nearly every railroad stop; that it now has one hundred fifty-six offices in Kentucky. The Agency has keen competition from the United States Postal Department, and numerous motor trucks. It has eight hundred offices in the State of Illinois, whereas one of the largest motor freight companies in that state only maintains seven offices. The evidence also shows the Agency will save about thirty-five hundred dollars annually by the consolidation. It has successfully consolidated the offices at Cynthiana and Paris with that at Lexington. It is also shown that there would 'be a saving to the patrons on all air shipments into the area. The pickup and delivery area would be enlarged; the Agency would save half of the time handling shipments; it would pay for collect calls to Evansville in connection with shipments. Under the old system, the I. C. trucks were not heated. They would be heated and ventilated under the consolidation. The business of the office before consolidation required only three hours of the local agent’s time, yet, the Agency was required to pay 'him for full time.

At present two highway motor freights serve the city in competition with the Agen■cy. Neither has an office there.

The contention that consolidation would “adversely affect the service” is without ■substantial foundation. The most that can 'be said of the evidence offered by protes■tants is that it indicates a desire on the part of a few patrons that the new rates be •given an opportunity to determine whether they will improve the business of the Agency; a sentimental opposition to discontinuing a job; and a contention that the ■closing of the express office would result in inconvenience in delivering outgoing ex-press to that office at any time of day the -shipper desires, thereby giving the shipper •somewhat of a storage place. This last contention is the only one with any semblance of merit. However, considered with the other evidence, it cannot be said it is of such a substantial nature as to support the findings of the Commission.

The next contention, that the Agency did not establish a loss on its operations in Morganfield, is likewise unjustified by the evidence. With literally thousands of offices, home offices and overall charges, it would not be feasible to prove the financial results of a single operation. According to the testimony, it was estimated by at least one right well-qualified witness, that the Agency would lose approximately $3500.00 annually if not permitted to consolidate or, to be more exact, the consolidation would result in such a savings.

The Railway Express Agency, although regulated by an agency of State Government for the public welfare, is still a private corporation with real stockholders and real people to operate it. It is faced with keen competition from every side. It has a right to cut costs, meet competition, and show a profit. Indeed, that is its duty. It should not be prevented from so doing unless it is clearly established the public will suffer substantial loss or inconvenience.

See Commonwealth ex rel. Kentucky R. R. Commission v. Illinois Central Railway Company, Ky., 358 S.W.2d 533; Railway Express Agency, Inc. v. Louisiana Public Service Commission, 243 La. 518, 145 So.2d 18.

The Commission finally contends “the circuit court should not substitute its judgment for that of the Railroad Commission.” It cites Kentucky State Fair Board v. Nicklies, Ky., 361 S.W.2d 289 (1962). As we noted earlier in this opinion, this is not the test. The Nicklies case involved an appeal from the action of the Board of Claims denying claims for injuries. The circuit court was limited to remanding the case for further proceedings. The Nicklies case is not in point.

We conclude the order of the Commission is not supported by substantial evidence. The judgment is affirmed.

STEWART and PALMORE, JJ.,

dissent on the ground that it appears to them that there was substantial evidence to support the findings of the Kentucky Railroad Commission.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. James S. PRIEST and Frances Priest, Wife, Appellees.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.
    As Modified on Denial of Rehearing March 12, 1965.

      Robert F. Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Reed D. Anderson, Madisonville, Thomas L. Withers, Henderson, for appellant.
    Wm. M. Deep, Henderson, for appellees.
   DAVIS, Commissioner.

The appellant Department of Highways seeks reversal of the judgment entered in this condemnation suit; the judgment is for total award of $17,550, pursuant to the jury’s verdict.

The claimed errors upon which appellant relies are: (1) The damages are so excessive as to be palpably contrary to the evidence, (2) prejudicial errors were committed in admission of evidence, and (3) the trial court failed to instruct the jury properly.

The property involved in this proceeding is situated on the east side of US Highway 41, just south of Henderson. (We are told in brief for appellees that since the trial the property has been incorporated into the city limits of Henderson.) It is agreed by the parties that the land has potential as commercial property, and that such commercial use is the highest and best use fpr it.

Before the taking the lot, rectangular in shape, had 425 feet frontage on existing US Highway 41, with a depth of 295 feet. By reason of transforming US Highway 41 from a two-lane highway to a divided four-lane highway with median strip, the instant taking became necessary. The portion taken consists of a strip from the entire front, having depth of 61 feet. The lot was unimproved at the time of taking; it was served with one entranceway to the existing highway. After the taking the lot will continue to have frontage along reconstructed US Highway 41 for exactly the same width of 425 feet but its depth is reduced from 295 to 234 feet. An entranceway comparable to the one in use at time of taking is provided incident to the reconstruction. The reconstructed highway is not a limited access road.

