author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Homer PHILLIPS et al., Appellees.
    Court of Appeals of Kentucky.
    March 20, 1964.
    Rehearing Denied June 26, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Dept, of Highways, Somerset, for appellant.
    R. L. Brown, Joe S. Feather, Williams-burg, for appellee.
   WADDILL, Commissioner.

This .appeal is from a judgment of $6,-000 awarded appellees, Homer and Lucretia Phillips, for 1.62 acres of their land condemned by the Commonwealth for the purpose of constructing a nonaccess highway connecting Interstate 75 with U. S. 25-W.

Prior to the institution of this action ap-pellees’ 5-acre tract of land fronted 275 feet on U. S. 25-W on the east side, 1,000 feet on Ky. 628 on the .north side and 200 feet on an unpaved county road on the west side. The east end of the tract was near the village of Pleasant View.

The Commonwealth condemned a strip of land along the north side of appellees’ tract, including all the frontage on Ky. 628, 140 feet on the county road and 200 feet on U. S. 25-W, and stated in its petition that “the defendants shall have no right of access to the proposed interstate highway from their remaining property.” The case was tried upon the theory that access was being condemned.

It is contended by the Commonwealth that the trial court erred: (1) In permitting testimony concerning the decreased accessibility of the remaining land due to this condemnation and (2) in refusing to strike estimates of damage by witnesses who did not state the damage for the taking and the damage to the remainder separately.

Two of appellees’ witnesses were permitted to show the inconvenience in reaching Pleasant View from appellees’ remaining property due to the Commonwealth’s taking of access rights. The trial court restricted the consideration of this evidence to whatever bearing it might have on the damages to the remainder. The appraiser for the Commonwealth also considered the taking of the access as a factor in determining damages. Since access rights were being condemned there was no error in permitting the testimony to be introduced. Commonwealth, Dept. of Highways v. Carlisle, Ky., 363 S.W.2d 104 (decided since this case was briefed).

The witnesses testifying on behalf •of appellees, having estimated the total damage to appellees’ property, refused to state what portion they assigned as damages to the remainder. In Commonwealth, Dept. of Highways v. Baston, Ky., 371 S.W.2d 869, (also decided since this case was briefed), we held that such an approach was entirely proper. It follows that the trial court correctly overruled the motions to strike this evidence.

The judgment is affirmed.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky ex rel. John B. BRECKINRIDGE, Attorney General of Kentucky, Appellant, v. Raymond C. COLLINS, Appellee.
    Court of Appeals of Kentucky.
    April 24, 1964.
    Rehearing Denied June 26, 1964.
    J. Ervin Sanders, Pikeville, Stanley R. Hogg, Whitesburg, for appellant.
    Stephen Combs, Jr., Whitesburg, John C. Anggelis, Lexington, for appellee.
   MONTGOMERY, Judge.

Appellant unsuccessfully sought to have Raymond C. Collins ousted as a usurper of the office of member of the Letcher County Board of Education. The question is whether Collins, as board member, violated KRS 160.180(1) (e) and (2) through the sale of soft drinks to various schools.

Collins was elected in November 1960 and assumed office in January 1961 for a four-year term. During his term of office he has been the sales manager, secretary-treasurer, and principal stockholder of the Royal Crown Bottling Company, a firm engaged in the business of selling soft drinks in Letcher County. Since Collins was elected to the Board, this company has placed vending machines in various schools of the Letcher County school system and has sold .soft drinks continuously to various schools, including Whitesburg, Kingdom Come, and Letcher high schools.

Monthly statements were submitted by Royal Crown Bottling Company to the principals of the schools, showing the amount of soft drinks purchased. In general the money collected from the sales was deposited in a bank to an account in the name of the school or an activity fund against which account checks in payment of the bills were drawn by the principal of the school. The principals of the various ■schools were required to submit monthly reports to the Letcher County Board of Education, showing balances in their respective activity fund accounts. A detailed annual report reflecting income and expenditures from the activity fund also was required.

The profit realized from such sales has been variously used to pay for athletic equipment, lime, paint, fencing, pencils, sharpeners, gravel, typewriters, paper, library books, instrument materials, repair of band equipment, and annual class trips. The funds involved have been reimbursed in part by the Board from school tax money. Some of the property so acquired was held as property of the county board of education and was accounted for on its inventories.

Appellant contends that such funds are school funds within the meaning of the statutes governing the operation of schools for the reason that they are used solely to promote public education and are under the control of the board of education.

Appellee argues that these are not school funds because they are kept separate and apart and are not comingled with tax money; no sales or payments involve the board or school funds; and the funds are raised by school children from various projects and belong to various class organizations. He further argues that such funds are not school funds as defined by KRS 157.010.

A reading of that statute reveals that it is a part of KRS, Chapter 157, entitled “State Support of Education.” Therein, “the school fund” is defined as the fund dedicated by the “Constitution and laws of this Commonwealth for the purpose of sustaining a system of common schools therein,” with six sources of annual revenue consisting of certain interest and dividends and “[s]uch sums as are appropriated by the General Assembly in aid of the common schools.”

This statute does not undertake to define all funds that may be considered as school funds, but defines only what is considered to be the so-called “State school fund.” Obviously, activity funds are not school funds within the meaning of KRS 157.010, but neither are revenues derived by local school districts from local taxes. Surely appellee would admit that moneys collected by local school districts by means of taxation are no less school funds; hence, KRS 157.010 has no application here.

The statute provides that the office of a board member “shall without further action be vacant” if such member “is directly or indirectly interested in the sale to the board of books, stationery or any other property, materials, supplies, equipment or services for which school funds are expended.” KRS 160.180(1) (e) and (2). Each board has the control and management of all school funds and all school property of its district. KRS 160.290.

In Douglas v. Pittman, 239 Ky. 548, 39 S.W.2d 979, it was said:

“These statutes were enacted as safeguards upon the spending of public funds and with the further view of throwing a wall of protection around the members of such bodies. Their duties as members could not thereby be influenced by selfish interests. The wisdom of such statutes is too apparent to need lengthy discussions.”

In that case a board member who owned a one-third interest in a business which made several small sales to the board was held to have vacated his office despite his plea that he was not individually interested in the sales and received no profit from them. His interest in the company was held to be sufficient.

The Douglas case also answers appellee’s contention that he should be excused because of proper motives and absence of profit. The office was held to have been vacated although the member’s motives were proper and the sales were unprofitable.

Sales of commodities made by a board member to the high school principal for a lunchroom have been held sufficient basis for holding the office vacant. Brooks v. Commonwealth, Ky., 286 S.W.2d 913. One sale was a wholesale transaction in which the money received for the goods was returned to the company. The other sale was for his wife’s store held in her name “for Internal Revenue purposes.” In condemning such transactions by a board member, the Court said, “that KRS 160.180 prohibits any direct or indirect interest in sales to the board.”

In Board of Education of Anderson County v. Calvert, Ky., 321 S.W.2d 413, the board was held liable for obligations incurred by the “activities fund” where the indebtedness was incurred with full knowledge of the board and under its supervisory control. The primary sources of revenue for the “activities fund” were admissions to high school athletic contests and “sale of soft drinks, popcorn, peanuts and such other fare.” Reference was made therein to the same set of regulatory controls over such funds as appear to have been in effect here.

In the light of these cases and of the evident legislative intent, it is concluded that such activity funds are school funds over which the board has full control and as such come within the purview of KRS 160.180. Such statute has a salutary purpose and should be so construed. It is plain that appellee made such sales on behalf of a company in which he had a substantial interest and that he had such interest as was intended to be condemned by the statute. In making such sales he vacated the office of board member.

Judgment reversed.


author: DAVIS, Commissioner.

text:
    Shelby McCALLUM, Administrator of the Estate of Virgil Harris, Appellant, v. Golene HARRIS, Administratrix of the Estate of Rhonda Faye Harris, Appellee.
    Court of Appeals of Kentucky.
    April 17, 1964.
    Rehearing Denied June 26, 1964.

      Terry L. Hatchett, Glasgow, for appellant.
    Charles Allen Williams, Paducah, Beverly M. Vincent, Brownsville, for appellee.
   DAVIS, Commissioner.

Virgil Harris was killed in an automobile accident on February 10, 1959. In the same accident his infant daughter, Rhonda Faye Harris, 18 months old, lost her life. The present appeal is from a judgment of the Edmonson Circuit Court, which awarded $15,500 to the appellee, as administra-trix of the estate of Rhonda Faye Harris against appellant, administrator of the estate of Virgil Harris. We shall discuss the numerous questions submitted in the course of the opinion.

Virgil Harris was a crane operator at a plant in Calvert City; he had worked his regular shift from 4:30 p. m. until 12:30 a. m. on the early morning of the accident. He drove about fifteen miles from his work to his home near Benton, where he was joined by his wife, Golene Harris, and their three small children, aged four months, eighteen months and four years. The entire family then proceeded en route to Shelbyville to visit Mrs. Harris’ brother. Virgil Harris was the driver of the automobile; seated with him on the front seat were Mrs. Plarris and one of the children. The other two children, including Rhonda Faye, were on the back seat.

The family journeyed without incident until about 4:30 a. m. Then, at a point about 4.2 miles south of Park City on U. S. Highway 31-W, the automobile collided head-on with a tractor-trailer outfit owned by C & D Motor Delivery Company, driven by Lloyd Dowdy. Both Virgil Harris and Rhonda Faye Harris were dead just after the impact. There is no evidence as to which survived the other. The Harris car was demolished; Mrs. Go-lene Harris suffered some injuries, but none of a permanent nature. The car and truck collided left front to left front. Each of the vehicles came to rest after the accident on the east side of the highway. The east side of the highway was the right side for the Harris car.

