author: L. F. COTTEY, Special Judge.

text:
    Ronald GASS, a Minor, by John Gass, His Next Friend, (Plaintiff) Respondent, v. Rosemary J. KNITTIG, Gilbert J. Moser, Kathleen D. Corey and Delbert N. Turnbough, Defendants, Kathleen D. Corey, (Defendant) Appellant.
    No. 31970.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.
    Rehearing Denied Oct. 20, 1965.
    Application to Transfer Denied Dec. 13, 1965.

      Richard C. Wuestling, III, William F. James, James & Morris, St. Louis, for defendant-appellant.
    John D. Hasler, St. Louis, for defendant Rosemary J. Knittig.
    Dearing, Richeson, Weier & Roberts, Hillsboro, for defendant Gilbert J. Moser.
    Stewart & Bruntrager, Joseph G. Stewart, St. Louis, for respondent.
   L. F. COTTEY, Special Judge.

A chain-reaction collision involving four automobiles driven by the defendants, and a fifth in which plaintiff was riding as a passenger, has resulted in a judgment for plaintiff from which only defendant No. 3 appeals. Accepting as true the evidence most favorable to plaintiff, the facts are these:

Lemay Ferry Road, near its junction with Butler Hill Road in St. Louis County accommodates four lanes of traffic, two northbound, two southbound. Plaintiff was southbound in the outer or curb lane on his side at a speed of “about 40 miles an hour.” All four defendants were northbound, the first three in the inside lane and the fourth in the curb lane on their side. As defendant No. 1 approached the Butler Hill junction where she proposed to make a left turn, she slowed her automobile, gave the appropriate signals, and, observing plaintiff’s car approaching at a distance of about 100 feet, came to a stop to allow it to clear the intersection. Almost instantly thereafter her automobile was struck from the rear by the automobile of defendant No. 2 — a “slight tap * * * barely felt”— and within “a matter of seconds” No. 2, in turn, was similarly struck from the rear by the automobile of defendant No. 3, who had been following at a speed of “30 or 35” miles per hour. That collision was severe, but all three vehicles remained in line in the traffic lane. At about the moment when those cars had “just hit,” defendant No. 4 turned into their lane from the curb lane, some “50 or 75 feet” behind No. 3, in the course of passing a truck he had been following. He had not previously noticed the automobiles of the other three defendants. He was driving “about 40 miles an hour.” Unable to stop, and prevented by the truck alongside him from re-entering the curb lane, he undertook to avoid the imbroglio ahead of him by swerving to his left across the highway. That eoncededly negligent maneuver brought him into head-on collision with the automobile in which plaintiff was riding, the point of impact being “about 20 feet” south of the intersection.

The trial court discharged defendant No. 1 on a directed verdict. The jury exonerated defendant No. 2. The verdict against defendants No. 3 and No. 4 was predicated on the proposition that their concurring negligence caused the accident. No. 3’s contribution to the affair, as hypothesized in plaintiff’s main instruction, was that she “overtook * * * and negligently and carelessly allowed her said automobile to run into and collide with the rear end of” the automobile ahead of her, thereby causing No. 4 to take evasive action to avoid running into her — and the action he took compounded the offense. It is apparent from the language of the instruction, and from the authorities cited to sustain it, that as against defendant No. 3 the case was submitted under the rear end collision doctrine. She complains that no submissible case was made against her on that theory. We agree, but not for the reasons she assigns.

Beyond doubt defendant No. 3 was negligent in running into the rear end of No. 2’s automobile which was at rest in proper position ahead of her in the traffic lane. And to avoid entanglement in the metaphysical subtleties of the rear end collision doctrine, we will assume that the instruction submitting that issue correctly resolved the question as to whether her negligence was general or specific and hypothesized every circumstance consistent with the view adopted. The fact that No. 3’s collision with No. 2 was a sequel to the “sudden stop” made by No. 2 in colliding with No. 1 does not absolve her of negligence as a matter of law, as she insists it should. Two wrongs do not so positively make a right. That circumstance would no doubt have authorized an instruction on No. 2’s contributory negligence, had No. 2 been the plaintiff in the case; but No. 2 is not complaining. The occupant of a third vehicle is the plaintiff in this case, and if No. 3 violated her duty toward him we may not exonerate her simply because another was in pari delicto with her.

But the fact that defendant No. 3 committed a negligent act does not end the inquiry. The next and ultimate question is, was that act of such a character as to give rise to the cause of action asserted against her in this case? On this phase of the inquiry the rule is that even though the act complained of involves a lack of care, it will not amount to actionable negligence unless it is shown to have been both a violation of some duty owed to plaintiff and an efficient cause of his injury. Kelley v. National Lead Co., 240 Mo.App. 47, 210 S.W.2d 728, 734; Bauer v. Wood, 236 Mo.App. 266, 154 S.W.2d 356, 358; 65 C.J.S. Negligence § l c, pp. 318-319. The requirement is not relaxed where the acts of several defendants are cited as concurring causes of the accident. In those cases the test is applied to the act of each, and each must be established as one of the responsible causes of the accident. Harvey v. Gardner, 359 Mo. 730, 223 S.W.2d 428, 433; Reed v. Shelly, Mo.App., 378 S.W.2d 291, 301; 65 C.J.S. Negligence § 110 b, p. 680 et seq. Thus the rule excludes from consideration as an irrelevant coincidence the act of any defendant which, although negligent as to others, was not harmful to plaintiff. Allen v. Wilkerson, Mo.App., 87 S.W.2d 1056, 1060. We think it demonstrable in this case that defendant No. 3 did not violate any duty she owed to plaintiff and that her collision with No. 2 was in nowise causally connected with the ensuing accident between plaintiff and No. 4.