Prior to the taking the lot lay virtually at a grade level with the existing highway. While the situation after the taking will place the lot at grade also, there is evidence that the lot slopes upwardly as it continues to the east, so that there may be some grading required by reason of the taking.

For the appellant two appraisal witnesses gave evidence as follows:

Before Value After Value Difference
$45,750 $41,000 $4,750
42,500 37,315 5,185

Four witnesses for the appellees gave the following evidence:

Before Value After Value Difference
$74,375 $42,500 $31,875
63,750 42,500 21,250
63,750 42,500 21,250
68,000 42,500 25,500

It is observed that each of the witnesses for appellees attributed an “after” market value of $100 per front foot for the land remaining after the taking. One prime factor upon which the witnesses for appel-lees computed reduced “after” market value was their belief that the lessening of available parking area substantially decreases the attractiveness of the property for commercial enterprises.

The trial court excluded evidence relating to the prospective use of the lot for specific businesses, such as bowling alleys, motels, shopping centers and the like. This evidence may have been proper, but no avowal was offered. CR 43.10. No effort was made to show that the remaining lot would be inadequate for such enterprises. However, the court permitted testimony that availability for parking space is a factor affecting market value for commercial purposes. No witness presented any evidence of knowledge or experience as to the extent of such value. Indeed, there is a showing that the remaining depth of 234 feet is quite ample for a service station. In fact, a comparable sale referred to in the evidence involved purchase of a lot for service station use with dimensions of 200 feet frontage and 200 feet depth. One witness asserted that 86 parking spaces would be lost, but furnished no information as to how he had reached the conclusion.

It is our view that when a landowner asserts a value factor which is outside the knowledge of ordinarily experienced persons, it is incumbent upon the party to adduce affirmative evidence substantiating that factor. We recognize that under certain circumstances the availability of space for parking automobiles may be a critical element in the market value of property. On the other hand, it is equally certain that some commercial enterprises are comparatively disinterested in the availability of parking space. It is apparent that the total amount of square feet in an area does not control the amount of parking space involved — for example, a strip of ground two feet wide and 425 feet long would not serve as parking space for one car. Thus, it seems to us that the litigant seeking to prove special vaSue by virtue of a special factor, such as the one under consideration, must present tangible evidence in support of such a claim. In this case no such tangible evidence appears. The bare opinions of the appraisal witnesses, while admissible, lack sufficient probative value to support the appraisals to which they testify. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472.

In 4 Nichols, Eminent Domain, 3rd Ed., Sec. 14.21 [2], it is said:

“The burden of proof is upon the owner to show that the taking of part of his property will cause damage to the remainder, and unless he shows such damage by affirmative evidence, furnishing a basis from which a reasonable and proper estimate of the amount thereof can be made, his compensation will be limited to the value of the land taken.”

Here the appellees have not sustained the burden of furnishing adequate affirmative evidence in support of the claim that loss of possible parking space could reasonably justify the inordinate reduction of market value.

Although we are cognizant of the salutary precept that the determination of the amount of damages is primarily the province of a properly instructed jury, we remain impressed with our responsibility to upset any verdict in which the jury’s award appears so excessive as to strike us as being unreasonable, and such as to show that the jury acted as the result of passion, partiality or prejudice. United Fuel Gas Co. v. Mauk, Ky., 302 S.W.2d 368; United Fuel Gas Co. v. Mauk, Ky., 325 S.W.2d 339; Com., Dept. of Highways v. Lyons, Ky., 364 S.W.2d 336; Com., Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714; Com., Dept. of Highways v. Tyree, Ky., 365 S.W. 2d 472.

Appellant contends that it was error for the trial court to permit references' by the witnesses to the specific types of businesses which might use the lot. The appellant recognizes the general rule announced in Bowling Green-Warren County Airport Bd. v. Long, Ky., 364 S.W.2d 167, and Com., Dept. of Highways v. Vincent, Ky., 357 S.W.2d 678, namely, that it is proper to show the land’s adaptability to particular purposes provided there is a further showing of a reasonable expectation that in the near future the land could be so used. It is urged, however, that there is an absence of evidence reflecting the owner’s reasonable expectation for any of the particular uses in the near future. As previously mentioned, the trial court did sustain objections appellant made to such evidence, although in at least one instance there was not a decisive ruling by the court on such an objection. Appellees, in brief, seem to concede the point that such evidence is not appropriate, but counter with the argument that appellant cannot complain because its objections were sustained. We are of the opinion that it is proper for the evidence to reflect all uses for which the property is suitable and adaptable, having regard to existing market demands of the community, or such as may be reasonably expected in the immediate future. However, the purpose for admission of evidence of this type is to show market demand, thus affecting market value. It is not proper to present such evidence with a view to showing loss of future profits to the owner because a particular business may no longer be placed upon the remaining land. Cf. Empire Dist. Electric Co. v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78; 5 Nichols, Eminent Domain, 3rd Ed., Sec. 18.11.

