author: WOLFE, Judge.

text:
    Ernie R. McQUEEN and Genevieve H. McQueen, Plaintiffs-Respondents, v. Theresa HUELSING and Ann Huelsing, Defendants, Theresa Huelsing, Defendant-Appellant.
    No. 32634.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.

      Joseph W. Dierker, John B. Sharpe, St. Louis, for defendant-appellant.
    Sullivan & Joyce, St. Louis, for plaintiffs-respondents.
   WOLFE, Judge.

This is an action for breach of a contract to purchase real estate. It was alleged in the plaintiffs’ petition that the defendants entered into a written contract to buy from the plaintiffs certain real property in St. Louis County. It was further alleged that the defendants thereafter refused to buy the property and that the plaintiffs suffered damages in the sum of $2,175.68 for which they sought recovery. Defendant Theresa Huelsing filed a separate answer in which she denied signing the contract and pleaded the Statute of Frauds. The trial was to the court and the court found for the plaintiffs and awarded them a judgment against both defendants in the sum of $970.00. Defendant Theresa Huelsing prosecutes this appeal. It was alleged in the plaintiffs’ petition that the agreement was signed for the defendants “Theresa and Ann Huelsing” by defendant Ann Huelsing.

The only evidence offered was the testimony of plaintiff Ernie McQueen. He testified over the objection of Theresa Huel-sing that he offered his house for sale and that Ann and Theresa Huelsing came out to his house and agreed to buy it for $17,500.00. He stated that on September 16, 1961 the defendants both came to his house with their brother and his wife, and he stated that his wife (co-plaintiff) and his daughter were present in their living room and they met there for the purpose of drawing up a contract of sale. His daughter typed the contract which provided for an earnest money payment of $300.00. One-third of the amount was to be paid at once and the balance on September 18. The sale was to be consummated on October 16, 1961.

After the contract was typed the Mc-Queens signed it. The contract was given to Ann Huelsing to sign and her sister Theresa asked Ann to sign it for her. Ann then signed “Theresa and Ann Huelsing.” On September 18 the two defendants came again to McQueen’s house and paid the balance of $200.00 earnest money. McQueen said that about a week after the contract was signed Theresa Huelsing telephoned him and told him they could not go through with the contract as they had been unable to sell their house. He protested and she called him a few days later and said they would go through with the deal. The defendants did not come to see him on the closing date and he later sold the house to another party at a smaller price. The balance of his testimony related to damages he sustained by reason of the defendants’ failure to go through with the contract. Since no point is before us as to that it is unnecessary to set it out.

The defendants offered no evidence. As stated the court held for the plaintiffs; awarded them damages in the sum of $970.00, and only defendant Theresa Huel-sing has appealed.

It is contended that the Statute of Frauds, § 432.010, RSMo, V.A.M.S., bars recovery against Theresa Huelsing. The statute as it pertains to the defense asserted is as follows :

“No action shall be brought * * * upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them * * * unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall he binding upon the principal, unless such agent is authorized in writing to make said contract.”

There is no evidence of any signed authorization for Ann to act as Theresa’s agent nor evidence of any memo signed by the appealing defendant nor any contention that she signed one. The plaintiffs rely upon Theresa Huelsing’s ratification or acquiescence. The Supreme Court of Missouri had before it a similar situation in the case of Austin & Bass Builders, Inc. v. Lewis, Mo., 359 S.W.2d 711. In that case damages were sought against two defendants, who were the purported sellers of real estate, for their failure to convey the land they purportedly sold. And, as in the case here considered, one defendant denied that she had signed the contract. The court stated (l.c. 715):

“ * * * The law seems clear in Missouri that the statute means just what it says when it requires the authority of an agent in a ‘contract for the sale of lands’ to be in writing. Johnson v. Fecht, 185 Mo. 335, 83 S.W. 1077, 1079; Wussler v. Peterson, Mo., 270 S.W.2d 12; Hunt v. U. S. Fire Insurance Co. of New York, 239 Mo.App. 625, 193 S.W.2d 778; State ex rel. Sears, Roebuck & Co. v. Haid, 332 Mo. 701, 60 S.W.2d 41; Bokern v. Loud, Mo.App., 108 S.W.2d 1049. And these cases clearly indicate that the same rule, i. e., the necessity of a writing, applies to a ratification as well as to an original authorization.”

It is true that the defendants in the case of Austin & Bass Builders, Inc. v. Lewis, supra, were sellers while in this case the defendants are buyers but this is of no importance as the statute applies with equal force to both the purchasers and sellers of real estate. State ex rel Sears, Roebuck & Co. v. Haid, 332 Mo. 701, 60 S.W.2d 41.

The defendant Theresa Huelsing did not sign the contract. She authorized no one in writing to sign it for her nor did she in writing ratify the contract. Under the statute and its clear construction in the case of Austin & Bass Builders, Inc., above quoted, the appellant could not be held to the contract when she raised the Statute of Frauds.

The respondents seek to support the judgment on the theory of equitable estop-pel. We are cited to Fritsch v. National City Bank, Mo.App., 24 S.W.2d 1066. That case does not involve real estate or the Statute of Frauds. We are also' cited to Fleming v. Anderson, Mo., 232 S.W. 718. We fail to see how the respondents could be aided by this case. The court held that although the agent was authorized to sell for cash this did not authorize the agent to take in trade a horse and an automobile. It was held that the buyer knowing that the agent’s authority was in writing, “put him on inquiry” and he was obliged to ascertain the extent of the agent’s authority. One other case cited is Heath v. Beck, Mo.App., 231 S.W. 657. The Statute of Frauds was not raised in that case upon trial and the court held that it could not be raised for the first time on appeal. Nothing in any of these cases supports the respondents’ contention.

As for equitable relief the Supreme Court stated in Jones v. Linder, Mo., 247 S.W.2d 817, 1. c. 823:

“ * * equity does not profess to enforce a verbal agreement simply because it has been satisfactorily established.’ ”

It went on further to say at l.c. 826:

“ * * * to permit recovery of damages for loss of the benefits of a bargain, or damages computed by expenditures made in reliance on the oral contract where defendant was not benefited by those expenditures, would be to permit a recovery in an action prohibited by the statute of frauds, i. e., an action ‘ * * * charge any person * * * upon any contract made for the sale of lands, * * * unless the agreement * * * be in writing * * ”

The defendants here took nothing from the plaintiffs but, in fact, lost the $300.00 paid as earnest money.

For the reasons we have stated the judgment against Theresa Huelsing is reversed.

ANDERSON, P. J., and RUDDY, J., concur.


source: Caselaw Access Project

author: CLEMENS, Commissioner.

license: Public Domain

text:
    Lorraine A. DePUNG, Plaintiff-Respondent, v. CITY OF ST. LOUIS, Defendant-Appellant.
    No. 32858.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.
    Thomas F. McGuire, City Counselor, John J. Fitzgibbon, Assoc. City Counselor, St. Louis, for defendant-appellant.
    Robert A. Cedarburg, Derrick & Holderle and Tyree C. Derrick, St. Louis, for plaintiff-respondent.
   CLEMENS, Commissioner.

The plaintiff motorist, Mrs. Lorraine A. DePung, was injured when she drove off the street and into a tree while trying to dodge a partly lighted barricade and excavation in the defendant City’s street. She got a $2,000 verdict and judgment. The City has appealed, challenging the sufficiency of plaintiff’s evidence to show that the City had constructive knowledge of the dangerous condition long enough to impute negligence to the City in failing to remedy the condition.

The parties are in accord about the underlying principles of the City’s liability. Neither questions the principle that a city is not an insurer for the safety of persons using its streets and is liable only for failing to use ordinary care to keep streets in a reasonably safe condition. (Keen v. City of St. Louis, Mo.App., 189 S.W.2d 139 [5].) Nor do the parties question the principle that it was incumbent on plaintiff to prove the dangerous condition existed long enough to warrant an inference that the City should have known of it and thereafter had time, in the exercise of ordinary care, to remedy it. (Glenn v. City of Springfield—Mo., 254 S.W.2d 632 [4].) As will be seen, plaintiff assumed that burden by her verdict-directing instruction. The parties differ, however, about the amount of time that was in fact available to the City before the accident to discover and remedy the dangerous condition. We conclude that the time available was approximately half an hour and we recite the verdict-consistent evidence on which we base that conclusion.

Bates Street runs east from Grand Avenue through a residential neighborhood. It is 31 feet wide, straight, level and flanked by trees and dim street lights. Several months before Mrs. DePung’s accident the City had repaved Bates Street with a layer of asphalt. The Metropolitan Sewer District (MSD) maintained a sewer under the center of the street, and manholes gave access to the sewer. In repaving Bates the City had intentionally covered these manholes and then spotted each one for MSD. In due time MSD uncovered the manholes and raised them to the new grade by pouring fresh concrete around each one. Then the manholes were barricaded and lighted by MSD for several days while the concrete hardened. City street supervisors inspected MSD’s work from time to time, and the City was to repave around the manholes when MSD was finished with its work. Mrs. De-Pung was injured during MSD’s phase of the work. So much for the general conditions.

Mrs. DePung gave a precise account of the accident. At 10:30 p. m. she was driving east on the south side of Bates Street. This was the first time she had driven on Bates. Parked cars lined both sides of the street. Mrs. DePung’s headlights lit the street for about 100 feet ahead. Two hundred feet ahead of her, Mrs. DePung saw a flickering red light on the north side of Bates (on her left-hand side) and thought someone was working on that side of the street. When 20 to 30 feet away, Mrs. DePung saw the excavation and barricade in the center of Bates. Trying to avoid this, she braked and swerved to her right. Although she missed the barricade, her car ran over the curb and into a tree on the south side of the street. The barricade straddled the manhole, in the center of the street. It was 3 feet high and 7 feet long, made of unpainted, weathered wood. Its dull color blended with the gray-black asphalt pavement and a pile of dirt lying beyond the barricade. A red lantern hung from each end of the barricade. The lantern at the north end was dim and flickering; the lantern at the south end (Mrs. DePung’s right-hand side of the street) was unlit.