In reaching that conclusion we have necessarily considered what the situation would have been had No. 3 displayed the most exemplary caution at all stages of the affair, the other circumstances being what they were. Significant among those circumstances is the fact that defendants No. 1 and No. 2 had stopped their automobiles to allow plaintiff’s car to clear the intersection. It was both necessary and lawful for No. 3 to stop behind them. The fact of her stopping, therefore, was an observance of her duty under the circumstances, not a violation of it; indeed, it is only the manner of her stopping that is complained of. Let us examine that. At the moment when it became necessary for her to stop, defendant No. 4 had just turned into, or was in the process of turning into, the lane behind her at a distance of only “SO or 75 feet.” He had not previously observed, nor taken any precaution to accommodate himself to the traffic situation ahead of him; he was traveling “about 40 miles an hour.” At that moment, by that irresponsible behavior, he created an emergency fraught with peril to everyone on the highway in front of him. If he was to avoid running down No. 3, or evade an equally culpable alternative in that emergency, it is obvious that he needed every inch of available space, every instant of available time, in which to bring his car under proper control. Observe, that No. 3 could have discharged her full duty under the law by simply slowing her automobile and bringing it to a seasonable stop some four or five feet to the rear of No. 2’s car. Had she done so, she would have been blameless by every standard. But had she done so, she would have reduced to some extent both the time and space in which No. 4 could hope to redeem his error, and, ironically, to the same extent she would have increased the likelihood of his failure. Instead, by ramming No. 2’s automobile she afforded No. 4 the ultimate limit of space, and by failing to slacken her speed she allowed him the maximum interval of time, in which to avoid the consequences of his misconduct. In neither particular did she aggravate plaintiff’s peril, in both she ameliorated it; in neither did she contribute to cause plaintiff’s accident, in both she did her utmost to prevent it. Her conduct under the circumstances, however involuntary and innocent of charity it may have been, was “above and beyond the call of duty.” The accident happened in spite of what she did, not because of it. True, she displayed a prodigal indifference to the rights of defendant No. 2; but plaintiff may not recover on No. 2’s cause of action. He must rely solely on a breach of No. 3’s duty to him. That she discharged as with “the last full measure of devotion.”

Not only was no case made against her on the theory submitted, none can be made against her on any theory. The judgment is accordingly reversed.

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


source: Caselaw Access Project

author: STONE, Judge.

license: Public Domain

text:
    Wilma CHAPMAN, Plaintiff-Appellant, v. Mason H. KING, Defendant-Respondent.
    No. 8460.
    Springfield Court of Appeals. Missouri.
    Oct. 28, 1965.

      A. L. Shortridge, Joplin, for plaintiff-appellant.
    Robert E. Seiler, Karl W. Blanchard, Joplin, for defendant-respondent. Seiler, Blanchard & Van Fleet, Joplin, of counsel.
   STONE, Judge.

In this jury-tried damage suit for personal injuries resulting from a vehicular collision, plaintiff Mrs. Wilma Chapman had judgment for $500 against defendant Mrs. Mason H. King. On this appeal by plaintiff, her complaints are that the verdict “was so grossly inadequate as to indicate bias and prejudice of the jury,” that the trial court abused his discretion in refusing to grant plaintiff a new trial on the ground of newly-discovered evidence, and that the court erred in giving defendant’s instructions 8, 9 and 10.

The transcript on appeal, as it came to us, raised a question as to our appellate jurisdiction, for the prayer of plaintiff’s petition was for damages in the sum of $25,000 and she had judgment for $500. Thus, on the face of the record, our Supreme Court would have been vested with exclusive appellate jurisdiction [Art. V, Sec. 3, Const, of 1945; V.A.M.S. § 477.040] under the general rule that, in the absence of “exceptional circumstances” .[Glore v. Bone, Mo., 324 S.W.2d 633, 634; Combs v. Combs, Mo., 284 S.W.2d 423, 424] such as those which we discussed in Mitchell v. Mosher, Mo.App., 352 S.W.2d 932, the amount in dispute where plaintiff appeals from an allegedly inadequate judgment is the difference between the amount prayed for and the amount of the judgment. Miller v. Harner, Mo., 373 S.W.2d 941, 942(1); Mitchell v. Mosher, Mo., 362 S.W.2d 532, 533(1); Rossomanno v. Laclede Cab Co., Mo. (banc), 328 S.W.2d 677, 679(1). However, in the jurisdictional statement in plaintiff’s brief, we were told that “the amount in dispute is less than $15,000”; and, at the time of submission, plaintiff’s counsel stated that his client’s claim was limited to $15,000 and, by leave of court and consent of opposing counsel, the prayer of plaintiff’s petition was reduced to $15,000. In these circumstances, the amount in dispute is $14,500 and we have appellate jurisdiction. V.A.M.S. § 477.040; Fowler v. Terminal R. Ass’n., Mo., 363 S.W.2d 672, 674-675 (5, 6) ; Davis v. Hilton, Mo.App., 366 S.W. 2d 501(1); Davis v. Ball, Mo.App., 271 S.W.2d 605. See Feste v. Newman, Mo. (banc), 368 S.W.2d 713, 715-716(6, 7); Heuer v. Ulmer, Mo., 273 S.W.2d 169.

