author: WILLIAMS, Judge.

text:
    Murrel W. MARTIN, Appellant, v. PORCELAIN METALS CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    June 22, 1962.

      W. C. Edrington, Louisville, for appellant.
    Marshall, Cochran, Heyburn & Wells, Gavin H. Cochran, Louisville, John B. Breckinridge, Atty. Gen., Frankfort, for appellees.
   WILLIAMS, Judge.

The appellant’s claim for compensation was denied by the Workmen’s Compensation Board. From a judgment of the Jefferson Circuit Court affirming the order of the Board this appeal is prosecuted.

On July 11, 1957, while in the employ of appellee, appellant was helping another man push heavy crates on metal rollers across the plant floor. Just before noon, he says, he felt a sharp pain emanating from his right foot, and progressing all the way up to the groin. The appellant has a congenital deformity of club feet. During the noon hour he reported to the First Aid attendant, but an examination by the attendant, the personnel manager, and other individuals did not reveal any injury. Nonetheless, he was soon thereafter referred to the General Hospital and examined by Dr. Akins and Dr. Costigan.

Appellant did not offer any medical proof before the Workmen’s Compensation Board until the time for producing evidence in chief had expired. By way of rebuttal he offered the deposition of Dr. Ehrman, which was objected to on the ground that it was psychiatric evidence and there was no psychiatric evidence to be rebutted. He also offered the deposition of Dr. Costigan, which was objected to on the ground that it was medical evidence which should have been offered in chief. The Workmen’s Compensation Board permitted the deposition of each of the doctors to be filed.

Dr. Akins, who examined appellant on the day the injury is said to have occurred, and on two other occasions, testified that he found no evidence of recent trauma and no objective evidence of injury or disability. Dr. Shifflett testified that he conducted an X-ray examination of appellant at the request of Dr. Akins and his findings were negative with regard to the possibility of recent trauma.

The Workmen’s Compensation Board found that appellant was disabled and that the disability was caused by a neurosis. In order to be compensable, a neurotic condition must be the natural and direct result of a traumatic injury. Eastern Coal Corporation v. Thacker, Ky., 290 S.W.2d 468; High Splint Coal Company v. Jones, Ky., 338 S.W.2d 208; Mary Stone v. Arthur Hewitt Designs Company, Inc., Ky., 358 S.W.2d 513, decided June 15, 1962. The Board concluded that the appellant’s neurotic condition was not the proximate result of a traumatic injury.

The Jefferson Circuit Court found that there was sufficient probative evidence in the record to sustain the Board’s findings of fact. We have often said that the Workmen’s Compensation Board is a fact-finding body, and if there is any substantial evidence to support its finding of fact it will not be disturbed. Elk Horn Coal Corporation v. Isaac, Ky., 284 S.W.2d 88. The testimony of Drs. Ehrman and Costigan was indicative that the neurotic condition experienced by appellant could have resulted from an injury suffered by him on July 11, 1957. On the other hand, there was positive evidence by Drs. Akins and Shifflett that appellant had not suffered a recent injury, and to strengthen that testimony Dr. Costigan conceded that his conclusion of an injury was based primarily on subjective findings related to him by appellant. It was further shown that appellant’s congenital deformity, heightened by an unsuccessful operation performed on his feet many years ago, would probably cause pain and difficulty.

The function of this Court and of the circuit court concerning the facts is to review the record and determine whether or not the Board’s finding is supported by substantial evidence. Here there was substantial evidence to support the finding of the Board.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Archer O. SMITH et al., Appellees.
    Court of Appeals of Kentucky.
    June 22, 1962.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Lawrence L. Pedley, Dept, of Highways, Frankfort, for appellant.
    Lovett, Lovett & Lovett, John C. Lovett, Benton, for appellees.
   WILLIAMS, Judge.

The appellees, Archer O. Smith and Charlene Smith, owned a 1.71-acre tract of land approximately one mile north of Calvert City. The property was improved with a restaurant building, a metal shed used as a plumbing shop, and a small two-story apartment building. It was the nearest commercial enterprise adjacent to a large industrial area. The appellant, Commonwealth of Kentucky, Department of Highways, under the power of eminent domain, acquired a 120-foot strip running diagonally across the rear of appellees’ property and comprising about .44 acres'. The location of the buildings on the property was not affected by the taking, but the sewerage system (septic tank and drainage field) was taken in its entirety. Trial of the condemnation proceedings was had in the Marshall Circuit Court and a jury awarded the landowners $3,000 for the land taken plus $17,000 for resulting damage.

The Commonwealth demands a reversal on its appeal and the landowners demand a reversal on their cross-appeal. We are reversing the judgment and remanding the case to the Marshall Circuit Court for a new trial.

On a new trial it will be proper to show the adaptability of the property for business purposes, as well as its location, as elements to be considered in determining its value before the taking. Cranley v. Boyd County, 266 Ky. 569, 99 S.W. 2d 737; Commonwealth v. Gilbert, Ky., 253 S.W.2d 264, 39 A.L.R.2d 205. But damage to the business on the land is not a proper element to be considered. A business is too intangible in nature, depends too much on the good will and skill of the operator, to be considered as an element in fixing value. Nichols on Eminent Domain, vol. 4, section 13:3, says:

“ * * * It is well settled that when land occupied for business purposes is taken by eminent domain, the owner or occupant is not entitled to recover compensation for the destruction of his business or the injury thereto by its necessary removal from its established location. Furthermore, as the business is something entirely distinct from the market value of the land upon which it is conducted, it is not considered in determining the value of such land except so far as it illustrates one of the uses to which the land taken may be put. * * * ”

Also, on a new trial, evidence of gross income should be excluded. We said in City of Newport Municipal Housing Commission v. Turner Advertising, Inc., Ky., 334 S.W.2d 767, that injury to business or loss of profits is not a proper element of compensation in condemnation proceedings. Gross income, of course, does not necessarily prove a reliable measure of profits. For example, we approved the introduction of evidence of gross production of farm land in Kentucky Water Service Co. v. Bird, Ky., 239 S.W.2d 66, and under the unusual circumstances pertaining we approved a different test in Richmond & L. Turnpike Road Co. v. Madison County Fiscal Court, 114 Ky. 351, 70 S.W. 1044, (the taking of a turnpike). But, where income is derived mainly from the skill of the operator rather than from the productivity of the property, any testimony pertaining to that income should be excluded.

Finally, offers of settlement made by either party should be excluded. We find no further reversible errors to have been committed.

The judgment is reversed on the direct appeal and on the cross-appeal, and the cause is remanded for a new trial.


author: MOREMEN, Judge.

text:
    Richard W. BROWN et al., Appellants, v. HARDIN COUNTY BOARD OF EDUCATION et al., Appellees.
    Court of Appeals of Kentucky.
    June 22, 1962.

      W. Owen Keller, Frankfort, James M. Collier, Elizabethtown, for appellants.
    James T. Hatcher, Paul M. Lewis, Elizabethtown, for appellees.
   MOREMEN, Judge.

This suit is a class action brought by a number of taxpayers of Hardin County by which they sought to enjoin the Board of Education from entering upon a program of consolidation of high schools. The Court refused to grant an injunction and dismissed the complaint. Hence this appeal.

Prior to the year 1960, the Hardin County High School System contained six high schools. For a number of years the County Board of Education had considered the advisability of eliminating some of these schools in order that schools of higher standards could be established with more adequate educational opportunities for the children of the county. So, in 1960 the School Board requested the State Department of Education to make a survey of its high school system and to recommend to it whether a consolidation program should be had and what course should be pursued if consolidation was recommended.

The State Department of Education sent three highly qualified officials to Hardin County where they spent several days making a field study of the problem. In addition these men had data and information which had been collected over recent years. They reported to the Hardin County School Board that the county could not adequately support six high schools and offer in each one a comprehensive curriculum that would meet the high requirements of present day education. It was suggested that the number of high schools be reduced to three and that they be established at Vine Grove, Stephensburg and Glendale. The Hardin County School Board adopted the plan recommended by the State Board of Education.

Appellants complain that the three schools are improperly located for the reason that in the most populated portion of Hardin County — the northern section— only one school will be located, that at Vine Grove, while in the sparsely settled southern part two schools will be situated, one at Stephensburg and one at Glendale. These are only six miles apart, thus creating an imbalance which is to the disadvantage of the high school students in that some of them must drive considerable distances to attend classes.

The proof shows, however, that the area to be served by the Vine Grove High School is much smaller than the area to be served by the other two schools and while the Vine Grove School will serve about five hundred pupils, the Stephensburg Center will be open to approximately four hundred students and Glendale will have about four hundred and fifty. It seems to us that this is about as close a division of this nature as may be made. In addition, the roads, natural terrain (which in some parts of Hardin County is rather mountainous even though we call it hilly), bridges and other means of travel must be taken into consideration. It appears to us that the local School Board, together with the State Board of Education, is better qualified than the court to exercise this discretion. We have repeatedly so held.

Chapter 160 of the Kentucky Revised Statutes sets forth in detail the rights, powers and duties of the County Boards of Education and by these statutes the legislature has expressly vested in local School Boards the right to select school sites. Courts will not interfere with the exercise of such discretion unless clear abuse is demonstrated. See: Perry County Board of Education v. Deaton, 311 Ky. 227, 223 S.W.2d 882.

We believe, after an examination of the record, that the School Board acted correctly.

Judgment affirmed.


author: STANLEY, Commissioner.

text:
    Russell SAPP et al., Appellants, v. Florence MASSEY et al., Appellees.
    Court of Appeals of Kentucky.
    June 22, 1962.
    Donan & Vick, Greenville, for appellants.
    Jarvis & Cornette, Greenville, for appel-lees.
   STANLEY, Commissioner.