The evidence on the time element: Two residents on Bates Street testified for plaintiff. Each confirmed her statement that only one lantern was burning on the barricade at the time of the accident, but they differed about which one was lighted. Mrs. Virginia Humann had looked out to the street “half an hour to an hour, perhaps” before the accident. She saw only one lighted lantern on the barricade; she was positive of this but vague about the location of the barricade with reference to the center of Bates Street. At that time Mrs. Humann thought the one lighted lantern was on the south side of the street. (On cross-examination she stated definitely that the lighted lantern was on the south side of the street.) The other resident, Mrs. Mabel Buchrucker, said that MSD workmen had worked at each manhole two or three days; that they put up barricades and lanterns at night; that on the night before the accident four lighted lanterns hung from the barricade. On the night of the accident Mrs. Buchrucker was listening to a news broadcast between 10 and 10:30 o’clock. Some time during the broadcast she heard motorists on Bates Street “putting on their brakes as though they were making quick stops.” Curious, she went to the window, looked outside and saw that the barricade had only one lighted lantern—on the north side (Mrs. DePung’s version). Mrs. Buchrucker started for her phone to report the condition to the police, and on the way she heard Mrs. DePung’s car hit the tree. Both Mrs. Buchrucker and Mrs. DePung’s husband (who came to the scene a few minutes later) said a policeman lighted the south lantern after the collision.

The sufficiency of this evidence must be measured according to plaintiff’s submission. (Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91 [4, 5].) Here is her verdict-directing instruction:

“Your verdict must be for the plaintiff if you believe:
“First, defendant permitted to be maintained a barricade on Bates Avenue at night without sufficient lights thereon to warn motorists of its existence, and
“Second, persons driving along said street exercising the highest degree of care were exposed to danger, and
“Third, defendant knew or by using ordinary care should have known of said danger, and
“Fourth, defendant failed to use ordinary care to remedy it, and
“Fifth, as a direct result of such failure, plaintiff was injured, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 4.”

The City challenges the sufficiency of the evidence to meet the third paragraph: the City’s constructive knowledge of the dangerous condition. The plaintiff and the City give opposite interpretations of the plaintiff’s evidence. Plaintiff contends there was no evidence that the south end of the barricade was ever lighted. The City, relying on Mrs. Humann’s statement that it was the south lantern that was burning before the accident, contends there was no evidence that the south light was out until the moment Mrs. DePung drove up. Plaintiff and defendant cite cases based on these extreme versions. We believe the plaintiff’s evidence warrants neither extreme view but lies between.

We conclude that the substantial evidence is that the lantern on the south side of the barricade was unlit for not more than half an hour before the accident. This time is calculated on the testimony of two witnesses: Mrs. Humann said that “half an hour to an hour, perhaps” before the accident only one lantern was burning, but she said it was the south lantern. And Mrs. Buchrucker said that while listening to the ten o’clock news she heard cars making quick stops (an inference that for this half-hour period one of the lanterns was unlit); that a moment before the accident—about 10:30—she looked outside and saw that the north lantern was lit and the south lantern was unlit.

This view of the evidence brings us to the crucial question of law: Was the City negligent by failing, for thirty minutes, to discover and remedy the dangerous condition caused by the unlighted lantern on the south side of the barricade? We say no.

The circumstances surrounding a discoverable, dangerous defect may warrant an inference of municipal negligence by failure to discover and remedy the danger. But in Irwin v. Kansas City, 173 Mo.App. 711, 160 S.W. 30 [5], the court said: “No fixed rule can be established as to the exact length of time a defect must have continued to justify the presumption of knowledge in time to have remedied it before the injury occurred, but each case will depend on the facts peculiar to it. Such period would necessarily vary and depend on the conspicuity of the defect and the amount of travel upon or extent to which the street is used.” See, also, Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1045 [7], and Beauvais v. City of St. Louis, 169 Mo. 500, 69 S.W. 1043, 1. c., 1044.

Determination of the ultimate fact of municipal negligence rests primarily with the jury, .but this determination does not escape judicial scrutiny. Thus, it was said in Nimmo v. Perkinson Bros. Const. Co. (and the City of St. Louis), Mo., 85 S.W.2d 98 [4, 5] : “In a particular case the attending circumstances may be such, and the time shown to have elapsed, between the first existence of the defect and the occurrence of the injury, so long that the court may be warranted in imputing timely notice of the existence of the defect to the city as a matter of law. [Citing cases.] On the other hand, the circumstances may be such, and the time intervening between the occurrence of the defect and the happening of the injury so short, that the court may be justified in declaring as a matter of law that the city cannot be charged with timely notice of the existence of the defect. [Citing cases.] But in order that the court may be warranted in treating the issue of timely notice to the city as a matter of law, the uncon-tradicted evidence must be of such a clear and convincing character that only one conclusion can be fairly and rationally drawn from it.” See, also, Irwin v. Kansas City, supra, and McQuillin’s Municipal Corporations (1967), Vol. 19, § 54.113.

This question of whether the time and surrounding circumstances suffice to warrant a jury’s imputing negligence to a municipality is not new to our courts. Four cases are based on closely comparable facts. Two upheld the jury’s right to infer negligence ; the other two held the court should have declared as a matter of law that the facts did not warrant an inference of negligence.

In Scanlan v. Kansas City, 223 Mo.App. 1203, 19 S.W.2d 522, the plaintiff walked into an iron band that had sprung loose from a utility pole adjoining a sidewalk in the heart of the downtown commercial district, within view of a city policeman. The band had been noticeably loose for several weeks before it broke. For almost four hours before the plaintiff was hurt, it stuck qut into the sidewalk. In affirming the plaintiff’s judgment the court said: “ * * * we think that the jury could find that 3 hours and 45 minutes was sufficient time within which the city should have discovered and remedied the situation of the iron band in its bent and twisted condition.” In Sutter v. Kansas City, 138 Mo.App. 105, 119 S.W. 1084, the plaintiff fell over bricks scattered by children at play on a city sidewalk. Although on the night plaintiff was injured the bricks had been on the sidewalk only one hour, on previous nights children had repeatedly scattered bricks on the sidewalk. The court held the question of sufficient notice to the city was properly submitted to the jury. Thus, in each of these cases the time available to the city to discover and remedy the defect was considerably longer than the 30-minute period here.

By contrast, in Lampert v. Laclede GasLight Co., 14 Mo.App. 376, 397, the plaintiff was injured by walking into a lamp post fifteen minutes after the time for lighting street lamps. In reversing plaintiff’s judgment the court said: “* * * there remained an interval of but fifteen minutes between that time and the time of the accident in which to attend to this duty. It'ought not to have been left to the jury to say that this was a reasonable time. The court ought, as requested by the defendant, to have instructed the jury as matter of law, that it was not a reasonable time.” Again, a plaintiff’s judgment was reversed in Miller v. Kansas City, 157 Mo.App. 533, 137 S.W. 998. There the plaintiff was injured by a falling signboard that had been standing loose near the sidewalk for 15 to 30 minutes. On appeal it was held that the trial court should have declared as a matter of law that there was no constructive notice to the city. (The court cited out-of-state cases where the time of notice varied from a few minutes to an hour and the time had been held insufficient to infer constructive knowledge.) Thus, in these two cases, where the time element was comparable to ours, the facts were held inadequate, as a matter of law, to warrant an inference of municipal negligence.

As said in the Nimmo case, quoted above, there are judicial limitations upon the right of a jury to infer that a municipality was negligent in failing to promptly discover and remedy a dangerous condition. As said in McQuillin’s Municipal Corporations (1967), Vol. 19 § 54.113: “But in determining how speedily a municipality should be required to act to avert accidents, ‘a limit must some time be reached, where the period between discovery of the defect and the accident is so short that a jury should not be allowed to say, as a question of fact, that due diligence had been lacking.’ ” (Quoting City of Portsmouth v. Houseman, 109 Va. 554, 65 S.E. 11.) We consider here that the dangerous condition had existed no more than half an hour, that the barricade was in a lightly traveled street in a residential neighborhood, and that the incident occurred at night, when most city employees would be off duty. Considering all this, we conclude that a limit has been reached when the jury should not be allowed to say that due diligence was lacking. To hold otherwise would be little short of making the City an insurer against all defects. The trial court should have granted the City’s motion for a directed verdict.

It appearing that the factual issue of constructive knowledge was fully developed, there is no occasion for a new trial. Lance v. Van Winkle, 358 Mo. 143, 213 S.W.2d 401 [10,11], And this disposition of the case relieves us from considering the City’s further contention that Mrs. DePung was contributorily negligent as a matter of law. The judgment will be reversed and the cause remanded, with directions to enter a new judgment for the defendant.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the judgment is reversed and the cause remanded, with directions to enter a new judgment for the defendant.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.


author: OSBORNE, Judge.

text:
    Zackary Taylor LUMPKINS and Johnny Blankenship, Jr., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 1, 1968.
    Don B. Mills, Barbourville, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   OSBORNE, Judge.

This is an appeal from a judgment of the Knox Circuit Court rendered upon a jury verdict convicting appellants of possession of alcoholic beverages in local option territory for the purpose of sale, KRS 242.230. Appellant Lumpkins was convicted for a second offense, Blankenship for a first offense.

Appellants make several contentions of error relative to the sufficency of the evidence to support the judgment, which we believe to be without merit. They also contend that the court committed error in directing one of the appellants to answer certain questions pertaining to a previous conviction, stating that this amounted to forced testimony in violation of the appellant’s constitutional rights under the fifth amendment. This contention overlooks a well-settled rule that when an accused takes the stand in his own defense, he thereby subjects himself to cross-examination and waives the right of self-incrimination for all matters pertaining to the prosecution. Here the questions were pertinent to the offense charged.

Appellants seriously contend that the search warrant under which their property was searched was invalid and therefore the evidence obtained in this search should have been suppressed. A pretrial motion for the suppression of this evidence was made and was overruled by the trial court. The search warrant which was issued by the trial judge appears in the record, however, the affidavit executed by an agent for the Alcoholic Beverage Control Board was not introduced in evidence. Appellants seriously contend that this affidavit was deficient. The affidavit appears nowhere in this record and there is no showing whence it went.