Golene Harris, mother of Rhonda Faye Harris and surviving widow of Virgil Harris, qualified as administratrix of Rhonda Faye. As administratrix she sued the administrator of Virgil Harris and C & D Motor Delivery Company, seeking damages for the wrongful death of Rhonda Faye, in the sum of $30,000. In the same complaint Golene Harris sought $2,500 from the same defendants for her own personal injuries.

The appellant, administrator of Virgil Harris, moved the trial court for dismissal of the complaint against him as to the claim for the death of Rhonda Faye. The trial court sustained the motion, and on June 26, 1961, entered an order dismissing the complaint of appellee, administratrix of Rhonda Faye Harris. The court dismissed the complaint on the ground that Rhonda Faye Harris was the unemanci-pated child of Virgil Harris and no cause of action existed for her death alleged to have been caused by her deceased father. The trial court’s ruling followed our decision in Harralson v. Thomas, Adm’r, Ky., 269 S.W.2d 276. Appellee’s counsel endorsed his approval of the form of the order at the time of its entry. The dismissal order did not contain any recital that it was final. CR 54.02.

On June 9, 1961, our decision in Harlan National Bank v. Gross, Ky., 346 S.W.2d 482, became final; it overruled Harralson, supra. On November 13, 1961, appellee moved the trial court to set aside its dismissal order of June 26, 1961, in light of the decision in Harlan National Bank v. Gross, supra. The trial court sustained the motion, set aside the order dismissing the complaint of appellee, and caused the case to be set for trial. Appellant contends that the trial court had no authority to set aside the June 26th order. We do not agree.

The action was a multiple claims action within the purview of CR 54.02; the June 26th order disposed of part of the claims, but not all of them. By the express terms of CR 54.02 the trial court retained complete authority over the order until entry of judgment adjudicating all the claims.

Appellant contends that Golene Harris gave testimony absolving Virgil Harris from negligence, and is thus barred by her judicial admission. Wandling v. Wandling, Ky., 357 S.W.2d 857; Bell v. Harmon, Ky., 284 S.W.2d 812; and Tompkins v. Knut, C.C., 94 F. 956, are relied upon by appellant. It is true thal'in a pretrial deposition, as well as by her testimony at the trial, Golene Harris failed to detail any negligent act of Virgil Harris to which she could ascribe the accident. However, the true import of her evidence is of a negative character; that is, she simply testified as to an absence of knowledge about the crucial facts of the accident. The evidence given by Golene Harris may not be said to be "deliberate and unequivocal and unexplained.” Bell v. Harmon, supra. Neither may it be said that Golene Harris was in a favorable position to observe accurately what occurred. Although she was seated in the front seat of the automobile, she explained that she was blinded by the lights of the oncoming truck. It is our conclusion that her evidence does not amount to a judicial admission. We note, without deciding, that there is question whether her evidence as an individual could be a judicial admission as to her representative position as adminis-tratrix.

Appellant asserts that Golene and Virgil Harris were on a joint venture, so that the negligence of Virgil, the husband, is attributable to Golene. We find no merit in this contention. In McCoy v. Carter, Ky., 323 S.W.2d 210, we pointed out that joint enterprise presupposes not only a community of interest but also equal right, express or implied, to direct and control the management of the car. There was a complete absence of any such showing here.

Appellant vigorously urges that Golene Harris was guilty of contributory negligence. This theory is advanced on the premise that she knew that her husband had labored at his regular job and then had undertaken the long automobile trip without rest or food. That appellant has misconceived the applicable rule here is shown by his reliance on New York Indemnity Co. v. Ewen, 221 Ky. 114, 298 S.W. 182. In the Ewen case there was specific evidence that the accident was caused by the reckless speed of the driver, and that the passenger knew of the driver’s habit of speeding. Moreover, in Ewen, we set out a proper instruction for submission of the contributory negligence issue raised by the evidence. In the case at bar there was no such issue raised, as there was not the slightest evidence reflecting anything but perfectly normal and proper driving by Virgil Harris until just the moment before the collision. See Southern Oxygen Co. v. Martin, 291 Ky. 238, 163 S.W.2d 459.

It is next contended that since Rhonda Faye Harris was under the joint custody and control of her parents, the negligence of the father must be imputed to the mother. In Hale v. Hale, 312 Ky. 867, 230 S.W.2d 610, we said that negligence of one spouse is not to be imputed to the other in such cases by reason of the marital relationship alone. Our re-examination of the principles announced in the Hale case confirms the soundness of its rationale. Here the child was not permitted to be in an abnormally dangerous place as in Wheat’s Adm’r v. Gray, 309 Ky. 593, 218 S.W.2d 400, 7 A.L.R.2d 1336.

Lloyd Dowdy, driver of the C & D truck, testified that the Harris car veered to its left side of the highway and struck the truck at a point some 5 feet 7 inches into the truck’s traffic lane. This testimony was substantially corroborated by testimony from a State trooper as to the tire marks in the road. The trooper unequivocally testified that he was able to identify the marks in the highway and traced them to the respective vehicles. Appellant relies on Union Underwear Co. v. Barnett, 285 Ky. 488, 148 S.W.2d 339, for his contention that the trooper’s evidence was incompetent. We disagree. In the Barnett case there were marks in the highway, but nobody was able to relate the marks to either of the vehicles with any certainty. There the marks merely raised a possibility that the truck could have been on the wrong side of the road. In the case at bar the eyewitness evidence of Dowdy, coupled with the trooper’s testimony in which he identified the marks, removes the element of speculation present in the Barnett case.

Appellant complains of the instructions given and the refusal of others offered. Since the bases for the arguments on the instructions are the same as those already mentioned, we refrain from detailed discussion of the contentions. It suffices to say that we have carefully considered the instructions given and those offered, and find that the issues were fairly and properly presented.

Appellant insists that a compromise settlement with C & D Motor Delivery Company by Golene Harris, administratrix of Rhonda Faye Harris, bars the appellee in the instant case. The settlement release reflects that the claim against C & D Motor Delivery Company was compromised for $1,000. However, the release clearly recites that it is a partial settlement only, and that the right to prosecute the claim against the present appellant is fully reserved. Under the well-recognized rule, a partial settlement with one tort-feasor does not release another tort-feasor, if the settlement is not received in full satisfaction of the claim. Louisville Gas & Electric Co. v. Beaucond, 188 Ky. 725, 224 S.W. 179; 45 Am.Jur., Release, § 36, et scq.; 16A Ky. Digest, Release,

It is next asserted that a compromise settlement made with C & D Motor Delivery Company by McCallum, as administrator of Virgil Harris, precludes recovery in the instant case. It is shown that $7,800 was paid in behalf of C & D Motor Delivery Company to the administrator of Virgil Harris. Since Golene Harris, surviving widow of Virgil Harris, was a monetary beneficiary of that settlement, it is reasoned that she cannot be heard to assert that Virgil Harris was negligent. Appellant’s counsel candidly concedes that the argument is novel. We believe it is unsound here for at least three reasons: Golene Harris, as an individual and as administratrix of Rhonda Faye Harris, had no control over the compromise settlement made by the administrator of Virgil Harris with C & D Motor Delivery Company; the well-established policy of law favoring compromise of issues would be frustrated by application of the principle urged; evidence of such a compromise would not be admissible. Whitney v. L. & N. R. Co., 296 Ky. 381, 177 S.W.2d 139; Burgess v. Consider H. Willett, 311 Ky. 745, 225 S.W.2d 315.

Appellant maintains that the verdict of $15,500 is excessive. It is argued that since the child was of such tender years the jury could resort only to speculation in assessing damages. Admittedly, the jury’s task in such cases is not free from difficulty. However, we are fully committed to the proposition that recovery may be had for the wrongful death of a minor. KRS 411.130; Phillips’ Committee v. Ward’s Adm’r, 241 Ky. 25, 43 S.W.2d 331; Ashland Sanitary Milk Co. v. Messersmith’s Adm’r, 236 Ky. 91, 32 S.W.2d 727; Union Transfer & Storage Co. v. Fryman’s Adm’r, 304 Ky. 422, 200 S.W.2d 953. Further research of the various ramifications of this problem may be had by reference to the annotation in 14 A.L.R.2d 485, et seq.

In 1930 we upheld a verdict of $15,000 for the death of a girl ten years old. Ashland Sanitary Milk Co. v. Messersmith’s Adm’r, 236 Ky. 91, 32 S.W.2d 727. In 1947 we sustained a $20,000 verdict in a death case involving a nine-year-old boy. Union Transfer & Storage Co. v. Fryman’s Adm’r, 304 Ky. 422, 200 S.W.2d 953. In those cases we pointed out that consideration is to be accorded changing economic conditions. The verdicts just mentioned in the years just mentioned dispel the thought that the instant verdict is so excessive as to reflect at first blush that it resulted from passion or prejudice. CR 59.01(4).

Appellant complains that it was error to admit certain photographs in evidence. In this respect it'is claimed that, while the photographs themselves were properly admitted, error was committed in allowing the trooper to “interpret” and “explain” them. In support of his position, appellant calls to our attention Hillman v. Hall, 311 Ky. 790, 225 S.W.2d 667, and Garrison v. Dixie Traction Co., 313 Ky. 565, 232 S.W.2d 997. However, these authorities do not support the view taken by appellant in this case. We find no merit in this point.

An interesting and unique question is raised by appellant whether the judgment should be reduced. It will be recalled that there was no evidence touching the question as to whether Virgil'Harris survived Rhonda Faye Harris, or vice versa. KRS 397.010 provides as follows:

“Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this chapter.”

The statute deals with the title or devolution of property. However, the case at bal-deáis with a right of action for wrongful death pursuant to KRS 411.130. Obviously, the decedent could have no property in a cause of action for his own death, since such cause arises only upon the wrongful death of the deceased. Such cause of action was not known to the common law, but in general results from Lord Campbell’s Act; it is now embodied in Kentucky Constitution, § 241. Statutory implementation of the constitutional provisions is found in KRS 411.130 just mentioned.

