text:
    William (Billy) SWOPE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.
    Henry Cox, Lancaster, for appellant.
    Robert Matthews, Atty. Gen., Henry Mangeot, Deputy Atty. Gen., J. T. Franken-berger, Asst. Atty. Gen., W. A. Wickliffe, Commonwealth’s Atty., Harrodsburg, for appellee.
   MOREMEN, Judge.

On the evening of March 11, 1964, appellant, William Swope, a member of the 1964 General Assembly of Kentucky, left Frankfort to attend a high school basketball game at Danville while the General Assembly was in regular session. When Senator Swope and his party parked their automobile a dispute arose which resulted in appellant’s being arrested on the charge of breach of the peace. At a trial, on appeal, in the circuit court, the evidence produced by the Commonwealth conflicted with that introduced in behalf of the appellant. The case was submitted to a jury which found Senator Swope guilty and fixed his punishment at a fine of $100.00.

It is contended that the circuit court was without jurisdiction to try the offense of breach of peace against a member of the General Assembly of Kentucky under the provisions of § 43 of our Constitution which, according to the Legislative Research Commission’s 1962 edition of the Kentucky Revised Statutes, reads in part as follows:

“The members of the General Assembly shall, in all cases except treason, felony, breach of surety of the peace, be privileged from arrest during their attendance on the sessions of their respective Houses, and in going to and returning from the same * * * ”

Baldwin’s Kentucky Revised Statutes, 3rd Edition, differs from the foregoing in that it states “breach or surety of peace,” as did the first three Constitutions of Kentucky. However, in view of the discussion that will follow, this difference is of no importance.

We have found no opinion of this Court which defines the extent of the exception from parliamentary privilege embodied in the phrase “treason, felony and breach (or surety) of the peace.” Because of the lack of such a definition each person seems to have accepted his own idea as to the true meaning of the phrase. This has caused considerable confusion and uncertainty, with the result that neither members of the general assembly nor law enforcement officers are sure of their rights or their duties.

During the time before the Revolutionary War and at the time of the drafting of our various constitutional documents the meaning was plain. The English common law had defined the limits of parliamentary privilege and had determined the extent of exclusion contained in the phrase “treason, felony and breach of the peace.”

In England these words were used for the purpose of excluding all crimes from the operation of parliamentary privilege. The only immunity that remained protected against prosecutions of a civil nature.

The phrase appears with monotonous regularity in the Articles of Confederation (1778); the Constitution of the United States (1789); the first Constitution of Kentucky (1792); the second, (1799) ; the third, (1850) ; and our present (1891) Constitution.

When the legal profession knows the exact meaning of a word or a phrase, it is inclined to use those instruments of thought repeatedly; even though they become trite they retain meaning which is of more importance .than the euphony of language.

In an elaborate opinion in Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278, the origin and meaning of the words in England and in this country are traced and defined with historical accuracy. We will not attempt to summarize this carefully written opinion, but this quotation is apropos:

“The presence of the exact words of the exception as now found in the Constitution, in the Articles of Confederation, and the employment of the same words ‘treason, felony, and breach of the peace/ without discussion, in all the proceedings of the convention relating to the subject of the privileges of members of Congress, demonstrate that those words were then well known as applied to parliamentary privilege, and had a general and well-understood meaning, which it was intended that they should continue to have. This follows, because it is impossible to suppose that exactly like words, without any change whatever, would have been applied by all those engaged in dealing with the subject of legislative privilege, unless all had a knowledge of those words as applied to the question in hand, and contemplated that they should continue to receive the meaning which it was understood they then had. A brief consideration of the subject of parliamentary privilege in England will, we think, show the source whence the expression ‘treason, felony, and breach of the peace’ was drawn, and leave no doubt that the words were used in England for the very purpose of excluding all crimes from the operation of the parliamentary privilege, and therefore to leave that privilege to apply only to prosecutions of .a civil nature.”

In Long v. Ansell, 63 App.D.C. 68, 69 F.2d 386, 94 A.L.R. 1466, it was pointed out that arrest for debt was a common thing in former times and the civil processes in such cases could be extended by anyone who claimed to be a creditor to practically all property of an alleged debtor and opened avenues for “monstrous abuses.” The opinion stated:

“The constitutional exemption has never been interpreted as a retreat for Congressmen and Senators from arrest for crime. At the time of the adoption of the Constitution there were laws in the states authorizing imprisonment for debt in aid of civil process. Undoubtedly it was to meet this condition that the exemptions in federal and state Constitutions were aimed. The reason for incorporating this provision in the Constitution has largely disappeared. We no longer have imprisonment for • debt, except in a few jurisdictions where an absconding debtor may be arrested and imprisoned. The decisions of the courts, therefore, in limiting the exemption merely to arrests in aid of civil process, and in conformity with the practice of legislation on this subject, have greatly limited the scope of the exemption. That which at the time of the adoption of the Constitution was of substantial benefit to a Member of Congress has been reduced almost to a nullity.”

Section 18 of the Kentucky Constitution provides: “The person of a debtor, where there is not strong presumption of fraud, shall not be continued in prison after delivering up his estate for the benefit of his creditors in such manner as shall be prescribed by law.” KRS 426.390 provides that a capias ad satisfaciendum may issue upon certain specialized judgments, and we presume there are other circumstances where a person may be arrested in connection with fraudulent debt so, to this extent, members of the General Assembly are still protected. Therefore, in this state, the parliamentary immunity has not been “reduced almost to a nullity.” However, we believe it to be plain that § 43 of the Constitution was never intended as a sanctuary for members who had committed a public offense.

Judgment affirmed.


source: Caselaw Access Project

author: CLAY, Commissioner. MONTGOMERY, Judge

license: Public Domain

text:
    CUTSHIN COAL COMPANY and Oak Coal Company, Appellants, v. Alonzo BEGLEY and the Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.

      Reeves, Barret & Cooper, Richard D. Cooper, Hazard, for appellants.
    S. E. Duff, Hazard, for appellees.
   CLAY, Commissioner.

This is a silicosis workmen’s compensation case. The award, based on total and permanent disability, was affirmed by the circuit court.

The employee ceased work for appellants on March 9, 1959, prior to which time he had been exposed to rock dust in his occupation as a coal miner. He did not quit work because of disability but he was having trouble with his breathing at that time.

It was not until June 14, 1962, that he was advised by a doctor of a condition indicating silicosis. His claim was filed shortly thereafter.

Appellants’ first contention is that this claim was barred under KRS 342.316 on the ground that the employee failed to give notice “as soon as practicable after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease * * It is argued that when the employee last worked he was aware of symptoms indicating an occupational disease, and since he testified he has been disabled ever since that time, he was required to give notice of his disability under KRS 342.316(2) and to file his claim within one year under KRS 342.316(3).

We have held that an employee is not required to give notice of an occupational disease until he is actually disabled. Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167; Peabody Coal Company v. Guthrie, Ky., 351 S.W.2d 168; Peabody Coal Company v. Harp, Ky., 351 S.W.2d 170; Peabody Coal Company v. Powell, Ky., 351 S.W.2d 172. For the purpose of giving notice (or filing a claim), the employee will not be considered disabled as long as he continues to be employed in full-time employment by the same employer. Stephens Elkhorn Coal Company v. Tibbs, Ky., 374 S.W.2d 504; Brock v. International Harvester Company, Ky., 374 S.W.2d 507. However, assuming appellee was not disabled under the above cases when he quit his employment, according to his own testimony he had not been able to work since then. Consequently he was disabled as of the time he left appellants’ employment.

Since we have disability in this case, the question is whether the employee had experienced a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he had contracted such disease, which would require him to give notice as soon as practicable after he quit work. In Childers v. Hackney’s Creek Coal Company, Ky., 337 S.W.2d 680, we held this a question of fact to be determined by the Board. In that case we upheld a finding that shortness of breath was not such a “distinct manifestation”.

Here the employee for some time before he quit work had experienced shortness of breath and tired easily. When asked if he had some idea he might have had “rock dust” in 1959, he answered, “he had an idea he had”. The record does not disclose the significance of this answer. It was not shown that “rock dust” could be considered synonymous with “silicosis” (if such is the case).

The difficulties experienced by the employee may have been caused by something other than an occupational disease. Certainly he cannot be held to have diagnosed his condition as silicotic. (Even doctors experience difficulty in diagnosing this disease.) His knowledge of disability did not necessarily establish awareness of an occupational disease. It is our view that the Board, on the evidence, could properly find the employee was not sufficiently aware that he had contracted an occupational disease until shortly before he gave notice. Consequently the claim was timely asserted.

It is next contended that even if the employee was suffering from some degree of silicosis (which appellants admit), he did not establish this as disabling. Three doctors testified about the employee’s silicotic condition but none of them testified concerning the nature or extent of his disability. The only substantial evidence on this point is the testimony of the claimant himself. He stated that he had not been able to work since he quit work in 1959, and that his condition had steadily deteriorated since then. The medical evidence shows that, among other things, he was blind in one eye, had hyperthrophic arthritis, and suffered from psychoneurosis with anxiety and conversion symptoms.

The employer contends that at least disability benefits should be apportioned under KRS 342.316(9).

There was sufficient evidence to establish that the employee’s basic disability was caused by silicosis. The employee’s testimony was to the effect that his inability to work arose from the difficulty with his breathing. The Board could find that his condition, traceable to silicosis, would foreclose his re-employment in the only occupation for which he is qualified. See Eastern Coal Corporation v. Maynard, et al., Ky., 384 S.W.2d 320. We believe the finding of total and permanent disability resulting from this occupational disease has sufficient support in the record.

The judgment is affirmed.

MONTGOMERY, Judge

(dissenting).