Had appellants adequately demonstrated in their motion to suppress the evidence that there was a strong probability the affidavit was deficient, the trial judge should have sustained the motion and conducted a hearing before the trial. See Freeman et al. v. Commonwealth, Ky., 425 S.W.2d 575, rendered October 20, 1967, wherein we held the right to a hearing on a motion to - suppress was discretionary with the trial judge. However, here the record does not disclose anything in support of the motion. There is no testimony by affidavit or otherwise in support of the allegation contained in the motion. For this reason we have no alternative but to hold that the trial court- was within its discretion in overruling the motion. Where a search warrant is regular upon its face and sufficient in its terms, there is a presumption that it is valid as is the case with any other legal process. If this validity is attacked, the burden of producing evidence is upon the one who attacks it. And, when a defendant in a criminal action attacks the validity of a search warrant, he must assume the burden of proving every ground of the defense. The affidavit upon which a search warrant is issued is a part of the record in the judicial proceeding and must, be kept on file as such and therefore is accessible to the defendant, who may by rule or otherwise require its production on his trial. If the affidavit is lost or destroyed this fact may be shown, whereupon the defendant may prove by parol evidence the contents of the affidavit. As appellants in this case did not avail themselves of these proceedings by showing the affidavit deficient, they cannot now be heard to complain. Boles v. Commonwealth, 304 Ky. 216, 200 S.W.2d 467; Gray v. Commonwealth, 198 Ky. 610, 249 S.W. 769; Terrell v. Commonwealth, 196 Ky. 288, 244 S.W. 703.

The judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Clarence WELLS et al., Appellees.
    Court of Appeals of Kentucky.
    March 8, 1968.

      Robert Matthews, Atty. Gen., Frankfort, H. C. Smith, Asst. Atty. Gen., Department of Highways, Frankfort, C. E. Skidmore, Department of Highways, Frankfort, for appellant.
    Roger A. Byron, Owingsville, for appel-lees.
   STEINFELD, Judge.

To acquire the right of way for the construction of Interstate Highway 64 in Bath County the Commonwealth condemned 7 acres of the 161.3-acre farm owned and operated by Clarence Wells and Grace Wells, his wife. The taking resulted in severing and landlocking 20.82 acres of the remainder. The commissioners in the county court reported that the owners were entitled to $10,655.00. The Commonwealth appealed and a circuit court jury awarded $8,400.00. From a judgment entered pursuant to that verdict the Commonwealth appeals. Its only contention for reversal is that “the verdict is excessive for the reason it is not supported by competent and relevant evidence of probative value.”

All witnesses admitted that the entire farm was of excellent quality. The improvements consisting of two barns, a residence, one pond, garage, smoke house, corn-crib, sheds and an old abandoned house were located on the remaining 133½ acres. None were taken and the 2.53 acre tobacco base was not disturbed. The access to the property, which was through another farm, remained the same as before. One pond was located on the tract taken.

Witnesses for the Commonwealth stated values as follows:

“Before Value After Value Difference
Mr. Allen Park $51,000 $46,500 $4,500
Mr. William E. Bacon 53,000 48,000 5,000”

The comparable sales which the valuation witnesses used to support their appraisal were as follows:

“230 acres sold @ $293 per acre
118½ acres sold @ $341 per acre
235 acres sold @ $278 per acre
210 acres sold @ $214 per acre
122 acres sold @ $300 per acre
161 acres sold @ $270 per acre”

Mr. Henry L. Jones, whose qualifications were not and could not have been questioned, was the only witness who testified for the owners. He stated that the value before the taking was $50,000.00 and the value thereafter was $40,000.00. The five principal factors which he took into consideration in describing the things that happened to the farm that caused him to decrease the value were:

“(1) seven acres of land gone
(2) 20.82 acres landlocked
(3) pond gone
(4) farm road cut off
(5) utility of the farm decreased”

He said that the pond taken was well located for the watering of stock and was a good pond and that it fitted into the farm arrangement; that the cutting off of the road within the farm affected the utility of the land as it had provided an entrance to Slate Creek for watering stock or obtaining water, and that the steep banks elsewhere along the Slate Creek would prevent or greatly hinder any other arrangement for a road to the creek. Such factors may be considered as they affect market value. Com., Dept. of Highways v. Burns, Ky., 394 S.W.2d 923 (1965) and Com., Dept. of Highways v. Sea, Ky., 402 S.W.2d 842 (1966). He explained that some rearrangement of fencing would be necessary. Properly he discussed sales which he had considered as comparable. See Com., Dept. of Highways v. Sellers, Ky., 421 S.W.2d 581 (1967).

To support its claim that the verdict was not supported by competent evidence of probative value the Commonwealth relies upon Com., Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922 (1964), in which we held that even though “ * * * the verdict is within the range of the value figures * * * this alone is not sufficient to foreclose inquiry whether the verdict is palpably excessive; neither does it preclude testing whether the verdict is adequately supported by evidence of probative value.” We then said that * * * The high figures testified in behalf of the appellees simply are not borne out by the proof from the very witnesses who gave them.” It also relies on Com., Dept. of Highways v. Oliver, Ky., 385 S.W.2d 173 (1964), in which we held that if “ * * * 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 will not permit the verdict to stand.

The trial court considered this contention on a motion for a new trial. Com., Dept. of Highways v. Stocker, Ky., 423 S.W.2d 510 (decided January 12, 1968). The testimony of Mr. Jones which was based upon proper factors, furnished competent and relevant evidence of probative value sufficient to support the verdict. No error was committed in refusing to grant a new trial on the claim that the verdict “is excessive for the reason that it is not supported by competent and relevant evidence of probative value.”

The judgment is affirmed.

All concur.


text:
    John ANGEL and Mrs. Ivo Caldwell, Jr., Appellants, v. Harold MOBERLY, R. Carey Graham and A. B. Meade, Members of and Constituting the Alcoholic Beverage Control Board of Kentucky, and Charles Louis Simms, Appellees.
    Court of Appeals of Kentucky.
    March 1, 1968.

      Robert M. Spragens, Lebanon, George M. Catlett, Frankfort, for appellants.
    Edward F. Prichard, Jr., John Darnell, Frankfort, for appellees.
   STEINFELD, Judge.

Charles Louis Simms applied for a retail malt beverage license. KRS 243.040. Upon refusal of the County Administrator to approve said application an appeal was taken to the Alcoholic Beverage Control Board. KRS 241.200. After hearing, the Board ordered the license to be issued upon certain conditions. The protestants appealed to the Franklin Circuit Court. KRS 243.560. From a judgment affirming, this appeal was taken. KRS 243.590. We affirm.

The appellants, who are among those who protested the issuance of the license, contend that the notice published by the applicant stating his intention to apply for a retail malt beverage license did not comply with KRS 243.360(1) which required an adequate description of the premises for which the application was made. The notice read:

“Notice is hereby given that Charles Louis Simms, Loretto, does make known his intention to apply for a Retail Malt Beverage License for the premises to the tavern known as Simms’ Tavern and located 12 miles from Lebanon on the North side of Kentucky Highway 208 in Marion County, Kentucky.”

They cite Durbin v. Wood, Ky., 369 S.W.2d 125 (1963) which held “the purpose of this subsection of the statute is to notify the public of the proposed use of specific property so that any member of the public is afforded an opportunity to file a protest against the issuance of a license for that location.” The Board held the notice sufficient and obviously it was. A petition protesting the issuance of the license and containing 48 signatures was filed with the Board. The addresses opposite some of the signatures show that there was general knowledge in the community that the application had been made. The field report of the investigator employed by the Department of Alcoholic Beverage Control revealed that he had no trouble locating the property. He testified: “I went out to the neighborhood of where the place was to be located and asked the neighbors in that vicinity, within a radius of between a half mile and one mile” if they were for or against the issuance of the license. He read into the record the names of the people he saw and where they lived.

Filed with the application was an option which gave applicant the right to purchase the subject property. It fully described the premises for which the application had been made. Under the foregoing circumstances we are unwilling to say that the Board was in error in holding that “the description sufficiently identified the general location of the premises to enable any interested person to form an opinion as to whether the location would be objectionable and to enable the presentation of appropriate objections.” Barnett v. Portwood, Ky., 328 S.W.2d 164 (1959).

Angel and Caldwell contend that Simms made a false material statement in his application in violation of KRS 243.450 (1) (c). That statute requires the denial of the license, “If the applicant has made any false material statement in his application”. A question asked on the application form was, “Is the entire license fee paid by applicant and by no other person ?” The answer was “Yes”. He admitted that the $25.00 check which accompanied his application “came out of the store. It was a partnership account, but like I said, my wife and I work in the store and we work the money situation out between us.” The Board was justified in finding that there was no evidence of any intention on the part of appellee to deceive it and that it was not deceived.

Appellants next assert that the premises for which the license was sought “are not entitled to be licensed * * * ”. They rely upon KRS 243.220(1) which provides :

“No license for the sale of alcoholic beverages at retail shall be issued for any premises unless the applicant for the license is the owner of the premises or is in possession of the premises under a written lease for a term of not less than the license period.”

They argue that Simms neither owned nor leased the premises and that he had “merely an option to purchase the land.” Appellees answer that “it has long been the Board’s custom to approve the issuance of a license in cases where the applicant holds an option to purchase the premises or where the applicant holds a lease contingent upon the issuance of a license.” In such cases the Board approves the application but withholds the actual issuance of the license until the requirements of the statute have been fulfilled. That is what occurred in the case before us. This is necessary to protect an applicant from assuming a substantial financial outlay or making a contractual commitment before he knows whether a license will be granted. This is not a violation of the statute. Reinsperg v. Reed, 313 Ky. 683, 233 S.W.2d 412 (1950).

The last point asserted by the protestants is that the granting of the license for these premises would result in a traffic hazard and be contrary to the public interest. They rely on KRS 243.450(2) which reads:

“A license that might be issued under KRS 243.020 to 243.670 may be refused by a state administrator for any reason which he, in the exercise of his sound discretion, may deem sufficient.”