The collision under consideration occurred shortly before 3:00 P.M. on Tuesday, December 18, 1962, in Joplin, Missouri, at the intersection of 22nd Street, a paved east-and-west street 34 feet in width, and Sergeant Avenue, a paved north-and-south street 30 feet in width. 22nd Street is designated by ordinance as a “right-of-way street”; and, on the northwest corner of the intersection of 22nd and Sergeant (hereinafter referred to as the intersection), there is a triangular sign bearing the single word “yield,” facing toward and directed to southbound traffic on Sergeant. Plaintiff, alone in a 1956 Plymouth two-door sedan, was eastbound on 22nd Street en route to a junior high school to pick up her two daughters and take them to a 3:00 P.M. dental appointment. Defendant, likewise alone in a 1959 Mercury four-door station wagon, was southbound on Sergeant en route to a 3:30 P.M. medical appointment. Both drivers were familiar with the intersection. The weather was good and the pavement was. dry.

As is usually the case, plaintiff and defendant (the only two witnesses as to the collision) did not view the occurrence through the same glass. Plaintiffs version was that, eastbound at a speed of 15 to 20 miles per hour, she had been “about one or two car lengths from the intersection” (she estimated a car length at 18 feet) when she first had seen defendant’s southbound station wagon approaching the intersection at a speed of 20 to 25 miles per hour; that, as the front end of plaintiff’s automobile “was going into the intersection,” the front end of defendant’s station wagon “was about one car length from [north of] the intersection”; that she had continued to watch the station wagon without changing her course or speed — “I had the right-of-way, that’s what — I expected her to slow down”; that plaintiff first had recognized that there was danger of a collision “after I got out into the intersection about half a car length ... I realized she [defendant] wasn’t going to stop”; but that it then had been too late for plaintiff to avoid the accident so she had continued forward on the same course and at the same speed to the point of impact in the southeast quadrant of the intersection.

Defendant’s account was that she had stopped before entering the intersection, “back from the yield sign a little”; that she had looked to her right or to the west and had seen plaintiff’s automobile on 22nd Street more than one-half block west of the intersection, eastbound “at a moderate rate of speed, [so] that I could have gotten across [22nd] street”; that she then had looked to her left or to the east and had observed a westbound automobile on 22nd Street more than one-half block from the intersection; that she had started forward, thinking that she had “plenty of time to get across”; but that, as she had moved into the intersection, she had looked to the west again and then had discovered that plaintiff “had speeded up and was approaching the intersection,” whereupon defendant had applied the brakes on her station wagon but not in time to avoid the accident.

The front end of defendant’s southbound station wagon struck the rear half of the left side of plaintiff’s eastbound automobile. As a result of the impact, the rear end of plaintiff’s automobile was pushed in a counter-clockwise direction and the automobile came to rest, headed north, with the right rear wheel on the curb at the southeast corner of the intersection. Plaintiff (so she said upon trial) was thrown “against the right-hand door.” Defendant’s station wagon stopped in the intersection.

Policeman Bottenfield, who investigated the accident, testified that neither driver had claimed any injury. Before she got out of the automobile, plaintiff admittedly told defendant that she did not think that she was injured; but, when she alighted, a small cut and a bruise on one knee were observed. After a passing motorist had driven her home, plaintiff took a taxicab to the office of L. H. McPike, M.D., her “family doctor.” Dr. McPike, called as a witness for defendant, stated that plaintiff’s only complaints on the day of accident were that “she was having pain with both knees and her left leg.” He “cleaned up and dressed . . . lacerations of both knees and ... a little laceration of the left leg” and then directed plaintiff to a radiologist in another building for X-rays of her knees and left leg, the only “involved portions of the anatomy.” After the X-rays, she walked six blocks to her home.

Plaintiff made eight visits to the office of Dr. McPike during the period from December 18, 1962, the date of accident, to February 7, 1963. On the second visit, to wit, on December 20, 1962, plaintiff “complained of some soreness in her left wrist.” On the sixth visit, to wit, on January 25, 1963, she complained for the first time of “pain in her neck”; but, on the seventh visit, to wit, on February 1, 1963, there was “no pain in neck.” On the eighth visit, to wit, on February 7, 1963, Dr. McPike “thought she was well” and dismissed her. Dr. McPike’s treatments consisted of “some muscle relaxants and ultrasonic.” During the entire period she was under the care of Dr. McPike, plaintiff made no complaint to him about her back — “I had so many other things that I didn’t,” notwithstanding the fact that (so she insisted upon trial) she had experienced pain in her back continuously during that period of care and subsequently to the time of trial.

After dismissal by Dr. McPike, plaintiff took an undisclosed number of treatments by R. W. Davis, D. C. He was not called as a witness, although plaintiff had talked with him on the day before trial and plaintiff’s counsel stated during trial that he was available.