We believe that the matter of permitting evidence of the land’s adaptability for specific uses, before the taking, should be addressed to the question of market value. For example, it would be proper to show that a parcel of land has before taking adaptability for uses A, B, C, and D — and that by reason thereof its market value is “X” dollars; that after the taking it has lost its adaptability to these uses, but is adaptable to uses E, F, and G, with a reduced market value of “Y” dollars. Such a showing would embrace such matters as loss of ^potential parking space or loss of adequate area to accommodate a certain business, et cetera. Even if there is an absence of showing that .the taking has made the remaining land less adaptable, the adaptability for specific uses is relevant as bearing on “before” and “after” values.

There should be no reference to the time required to complete the highway construction. It was error to permit inquiry of the engineer as to how long it would be before the project is completed. Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, 859; Com., Dept. of Highways v. Jackson, Ky., 302 S.W.2d 373.

It was not proper to attempt to impeach one of appellant’s appraisal witnesses by inquiring whether the present case was the first case in which he had given evidence of enhancement. In the first place, this trial took place shortly after our decision in Com., Dept, of Highways v. Sherrod, supra, where it was first clearly enunciated that enhancement should be considered. Prior to that decision, evidence as to enhancement was not admissible. Moreover, the evidence was not relevant, since it had to do with separate-parcels in other proceedings and left open whether any similarity existed. It was not a prior inconsistent statement.

Appellant offered instructions by which the jury would have been required to report its finding of the “before” value and the “after” value. The court declined to give the tendered instruction, but instructed the jury in the form set out in Stanley’s Instructions to Juries, Vol. 1, Sec. 359a. The form was published just following the Sherrod opinion, supra. It is our view that the better form of instruction is one patterned upon the form offered by appellant. When the jury reports its determination of “before” and “after” values, the litigants and the court are apprised of the jury’s conclusions on these two vital points, and the propriety of the verdict as measured against the evidence is more readily determined. The appellee suggests that this form will require the jury to reach its unanimous verdict on two di'fferént figures, but there is no merit in that position.' Manifestly, in order for the jury to reach a verdict based upon its. findings as .to the difference in the “before”. and, “after” values it must first agree as to what those two values are. On another trial the court will instruct the jury:

“The jury will find from the evidence, and state in your .verdict;
“A. The fair market value of the defendant’s property as a whole immediately before the taking of the parcel by the plaintiff, as of January 22, 1962; and
“B. The fair market value of so much of the tract as remains immediately after the taking. In determining the value after the taking you will take into consideration any enhancer ment in the value of the remaining property that you believe from the evidence is attributable to the advantageous relation of the property to the new highway, as distinguished from any general enhancement of values in the community to property not even abutting on the highway.
“C. The difference between A and B, which sum you should award as compensation for the property taken.”

The instructions will include the definition of market value and -the requirement for unanimous verdict as given at the first trial.

In view of the fact that the instruction as given in this case did submit the question of the difference in the “before” and “after” values, as prescribed by our decision in the Sherrod case, supra, we announce herein that from the effective date of this opinion the suggested form shall be used; but this opinion shall not be considered to affect the validity of instructions given in other form prior to the effective date thereof. It should be observed that the phraseology in Section B. of the instruction as to enhancement should not be employed unless substantial evidence of enhancement presents an issue as to that phase of the case.

In the case at hand we have used January 22, 1962, in the prepared instruction because the litigants tried the case upon the premise that that was the pertinent date. Nothing herein is intended to impair the effect of our decision in Com., Dept. of Highways v. Wood, Ky., 380 S.W.2d 73. The appropriate “taking” date is to be ascertained as prescribed in the Wood opinion, supra.

The judgment is reversed for proceedings consistent with this opinion.

PALMORE, J., not sitting.


author: CULLEN, Commissioner.

text:
    Ted W. SWANNERS, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, and Dr. Harold E. Black, Director of Corrections, Appellees.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.
    Rehearing Denied March 19, 1965.
    Ted W. Swanners, pro se.
    Robert Matthews Atty. Gen., George F. Rabe, Asst. Atty Gen., Frankfort, for appel-lees.
   CULLEN, Commissioner.