The mangled remains of KRS 342.316(2) may now be laid to rest. What once was a reasonably understandable statute, except for one slight legislative deformity, a badly chosen word, has been so carved upon that any surgeon would envy the skill exercised by this Court in cutting away the meaning of plain statutory language. This poor statute has been undergoing surgical treatment by this Court with a legislative scalpel, judicially wielded, for a long time. See dissent in Stephens Elkhorn Coal Company v. Tibbs, Ky., 374 S.W.2d 504.

In the present case, Begley, the employee, testified as follows:

"Q. Before March 9, 1959, how long had you been experiencing trouble with your breathing while you were working at Oak Mining Company or Cutshin Coal Company?
“A. I will say the last year I worked there I would work three or four hours and would go to getting tired, didn’t know what was the matter with me. And at the last of the shift I would drag, but I had a big family and had to try to go.
“Q. Did you have the same type of symptoms with your breathing that you are having now?
“A. No, it’s worser now.
“Q. But you had similar type trouble with your breathing even though it’s worse now?
“A. Yes sir.
*'Q. Had you ever heard of rock dust or dust on your lungs?
“A. No sir.
“Q. You know that many men that worked in the coal mines or some men that worked in the coal mines had rock dust or were supposed to have rock dust, had trouble with their breathing?
“A. Yes sir, I had heard of it.
“Q. And you knew you were having trouble with your breathing at that time?
“A. Ye sir.
“Q. Did you have some idea you might have rock dust at that time?
“A. I didn’t know for sure, but I. had an idea I had.
' “Q. That was in’59?
“A Yes sir.”

By this testimony the employee shows that he has not been able to work since he quit his employment on March 9, 1959. Consequently, under the Tibbs and Brock cases he has been disabled since that date.

The language of his testimony shows that on March 9, 1959, Begley was having trouble with his breathing; that he continued to have the same symptoms which grew worse; that he knew that men working in coal mines had “rock dust” evidenced by difficulty in breathing; and that he had “some idea” that. he had “rock dust” in 1959 but was not sure of it. This would seem to indicate clearly that in 1959 Beg-ley first experienced a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he had contracted such disease, to use the statutory language.

The statute does not require that the employee must know with scientific certainty that he has silicosis. It only requires that he have symptoms which would cause him to think that he might have an occupational disease. Under Begley’s testimony as quoted, he knew this in 1959.

The Court in the majority opinion has shown nimble footwork in dancing away from the entrapment of its definition of disability by saying that it was 'not shown that “rock dust” is synonymous with silicosis and that the employee’s knowledge of disability did not necessarily establish an awareness of an occupational disease. Such statements are but scalpel strokes which cut away the vitals of the statute as expressed in plain meaning and easily understood words.

This affords no justifiable basis for the majority opinion. The obvious conclusion, ignored in the majority opinion, is that Begley “had an idea” that he had “rock dust” in 1959 and that “rock dust” was known to him to be an occupational disease caused by breathing the dust while engaged in mining coal. It is not essential that he know that he had silicosis or any other type of occupational disease. It was only necessary that he realize that he had the symptoms of some type of occupational disease.

On the occasion of each operation on this statute, I have tried to administer oxygen in the form of the usual meaning of plain ordinary words, but I fear that the statute has lost too much now and will necessarily have to be resurrected by legislative rebirth.

Accordingly, I respectfully dissent


author: DAVIS, Commissioner.

text:
    Charles WARNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.

      Edwin A. Monroe’, Jr., Falmouth, for appellant.
    Robert Matthews, Atty. Gen., and George Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   DAVIS, Commissioner.

The appellant seeks reversal of the judg'ment denying his RCr 11.42 motion to vacate a prior conviction. In 1948 appellant was convicted of rape by judgment of the Pendleton Circuit Court; pursuant to the jury’s verdict at that trial, he was sentenced to imprisonment for life. Acting pro se, appellant filed his motion to vacate on September 3, 1963. The trial court appointed counsel for appellant and conducted a hearing, at the conclusion of which the court made findings of fact and conclusions of law. Judgment denying the motion was entered in accordance with the findings and legal conclusions.

Appellant presented six grounds which he conceived to be adequate to entitle him to the relief sought; the grounds are: (1) failure to prove venue at the rape trial; (2) inflamed public opinion against appellant precluded a fair trial; (3) “during the course of the trial, the testimony of the witnesses was so conflicting that it was impossible to make any relevant statements as to what they did or did not testify”; (4) the trial judge committed error when he asked appellant’s counsel, within hearing of the jury, whether he had objection to the separation of the jury; (5) the sheriff illegally entered the jury room during the jury’s deliberations; and (6) the appellant was denied the right to an appeal from the rape judgment.

We have said that RCr 11.42 does not authorize relief from a judgment of conviction for errors upon the trial unless it is shown that there was a violation of a constitutional right, a lack of jurisdiction, or such violation of a statute as to make the judgment void and subject to collateral attack. Tipton v. Commonwealth, Ky., 376 S.W.2d 290. We adhere to the principles enunciated in Tipton, supra.

The same authority (Tipton, supra) specifically holds that a judgment of conviction is not subject to collateral attack under RCr 11.42 for insufficiency of proof of venue. Moreover, in the case before us, there is an utter lack of showing that there was a failure to properly prove venue. The trial court’s finding is that there was no such failure, and the finding is abundantly supported by the evidence.

We recognize that there could be a situation wherein the public sentiment against an accused is so fervent as to make it impossible for him to have a fair trial in such an atmosphere. When the rape trial was had, in 1948, procedure for change of venue was provided by KRS 452.210 through 452.340 (published also as Chapter X, Article 3, Criminal Code of Practice). The same statutory provisions continue in force. Moreover, Section 194 of then effective Criminal Code of Practice specified procedure for obtaining jurors from an adjoining county when it appeared impracticable to obtain an unbiased jury in the county wherein the prosecution was pending. (Cf. present RCr 9.33 and KRS 29.-262). See Bennett v. Com., Ky., 309 S.W.2d 183, and cases there discussed, for an exegesis of Kentucky practice under Cr. Code, Sec. 194.

However, in the case at bar, there is no showing that any effort was made by appellant, or his personally retained counsel, to obtain a change of venue or to have jurors summoned from an adjoining county. Of greater import, however, is the testimony at the 11.42 hearing — -including evidence offered in behalf of the appellant— that at the time of the rape trial, there was no inflammatory feeling against appellant. This factual situation was attested by the testimony of the editor of the local newspaper, the only members of the jury who testified at the 11.42 hearing (five), and was not refuted by any evidence of substance for appellant. The trial judge found as fact that there was no such inflammatory feeling against appellant at the time of the rape trial. This finding is overwhelmingly supported by the evidence. We are not to be understood as necessarily holding that this ground can be raised by motion under RCr 11.42, since we need not decide that question.

The trial judge refused to admit any testimony relating to appellant’s assertion that the testimony was so conflicting at the rape trial that no relevant statement could be made as to what the evidence was. This ruling was correct. Administration of criminal law would be utterly frustrated if post-conviction procedures such as RCr 11.42 could be made the basis for a retrial of conflicting evidence. Trial by jury would have no meaning if the present assault on the jury’s verdict could be accepted.

The fourth ground advanced by appellant has to do with his claim that the trial judge made inquiry of appellant’s counsel whether the counsel would consent to the jury’s separation during the noon recess of court. We agree that Anderson v.Commonwealth, 302 Ky. 275, 194 S.W.2d 530, stands for the proposition that it is reversible error for a trial judge to ask defendant’s counsel, in the jury’s hearing, whether counsel will consent to separation of the jury in the trial of a capital case (or a trial wherein life imprisonment may be imposed). Cf. presently applicable RCr 9.66 which substantially embodies Cr.Code Sec. 244, applicable when the rape trial was had. However, we are unable to say that such an error is of that gravity which would render the judgment void. We are unaware of any constitutional right which would have been denied the defendant under such a circumstance. Thus, if any such error had occurred, it would not be available under RCr 11.42. Moreover, the trial judge on the 11.42 hearing found as fact, abundantly supported by the great preponderance of the evidence, that the alleged incident did not occur.

Evidence was heard as to whether the sheriff entered the jury room during the jury’s consideration of its verdict. Except for the bald statement of appellant himself, there is a complete absence of any evi-dentiary support for the claimed irregularity. The five jurors who participated in the rape trial verdict could not recall any such occurrence; neither could the appellant’s father, although he was present and quite interested in the trial. The father merely said that the sheriff opened the jury room door — but not that he entered the room. No hint of any impropriety or jury tampering is made. The trial court’s finding of fact that the incident did not occur is clearly correct and fully supported by the evidence. Neither do we regard this claim as one which could be raised in a proceeding under RCr 11.42, absent some other showing which could be said to be a denial of due process.

The final attack on the judgment of conviction is the assertion that appellant was denied a right of appeal from the conviction. The simple answer to this contention lies in the fact that there was never any effort to appeal. Appellant’s father testified that in conference with appellant’s chief attorney (the attorney was deceased at the time of the 11.42 hearing) it was agreed that an appeal would be inadvisable. The fact that appellant, if successful on. appeal, might ultimately receive a death sentence was a moving consideration in the conclusion not to appeal. Appellant asserts that he did not fully participate in these determinations as to whether to appeal, but the record fairly warrants the conclusion that he gave full accord to the determination not to appeal.

The proceedings of the rape trial were stenographically reported. However, since no appeal was taken, there was never any request for a transcription of the reporter’s shorthand notes. By a letter under date May 25, 1962, appellant asked the Pendleton Circuit Court Qerk for a transcript of the testimony. The clerk promptly notified him that there was no transcript and that the name and whereabouts of the reporter were unknown to the clerk, and not contained in the record. He now contents himself with claiming that he was “denied” the right to an appeal, when the record plainly shows that he failed to avail himself of the appeal procedure readily open to him. Appellant was represented at the rape trial by two capable attorneys of high professional standing. He does not charge that he was inadequately represented, nor could he. We conclude that the court’s finding with respect to this claimed error is obviously correct. Appellant has not been denied the right to an appeal — he has slumbered on his right to an appeal for at least fourteen years. The claimed denial of appeal — under the circumstances here presented — is not a basis for attack of the rape judgment under RCr 11.42.