It will be seen that KRS 411.130(2) (d) is applicable to the case at bar, since Rhonda Fay Harris had no widow, husband nor child to survive her. Under such circumstances the cited statute directs that recovery for wrongful death shall “pass to the mother and father of the deceased, one moiety each, if both are living; if the mother is dead and the father is living, the whole thereof shall pass to the father; and if the father is dead and the mother is living, the whole thereof shall go to the mother.” We said in Sharp’s Adm’r v. Sharp’s Adm’r, Ky., 284 S.W.2d 673, that the person entitled to benefits under the statute is to be determined at the time of the death of the person wrongfully killed.

In order to show that Golene Harris, as surviving mother of Rhonda Faye Harris, is entitled to the entire recovery, rather than one moiety, it is necessary -to show that Virgil Harris, father of Rhonda Faye Harris, was dead at the time of the death of Rhonda Faye. It is upon that condition precedent that the surviving mother is entitled to take the whole recovery. The failure to establish that condition precedent is fatal to the right of the mother to receive all of the recovery. In this record there has been no affirmative showing that Rhonda Faye Harris survived her father — nor is there any evidence to reflect that he survived the child. The Uniform Simultaneous Death Act (KRS Chapter 397) presents no solution to the instant problem, since it deals with the title to or devolution of property — as distinguished from the statutory right of recovery for wrongful death, which was never property of which title was in the decedent. We are left with resort to the common law rule, long recognized in this jurisdiction, that under such circumstances there is no presumption of survivorship in such common disaster cases. Colovos’ Adm’r v. Gouvas, 269 Ky. 752, 108 S.W.2d 820, 113 A.L.R. 871.

As pointed out in the Colovos case, the law treats the case as one to be established by evidence, and lays the burden of proof on him who claims survivorship. In the absence of proof to sustain that burden, the claimant’s case fails. So here, the burden was upon appellee to affirmatively establish that Virgil Harris died before Rhonda Faye Harris in order to establish entitlement to all of the recovery from the appellant, who is the personal representative of the father of the same decedent. The instant suit is tantamount to the assertion that Virgil Harris died before Rhonda Faye Harris, else it could state a cause of action for only one moiety of the recovery. Therefore, the failure to demonstrate that Rhonda Faye Harris survived Virgil Harris precludes recovery of the moiety which would have been Virgil Harris’ portion as the survivor of Rhonda Faye.

For this reason, the judgment of $15,500 should be reduced to $7,750, to represent the moiety recoverable in behalf of Golene Harris as surviving mother of Rhonda Faye Harris. However, it is also made to appear that the sum of $1,000 was. paid by C & D Motor Delivery Company to appellee as partial settlement of the claim for the wrongful death of Rhonda Faye Harris. As noted, that settlement was negotiated on the specific premise that it was-not a complete settlement. Under the rule applicable to such situations, it must be treated as a pro tanto settlement of the entire claim for the wrongful death of Rhonda Faye Harris. Standard Sanitary Mfg. Co. v. Brian’s Adm’r, 224 Ky. 419, 6 S.W.2d 491; 104 A.L.R. 931, et seq.

Under the circumstances shown, the verdict and judgment of $15,500 represented the jury’s determination of the value of the entire wrongful death claim. The present appellee, as administratrix of Rhonda Faye Harris, has already received $1,000 of that total; moreover, she is entitled to recover only $7,750 in the aggregate, thus leaving due the sum of $6,750.

Therefore, the judgment is affirmed in part and reversed in part, with direction to modify the judgment in conformity with this opinion.


author: CULLEN, Commissioner.

text:
    WEBB TRANSFER LINE, INC., et al., Appellants, v. Vernon JONES, d/b/a Jones Transfer Line, et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1963.
    Rehearing Denied June 26, 1964.

      Harry McChesney, Jr., McChesney & Kinker, Frankfort, for appellants.
    Herbert Liebman, George Catlett and Ben M. Combs, Asst. Atty. Gen., Frankfort, for appellees.
   CULLEN, Commissioner.

In March 1960 Vernon Jones, d/b/a Jones Transfer Line, made application to-the Department of Motor Transportation, for a regular route common carrier truck certificate for operations between Louisville and Shelbyville. Webb Transfer Line,. Inc., long-time holder of a certificate for this route, protested the application. Several other carriers with various operating rights over the route also protested. In. April 1961 the department granted the certificate to Jones. Webb and the other protesting carriers appealed to the circuit court, which entered judgment upholding the order of the department, and they have appealed to this court.

In February 1957 Jones had made application for the same operating authority and in July 1957, after hearings on the protests of Webb and other carriers, the department had granted Jones a certificate. Pending appeals to the courts, Jones operated under this certificate until December 1959, when the mandate was issued in Jones v. Webb Transfer Line, Inc., Ky., 328 S.W.2d 407, in which this court affirmed the judgment of the circuit court setting aside the order of the department which had granted the certificate to Jones. The significance of the 1957 application and certificate shall presently be discussed.

Under KRS 281.630, a condition of the granting of a certificate for common carrier service is a finding “that the existing transportation service is inadequate.” In Jones v. Webb Transfer Line, Inc., Ky., 328 S.W.2d 407, it was held that the 1957 certificate should not have been granted because the evidence before the department did not warrant the finding that the existing service was inadequate. In the hearing on the 1960 application considerable evidence was introduced, over Webb’s objection, concerning inadequacy of Webb’s service prior to 1957. We are faced with the question of the extent to which such evidence properly could be considered.

In Cardinal Bus Lines v. Consolidated Coach Corp., 254 Ky. 586, 72 S.W.2d 7, 10, in holding that the Commissioner of Motor Transportation erred in allowing an applicant for a carrier certificate a second hearing after the application had been denied, this court said:

“The doctrine of res judicata applies to quasi judicial acts of the commissioner of motor transportation and other public commissions and administrative boards. * * * ”

Similar holdings were made in Happy Coal Co. v. Hartbarger, 251 Ky. 779, 65 S.W.2d 977; Hystream Coal Corporation v. Ingram, 283 Ky. 411, 141 S.W.2d 570; Williamson v. Public Service Commission, 295 Ky. 376, 174 S.W.2d 526; and Bauer v. Alcoholic Beverage Control Board, Ky., 320 S.W.2d 126. The rule that the doctrine of res judicata is applicable in the field of administrative law has substantial support in other jurisdictions. See 2 Am. Jur.2d, Administrative Law, secs. 496 to 504, pp. 303 to 314.

In Happy Coal Co. v. Hartbarger, 251 Ky. 779, 65 S.W.2d 977, at 978, the court said, in support of the application of the rule.

“ * * * If it were otherwise, a movant * * * would never be concluded, and could perpetually harass his adversary from day to day, as well as the board, with successive motions based upon the same facts, until the time expired under the law for making them. Such a procedure is in direct conflict with the cherished rule that ‘there should be a finality to litigation,’ and to that end the law disallows to the losing litigant, or claimant, a second independent cause of action or complaint based upon the same facts and upon the same grounds of his former lost one.”

Applying the res judicata rule to the instant case, the result must be that inadequacy of Webb’s service prior to 1957 could not be used as a basis for granting a certificate on the 1960 application, because Jones had the opportunity on the 1957 application to prove such inadequacy, and he failed. The decision of the circuit court, affirmed by this court on the former appeal, constituted a judicial determination that the service prior to 1957 was not inadequate.

We do not mean to say that on the 1960 application evidence could not be admitted as to the nature of Webb’s service prior to 1957, as such evidence would tend to corroborate or complete a picture of present inadequacy, but we do mean that a finding of inadequacy cannot be predicated on what happened prior to 1957.

We have carefully read and analyzed all of the evidence for Jones on the 1960 application. It discloses only a few isolated instances of unsatisfactory service since 1957. Many of the witnesses said that during and after the time Jones was operating Webb’s service was satisfactory. Others had not used Webb’s service since 1957 and therefore did not purport to testify concerning its present inadequacy. The general purport of all of the evidence was that the witnesses felt that competition was a good thing in the motor carrier field, and that by permitting Jones to operate Webb would be compelled to continue giving good service. Some of the witnesses said they desired better service than Webb was giving, but their testimony does not make a showing that Webb’s service is not now reasonably adequate. Reasonable adequacy is all that is required. Combs v. Johnson, Ky., 331 S.W.2d 730; O’Nan v. Ecklar Moore Express, Inc., Ky., 339 S.W.2d 466.

Jones argues that Webb’s satisfactory service during the time Jones was operating was due solely to Jones’ competition, and that Webb’s satisfactory service after Jones stopped operating was due to the threat of Jones’ new application. However, the fact remains that Webb’s service has been adequate, and it is equally reasonable to believe that Webb has seen the error of his ways and will continue to render good service as it is to believe that he will lapse into poor service as soon as the threat of competition is removed. In any event, it is our opinion that a finding of existing inadequacy cannot properly be based upon the fear that if the threat of competition is removed the service will become inadequate.

It is our conclusion that the evidence concerning Webb’s operations since 1957, even when considered against the background of his operations prior to 1957, does not warrant a finding of inadequacy, and that, under the res judicata rule, the operations prior to 1957 cannot serve as the basis for such a finding.

The Department of Motor Transportation is of the opinion that competition is a desirable thing in the motor carrier field. This may be true, but the statutes, in requiring a finding of inadequacy of existing service before the granting of a new certificate, do not express such a policy.