They cite Moberly v. Bruner, Ky., 382 S.W.2d 406 (1964) in which we said that “ * * * the legislature has, by the enactment of KRS 243.450(2), taken cognizance of a twilight zone within which the administrative agency must determine if any particular license should be granted when substantial reasons exist why its issuance would not be in the public interest.” In the case now before us the Board heard testimony of six witnesses, examined photographs and found that there was no substantive evidence produced that would justify it in denying under the provisions of KRS 243.450(2) the license sought. It appears to us, as it did to the lower court, that the decision of the Board was not contrary to the statute or the abuse of its discretion. Reinsperg v. Reed, supra. Alcoholic Beverage Control Board v. Woosley, Ky., 367 S.W.2d 127 (1963) and Moberly v. Johnson, Ky., 376 S.W.2d 529 (1964).

The judgment is affirmed.

All concur.


author: MILLIKEN, Judge.

text:
    Beulah MOORE, Appellant, v. Mabel WHEELER et al., Appellees.
    Court of Appeals of Kentucky.
    March 1, 1968.

      J. K. Wells, Eugene C. Rice, Paintsville, Vincent & Rice, Ashland, for appellant.
    H. R. Wilhoit, Wilhoit & Wilhoit, Gray-son; J. W. McKenzie, Ashland; and G. C. Perry, III, Paintsville, for appellees.
   MILLIKEN, Judge.

On March 12, 1965, shortly after 1:00 p. m., E.S.T., three sisters, Beulah Moore, Mabel Wheeler and Jewell Yates were traveling north in Beulah Moore’s car on U.S. Highway 23 in Boyd County, Kentucky. U.S. 23 is a twenty-four-foot wide, blacktopped, straight highway at the point of the accident and has a ten-foot wide gravel berm on each side of the highway. Appellant Moore was driving, Mabel Wheeler was in the middle of the front seat, and Jewell Yates sat by the front right door of the Moore 1960 Chevrolet station wagon. The weather was clear, the road dry and its surface good. The ladies were heading for Catlettsburg, Kentucky, but at a point approximately ten miles south of that city, on a fairly straight stretch of Highway 23, Beulah Moore, while attempting to pass a trailer truck driven by Charles Crockett, lost control of the car which caused it to leave the road, cross a drainage ditch, strike an embankment and turn over twice. The accident killed Jewell Yates, who was thrown out of the car, and badly injured Beulah Moore and Mabel Wheeler.

This litigation followed with: Beulah Moore suing Charles Crockett (the driver of the tractor trailer), F. R. Crockett (the father of Charles Crockett and the owner of the tractor), and Foremost Dairies of the South, Inc. (owner of the trailer) ; Howard Yates, administrator for Jewell Yates, suing Beulah Moore, the Crocketts and Foremost; and Mabel Wheeler suing Beulah Moore, the Crocketts and Foremost. All these actions, being related, were joined for trial. The judge directed a verdict for Foremost Dairies; the jury absolved the Crocketts and found against Beulah Moore in favor of Mabel Wheeler for $10,000.00, and in favor of Howard Yates, administrator, for $3,075.00. Beulah Moore appealed the judgments against her and the administrator of Jewell Yates cross-appealed.

Beulah Moore’s version of the case was that she was forced off the road by the Crockett truck when she attempted to pass it. Her argument in this action was that she should not be held responsible for her acts, even though they might be negligent ones, because they were committed instinctively when she was faced with a “sudden emergency”, created by the actions of the Crockett truck. The authority for this theory is Moreland’s Administrator v. Stone, 292 Ky. 521, 166 S.W.2d 998 (1942).

Unfortunately for appellant Moore, the testimony given during the trial did not bear out her contention that the emergency was not of her making. The testimony of Crockett and Mrs. Wheeler justified an inference that appellant Moore could have averted the crash by dropping back into her lane behind the truck. Trooper James Boyle of the Kentucky State Police testified that Mrs. Moore was undoubtedly going at a high rate of speed when she left the road and Charles Crockett denied, as did his co-driver Childers, that the truck ever swerved into the left hand lane at any time during' the sequence of events leading up to and including the accident. The jury weighed the testimony and the evidence and chose to-believe Charles Crockett.

The appeal of Beulah Moore is based on several grounds. The first of these is that Nora Gee Thompson was a witness that appellant Moore wanted for the trial but could not find. This witness’ purported testimony was summarized in an affidavit and it purportedly implied that the Crockett truck was at fault in the accident. Appellant Moore sought to read the affidavit into the record or have the case continued until Nora Gee Thompson could be found. The court refused both requests and Beulah Moore argues that under CR 43.03 the court had to either continue the case or allow the affidavit to be read. She cites no authority for this position and Clay’s Kentucky Practice, Vol. 7, mentions nothing to support this argument. The trial court offered its assistance in getting the witness to the trial but appellant Moore acted no further on the matter even though there was enough time to do so. We conclude that the trial court properly excluded the affidavit, for if it portrayed the testimony Nora Gee Thompson would give it was immaterial. The witness was a waitress who had seen Crockett and Childers in a restaurant shortly after the accident. The affidavit stated that she heard them talking and “they said the (Moore) station wagon was behind them * * * and wrecked; that they appeared to be worried and upset and they went on without stopping after the accident.” The fact is that Crockett did stop after the accident and attempted to give aid to the injured women.

Trooper Boyle’s testimony on the speed of the Moore car at the scene of the accident was also objected to by counsel for appellant. Eldridge v. Pike, Ky., 396 S.W.2d 314 (1965) is relied on as authority for the proposition that just being a member of the Kentucky State Police does not qualify one to give opinion evidence as an expert. Appellant is correct as to the Eldridge holding, but here the record shows that Trooper Boyle had been a member of the force for six years, had investigated more than 450 accidents, and had received special schooling on the various techniques and procedures involved in investigating traffic accidents. He presented credentials beyond just being a member of the force which distinguishes this situation from Eldridge v. Pike. Also Boyle was on the scene immediately after the accident occurred which distinguishes our facts from those in appellant’s case of Redding v. Independent Contracting Co., Ky., 333 S.W.2d 269 (1960), where the officers arrived more than thirty minutes after the accident. Boyle’s experience with traffic accidents also distinguishes this case from Redding.

The trooper estimated the speed of the Moore station wagon at the scene of the accident as being between seventy and eighty miles per hour but admitted that this was a rough estimate. As mentioned above, Beulah Moore objected to Boyle’s testimony about the speed of the car on grounds that he was not an expert, but in Kentucky Power Company v. Kilbourn, Ky., 307 S.W. 2d 9 (1957) we said: “The decision as to qualification of the witness as an expert rests in the discretion of the trial court.” We think Officer Boyle was well qualified to give a knowledgeable opinion of what occurred and whether speed caused the occurrence. In Eldridge the officer gave an opinion about which car entered upon a bridge first and there was no supporting data to justify an opinion on that issue. In the case at bar there were lengthy skid marks on the highway and on the berm as well as the position and damage to the station wagon which certainly would qualify as a basis for the trooper’s opinion about the speed of the station wagon at the time. In summary, Boyle had been systematically trained for the very work he did here; he was far better qualified in his field than a novice. Wigmore, Evidence, Sec. 556. The particular experiential qualifications of a witness are invariably determined by the trial judge, and his decision ordinarily will not be disturbed on appeal. Wigmore, Evidence, Sec. 561.

Another issue presented by Beulah Moore for review concerns the court’s decision in denying her motion for a directed verdict at the close of her testimony. The evidence shows that no living person saw the accident except Beulah Moore, Mabel Wheeler, Charles Crockett and Tom Child-ers. Their testimony did not agree on the cause of the accident. Beulah Moore claimed the truck swerved into her lane, forcing her off the road. Mabel Wheeler testified that the truck swerved over but implied that Mrs. Moore could have avoided the difficulty by slowing up. Charles Crockett strongly denied swerving into the left lane forcing Mrs. Moore off the road. He stated that the Moore car approached him from the rear at a fast rate of speed and then veered off into the embankment; he advanced no theory as to what could have caused the accident. The testimony of Trooper Boyle concerning the speed of the Moore vehicle was further evidence which deserved consideration by the jury. In short, this was a proper matter for the jury to decide.

Counsel for Beulah Moore offered an instruction on “sudden emergency”. The court refused to give it and she contends that this deprived the jury of any opportunity to make a decision on her theory of the case. In Clay, Kentucky Practice, Vol. 7, p. 90, comment 2 to CR 51, it is pointed out that the trial court must instruct so as to provide reasonable guidance to the jury, but it is “apparently not bound to instruct on every possible phase of the case.” Mrs. Moore admittedly had a clear, straight road ahead, had followed the truck for some distance, had seen other cars pass it without trouble before she attempted to pass it, and had she “eased” out from behind the truck as she claimed she did she would not have left her skid marks diagonally across the highway. Whatever emergency Mrs. Moore encountered was contributed to by herself and was not the kind which would have entitled her to such an instruction. See Stanley’s Instructions, Sections 123 and 592. Furthermore, instruction “2D” stated the truck’s duty to stay on its side of the road and not to change its course without proper signals.

Appellant Moore also claims the court erred in refusing to give her instruction designated BCM No. 3. However, instruction No. 2 given by the court achieved the same purpose by setting forth the duties required of Charles Crockett, the driver of the truck, and asking a decision on whether they were complied with.

Another point brought up by appellant Moore concerns Mabel Wheeler’s award for future loss of wages for which she did not specifically state a claim in her complaint. It is argued that the complaint did not allege a claim for any loss of wages beyond one year and that the court’s instruction No. 10 erroneously permitted such additional recovery. The Wheeler complaint did allege that her ability to earn money in the future was permanently impaired; and in the last paragraph she demanded judgment in the sum of:

“ * * * $3,500.00, loss of wages; and $45,000.00 for present and future pain and suffering, permanent injuries and permanent impairment of ability to earn money; for a jury trial; for costs; and for any and all other relief to which she may appear entitled.”