We observe that appellant has been furnished counsel on the 11.42 hearing and on this appeal. Counsel has diligently presented the appellant’s contentions. A com-: píete stenographic report of the 11.42 hearing has been provided to appellant, in forma pauperis. We conclude that appellant has failed to adduce any ground entitling him to relief under RCr 11.42.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Sewell B. CLEMONS, dba Clemons Cab Company, and Sewell B. Clemons, Individually, Appellant, v. Bob HARVEY, Appellee.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.
    O. J. Cockrell, Jackson, for appellant.
    James S. Hogg, Jackson, for appellee.
   WILLIAMS, Judge.

This is an appeal from a judgment awarding damages to appellee Bob Harvey for injuries received when he was struck by a taxicab driven by appellant Sewell Clemons.

The accident occurred about a mile south of Jackson, Kentucky, on Kentucky Highway No. 15. At that point the highway runs north and south, and has a blacktop surface 18 feet wide with four-foot gravel shoulders. The accident occurred about noon on a clear, dry day. The posted speed limit in that location is 35 miles per hour.

The appellee’s version of what happened is as follows: He and his wife had driven from Jackson to a parking area on his left side of the road across from Grigsby’s Mill. He got out of his car and, before entering the highway, looked both ways for approaching traffic. To his left (south), one vehicle was approaching at a moderate speed. To his right (north), there was no traffic in sight for a distance of 375 feet, at which point visibility was terminated by a rise in the highway.

He started across the highway in front of the car approaching from the south and had reached the center line when, out of the comer of his eye, he observed appellant’s taxicab coming from the north some 30 to 50 feet away at a speed of 50 to 60 miles per hour. In two leaps he cleared the hard surface of the highway and came to a stop about 18 inches beyond. The taxicab veered right onto the shoulder of the road where it struck him.

Appellant’s version is that when he came over the rise 375 feet from where the accident occurred he saw the appellee standing in the opposite lane of traffic, looking in the other direction. Before reaching the center line the appellee hesitated as if to turn back. After hesitating momentarily, appel-lee suddenly leaped into the taxicab’s lane of traffic, and, while in that lane of traffic, was struck by the taxicab.

Appellant said there was a steep embankment to the right of the road and a truck was parked on or near the shoulder preventing the taxicab from swerving to the right to miss the appellee. The left lane was occupied by the car coming from the south, which prevented the taxicab from swerving in that direction. The speed of the taxicab was approximately 30 to 35 miles per hour. Appellant applied his brakes immediately after realizing appellee was attempting to cross the road in front of him. At that time he was approximately 30 feet away. He did not sound his horn because there was not sufficient time.

On voir dire examination all of the jurors stated they did not know the appellee. However, at the noon recess one of the ladies on the jury went to the appellee, patted him on the hand, and had some conversation with him. Following the recess, appellant moved the court to set aside the swearing of the jury and continue the case. Hearing on the motion was had in chambers.

It developed at the hearing that the lady juror had not recognized the appellee at first, but later realized who he was. It seems appellee’s mother had rented a house from her, and her son-in-law was related to the appellee. The juror stated she realized she should not have spoken to the ap-pellee but was not thinking at that time.

We know it is only human to be somewhat biased in favor of one’s own relatives, and the same feeling might pertain to relatives of close acquaintances. Although the relationship here is not close enough to be inherently prejudicial, when coupled with the juror’s outward show of affection, it is enough to warrant a conclusion both by parties litigant and the court that a fair trial cannot be had.

In Stanley v. Brown, 303 Ky. 481, 198 S.W.2d 35, we said:

“The impartiality and freedom of juries must be jealously guarded. The respect and confidence of the litigants and the public for jury trials and in the integrity of verdicts are essential. Anything that breeds distrust or affords reason for suspicion should be avoided.”

The trial judge had considerable discretion in this matter. However, taking everything into consideration, we are of the opinion that he should have set aside the swearing of the jury and continued the case. It was prejudicial error not to do so. Consequently, the case must be reversed.

On a new trial the question of negligence of each of the parties should be submitted to the jury.

The appellant argues that the appel-lee was guilty of negligence as a matter of law, but the appellee’s story is that the road was clear to the north when he began his journey across it and that he actually cleared the road before he was struck by the taxicab. It is only where but one reasonable conclusion of negligence or non-negligence can be drawn by fair-minded men that the court may decide the issue as a matter of law. Middleton v. Partin, Ky., 347 S.W.2d 75.

We turn now to the last clear chance instruction. The appellant said the appel-lee was in the appellant’s left lane when he first saw him. At that time he was 375 feet away and traveling at a speed of 35 miles per hour. The appellee first saw the taxicab after he had reached the middle of the road. In either location the appellee was in a position of peril either from southbound traffic or northbound traffic. In Riley v. Hornbuckle, Ky., 366 S.W.2d 304, we held the last clear chance doctrine applicable to the situation where a pedestrian remained in view of a driver in the intended path of travel of the vehicle long enough for the vehicle to move a distance of several hundred feet. There is no discernible difference in the duty placed upon a driver when he discovers a pedestrian already in his lane of travel as opposed to his duty when he discovers the pedestrian about to leap into his lane of travel or get hit by traffic coming from the other direction. In either case it is a question of whether the driver was far enough away to have avoided the accident. In the Riley case we said:

“ * * * there is usually a point in time at which the curtain closes on the ability of the pedestrian to get out of the way of a faster-moving vehicle while it yet remains open for the driver to shift his course. Whether that interim constitutes a 'clear’ chance ought to be left to the jury.”

The instructions on contributory negligence and last clear chance were properly given at this trial. In the event the evidence is the same on a new trial they should be given.

The judgment is reversed, with directions that appellant be granted a new trial.


author: MONTGOMERY, Judge.

text:
    Francis T. ALKOFER, etc., Appellant, v. Charles K. MAHAFFEY et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.

      P. Joseph Clarke, Jr., Danville, for appellant.
    James G. Sheehan, Jr., Danville, for ap-pellees.
   MONTGOMERY, Judge.

Francis T. Alkofer filed a petition for a writ of habeas corpus against Charles K. Mahaffey and Ethel, his wife, in which it was charged that the Mahaffeys were wrongfully restraining Misao Naruki Alko-fer, petitioner’s wife. Ethel Mahaffey was served but no service was had on her husband. Following a hearing, petitioner was denied relief.

For the petitioner the testimony was to the effect that following an argument his wife had left their home at Atlantic City, New Jersey, where he was stationed in the United States Air Force and that he had learned that she had come to the home of the respondents in Danville, Kentucky. He stated that he had reason to believe that she was being unlawfully restrained. He had been frustrated in his efforts to communicate with her.

Ethel Mahaffey testified that she and her husband had known petitioner’s wife in Japan while the Mahaffeys were stationed there and that in August Mrs. Al-kofer had spent one night in their home and had been invited to dinner one day, but was not present in their home on November 24, 1964. She denied that they had ever exercised any restraint on the liberty of Misao Naruki Alkofer. She further said that she and her husband had arranged for Mrs. Alkofer to reside elsewhere and that she had been residing there since sometime in August 1964. Her whereabouts at the time of the hearing was not disclosed.

This proceeding is based on an alleged illegal restraint and raises the question of immediate right to the custody of Misao Naruki Alkofer. Implicit in the court’s judgment of dismissal is a finding of no illegal restraint of Misao Naruki Al-kofer by the respondents. The testimony of Ethel Mahaffey supports this finding and the judgment. There was a failure on the part of appellant on whom the burden rested to show any illegal restraint. Smith v. Hoblitzell, Ky., 304 S.W.2d 923. But see 39 C.J.S. Habeas Corpus § 100a (1), page 667 ; 25 Am.Jur., Habeas Corpus, Section 150, page 247.

Judgment affirmed.


author: PALMORE, Judge.

text:
    Dan INGRAM, Appellant, v. Lillie INGRAM, Appellee.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.

      Stanley Powell, Berea and Chenault & Coy, Richmond, for appellant
    Guy K. Duerson, Jr., and Jerome S. Fish, Berea, for appellee.
   PALMORE, Judge.

This is the second appeal by the husband in a divorce suit. The action was brought by the wife on the grounds of cruel and inhuman treatment and physical abuse, KRS 403.020(3) (b) and (c). The husband counterclaimed for a divorce on the grounds of adultery or lewd and lascivious conduct and cruel and inhuman treatment, KRS 403.020(4) (c) and (d).

The first judgment awarded the wife a divorce, custody of five infant children, $20 per week for their support, $3,000 lump sum alimony secured by a lien on the home owned by the husband and valued at $8,000, all the furniture except that contained in two rooms then being occupied by the husband, and the right to occupy the home until her remarriage or until all the children reach the age of 18 or marry, whichever of such events first occurs. It denied any relief to the husband on his counterclaim. He appealed.

One Smallwood testified that over a period of several years he and Mrs. Ingram had carried on an adulterous relationship. His veracity was attested by three witnesses. However, his deposition was admitted into the record after the main testimony had been heard in open court Mrs. Ingram had not been specifically interrogated as to whether the charge of adultery was true, and the trial court did not in its first judgment make a finding of fact in that respect. Considering these circumstances it was the view of this court that the case should be reopened and that Mrs. Ingram be interrogated directly on the adultery question. To the extent, therefore, that the judgment denied the husband a divorce and granted alimony, child custody and support to the wife, it was reversed in a memorandum opinion with directions for further proceedings.