The department argues that its finding of inadequacy of existing service is supported by evidence that there will be a substantial amount of new freight business moving to and from Shelbyville by reason of the fact that a new manufacturing plant is being constructed and two existing plants are expanding their operations. The argument is predicated upon a 1956 amendment to KRS 281.630, which added to the statute these words:

“ * * * provided, however, that nothing herein shall be construed so as to require the department to give, to any existing carrier authorized to render service to, from or between any point on the route proposed to be served by the applicant, any notice regarding the quality or quantity of its service to, from or between such points or to require the department to give to such existing carrier any opportunity to improve its existing service or to render the service found to be needed before the issuance of a certificate to the applicant.”

The department maintains that the amendment is to be construed as meaning that an existing carrier has no protectible right to serve new business. However, in order to make that construction the department has to argue that the first question to be determined upon an application for a certificate is whether there is a need for additional service; and once it having been found that there is such a need, it follows that existing service is inadequate. The flaw in that argument is that there is a difference between a finding that there is a need for additional service and a finding that there will be a need for additional service. A finding that there will be additional freight business in the future does not establish that existing service is inadequate — which the statute prescribes as a condition of granting a new certificate. If the existing carrier keeps pace in his service with expanding business needs there will never be a point at which it can be said his service is inadequate (from the standpoint of quantity).

In our opinion tire 1956 amendment means simply that if the department has found, on suitable evidence, that the service of the existing carrier is inadequate, the department is not required to give the carrier a grace period in which to make his service adequate. It does not mean that the department can base a finding of inadequacy of existing service upon the fact that there will be more business in the future than the carrier now is handling.

The judgment is reversed with directions to enter judgment setting aside the order of the Department of Motor Transportation granting a certificate to Jones.

WILLIAMS, J., dissenting.


author: MOREMEN, Judge.

text:
    James Wallace WHITE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.
    Rehearing Denied June 26, 1964.
    William C. Jacobs, Lexington, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

Appellant, James White, by indictment No. 5874 of the Fayette County Grand Jury, was charged with storehouse breaking (KRS 433.190). By indictment No. 6108, he was charged with (1) possession of burglarious tools (KRS 433.120) and (2) having been twice before convicted of a felony (KRS 431.190). The court upon request of appellant ordered the two indictments to be tried together (RCr 9.12). Appellant was found guilty under indictment No. 5874 and his punishment was fixed at confinement for one year. He was found guilty also under indictment No. 6108 and his punishment was fixed at life imprisonment. A judgment was entered on the verdicts and it was ordered that the terms run concurrently. An appeal has been made from the entire judgment.

On this appeal the argument mainly is devoted to alleged errors in connection with the habitual criminal charge. In connection with the storehouse breaking charge, however, it is argued to some extent that the evidence was not sufficient to support the jury’s verdict. We do not agree. The circumstances shown were sufficient to warrant the submission of the case to the jury. Therefore the judgment with reference to the one year sentence for storehouse breaking is affirmed.

We are of opinion, however, that the instruction given in the habitual criminal case was erroneous. It reads:

“If the jury find the defendant, James Wallace White, guilty under Instruction No. 1, and if the jury believe from the evidence beyond a reasonable doubt that the defendant, James Wallace White, was convicted of storehouse breaking in 1952, and that the act of which you find him guilty, if you do so under Instruction No. 1 was committed subsequent to the act for which he was convicted in 1952, and if the jury believe from the evidence beyond a reasonable doubt that the defendant was convicted of storehouse breaking in 1960, and that the act for which he was convicted was committed subsequent to the act for which he was convicted in 1952, then the jury will fix his punishment as confinement in the penitentiary for life.”

In Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728, we said:

“Our interpretation of the habitual criminal statute * * * has consistently been that the previous crimes and the one with which the accused is presently charged must have been committed progressively after each conviction. It is the commission of the second felony after conviction for the first, and the commission of the third felony after conviction of the second that is deemed to make the defendant an incorrigible. The indictment, the evidence and the instructions should make that status clear.”

We do not believe the instruction given conforms to that rigid rule. The instruction emphasizes acts, rather than convictions. It is not the act that gives concern, it is the conviction, the theory evidently being that the conviction must certainly impress upon the defendant the principle that crime does not pay. In other words, a person could commit many acts of criminality and pay no penalty for having so acted, yet when he has been summoned to reality by a conviction he is warned that his activities should cease. In any event, the rule is firmly embedded in our law and we reaffirm it. See Etherton v. Commonwealth, Ky., 335 S.W.2d 899.

In view of the fact that this case will be tried again, it is necessary to comment upon appellant’s argument that it was erroneous to instruct the jury that a life sentence is mandatory under a finding that the accused had been twice convicted of a felony and is guilty of the felony with which he is presently charged.

Under instruction No. 1, the court submitted the charge of storehouse breaking and said that if the jury found the accused guilty as charged in the indictment it could fix his punishment at confinement in the penitentiary for a period of not less than two nor more than ten years in its discretion.

Instruction No. 2 was as above set out in this opinion.

Instruction No. 3 reads as follows:

“If you find the defendant guilty of possessing burglary tools under Instruction No. 1, but you entertain a reasonable doubt from the evidence that it has been proved he was convicted of the offenses as set out in Instruction No. 2, you should fix his punishment as provided in Instruction No. 1.”

In Green v. Commonwealth, Ky., 281 S.W.2d 637, we said that where a jury is permitted to convict either under an habitual cidminal act instruction or an instruction pertaining to another crime, for which the jury must find the accused guilty before the provisions of the habitual criminal act can be invoked, the instructions were not properly subject to an objection that the life sentence was mandatory.

The judgment is therefore affirmed insofar as appellant was convicted of the charge of storehouse breaking and reversed insofar as he was convicted under the habitual criminal act.

Affirmed in part and reversed in part.


author: CLAY, Commissioner.

text:
    AMERICAN BEAUTY HOMES CORPORATION, Appellant, v. LOUISVILLE AND JEFFERSON COUNTY PLANNING AND ZONING COMMISSION et al., Appellees.
    Court of Appeals of Kentucky.
    March 13, 1964.
    As Modified on Denial of Rehearing June 26, 1964.

      Robert L. Sloss, David A. Jones, Louisville, for appellant.
    Homer Parrent, Jr., James L. Taylor, Mark Davis, Jr., Louisville, for appellees.
   CLAY, Commissioner.

This is a zoning case which raises a very important question of administrative appeal procedure. Appellant, the owner of a tract of land in Jefferson County, sought to have the zoning classification changed from a one family residential district to a “D-l” commercial district. The Zoning Commission denied the request. The circuit court, on a trial “de novo” under KRS 100.057(2), upheld the ruling of the Commission.

The property involved is a 2% acre tract of land located on the north side of Blue Lick Road in Jefferson County, approximately 780 feet west of Preston Highway. There are but a few residences already built in the immediate vicinity but it is in the middle of an area originally zoned residential. Across the road are a volunteer fire station and recreational playground. A substantial area at the intersection of Blue Lick Road and Preston Highway to the east is presently zoned commercial. About one-half mile in a southwesterly direction from the property is another commercial zone.

Appellant proposes to use its property for a community shopping center. Neighboring property owners raised no objection to the zoning reclassification. The trial court found it would be a community advantage ; that the property generally in this immediate area would not be adversely affected; and that it would not result in substantial detriment to others. However, the court decided these considerations were outweighed by others.

In support of the Commission’s ruling there was evidence appellant’s tract was more suitable for residential use than commercial development; that the particular location did not fit with the planned development of community shopping centers in Jefferson County; that there was an ample sufficiency of additional property in the general area zoned commercial; that there were no peculiar characteristics of this tract that would prevent its development for residential purposes; and that this was a clear case of “spot zoning”. There was no evidence of a substantial change in the character of the neighborhood which would justify special treatment of this particular tract.

The Chancellor, relying principally upon Hodge v. Luckett, Ky., 357 S.W.2d 303, upheld the integrity of the original zoning plan in adjudging that the decision of the Commission was neither arbitrary nor unreasonable and that there was no tenable basis for reclassifying this property. The Chancellor’s opinion understandably indicates some uncertainty as to the court’s role in deciding the issues on a “de novo” hearing. We will subsequently in this opinion dispose of this difficulty.

Appellant first contends the trial court improperly required it to introduce evidence first, thereby imposing upon it the burden of proof. It may be observed the court’s order related only to the order of proof, not the burden. Under CR 43.02 (3) the court has discretion in this matter and we find neither abuse of discretion nor prejudice. The same procedure was followed in Jenkins v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 357 S.W.2d 846.

The question of the burden of proof has impelled us to re-examine comprehensively our administrative appeal procedure and former decisions. This re-appraisal has convinced us that one phase of the procedure provided by KRS 100.057 not only is impractical and unworkable, but is unconstitutional.

Section (2) of KRS 100.057 provides that “Hearings in the circuit court shall be de novo * * (Our emphasis) We wrestled with this concept in Louisville and Jefferson County Planning and Zoning Commission v. Grady, Ky., 273 S.W.2d 563. When coupled with our decision in Boyd v. Louisville and Jefferson County Planning and Zoning Commission, 313 Ky. 196, 230 S.W.2d 444, which involved the burden of proof, we find the circuit court confronted with almost insurmountable difficulties. These involve not only the procedural method of trial but the scope of review in properly disposing of the appeal on its merits. The root of the trouble is that this statute undertakes to impose on the court a nonjudicial administrative function. See Davis, Administrative Law Text (1959), section 29.10 (page 535). It thereby violates section 27 of the Kentucky Constitution which provides for the separation of powers.