H. J. Massey and wife, Florence, on March 1, 1951, executed an oil and gas lease of 58 acres to Fred Culpepper. One producing well was started in 1954 and completed on June 29, 1956. This suit was instituted on September 30, 1957, by Florence Massey and her children, successors in title of the lessors, against Russell Sapp, et al., present owners of the lease. Upon the allegations of the complaint the plaintiffs prayed the court to adjudge 1) that the lease had expired by its own terms, 2) a forfeiture because of improper and inadequate development under the implied covenants of the lease, and 3) damages of $10,-000 for drainage by nearby wells. The answer raised the issues. Following a conference and hearing, a pre-trial order was entered reciting that “the sole issue to be determined shall be whether or not plaintiffs’ lease, now held by the defendants, shall be forfeited for lack of reasonable development.” The order expressly excluded from the case the question of termination of the lease and adjudged the plaintiffs not to be entitled to the damages claimed.

After much evidence had been heard orally and by depositions, the plaintiffs were-permitted to file an amended complaint to make the pleadings conform to the proof. CR 15.02. This amendment was substantially the same as an amended complaint which had been tendered a few days after the entry of the pre-trial order and later withdrawn. The amended complaint re-pleaded a breach of the implied covenant to develop the lease and, in addition, alleged 1) that the defendants had further breached their duty by selling the oil from the one well below the market price to plaintiffs’ damage of $441.47 ; 2) that the lease had been forfeited for lack of reasonable diligence and had remained “a burden and encumbrance” on the land to plaintiffs’ damage of $1,000. The prayer was for recovery of those two items and further damage of $1,000 for failing to prevent drainage by drilling offset wells.

The judgment and Findings of Fact and Conclusions of Law, which were made a part of the judgment by reference “as though fully set out at length,” use the terms “abandoned” and “forfeited” and “cancellation” and “forfeiture” in relation to the lease. The producing well and three acres of land around it, which area was particularly described, with necessary' rights incident thereto, were excepted.That reservation, however, was adjudged-“cancelled, set aside and held for naught and held forfeited without further process of law” in case the well should cease to be-“commercially or profitably productive and no oil is pumped and/or marketed therefrom for a period of ninety days.” The court further found and adjudged 1) that the plaintiffs had been damaged $441.47 by reason of the defendants’ having sold the oil for less than they would have received had they sold it to another named company; 2) that plaintiffs had been “damaged to some extent through the failure of the defendants to drill offset wells” but the amount could not be arrived at except through speculation, so no judgment on that account was rendered; and 3) that plaintiffs had been damaged “by the lease being an encumbrance on said land, to what extent the court does not know,” but it was at least $200, and that sum was - adjudged.

By the provisions of the pre-trial order the court was limited to deciding only the issue of forfeiture of the lease. In dealing with pre-trial proceeding, CR 16 defines the purposes and character of the order to be entered and “limits the issues for trial to those not disposed of by admissions or agreements of counsel,” and provides further “such order when entered controls the subsequent course of the action, unless modified at or before the trial to prevent manifest injustice.”

In his work on the Kentucky Civil Rules of Practice and Procedure, Judge Clay comments, “The pre-trial order is most important because it controls the subsequent course of the action unless modified at or before the trial to prevent manifest injustice. This order shall recite the action taken at the conference, the pleading amendments allowed, and the agreements and admissions of the parties. The parties are bound by the pre-trial order and its terms may not be contradicted.” Clay, CR, p. 201. Berry v. Spokane, Portland & Seattle Ry. Co., D.C.Or., 2 F.R.D. 483, is cited as authority. The statement is fortified by other texts and cases construing the comparable Federal Rule 16, 28 U.S.C.A. 3 Ohlinger’s Fed.Pct., Rule 16, Note 6; 3 Moore’s Fed.Pct., Pars. 16, 19, 1620, pp. 1126 et seq.

It is said in 35B C.J.S. Federal Civil Procedure § 912, “If a party wishes to present other issues at the trial, he should ask for an amendment of the pre-trial order.” For ready reference we quote the following from McCarthy v. Lerner Stores Corporation, D.C., 9 F.R.D. 31:

“One of the chief purposes of pretrial procedure, and the principal usefulness of a pretrial order, is to formulate the issues to be litigated at the •trial. The parties are bound by the pretrial order. They may not later inject an issue not raised at the pretrial conference. Otherwise the primary objective of pretrial procedure would be defeated.
“ * * * To say that parties are not bound by the pretrial order is a misunderstanding of the purpose and the office of pretrial.
“No doubt situations may occasionally arise in which counsel discovers some vital new matter, after pretrial and before the trial. Th.e pretrial order may then be amended to include ■the new- issue. Application may be made to the Pretrial -Court -to amend the pretrial order.
“If counsel waits until the trial, he is bound by the pretrial order, unless the trial court relieves him of the pretrial order to prevent manifest injustice. Of course, it is contemplated that this will be done only in exceptional cases, as otherwise the adverse party may be taken by surprise and in a proper case may become entitled to a continuance and possibly a mistrial, if the case is tried before a jury.”

The defendants never asked for a modification of the conclusive pre-trial order but proceeded notwithstanding to take proof on the eliminated issues and then were permitted to plead the same retroactively after having once withdrawn the tender of substantially the same amended complaint. Laying aside the questionable legal merits of the claims for damages— especially for the novel claim of liability of encumbering the land by an existing lease which the plaintiffs’ predecessors had executed — and the claim of abandonment of the lease (which was never pleaded), we must hold that the judgment in relation to all issues except forfeiture was not authorized.

We turn to the question of the sufficiency of the evidence as a matter of fact and of law to establish the right of forfeiture of the lease for breach of the implied obligation of the lessee to proceed with exploration and full - development of the leasehold with reasonable diligence. The question of what that may be is often a difficult one, for it involves the opinions and judgments of the respective parties, which often clash, and, in a large degree reasonable discretion on the part of the lessee. We may say that the delay of thirty months in completing -the one producing well seems to have been justified by unavoidable circumstances. At -the time of the trial there had been drilled on the adjacent or nearby land thirty producing wells and twenty-two dry holes. If it be conceded that the lessees had not exercised proper diligence and operation under the circumstances, there remains for determination as an equally controlling factor the matter of the lessors’ demand to further develop.

It is well settled law of this jurisdiction that where the right to have a lease forfeited for breach of the implied covenant to develop the property diligently and prudently is asserted, the lessor must have put the lessee in default by making definite and unequivocal demand of him that he do so within a reasonable time, or by giving that character of notice that compliance with the implied covenant is required. That is a condition precedent to the maintenance of a suit to forfeit, and the burden is upon the lessor to prove it. Among the cases so holding are Monarch Oil, Gas & Coal Co. v. Richardson, 124 Ky. 602, 99 S.W. 668; Leeper Oil Co. v. Rowland, 239 Ky. 295, 39 S.W.2d 486; Lawrence Oil Corp. v. Metcalfe, 241 Ky. 353, 43 S.W.2d 986; Young v. Dunn, 302 Ky. 232, 194 S.W.2d 378; B. & B. Oil Co. v. Lane, Ky., 249 S.W.2d 705; Cameron v. Lebow, Ky., 338 S.W.2d 399.

But we have recognized that notice to develop the property further may be regarded as waived by the lessee’s declaration that he would not drill even if adequate •demand were made. Lawrence Oil Corp. v. Metcalfe, 241 Ky. 353, 43 S.W.2d 986; American Wholesale Corp. v. F. & S. Oil & Gas Co:, 242 Ky. 356, 46 S.W.2d 498.

We look to the evidence of demand and waiver.

The defendant, Russell Sapp, was the agent of his co-lessees. The only evidence of notice or demand, as the trial ■court found, was that Eura E. Massey, son of the original lessors, had assisted his parents in managing their land, and when he had only a family interest, had discussed the matter of operations with Sapp and complained because further wells had not been drilled. Certainly that was not a legal notice or demand. But the court found that such complaints had elicited statements from Sapp to the effect that he had no intention of drilling another well. On a careful reading and rereading of Massey’s evidence we find only that he testified that “a time or two” he had discussed with Sapp the development of the lease, and on one occasion, in June or July, 1956, Sapp had ■said, “If he ever got the money to drill a hole, he would drill the well.” The first well was completed about that time. Obviously that did not constitute a waiver.

When Sapp was called to testify as if on cross-examination, there was elicited from him, in connection with his statements that he considered the property reasonably developed and had never been called upon to drill another well, that he would not put any more money in another well. In testifying as a witness for himself and his co-defendants, he stated, in regard to the conversation with Massey in June or July, 1956, that Massey’s mother and sister were present, and he told them he wanted to see how the production of the first well turned out before drilling another, and the sister (who, like Massey, had then only a family interest) responded, “She didn’t care whether there was any more wells drilled on the old farm.” Sapp further testified that if notice had been served upon him to drill another well prior to the lawsuit, he and his associates would have done something about further development, but they would not do so “at the present time” or while the suit was pending. He testified that “at the present time further development was not warranted” but that in the future it is possible further drilling would be warranted. We cannot read into this evidence any waiver of notice or demand prior to the litigation. We are of opinion the judgment of forfeiture is erroneous.

The court overruled the defendants’ motion to change his findings in some respects as being erroneous and to add other findings. They also filed a motion for a new trial and for judgment notwithstanding the verdict. CR 50.02; 59.01. The court had found the value of the lease, less the exception of three acres and the producing well, to be $1,200 or $1,500. The defendants moved that the amount in controversy be fixed as at least $2,500 and that was denied; hence, the case is before us on a motion for an appeal under the rule prevailing before the amendment of KRS 21.-080.

The motion for an appeal is sustained, and appeal is granted, and the judgment is reversed with directions to enter another dismissing the complaint as amended.