Ted Swanners, held in confinement in the State Penitentiary at Eddyville on a five-year felony sentence imposed in 1963, instituted habeas corpus proceedings in the Lyon Circuit Court claiming that his confinement at Eddyville is unlawful because the judgment of conviction sentenced him to the State Reformatory at LaGrange. The Lyon Circuit Court entered judgment dismissing Swanners’ petition and he has appealed to this Court.

The state correctional authorities are given power by KIRS 196.070 and 197.065 to transfer prisoners from one institution to another, it being stated in KRS 197.065 that this may be done “irrespective of the order of the court committing said prisoner to any one institution or reformatory.” It appears that Swanners was transferred to Eddyville under authority of these statutes.

Unless the statutes are unconstitutional Swanners’ transfer was valid. His only claim of unconstitutionality is that there is an improper delegation of judicial power. In our opinion the designation of the institutions to which convicted felons may be sentenced is a legislative function. In effect the legislature has said that sentence shall be to the institutional system.

The judgment is affirmed.


text:
    Wilson CHANEY et al., Appellants, v. A. D. NOLAND et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    Rehearing Denied March 19, 1965.
    H. M. Shumate, Shumate, Shumate & Flaherty, Irvine, for appellants.
    James E. Thompson, Shackelford, Bur-nam & Thompson, Richmond, for appellees.
   PALMORE, Judge.

Wilson Chaney and wife, Sarah, appeal from a judgment of the Estill Circuit Court denying them specific performance of an agreement for the sale of land. The basis of the judgment is the statute of frauds, KRS 371.010(6).

The appellees, A. D. and Hazel H. Noland, purchased a tract of some 700 acres known as the Carl Williams farm. The Chaneys were tenants on the farm and wished to buy a part of it. Negotiations resulted in an agreement by the Nolands to convey the Chaneys 54 acres for $3,000. Prior to the date of the agreement the parties had gone on the ground and marked off the boundaries of the 54 acres. However, when the agreement finally was reduced to a written memorandum the writing itself did not contain any reference from which the 54 acres could be identified. This written evidence of the agreement was a receipt reading as follows:

“6/15/1961
Received of Wilson Chaney,
Two hundred Fifty and 00/100 .Dollars
For Payment on part of Carl Williams Farm as agreed Deed to be made February 1, 1962.
Previous Balance .$3,000.00
Amount paid . 250.00
Balance due. 2,750.00
A. D. Noland,
By Hazel H. Noland”

On February 12, 1962, counsel for the Chaneys prepared a deed for execution by the Nolands. Mr. Noland signed and acknowledged it, but a question arose concerning the tobacco base, and the parties went over to the ASC office to see if the entire allotment could be assigned to the portion of the farm being retained by the Nolands. Upon being informed this could not be done, the Nolands refused to complete the transaction. Mrs. Noland never signed the deed.

The farm of which the 54 acres were a part had been conveyed to the Nolands by a deed describing the entire 700 acres or so in a single metes and bounds perimeter. The memorandum of June 15, 1961, makes no reference to the stakes the parties had set out on the premises or to any other physical mark or extrinsic circumstance that would serve as a roadsign to indicate the specific “part of Carl Williams Farm” covered by the agreement. Therefore, it falls victim to the statute of frauds and the trial court correctly so held. Cf. Roberts v. Bennett, 166 Ky. 588, 179 S.W. 605, L.R.A.1916C, 1098 (1915).

«It is * * * the well-recognized rule in this state that the written contract or memorandum of the sale of real estate * * * must itself furnish the means of identifying the subject-matter thereof; and such a description of the land in the contract or memorandum which fails to furnish such means of identification is insufficient, and does not satisfy the statute of frauds.” Kentucky Counties Oil Co. v. Cupler, 204 Ky. 799, 265 S.W. 334, 335 (1924).

Each of the decisions cited by the Chan-eys was a case in which the writing itself provided an avenue of identification. In Mahaffey v. Wilson, Ky., 317 S.W.2d 888 (1958), for example, the property was described as “My Drive-in Theatre on Highway 11,” and this was held clearly sufficient to identify it. In McNamara v. Marcum, 290 Ky. 625, 162 S.W.2d 205 (1924), the agreement described the subject-matter as all of the interests acquired by the promisor in a certain deed, reference to which made the identity of the property unmistakable. In Montgomery v. Graves, 301 Ky. 260, 191 S.W.2d 399 (1945), a designation by street number was held sufficient despite omission of the name of the city. Of all the precedents urged against the judgment in the instant case, only Parke v. Spurlin, Ky., 268 S.W.2d 33 (1954), gives pause. However, its facts are different, and even if the correctness of the result be arguable, it is certain that there was no intention to change the fundamental principles that are applicable to this type of case.