In order that the independence of the three distinct departments of government be preserved, it is a fundamental principle that the legislature cannot invade the province of the judiciary. II Am.Jur., Constitutional Law, section 206 (page 908) ; 16 C.J.S. Constitutional Law, § 104, page 483. It cannot take away judicial power. Commonwealth ex rel. Tinder v. Werner, Ky., 280 S.W.2d 214; Austin v. Lambert, 11 Cal.2d 73, 77 P.2d 849, 115 A.L.R. 849; State ex rel. Kostas v. Johnson, 224 Ind. 540, 69 N.E.2d 592, 168 A.L.R. 1118. Nor may it impose upon the judiciary nonjudicial duties. 11 Am.Jur., Constitutional Law, section 225 (page 937) ; 2 Am.Jur.2d, Administrative Law, section 579 (page 402); Boone County v. Town of Verona, 190 Ky. 430, 227 S.W. 804; State v. Huber, 129 W.Va. 198, 40 S. E.2d 11, 168 A.L.R. 808; State ex rel. Richardson v. County Court of Kanawaha County, 138 W.Va. 885, 78 S.E.2d 569. In short, the legislature can neither reduce nor enlarge the scope of the judicial function.

The duties or functions which the legislature may not transfer to the judiciary have been characterized as either legislative or executive. 'That many of these may be delegated to administrative agencies has long been acknowledged. Their descriptive classification is not, however, the significant point. The vice lies in the fact that the duties or functions sought to be conferred upon the courts lie beyond the scope of judicial power.

If the legislature cannot impose upon the courts the administrative duty or function of making an initial discretionary decision, it cannot do so by the fiction of an appeal which requires the court to adjudicate upon administrative rather than judicial considerations. 16 C.J.S. Constitutional Law § 164, page 838.

In a recent opinion of the Alabama Supreme Court this precise question was carefully examined. Ball v. Jones, 272 Ala. 305, 132 So.2d 120. The statute involved was similar to KRS 100.057, and prescribed a “de novo” trial in the circuit court upon an appeal by an aggrieved person from a decision, order or act of the legislative body of a city on the subject of zoning. The opinion points out that zoning is a legislative matter and the legislature could not delegate to or confer upon the courts this function. Since authorizing the circuit court on appeal to try the matter “de novo” has this effect, the act was held unconstitutional as imposing upon the court a nonjudicial function.

We accept as sound the reasoning of this opinion on the general principle involved. Let us examine its application to the present case.

•The subject matter of this controversy is a proposed adjustment to a master zoning plan. It is clear under our statutes that the Planning and Zoning Commission, when acting on a proposed adjustment, performs the identical legislative function involved in promulgating the master zoning plan. KRS 100.055 is entitled in part “Delegation to commission of power to approve adjustments; controlling factors;”. Section (2) of this statute provides that the Commission shall be guided and governed by the purposes and provisions of certain zoning statutes (enumerating them) and shall be “particularly in accordance with” the purposes and provisions of other statutes (enumerating them), “ * * * to the end that said master plan, or part or parts thereof, as the case may be, as so adjusted shall accomplish a coordinated and harmonious development of the incorporated and unincorporated area of the entire county.”

Here obviously is a delegation of legislative power to an administrative agency (whether characterized as a part of the legislative or executive branch of the government) to be exercised in conformity with a legislative policy and in a discretionary manner in the light of prevailing local conditions. It calls for policy decisions by a body with specialized training and experience in this field. In no sense does the Commission perform a judicial function.

The legislature has undertaken to confer upon the judiciary the identical duties and powers of the Commission. This is accomplished by requiring a “de novo” trial on appeal to the circuit court. KRS 100.057 (2). The futility of the initial proceedings is obvious when we recognize that all the steps taken before the Commission are nullified by taking an appeal. The detailed administrative process is a mockery. This procedural absurdity may be traced directly to the unconstitutional character of the “de novo” provision. See California Co. v. State Oil and Gas Board, 200 Miss. 824, 27 So.2d 542, 28 So.2d 120. Some courts avoid this difficulty by construing “de novo” as meaning no more than judicial review on generally accepted grounds. See Davis, Administrative Law Text (1959), section 29.10 (page 535). We do not see the advantage in so distorting the accepted meaning of the term. See Louisville and Jefferson County Planning and Zoning Commission v. Grady, Ky., 273 S.W.2d 563.

If a court is required to try out independently the propriety of an adjustment in a zoning plan, then the court is simply substituted for the Commission in determining and applying legislative policy to local conditions which require the expertise of an administrative agency. The legislature cannot, by directing a method of appeal procedure, impose upon the courts administrative duties to carry out its policies by discretionary decisions. City of Louisville v. Kraft, Ky., 297 S.W.2d 39; California Co. v. State Oil and Gas Board, 200 Miss. 824, 27 So.2d 542, 28 So.2d 120; Borreson v. Department of Public Welfare, 368 Ill. 425, 14 N.E.2d 485; Ball v. Jones, 272 Ala. 305, 132 So.2d 120; Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699; Chemical Bank & Trust Company v. Falkner, Tex., 369 S.W.2d 427. We therefore conclude that KRS 100.057, to the extent it requires a “de novo” trial in the circuit court upon an appeal from an act or decision of the Planning and Zoning Commission, is unconstitutional and void.

In Ball v. Jones, 272 Ala. 305, 132 So.2d 120, last above cited, the court decided that the “de novo” feature extinguished any right to appeal. We cannot accept this view and are inclined to follow the dissenting opinion of Judge Goodwyn to the effect that the statute was invalid with respect to the trial “de novo” but still permitted an aggrieved party to appeal. This also was the ruling in California Co. v. State Oil and Gas Board, 200 Miss. 824, 27 So.2d 542, 28 So.2d 120, heretofore cited. We think the “de novo” provision of ICRS 100.057 is clearly severable from the rest of this statute.

An appeal from any action or decision of a Planning and Zoning Commission in cities of the first class and counties containing such cities was authorized as an integral part of zoning procedure. Since we have decided that a trial “de novo” does not constitute a proper judicial review of this administrative action, our remaining question concerns the scope of review under KRS 100.057 with the “de novo” feature eliminated.

Section (1) of this statute provides that the circuit court shall have jurisdiction “to hear and determine all questions and issues properly brought before it on such appeal”. As we shall show, this provision sufficiently encompasses the essential elements of adequate review.

Basically, judicial review of administrative action is concerned with the question of arbitrariness. On this ground the courts will assume jurisdiction even in the absence of statutory authorization of an appeal. Schloemer v. City of Louisville, 298 Ky. 286, 182 S.W.2d 782; Hatch v. Fiscal Court of Fayette County, Ky., 242 S.W.2d 1018. There is an inherent right of appeal from orders of administrative agencies where constitutional rights are involved, and section (2) of the Constitution prohibits the exercise of arbitrary power.

Obviously within the scope of a proper review the court may determine whether the agency acted in exercise of its statutory powers. Henry v. Parrish, 307 Ky. 559, 211 S.W.2d 418. Such action would be arbitrary within the prohibition of section (2) of the Kentucky Constitution. See 2 Am.Jur.2d, Administrative Law, section 617 (page 460).

In the interest of fairness, a party to be affected by an administrative order is entitled to procedural due process. Kentucky Alcoholic Beverage Control Board v. Jacobs, Ky., 269 S.W.2d 189. Administrative proceedings affecting a party's rights which did not afford an opportunity to be heard could likewise be classified as arbitrary.

Unless action taken by an administrative agency is supported by substantial evidence it is arbitrary. Thurman v. Meridian Mut. Ins. Co., Ky., 345 S.W.2d 635.

The above three grounds of judicial review, (1) action in excess of granted powers, (2) lack of procedural due process, and (3) lack of substantial evidentiary support, effectually delineate its necessary and permissible scope. It is possible that other apparently unrelated matters of law may be considered. Judicial review of legal questions cannot be impaired by the legislature. 2 Am.Jur.2d, Administrative Law, section 654 (page 515); Kendall v. Beiling, 295 Ky. 782, 175 S.W.2d 489. In the final analysis all of these issues may he reduced to the ultimate question of whether the action taken by the administrative agency was arbitrary. As a general rule the yardstick of fairness is sufficiently broad to measure the validity of administrative action. See Commonwealth ex rel. Meredith v. Frost, 295 Ky. 137, 172 S.W.2d 905.

It is true there may be found in federal and state statutes a seemingly endless category of grounds which purport to bracket the scope of judicial review. The Federal Administrative Procedure Act specifies six grounds, which actually are subdivided into sixteen. Our Workmen’s Compensation Act specifies four grounds. The Alcoholic Beverage Control Act specifies three. Another zoning statute, KRS 100.480, lists three grounds, which really expand to four in the light of KRS 100.'-480, but two are essentially duplications. Another zoning statute, KIRS 100.872, lists three grounds but omits the substantial evidence ground, and the first and third are in substance duplications. Orders of the Public Service Commission under KRS 278.410 (1) are reviewable on two grounds, “unlawful or unreasonable”, which strikes us as admirably acceptable and adequate.

The uncorrelated legislative attempts to designate specific considerations controlling the scope of judicial review are aimed in the proper general direction, but the fact of the matter is that they have not materially affected or changed the pattern of review. This is so because the scope of review is basically founded upon the independent exercise of judicial power, and limitations imposed by the legislature will not prevail if they fail to protect the legal rights of a complaining party. As we have heretofore indicated, the courts can and will safeguard those rights when questions of law properly present the ultimate issue of arbitrary action on the part of an administrative agency.

To return to our recent point of departure, we reaffirm that the legislature in enacting KRS 100.057 intended to grant a procedural right of direct appeal in a case such as the one before us. Since we have determined that the legislature could not convert judicial review into the making of an administrative decision, the appellant is limited to those issues which may properly be brought to the court for review. As we have indicated, those issues are confined to questions of law which are encompassed in the question: “Was the administrative decision arbitrary?”

There is one minor problem of procedure in properly presenting this question to the circuit court on appeal. The record made before the Zoning Commission is of course important and KRS 100.057 makes no specific provision for bringing up that record. However, section (1) of that statute requires that “an order to show cause be issued against and served upon the commission”. We may reasonably construe such order as requiring the Commission to certify its complete record to the court, as is done under KRS 100.480(2) and KRS 100.872(3). No new or additional evidence would be admissible on appeal except to determine what state of facts the Commission acted on, or possibly to establish the violation of some legal right with respect to a matter not in issue in proceedings before the Commission.