Reversed.


author: WADDILL, Commissioner.

text:
    Welby L. GOODALL et al., Appellants, v. ROLLING RIDGE, INC., a Corporation, Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962.
    H. Bemis Lawrence, Louisville, for appellants.
    Erwin A. Sherman, Richard C. Oldham, Louisville, for appellee.
   WADDILL, Commissioner.

Appellee, Rolling Ridge, Incorporated, instituted this action to foreclose its vendor’s lien on certain subdivision lots which it had sold to appellants, Welby and Elvy Goodall and their wives. By answer and counter-claim appellants sought a cancellation of the contracts they executed in connection with the purchase of these lots on the ground that they had been fraudulently obtained by appellee’s president, R. S. Trigg. Following a hearing the trial court found that no fraud had been perpetrated upon appellants since they knew the true condition and status of the lots prior to the consummation of the sale. A judgment was entered granting appellee the relief it sought.

Appellants maintain that the trial court erred in not sustaining their claim of fraud and in not holding as a matter of law that they were entitled to relief under the doctrine of “impossibility of performance.”

Appellants, who áre engaged in the business of building and selling houses, entered into negotiations with appellee’s officers to purchase numerous lots in a subdivision for the purpose of building houses thereon. The contract of sale ultimately executed by these parties involved some lots which had been approved for septic tank use and a few lots that are involved in this action which have never been so approved. Appellants argue that at the time of sale Trigg concealed the fact that he knew these latter mentioned lots, due to poor percolation, did not meet the requirements of the Health Department of Jefferson County for the use of septic tanks and that building permits could not be obtained for the construction of houses with septic tanks on these lots. Trigg insists the appellants knew these facts but proceeded to purchase the lots when they obtained a reduction of $500 on the price of each lot included in the contract of sale.

Several witnesses testified to statements made by the Goodalls and Trigg during their negotiations which clearly show the Goodalls were informed of the difficulty in obtaining permission to install septic tanks on these lots. Elvy Goodall admitted that he was told by an official of the Health Department prior to the sale that these lots had not been approved for septic tank use. Furthermore, there was evidence that the Goodalls knew of and accepted the risk involved in obtaining building permits for the construction of houses which would require the use of septic tanks on these lots. Consequently, there was sufficient proof to support the trial court’s finding that appellee was not guilty of fraud. Wilson v. Henry, Ky., 340 S.W.2d 449.

Appellants further contend that they are not bound by the contract under the doctrine of “impossibility of performance” since appellee’s officers knew that appellants were purchasing the lots for the purpose of constructing houses upon them. The fallacy of this contention lies in the fact that there is insufficient evidence upon which the court could conclude that only houses with septic tanks were to be built by the appellants. While it may be onerous or unprofitable to build houses with some other means of sewage disposal, this fact does not excuse performance by appellants. Frazier v. Collins, 300 Ky. 18, 187 S.W.2d 816; Mid-Continent Petroleum Corp. v. Barrett, 297 Ky. 709, 181 S.W.2d 60. Therefore, we uphold the judgment entered in the circuit court.

Judgment affirmed.


author: PER CURIAM.

text:
    Clyde MARTIN, Appellant, v. CITY OF BOWLING GREEN, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962.
    Thomas W. Hines, Hines, Hines & White, Bowling Green, for appellant.
    John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., Frankfort, Joseph C. Covington, Bowling Green, for appellee.
   PER CURIAM.

This is a motion for an appeal from a judgment of conviction rendered against Clyde Martin for driving an automobile on a public highway while intoxicated. He was fined $100 in the City of Bowling Green police court. Upon an appeal to circuit court, his appeal was dismissed. He is now before this Court.

We have carefully considered the grounds urged for reversal of the judgment and conclude under the facts presented that they are without merit.

Wherefore, the motion is overruled and the judgment is affirmed.


text:
    Bernard A. GRIMM, City Comptroller, City of Covington, Kentucky, Appellant, v. John J. MOLONEY, Mayor, et al., Appellees.
    Court of Appeals of Kentucky.
    June 22, 1962.
    John J. O’Hara, Blakely, Moore & O’Hara, Covington, for appellant.
    Jo M. Ferguson, Grafton, Ferguson & Fleischer, Louisville, Edwin H. Henry, City Sol., Covington, for appellees.
   STANLEY, Commissioner.

The suit tests the constitutional validity of Chapter 178, Acts of 1962, entitled, “An Act relating to powers of cities of all Classes to induce governmental agencies to locate or relocate within their boundaries; and declaring an emergency.” Dependent are an implementing ordinance of Covington and a revenue bond issue.

The Act is very comprehensive. In broad outline, it authorizes any city to appropriate public funds to provide as an inducement to a “governmental agency,” which expressly includes the United States to establish or locate within the city or its environs “a governmental project which might, but for such inducement, be established elsewhere, or not at all.” Various methods of raising the money to be so appropriated are authorized. Among those methods is the issuance of revenue bonds.

Prior to and in anticipation of the statutory enactment, the City of Covington had devised a plan and made tentative or conditional proposals to the United States to have the government locate within the city a “Data Processing Center for the Internal Revenue Service” which would employ 1,-500 to 1,800 persons and have an estimated annual payroll of $6,000,000. There was sharp competition among Covington and other cities to obtain the Center. Subsequent to the Enabling Act, the city passed an appropriate ordinance with terms satisfactory to the government for the location and establishment of the Center.

Under the authority of the statute and the ordinance a site of 17.75 acres has been acquired as a part and incident of the Federal and State Urban Renewal and Redevelopment Statutes. 42 U.S.C.A. § 1441 et seq.; Ch. 99 K.R.S.; Miller v. City of Louisville, Ky., 321 S.W.2d 237, 238. The land is to be leased to the federal government for a period of years with renewal options at an annual rental of $1.00. It appears that a contract or agreement has been entered into by the city and the General Service Administration of the federal government, conditioned or contingent upon the legal ability of the city to finance the purchase of the site. The government will cause buildings to be erected and those improvements will become the property of the city on the final expiration of the lease.

Additional material facts are that there are serious conditions of unemployment existing in the city and, as the ordinance declares, “same will continue or increase in severity within the foreseeable future.” The objective of the statute and of the particular project is to serve the public purpose by creating jobs and relieving unemployment and to promote general welfare of the city by encouraging and increasing local industry. Cf. KRS 103.200-103.285; Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80; City of Henderson v. Todd, Ky., 314 S.W.2d 948; Bennett v. City of Mayfield, Ky., 323 S.W.2d 573; and the Industrial Development Finance Act, KRS 154.001 et seq., which was held constitutional in Industrial Development Authority v. Eastern Ky. Reg. Pl. Comm., Ky., 332 S.W.2d 274.

To accomplish the purposes, the ordinance authorizes the issuance of $2,500,000 of revenue bonds. Two sources of revenue for the payment of the bonds are provided for. One source is to apply surplus revenues or service charges of the municipally owned combined and consolidated water and sewer systems. The other source is to set apart and allocate all revenues to be derived from occupational license taxes collected from employees of the Data Processing Center.

The City Controller, who is entrusted with the responsibility of dispensing the funds of the municipality under the enabling ordinance, having doubt as to the validity of the enactments and proposed action, joined with the mayor and other officials in submitting the facts to the court for adjudication of fifteen questions, as is authorized by KRS 418.020-418.030. The trial court declared there was a real controversy between the parties and that the proceeding had been instituted in good faith. In a learned review of the applicable law, the court answered the questions in the form of a Finding of Fact and Conclusions of Law, (CR 52.01) which, by reference, was incorporated in the judgment. It was adjudged that the act and the ordinance were constitutional and effectual and the bonds were valid.

The appellant concedes that the decisions of this court sustain the reasoning- and the conclusions of the trial court as to all questions except three. We do not, therefore, have any controversy with respect to those twelve questions and have no need to consider them.

The determination of two related major questions is challenged.

One question is whether the provisions of the statute and the ordinance “authorizing and providing for the issuance of revenue bonds for a project which is not in itself revenue producing, and the unrelated pledge of surplus revenues from the combined and consolidated water and sewer system of said city and certain occupational license taxes or fees, for the payment of said bonds, constitute the incurring of an indebtedness of the city without approval of the voters thereof in conflict with sections 157 and 158 of the Kentucky Constitution.”

The other question is “Whether the provisions of the ordinance pledging surplus revenues of the combined water and sewer system of the City of Covington to the payment of the revenue bonds authorized by said ordinance constitute an impairment of the contract between the city and the holders of its presently outstanding and previously issued revenue bonds as represented by the bond ordinances pursuant to which the City of Covington has outstanding its revenue bonds payable from all or any portion of the revenues derived from the operation of said combined and consolidated system.”

I.

Section 157 of the Constitution limits the tax rates of the several cities and districts and prohibits the incurring of a debt in excess of the income and revenue provided for the current year without the assent of the voters thereof. Section 158 places a limitation upon an indebtedness, measured by percentages of the value of taxable property except in case of emergencies.

We are not concerned with the provisions of the Enabling Act of 1962, § 4, which authorize a city to incur an indebtedness and issue its general obligation bonds therefor in order to provide “all or any part of municipal inducements.” Our concern is § 5 of the Act, which authorizes revenue bonds payable solely from a special fund set aside from “permissible sources.” Such bonds are declared not to constitute an indebtedness of the city. Subsection (a) authorizes the pledge of direct revenues from the “governmental agency,” but not exclusively, for the payment of the bonds. Subsection (b) provides that in the event the project does not produce any or sufficient direct revenue, then

“the city may pledge and covenant that it will cause to be deposited in said special fund, the revenues which it may derive from any municipally owned and operated water, electric, gas, sewer or other utility systems, or from any combination thereof, to the extent such revenues at the time may be or become surplus to the necessary costs of operating and maintaining such utility system or systems and surplus to any existing contractual commitments of the city to the holder or holders of outstanding revenue bonds payable from such revenues.”

The ordinance and form of the proposed bonds are in accord with this subsection.