Plaintiff’s only medical witness was B. E. DeTar, Jr., M.D., a general surgeon who had examined plaintiff on June 30 and August 5, 1964, but had neither administered nor recommended any treatment. Dr. DeTar found no loss of motion or muscle spasm in plaintiff’s back, neck or left knee, although, as “a matter of judgment” grudgingly conceded to have been predicated upon subjective complaints of pain, he did report areas of tenderness in those regions. Plaintiff’s counsel here places primary emphasis upon Dr. DeTar’s findings of (1) “two little areas of spur formation which is an indication of a form of arthritis” in the lumbar back, at “the fourth lumbar vertebra principally and then the third lumbar vertebra secondarily,” and (2) a “very tiny” bit of arthritis between the sixth cervical and seventh cervical vertebrae— so “tiny” that the radiologist did not report it and that Dr. DeTar did not discover it until he was “reviewing these [X-ray] films and getting ready for today.” The arthritis found by Dr. DeTar “is the type that is associated either with injury or just ordinary wear and tear and aging of the bones” or, in other words, is either traumatic or developmental. In the doctor’s language, “all you can say is, there is a general indication there might have been some trauma that produced that.” In answer to a long hypothetical question including (among others) the important assumption that, prior to the accident of December 18, 1962, plaintiff “had never had any pain in her back or neck . . . and that ever since that date she has been having this pain in her neck, left knee and back, the lower back,” Dr. DeTar expressed the opinion that the accident described to him “could result in the conditions I found (sic) at the present time.”

On cross-examination, Dr. DeTar said that, if there had been a back injury, he would diagnose it as a lumbosacral sprain; and, with that character of injury, the doctor agreed that there would have been “a wrenching and a tearing . . . and some bleeding into the ligaments” and that “ordinarily” there would have been pain at the time of accident or, if “delayed,” within 24 to 48 hours thereafter. Accordingly, Dr. DeTar readily admitted that the assumption that plaintiff had experienced pain m her neck and back continuously since the accident was an “important fact- or” entering into his above-quoted opinion (i. e., that the accident “could result in the conditions I found at the present time”) and that, if plaintiff had not experienced such pain, his opinion would change.

X-rays taken by Dr. DeTar showed a lordosis (“a swayback type of situation”) and a “mild” scoliosis (“a side-to-side curve”) in plaintiff’s lower back, but the doctor had “no evidence one way or the other” on which to base an opinion as to whether or not there had been any change in either of those conditions by reason of the accident. However, he agreed that those conditions could cause pain or discomfort in the back and that they could have accounted for plaintiff’s complaint that, prior to the accident, “I had had a tired feeling in my back, especially after I would be in bed all night.”

Of alleged inadequacy of the verdict. Under our juridical system, determination of the amount of damages is primarily for the jury. And where, as here, the trial court has denied a new trial for alleged inadequacy, the rule upon appeal is that the jury’s exercise of its discretion in the assessment of damages is conclusive unless the verdict is so shockingly inadequate as to indicate that it is the result of passion and prejudice or of a gross abuse of such discretion. We do not weigh the evidence but rather seek only to ascertain whether the trial court abused its discretion in denying a new trial. And our inquiry is whether, viewing the record in the light most favorable to the trial court’s ruling on the complaint of inadequacy, it reasonably may be said that the verdict was supported by substantial evidence. In this inquiry, we must bear in mind that the credibility of the witnesses, including the medical experts, and the weight and value to be accorded to their testimony were, in the first instance, matters peculiarly within the province of the jury, in keeping with the fundamental principle that the jury may believe all or none of the testimony of any witness, or may accept it in part and reject it in part, just as it finds the same to be true or false when considered in relation to the other testimony and the facts and circumstances of the case.

The only objective evidences of injury to instant plaintiff were the relatively inconsequential lacerations on her knees and left leg. Her alleged “pain, suffering and difficulties” rested largely upon her own testimony and were in no sense conceded by defendant. Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 14, 212 S.W.2d 915, 920. There was no evidence of medical or hospital expenses, loss of earnings, or other so-called special damages. Roush v. Alkire Truck Lines, Mo., 245 S.W.2d 8, 11; Wilhelm, supra, 358 Mo. at 14, 212 S.W.2d at 920. Contrast Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 728, 729; Boschert v. Eye, Mo., 349 S.W.2d 64, 66; Hufft v. Kuhn, Mo., 277 S.W.2d 552, 555; Brown v. Moore, Mo., 248 S.W.2d 553, 558-559(9).

The jurors were not required to believe plaintiff’s testimony about her alleged “pain, suffering and difficulties” [Wilhelm, supra, 358 Mo. at 14, 212 S.W.2d at 920; Vogrin v. Forum Cafeterias of America, Mo., 308 S.W.2d 617, 623] or to embrace the inconclusive, suppositious opinion testimony of her only medical witness “as to causation [which] was based upon facts related by plaintiff which the jury could accept or reject.” Roush, supra, 245 S.W.2d at 12. See Hemminghaus v. Ferguson, 358 Mo. 476, 487, 215 S.W.2d 481, 486 (6). That plaintiff admittedly made no complaint to Dr. McPike about her back, although upon trial she insisted that her back had pained her continuously while she was under his care, well might have been considered by the triers of the facts as particularly meaningful and significant [compare Porter v. Smoot, Mo.App., 375 S.W.2d 209, 213-214], and plaintiff’s own medical evidence fairly might have been regarded by them as not persuasive of any serious or permanent injury. Davidson v. Schneider, Mo., 349 S.W.2d 908, 912.