The only claim of arbitrariness in this proceeding could be that there was not substantial evidence to support the ruling of the Zoning Commission. Our recitation of the evidence in support of this order, appearing in the first part of this opinion, makes it clear that this requirement was amply fulfilled. There was a presumption in favor of the original zoning plan. Schloemer v. City of Louisville, 298 Ky. 286, 182 S.W.2d 782. The evidence for the appellant showed no more than convenience to it and neighboring property owners in the immediate area if a change of classification were made. On the other hand, the maintenance of the original plan was shown to be in the best public interest from the standpoint of the entire zoned area.

Against the possible charge by appellant that we have changed the rules in the middle of the game, we will observe that even if the burden of proof had been on the Commission, and even if the trial judge had been properly required to render an administrative decision, we are in complete agreement with his findings and conclusions based upon the record made in the circuit court. See Hodge v. Luckett, Ky., 357 S.W.2d 303.

We deem it necessary to here comment upon another type of appeal authorized under KRS, Chapter 100. While the appeal before us stems from a decision of the Planning and Zoning Commission with respect to an adjustment in the zoning plan, the same chapter provides for a similar appeal from the Board of Zoning Adjustment and Appeals from a decision making special exceptions or otherwise ruling on the requirements of zoning regulations and restrictions. KRS 100.085. Since the latter appeal is taken under KRS 100.057, what we have heretofore said applies to it as well.

In Ball v. Jones, 272 Ala. 305, 132 So.2d 120, heretofore cited, there is dictum to the effect that a board of zoning adjustment performs a quasi judicial function and that a “de novo” trial on appeal from such a board might not offend the Constitution. We cannot accept this label as accurately descriptive of the action of a zoning administrative agency nor can we accept the legal effect of using this label.

Though a different (but similar) administrative agency was involved, this precise question was decided by the Supreme Court of Missisippi in California Co. v. State Oil and Gas Board, 200 Miss. 824, 27 So.2d 542, 28 So.2d 120, heretofore cited. It was there held that an administrative body with power to make exceptions to a legislative plan for spacing oil wells was acting in the same legislative capacity as that involved in prescribing the original plan and the courts could not be authorized to pass upon proposed exceptions in a “de novo” manner.

We conclude that regardless of whether an administrative agency is promulgating an original zoning plan or allowing adjustments or exceptions to it, if it has been designated to carry out a legislative policy by the exercise of discretionary judgment in a specialized field, it is performing a nonjudicial function. The legislature may not delegate to or impose upon the judiciary such an administrative decision or require a court to substitute its independent judgment on the facts for that of an administrative agency of another branch of government to which the right of decision has been duly delegated. Therefore, this opinion governs appeals taken under KRS 100.085.

The cases of Louisville and Jefferson County Planning and Zoning Commission v. Grady, Ky., 273 S.W.2d 563, and Boyd v. Louisville and Jefferson County Planning and Zoning Commission, 313 Ky. 196, 230 S.W.2d 444, are expressly overruled.

The judgment is affirmed.

      . Section 27 of the Kentucky Constitution provides: “The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

      . Ball v. Jones, 272 Ala. 305, 132 So.2d 120.

      . Borreson v. Department of Public Welfare, 368 Ill. 425, 14 N.E.2d 485.

      . See Administrative Procedure Law in Kentucky, Research Report No. 12, (1962) Legislative Research Commission. An Administrative agency has been realistically characterized as a jourth branch of government. See Report of Hoover Commission, March 1949, “Regulatory Commissions,” p. 2; O’Conor, Policing the Administrative Process, (1957) 43 ABA Journal 920, 923.

      . Identification of the essential nature of judicial power would call for a lengthy treatise. An excellent discussion may be found in State v. Huber, 129 W.Va. 198, 40 S.E.2d 11, 168 A.L.R. 808. In an unpublished essay the writer of this opinion, with some trepidation, once undertook to define judicial power as “the constitutional authority to make final and enforceable decisions of questions of law raised by a claim of legal right.”

      .This is not the same thing as a special exception to a zoning regulation which is passed upon by the Board of Zoning Adjustment and Appeals under KRS 100.-082, but since the appeal procedure is the same, our decision in this case will likewise control appeals from decisions, orders or rulings of such Board. See KRS 100.085 (2). The matter will be further discussed in this opinion.

      . If the legislature creates a cause of action, it may designate a court rather than an administrative agency to decide a question of liability in the first instance. For example, the legislature could probably require the courts to entertain initially such claims as those now presented to the Workmen’s Compensation Board or the Board of Claims. It steps over the line, however, when it imposes on the court the duty of making policy decisions in the administrative field.

      . This case involved annexation procedure. In the opinion we were bard pressed to restrict our decision to matters of law in the performance of our judicial function and in the exercise of our judicial power. The legislature had apparently intended to confer upon the court authority to decide policy questions and to exercise discretion. In the light of what we are deciding in this opinion, we could well have declined in that case to make a judicial determination of what is essentially a legislative matter.

      . It is difficult to understand the policy of the legislature with respect to appeals in zoning cases. For eities of the first class, as we have heretofore discussed, the scope of review in the circuit court is so liberal (the “de novo” feature) as to call for the exercise of nonjudicial power. (KRS 100.057). For all other cities review by the circuit court is restricted to three specified considerations. (KRS 100.490; KRS 100.S72.)

      . Foster v. Goodpaster, 290 Ky. 410, 161 S.W.2d 626, 140 A.L.R. 1044; Kentucky Alcoholic Beverage Control Board v. Jacobs, Ky., 269 S.W.2d 189.

      . In Pritchett v. Marshall, Ky., 375 S.W.2d 253, we observed that section (2) of the Kentucky Constitution is broad enough to embrace both due process and equal protection of the law.

      .While certain Kentucky statutes specify as a ground of review the issue of bad faith, fraud or misrepresentation, it is difficult to grasp exactly what the legislature had in mind. Neither the Federal Administrative Procedure Act (5 U.S.O. § 1009(e)) nor the model State Administrative Procedure Act (see Administrative Procedure Law in Kentucky, Research Report No. 12, (1962) Legislative Research Commission) recognize such considerations. To the extent this kind of tortious conduct might affect the validity of administrative action, review would apparently be warranted within the compass of arbitrariness.

      . 5 U.S.C. § 1009(e).

      . KRS 342.285(3).

      . KRS 243.570(2).

      . When no direct appeal is authorized by the legislature, resort to other procedural remedies may be required to obtain a review of administrative action. See Foster v. Goodpaster, 290 Ky. 410, 101 S.W.2d 626.

      . We believe this a more reasonable construction of the “show cause order” than that adopted in Boyd v. Louisville and Jefferson County Planning and Zoning Commission, 313 Ky. 196, 230 S.W.2d 444, which is being expressly overruled in this opinion.

      . See California Co. v. State Oil and Gas Board, 200 Miss. 824, 27 So.2d 542, 28 So.2d 120.

      . Fraud or bad faith could fall within this category.

      . It is very doubtful that characterizing the function of an administrative agency as quasi judicial serves any purpose but to confuse. Though such an agency may adjudicate, it does not exercise judicial power and the term, instead of correlating the agency with the judiciary, may mean exactly the opposite. See Mulhearn v. Federal Shipbuilding & Dry Dock Co., 2 N.J. 356, 66 A.2d 726, 730; Batty v. Arizona State Dental Board, 57 Ariz. 239, 112 P.2d 870; Moyer v. Parr, 69 Ohio App. 344, 37 N.E.2d 637.


author: PALMORE, Judge.

text:
    Glenn THOMPSON, Appellant, v. MAYFLOWER COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    May 22, 1964.
    Dan Jack Combs, Pikeville, for appellant.
    Emmett G. Fields, Whitesburg, for ap-pellees.
   PALMORE, Judge.

In this Workmen’s Compensation proceeding the referee found that “the plaintiff is disabled now but it is all caused and brought about by the disease of osteoarthritis and none of said disability was caused by the accident of September 5, 1961.” That finding was affirmed by the full board and sustained on appeal to the Letcher Circuit Court.

It is the claimant’s contention that his disability is the result of a herniated disc. The board having found against him, he is entitled to a reversal only if on the basis of all the evidence in the case it is clear that this was the only conclusion reasonable men could draw.

On September 5, 1961, while working in a coal mine, claimant was momentarily-pinned against a pile of loose coal by a coal car. Thereafter he experienced pain in his abdomen, back and left leg, but continued to work until January 8, 1962. Meanwhile, he called Dr. T. M. Perry, a local physician, to his home on September 9 and 14, 1961, complaining of pains shooting through his back and leg. He says he had never had any trouble with his back or legs prior to September 5, 1961, but Dr. Perry, testifying for the employer company, says he had seen him previously for his back condition, that at no time did he mention an injury, and that he (the doctor) “took it for granted it was a spondylitis or osteo-arthritis of the lumbar spine” and prescribed a muscle relaxant. Dr. Perry made another home call on claimant January 9, 1962, the day after he quit work, and conducted a physical examination just before testifying in July of 1962, at which time he had the additional benefit of X-rays taken under the direction of Dr. A. W. Shiflet, an orthopedic surgeon. Dr. Perry was still of the opinion that the claimant’s condition resulted from osteoarthritis, spondylitis (lumbago), or spondylolisthesis, and that he would not have been able to continue working after September 5, 1961, if he had suffered a herniated disc at that time. It was Dr. Perry’s judgment that the condition had developed slowly and progressively over a period of 4 or S years, resulting from disease and not trauma.