This feature of the legislation, both state and municipal, deals with propri-tary functions of the city. Ordinarily, constitutional restrictions on municipal indebtedness are not applicable to obligations which are payable out of money derived from income and revenues of city owned and revenue producing public utilities. Klein v. City of Louisville, 224 Ky. 624, 6 S.W.2d 1104; City of Hazard v. Salyers, 311 Ky. 667, 224 S.W.2d 420; Burkholder v. City of Louisville, Ky., 276 S.W.2d 29; Skidmore v. City of Elizabethtown, Ky., 291 S.W.2d 3; 64 C.J.S. Municipal Corporations § 1853b, p. 377, § 1957d, p. 609.

With respect to the use of surplus revenues from the described utilities for a purpose not related to those utilities, this case is on the same footing as McKinney v. City of Owensboro, 305 Ky. 254, 203 S.W. 2d 24; and Perkins v. City of Frankfort, Ky., 276 S.W.2d 449. It was held in those cases not to be illegal to use, where authorized, surplus revenues from public utilities to pay bonds issued for unrelated public projects.

II.

The City of Covington has heretofore imposed an occupational license tax payable by all persons employed within the city, computed on the payrolls. The present ordinance provides that the revenue bonds to be issued under it shall be payable out of the surplus revenues of the city-owned water and sewer systems (as above described) “together with such revenues as may hereafter be received by the City by reason of the collection of occupational license fees or occupational license taxes paid by persons deriving salaries, wages, and profits from employment in or directly related to such Governmental Project (less a proportionate part of the cost of collecting the same), all as authorized and provided in the Enabling Act.”

The Enabling Act, § 5(2) (b) (ii), provides :

“If the governing body of the city shall make a legislative finding of fact, as recited in the body of the ordinance authorizing issuance of the bonds, that the governmental project is of such nature as to provide increased revenues to the city by reason of increased employment and resulting increased receipts from occupational license fees or occupational license taxes, then the city may pledge and covenant that it will cause to be deposited in said separate and special fund the receipts which may be definitely identified as accruing from such occupational license fees or taxes by reason of employment in or directly related to the governmental project, less a proportionate part of the costs of collecting such fees or taxes.”

An occupational tax of the character described is authorized by § 181 of the Constitution and KRS 92.280(2) and 92.281. The latter statute provides that cities may “use the revenue therefrom for such purposes as may be provided by the legislative body of the city.” See City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248. Other cases relating to the character and the legitimate use of occupational taxes are Commissioners of Sinking Fund v. Howard, Ky., 248 S.W.2d 340; Sims v. Board of Education, Ky., 290 S.W.2d 491; Kupper v. Fiscal Court of Jefferson County, Ky., 346 S.W.2d 766.

It is to be noted that the imposition of this kind of tax is optional. But the present pledge to earmark and pay an identifiable portion of the proceeds (if any) into the sinking fund for these bonds would be a contractual obligation by virtue of the ordinance. City of Newport v. McLane, 256 Ky. 803, 77 S.W.2d 27, 96 A.L.R. 655; City of Newport v. Rawlings, 289 Ky. 203, 158 S.W.2d 12; Hart v. Central City, 289 Ky. 431, 159 S.W.2d 18; 64 C.J.S. Municipal Corporations § 2119.

It may be said that the basis of the allocation of the portion of occupational tax revenue collected from employees of the Center is that it is “new money,” for it would not be received but for the location of the enterprise and its expected payroll of $6,000,000. Doubtless, some of these employees would be subject to the occupational tax anyhow by reason of other jobs in the city. But it is suggested that other persons would take their places in case they transferred to the Center.

We have an authoritative precedent in Turnpike Authority of Kentucky v. Wall, Ky., 336 S.W.2d 551. The Turnpike Authority is authorized by the Legislature to construct toll roads and issue revenue bonds to finance the same, which are payable by tolls and other particular revenues derived from the operation of the turnpikes, and, in addition, bj^ all taxes collected on gasoline and other moter fuels consumed on the turnpikes (with an exception). We held that identifiable taxes were so directly related to the facility that they could logically be treated as revenue of the project and, accordingly, pledged to the payment of the bonds, subject, of course, to possible prior application to the satisfaction of previously issued general obligation road bonds. And since the public agency is not obligated to keep the tax in existence during the term of the contract, there is no “debt” within the meaning of Const. §§ 49 and SO.

In the present case the occupational taxes to be collected from the employees of the new project and paid into the sinking fund can be clearly identified and segregated. This will be more definite and certain than the allocation of the motor fuel taxes collected from users of toll turnpikes, which are to be calculated on a prescribed formula. KRS 175.520(5).

We are of opinion, therefore, that the allocation of the occupational taxes to the sinking fund of the revenue bonds is legal.

III.

The third contested point in the case is whether the Act offends § 29 of the Constitution by delegating legislative power beyond the expressed or implied municipal powers because it does not set forth standards for determining the type of “inducements” for which the city may issue revenue bonds. Section 29, dealing with the distribution of powers of government, clearly and only means that the legislative power, as distinguished from judicial and executive power, is vested in the General Assembly. We concur in the trial court’s opinion in regard thereto, namely:

“The question herein presented is not one of a delegation of power by the legislative branch of government to the executive branch, rather, it involves a conferring of local legislative powers upon what might be termed subordinate legislative bodies. Senate Bill No. 290 [Ch. 178, Acts] is enabling legislation for city governments, requiring further legislation by the authorized legislative bodies of the cities before the executives can take action. In order to provide all or any part of ‘municipal inducement,’ the legislative power of the cities must be exercised.
“The issue is raised by the question that Senate Bill No. 290 does not contain sufficient statutory standards for determining the type of ‘muncipal inducements’ for which a city may issue its general obligation or revenue bonds. Let it be said that the City, in the exercise of its legislative powers, in such respect, is governed not only by the provisions of Senate Bill No. 290, but, as well, by general laws for the organization of cities enacted pursuant to Section 156 of the Kentucky Constitution, and also governed and limited by each and every applicable Section of the Kentucky Constitution.
“The power to provide general laws for the organization of cities is conferred upon the Legislature by Section .156 of the Kentucky Constitution. The power is implied, if not expressed, for the General Assembly to confer and define local legislative power.”

In support, the court cited Barrow v. Bradley, 190 Ky. 480, 227 S.W. 1016, which points out that under § 156 of the Constitution the Legislature has express authority by general laws to delegate to cities and towns all powers needful for local self-government.

Craig v. O’Rear, 199 Ky. 553, 251 S.W. 828, considers the breadth and scope of such delegated legislative powers. The powers conferred by the present act are within the scope.

We think the Act sufficiently defines “inducement” hy § 1(b), relating to the appropriation of public funds, and by § 2, which describes within fair and reasonable specifications what the city may do to induce the choice of “governmental agencies” to locate within its boundaries or environs.

The judgment is affirmed.

BIRD, J., dissenting.


text:
    Ronald WHEELER et al., Appellants, v. Richard HELTERBRAND et al., Appellees.
    Court of Appeals of Kentucky.
    June 22, 1962.

      Thomas M. Edwards, Jr., Clay & Edwards, Mt. Sterling, for appellants.
    Thomas R. Burns, James E. Clay, More-head, for appellees.
   WILLIAMS, Judge.

The appellees, Richard Helterbrand and Jimmy Allen Stacey, were injured when an automobile which Stacey was driving with Helterbrand as passenger collided with a road grader owned by appellants. In appellees’ suit for damages a jury returned a verdict of $15,000 for Helterbrand and a verdict of $800 for Stacey. This appeal is from the judgment rendered on those verdicts.

The accident occurred about dusk on October 8, 1958. The appellants were using a road grader to repair the highway. At the time of the accident the grader was sitting on its left-hand side of the road facing the direction from which the Stacey car came. About 115 feet ahead of the road grader the appellants had positioned a truck on the right-hand side of the road with headlights and directional signals blinking. The truck was the only warning of the presence of the grader. Stacey drove the automobile around a slight curve to his left, at a speed of approximately 40 to 45 miles per hour, passed by the truck and ran head on into the road grader. Both Helterbrand and Stacey were injured. The automobile was virtually demolished and the grader was damaged.

It is argued that the verdicts are excessive ; that the court erred by permitting the jury to view a scar which resulted from the injury Helterbrand received; and that the court erred in refusing to give certain offered instructions.

The appellants allege that the Hel-terbrand verdict of $15,000 was so grossly excessive as to show that it was the result of prejudice or bias in the minds of the jurors. In addition to other injuries, Hel-terbrand suffered a dislocation of the right hip, with a fracture of the socket which necessitated an operation and resulted in the development of some atrophy. He proved special damages in the amount of $4,518.82. Recognizing that he experienced much pain and suffering, and suffered some loss of earning power, we are of the opinion that the verdict was not excessive. See Armour v. Haskins, Ky., 275 S.W.2d 580.

It is also alleged that the damages awarded to Stacey in the sum of $800 were grossly excessive. Stacey was not as seriously injured as was Helterbrand; nevertheless, he did receive treatment from a doctor and lost six weeks’ work. He proved special damages in the amount of $555, which left a .reasonable sum to compensate him for the pain and suffering which he endured.

At the conclusion of all the testimony the trial court permitted the jury to view the scar which resulted from the operation performed on Helterbrand’s hip. Appellants recognize that it is within the discretion of the trial court to permit the exhibition of an injured part of the body. Ford v. Providence Coal Company, 124 Ky. 517, 99 S.W. 609. However, they feel that the court abused its discretion in this instance. The action of the trial court aided the jury in determining from a view of the scar the extent and character of the injury sustained. It was stated in Ford v. Providence Coal Company, supra:

“Evidence of this character is really the best evidence obtainable of the extent and character of the injury that the person seeking damages has sustained, and the jury had the right to be aided in making up their verdict by a personal view of the injured member.”