On remand of the case Smallwood, called as a witness by Mrs. Ingram, substantially reiterated his previous testimony. She flatly denied that she had ever engaged in improper conduct with him. The chancellor then delivered a written opinion (later incorporated in the judgment as findings of fact) in which he stated categorically that he did not believe Smallwood and was not convinced by the evidence of adultery. A new judgment was entered in conformity with the original judgment except for an increase in fee from $250 to $750 for.Mrs. Ingram’s attorneys. This is the judgment from which the present appeal is taken.

The briefs are devoted in the main to exhaustive analyses of the evidence. The facts do not reflect great credit on either party. There being a direct conflict in evidence on the adultery question, we are unwilling to say that the findings of the chancellor were clearly erroneous. CR 52.01. And since the adultery charge is not established, there is hardly anything else in Mrs. Ingram’s relationship with Small-wood that would constitute such lewd and lascivious conduct “as proves her to be unchaste.” Cf. KRS 403.020(4) (c).

The husband is 62 years old and has little or no education. His earning capacity is limited. On the other hand, he has spawned six children of this woman, and the dependent infants are his responsibility. If the support payments prove to be more that he can reasonably bear, the chancellor has the duty of making appropriate revision. KRS 403.070.

As counsel for both parties recognize, there can be no immutable formula for the determination of alimony. $3,000 out of an $8,000 estate to a middle-aged woman who has no earning power and no property of her own and must direct her time and efforts to the raising of a brood of young children is not excessive. However, considering the desirability of avoiding a forced sale of the husband’s house so long as it is necessary as a place in which to bring up the children, it is our opinion that the $3,-000 alimony ought not to be due and payable until the wife’s right of occupancy comes to an end under the terms of the judgment, or until the death of one or the other of the two parties if that event should occur sooner.

The judgment is affirmed except as to the time the alimony award shall become payable, in which latter respect it is reversed with directions that it be modified in accordance with this opinion.


author: MOREMEN, Judge.

text:
    David JONES, Petitioner, v. Hon. John A. BRESLIN, Judge, Bracken Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.

      David Jones, pro se.
    John A. Breslin, Jr., Maysville, pro se.
   MOREMEN, Judge.

Petitioner David Jones, a prisoner, has petitioned this Court to issue a writ of mandamus ordering the Bracken Circuit Court to prepare and to forward to him a copy of the indictment, a transcript of the evidence taken during the trial which resulted in his being sentenced to the penitentiary, a copy of the instructions and the judgment. Petitioner stated that he intended to file motion to vacate judgment under RCr 11.42, but it is not alleged that such a motion has been filed.

One of the reasons for establishing the post-conviction review procedure under RCr 11.42 was to fix the forum as being the same court under which the original sentence was had because all the available records would he in that court and thus the expense and responsibility of copying and forwarding various transcripts would be obviated. Formerly, when petitions for writs of habeas corpus were customarily used, the forum was the circuit court of the county where the prisoner was confined but, as pointed out in Higbee v. Thomas, Ky., 376 S.W.2d 305, under the new procedure the records and the witnesses are readily available and the state is not obliged to furnish an indigent prisoner a copy of the record.

In Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, it was held to be a violation of the 14th Amendment to deprive a person, because of his indigency, of a free transcript •of his criminal trial in order to perfect his appeal,'.but the various transcriptions here requested were not for that purpose. In fact, according to the allegations of this petition for a mandamus, no proceeding of any nature has been filed in the circuit court.

If the petitioner files a sufficient motion under RCr 11.42 his rights will be fully protected and he and his counsel will have all records available.

In this particular case, a response has been filed in which it is stated that copies of all available records have been forwarded to the petitioner. This action, of course, was not required.

The petition is dismissed.


author: CULLEN, Commissioner.

text:
    W. L. FELIX, Administrator of the Estate of Sterling M. Moreland, deceased, Appellant, v. Edwin S. STAVIS et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.

      John B. Anderson, Owensboro, for appellant.
    Bratcher, Rummage & Beard, Woodward, Bartlett & McCarróll, Owensboro, for appellees.
   CULLEN, Commissioner.

W. L. Felix, administrator of the estate of Sterling M. Moreland, deceased, brought action against Edwin S. Stavis and Roy Reid to recover damages for the wrongful death of Moreland. The trial court directed a verdict for the defendants and judgment was entered accordingly. Felix has appealed.

Moreland was employed by Westinghousc Electric Corporation at its Ken-Rad plant in Owensboro. Stavis, owner of a truck, had a contract with Westinghouse to haul Ken-Rad products from the plant to a warehouse at a railroad terminal. Reid was employed by Stavis to drive the truck. Under the hauling contract Westinghouse’s employes were solely responsible for loading and unloading the truck.

On October 2, 1961, Moreland was called upon to load cartons of Ken-Rad products on the Stavis truck, which was backed up against a loading portal in the side of the Ken-Rad plant. Moreland picked up . a number of cartons with a forklift loader (a four-wheeled, power-driven machine with a seat on which the operator rode) and drove it through the portal into the Stavis track. .He deposited .the cartons in the truck and was in the process, pf backing the forklift out of the. truck when the truck suddenly rolled forward, away from the portal. The forklift fell off the hack of the truck, pinning Moreland against the side of the building and causing him severe injuries, from which a few weeks later he died.

Westinghouse had a printed safety regulation requiring its forklift operators, before driving a forklift onto a truck backed up to a loading portal, to see that the wheels of the truck were chocked so that the truck would not roll away from the portal. Wooden chocks were available at the portals for this purpose. The evidence shows that on the occasion of Moreland’s accident the wheels of the Stavis truck had not been chocked. The evidence shows also that Moreland knew of the - regulation. These facts have significance as concerns the question of Moreland’s contributory negligence or assumption of risk.

As concerns the negligence of the truck driver, the evidence was uncontradicted that the emergency brake on the truck would not function. Also, although the truck driver testified that he had left the truck in reverse gear when he turned off the engine after backing the truck against thé' portal, he admitted that possibly he tóuld have bumped the shift lever into neutral when he stepped out of the truck. When the truck was examined after the accident it was found to be in neutral gear.

The trial court directed a verdict for the defendants on the basis that Moreland was contributorily negligent as a matter of law in not seeing if the truck wheels were chocked.

The appellant’s first contention is that the trial court erred in holding that Moreland’s negligence was as a matter of law a proximate cause of the accident. We find no merit in this contention. Although the terminology of assumption of risk, rather than that of contributory negligence, seems better to apply to Moreland’s conduct, we think that as concerns proximate cause it makes no' difference which terminology is used. The significant thing is the failure of Moreland to exercise ordinary care for his own safety. City of Cold Spring v. Ross, Ky., 358 S.W.2d 507. The question is whether that failure was ,a substantial contributing cause of the accident. If it be considered that Moreland’s failure of care consisted of proceeding in the face of a known risk, then the causation is plain, because the thing that he assumed the risk of happening (namely, the truck’s rolling away from the portal) is exactly what did- happen. On the other hand, if it be considered that his failure of care consisted of his not correcting (by chocking the wheels) the dangerous condition that existed, causation still is plain, because it is clear from the evidence that the truck would not have rolled away had the wheels been chocked.

Where but one reasonable conclusion could be drawn by fair-minded men the question of proximate cause becomes a matter of law. See Eichstadt v. Underwood, Ky., 337 S.W.2d 684; Louisville & Nashville Railroad Co. v. Troutman, Ky., 351 S.W.2d 516.

Appellant’s ' second contention is that, even if it be considered that More-land’s failure of care was as a matter of law a contributing factor, it was for the jury to decide whether his failure was “the” proximate cause, or “the last link in the chain of causation”. This contention is based upon a wholly erroneous concept of the law of causation which, unfortunately, was at one time given some color of validity in decisions of this Court. However, that ghost was laid to rest in Saddler v. Parham, Ky., 249 S.W.2d 945. If, as we have found it to be, Moreland’s failure of care was a substantial contributing cause of the accident, the fact that the truck driver’s negligence also was a substantial contributing cause does not mean that the jury should decide whether one was more of a cause than the other.

As a third contention appellant argues that the negligence of the truck driver was wanton or gross, and therefore the defenses of contributory negligence and assumption of risk should be held not available. It is sufficient to say that in our opinion the truck driver’s negligence (failure to have an emergency brake and accidentally bumping the gear shift lever into neutral) does not even remotely approach being wanton or gross.

Although the appellant, on the face of his brief, has argued only proximate cause in respect to Moreland’s conduct, and has not in specific words raised any question as to whether Moreland did as a matter of law fail to exercise ordinary care, that question lurks in his argument and probably warrants consideration.

It is our opinion that Westinghouse’s safety regulation cannot be accorded the statute of an absolute standard of care, such as a statute, the violation of which would convict an employe ipso facto of a failure to exercise ordinary care even in respect to his relationships with strangers. However, we believe the regulation at the least has the effect of a warning, the existence of which is a circumstance to be considered in determining whether under all the circumstances the employe exercised the care of an ordinarily prudent man. See Annotation, 125 A.L.R. 645.

In substance, the Westinghouse regulation said to Moreland: “Our experience has shown that trucks may roll away from the loading portal if the wheels are not chocked. Our experience has shown also that the truck drivers cannot be depended upon to secure their vehicles so effectively that they will not roll away. You are warned that there is a substantial danger of your being injured if you do not see that the wheels are chocked.”

The warning was one of a substantial risk of serious danger. It is our opinion that in ignoring the warning Moreland failed to meet the standard of ordinary care.

The judgment is affirmed.


author: MOREMEN, Judge. -

text:
    David CARRIER, Petitioner, v. Hon. W. Major GARDNER, Judge, Morgan Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.
    David Carrier, pro se.
    W. Major Gardner, West Liberty, pro se.
   MOREMEN, Judge. -

Petitioner David Carrier, a prisoner, has petitioned this Court to issue a writ of mandamus ordering the Morgan Circuit Court to assign a day for hearing the.motion which he had filed in that court to vacate - the judgment under which he had been convicted. The petition is insufficient in that it fails to state anything but bare conclusions of the petitioner. However, the Hon. W. Major Gardner, Judge of the' Morgan Circuit Court, has filed a response in which it is stated that the motion under RCr 11.42 has been sustained and a hearing on the assertions set out in said motion has been set for December 15, 1964. The case has become moot.