Dr. E. E. Musgrave, an “industrial medicine” specialist practicing in Letcher County, examined claimant on January 24, 1962, •and found a weakness and atrophy of certain muscles in the left leg. Based on this examination, including a history given by the patient, he was of the opinion that a “nerve injury due to a herniated disc” sustained in the accident was the cause. He said claimant was a stoic type of individual and that his continuing to work for several months was not necessarily inconsistent with having sustained such an injury.

Dr. B. F. Wright, a general practitioner of Letcher County, examined claimant in June of 1962 in behalf of the company. He too used Dr. Shiflet’s X-rays. His diagnosis was osteoarthritis originating well before the date of the accident: “I could find nothing * * * sometimes trauma may produce osteoarthritis, but in this case it is my opinion that the condition found was entirely due to the disease. * * * I could see nothing in the spine of [sic] the X-rays or physical examination that indicated a herniated disc.”

Dr. Shiflet, the orthopedic surgeon, examined claimant in June of 1962 in behalf of the company and had X-rays taken, which “showed osteoarthritis, mild, of lumbar spine with degeneration and narrowing of L5-S1 interspace. * * * I could not find sufficient objective findings to substantiate a diagnosis of herniated lumbar disc, nor could I find sufficient objective findings to substantiate his claim of disability incident to the injuries he described.” He pointed out that a myelogram is the most important diagnostic aid in determining the presence of a herniated disc. (Myelography was not performed in this case.)

Dr. Gene Combs, a specialist in radiology, inspected Dr. Shiflet’s X-rays and observed that on the “third, fourth and fifth lumbar vertebrae bodies there are moderate osteoarthritic spurs on the anterior bones of the articular plates. Otherwise the spine is normal in appearance.” He testified for claimant and in response to a hypothetical question expressed the opinion that the arthritic condition was not sufficient to account for the disability, but that it probably was attributable to nerve injury and pressure.

As may be seen from this brief summary of the evidence, there is a distinct possibility of a herniated disc, and at least two of the medical witnesses think it is probable. Dr. Shiflet, the orthopedic surgeon, answering a hypothetical question on cross-examination, conceded that he would pursue the investigation further. However, both he and the other physicians who testified for the company were of the opinion, in substance, that in the absence of further information the disease of osteoarthritis appears to be the more probable diagnosis. Claimant, of course, had the burden of proof and bore the risk of non-persuasion. Cf. Lee v. International Harvester Company, Ky., 373 S.W.2d 418. Under the circumstances we are unable to say that it was clearly unreasonable of the board not to be convinced by his evidence when viewed against the evidence on the other side.

The real issue on this appeal is raised by claimant’s contention that because Dr. Combs was the only specialist in radiology among the medical witnesses, his testimony should outweigh that of the others. In other words, there should be grades of experts. Perhaps so, but such a grading falls within the fact-finding province. We should hesitate to do it as a matter of law except in a case of extreme and obvious contrast. We do not have that in this case. It is a matter of judicial notice that an orthopedic surgeon, such as Dr. Shiflet, has to be a pretty fair hand at reading X-rays. Moreover, even though Dr. Combs may have a greater competence in how to employ an X-ray machine to best advantage and to interpret what is shown on the film, once he has done that we presume that other specialists would be more qualified than he to relate his findings in terms of specific physiological significance and effect. In other words, conceding the radiologist was best able to identify the presence of arthritic spurring, the probable effect of that condition on some other part of the body would not necessarily be any more within his than any other physician’s competence to judge. As a matter of fact, it is interesting to note that Drs. Shiflet and Combs described what the X-rays showed in virtually the same terminology, one using the word “moderate” where the other used “mild.” We find nothing to suggest that Dr. Combs’ opinion had greater probative value than Dr. Shiflet’s on the relationship between the spinal arthritic condition and the weakening of the leg.

It is further contended that when, as in this case, the expert medical witnesses disagree the board should be required to seek the opinion of one or more disinterested experts. A 1946 amendment to KIRS 342.315 making such an appointment mandatory on application of either party was repealed in 1948. See c. 37, § 8, Acts of 1946, and c. 151, § 3, Acts of 1948. We' assume therefore that the legislative body intended the board to have its discretion in that respect. So be it.

The judgment is affirmed.


author: MILLIKEN, 'Chief Justice.

text:
    RIVER QUEEN COAL COMPANY, Inc., Appellant, v. Anton MENCER et al., Appellees.
    Court of Appeals of Kentucky.
    May 22, 1964.

      Jarvis & Cornette, Greenville, for appellant.
    W. D. Bratcher, Greenville, for appellees.
   MILLIKEN, 'Chief Justice.

This appeal is from a verdict and judgment awarding appellees, Anton Mencer and his wife Rena, $5,000 for damage to their home allegedly caused by the blasting operations of appellant, River Queen Coal Company, Inc., which strip mined coal in the area.

Before considering the contentions of the appellant, we shall summarize the circumstances which gave rise to the action. Since 1950 the appellees, the Mencers, have lived in a concrete block home which they built and own. Appellant, River Queen, is engaged in the strip mining of coal, an activity which requires the use of explosives to fragmentize the overburden of rock and soil in order to expose the coal. The appellees and their witnesses testified that after appellant began these operations in 1958, the house was often severely shaken and they observed cracks which became progressively worse. At no time did appellant set off explosives at a distance of less than one and one-half miles from appellees’ home. Seismologists who testified on behalf of appellant stated that under the circumstances existing in this case, it was a physical impossibility for appellees’ house to have been damaged by either vibrations or concussions emanating from the charges set off by River Queen.

Mencer, his wife and his son testified to feeling the vibrations from the blasting, hearing the dishes and windows rattle, and to the physical damage to the house which immediately ensued. Neighbors, who lived a comparable distance from the blasting corroborated their testimony as to the vibrations from the blasting and one stated the Mencer home had been in good condition before the blasting. Furthermore, it was admitted that Mencer notified River Queen’s superintendent by writing and by telephone calls several months before the present suit was filed that the blasting was damaging his home, but River Queen did not change its blasting procedure. It did assign an employee to ascertain the cause of the damage to the Mencer home and was informed by the employee that the damage was caused by settling of the house. The settling theory was contradicted by a contractor who testified for the Mencers and opined that settlement was not the cause of the damage. It also was pointed out that when the Duncan Coal Company operated in the area no damage was done by its blasting.

We conclude that there was enough evidence to take the Mencers’ case to the jury despite River Queen’s abundant expert testimony that the Mencer home was too far away to be affected by the blasting. Although the experts’ testimony in the case at bar is strong, we cannot say that it is conclusive — that the defense was entitled to a directed verdict on the thoery that the damage to the Mencer home just could not have been caused by the blasting as a scientific fact. Were we to take such a view, we would be requiring a complainant to prove his case scientifically rather than by the law’s old established standard of probable cause. We do not find the testimony of the appellees as to the damage following the blasts as so inherently incredible or contrary to the laws of nature as to justify directing a verdict for River Queen. S3 Am.Jur., Trial, Section 149.

River Queen contends that the appellee Anton Mencer was not qualified to give opinion evidence that River Queen had used explosives in excess of those necessary. Since it was shown that Mencer had used and observed the effects of explosives for nearly thirty-five years, there was no error in admitting this testimony, Brooks-Calloway Company v. Carroll, 235 Ky. 41, 29 S.W.2d 592, and it was competent for other witnesses to testify to damages to or observations made upon other property as far or farther from River Queen’s operation. Glens Falls Insurance Company v. Ogden, Ky., 310 S.W.2d 547.

Evidence on behalf of appellees showed that the walls and foundations, as well as plaster, were cracked in the house. A general contractor testified that it would require about $6,000 to repair the damage caused by the blasting. This testimony was competent. Brooks-Calloway Company v. Carroll, supra. The testimony of Anton Mencer that it would cost $12,000 to reconstruct his house was not proper, but the only unsustained objection to this line of questioning related to his qualifications. Therefore, we must hold that error was waived and was unprejudicial in view of the amount of the verdict and the aforementioned testimony of the contractor.

Appellant contends that Instruction No. 1 was erroneous in that it permitted a maximum recovery of $12,000. This amount was supported solely by the previously mentioned testimony of Anton Mencer and did not relate to the cost of repair. Where a building cannot be reasonably repaired, the measure of damages is the fair market value just before and just after the injury. Hunt-Forbes Construction Company v. Martt, 247 Ky. 376, 57 S.W.2d 37. However, we do not believe the giving of the instruction requires a reversal since the distinction between “reconstruction” and “repair” was never raised before the trial court by objection or by motion for a new trial and since the verdict itself was amply supported by competent evidence of a contractor. Moreover, since there was no evidence of before and after market values, an instruction on this measure of damages would have been improper.

Appellant offered a list of twenty-seven instructions and insists they should have been given. As might be expected these were so worded as to be most favorable to appellant and, essentially, would have required that expert testimony support appellees before they would be entitled to recovery. As has been heretofore indicated, to so weight this expert testimony would have been an improper restriction on the prerogative of the jury.

Going to the contention of impropriety; in the closing argument, River Queen specifically objects to seven statements. We need consider only three of these to which objections were interposed. International Shoe Company v. Dawahare’s, Inc., Ky., 255 S.W.2d 981. Of these, two relate to an alleged inference by appellant that its wealth was being emphasized. We do not believe that the same inferences would have been drawn by the jury. The other objection is to the statement that a seismograph “is as cold blooded as that bannister.” Reference to a machine in this way is no reflection on the integrity of the parties or the machine. Nor does it seem prejudicial for appellees to further state that the machine was incapable of measuring the physical and mental efforts expended in constructing the house.

As has been shown, the verdict of $5,000 is supported by competent evidence that it would require $6,000 to restore the house. Therefore, there is no merit to the argument that the verdict is excessive and flagrantly against the evidence.