We are of the opinion that the court did not abuse its discretion in permitting the jury to view the scar.

Finally, error is alleged by the refusal of the trial court to give certain instructions offered by appellants. First, a “last clear chance” instruction was offered which they insist should have been given as related to their counterclaim against Stacey. They state that the presence of the truck 115 feet in front of the grader was ample warning, and that at a 40-mile per hour speed Stacey should have almost stopped or at least slowed down enough to have avoided the accident. The fallacy of that argument is that a “last clear chance” instruction will not ordinarily be given where a person merely should have discovered the peril (with certain exceptions not present here), but is restricted to those situations where he must have discovered the peril. Saddler v. Parham, Ky., 249 S.W.2d 945. Here the appellants did not have a flagman, flares, or other warning signs indicating that the road was not clear except the presence of the truck about 115 feet ahead of the grader. Under the circumstances we do not feel that Stacey must have discovered that the road was not clear in time to avoid the accident. Consequently, the trial court properly .refused to give a “last clear chance” instruction.

The second offered instruction which was refused by the trial court was merely the statutory definition of “nighttime” and “daytime.” The jury was well advised by the witnesses of the time of day, and, although the giving of the instruction would have been entirely proper, we do not feel that the failure to do so was prejudicial to appellants.

The last instruction offered by appellants but refused by the trial court concerned contributory negligence as applied to Stacey’s cross-claim against appellants. Appellants state that the purpose of the offered instruction was to inform the jury that Stacey had a duty to slow down if he was blinded by the headlights of the truck as he drove toward the collision scene. We have reviewed the instructions given by the court and find that as a matter of fact Instruction No. 2 did contain the exact language which appellants sought to have included in this offered instruction. The instructions which were given by the court exhaustively covered the rights and duties of all of the parties.

We find no prejudicial error to have been committed.

The judgment is affirmed.


text:
    R. Glen SPURLING, Appellant, v. PATERNO-MAYFLOWER, INC., Appellee.
    Court of Appeals of Kentucky.
    June 15, 1962.

      Peter, Heyburn & Marshall, James W. Hendricks, Louisville, for appellant.
    Davis & Mahan, Edwin O. Davis, Louisville, for appellee.
   WILLIAMS, Judge.

The appellant, Dr. R. Glen Spurling, was injured when he removed a metal cover from a radiator located in an apartment he had rented from appellee, Paterno-May-flower, Inc. Appellee’s motion for summary judgment in appellant’s suit for damages was sustained.

The proof in the case is by deposition of appellant taken by appellee. In order to adjust the heat controls on the radiator it was necessary to remove the metal cover which encompassed the entire unit. During the two months appellant had lived in the apartment he had removed the cover with difficulty one time. It had been removed a second and a third time with like difficulty by the apartment maintenance man. On each of the last two occasions the maintenance man had attempted to adjust the cover so that it might be removed more easily.

The injury occurred on a Sunday morning. There was no maintenance man on duty at that time. The weather was cool and appellant was attempting to adjust the heat output. Appellant’s testimony concerning what happened follows :

“58 On this particular Sunday, can you describe a little better what you had hold of or what actually occurred when the accident happened?
“A Yes. The radiator covers normally lift straight up. They are quite a flush fit with the woodwork, so it is-necessary to pull straight up on them in order to displace them. On this occasion, in order to pull up straight on this radiator, I was in a squatting position, with my hand on either side * * *
“59 And you are indicating some three feet apart with your hand?
“A Yes, about three feet wide * * and I was lifting on the radiator cover, and the top hung, and I was attempting to shake it loose, and it suddenly gave way and I went back in a jackknife position.
“60 How much would you say this radiator cover weighs?
“A 25 pounds, maybe. I just don’t know.
“61 Just your guess.
“A Yes.
“62 And when it is in correct position how high is the top of it from the floor?
“A I think about 36 inches, or thereabouts.
“63 Now, how high was it when it got stuck and you were jerking on it as you have indicated?
“A Well, I don’t think it had moved upward at all. I think it had moved outward a bit, and was hanging at the usual place where it hangs, over on the left hand corner where it fits beside the windowsill.
“64 In other words, the top of the cover apparently would hang on the windowsill ?
“A Well, it doesn’t hang on the windowsill * * * that isn’t quite the correct term for it. It hangs on the radiator on the under surface; and the maintenance man on two occasions had tried to adjust it by bending the cover so that it wouldn’t hang on the under surface, and he thought on both occasions that he had helped the situation, but it still hung.”

As a result of the fall appellant suffered .a compression fracture of the first, lumbar vertebra.

The circuit court sustained the motion for summary judgment on the ground that appellant as a matter of law assumed the risk of the accident which he suffered. It has been said that the doctrine of assumption of risk and the doctrine of contributory negligence are in legal effect identical; that the actual fact of assuming a risk constitutes contributory negligence as a matter of law. Porter v. Cornett, 306 Ky. 25, 206 S.W.2d 83; Morrison & Conklin Construction Co. v. Cooper, Ky., 256 S.W.2d 505. The technical difference between the two doctrines is pointed out in Prosser on Torts (2nd Ed.1955) p. 305:

“In working out the distinctions the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling ■or protesting the plaintiff may be. The two may coexist, or either may exist without the other.” Citing Chesapeake & O. R. Co. v. DeAtley, 159 Ky. 687, 167 S.W. 933.

Appellant argues that the doctrine of assumption of risk applies only where an obvious and perilous situation •exists, and that he was in no obvious position of peril of bodily harm in removing the radiator cover. He says the fact that the cover stuck was a defect which was clearly the proximate cause of his injury but did not create an obviously perilous situation. We recognize that before a person may be said to assume a risk he must know and appreciate the danger. Dean v. Martz, Ky., 329 S.W.2d 371; Robertson v. Land, Ky., 353 S.W.2d 389; Nantz v. Nantz, Ky., 354 S.W.2d 283. But, if there was no peril apparent to appellant, by the same token there could have been no peril apparent to appel-lee. Each party knew the radiator cover was difficult to remove, but on prior occasions had been removed by appellant and by appellee’s employee without harm to either. Turning again to Prosser on Torts (2nd Ed. 1955) p. 311, it is said:

“The law distributes the hazards in accordance with a more or less common understanding of the position in which the plaintiff consents to be placed, or the obligation which the defendant may reasonably be taken to assume.”

See Leslie Four Coal Co. v. Simpson, Ky., 333 S.W.2d 498.

The assumption of risk doctrine was originally confined to a master servant relationship, but has been allowed to spill over into other facets of the law. As heretofore pointed out in cases included in the latter category the actual fact of assuming a risk constitutes negligence as a matter of law. See Jackson v. Kreeger, Ky., 242 S.W.2d 753.

Assuming there was some negligence on the part of appellee by failure to properly adjust the radiator cover, it is obvious appellant was contributorily negligent as a matter of law by failure to take precautionary protective measures while attempting to shake the cover loose when he knew it was stuck.

We conclude the circuit court properly sustained the motion for summary judgment.

The judgment is affirmed.


author: BIRD, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Trafford L. BOOK et al., Appellees.
    Court of Appeals of Kentucky.
    June 15, 1962.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Dept, of Highways, Lawrence L. Pedley, Dept, of Highways, Frankfort, for appellant.
    William M. Deep, King, Deep & Brana-man, Henderson, for appellees.
   BIRD, Judge.

This appeal arises from a condemnation trial in Henderson Circuit Court.

The Commonwealth by its Department of Highways sought to condemn a strip of appellees’ land for the purpose of widening U. S. Highway 41. The strip of land is 3,104 feet long, 76 to 91 feet wide and measures 6.13 acres in area.

A jury awarded $6,130 to the appellees for the land taken and $2,408 for damages to the remainder. The Commonwealth appeals.

Appellant complains that all of the witnesses for the landowner were property owners along the highway and so interested in the improvement project that they could not give unbiased opinions of the land value and damages to the remainder of the farm.

It is the province of the jury to weigh the testimony and determine what effect the witnesses’ interest may have had on the opinions expressed. Interest does not disqualify a witness in a condemnation suit and the case of Leslie County v. Davidson, 270 Ky. 705, 110 S.W.2d 652, cited by the state as authority on the point, does not say that it does or should disqualify. We find no merit in this contention.

Appellant complains that a witness named Cheaney was not properly qualified and that the court should have stricken his testimony on motion. Our investigation of the record discloses sufficient qualifications. It is not contended that the verdict is excessive, but our examination of the testimony shows that the verdict was for far less than could have been found under the evidence and therefore we cannot say that the jury was motivated by passion and prejudice.

We find no prejudicial error. The judgment is affirmed.


author: PALMORE, Judge.

text:
    CITY OF COLD SPRING, a Municipal Corporation, Appellant, v. Ralph ROSS, Appellee.
    Court of Appeals of Kentucky.
    June 15, 1962.
    John J. O’Hara, Marion W. Moore, Blakely, Moore & O’Hara, Covington, for appellant.
    George T. Muehlenkamp, Carl H. Ebert, Newport, for appellee.
   PALMORE, Judge.

The City of Cold Spring appeals from a judgment entered against it pursuant to a jury verdict awarding the appellee, Ralph Ross, $30,000 for personal injuries and damages arising out of an accident in which his right foot was run over and crushed by a backhoe, a heavy piece of earth-moving equipment which was being used to dig through frozen ground to a broken water main. Though several errors are alleged, we have found it necessary to consider only the question of whether the city was entitled to a directed verdict.

Our decision calls for a detailed statement of the facts.