The petition is therefore dismissed.


text:
    James HOBBS, Petitioner, v. Robert B. STIVERS, Judge, Knox Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.
    James Hobbs, pro se.
   PALMORE, Judge.

James Hobbs, a prisoner in the state penitentiary at Eddyville, petitions for a writ of mandamus directing the judge'of the Knox Circuit Court to pass on his RCr 11.42 motion to vacate a judgment of that court sentencing him to life imprisonment pursuant td a guilty plea on a murder charge. KRS 435.010.

The petition, filed on November 4, 1964, states that the motion was mailed to the circuit court clerk on or about September 16, 1964. The respondent was promptly notified of this proceeding but has not responded. Hence we take the allegations of the petition as true.

Ordinarily, mandamus would issue on the basis of the circuit judge’s failure to act on the motion as directed by RCr 11.42. Cf. Benson v. Iler, Ky., 371 S.W.2d 15 (1963). However, it is an extraordinary remedy, and we are of the opinion that it should not be invoked in this case because the petition discloses on its face that ultimately the relief sought would prove fruitless. It says that the basis of the RCr 11.42 motion is that following petitioner’s plea of guilty the court proceeded to sentence him to life imprisonment without the intervention of a jury. RCr 9.84(2), which was adapted from and supersedes provisions formerly contained in Crim.Code § 258 and KRS 431.130, permits the penalty to he fixed by the court after a guilty plea "except in cases involving offenses punishable by death.” It is, therefore, an error for the court to pre-empt that function in a murder case, but the error is not of constitutional proportions and does not invalidate the judgment. Williams v. Jones, Ky., 338 S.W.2d 693 (1960).

RCr 11.42 provides relief only when the judgment is subject to collateral attack— that is, void. Tipton v. Commonwealth, Ky., 376 S.W.2d 290 (1964). Should we direct the respondent to pass on petitioner’s motion it would be incumbent on him to overrule it. Petitioner’s only recourse then would be an appeal to this court. To obviate such useless circuity of motion it is preferable that we say now what would eventually have to be said anyway. In so doing, however, we do not condone the respondent’s failure to act on the motion or to explain the alleged nonaction by appropriate response in this proceeding.

Mandamus denied.


author: CLAY, Commissioner.

text:
    John Henry WARNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.
    John Henry Warner, pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

Approximately twenty years ago appellant was convicted as an habitual criminal and sentenced to life imprisonment. He commenced this proceeding under RCr 11.42 on the ground that the indictment under which he was tried was in certain respects defective. The trial court appointed a lawyer to represent him and investigate the record. After the lawyer’s report, the circuit court overruled appellant’s motion to vacate the judgment.

It is questionable that there were any defects in the indictment. Assuming there were, they have long since been waived by failure to question the indictment in a proper and timely manner. Davis v. Commonwealth, 279 Ky. 127, 129 S.W.2d 1030. Aside from waiver, defects in an indictment will not support a collateral attack upon a judgment of conviction. See Department of Public Welfare v. Polsgrove, 250 Ky. 517, 63 S.W.2d 603; Harrod v. Commonwealth, Ky., 253 S.W.2d 574. Haying asserted no grounds which would authorize or justify relief under RCr 11.42, the court properly overruled appellant’s motion to vacate the judgment See Yates v. Commonwealth, Ky., 375 S.W.2d 271; Tipton v. Commonwealth, Ky., 376 S.W.2d 290; Oakes v. Gentry, Ky., 380 S.W.2d 237; Jennings v. Commonwealth, Ky., 380 S.W.2d 284.

The judgment is affirmed.


text:
    Pem CHAPMAN, Appellant, v. EASTERN COAL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.
    Sanders & Redwine, Fred B. Redwine, Francis Dale Burke, Pikeville, for appellant.
    Baird & Hays, Jack T. Page, Pikeville, for appellees.
   WILLIAMS, Judge.

The appellant Pem Chapman was denied compensation by the Workmen’s Compensation Board. From a judgment of the Pike Circuit Court of like import he has prosecuted this appeal.

Chapman was continuously employed by the appellee Eastern Coal Corporation from July 1, 1936 to July 18, 1961. He left his employment after he had suffered a heart attack. From 1936 to 1944 he worked inside the coal mines. In 1944 he was brought outside, where he worked as a lamp attendant, and occasionally served as helper in drying sand.

In 1950 Chapman was admitted to the Veterans Administration Hospital, Out-wood, Kentucky, where his condition was diagnosed as pneumoconiosis and' emphysema. In 1954 he was informed that he had silicosis. He worked until he suffered his heart attack, after which he filed his claim for compensation.

The Workmen’s Compensation Board found that Chapman may have been exposed to silicon particles during the time he worked inside the mines from 1936 to 1944. The Board found that. after ■ 1944 he was not exposed to silicon particles to a sufficient degree to have .caused him to contract silicosis. He was found to be totally disabled,, but his disability was. attributed to his heart condition and not to •silicosis. -i; ; - ;

We agree with appellant that the law did not require him to give notice of disability until he did. In Brock v. International Harvester Co., Ky., 374 S.W.2d 507 (1964) and in Stephens Elkhorn Coal Company v. Tibbs, Ky., 374 S.W.2d 504 (1964) it was held that limitations do not commence to run until the employee has a disability, and so long as the employee continues in full-time employment by the same employer he is not to be considered disabled. We are also inclined to agree with appellant that the Board erroneously found that all of Chapman’s disability stemmed from his heart condition. However, neither of those two points is disposi-tive of this case.

There was evidence of substance to sustain the Board’s finding that Chapman was not sufficiently exposed to silicon particles after 1944 to have caused him to contract silicosis. The law as it read in 1960, KRS 342.316(4), provided:

“(4) In claims for compensation due , to the occupational disease of silicosis it must be shown that the employe was exposed to the hazards of the disease in his employment within this state for at least two years immediately next before his disability or death.”

The words “immediately next” were added to the statute in 1960. Prior to that time it was understood that the exposure need not immediately precede the disability. Blue Diamond Coal Co. v. Phillips, Ky., 350 S.W.2d 484 (1961). Since 1960, however, the exposure must have occurred during the two years of Kentucky employment immediately preceding the disability. Unless it did, the employee has no claim under the statute.

The necessary implication of the medical evidence is that Chapman was not exposed to- silicon particles in a sufficient degree to constitute a hazard of silicosis after 1944. Consequently, under KRS 342.316(4), he may not recover.

The judgment is affirmed.


author: STEWART, Judge.

text:
    Ramey ALLEN, Petitioner, v. Honorable Judge WOLFINBARGER, Lee Circuit Court, Beattyville, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    Ramey Allen, pro se.
    No attorney for respondent.
   STEWART, Judge.

Ramey Allen, a prisoner in the penitentiary at Eddyville, petitions this Court for a writ of mandamus directed at the Honorable James M. Wolfinbarger, Judge of the Lee Circuit Court. He recites that on or about September 25, 1964, he “filed a petition as a pauper in the Lee Circuit Court asking for his trial record of 1945.” He indicates he desires this record in order that he “may take an appeal.”

Although his petition has not been passed upon in circuit court, he institutes this mandamus action wherein he seeks to have this Court order the trial court to prepare and turn over to him “his trial record of 1945.”

Ordinarily, in a proceeding under RCr 11.42, and the pending matter in circuit court seems to be such a proceeding, a prisoner is not entitled to a record before or at the time he makes his initial move under that Rule because the hearing thereon will be had in the circuit court in which he was convicted and the record will be presumed to be in the circuit clerk’s office of that court.

Following a conviction, a defendant’s only legitimate use for a record of the proceedings in a criminal case is for the purpose of a judicial review. An indigent person’s right to a record upon that ground was established in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.

However, as petitioner was convicted in 1945, he is in no position to demand a record at public expense, nineteen years later, when his claim to such is based solely upon general statements, namely, that his constitutional or statutory rights have been violated, or that the trial court lacked jurisdiction to try and determine his case.

In short, petitioner has alleged no ground whatsoever that would entitle him to be- supplied with the record out of which his conviction grew.

Wherefore, mandamus is denied.


text:
    Orville MOORE, Petitioner, v. Hon. Frank A. ROPKE, Judge, Jefferson Circuit Court, Louisville, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    Orville Moore, pro se.
   CLAY, Commissioner.

This is an original proceeding in which the petitioner requests this Court to order the circuit court to furnish him the “complete court records” relating to his conviction on an armed robbery charge in 1952.

We could dispose of this petition on the ground it is premature, since the response of the respondent asserts that a similar petition in the circuit court has been passed for hearing to December 21, 1964. However, we will go one step further and observe that neither the petition in the circuit court (a copy of which has been filed here) nor the petition in this Court states any semblance of a ground which would justify furnishing petitioner, as an indigent person, with any court records.

The petition in the circuit court recites as the only basis for petitioner’s request: “Petitioner states he needs aforesaid records because he purports to make a direct attack upon the Judgment of his Conviction and needs the records to enable him to prepare an intelligent motion or petition in his own behalf.”

In other words, petitioner is on a fishing expedition and hopes to find something that may possibly lay the groundwork upon which to initiate further court proceedings. This is a sort of game which is beginning to try the patience of this Court.

Only for the purpose of taking a timely appeal, in the proper case, may an indigent person be entitled to have furnished to him a transcript of the record of his conviction. Moy v. Bradley, Ky., 306 S.W.2d 296; Oakes v. Gentry, Ky., 380 S.W.2d 237; Allen v. Wolfinbarger, Ky., 385 S.W.2d 160 (this day decided). Petitioner’s ulterior objective is completely foreign to this purpose.