The judgment is affirmed.


text:
    F. Clay MERRELL et al., Appellants, v. Howard BALL, Appellee.
    Court of Appeals of Kentucky.
    May 22, 1964.
    L. Lee Booth, Louisville, for appellant.
    Norman A. Curtis, Louisville, for appel-lee.
   PALMORE, Judge.

The appellants, F. Clay Merrell and wife, sued Howard Ball for personal injuries and property damage resulting from an accident in which their automobile was struck from the rear by an automobile driven by Ball. A jury found for the defendant. Plaintiffs say they were entitled to a directed verdict and a judgment n. o. v. and, if they are wrong in that respect, a new trial on the ground that one of the jurors failed to disclose on voir dire that her husband knew one of the witnesses.

The accident happened near the corner of 18th Street and Broadway in Louisville at about 11:00 o'clock on a cold winter night. It was snowing hard and the streets were covered with ice and snow. Both drivers were going north on 18th Street, and Merrell had stopped behind several other vehicles waiting for the traffic light at Broadway to change from red to green. We quote from Ball’s testimony (which, of course, the jury was entitled to believe) as follows :

Q. “Was the whole street before you got to Broadway a sheet of ice or was there any particular difference in the coating of ice or the slickness up close to the intersection as back from the intersection?”
A. “It was slicker at the intersection there because of cars stopping and starting there. They had packed it down, and, of course, it was slicker than the rest of the streets.”
Q. “And was Mr. Merrell’s car — had it come to a stop before you tapped it?”
A. “I think so, yes sir. I couldn’t say for sure.”
Q. “Had you been following Mr. Merrell’s car?”
A. “Yes sir, I was behind him.”
Q. “And about how fast were you all going north on 18th Street before you came up to the light?”
A. “I would say probably ten to fifteen miles an hour at the fastest.”
Q. “And when you approached the light did you see the red light?”
A. “Yes sir.”
Q. “Did you do anything with reference to stopping your car as you got to the light?”
A. “I hit them — I put my brakes on gently. I have the power brakes, and then when I got up pretty close to him, well then, I did push them on, and it just locked all four of my wheels and just slid gently into him.”
Q. “And about how fast were you going when you applied your brakes?”
A. “I would say four to five miles an hour.”
Q. “That was the last time ?”
A. “Yes sir.”
Q. “Well, did you apply them more than one time ?”
A. “Yes sir.”
Q. “All right., Will you describe that? The first time you applied them what did you do to bring your car to a speed of four to five miles an hour?”
A. “Well, I just touched them slowly and, of course, decreased my speed.”
Q. “And what happened when you applied them the last time?”
A. “They all four locked and just slid.”
Q. “Now, was the. impact a hard impact or—
A. (Interrupting) “No sir.”
Q. (Continuing) — “a light impact?”
A. “Very light.”
Q. “Did it damage your car any ?”
A. “No sir.”

We had occasion in the recent case of Jones v. Carr, Ky., — S.W.2d - (decided May 1, 1964), to consider at length the inferences to be drawn from the skidding of a vehicle on an icy road or street and to review the decisions of this court on the subject, including Tente v. Jaglowicz, 241 Ky. 720, 44 S.W.2d 845 (1931), wherein it was said:

“Certainly ordinary care requires a driver of a car to consider the road on which he is driving, as well as the consequences likely to flow from carelessness. But it cannot be held as a matter of law that the operator of a car is necessarily negligent when it skids or slides on an icy street. The proper inferences from that fact are to be drawn by the jury. * * * In this case the sliding of the car was explained by the slippery condition of the street, ¡md it was for the jury to say whether it was superinduced or accelerated by the negligence of the driver.”

As stated in Jones v. Carr, “That decision was and still is eminently sound.” It applies to this case. We do not suggest that there cannot be a case in which the handling of a vehicle on a slick surface was so clearly imprudent as to constitute negligence as a matter of law. Under the evidence of this particular case it simply was not that obvious. Hence appellants were not entitled to a verdict and judgment as a matter of law.

It appears from an affidavit in the record that during the course of the trial “one of the jurors, Ruth Fontaroff, talked with Dr. George McCrocklin in the hall outside the court room and that the substance of their conversation was that Dr. McCrocklin had been a student under Mrs. Fontaroff’s husband at some time in the past.”

Dr. McCrocklin, an orthopedic surgeon, had treated Mrs. Merrell following the accident. Though also subpoenaed by the defendant, Ball, he testified as her witness.

On voir dire the names of the witnesses had been announced, and some of the prospective jurors had been asked specifically if they were acquainted with any of them. The transcript does not indicate that Mrs. Fontaroff was asked if she knew any of the witnesses, but even if she had, there is nothing to suggest that she had ever heard of Dr. McCrocklin before or had been aware, prior to the casual conversation with him, that he was a quondam student of her husband’s. Conceding that m some cases a juror s failure to reveal pertinent information on voir dire may be presumptively prejudicial, we find no reasonable basis for so finding in this instance. It is not contended that the conversation itself was prejudicial in fact. Cf. Potts v. Krey, Ky., 362 S.W.2d 726 (1962).

The judgment is affirmed.


text:
    PENNYRILE RURAL ELECTRIC COOPERATIVE CORP., Appellant, v. James E. HIGGINS, County Judge of Christian County, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    May 22, 1964.

      John O. Hardin, Sr., Hopkinsville, for appellant.
    W. E. Rogers, Jr., Hopkinsville, for appellees.
    Stites, Peabody & Helm, James W. Stites, Lively M. Wilson, Rexford L. Hawkins, Louisville, amici curiie.
   DAVIS, Commissioner.

This appeal presents the question whether Christian County may reimburse Penny-rile Rural Electric Cooperative Corporation for the actual expense of relocating certain electric line facilities that had been located on private property, when the relocation of county roads embraced the private property on which the facilities were located. The Christian Fiscal Court had ordered payment of a portion of the sums expended by appellant in relocating some of its facilities, but the Christian County Attorney had prevented payment of the amount allowed in the order. The county judge had requested the relocation of the facilities, in writing, and the appellant had submitted in writing its estimates of actual removal costs. In some instances the county had paid, under protest, the amount claimed.

The case was submitted to the trial court for declaratory judgment upon an agreed statement of facts. There is no dispute between the parties as to the accuracy of the sums spent by appellant; the narrow question is whether the appellant’s franchise, granted by Christian County, requires appellant to remove the facilities at its own expense. Decision of the question requires examination of the franchise, which in pertinent part is as follows:

“I. That there is hereby created and established a franchise or privilege to erect, operate and maintain a system of electric lines, poles, wires, cables and fixtures and appliances necessary and essential to the operation and maintenance of such system along and across the public roads, highways, turnpikes and bridges of Christian County subject to the jurisdiction of this Court.
* * * * * *
'TV. Said lines, wires, cables, poles and fixtures and appliances shall be erected and maintained in a skillful and scientific manner and so as not to endanger the lives, or limbs of persons, or property of those using the public highways of this County so as not to interfere with the operation and maintenance of telephone lines and electric lines now existing in same. The wires and cables strung upon said poles along or across said roads and highways shall be constructed and maintained not less than twenty (20) feet above the public roads, and at such a height at all times and places so as shall not interfere with the full and free use of said highways for traffic purposes. Said poles shall be located outside of the valleys and ditches, and so as not to interfere with the public traffic or travel on said public highways and turnpikes, nor with the maintenance, repairs, construction, re-construction, relocation or re-establishment thereof or drainage of same, or to the entrance to any private property and in case of any interference occasioned thereby in the same, or in any relocation or re-establishment of any road, or highway, shall be removed and reset at the order of this Court, or of the Road Engineer thereof, at the expense of the owner of this franchise.”

It is observed that the franchise specifically relates to the maintenance of the electric system “along and across the public roads, highways, turnpikes and bridges of Christian County subject to the jurisdiction of this Court.” Indeed, it is not perceived how the county could have assumed authority to grant any rights relating to property not within its own jurisdiction. We conclude that the franchise does not purport to deal with appellant’s facilities outside the rights-of-way owned by Christian County.

It follows, therefore, that the quoted language in paragraph IV of the franchise refers only to facilities located within the county rights-of-way when it imposes on appellant the cost burden for the removal of “said poles.”

It is argued that appellant had agreed to relocate any and all of its facilities, whether on or off the county right-of-way, so that it has a contractual liability to defray all •relocation expense. It is then reasoned that since the county had a valid contract requiring appellant to pay for the relocation of all facilities, the county may not expend public funds for payment of appellant’s obligation. It may well be that such a contract could have been made between the county and appellant — the difficulty is that such an agreement was not made.

The fiscal court has the authority to expend public funds under its control for the relocation of roads. KRS 67.080 and 178.115. Since there is no contractual obligation upon appellant to relocate its facilities already off the county right-of-way, it follows that the expenditures by the fiscal court to accomplish the relocations are legal expenditures.

Our ruling in Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky., 266 S.W.2d 308, does not govern this case; there the rule was reaffirmed requiring the utility to remove its facilities from the public right-of-way at its own expense. The decision does not stand for the proposition that the utility is required to remove facilities from its own privately acquired right-of-way on relocation of the highway.

There is ample authority for the proposition that an easement owned by a utility is property, and that it cannot be divested without compensation to the owning utility. See Panhandle Eastern Pipe Line Co. v. State Highway Comm’n, 294 U.S. 613, 55 S.Ct. 563, 79 L.Ed. 1090. However, we do not regard the issue before us as extending to that legal area. The controversy as presented to us does not involve the question of value of any easement taken from appellant; rather it touches the authority of Christian County to expend public funds to reimburse appellant for costs incident to relocation of appellant’s poles and lines. Under the circumstances shown here, we have no difficulty in concluding that the county is legally authorized to make the expenditures in question.

The judgment is reversed with direction to enter judgment in conformity with this opinion.