It is further contended that the deed signed by Mr. Noland, in which the 54 acres were properly described, is a sufficient writing within the terms of the statute.

“A sharp conflict exists on the question whether an undelivered deed will satisfy the statute of frauds as a memorandum of the contract of sale.” 49 Am.Jur. 694 (Statute of Frauds, § 391). Delivery of a deed is, of course, a prime requisite of its legal efficacy, but it does not follow that delivery should be essential to the sufficiency of a writing in order to satisfy the statute of frauds. The question in a case involving the statute “is not whether there is a written contract, but whether there is a sufficient memorandum signed by the party which is evidence that a contract existed * * *. The evil the statute seeks to guard against is the use of oral evidence to prove the contract.” Ibid. “The better view would appear to be that if the deed embodies the substance of the parol contract, the mere fact that it is undelivered will not prevent its serving as a memorandum thereof within the Statute of Frauds, although a deed which is in form a mere conveyance of land, without referring to or embodying the substance of the oral agreement, is insufficient to take the contract out of the Statute of Frauds. This is true, however, not because of the nondelivery, but because of the insufficiency of the deed as a memorandum.” Annotation, “Undelivered deed or escrow, pursuant to oral contract, as satisfying Statute of Frauds,”' 100 A.L.R. 196, 202.

But logic notwithstanding, “this, court uniformly has construed our statute to mean that, while the written memorandum of the contract need be signed by the vendor only, it must be delivered to and' accepted by the vendee before the contract becomes enforceable by either party.” Gorman v. Gorman, 210 Ky. 65, 275 S.W. 366, 367 (1925); Nugent v. Humpich, 231 Ky. 122, 21 S.W.2d 153 (1929); Louisville-Trust Co. v. National Bank of Kentucky (6th Cir. 1939), 102 F.2d 137; and the-several earlier decisions cited in National Bank of Kentucky v. Louisville Trust Co., (6th Cir. 1933) 67 F.2d 97, 104-105.

In the absence of something to-show a contrary intention, when an instrument is prepared for execution by more-than one party the presumption is that its effective delivery is conditioned on the signatures of all. Cook v. Cook, Ky., 299 S.W.2d 261, 265 (1957); Will B. Miller Co. v. Bannon, 221 Ky. 677, 299 S.W. 567 (1927); Murrell v. American Ry. Express. Co., 207 Ky. 322, 269 S.W. 293, 294 (1924).. The Nolands owned the property in question as tenants by the entirety. The deed to ■ the Chaneys was prepared for joint exe--cution by the Nolands. Obviously Mr. Noland did not intend its delivery without his wife’s signature. Hence the trial court’s conclusion that the deed was insufficient is correct.

Our conclusions in the foregoing respects eliminate such further questions as whether Mr. Noland’s signature by his wife was sufficient to bind either or both of them and whether, if the undelivered deed had satisfied the statute of frauds with regard to Mr. Noland, specific performance could have been decreed against him alone.

The judgment is affirmed.

      . Citing, in support, Duteil v. Mullins, 192 Ky. 616, 234 S.W. 192, 20 A.L.R. 361 (1921), in which it was held that the vendor could not make a contract enforceable in his own behalf by signing a deed and tendering delivery. This construction of the rule rests on a strict conception of the doctrine of mutuality, which, at least in cases of specific performance, prevents enforcement of a contract by a party against whom it could not have been enforced at the instance of the other.

      . The opinions of this court in Purtell v. Bell, 179 Ky. 356, 200 S.W. 644, 646 (1918), and Antle v. Haas, Ky., 251 S.W.2d 290, 294-295 (1952), include a quotation from Wood on Statute of Frauds, § 345, in which, among other-things, it is said that delivery of the memorandum is immaterial. We do not-construe these two random references as intending to overrule the construction adopted by the numerous opinions in. which the question was directly presented, and expressly considered.


author: MONTGOMERY, Judge.

text:
    Gene E. JUDD, Appellant, v. Holline JUDD, Appellee. Gene E. JUDD, Petitioner, v. W. Major GARDNER, Judge, etc., Respondent.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.
    As Modified on Denial of Keliearing March 12, 1965.
    Eldon L. Webb, Ashland, for appellant and petitioner.
    Thomas S. Burchett, Jr., Ashland, Y. E. Kennard, Olive Hill, for appellee.
    No attorney for respondent.
   MONTGOMERY, Judge.