U. S. Highway 27 as it passes through the City of Cold Spring is four lanes wide and runs in a north-south direction. It is paralleled on the west side by a concrete sidewalk separated from the curb of the highway by a narrow grass plot. Also parallel with the highway and sidewalk, and located underground within the grass plot between them, is a water main owned by the city. During subzero weather on February 18, 1958, the ground became frozen to a depth of 16 or 18 inches and a break developed in the water line at a point some 300 feet north of Fahrenholtz Cafe, a tavern on the west side of the highway. During the afternoon, efforts were made to dig through the frozen ground and reach the break by use of an ordinary farm-type tractor equipped with a boom and bucket, but they proved inadequate to the task, and toward the end of the day the city officials called for the services of a backhoe owned by Carlisle Construction Company, an excavating contractor.

This backhoe was a large diesel-powered machine weighing about 25 tons and operating on steel tracks, or caterpillar treads. The cab and • tracks were some 12 feet wide by 13 feet long with a boom and bucket attachment mounted forward, extensible to a length of approximately 18 feet from the cab. The normal method of operation with this type of equipment is to drop the bucket, which bites into the ground, and then pull it toward the cab, in the fashion of a man with a hoe. The cab can be rotated so that the bucket may be filled or emptied anywhere within the radius of the boom as extended by the arm of the bucket. From his seat in the cab of the particular unit in question the operator could see forward and to the sides, but had no means to see behind the cab unless he put his head out of the window to his left and looked back. There were two lights on the front side of the machine but none on the back.

Carlisle’s operator, Shields, arrived on the scene and began digging at about 9:30 or 9:45 P.M. After working for a few minutes from the north side of the excavation, and upon its being discovered that the break in the water main lay southward of the hole that had been dug, he switched the backhoe to the south side, with the boom pointing north. The tracks of the machine were positioned astraddle the grass plot and parallel with the highway, one in the westernmost vehicular traffic lane and the other on the sidewalk, partially blocking it but leaving open a narrow strip of the pavement bordered on the west by a sloping, terrace-like bank rising to an open field some 5 or 6 feet above street level. At approximately 10:45 P.M., while the digging operation continued in progess, the appellee, Ross, walking northward along the sidewalk from the tavern, encountered the backhoe in the dark and was injured. But before proceeding to describe the accident let us complete the physical setting and fill in the preliminary circumstances.

By the time the Carlisle equipment arrived one of the city officials in charge of the situation had placed a “Men Working” sign and barricade at the west edge of the highway about 100 yards north of the break in the water main. Another barricade was set a little farther south in the westernmost traffic lane. 10 or 12 kerosene lamps of the type known as “smudge pots” or “pot lamps” were arranged around these barricades and along the line between the first and second southbound lanes of the highway so as to direct the traffic on that side into a single lane and safely around the emergency work area. The line of lighted smudge pots extended southward to a point abreast or just beyond the location of the backhoe. Immediately behind and south of the backhoe a city truck was parked beside the west curb of the highway, facing south toward the tavern. On the bed of this truck was an air compressor providing the power to operate a jackhammer which, a few minutes before the accident, had been used to break up the frozen ground at the point of excavation and an adjacent portion of sidewalk.

Illumination for the work being done was furnished by three 500-watt portable lights powered by a gasoline motor and generator unit. One of these was used manually in front of the backhoe so as. to direct its beam into the excavation. The other two were separately placed several feet west of the sidewalk at an elevation of about 6 feet above the street level in the open field and were beamed toward the backhoe. (There was some confusion in the evidence- as to the exact arrangement of these two lights, but the version adopted here seems least disadvantageous to the plaintiff’s case.) Also in the field, some 10 or 12 feet west of the sidewalk at a point opposite the boom of the backhoe, a fire had been kindled in a metal drum or barrel, around which the various observers and supervising officials on the scene gathered from time to time for warmth.

It is conceded that there were no lights, barriers or warning signals on the sidewalk to the south of the backhoe toward Fahrenholtz Cafe, nor was there a watchman or lookout to intercept an approaching pedestrian. The city did not have any street lights. There was, however, what must have been an appreciable amount of noise from the simultaneously running motors of the air compressor idling on the bed of the city truck, the gasoline-driven generator unit in the field, and the diesel-powered backhoe itself.

The appellee, Ross, was 32 years old and had 12 years of experience in construction work. He had been employed as a bulldozer operator on and off for 3 years preceding the date of the accident, but was unemployed at the time. He resided in the vicinity of Cold Spring somewhere to the south of Fahrenholtz Cafe. Having learned of the break in the water main, he and a friend, Dick Fehler, came to the cafe at about 1:00 P.M. hoping to obtain temporary employment in connection with the emergency. He left his car in the tavern parking lot and proceeded to watch the unsuccessful operations of the farm tractor all afternoon, retiring to the tavern 2 or 3 times in order to get warm. He did not, however, drink any alcoholic beverages during this time. Ross’s last trip to the tavern was made at about 5:30 P.M., just after the efforts to excavate with the tractor were given up as useless. At 6:00 P.M, Elmer Schultz, the mayor of Cold Spring, entered the tavern to use the telephone, and Ross asked about the possibility of helping with the work but was told that Carlisle had been called. On this occasion the mayor bought him the first three beers he admits having consumed over the course of the evening prior to the accident. Though he was “broke” and had no means to buy food or drink, Ross nevertheless .remained in the cafe steadily, and without again visiting the area of the broken main until about 10:30 P.M., when he decided it was time to go home. The evidence as to whether he was sober at this time being in conflict, the presumption here is that he was. He had last seen his companion, Dick Fehler, several hours earlier, but it occurred to him that Dick might be up at the digging job, so he decided to go there to find him before departing homeward in the opposite direction. Actually, Fehler had gone home with someone else at about 6:00 P.M.

Ross was familiar with the general characteristics and method of operation of the machine being used to effect the excavation. He testified, “I knew what it would be when Elmer told me they were sending a backhoe out.” He knew also that it had arrived, because he had seen and talked to Shields, the operator, who had come to the cafe for a sandwich and coffee a short while earlier. He did not, of course, know precisely how the backhoe had been positioned with respect to the street and sidewalk. According to his own and Fehler’s testimony, the farm tractor used during the afternoon had operated -from a position in the open field west of the sidewalk, with the boom extending over and across the walk. (Fehler acknowledged, however, that the normal way to expose a broken main would be to dig in a fore-and-aft direction with, rather than crosswise to, the pipeline.)

According to Ross, the night was dark and he could scarcely have seen his hand’ at a distance of 18 inches in front of his face. There was, he said, ice and snow on the sidewalk. As he approached the work area he did not observe any of the lights or illumination heretofore mentioned, except for the fire in the barrel to the side and front of the backhoe. He did, however, hear the air compressor as he passed by the parked city truck and approached within some 15 feet of the backhoe. From this point on Ross’s testimony as to precise details was not altogether consistent, but the gist of it is this: He came up on the machine and started to pass around it to his left. Having noticed that some men were standing about the fire at the barrel he decided to go up the slope and see who they were. As he took the first step in that direction, with one foot on the bank and the other still on the sidewalk, the bucket struck the ground and he slipped and fell. At this instant he was near the left rear corner of the backhoe, within two feet of its track or tread, but he never saw it until he was on the ground and caught sight of the lights up forward through the space between the tracks. After saying at one point that he did not hear the noise of the diesel motor until he was underneath it, on later cross-examination he admitted that he heard it and, at least, sensed its presence before he fell:

Q- “So that we understand it, you knew the backhoe was there because you were walking around it, is that right?
A- “I didn’t actually see it until I felt it. I heard the backhoe running.
Q- “But you have just told me now that in walking up the bank you were trying to go around tire backhoe?
A- “Correct.”

The operation of the backhoe in prying away at the stiffly frozen earth involved a more or less constant shuttling back and forth, and immediately after Ross hit the ground he saw it backing rapidly toward him. He shouted for it to stop, but amid the clamor of the various machines in operation his cries were not heard, and one of the tracks of the backhoe ran over his right foot.

The trial court ruled as a matter of law that in operating the backhoe Shields was acting as the servant of the City of Cold Spring. The instructions submitted the question of liability on two theories, (a) negligent operation of the machine and (b) negligent failure of the city to provide reasonable warning to pedestrians using the sidewalk. The defenses of contributory negligence and assumed risk also were submitted to the jury. By unanimous verdict Shields was absolved of any fault in the handling of the machine. A verdict signed by nine members of the jury found the city negligent “for not having means as were .reasonably necessary and sufficient to warn pedestrians using or about to use said sidewalk” and awarded the plaintiff his damages.

The distinction that raises assumption of risk to the status of a separate defense from contributory negligence is subtle to the point of questionable legitimacy. Certainly in many cases the two theories so overlap that “it makes little difference which the defense is called.” Prosser on Torts (2d ed., 1955), pp. 304-5. Porter v. Cornett, 1947, 306 Ky. 25, 206 S.W.2d 83. This is one of those cases, and in it we find the question of proximate cause to be nearly as indistinguishable from those two defenses as they are from each other. On any one of the three we are forced to the conclusion that the evidence of Ross’s own fault as a causative factor in the accident was clear enough to preclude submission of the case to the jury.

Considering first the question of proximate cause, concede for the moment that the city was negligent in its failure to provide adequate warning for the benefit of approaching pedestrians. This particular pedestrian already knew all that the ordinary warning would have told him. A barricade, a lighted sign saying “Danger — Excavation Work Ahead — Heavy Machinery,” or both of these together, could have given him no new information. He knew these things without any warning from the city, hence its neglect to provide such warning could not have been a proximate cause of the accident.

It is strongly argued that Ross’s information was not specific enough to charge him with notice, particularly in that he did not know that the backhoe was positioned partly on the sidewalk, and to the south of the spot where the break was thought to be, whereas the farm tractor he had observed during the afternoon had been operated from a different position. But if a warning had been posted and brought to the pedestrian’s attention it would have been sufficient without these details. The city could not reasonably have been expected to maintain a detailed sketch or a television picture of what was going on at the scene of the emergency. A warning sign conveying all the information that was known by Ross as he approached the backhoe would have been fully adequate to discharge the city’s duty to furnish reasonable notice that an area of danger lay directly ahead.