From all of the foregoing, it is to us clearly apparent that the jurors rationally and reasonably could have concluded that any injury sustained by plaintiff as a result of the accident was trivial or not serious in “its end result” [Davidson, supra, 349 S.W.2d at 912; Conner v. Neiswender, 360 Mo. 1074, 1079, 232 S.W.2d 469, 472—see Roush, supra, 245 S.W.2d at 11(5); Grayson v. Pellmounter, Mo. App., 308 S.W.2d 311, 314(3)], and that the verdict for $500 reflects a justifiable view of the evidence considered from the standpoint favorable to the verdict. Polizzi v. Nedrow, Mo., 247 S.W.2d 809, 812; Wilhelm, supra, 358 Mo. at 15, 212 S.W.2d at 920. It necessarily follows that we may not convict the trial court of an abuse of discretion in approving the verdict [Mitchell, supra, 362 S.W.2d at 537; Coghlan v. Trumbo, Mo., 179 S.W.2d 705, 707(8, 9)], and that plaintiff’s point on appeal that the verdict “was so grossly inadequate as to indicate bias and prejudice of the jury” must be denied.

In Artstein v. Pallo, Mo. (banc), 388 S.W.2d 877, upon which instant plaintiff primarily relies, “[t]he parties [agreed] that, if the plaintiff [was] entitled to recover at all, the award of [$500] damages [was] grossly inadequate” [388 S.W.2d at 882], and the meritorious question on appeal was whether or not the new trial granted by the trial court should have been limited to the issue of damages only. Obviously, the instant situation affords no basis for application of the holding in Art-stein, supra.

Of newly-discovered evidence. Plaintiff’s second assignment is that the trial court “abused his discretion in refusing to grant plaintiff a new trial on the ground of newly-discovered evidence of X-rays taken after the date of the collision and not available to plaintiff through no lack of diligence of plaintiff’s counsel . . . ” This refers to two X-rays of plaintiff’s lumbar spine alleged to have been taken by Dr. Davis, the chiropractor, on February S and 20, 1963. The material allegations of plaintiff’s motion for new trial and of the supporting affidavits of plaintiff’s counsel and Dr. Davis, all timely filed on November 27, 1964, fifteen days after entry of judgment [V.A.M.R. Rule 78.02], are digested below.

Plaintiffs counsel averred “that previous to the trial on numerous occasions he had questioned R. W. Davis, D. C. . and had been told that they [the X-rays] were not available and could not be located and only on November 25, 1964 were said X-rays located, the same having been misfiled as shown by Dr. Davis’ attached affidavit and that diligent search had been made for said X-rays on many occasions prior to the trial,” and that the X-rays were “not cumulative evidence only but [were] strongly corroborative evidence and proof positive that plaintiff’s lumbar spine was injured and damaged as a result of the collision.” Dr. Davis stated in his affidavit that he had told both plaintiff’s counsel and defendant’s counsel prior to the trial that the X-rays had been made; that af-fiant “had searched for these X-rays on numerous occasions at the request of [plaintiff’s counsel] and had been unable to locate them because they had been misfiled under the name of another patient”; that “within the last few days affiant has located and reviewed these X-rays and in his opinion . . . [they] show that there was a development of arthritis on one or more of the lumbar vertebrae, the most noticeable arthritic development [being] upon the 3rd and 4th lumbar vertebrae”; and that “affiant believes that these X-rays are competent evidence to show that the arthritis that developed in [plaintiff’s] lumbar spine was of traumatic origin or grossly aggravated by trauma when compared with ... an X-ray made at DeTar Clinic ... on June 30, 1964” received in evidence as plaintiff’s exhibit 13. No affidavit of Dr. DeTar was filed.

On December 7, 1964, defendant timely filed the opposing affidavit of her counsel [V.A.M.R. Rule 78.03; V.A.M.S. § 510.350], in which he affirmed that “when affiant interviewed Dr. Davis ... on November 10, 1964, . . . for the purpose of locating and inspecting Dr. Davis’ X-rays of the plaintiff, Dr. Davis stated that he had turned over [plaintiff’s] X-rays to her attorney and that he (Dr. Davis) did not have them”; that “Dr. Davis had previously reported to plaintiff’s then attorney, Max Glover of Webb City, that plaintiff’s condition had been treated and corrected, that she would not have any more trouble and she was physically in good condition,” as shown by Dr. Davis’ letter of April 29, 1963, copied verbatim in the affidavit; and that, when “affiant called on Dr. Davis at his office on December 1, 1964, . Dr. Davis refused to discuss the matter with affiant and said that he would have to be subpoenaed before he would talk.” In his letter of April 29, 1963, to attorney Glover, Dr. Davis had written that plaintiff “returned to the office for further treatment, on April 9, 1963,” complaining “of her neck giving her more trouble”; that “upon examination I found some tension and muscular constriction at the level of the 6th and 7th cervical vertebrae”; that “this condition has been treated and corrected, and I do not think we will have any more trouble”; and that “on her last visit to my office I talked with [plaintiff in regard to her condition and I feel certain that she is physically in good condition.” (Emphasis ours.) Plaintiff tendered no reply affidavit.