Judgment in a divorce action instituted by Holline Judd was entered December 12, 1963. Gene E. Judd has sought to appeal therefrom. The appellee has moved to dismiss the appeal because it was not perfected timely.

The statement of appeal and transcript of the record were filed August 19, 1964. Appellant contends that his appeal is timely and claims that the time for filing an appeal was tolled by the filing on March 25, 1964, of a motion to set aside and vacate the judgment, which motion was overruled on April 27, 1964.

In the March 25, 1964 motion, reference is made to an earlier motion to set aside and vacate, allegedly filed on December 18, 1963; the reference is:

“ * * * it further appearing that no order of the Court has been entered acting on defendant’s motion to vacate or defendant’s motion to set aside, and it further appearing that defendant filed a notice of áppeal in this action on January 16, 1964, at which time the defendant’s said motion to vacate and motion to set aside were still pending, * * * »

According to the record, appellant on December 16, 1963, served a motion to set aside and vacate the judgment and gave notice of hearing on December 18, 1963. According to the record this motion was overruled on December 16, 1963. On January 16, 1964, a notice of appeal was filed as follows:

“Notice is hereby given that Gene E. Judd, appellant above named hereby appeals to the Court of Appeals from a judgment entered in this action on the 12th day of December, 1963, and from order overruling motion to set aside and vacate judgment on the 18th day of December, 1963.”

The references to December 18, 1963, are obviously to the December 16, 1963 order. Whether the latter order actually was entered on the 16th or 18th obviously it was directed to the December 16 motion, and the phraseology of his notice of appeal indicates that it was so understood by the appellant.

The time for an appeal in this case had expired at the time of filing of the second motion on March 25, 1964. CR 73.02. In addition, the filing of the second motion would not have operated to terminate the running of the time for an appeal when such motion was filed more than ten days after the judgment. Taylor v. Warman, Ky., 331 S.W.2d 899; Rodgers v. Berry, Ky., 346 S.W.2d 43. The appeal was not filed in time and should be dismissed.

This view eliminates the need for further consideration of the petition filed by appellant in this Court in which it is asked that the Honorable W. Major Gardner, Judge, Carter Circuit Court, be prohibited from carrying out the judgment entered in the divorce action. Both matters have been considered together on the Court’s motion.

The appeal is dismissed and prohibition is denied.


author: MILLIKEN, Chief Justice.

text:
    Carl Ray SCHROADER and Harley Dupin, Appellants, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Eddyville, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 6, 1964.
    Rehearing Denied March 19, 1965.

      Carl Ray Schroader and Harley Dupin, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
   MILLIKEN, Chief Justice.

This is an appeal from a denial of habeas corpus, but before considering the merits a summary of the background is essential. The appellants were convicted in July, 1963, in the Ohio Circuit Court of armed robbery and were sentenced to life imprisonment. There was no motion for a new trial made in that action and no appeal taken. Subsequently, in February, 1964, the appellants (as petitioners) filed a motion in the Ohio Circuit Court to vacate the judgment of conviction, the motion was set for hearing and, in the absence of the petitioners or their representatives, the motion was overruled with apparently no actual hearing being had. Thereafter, the appellants (as petitioners) assert that they filed notice of appeal of the order overruling their motion to vacate their judgment of conviction, but no appeal as such ever reached this Court, and the Judge of the Ohio Circuit Court declared that the appellants (as petitioners) had filed a motion for a copy of “the record on appeal on a motion to vacate the judgment;” he declared that his court would supply the record as soon as it was transcribed if this Court desired it.

Apparently, the appellants thought they had been denied the record, for they filed a mandamus action in this Court asking us to direct the Ohio Circuit Court to supply them the record and, on June 26, 1964, we refused to direct that court to supply it in view of the willingness of the trial judge to supply it when available. Instead of completing the appeal of the Ohio Circuit Court judgment refusing to vacate their conviction, the appellants, pro se, switched their tactics and sought relief by habeas corpus in the Lyon Circuit Court in August, 1964.

The present appeal is from a denial of relief in their habeas corpus action seeking to vacate their judgment of conviction. In denying relief, the Judge of the Lyon Circuit Court commented that while the petitioners (appellants) “have filed a motion to vacate judgment, and have filed a notice of appeal upon the denial of said motion, it does not appear that such appeal has been perfected. Where the legality of conviction and subsequent incarceration can.be tested by a motion to vacate judgment, that remedy is exclusive. Ayers v. Davis (1964), Ky., 377 S.W.2d 154. Petitioners’ remedy is by perfecting their appeal or if the time has expired therein, by filing a new motion to vacate judgment in the court which convicted them.”