The order of mandamus is denied.


text:
    Henry Sherman KRAUS, Petitioner, v. Honorable Frank A. ROPKE, Jefferson Circuit Court, Louisville, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    Henry Sherman Kraus, pro se.
    Edwin A. Schroering, Jr., Commonwealth’s Atty., Robert E. Fleming, Asst. Commonwealth’s Atty., Louisville, for respondent.
   CULLEN, Commissioner.

The petition of Henry Sherman Kraus, a prisoner in the state penitentiary, filed in this Court on November 13, 1964, seeks a mandatory order to compel Frank A. Ropke, a judge of the Jefferson Circuit Court, to rule on a motion filed in that court by Kraus under RCr 11.42. Judge Ropke has made a response stating that on October 15, 1964, he entered an order overruling the motion. The fact that the motion has been ruled on makes the proceeding in this Court moot.

In recent months this Court has been presented with an inordinate number of cases just like this — a petition to compel a circuit judge to rule on an RCr 11.42 motion, followed by a response stating that the motion has been overruled. It appears that some circuit judges are not giving notice to the movants of the action taken on their motions. In our opinion considerations of fairness require that when an RCr 11.42 motion, filed by a prisoner without counsel, is ruled on by the court, the movant be notified of the ruling by sending him a copy of the order. Furthermore, it will be our position that the time for appealing from such an order does not commence to run until a copy of the order has been sent to the movant.

The petition is dismissed.


text:
    James Franklin McKINNEY, Petitioner, v. H. O. PORTER, Presiding Judge, Clark Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      James Franklin McKinney, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for respondent.
   DAVIS, Commissioner.

In this original proceeding under Ky. Constitution, Sec. 110, petitioner seeks an order directing Hon. H. O. Porter, presiding judge of the Clark Circuit Court, to rule upon a motion to vacate a judgment of conviction against petitioner. The motion to vacate was filed by petitioner pursuant to RCr 11.42.

By response, Judge Porter advises that the RCr 11.42 motion has been overruled by appropriate order entered November 23, 1964. Hence, it is not necessary to grant the relief sought, as the matter has become moot. Burton v. Tartar, Ky., 383 S.W.2d 127.

We call attention again to the imperative necessity that circuit courts furnish information concerning orders to movants in these cases. As announced in Kraus v. Ropke, Ky., 385 S.W.2d 162 (this day decided), the time for appeal from the ruling on the RCr 11.42 motion will not be deemed to commence until such notice is sent.

Mandamus is denied.


text:
    Jacob Carl ODEWAHN, Petitioner, v. Hon. Frank A. ROPKE, Judge, Jefferson Circuit Court, Criminal Division, Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Jacob C. Odewahn, pro se.
    Carl C. Ousley, Jr., Louisville, for appel-lee.
   DAVIS, Commissioner.

The petitioner filed this original proceeding here on December 7, 1964; the respondent judge filed response on December 11, 1964. Petitioner seeks an order for his own personal attendance at the preliminary hearing on the Commonwealth’s motion to dismiss the RCr 11.42 proceeding. The question presented became moot before the case was ready for submission; our attention was not called to the time factor by the petitioner.

On December 2, 1964, petitioner filed in Jefferson Circuit Court, Criminal Branch, First Division, a motion to vacate a judgment of conviction rendered against him in that court. RCr 11.42. In the response filed by Judge Ropke we are informed that the Commonwealth has filed a motion to dismiss the RCr 11.42 proceeding, and that hearing upon the motion to dismiss was assigned for December 10, 1964. Judge Ropke’s response was not filed here until December 11, 1964 — one day after the scheduled date for hearing on the motion to dismiss the'RCr 11.42 proceeding. The case is moot now.

However, we take this opportunity to point out that there are at least two other reasons why the relief sought is not available to the petitioner by way of the extraordinary procedure here employed. First, the petition fails to reflect that the petitioner made application to the respondent for an order permitting the presence of petitioner at the preliminary inquiry as to whether a hearing should be granted and counsel appointed. Second, unless the RCr 11.42 motion shows upon its face the existence of a valid ground for providing counsel and affording a hearing, the motion may be dismissed without appointing counsel or granting a hearing. Cf. Jennings v. Commonwealth, Ky., 380 S.W.2d 284.

The United States Supreme Court, in dealing with the comparable postconviction procedure provided by 28 U.S.C. § 2255, has said:

“On remand, a hearing will be required. This is not to say, however, that it will automatically become necessary to produce petitioner at the hearing to enable him to testify. Not every colorable allegation entitles a federal prisoner to a trip to the sentencing court.” Sanders v. United States, 373 U.S. 1, at 20, 83 S.Ct. 1068, at 1080, 10 L.Ed.2d 148 (at 164).

In Sanders, the Supreme Court reaffirmed the position it had taken in Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473, in which it had written:

“ ‘What has been said is not to imply that a movant [under § 2255] must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the statute itself recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner. Whether the petition in the present case can appropriately be disposed of without the presence of the petitioner at the hearing is a question to be resolved in the further proceedings in the District Court.’ ” 368 U.S. 487, 495, 82 S.Ct. 510, 514. (373 U.S. 21, 83 S.Ct. 1080, 10 L.Ed.2d 165.)

We think the same reasoning is applicable to situations arising' under RCr 11.42 motions. It is not every filing of an RCr 11.42 motion which will entitle the movant to appear in person in. the court. Only upon those cases wherein it is determined that counsel should he appointed and a hearing granted will it he necessary, usually, for the movant to be in court by his own proper person. Conceivably, other situations could arise where the personal appearance would be appropriate, but such is not the case at bar.

Mandamus denied.


text:
    Talmadge MARCUM, Petitioner, v. Joseph J. BRADLEY, Respondent.
    Court of Appeals of Kentucky.
    June 16, 1964.

      Charles M. Tackett, Lexington, Lester H. Burns, Manchester, for petitioner.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for respondent.
   CULLEN, Commissioner.

In an original proceeding in this Court, Talmadge Marcum seeks an order prohibiting Joseph J. Bradley, Judge of the Fay-ette Circuit Court, from proceeding with a prosecution of Marcum for murder under an indictment returned by the Fayette County grand jury. The ground upon which the petition is based is that the proper venue of the prosecution is in Jackson County.

Marcum is accused of shooting, in Jackson County, a man whose death ensued in Fayette County. Under KRS 452.560 a prosecution could be initiated in either county. However, KRS 452.630 provides:

“Where the venue of a prosecution is in two or more counties, the prosecution shall proceed in the county in which the process for the arrest of the defendant is first issued, unless an indictment for the offense is pending in another county.”

Marcum was arrested in Jackson County, pursuant to a warrant, prior to his indictment in Fayette County and arrest thereunder. He contends, therefore, that Jackson County has sole authority to proceed with the prosecution.

The shooting occurred on May 19, 1963, and the death occurred on the next day. On the latter day Marcum surrendered himself to the jailer of Jackson County and was served with a warrant. He was taken before the county judge and, after being bound over to the grand jury, was released on bond. However, notwithstanding that the officer who swore out the complaint appeared before both the June and September grand juries, neither one returned an indictment against Marcum. The Fayette County indictment was returned in September.

Under RCr 5.22 the failure of the Jackson County grand jury to indict Mar-cum at its June session operated to discharge him and to terminate the prosecution pursuant to the warrant. Therefore, when the indictment was returned by the Fayette County grand jury, no prosecution was pending in Jackson County.

We think the plain meaning of KRS 452.630 is that the first-process county has exclusive venue only so long as a prosecution “proceeds” in due course in that county; when the prosecution in that county ceases (before reaching the jeopardy stage) the right of exclusive venue ceases. Cf. Carroll v. Commonwealth, Ky., 294 S.W.2d 938; Hughes v. Commonwealth, Ky., 295 S.W.2d 350; Clemons v. Stoll, 197 Ky. 208, 246 S.W. 810.

The statute is not designed for the benefit of the offender, but to determine the jurisdiction in which he shall be tried. Massie v. Commonwealth, 90 Ky. 485, 14 S.W. 419. So long as the accused is not put in jeopardy by the proceedings in both counties, it cannot be the subject of complaint from him which of them takes the jurisdiction and proceeds with his trial so long as only one does so. Hargis v. Parker, 85 S.W. 704, 27 Ky.Law Rep. 441, 69 L.R.A. 270. The statute is not to be so construed as to permit the offender to escape the consequences of his crime through refusal of the authorities of the first-process county to prosecute. Spencer v. Commonwealth, 194 Ky. 699, 240 S.W. 750.

The petition is denied.


text:
    John Raymond BAUER, Petitioner, v. Honorable J. Miles POUND, Judge, etc., Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    John Raymond Bauer, pro se.
    Carl C. Ousley, Jr., Asst. Commonwealth’s Atty., Louisville, for appellee.
   MONTGOMERY, Judge.

John Raymond Bauer, a prisoner in the Kentucky State Reformatory, has filed a petition in this Court against Honorable J. Miles Pound, Judge, Jefferson Circuit Court, in which it is asked that Judge Pound be required to direct the Qerk and an official reporter of the Jefferson Circuit Court “to furnish this petitioner without cost; (1) copy of indictments (2) copy of instructions to jurors (3) copy of judgments (4) copy of transcript of trial, to-wit; .the records of the acts of the Court, the transcript of the testimony taken therein and the transcript of evedence (sic) used therein * * *.”

Petitioner was convicted in 1961 on three charges: two of armed robbery and one of willful murder. He received a life sentence in each case. These convictions were affirmed. Bauer v. Commonwealth, Ky., 364 S.W.2d 655.

Now, petitioner claims that “ * * * reasonable questions have arisen concerning the legality of the trial and the procedure therein, which were not tested on the original appeal.” The nature of these “questions” is not disclosed. Petitioner wants the records indicated above “to substantiate the allegations he must make in the legal redress he seeks.” In other words, he wants to indulge in a “fishing expedition” at the expense in time, talent, and cost of the Judge, Clerk, and reporter. No proper basis is asserted and no legal authority is cited.

In Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, followed in Jones v. Breslin, Ky., 385 S.W.2d 71 (decided December 11, 1964), it was held that an indigent defendant was entitled to a free transcript of his criminal trial to perfect his appeal. The only legitimate use for a record of the proceedings m a criminal case is for the purpose of a judicial review. Oakes v. Gentry, Ky., 380 S.W.2d 237; Allen v. Wolfinbarger, Ky., 385 S.W.2d 160 (decided December 18, 1964).

The preparation of such records entails considerable expenditure of time and effort and usually some financial expense on the part of the officials required to furnish such records. The flood of baseless and merit-less proceedings filed by indigent prisoners has reached alarming proportions. In the August 18, 1964 Advance Sheets, Southwestern Reporter, Second Series, 380 S.W.2d 201-792, there are six reported opinions of this Court dealing with such cases, many of which if filed by any other litigant would have been considered frivolous and would have received short shrift. The consideration devoted to such cases in the trial and appellate courts could better be devoted to consideration of more meritorious litigation. This is especially true where dockets are crowded.

Here, petitioner has had his case considered on appeal where he was represented by two able attorneys. No petition for rehearing was filed, which indicates that no question remained to be presented. While the preparation by indigent prisoners of proceedings of the type here considered may be deemed to have certain therapeutic and rehabilitative benefits to a prisoner, such benefits are accomplished at the expense of the courts, court personnel, litigants, and attorneys who have to prepare such records, counsel such prisoners, and consider such cases. Additionally, an action such as this constitutes an embarrassing harassment to a trial judge to which he should not be subjected. Bell v. Gentry, Ky., 380 S.W.2d 259, is typical. The supposed benefits are not justified.

In the Oakes case the requirements to obtain a record were prescribed. Hence, such requests for records should be strictly limited to cases in which an appeal is then being sought or is pending. Before invoking an extraordinary remedy afforded by this Court, the petitioner must show a basis for holding that the judgment under attack in a post-conviction procedure is void. Hobbs v. Stivers, Ky., 385 S.W.2d 76 (decided December 11, 1964). Otherwise, the proceeding should be dismissed summarily, and in this Court such action should follow upon order without a written opinion.

Mandamus is denied..


text:
    Luke BURTON, Petitioner, v. Hon. R. C. TARTAR, Judge, Pulaski Circuit Court, Somerset, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Luke Burton, pro se.
    R. C. Tartar, Judge, pro se.
   DAVIS, Commissioner.

Luke Burton, the petitioner, seeks an order of this court to require Hon. R. C. Tartar, Judge, Pulaski Circuit Court, to order a record prepared of certain proceedings had in the Pulaski Circuit Court wherein an RCr 11.42 motion by Burton was overruled. Burton asserts that he desires the record for an appeal to this court from the adverse judgment in the RCr 11.42 proceeding.

In his petition here, Burton asserts that he has alleged the denial of a fundamental constitutional right in the RCr 11.42 motion, hence, he is entitled as a matter of right to a hearing on the motion; he asserts that the respondent judge summarily denied his motion without a hearing.

Judge Tartar has filed response in which it is pointed out that Burton filed a motion pursuant to CR 60.02, whereby he sought to vacate the same judgment of conviction which he attacks in the RCr 11.42 motion at hand. The identical grounds for relief were made in that proceeding as are now presented. A full hearing, with competent legal counsel, was accorded Burton then; the judgment was adverse to him.

Burton perfected an appeal to this court, upon a record furnished to him in forma pauperis. On October 19, 1962, this court rendered an opinion affirming the judgment of the Pulaski Circuit Court which had denied Burton the relief sought. The opinion was not published, although it did fully treat the questions presented.

Burton sought writ of certiorari, but this was denied by the United States Supreme Court, March 18, 1963. Burton v. Davis, 372 U.S. 946, 83 S.Ct. 940, 9 L.Ed.2d 971.

In his response, Judge Tartar asserts that Burton did not file the RCr 11.42 motion in good faith, but that he was “trifling with the court.” In support of this allegation, Judge Tartar points out that this same petitioner filed an RCr 11.42 motion in the Pulaski Circuit Court on May 14, 1963, asserting the identical grounds for relief which had been adjudicated in the CR 60.02 proceeding just mentioned. That motion was denied. Burton did not appeal. The motion upon which the petitioner now seeks relief was filed July 10, 1964, again, based upon the identical grounds. . Obviously, Burton is indeed “trifling with the court.”

Perhaps Burton may imagine that he, like the famed importunate widow of Holy Writj will “wear out” the court by his continual coming (Luke 18:1-6). So be it not. Note Burton v. Tartar, Ky., 383 S.W.2d 127,

The same three rules enunciated by the Supreme Court of the United States in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, and adopted by this court in Baker v. Davis, Ky., 383 S.W.2d 125, are as apposite to the postconviction remedy under RCr 11.42 as to the habeas corpus procedures in which they were promulgated. (1) The same grounds have been adjudged adversely to the petitioner, (2) the adjudication was on the merits, (3) the ends of justice would not be served by reaching the merits of the subsequent petition (the RCr 11.42 motion proceeding .to which the present petition is addressed).

Mandamus is denied.


text:
    Richard Charles RUIP, Petitioner, v. Thomas J. KNIGHT, Judge, etc., Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    ■- Richard Charles Ruip, pro se.
    Carl C. Ousley, Jr., Asst. Commonwealth’s Atty., Louisville, for appellee.
   MONTGOMERY, Judge.

■ Richard Charles Ruip, an inmate of the -United States Penitentiary, Atlanta, Georgia, seeks a “writ of procendo ad judicium” by petition in this Court. The petitioner asks that he be brought to immediate trial on Indictment No. 121102, Jefferson Circuit Court, on a charge of armed robbery. A petition seeking the same relief filed against the respondent as presiding judge of the Jefferson Circuit Court, Criminal Branch, First Division, was dismissed in the Jefferson Circuit Court on September 13, 1963.

The response filed herein discloses that the petitioner has never been apprehended on the armed robbery indictment and is now confined in federal custody under a sentence extending until 1976. The motion in the Jefferson Circuit Court was dismissed on the authority of In re: Yager’s Petition, D.C., 138 F.Supp. 717, wherein it was held, under similar facts, that the failure of the Kentucky authorities to bring the petitioner to trial upon a charge pending against him in the state court did not deprive the petitioner of his right to a speedy trial under the Sixth Amendment, United States Constitution.

In Jones v. Commonwealth, 114 Ky. 599, 71 S.W. 643, an accused who had been served with process was held to be entitled to a speedy trial under Kentucky Constitution, Section 11, when he was in court and objected to the filing away of the indictment. However, in Gross v. Commonwealth, 118 Ky. 907, 82 S.W. 618, the filing away of an indictment when the accused had not been apprehended and a reinstatement upon subsequent arrest were held not to be in violation of the constitutional provision. Since the petitioner has never been served with process and has never submitted himself to the jurisdiction of the court in which he seeks a speedy trial, neither his federal nor state constitutional right to a speedy trial has been violated.

This view of the case renders it unnecessary to discuss whether the writ sought is available in this Court.

The petition is dismissed.


text:
    Dorris WAHL, Petitioner, v. Faust Y. SIMPSON, Judge, Henderson Circuit Court, Henderson, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    Dorris Wahl, pro se.
   DAVIS, Commissioner.

Dorris Wahl, presently imprisoned at Ed-dyville pursuant to judgment of the Henderson Circuit Court, seeks an order of mandamus requiring the judge of the Henderson Circuit Court to rule upon an RCr 11.42 motion to vacate the judgment of conviction. This original action is pursuant to. Ky.Constitution, Sec. 110.

The petitioner alleges that he filed the motion to vacate “nearly two months ago” (we assume this refers to two months prior to the filing of the present action, which was filed October 29, 1964.) The petitioner further asserts that the respondent circuit judge (whom he incorrectly designates as “Frast” Y. Simpson) has failed to rule upon the RCr 11.42 motion.

Respondent was duly notified of the filing and nature of this proceeding by correspondence from the Clerk of this court, but has not made any response to the petition. Response was due “within 10 days from the date of the filing of the petition.” RCA 1.420. We are left with no alternative except to treat as confessed the allegations of the petition. It follows that the relief requested must be granted. Benson v. Iler, Ky., 371 S.W.2d 15; Benson v. Iler, Ky., 371 S.W.2d 16.

The volume of proceedings of this nature suggests that the circuit courts throughout the Commonwealth may be omitting the important step of notifying movants of action taken in proceedings under RCr 11.42. It is imperative that prompt action be taken in such motions, and it is equally important that the movant be apprised of whatever action is taken.

The petition for mandamus is sustained and respondent is directed to dispose of the RCr 11.42 motion by appropriate order.


author: ,CLAY, Commissioner,

text:
    Howard T. HELTON, Petitioner, v. Hon. Robert B. STIVERS, Judge, Knox Circuit Court, Barbourville, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    Howard T. Helton, pro- se.
   ,CLAY, Commissioner,

In this- original proceeding petitioner has requested us to require respondent to enter “some sort of judgment” on a motion under RCr 11.42 filed by him in the Knox Circuit Court. The respondent has not filed a re- ( sponse.

It is alleged that petitioner’s motion was filed in the circuit court on August 8, 1964, and that respondent has failed to take any proceedings on that motion or to enter judgment. The nature of the proceeding under RCr 11.42 is such that the circuit court should expedite disposition of the motion. It may be that the motion could be disposed of summarily. See Oakes v. Gentry, Ky., 380 S.W.2d 237. If a hearing is required, it should be “prompt”. We are of the opinion that a four months’ delay in taking any proceedings after the filing of the motion, without some reason therefor being shown, is not in the best interests of the administration of justice. Consequently, we are directing respondent to proceed and dispose of the merits of this motion.