Beulah Moore also objects to the jury’s award of $7,259.77 for loss of future wages. She argues that this figure is excessive and not warranted by the proof presented. Mabel Wheeler was examined by two doctors, Donahoe and Holbrook, and their conclusions conflicted. She then placed herself under the care of Dr. Holbrook who performed a more extensive examination than Dr. Donahoe, complete with x-rays and tests, and he found compression fractures of the fifth and sixth thoracic vertebrae plus a chronic arthritic condition in the back. Dr. Holbrook attended Mrs. Wheeler until her fractures healed. He believed she could expect complete recovery if she followed his advice. This physician testified that she would experience some discomfort from time to time because of the arthritis in the back, but that the arthritic condition had not been caused by the accident. Mrs. Wheeler had been a $30.00 a week waitress before the accident and the doctor felt that with adherence to a program of exercises, which were designed to strengthen her back, she could resume that line of work in the near future. According to Mrs. Wheeler her work was rather hard — much harder than that expected of the average waitress.

Counsel for Beulah Moore asserts that the testimony elicited by the Crockett’s counsel, which deals with why sister sued sister, was really an attempt to inform the jury that Beulah Moore had liability insurance. The sisters were pictured by counsel for Crocketts as being money hungry. In his closing argument counsel for the Crock-etts said:

“ * * * you know, if I were sitting on (this) jury, I wouldn’t hesitate to burn them up, I would write a big verdict against Beulah Moore alone just to teach them a lesson * * * they know what they are doing * *

No objection was made to this portion of the argument according to the supplemental record. In any event, we do not consider it prejudicial for it was merely counsel’s way of suggesting the possibility of collusion between the sisters in an effort to establish liability on the part of his clients, the Crocketts.

The total award to Mrs. Wheeler was $10,000.00 which included $1,200.00 for loss of earnings to the date of the judgment, $540.23 for medical expenses, $1,-000.00 for pain and suffering and $7,259.77 for loss of future wages. The last item obviously was reached by adding enough to the other three items to reach a total of $10,000.00. Mrs. Wheeler was 51 years of age at the time of the accident and had been a widow for fourteen years. She earned about $30.00 a week working as a waitress six days a week and would have had a life expectancy of about 25 years at the time she testified. The award for loss of future earnings approximated four and a half years’ wages at $30.00 a week. While this amount may appear generous in the light of her physician’s opinion that she ultimately would make full recovery from her injuries, we do not believe it is so excessive as to show passion and prejudice on the part of the jury in awarding her that much. In Dinsmore v. Baird, Ky., 325 S.W.2d 308 (1959) we reversed an award of $10,000.00 solely for pain and suffering caused by two fractured ribs, a fracture of the first ster-nal segment and a bruised knee on the ground that the verdict struck us “at first blush as excessive”, but this case affords no suitable criterion for concluding that the present award of $7,259.77 for loss of future earnings was excessive.

The next point on appeal is raised by appellee Howard Yates, administrator of the estate of Jewell Yates. He cross-appealed on the ground that the damages of $3,075.00 awarded to him for her death were inadequate. Of the total award, $1,-075.00 was for the funeral, leaving $2,000.00 for the two children of the widowed Jewell Yates. The administrator asserted that this award is the result of passion and prejudice on the part of the jury. Given the financial condition of Jewell Yates whose monthly earned income was no> more than $50.00, earned as a baby sitter, the award by the jury amounted to full pay for about forty months at the rate of $50.00 a month. At her age of 62, she had a life expectancy of approximately fourteen years and a working expectancy of less time than that. We cannot conclude that the award was patently inadequate.

The trial judge did not abuse his discretion in telling the jury to make a sincere effort to reach a verdict in the cases; he in no way told them what verdicts to bring in. We conclude that a fair trial was had by all the parties.

The judgments are affirmed on the direct appeal and on the cross-appeal.

All concur.


author: DAVIS, Commissioner.

text:
    Woodrow ARNETT, Appellant, v. Howard HENSLEY, Appellee. Howard HENSLEY, Appellant, v. Woodrow ARNETT, Appellee.
    Court of Appeals of Kentucky.
    March 8, 1968.

      Joe Hobson, Joe P. Tackett, Prestons-burg, for Woodrow Arnett.
    Scott Collins, Prestonsburg, for Howard Hensley.
   DAVIS, Commissioner.

This is an election contest involving the race for county court clerk of Magoffin County held November 2, 1965. On the face of the returns as originally tabulated, Woodrow Arnett, the Democratic incumbent county clerk, received 2,150 of the votes cast at the polls, plus 217 votes cast by absentee voters for a total vote of 2,367. Howard Hensley, the Republican candidate, received 2,207 votes cast at the regular polling places and only 67 of the absentee ballots for a total of 2,274, making Arnett the apparent winner by 93 votes if both the poll votes and absentee ballots are computed. It is to be observed that Hensley was 57 votes ahead of Arnett insofar as the count of the poll votes is concerned. Hensley filed a recount suit which resulted in a judgment reflecting no change in the tabulations as originally reported. Thereupon, Hensley instituted this contest action at the conclusion of which the trial court ruled that none of the absentee ballots could be considered by reason of “ * * * such gross irregularities in the conduct of the absentee voting as sufficient to render all of the absentee votes cast in that election void and none of such absentee ballots are counted or recognized in this judgment.” Pursuant to that finding, the trial court declared that Hensley was the victor in the race. Both Arnett and Hensley have filed separate appeals from the judgment, and Arnett has filed a cross appeal in the appeal of Hensley. We shall dispose of all of these appeals in this opinion.

Arnett presents several questions which we think may be summarized as: (1) Did Hensley’s complaint state a cause of action ? (2) Is Hensley precluded from challenging the absentee ballots because of his failure to file a written challenge before the zb-sentee ballot boxes were opened as prescribed by KRS 126.275 ? (3) Did Hensley make a judicial admission estopping him from questioning the legality of the absentee ballots? (4) Did Hensley violate the Corrupt Practices Act and thereby preclude his maintenance of this action? (5) Were all the absentee ballots invalid?

Hensley’s appeal charges that the court erred in refusing his proffered amended complaint seeking recovery of the emoluments of the office.

Arnett contends that the complaint was insufficient and should have been dismissed upon his motion for various reasons which we shall discuss seriatim:

(a) The contention is made that it was fatal for Hensley to denominate himself as plaintiff and Arnett as defendant in the complaint, because KRS 122.070 directs that a contest suit is to be filed in the circuit court of the county “ * * * where the contestee resides * * * ” in this type situation. It is maintained by Arnett that the caption of the pleading should have designated the parties as contestant and contestee, rather than plaintiff and defendant. We perceive no basis for so enshrining form over substance and have no difficulty in holding that the contention is utterly meritless.

(b) Hensley’s complaint did not specifically assert that Hensley received a majority of the legal votes cast, but it did allege that Hensley was duly elected and that all of the absentee ballots were illegal because of substantial violations of the statutes pertaining to absentee voting. Our examination of the complaint convinces us that it states a cause of action in these respects.

(c) Arnett attacks the complaint because it does not name any voter whose ballot is alleged to have been illegally cast. Reliance is placed upon Hodges v. Hodges, Ky., 314 S.W.2d 208, but that case is clearly distinguishable from the one at bar. In Hodges, there was an allegation that certain persons had voted illegally because they had failed to sign the comparative signature book, were improperly registered, or otherwise disqualified from voting. There was no allegation in Hodges that all of the votes were illegal nor even an allegation that the claimed illegal votes were sufficient in number to affect the election results. In that state of case, it was held that the failure to name the claimed illegal voters was fatally defective. In Ragan v. Burnett, Ky., 305 S.W.2d 759, it was specifically held:

“However, it is not always necessary to name specific voters when an election is being contested. Thus the names of particular voters are not of significance in a suit claiming violation of the Corrupt Practices Act, KRS 123.010 et seq. Goad v. Jackson, 270 Ky. 92, 109 S.W.2d 17. Nor where the entire election is challenged. Taylor v. Neutzel, 220 Ky. 510, 295 S.W. 873; Herald v. Turner, 237 Ky. 827, 36 S.W.2d 623.
“We have in the proper case disregarded all of the votes in a precinct where more than 20 percent of the total vote therein was shown to be illegal. Smith v. Jones, 221 Ky. 546, 299 S.W. 170. Obviously the names of individual voters are unimportant when an entire unit of votes of a particular class is nullified. It is then immaterial how any person in that class cast his vote, and naming some or all of the voters would serve no purpose.” Id. 305 S.W.2d 760.

Upon the authority of Ragan, we conclude that it was not necessary to name the alleged illegal absentee voters inasmuch as the entire vote cast by absentee ballots was challenged.

(d) Arnett next challenges the sufficiency of the complaint for its purported failure to specifically allege in what manner the statutes relating to absentee voting were violated. We need say only that the allegations of violations of the absentee voting laws are charged in general terms and specific terms — the specific terms including twenty-nine listed instances. We hold that the complaint was sufficiently specific.

(e) It is contended that the complaint is insufficient as respects its assertions that Arnett violated the Corrupt Practices Act, because it merely recites in general terms that Arnett violated KRS Chapter 123. Whether this was a sufficient allegation we need not say, as the trial court’s judgment was not based upon any violation of the Corrupt Practices Act.

Arnett contends that Hensley may not be heard to challenge the legality of any absentee ballot by reason of his failure to comply with KRS 126.275 which provides:

“The challenge of an absent voter’s ballot must be in writing and in the hands of the chairman of the board of election commissioners prior to the time the absent voter’s ballot box is opened.”

Admittedly, Hensley did not file a written challenge of any absent voter’s ballot prior to the time the absent voter’s ballot box was opened. We regard this as insignificant as respects the challenges made in this action. It seems plain that KRS 126.275 envisions challenges to individual absentee voters, not challenges to the legality of the entire balloting by absentee voters. To follow the reasoning urged by Arnett, in construing the statute, would lead to an absurd result. Kentucky Constitution, Section 6, directs that all elections shall be free and equal. Many irregularities in absentee voting could be indeterminable until after the opening of the absent voter’s ballot box. It is clear, we think, that the General Assembly did not intend KRS 126.275 to bar the type of challenges to absent voting as have been presented in this record.