The post-conviction remedy under RCr 11.42 is constitutionally adequate if the trial courts adequately apply it. We are not required to spin our wheels reviewing post-conviction actions repeating in effect similar actions by the same petitioners asserting similar grounds for relief. (Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148), nor do we require trial courts of this jurisdiction to grant hearings in such cases where the ■substance of the allegations have been considered on the merits in a previous hearing. Baker v. Davis, Ky., 383 S.W.2d 125, decided October 9, 1964. However, in the case of the present appellants there does not appear to have been such a hearing on the merits in the motion to vacate judgment action in the Ohio Circuit Court as to satisfy constitutional standards; the petitioners were not present in court nor was counsel present to represent them. So far as we can deduce from the record before us, the Ohio Circuit Court checked the charges presented by the motion and satisfied itself that they were unfounded and of no consequence legally. If the trial courts in these post-conviction actions alleging substantial grounds for relief will grant hearings on the charges and make specific written findings disposing of the grounds alleged, then this Court has available the bases of decision and can satisfy itself in case of appeal as. to whether the standards of.due process have been met in the )rial and conviction ■ of the various petitioners.

We affirm the judgment of the Lyon Circuit-Court .denying habeas corpus, but. because' the. habeas corpus .action is 'seekiñg:..-essentially the.same relief sought ,in.the.Ohio'Circuit Court by,the. motion to vacate the judgment and for the same reasons, we direct the Lyon Circuit Court to remand the record of this proceeding to the Ohio Circuit Court where it shall be considered as a motion to vacate judgment under RCr 11.42, a hearing held and specific written disposition made of the grounds asserted for relief and the reasons therefor, and that court should appoint counsel to assist them.

The judgment is affirmed for proceedings consistent with this opinion.

MONTGOMERY, J., dissents for the reason stated in his dissenting opinion in Ayers v. Davis, Ky., 377 S.W.2d 878.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Claude COMPTON, d/b/a the Claude Compton Lumber Company, Appellee.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    As Modified on Denial of Rehearing March 12, 1965.

      John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., C. E. Skidmore, Dept, of Highways, Frankfort, for appellant.
    Rose & Short, Beattyville, F. Selby Hurst, Lexington, for appellee.
   STEWART, Judge.

On October 11, 1958, Raymond Everidge, an employee of appellee, Claude Compton, d/b/a The Claude Compton Lumber Company, drove a truck owned by appellee onto a bridge of appellant, Commonwealth of Kentucky, Department of Highways. While the truck was on the structure it collapsed. The bridge, located on Kentucky Highway 52 in Beattyville, Lee County, had signs at each end, posted by appellant, which read: “Load Limit 6 Tons.” Appellee’s truck had an alleged gross weight in excess of 26 tons.

Appellant brought this suit to collect $11,255.44, the purported value of the bridge. The complaint alleged the negligence of appellee caused the damage. Ap-pellee’s answer denied negligence and further pled that the damage resulted from appellant’s lack of diligence in failing to enforce the maximum load the bridge would accommodate, although it was on notice the weight limit was being repeatedly violated.

Appellee served a request for admissions, to which appellant did not respond. By this failure, appellant admitted the Board of Claims had found in the case of Com., Department of Highways v. Begley (see Ky., 376 S.W.2d 295, where this Court affirmed the circuit court judgment) That: (1) appellant was on notice that the bridge was in a hazardous and weak condition; that (2) prior to the collapse of the bridge, the Lee county judge had taken a delegation to Frankfort to advise the Commissioner of Highways a new bridge was needed; that (3) prior to the collapse of the bridge vehicles of excess weight daily passed over the bridge; that (4) the bridge was constructed in 1906 and over the years had received little maintenance; and that (5) appellant should have been “impressively notified” of the condition of the bridge and the constant violation of the posted weight limit. See CR 36.01.

Upon the basis of the foregoing admissions, appellee moved the trial court for a summary judgment which was granted. This appeal is from that ruling.

CR 56.03 authorizes a summary judgment if “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In Stevens v. Howard D. Johnson Co., 4 Cir., 181 F.2d 390, 394, in speaking of F.R.Civ.P. 56(c), which is comparable to CR 56.03, that court said; “ * * * jt (summary judgment) should be granted only where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. * * * [a]nd this is true even where there is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom.” In Furlong v. Stichman, D.C., N.Y., 24 F.R.D. 400, it was stated that, generally, summary judgment is not feasible in negligence cases, and it is only in an exceptional negligence case that the rule may be invoked.