The petitioner’s request is granted and respondent is directed forthwith to take whatever proceedings are necessary in the disposition of this motion.


author: MILLIKEN, Chief Justice.

text:
    Delmas FLATT, Petitioner, v. Hon. Terill WILSON, Judge, Russell Circuit Court, Jamestown, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Delmas Flatt, pro se.
   MILLIKEN, Chief Justice.

The respondent has not answered the petition filed by the prisoner, Delmas Flatt, requesting mandamus directing the respondent to rule upon a RCr 11.42 petition filed in respondent’s court on July 31, 1964. The petitioner is entitled to a ruling upon his RCr 11.42 petition and the respondent, Hon. Terill Wilson, Judge of the Russell Circuit Court, is directed to rule upon the petition and to notify the petitioner of the ruling. See Benson v. Iler (1963), Ky., 371 S.W.2d 15.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Josie OLIVER, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Reed D. Anderson, Dept, of Highways, Jackson, for appellant.
    Ralph N. Walter, Nickell & Walter, West Liberty, for appellees.
   CLAY, Commissioner.

This is a condemnation case. The Commonwealth acquired a little over eleven acres of a 115 acre farm in Wolfe County. Approximately eight of the acres taken were bottom land and the remainder was hill land which could be cultivated. The jury awarded the property owners $10,000. It is the Commonwealth’s contention that the testimony of appellees’ expert witnesses lacked sufficient probative value to support this award.

The two witnesses for appellees fixed the market value of the farm before the talcing at- $22,000 and $24,000 respectively. The first witness, Dunn, gave an after value of “$12,000 to $13,000”, making a difference of $9,000 or $10,000, and the other witness, Back, gave an after value of $13,800 or a difference of $10,200.

We may assume these witnesses were qualified as valuation experts. However, the Commonwealth contends their own testimony as to what they based their opinions upon not only failed to support their estimates but showed they had considered improper factors and sales of noncomparable properties. For example, Dunn, to justify his opinion that the bottom land taken was worth around $900 an acre, referred to sales of town lots'and other small pieces of property which were in no respect comparable to the farm of appellees. He stated he did’not know of any kind of farm in Wolfe County which'had 'sol’d for' as much as $22,000. ' :He- also attributed substantial value to the tobacco base on the farm, which was only .68 of an acre.

The other witness, Back, in justifying his estimates, stated that the property “would make a good subdivision”, although there was no evidence of any kind that there was any prospect of a subdivision development in this area. The farm was located approximately a mile from Camp-ton. He also based his opinion in part on the fact that bottom land was exceptionally good for tobacco raising. As we noted above, his farm has only a .68 acre tobacco base. A comparable sale to which he referred was that of a 100 acre farm which sold for $14,000. He did say appellees’ property is “better located”.

It may be observed that both of these witnesses used alternate figures as if the matter of a difference of several hundred or a thousand dollars was not of any importance. For example, witness Dunn said the value of the farm after the taking was $12,000 to $13,000. Witness Back said the bottom land had a value of $1,000 to $1,200 an acre. These were expert witnesses. They were called upon to give an honest opinion of the value of the specific property involved. A reading of their testimony gives the distinct impression that they were picking nice sounding figures out of thin air. The factors upon which they based their opinions no more supported an estimate of around $1,000 an acre, which the jury allowed, than they would have supported estimates of $2,000 or $3,000 an acre.

It is evident to us that the jury, in awarding approximately the highest valuation of' these two witnesses, completely ignored the impropriety of many of the factors upon which they based their opinions and accepted these opinions at face value without adequate supporting facts. As we said in Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, the lack of supporting facts affects the extent to which the probative value of an estimate will go;

Ordinarily we should leave to the jury the determination of the probative value of evidence, although verdicts in proceedings of this kind are not accorded the same sanctity as those based upon other factual determinations. Kentucky Hydro-Electric Co. v. Reister, 216 Ky. 303, 287 S.W. 357, 359. When valuations appear at first blush to be extravagant, and after an opportunity to do so expert witnesses fail to disclose a sound basis for their opinions and demonstrate that factors have been considered which are not proper or pertinent, we believe justice demands that we set aside the verdict on the ground that it is not supported by the evidence and is consequently excessive. See Louisville & N. R. Co. v. Burnam, 214 Ky. 736, 284 S.W. 391; Kentucky Hydro-Electric Co. v. Reister, 216 Ky. 303, 287 S.W. 357.

The judgment is reversed, with directions to set it aside and grant a new trial.


text:
    Harlan JAMES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    John A. Keck, Grayson, for appellant.
    Robert F. Matthews, Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Harlan James was fined $20 and sentenced to serve thirty days in jail for illegal possession of intoxicating liquors. He has moved for an appeal. RCr 12.52(2). The case was submitted under RCA 1.270 when the time for filing briefs expired without any brief being filed.

For failure to file a brief, appellant’s appeal is dismissed. RCA 1.260(b).

Appeal dismissed.


text:
    Ed TURNER, Appellant, v. Dr. Richard RUST, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Thomas W. Hardesty, Newport, for appellant.
    John J. O’Hara, O’Hara & Ruberg, Cov-ington, for appellee.
   MOREMEN, Judge.

This is an appeal from a judgment of the Campbell Circuit Court which dismissed a complaint filed by appellant, Ed Turner, in which he sought to recover damages from appellee, Dr. Richard Rust, as the result of his alleged failure to place properly appellant’s left hip in socket. The original complaint was amended three times and .was thereafter dismissed on the ground that the action was one for malpractice and was barred by the. statute of limitations.

■ Turner1 was- injured in an automobile collisión on April 20, 1960. Dr. Rust operated oil h'ifri on May 2, 1960. In a deposition filed ; he gave''this' description as to; what occurred on the last day of the doctor-patient relationship:

“Q. What took place on these visits to the doctor? A. Well, I was on crutches and the last time I went to see him in December, 1960, and he advised me to get rid of them.
“Q. Is that the last time you saw Dr. Rust, in December, 1960, as a patient? A. I don’t know whether there is another date or not.
“Q. But as best you can recall it was in that area? A. Yes.”

In June 1961, x-rays were taken of appellant’s injured hip at the Speer’s Hospital in Dayton, Kentucky. Dr. Rust did not examine him and apparently knew nothing about the x-rays. In the same month, Dr. Rust testified in a suit which grew out of the accident in which Turner was injured and again gave his opinion that Turner had recovered from his injury, although he made no examination of him after December 1960. Sometime after the x-ray was taken, appellant Turner entered the Veterans’ Administration Hospital in Cincinnati, Ohio, and on August 28, 1961, the staff doctors advised him that his hip was out of socket. Turner’s original complaint was filed on the 11th day of June 1962.

KRS 413.140 provides that an action against a physician or surgeon for negligence or malpractice shall be commenced within one year after the cause of action has accrued. In Carter v. Harlan Hospital Association, Inc., 265 Ky. 452, 97 S.W.2d 9, it was said that, with few exceptions, a cause of action accrues when a party has the right and capacity to sue and his right of action is not. suspended until after he ascertains that he has a cause of action. In this case, which also involved an action for malpractice, it was said:

“Not only so, but with respect to 'limitation the time of the injury itself is the controlling fact, and not the means by which the injury is inflicted. According to the petition, Mrs. Carter was injured when the first operation was performed, and plaintiff was then deprived of her services and society, and the only thing that she or plaintiff did not know was the means by which the injury was inflicted. Clearly the fact that she or he was not informed as to the way or means until long after the injury was inflicted did not have the effect of suspending the one-year statute of limitations.”

In Adams v. Ison, Ky., 249 S.W.2d 791, where many statements were made not necessary to the decision, the facts were as follows: Through the alleged negligence of a physician, a rubber tube was inserted and left in the lung after an operation, and in the petition for malpractice it was alleged that about ten days after the operation the patient discovered the negligent act and asked the surgeon to perform an operation to remove the tube; the patient told the doctor that unless he did so, he would sue him for damages. The doctor informed him that the rubber would he absorbed by the body and no ill effects would result. Almost twenty years later the patient suffered a lung hemorrhage and his right lung was removed. It was stated in the opinion, among other things, that concealment could not be assumed; there must be an affirmative action. The case was decided on the point that the doctor’s assurance under threat of a suit for damages was such an affirmative action, and it was held that the petition stated a cause of action.

In Philpot v. Stacy, Ky., 371 S.W.2d 11, a malpractice action for failure to discover and remove bits of the patient’s clothing embedded in an abdominal puncture before suturing the wound — which action was not commenced within one year after the last treatment by defendant — was barred by limitation although the action was commenced shortly after another operation disclosed pieces of cloth in the old wound. The facts in that case are very similar to the one under consideration. In that case, as here, the patient sought other medical advice and he, too, entered a veterans’ hospital. The doctor did not attempt to restrain him from receiving further medical advice nor did he say or do anything which might be interpreted as misrepresenting the facts so as to avoid a suit. It was there said:

“The most the record discloses is that the Appellee may have made a mistake in his diagnosis and treatment of Appellant. When Appellant was asked the basis of his allegation of fraud he responded, ‘In fact I don’t know hardly how to answer, except I believe he knew that he had made a mistake when he examined me the second time.’ This was the only reason for the allegation which Appellant could give. Fraud must be pleaded and clearly proved. Curry v. Stewart, 301 Ky. 645, 192 S.W.2d 739. CR 9.02. Neither requirement is met here.”

At most, the allegations of the complaint as amended, when considered with the deposition, disclose that Dr. Rust may have been mistaken in his diagnosis and treatment. The record fails to disclose any affirmative act by which he attempted to restrain appellant from filing suit at a time within the year’s limit. Furthermore, averments of fraud were not stated with particularity in the complaint. CR 9.02.

Judgment affirmed.