It is contended that Hensley made a judicial admission as to the legality of the absentee ballots when he asserted in his recount suit that the integrity of the voting machines and the absentee ballots had been maintained. The difficulty with that position is that Hensley’s allegation was nothing more than a statement that the ballots to be recounted were in the same condition as they had been in when counted originally. The allegation of integrity of the ballots did not embrace any admission of legality of the ballots.

It is charged that Hensley violated the Corrupt Practices Act and therefore is barred from maintaining this contest action. The trial court heard evidence touching the issue as to whether Hensley had violated the Corrupt Practices Act but made no specific finding of fact as to whether he had so violated it. Certainly it is implicit in the trial judge’s finding in favor of Hensley’s election that no violation of the Corrupt Practices Act was ascribed to Hensley. The testimony seeking to convict Hensley of fatal violation of KRS Chapter 123 was far short of requiring the fact finder to so convict Hensley. We conclude that Arnett has failed to demonstrate that Hensley has violated the Corrupt Practices Act.

The determinative question is whether the record supports the finding that there were such gross irregularities in the conduct of the absentee voting as to render void all of the absentee ballots. The record reflects that there were many failures to comply with the statutory procedures governing absentee voting. We shall not undertake to recite all of the particulars in which Hensley contends that the law has been violated, but we shall enumerate some of the glaring defects which we consider cumulatively sufficient to sustain the trial court’s finding that all of the absentee votes were void.

KRS 126.225 directs that the county board of election commissioners and the county clerk, together with' interested candidates or their representatives, and representatives of the news media, beginning on the nineteenth day before an election, and during regular office hours, shall examine all applications for absent voter’s ballots in order to determine the voter’s right to make application, as well as the regularity of the form and method in which the application has been submitted. The same statute requires that the county clerk shall have the registration records available at such meetings and shall read aloud the name of each applicant so that the applicant’s registration may be checked if a challenge is made. The board of election commissioners of Magoffin County, as well as the contestee Arnett, incumbent clerk, failed to observe the mandate of KRS 126.225. The casual meeting of the election commissioners “four or five days prior to the election” was not substantial compliance with the provisions of KRS 126.225. At that time substantially all of the absentee ballots had been mailed out. The county clerk did not call out the names of the applicants, nor is there any suggestion that candidates and representatives of the news media had any opportunity or invitation to attend, as prescribed by KRS 126.225.

KRS 126.255(1) directs the county clerk to post a list of the names of persons who have filed applications for an absent voter’s ballot. The list is to be posted in a conspicuous place immediately following the deadline for filing applications. The record indicates that such a list was publicly available on the counter in the county clerk’s office, and it appears that there was substantial compliance with the statute in this respect. However, KRS 126.255(2) provides:

“Not less than ten days before the election the county board of election commissioners shall cause to be posted in a conspicuous place in the courthouse a list of the names of all those to whom absent voter’s ballots have been mailed. The board shall then furnish a list of the same to any candidate or his authorized representative upon demand.”

There is no contention that this provision of the statute was followed. The county clerk furnished a list to the precinct officers at the polling places reflecting the names of persons who had applied for absentee ballots, but this procedure did not satisfy the requirements of the just quoted statute.

Hensley complains that the board of election commissioners of Magoffin County failed to abide by KRS 116.050 in that no secretary was chosen by it, nor did it keep any record of its proceedings. It is admitted in the record that the board did not follow the requirements of the statute. We are not to be understood as holding that this dereliction, standing alone, would invalidate the absentee votes, but we call attention to it as reflective of the conditions surrounding the entire voting procedure.

KRS 126.240 requires the county clerk to provide himself with one or more legal ballot boxes before sending out any absent voter’s ballots. The same section of the statute directs that the ballot boxes shall be locked in the presence of the board of election commissioners and one of the keys shall be delivered to each member of the commission. KRS 118.230 prescribes specifications for legal ballot boxes and directs that a ballot box shall be provided with three strong padlocks different in combination so that the keys of one lock will not unlock either of the other two locks. The provisions of this statute were not observed, inasmuch as one of the two ballot boxes provided was not provided until election day — long after the ballots had been sent out-and it had only one lock. The other box which was provided before the ballots were sent out was not prepared by the county clerk but by two of the election commissioners. They unlocked the box with keys which they had had in their possession since Arnett had taken office nearly four years before. Only two locks were placed on the box, and there were two keys to each lock.

KRS 126.260 requires the county clerk to keep the absentee ballot boxes in a secure and substantial place with a sufficient guard over them in a careful manner. The first box prepared was maintained in the vault in the clerk’s office. The indices for deeds and other recorded documents were also maintained in the vault, which was open for public use during office hours. No guard, as such, was provided for the box until after the polls had closed.

The absentee ballots were not counted until the day after the election, although KRS 126.270 would seem to indicate that the absentee ballots should be tabulated before canvassing the votes cast at the polls. The sheriff of Magoffin County was an ex officio member of the board of election commissioners; his mother was the Democratic member, and Frank Prater, the Republican. The sheriff’s brother was a candidate for county judge on the Democratic ticket in the election here involved. In describing the procedure followed when the count of the absentee ballots began, the sheriff testified:

“Well, we met in this back room back here to count the absentee ballots, and there were two locks on one of the ballot boxes. One of the commissioners, Frank Prater, Republican commissioner, unlocked one of the locks, and I asked for the other key to the lock and my mother gave me, oh, three or four keys that were together, and neither of the keys would unlock the other lock. I never had a key at no time, and still don’t have a key to the absentee ballot box. So, the keys she had wouldn’t open the ballot box and I asked Mr. Prater if he had another key and he told me he didn’t, and I turned around and asked somebody around the count there to get a car tool, or something, that I could open the lock without a key, break it off, and about that time Mr. Prater pulled out another bunch of keys that unlocked the ballot box.”

Just before the polls closed at 6 p. m. on November 2, a deputy county court clerk made a last check at the post office and picked up approximately seventy-five absentee ballots which had been received in the United States mail. It was found that the ballot box being used for absentee ballots was too full to accommodate the most recent batch. The deputy county court clerk then requested the commissioners to prepare another box. Thereupon, the Democratic and Republican commissioners obtained the second ballot box upon which only one lock was placed. When the votes were tabulated from the second box, the first seventy-five of the seventy-six were found to have been voted Democratic. Only the last ballot removed from that box was marked for the Republican candidates. The law of probabilities is strained by this circumstance.

It v?as shown that on October 9, 1965, Jack Culbertson notarized 166 applications for absentee ballots. This “land-office” activity was performed in the office of the sheriff of Magoffin County. A substantial number of the absentee ballots were mailed to the county court clerk in envelopes bearing the return address of the sheriff. Mr. Culbertson is a rural mail carrier whose immediate supervisor is Elmer Arnett, a brother of the appellant, Woodrow Arnett.

It is charged that much of the notary work was performed by persons ineligible to render the service because of the notary’s being connected as deputy, employee, or relative of the candidate to be voted for at the election. KRS 126.230. Without undertaking to detail the numerous instances in which disqualified notaries served, it suffices to say that a substantial number of the absentee ballots bore notary work performed by individuals proscribed from rendering the service by KRS 126.230.

The evidence concerning the manner of tabulating the absentee ballots discloses that little effort was made to comply with the requirements of KRS 126.270. One manifest departure from the procedure outlined in KRS 126.270(1) was occasioned by the failure of the voters to write their names across the face of the outer envelopes as directed by KRS 126.230. The envelopes were not removed from the ballot box one at a time as directed by KRS 126.270(1), but were withdrawn in groups of ten to fifteen ballots at a time. When the outer envelope fails to bear the name of the voter, it is apparent that it is impossible to determine whether the envelope contains a ballot cast by an eligible voter. It appears that more than half the absent voters failed to write their names across the face of the outer envelope.

The provision of KRS 126.270(1), requiring the clerk to open the inner envelope after a determination of the regularity of the outer envelope and the affidavit on the inner envelope, was not observed. The sheriff opened the inner envelopes, removed the secondary stub from the ballot, and passed the ballot to Arnett, who signed on the back of the ballot. The ballots were handled in such a way as to substantially preserve the secrecy of the vote while the necessary clerical actions were taken.

There are other alleged irregularities of which Hensley complains, but we feel that enough has been said to demonstrate the general situation respecting the absentee balloting in the election under consideration. There are certain basic principles of which we are mindful as we proceed to measure the facts against the legal requirements. It has been written that the regulations and procedures prescribed for absentee voting should be followed by election officers, but a substantial compliance is sufficient if proper ends are reached. Stabile v. Osborne, 309 Ky. 427, 217 S.W.2d 980; Jarboe v. Smith, Ky., 350 S.W.2d 490. The court is reluctant to disfranchise voters because of irregularities or derelictions on the part of election officials, but it will face its responsibility and approve such a result if the departures from legal requirements are so broad as to taint the election or so as to require rejection of the part affected. Pickard v. Jones, Ky., 243 S.W.2d 46, at page 49.

It is to be observed that Hensley received just over 50.6% of the 4,357 votes cast at the polls, whereas he received less than 24% of the 284 absentee ballots cast in the county clerk’s race. This factor alone would not suffice to warrant rejection of all the absentee ballots, but it does arouse suspicion that all may not have been well. In the absence of some plausible explanation, it would be supposed that the general ratio of voting as between poll voters and absentee voters would be more nearly equal. Cf. Crowe v. Emmert, Ky., 305 S.W.2d 272, and Warren v. Rayburn, Ky., 267 S.W.2d 720. The county court clerk is in a particularly sensitive position as respects the proper handling of absentee bollots. When the incumbent clerk is a candidate for reelection, as was Arnett in the present case, he “ * * * finds himself in an extremely high position of trust and responsibility.” Crowe v. Emmert, Ky., 305 S.W.2d 272, at pages 273 and 274. The failure of the clerk to see to it that the ballot box provided for absentee ballots was adequately guarded and appropriately locked, coupled with the unusual handling of the second ballot box which was provided with only one lock, when considered along with the disparity of the voting ratio between the poll votes and the absentee ballots and the unlikely happenstance that seventy-five consecutive votes out of seventy-six would be marked one way, all combine to support the proposition that the absentee votes were administered in such a manner as to preclude their consideration in the election contest before us. The matters we have just mentioned become even more persuasive when we recall that there was no canvassing of the applications beginning nineteen days before the election, as provided by KRS 126.-225(1), nor any posting of the list of names to whom absentee ballots had been sent, as required by KRS 126.255(2). Upon the authority of Warren v. Rayburn, Ky., 267 S.W.2d 720; Ragan v. Burnett, Ky., 305 S.W.2d 759; Kincer v. Holbrook, Ky., 307 S.W.2d 922; Crowe v. Emmert, Ky., 305 S.W.2d 272; and Hale v. Goble, Ky., 356 S.W.2d 33, we conclude that the trial court properly adjudged that there were such gross irregularities in the handling of the absentee ballots in the election held November 2, 1965, in the contest for county court clerk of Magoffin County, as to render void all absentee ballots cast in that contest.