Motions for new trials on the ground of newly-discovered evidence are entertained reluctantly [Lindhorst v. Curtis Mfg. Co., Mo.App., 105 S.W.2d 972, 976 (10) ], examined cautiously [Arnold v. May Department Stores Co., 337 Mo. 727, 740, 85 S.W.2d 748, 756(14)], and construed strictly. Cook v. St. Louis & Keokuk R. Co., 56 Mo. 380, 382; Gerth v. Christy, Mo.App., 231 S.W. 639, 640. For courts ever have been mindful not only “of the temptation to parties smarting under defeat to make them, and of the facility with which plausible grounds are manufactured” [State v. McLaughlin, 27 Mo. 111, 112—see Lindhorst, supra, 105 S.W.2d at 977] but also of the fact that, “if the discovery of new, material evidence alone would be ground for new trial, there would be no end to litigation” [Mayor, Etc., of Town of Liberty v. Burns, 114 Mo. 426, 433, 19 S.W. 1107, 1109; Young v. St. Louis Public Service Co., Mo., 326 S.W.2d 107, 113] whereas public policy requires that “litigation sometime end.” Curry v. Thompson, Mo., 247 S.W.2d 792, 799, 31 A.L.R.2d 1225. So it is that our appellate courts repeatedly have said that such motions are to be tolerated, but not encouraged; viewed with aversion, rather than with favor; and granted as an exception, but refused as a rule.

A new trial should not be awarded on the ground of newly-discovered evidence unless the moving party first satisfies the following prerequisites (to which we hereinafter sometimes refer by number) by showing (1) that the evidence has come to his knowledge since the trial, (2) that his failure to learn of such evidence sooner was not due to want of diligence, (3) that such evidence is so material that it probably would produce a different result if the new trial were granted, (4) that it is not cumulative only, (5) that the object of the testimony is not merely to impeach the character or credit of a witness, and (6) that the affidavit of the witness himself is produced or its absence accounted for. The ruling of an after-trial request predicated on newly-discovered evidence rests largely in the sound discretion of the trial court; and, unless there has been a clear abuse of that discretion, the appellate court will not interfere. Any doubt as to whether the trial court’s discretion has been exercised soundly in a given situation must be resolved in favor of the ruling made.

Passing the inferences which might be drawn from the affirmation in the affidavit of defendant’s counsel that, when interviewed on November 10,1964, two days pri- or to trial, “Dr. Davis stated that he had turned over [plaintiff’s] X-rays to her attorney,” we are of the opinion that the trial court reasonably might have concluded that plaintiff had failed to make a satisfactory showing of several of the six prerequisites to the granting of a new trial for newly-discovered evidence. Prerequisites 1 and 2 The affidavits of plaintiff’s counsel and Dr. Davis were to the effect that the X-rays under discussion “could' not be located” prior to trial; but, if counsel then had regarded them as material, no doubt the “misfiled” X-rays could have been located before trial in the same manner they were found after trial. The trial court would have been justified in finding that plaintiff had not made a satisfactory showing that failure to produce the X-rays at the trial was not due to want of diligence.

Prerequisites 4 and 5. To some extent, the X-rays fairly might have been regarded by the trial court as both cumulative and impeaching, those being “at least in part fact questions.” Womack v. McCullough, Mo., 358 S.W.2d 66, 69(7). Plaintiff’s counsel treats of the X-rays as being cumulative or, cloaking the same thought in different nomenclature, “strongly corroborative,” for it is argued in plaintiff’s brief that “this arthritic condition [at the third and fourth lumbar vertebrae] had developed and was definitely found by Dr. DeTar” and “the early development of the arthritis about two months after the accident confirms Dr. DeTar’s findings and opinion that the accident was the cause of the traumatic arthritis.” But from another viewpoint, the X-rays would tend to impeach Dr. DeTar in that, if offered to demonstrate the alleged traumatic causation of the arthritic condition, they would run counter to the testimony of Dr. DeTar who, when asked whether an X-ray taken “maybe just a month or so after the accident” would show the arthritic “spur formation,” answered “not necessarily, no, it probably would not.” In this connection, we note that plaintiff’s trial theory was that the accident of December 18, 1962, had caused an arthritic condition, not that it had aggravated a pre-existing arthritic condition.

Prerequisite 3. Having in mind all of the foregoing and, importantly, Dr. Davis’ letter of April 29, 1963, to plaintiff’s then attorney, which closed with the assurance that “I feel certain that she [plaintiff] is physically in good condition,” the trial court reasonably might have believed that plaintiff had failed to satisfy the third prerequisite by showing that the proffered X-rays were so material that they probably would produce a different result upon another trial. We cannot find an abuse of discretion on the part of the trial court in its refusal to grant a new trial for newly-discovered evidence.

Of alleged error in giving defendant’s instructions 8, 9 and 10. Aside from the fact that none of these instructions were set forth in plaintiff’s brief, as' is plainly required by V.A.M.R. Rule 83.05(a), for which failure this point properly might be disregarded, plaintiff is in no position to complain here about these instructions because they in no wise related to the issue of damages but dealt only with submission of the issue of liability, on which the jury found for plaintiff anyway. In these circumstances, the giving of the assailed instructions could not constitute reversible error.

The judgment should be and is-affirmed.

RUARK, P. J., and HOGAN, J., concur.

      . Spica v. McDonald, Mo., 334 S.W.2d 365, 368(1); Donahoo v. Illinois Term. R. Co., Mo., 300 S.W.2d 461, 469(10); Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 1150, 238 S.W.2d 674, 681(14); Coghlan v. Trumbo, Mo., 179 S.W.2d 705, 706(4); Porter v. Smoot, Mo.App., 375 S.W.2d 209, 212(2).

      . Vogrin v. Forum Cafeterias of America, Mo., 308 S.W.2d 617, 622(5); Thompson v. Healzer Cartage Co., Mo., 287 S.W.2d 791, 792(2); Conner v. Neiswender, 360 Mo. 1074, 1077, 232 S.W.2d 469, 470 (2); Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 11, 212 S.W.2d 915, 918(5); Coghlan, supra note 1, 179 S.W.2d at 706(2).