The same basic principle was applied to a different but analogous fact situation in Clardy v. Robinson, Ky.1955, 284 S.W.2d 651. A grain truck stopped in the highway at night in response to an apparent emergency in the form of a disabled hay truck on the left or opposite side of the road. The hay truck’s headlights were on, facing in the direction from which the grain truck had come, and the driver of the hay truck was moving about the front of his disabled vehicle with a flashlight. A coal truck coming along the highway ran into the rear of the grain truck, and a passenger in this coal truck was killed. In a suit by the administrator a verdict was directed in favor of the driver of the grain truck, though it was claimed that the grain truck’s taillights were not burning. Affirming, this court noted that even if the taillights were not burning, thus preventing the approaching driver from seeing the grain truck, the driver of the coal truck nevertheless saw the disabled hay truck and a “bunch of lights” on the side of the road from a distance of 250 feet away and took no precautions to slow down or stop until too late. The coal truck driver’s knowledge “that an unusual traffic condition existed ahead of him” (emphasis added) was held to have eliminated the absence of taillights on the grain truck as a causative factor in the accident.

“While proximate cause is normally a question for the jury, it becomes a question of law where there is no dispute about the essential facts of causation and but one conclusion may reasonably be drawn from the evidence.” Clardy v. Robinson, id. On that particular question we consider this to be a stronger case against the plaintiff than the Clardy case. Certainly Ross had more information concerning the nature and details of the “unusual” condition existing ahead of him than did the coal truck driver in the Clardy case.

Referring now to the questions of assumed risk and contributory negligence, in this case the fundamental test in each is whether, in view of the knowledge Ross had, he exercised ordinary care for his own safety. Cf. Porter v. Cornett, 1947, 306 Ky. 25, 206 S.W.2d 83, 87; Restatement of Torts, § 466. And as we have already suggested, this is almost the same as the proximate cause issue, in that if Ross’s information was such that the ordinarily prudent man would have been deterred from acting as he did, then the city’s failure to give warning was not a cause of the accident.

Ross knew where the digging operation was taking place. He knew the broken water main lay in the grass plot next to the sidewalk. He knew the type of equipment being used, and from his ample experience in construction work he was familiar with its method of operation. There was no pressing need for his .returning to the scene before leaving for his home, which lay in the other direction. (He testified that he had not seen Fehler since 1:00 P.M.) As he approached the backhoe he heard the compressor running, and must have heard the diesel motor of the backhoe as well (whether or not the various sounds were separately distinguishable). An ordinarily prudent man with Ross’s knowledge and experience would have been at once aware that the backhoe was somewhere very near and that its presence was a menace. True, he did not know at this point just where the big machine was positioned, but what he did know was enough to put him on guard. Even if the backhoe had been operating from the field to his left, as he says the tractor had operated during the afternoon, it would have had to swing its boom and bucket across the sidewalk, and he -was bound to anticipate that at some unseen point not far in front of him the way was obstructed by the work. That it was too dark to see should have conduced to greater than usual alertness. So should the fact that the ice and snow on the walkway made the footing treacherous. Under these circumstances would the reasonable man, whom we erect in the mind’s eye as the exemplar of ordinarily prudent conduct, have assumed the sidewalk was clear, and walked blindly onward into a darkness filled with the sounds of working machinery? We cannot think so. But this man did. He continued on, and thereby consciously thrust himself into a position of peril. The only fair conclusion we can reach is that with the knowledge he had Ross did not act with ordinary prudence, and whether the city was negligent or not, without his own negligence the accident would not have happened. A pedestrian cannot reasonably presume that the public way is safe for travel beyond the point where common sense ought to .raise a healthy suspicion to the contrary. Cf. 19 McQuillin, Municipal Corporations, § 54.120, pp. 442-443. “Walking by faith alone is not sufficient care.” 2 Antieau, Municipal Corporation Law, § 11.15, p. 73.

Several cases cited in support of the judgment should be distinguished. In City of Hazard v. Scruggs, 1948, 307 Ky. 516, 211 S.W.2d 683, there is nothing in the opinion to indicate what, if any, foreknowledge the successful plaintiff had with reference to the existence or location of the ditch into which she fell. In West Kentucky Telephone Co. v. Pharis, 1904, 25 Ky.Law Rep. 1839, 78 S.W. 917, a heavy sleet had caused telephone wires to fall into the sidewalks and streets. Several days later the plaintiff fell over one or more of these wires partially submerged in the snow and ice. She had walked along the same path of travel four days earlier and had then observed the general condition, but it was held that this circumstance did not make her confcributorily negligent as a matter of law. In support, the opinion cited authority to the effect that although a dangerous condition may have been observed by the plaintiff, if through forgetfulness he later walks into it he is not necessarily negligent. However, this principle has since been repudiated by our court. See Crain v. City of Louisville, Ky. 1953, 259 S.W.2d 52. Compare also the case of Peerless Mfg. Corp. v. Davenport, 1940, 281 Ky. 654, 136 S.W.2d 779.

In Myers & Clark Company v. Layne, Ky.1958, 312 S.W.2d 463, recovery by a pedestrian struck by a car while walking across a highway was upheld against the contention that she was contributorily negligent as a matter of law. The rationale of the decision was that a pedestrian in a “crosswalk” has the right-of-way over vehicular traffic. But the exercise of a “right” does not necessarily insulate the actor against a defense of contributory negligence or assumed risk. For example, as it was pointed out in Morrison & Conklin Const. Co. v. Cooper, Ky.1953, 256 S.W.2d 505, one may not with impunity court the risk of attack by a raging lion in order to exercise a right that is inconsequential in comparison with the danger. Again, the test is what the reasonable man would do. If the risk is so great that the reasonable man would forego the exercise of his right or privilege rather than encounter it, then it is negligent to undertake it. Restatement of Torts, § 473.

We acknowledge, of course, that the question of contributory negligence should not lightly be taken from the jury. The same is true with respect to any material issue of fact. But the court cannot evade the responsibility of determining whether the evidence is such that the question could be fairly and reasonably resolved either way. In this particular case it is a most unpleasant responsibility. We can well understand what sympathy the jurors must have felt for the plaintiff, and how great the temptation to render aid at the expense of an impersonal defendant. It is in just such a case that a dispassionate court is the defendant’s only guaranty that his rights will be determined by the rule of law.

The judgment is reversed with directions that a judgment be entered in favor of the City of Cold Spring.

MILLIKEN, J., not sitting.


author: STEWART, Chief Justice.

text:
    Mary STONE, Appellant, v. ARTHUR HEWITT DESIGNS, INC. et al., Appellees.
    Court of Appeals of Kentucky.
    June 15, 1962.
    W. C. Edrington, Louisville, for appellant.
    Boehl, Stopher, Graves & Deindoerfer, James M. Graves, William B. Swain, Louisville, John B. Breckinridge, Atty. Gen., Frankfort, Ben K. Wilmot, Department of Industrial Relations, Frankfort, for appellees.
   STEWART, Chief Justice.

This is an appeal from a judgment of the Jefferson Circuit Court which set aside an award of compensation to appellant, Mary Stone, and remanded the proceeding to the Workmen’s Compensation Board with instructions to apportion the disability between an old leg injury suffered by appellant some twenty years ago and an injury of August 13, 1959, for which she claims compensation.

On August 13, 1959, appellant, aged 37 and a “forelady” at Arthur Hewitt Designs, Inc., in Louisville, while descending a flight of stairs at her place of employment, slipped, fell backwards, and hit the small of her back and the rear portion of her head on the edge of a step. She did not leave her work but that night entered St. Anthony’s Hospital in Louisville where she remained for ten days. She was examined and treated by Dr. Fred Coy, Jr., an orthopedic surgeon, and continued under his care until December 4, 1959, at which time he thought she was able to return to her job. Dr. Coy fitted her with a back brace which she still wears. She has not .returned to her employment. On December 11, 1959, she filed her application for compensation.

Dr. Coy, testifying for appellee employer, stated she first complained only of pain in her lower back; that X-rays and a physical examination revealed tenderness and muscle spasm in that region but disclosed no fracture or other bony abnormalities; and that his diagnosis was she had “an acute low back strain.” She made nine calls at his office before he dismissed her on December 4, 1959. On April 20, 1960, appellant was re-examined by Dr. Coy. She complained on that occasion of a radiating pain down the back of her left thigh, which she said had existed for six weeks, but he testified he could find no physical cause for the pain.

Appellant sustained an injury in an automobile accident some twenty years before her fall on August 13, 1959, which resulted in crippling her left leg so that it is one inch shorter than the other one. Dr. Coy stated this difference “predisposes to having back pain.” He found appellant has a 10% permanent disability to the low back due to the fall.

Three medical specialists in Louisville gave their depositions in behalf of appel-lee, based upon their examination of appellant. Dr. W. McDaniel Ewing, an orthopedic surgeon, described her condition as a strain of the lumbar musculature, said he found no indication of any permanent impairment from the injury, and believed five or six weeks of physical therapy would restore her to such health that she could .resume her employment.

Dr. George F. Dwyer, Sr., a general surgeon, examined appellant twice. His finding was a severe lumbar muscle sprain with a tortion sprain to the lumbar spinal ligaments, causing neuritis in her spinal nerves. His view also was that the shortness of the left leg would cause a strain on the low back muscles.

Dr. Gordon Smiley, a neurosurgeon who examined appellant on February 25, 1960, testified he thought appellant suffered “a very significant injury” to the lumbar spine and “that her problem of pain and persistent muscle spasm over this rather prolonged period of time most probably indicates that there is underlying interverte-bral disc injury with involvement of lumbar nerve roots.”