Hensley undertook to file an amended complaint seeking a judgment against Arnett for the emoluments of the office of county court clerk. The trial court rejected the tendered amendment, and Hensley has appealed from that action of the trial court. Arnett maintains that Hensley is not entitled to such an appeal because the amended complaint was not made part of the record and for other procedural reasons. It is our view that the trial court properly declined to permit the amendment, as it had no place in a contest suit which is a statutory proceeding designed for prompt decision without encumbrance by other legal problems. In this case it is proper to point out that final briefs in this action were not presented in this court until January 23, 1968.

The judgment is affirmed in the appeal of Woodrow Arnett v. Howard Hensley and in the appeal of Howard Hensley v. Woodrow Arnett and on the cross appeal of Woodrow Arnett v. Howard Hensley.

All concur.


text:
    Frank BRASWELL et al., Appellants, v. Artha WHITE et al., Appellees.
    Court of Appeals of Kentucky.
    March 1, 1968.
    Bruce H. Phillips, Monticello, for appellants.
    No appearance for appellees.
   STEINFELD, Judge.

C. C. Braswell, administrator of the estate of Chester Braswell, sued a creditor and heir of Chester Braswell alleging that claims against the estate exceeded the value of the personalty and he demanded that claimants respond by setting up their claims. He pleaded that the 37-acre farm, which was the only real estate owned by the deceased, had to be sold to raise funds to pay costs of administration and claims. Artha White, a sister of the deceased and a co-defendant in the action, filed an answer, counterclaim and cross petition demanding $10,000.00 for nursing services rendered to the deceased. Issues were joined, a jury heard proof on the Artha White claim and awarded her “the full amount of $10,000.00”. Judgment was entered on that verdict. All cross defendants moved for a new trial, and when it was overruled they gave timely notice and appealed.

The appellants’ brief states:

“The Appellee * * * provided such services * * * a period of 7 months and 20 days.”
⅜ ⅜ ⅜ ⅝ ⅜ ⅜
“The award in this case amounted to compensation of over $1,250.00 per month for each month of service. It should be remembered that the appellee was not a skilled, experienced or professional nurse. The work performed was drudgery and of a servile nature, however there was nothing to indicate that the patient was violent or unmanageable. The proof suggested that the deceased was calm and placid and that no bed-side vigil was necessitated. No medication was required or treatments given. The service was not and could not have been classified as skilled or professional. The appellee voluntarily entered the home of the deceased, and it is only reasonable to assume, in the absence of any demand for reimbursement for food or other items, that the appellee was housed and fed by the deceased during the period that she lived with him. The attention required by the deceased could have been obtained by a person of the same skill of the appellee for $35.00 per week where food and lodging was furnished, and perhaps a higher degree of care would have been provided by a nursing home for $170.00 per month.”

The appellees have not favored us with a brief. Under those circumstances we may “ * * * accept the appellants’ statement of facts as correct and to treat the failure of the appellee to file a brief as a confession of error. Pierson-Trapp Co. v. Knippenberg, Ky., 387 S.W.2d 587 (1965); Belcher v. Elkins, Ky., 347 S.W.2d 503 (1961); Stansbury v. Smith, Ky., 424 S.W. 2d 571 (decided February 23, 1968).” Smith v. Smith, Ky., 424 S.W.2d 573 (decided February 23, 1968).

Appellants contend that the award is grossly excessive. From the above statements we hold that it is. The judgment is reversed with directions to grant appellants a new trial on the claim of Artha White.

All concur.


text:
    ILLINOIS BASIN OIL ASSOCIATION, Inc., Appellant, v. Bennie T. LYNN et al., Appellees.
    Court of Appeals of Kentucky.
    March 15, 1968.

      Robert G. Hunt, King, Deep, Branaman & Hunt, Henderson, for appellant.
    William L. Sullivan, Dorsey & Sullivan, Henderson, for appellees.
   DAVIS, Commissioner.

Bennie T. Lynn obtained a verdict and judgment for $4,000 against Illinois Basin Oil Association, Inc. (hereinafter IBOA) as compensation for alleged damages to the surface of a farm which Lynn had leased to IBOA for oil and gas exploitation. IBOA has appealed and presents the following assignments of error as bases for reversal:

(1) The only cause of action alleged in the complaint or proven was on a contract theory for restoration of the land, and there were no damages proved on this contract theory.
(2) The trial court erred in refusing to instruct on the principle of assumption of risk.
(3) The verdict and judgment were not supported by the evidence, in that there was no evidence to show any tangible monetary loss, and no cost of restoration was proven.
(4) The evidence of the plaintiffs was insufficient as a matter of law with respect to proof of causation or fact or “factum” of damage.
(5) The damages awarded were excessive.
(6) There was no proof of permanent damages in the case at bar, and the court erred in submitting such an instruction to the jury.
(7) The trial court erred in refusing to instruct on the principle of proximate cause.
(8) The trial court erred in refusing to send the jury out to visit the property in question where the operations of the defendant had been carried on.
(9) The trial court improperly admitted photographs in evidence over timely obj ection.
(10) The trial court erred in refusing to instruct the jury on principle of mitigation of damages.
(11) Instruction No. 2 under which the jury found was erroneous in allowing a recovery without proof of negligence.
(12) The trial court erred in allowing in evidence over objection the bare conclusion of plaintiff, Bennie Lynn, that the expense of restoration would exceed the difference in fair market value of the property.

The oil and gas lease from Lynn to IBOA was executed in June 1962, and drilling on the land began on November 20, 1962. Twenty-five separate wells were drilled; twenty-three of them were productive. The weather was suitable for drilling and use of the surface by heavy equipment until about the middle of December when a rainy season occurred. There was testimony from a witness trained in oil and gas production to the effect that it was imprudent and abnormal to undertake drilling after the rainy season began. The appellant presented evidence from an expert to the contrary. It was further shown for the appellant that the off-season drilling was considered imperative to protect the oil deposit by offset wells. The appellees and the president of IBOA had some discussion concerning the necessity for winter drilling. This discussion culminated in a letter dated January 15, 1963, from IBOA to appellees containing in part the following language:

“This is to reduce to writing our agreement wherein we will reshape the roads as needed and attempt to provide reasonable drainage, slope ditches (if any) to provide reasonable farm machinery crossing areas and will level, disc, and reseed with a like kind of seed in the field any disturbed areas other than reasonable roadway and work spaces.”

For the appellees it was testified that IBOA moved much heavy equipment during unfavorable weather conditions over the fields of the farm in such a manner as to substantially disturb the topsoil and the fescue growing on the land. According -to appellees’ version, there was unnecessary and unusual traffic of heavy equipment over open fields in adverse weather ■conditions. Appellees’ evidence tended to show that appellant’s activities with drilling rigs and other heavy equipment tore up and left deep ruts affecting sixty to seventy-five acres of the 135 acres in the tract where drilling was accomplished. Additionally, it was said for appellees that the surface terrain has been left so scarred that it can scarcely be traversed on a tractor, and water stands in many ruts and swags caused by IBOA’s operations. There was further evidence that fences and gates had been removed and that the ground had been left cluttered with partially buried pieces of cable, timber, and pipe.

The evidence for the appellant tended to refute the dismal picture presented in behalf of the appellees and would have warranted the jury’s finding of prudent operation by the lessee. Unfortunately for the appellant, the jury was persuaded by the ■evidence in behalf of the appellees.

In Summers, The Law of Oil and Gas, Section 652, the legal relations between the lessor and lessee respecting the use of the surface of the land are fully discussed. The cited section announces at the outset:

“An oil and gas lease carries with it the right to possession of the surface to the extent reasonably necessary to enable the lessee to perform the obligations imposed upon him by the lease.” 4 Summers, The Law of Oil and Gas, Section 652, Page 2.

The same authority, in the same section of the work, points out:

“Drilling operations may be carried on anywhere on the land, in the absence of express provisions of the lease to the contrary, and if not negligently performed, they do not constitute a nuisance. A subsequent purchaser or lessee of all or a portion of the land may not, therefore, enjoin drilling or production operations because they annoy and decrease the value of his interests. A lessor or his subsequent purchaser may, however, recover damages caused by the oil and gas lessee’s negligence in operating the land.” Id. Section 652, Pages 11 and 12.

This court has approved the tenets just mentioned and has recognized that the rights of the lessee and lessor are correlative. See Lindsey v. Wilson, Ky., 332 S.W. 2d 641. The January 15 letter from IBOA to appellee Lynn suggests that the parties were cognizant of the abnormal destructive effect to be anticipated by the winter drilling. As noted in the letter, the company specifically undertook to remedy any injury occasioned by the winter drilling. Indeed, the prime defense offered by IBOA was that it had remedied all damage flowing from its winter drilling operation. The appellees conceded that IBOA had undertaken remedial measures but contended that the measures were inadequate and ineffective. Evidence in support of each side of this issue was heard, and the jury resolved it in favor of the appellees.

Appellant asserts that the only cause of action alleged or proven was founded upon a contract and that there was no proof of damage under such a theory. We agree that the cause of action sounds in contract, but the extent of breach, if any, is measured by the negligence of the lessee. As pointed out in the authorities cited above, the lessee has a contractual right to use the surface to the extent reasonably necessary but becomes liable if its actions are performed negligently. It is our view that there is no merit in the contention advanced that no damage was proven on the contract theory.