What is the duty of the Department of Highways as to the course it should follow in dealing with a dangerous condition that may arise on any highway under its jurisdiction of which it has, or could have had, knowledge?

That duty was spelled out in Commonwealth v. Dever, 284 Ky. 150, 143 S.W.2d 1065. In that case heavy rains and floods in January and February of 1937 had caused dips and depressions to occur at intervals in the pavement of U.S. Highway 60 in Henderson County, near the Spottsville Bridge over the Green River. On July 31st of that year an automobile driven by one William: Dever, in which his mother, Alda Dever,. was riding, en route from Henderson to-Rockport, struck the first dip, left the road out of control and turned over. Alda De-ver’s death occurred, and suit was instituted, pursuant to a resolution adopted at the 1938-session of the General Assembly, to recover from the Commonwealth of Kentucky and the State Highway Commission such damages for her death as may have been sustained by reason of their negligence.

The District Engineer of the State Highway Commission in that case established the fact that east of the first dip (the Dever car was traveling west) two large signs had been erected in March, 1931, prior to the accident, on one of which the words “Danger — Dips in Road” were printed and on the other the word “Slow.” These signs were staggered along, this portion of the road.

In deciding that under the evidence appellant’s motion for a directed verdict should have been sustained by the trial court, this Court said: “ * * * But the-Highway Commission, even when the State has waived its immunity from suit, is not an insurer against accidents arising from defects or. dangerous conditions on a public road. Its duty is merely that of a private corporation or municipality subject to suit,, namely, to exercise ordinary care to prevent injury from defects in the highway. We are of the opinion that it fully discharged that duty when it erected the signs referred to in the testimony of the District Engineer * * *»

ICRS 189.230(1) provides that the Department of Highways may by notice prescribe load and speed limits “whenever in its judgment any highway may, by reason of its design, deterioration, rain or other natural causes, be damaged or destroyed by motor trucks or semitrailer trucks, if their gross weight or speed exceeds certain limits.” KRS 189.230(2) requires the notice to be posted at conspicuous places at the termini of the section of the highway to which it applies. This subsection further states: “After such a notice has been posted, no person shall operate any motor truck or semitrailer truck contrary to its provisions.”

Thus it appears the responsibility imposed upon the Department of Highways by case law and by statute is to make known to the traveling public any hazards which exist on any roads under its supervision and which are known to it or that could have been reasonably ascertained by it. In Com., Department of Highways v. Young, Ky., 354 S.W.2d 23, a Board of Claims case, the Department was held liable for an injury occasioned by the caving in of a highway while a motorist was driving over it. The opinion stated the Department was aware there was a washout under this particular section of the pavement but had resorted to no measures to warn those who might travel over the highway.

There seems to be no dispute but that appellee had knowledge of the posted weight limit because anyone approaching the bridge on the highway could clearly see the notice before he entered onto the bridge. Since it is admitted appellant had information the warning notice was being frequently disregarded, was an additional responsibility cast upon it? The answer must be in the negative. As indicated in the Dever case, supra, appellant was under a duty only to exercise ordinary care; and we believe it employed such care when it placed on the bridge a conspicuous notice of the maximum weight it would support. This was the utmost duty required of it by subsections (1) and (2) of KRS 189.230. Consequently, as it cannot be said appellant was negligent the defense of contributory negligence interposed by appellee is without merit.

However, appellee contends Com., Department of Highways v. Ragland Potter Company, Ky., 305 S.W.2d 915, entitled him to summary judgment. We do not agree. In that case the duties owed to the plaintiff by the Commonwealth were entirely different from those owed to appellee here. Language appears in that opinion to the effect that there was no evidence the excess weight of the defendant’s truck caused or contributed to the collapse of the bridge. This statement was inaccurate and was unnecessary to the decision.

In the instant case appellee's truck with an alleged gross weight of more than twenty-six tons was propelled upon a bridge that conspicuously displayed a weight accommodation of six tons. The bridge almost immediately fell with the truck. Can it be maintained that a truck of such great weight did not cause a bridge of such small weight capacity to fall in ? Certainly a rebuttable presumption was created that the proximate cause of the bridge’s collapse was the negligent act of driving an overweight truck on it. If, at the trial of this case, and we are directing that a trial be had, there be an absence of evidence to overcome this presumption appellant will be entitled to a directed verdict on the question of liability. See Lee v. Tucker, Ky., 365 S.W.2d 849.

It follows that the circuit court improperly sustained appellee’s motion for summary judgment.

Wherefore, the judgment is reversed and the case is remanded for consistent proceedings.