The case was submitted on this evidence. The referee recommended an allowance to appellant of 25'% permanent partial disability, which he believed grew out of the injury. The full Board, on review, ruled there was no medical proof to be found in the record on which to base apportionment and, under the authority of KRS 342.121, appointed Dr. K. Armand Fischer to examine appellant and testify what proportion of her disability was due to her former injury and what was attributable to her work-connected injury.

Dr. Fischer’s diagnosis is set forth in his letter dated December 23, 1960, and we quote therefrom in part: “* * * It is my opinion that this patient may have sustained a back sprain, but at the present time, she seems to have an anxiety reaction and evidence of a psychoneurosis. It is my opinion that she should be placed in the hands of a psychiatrist with recommendations for future care and action by the Board. * * * Certainly, if she had a back sprain on August 13, 1959, she should be ready for some type of work at the present time. But with her mental reaction to this situation, she is not fit for any type of work.” He did not apportion the disability, but he concluded his communication with this statement: “* * * tjje patjent: js totally disabled at the present time because of her mental reaction to this accident ” (Emphasis added.)

On February 21, 1961, the Board ordered appellant examined by Dr. Wilbur Mitchell, a psychiatrist, to determine the apportionment, if any existed, of her disability. On March 17, 1961, he reported appellant was suffering from a “psycho-neurotic conversion reaction, which is an emotional illness rather than an injury.” He stated that the neurosis was “apparently a by-product of her accident” but he would not assign a disability rating. He summed up her condition thus: “At the present time she is totally incapacitated by her emotional illness, and incapable of functioning.”

On May 2, 1961, the full Board’s order and award contained the following statements : “This case has been before the Board for this long period. Some final decision must be given. It is incumbent upon us to do so.” The Board then found appellant suffered from temporary total disability and left the question of permanent disability undecided, giving appellant maximum benefits for 425 weeks on an “open-end” or “running” award.

Appellant argues that the courts may not interfere with the award because there is competent evidence of probative value to uphold the Board’s findings. That evidence has been detailed above. Appellee maintains the evidence relating to physical disability is entirely inadequate to sustain the holding of the Board.

Appellant also asserts there can be no apportionment of any disability between the old accident and the fall, since the disability is now a neurosis which directly issued from the fall. She contends the evidence of Drs. Fischer and Mitchell establishes beyond peradventure that she is suffering from a traumatic neurosis caused solely by the accident of August 13, 1959. Appellee’s position is that the evidence fails to sufficiently link appellant’s alleged neurosis with the accident of August 13, 1959.

KRS 342.005(1) provides that, to be compensable, a disease must be the direct and natural result of a traumatic accident. In Eastern Coal Corp. v. Thacker, Ky., 290 S.W.2d 468, this Court said that “a neurotic condition which directly and naturally results from a trauma is com-pensable.” See also High Splint Coal Company v. Jones, Ky., 338 S.W.2d 208.

We have no difficulty in concluding the Board’s finding that appellant was 100% disabled is supported by an abundance of competent evidence of probative value. Dr. Fischer characterized her as being wholly incapacitated. Dr. Mitchell reached a similar conclusion. Dr. Dwyer, a surgeon who testified in behalf of appellant, after pointing out that appellant had to wear a back brace and had been told she could do only light work, summed up his diagnosis of her condition by stating: “I don’t think she is going to get a whole lot better.”

However, it is vigorously insisted the evidence failed to connect appellant’s alleged neurosis with the accident on the employer’s premises. Furthermore, it is contended that any disability which does exist should of necessity be apportioned between that attributable to the accident of August 13, 1959, and that attributable to the pre-existing leg injury.

The Board-appointed doctors reported they could not say how much disability, if any, appellant may have received from her prior injury. The other doctors did not testify as to any pre-existing disability. As mentioned heretofore, appellant was involved in an accident many years ago which left her left leg one inch shorter. There is not a single word of testimony in the record of this case that such an impairment had since bothered her. Neither is there any evidence, nor is it argued, that this pre-existing condition was in any wise “lighted up” or “aggravated” by the fall.

So, if the members of the medical profession could not or did not ascribe any percentage of impairment to the old leg injury,' certainly the Board could not do so. As there was no medical evidence assessing any of appellant’s disability to the old leg injury, we must uphold the Board’s finding that all of her disability was attributable to the accident on her employer’s premises. This is because it appears to us from the proof that when the medical specialists were talking of appellant’s present impairment they were speaking of the impairment which flowed only from her recent injury.

Wherefore, the judgment is reversed with directions that a new one be entered confirming the award of the Board.


text:
    Milton WILLARD, Appellant, v. Walter FERGUSON, Chairman, State Board of Parole, Frankfort, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 15, 1962.
    Milton Willard, pro se.
    ' John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, for ap-pellee.
   BIRD, Judge.

Milton Willard, a prisoner in the Eddy-ville Penitentiary, became eligible for parole. He made his application to the Parole Board and subsequently appeared for hearing before the Board.

The Board denied the parole and ordered that any further application be deferred for forty-eight months. He brought this action in the Lyon Circuit Court to prohibit and enjoin enforcement of the Board’s deferment order. The trial court dismissed the action for failure to state a claim upon which relief may be granted and Willard appeals.

It must be kept in mind that parole is a matter of legislative grace and that the general assembly may impose such limitations, restrictions and conditions as it deems best for society. It may likewise invest the Board with power to make rules ' and regulations with respect to eligibility.

The General Assembly by KRS 439.330 has limited the right of review to questions of compliance with the parole act. We have examined the record and fail to find any non-compliance with respect to Milton Willard’s application for parole.

The trial court properly dismissed the action and the judgment is affirmed.


author: CULLEN, Commissioner.

text:
    KENTUCKY MOUNTAIN COAL COMPANY, Appellant, v. Will WITT, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 15, 1962.
    Baird & Hays, Pikeville, for appellant.
    M. B. Fields, Hazard, Ben K. Wilmot, Dept, of Industrial Relations, Frankfort, for appellees.
   CULLEN, Commissioner.

This appeal presents a question of construction of KRS 342.120(5), relating to workmen’s compensation, which reads:

“(5) Upon motion, with notice to the Commissioner of Industrial Relations, and it appearing to the board that a claimant who has been awarded compensation under any one of the several provisions of this chapter becomes reemployed by the employer against whom the award was made, or continues in his employment in which he was injured, any part of the award not paid at the time the claimant becomes re-employed shall be paid out of the Subsequent Claim Fund; or, if the claimant has continued in his employment then the whole award shall be paid from the Subsequent Claim Fund. Said unpaid portion of the award shall be awarded against the Subsequent Claim Fund and paid by the Commissioner of Industrial Relations as are all other subsequent claim awards. The employment or re-employment contemplated herein shall be at wages equal to or greater than the employe was receiving before the traumatic injury by accident.”

This subsection of the statutes, enacted in 1960, has not previously been before this Court for interpretation.

The specific question presented is this: If an employer against whom an award of compensation has been made reemploys the injured workman at wages equal to or exceeding his former wages, so as to initiate responsibility of the Subsequent Claim Fund for making the compensation payments, but the reemployment thereafter is terminated, does the Subsequent Claim Fund remain liable for compensation payments falling due after the termination of the reemployment? The circuit court answered the question in the negative.

The particular facts of this case are: The injured workman was awarded compensation in the form of weekly payments for a period of 75 weeks from and after September 12, 1960. He was reemployed by his employer at wages equal to or exceeding his former wages and an order was entered by the Workmen’s Compensation Board directing that the payments be made out of the Subsequent Claim Fund “for such time as the claimant is in the defendant’s employ at wages equal to or greater than what he was receiving at the time of his injury.” The Subsequent Claim Fund proceeded to make the payments until June 1961, when it was discovered that the reemployment had ceased on March 2, 1961. The Board then entered an order relieving the Fund of liability for payments that became due after March 2, 1961, directing the employer to reimburse the Fund for the payments it had made after that date, and imposing upon the employer liability for future payments during such time as the workman was not reemployed at wages equal to or exceeding his former wages. Upon motion of the workman judgment was entered in the circuit court in accordance with the Board’s order. The employer has appealed from the judgment.

The appellant maintains that the statute does not contemplate that the employe shall be “bounced back and forth like a rubber ball” between the employer and the Subsequent Claim Fund, depending upon whether or not at any particular moment he is in reemployment at wages equal to or exceeding his former wages. It is true that under a strict literal construction of the statute the Subsequent Claim Fund, once having become liable, would thereafter continue to be liable regardless of subsequent termination of the workman’s reemployment. But such a construction would not be in accord with any possible reasonable purpose the legislature could have had in mind.

The obvious purpose of the statute is to encourage reemployment of injured workmen at adequate wages by relieving the employer of the requirement of paying disability compensation in addition to full wages. An employer can afford to pay full wages to a workman whose capabilities are impaired if the Subsequent Claim Fund, by taking over the compensation payments, is in effect making up for the deficiency in the workman’s capabilities. But the inducement or encouragement the legislature has extended is clearly for continued reemployment. It is not conceivable that the legislature intended to relieve an employer completely of liability for compensation payments if he should reemploy the workman for only one day.

In construing a statute the courts will consider the purpose which the statute is intended to accomplish. City of Louisville v. Helman, Ky., 253 S.W.2d 598. And the courts will not give a strict literal construction to a statute where to do so would lead to an absurd or unreasonable conclusion. Com. of Ky., Dept. of Highways v. Wilkins, Ky., 320 S.W.2d 125. In our opinion the Workmen’s Compensation Board and the circuit court correctly construed the statute as not imposing liability on the Subsequent Claim Fund for weekly compensation payments for any week during which the workman is not in the employ of his former employer at wages equal to or exceeding his former wages.

The appellant says that the judgment erroneously orders a refund to the Subsequent Claim Fund for payments made for weeks prior to March 2, 1961. As we read the judgment it orders a refund only for weeks after the March date.

The judgment is affirmed.