It is next contended that the trial court should have instructed on the principle of assumed risk. We are unable to accept such contention. It seems plain that the appellees specifically declined to assume any risk when insistence was had for the assurances made in the letter of January 15. To the contrary, it appears that IBOA assumed the danger of incurring liability by winter drilling and gave written assurance that it would rectify any damage done.

The appellant attacks the verdict as being unsupported by evidence, because there was no showing of any tangible monetary loss and the cost of restoration was not proven in detail. Cited in support of this contention are Adams Construction Company v. Bentley, Ky., 335 S.W.2d 912; Wiser Oil Company v. Conley, Ky., 380 S.W.2d 217; Fields v. Rutledge, Ky., 284 S.W.2d 659, 58 A.L.R.2d 210; and Kentucky Stone Company v. Gaddie, Ky., 396 S.W.2d 337. It was the contention and testimony of appellee that the damage to the surface of his farm was of a permanent nature. He testified that the market value of the surface had been reduced by as much as $10,000 as the result of the claimed abuse of of the surface by IBOA in its operation. The appellee also testified that the cost of restoration would, in his judgment, be greater than the diminution in the market value. In other words, the net effect of the evidence in behalf of appellees was that the cost of restoration would be greater than $10,000. The appellee did not undertake to detail the itemized costs of restoration but did demonstrate his own experience and acquaintance with farm work and development of real estate. In addition to this, there was detailed evidence presented by IBOA reflecting expenditure in excess of $2,000 in an effort to restore the surface. In these circumstances, we believe there was a sufficient evidentiary background to support the jury’s finding that $4,000 would be required in reasonable efforts for restoration of the surface. We find nothing in the authorities cited by IBOA which would militate against this conclusion.

What has just been said substantially disposes of the fourth ground for reversal advanced by the appellant. It is our view that the evidence in behalf of appellees was sufficient with respect to proof of causation and the fact of damage.

Complaint is made that the damages awarded were excessive. We believe the evidence presented in behalf of the appellees was of sufficient probative value to sustain the verdict of $4,000. As noted, the appellee, Bennie Lynn, testified that the cost of restoration would exceed $10,000 and gave some background basis for his opinion. In these circumstances, we are unable to say that the damages were excessive.

The appellant asserts that since there was no proof of permanent damage to the real estate it was error for the trial court to submit an instruction embracing that theory of recovery. Reliance is placed upon Kentucky Stone Company v. Gaddie, Ky., 396 S.W.2d 337, and Wiser Oil Company v. Conley, Ky., 380 S.W.2d 217. It will be observed that in the Gaddie case it was impossible to determine whether the jury had found its verdict upon the basis of reduction in market value by a permanent injury or whether it based its finding upon a cost of repair. In the present case, the trial court followed the Gaddie case and instructed the jury separately as relates to the measure of damages for permanent injury vis-a-vis damages for temporary injury. The jury’s verdict specifically recited that it was returned under the instruction pertaining to temporary injury. Assuming without deciding that it was error to instruct on a theory of permanent damage, we are persuaded that such error, if any, was not prejudicial since the jury made no finding under it anyway. CR 61.01. We do not subscribe to the argument advanced by IBOA that the jury was persuaded by the permanent damage instruction that the trial judge had placed his imprimatur upon the permanent damage theory. In Wiser Oil Company v. Conley, supra, we found error in the court’s permitting recovery for permanent damage when none was shown, but there the jury made its verdict for permanent damage.

Appellant complains that the jury was not instructed on the principle of proximate cause. This assignment of error is directed at Instruction No. 2 which informed the jury that if it believed from the evidence that IBOA * * * negligently conducted its oil and gas operations on the land of plaintiffs or used more of plaintiffs’ land than was reasonably necessary to conduct such oil operations, and that by reason of either or both of such actions of defendant, if any, the land of plaintiffs was damaged, you should find your verdict for plaintiffs; but unless you so believe, you should find your verdict for the defendant.” Better form would dictate that the jury should have been instructed to award damages which it believed had been sustained by the appellees that were proximately caused by the negligent or unreasonable activities of IBOA. However, we are unable to imagine that the jury could have failed to realize the impact of the instruction, and we believe that the use of the expression “ * * * that by reason of either or both of such actions of the defendant, if any, the land of plaintiffs was damaged, * * * ” was sufficient to embrace the principle of proximate cause.

Although both sides moved for a jury view of the premises, the trial judge denied the motions. IBOA assigns this as reversible error, relying again upon Kentucky Stone Company v. Gaddie, Ky., 396 S.W.2d 337. It was recognized in Gaddie that the matter of permitting a jury view in cases of this type rests within a sound judicial discretion of the trial court. In the present case the trial court apparently declined to permit the jury to view the premises because of practical considerations. The record reflects that sixty to seventy-five acres of land were said to be affected, and the nature of the claimed damage was not such that it could be physically examined by the jury in any practicable manner. In light of these circumstances, we are not willing to say that the trial judge abused his discretion in refusing a view of the premises.

A related charge of error is that the court improperly admitted five small photographs depicting the sites of some of the wells drilled on the premises. Our examination of these pictures convinces us that the court properly admitted them into evidence on the showing that they fairly depicted the scenes which they purported to represent. There was nothing about them which could in any manner be regarded as prejudicial, and it seems to us that they were pertinent to the issues on trial.

IBOA offered an instruction incorporating the thought that the appellees were required to mitigate their damages. We have no quarrel with the abstract principle of law as respects the duty to mitigate damages in proper circumstances, but we fail to see any basis for such an instruction in the case at bar. The alleged damages occurred during the active operations being carried on by IBOA and in circumstances which foreclosed the possibility of the appellees’ taking any steps looking toward mitigation. It is apparent that the conversations leading up to the letter of January 15, 1963, reflect an attitude by the appellees to do what they could to protect themselves and minimize their damages. We believe the trial court properly rejected the proffered instruction.

The appellant attacks Instruction No. 2 on the basis that it authorized recovery without proof of negligence. IBOA cites B & B Oil Company v. Townsend, 301 Ky. 667, 192 S.W.2d 953, for the proposition that an oil operator, under a valid lease, is liable for damages caused by the operator’s lack of due care; in short, negligence. The appellant contends that it would have been impossible for IBOA to use more of appellees’ land than was reasonably necessary to conduct the oil operations, absent negligence on the part of the company. Hence, it is reasoned by IBOA that the instruction complained of was erroneous in predicating possible liability upon negligence or use of more land than was reasonably necessary. We think this argument begs the question at hand. We can agree with IBOA that negligence is the predicate of liability — use of more land than was reasonably necessary to conduct the operations amounts to negligence. In final analysis the jury was required to find lack of proper care as a condition precedent to imposing liability. We think this was sufficient and appropriate.

The final assault upon the judgment is based upon asserted error .in permitting the “bare conclusion” of the appel-lee, Bennie Lynn, that the expense of restoration would exceed the difference in fair market value of the property. The difficulty we have with this argument is that we cannot say that Lynn’s evidence was a “bare conclusion.” As heretofore observed, Lynn evinced expertise in land values and land maintenance. He gave sufficient evidence of his own qualifications as to warrant his opinion and so as to remove that opinion from the realm of “bare conclusion.”

The judgment is affirmed.

All concur.


author: A. MURRAY BEARD, Special Commissioner.

text:
    Dennis KIRBY, Appellant, v. Vella Mae Hodge KIRBY, Appellee.
    Court of Appeals of Kentucky.
    March 15, 1968.
    William A. Hamm, Hamm, Taylor & Milby, London, for appellant.
    Roy E. Tooms, Brown, Tooms & Hel-ton, London, for appellee.
   A. MURRAY BEARD, Special Commissioner.

Appellant, Dennis Kirby, (plaintiff below), was the owner of and a passenger in an automobile being operated by appellee Vella Mae Kirby, (defendant below), with appellant’s permission when the vehicle wrecked. Appellant sued to recover damages against appellee for her alleged negligent operation of the vehicle. Appellee is a daughter-in-law of appellant. The purpose of the trip was to return appellant’s wife from a hospital to her home.

The trial court entered summary judgment for appellee. No indication of the court’s reason for dismissing the complaint is given, nor was it necessary, under the Rules of Civil Procedure. However, it appears from briefs filed by counsel, appellant’s action in the lower court was dismissed upon the theory of imputed negligence.

Appellee contends that the “owner of an automobile driven by an operator with owner’s express or implied consent cannot sue the operator for negligence and in such action operator’s negligence will be imputed to the owner.”

Apparently the lower court based its judgment on the foregoing fallacious premise.

Assuming appellant and appellee were, at the time, on a joint venture, which they n)ere not, or that appellee, being sui juris, was the agent of appellant, the suit was not against a third person to the relation but between the parties themselves; hence, appellee’s negligence should not be imputed to appellant. Dorris v. Stevens’ Adm’r, 266 Ky. 602, 99 S.W.2d 755; Greenwell’s Adm’r v. Burba, 298 Ky. 255, 182 S.W.2d 436.

.The case of Borders v. Borders, Ky., 376 S.W.2d 519, was an action by a passenger in an automobile against an owner, where the claim of imputed negligence was advanced and rejected. This court stated:

“The appellants argue that Johnnie was Mearlene’s agent and therefore his negligence should be imputed to her so as to bar a recovery. There is no merit in that argument (even assuming that there could be considered to have been an agency relationship in the family courtesy trip) because the doctrine of imputation of negligence from agent to principal applies only as concerns the principal’s liability to, or right to recover from, a third person — not as concerns the liability of the agent to the principal.”

It follows there is no merit to the claim appellee’s negligence, if any, in this case should be imputed to appellant. Blashfield Automobile Law and Practice, 3rd Edition, Vol. 6, pp. 4 and 5:

“So also, the owner of an automobile driven by an operator with the owner’s express or implied consent may sue the operator for negligence in the operation of the automobile and in such an action the operator’s negligence will not be imputed to the owner.”

The lower court committed error in sustaining appellee’s motion for summary judgment and dismissing the complaint.

Judgment reversed, with directions that a new trial be granted.

All concur.