      . Miller v. Harner, Mo., 373 S.W.2d 941, 947(2, 3); Mitchell v. Mosher, Mo., 362 S.W.2d 533, 536(2, 3); Spica, supra note 1, 334 S.W.2d at 368(2); Waller v. Oliver, Mo., 296 S.W.2d 44, 49(7, 8); Roush v. Alkire Truck Lines, Mo., 245 S.W.2d 8, 10(2-4); Conner, supra note 2, 360 Mo. at 1077, 232 S.W.2d at 470-471 (3-5); Porter, supra note 1, 375 S.W.2d at 212(3, 4).

      . Patison v. Campbell, Mo., 337 S.W.2d 72, 75(4); Vogrin, supra note 2, 308 S.W. 2d at 623(7); Combs v. Combs, Mo., 284 S.W.2d 423, 426(6); Roush, supra note 3, 245 S.W.2d at 12(6); Wilhelm, supra note 2, 358 Mo. at 12, 212 S.W.2d at 918; Mickel v. Thompson, 348 Mo. 991, 1003, 156 S.W.2d 721, 728(13).

      . Baker v. Brown’s Estate, 865 Mo. 1159, 1165, 294 S.W.2d 22, 27(13); Patison, supra note 4, 337 S.W.2d at 75(4); Williams v. Ricklemann, Mo., 292 S.W.2d 276, 280(5); Hutchison v. Thompson, Mo., 175 S.W.24 903, 911.

      . Cook v. St. Louis & Keokuk R. Co., 66 Mo. 380, 382; McClellan v. Kansas City Public Service Co., Mo.App., 19 S.W.2d 902, 908(6); Lewis v. McClellan, Mo.App., 1 S.W.2d 247, 250(5); Gerth v. Christy, Mo.App., 231 S.W. 639, 640; E-v. G-, Mo.App., 317 S.W.2d 462, 468-469(5). See Devine v. Wells, 300 Mo. 177, 185, 254 S.W. 65, 67(1); Gromowsky v. Ingersol, Mo.App., 241 S.W.2d 60, 64(8); In re Priest’s Estate, Mo.App., 227 S.W.2d 474, 478(5).

      . Holt v. Queen City Loan & Investment, Inc., Mo., 377 S.W.2d 393, 402; Womack v. McCullough, Mo., 358 S.W.2d 66, 68; Young v. St. Louis Public Service Co., Mo., 326 S.W.2d 107, 111(5); Lynch v. Baldwin, Mo., 117 S.W.2d 273, 276 (9); Grubbs v. Kansas City Public Service Co., 329 Mo. 390, 405, 45 S.W.2d 71, 78; Devine, supra note 6, 300 Mo. at 187-188, 254 S.W. at 68; State v. McLaughlin, 27 Mo. 111, 112; State v. Page, Mo. App., 192 S.W.2d 577, 579(10); Browhaw v. Dowd, Mo.App., 187 S.W.2d 29, 30 (1).

      . Davis v. Illinois Term. R. Co., Mo., 326 S.W.2d 78, 86-87; Arnold v. May Department Stores Co., 337 Mo. 727, 740, 85 S.W.2d 748, 756(13); In re Priest’s Estate, supra note 6, 227 S.W. 2d at 478(6); Lindhorst v. Curtis Mfg. Co., Mo.App., 105 S.W.2d 972, 977.

      . Womack, supra note 7, 358 S.W.2d at 68; Fidelity & Cas. Co. of N. Y. v. Western Cas. & Sur. Co., Mo.App., 337 S.W.2d 566, 574(5); Pippas v. Pippas, Mo.App., 330 S.W.2d 132, 138(12); Deacon v. City of Ladue, Mo.App., 294 S.W.2d 616, 626(13); I- v. B-, Mo.App., 305 SW.2d 713, 721(10); Citizens Bank of Senath v. Johnson, Mo.App., 112 S.W.2d 916, 921(12); Galeener v. Derris, Mo.App., 20 S.W.2d 167, 169(3).

      . Cook, supra note 6, 56 Mo. at 384; McKnight v. Batrick, Mo.App., 49 S.W.2d 277, 281; Galeener, supra note 9, 20 S.W.2d at 169; McClellan, supra note 6, 19 S.W.2d at 908(9); Lewis, supra note 6, 1 S.W.2d at 251(8).

      . Holt, supra note 7, 377 S.W.2d at 402; Womack, supra note 7, 358 S.W.2d at 70 (8); Young, supra note 7, 326 S.W.2d at 111-113(6); In re Priest’s Estate, supra note 6, 227 S.W.2d at 478(4); McClellan, supra note 6, 19 S.W.2d at 906-907.

      . Curry v. Thompson, Mo., 247 S.W.2d 792, 798-799(3-5), 31 A.L.R.2d 1225; McClellan, supra note 6, 19 S.W.2d at 907 (5); Galeener, supra note 9, 20 S.W.2d at 169(2); Citizens Bank of Senath, supra note 9, 112 S.W.2d at 921(10); Lewis, supra note 6, 1 S.W.2d at 251(9). See Holt, supra note 7, 377 S.W.2d at 402; Davis, supra note 8, 326 S.W.2d at 86-87(10); Gaty v. United Rys. Co. of St. Louis, 286 Mo. 503, 517-519, 227 S.W. 1041, 1045(1, 2); Tamko Asphalt Products, Inc. v. Fenix, Mo.App., 321 S.W.2d 527, 536(15); Fischman v. Schultz, Mo.App., 55 S.W.2d 313, 319(9).

      . Brown v. Thomas, Mo.App., 316 S.W. 2d 234, 237(9); Bartlett v. Hume-Sinclair Coal Mining Co., Mo.App., 351 S.W.2d 214, 217 (5); Smith v. Aldridge, Mo.App., 356 S.W.2d 532, 539; State ex rel. State Highway Com’n. v. Warner, Mo.App., 361 S.W.2d 159, 165(11).

      . Cochran v. Wilson, 287 Mo. 210, 228, 229 S.W. 1050, 1056(5); Craton v. Hunt-zinger, Mo., 187 S.W. 48, 53(8); State ex rel. State Highway Com’n. v. Southern Securities Co., Mo.App., 60 S.W.2d 632, 635(9); Broughton v. S. S. Kresge Co., Mo.App., 26 S.W.2d 838, 840(6); Edwards v. Missouri Pacific Ry. Co., 82 Mo.App. 478, 482-483(2). See Kelly v. Columbia Box Co., Mo., 248 S.W. 589, 591(4).


author: MOREMEN, Chief Justice.

text:
    Paul J. PRYOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.
    Paul J. Pryor, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

This is an RCr 11.42 petition to vacate a judgment of the Hopkins Circuit Court. The petition was dismissed without a hearing by the Hopkins Circuit Court and comes before this Court on its merits. The appellant has been before this Court on two previous occasions for post-conviction review of this judgment. See Pryor v. Thomas, Ky., 361 S.W.2d 279, and Pryor v. Thomas, Ky., 377 S.W.2d 156. In the latter case this Court dismissed appellant’s habeas corpus petition on the ground that there was no showing that his remedy by motion under RCr 11.42 was inadequate.

Pryor was indicted on two separate indictments for malicious shooting and wounding with intent to kill — indictments Nos. 6213 and 6214. On the same day he was indicted for murder on indictment No. 6215. Appellant, on February 13, 1962, was tried by a jury on the murder indictment and found guilty. The jury recommended a life sentence. On February 16, 1962, Pryor pleaded guilty to the two remaining indictments. The judgment recited that the sentences on indictments Nos. 6213 and 6214 were to be served consecutively and that the life sentence was to be consecutive to the former.

Appellant’s only ground for reversal on this appeal is his contention that the life sentence should begin before the other two sentences because he was tried first for murder. Appellant apparently bases his objection on the belief that the order of the sentences will cause a delay in the time in which he becomes eligible for parole. This must be his only reason for objecting to the reverse order of sentencing because if he serves a full life sentence there can be no additional time of confinement. This Court has recognized the obvious fact that a person can serve only one full life sentence.

Section 288 of the old criminal code required that when a defendant is convicted of two or more offenses a judgment should be rendered so that the punishment in one case shall commence after the termination of the other. In Wooden v. Goheen, Ky., 255 S.W.2d 1000, it was held that when a prisoner is sentenced to serve two consecutive life sentences in the penitentiary he is entitled to be considered for parole after 8 years’ confinement. Later, in Morris v. Commonwealth, Ky., 268 S.W.2d 427, it was held that the Goheen case did not prohibit the court from sentencing a defendant, who is convicted of two or more offenses, to confinement on each offense and providing in the judgment that the confinement in one case shall commence after the termination of the prior confinement. In the same year, 1954, Section 288 was amended to create a presumption of concurrency of sentences if the judgment failed to state whether multiple convictions should be served concurrently or consecutively.

Our present rule, RCr 11.04, provides “If two or more sentences are imposed, the judgment shall state whether they are to be served concurrently or consecutively.” The presumption under the act of 1954 is omitted and it is required that the judgment state the manner in which sentences will be served. In any event the sequence of the terms is no longer of any practical importance.

Formerly under KRS 439.110 a prisoner was required to serve a term of years before he could apply or was eligible for parole. For instance, persons convicted for life or persons sentenced for more than 21 years could not apply for parole until S years had elapsed. However, in 1962 the legislature repealed that section and substituted an entirely new procedure. Under KRS 439.340 vast authority is vested in the board to grant parole and the statute requires no mandatory service before a person confined in the penitentiary is eligible for parole.

The judgment is therefore affirmed.


author: CULLEN, Commissioner.

text:
    CITY OF MANCHESTER, Kentucky and T. T. Burchell, etc., Appellants, v. Toulman KEITH, Sr., Judge of the City of Manchester, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.
    Milton Luker, London, T. T. Burchell, Manchester, for appellants.
    John M. Lyttle, Manchester, for appellee.
   CULLEN, Commissioner.

This is an appeal in the names of the City of .Manchester, Kentucky, and T. T. Burchell, “Attorney and Taxpayer of the City of Manchester,” from an order overruling a motion under CR 60.02 to set aside a judgment in an action by the City of Manchester against Toulman Keith, Sr., police judge of the city, which judgment denied all but a small portion of the city’s claim against Keith for fines and forfeitures collected in his court.

Burchell had no connection with the action prior to entry of the judgment sought to be set aside. (The city was represented by attorney Milton Luker.) Burchell filed the motion under CR 60.02 in the purported capacities of (1) “special attorney” for the city and (2) citizen, taxpayer and legal resident of the city. Obviously he had no standing in the lawsuit in the latter capacity because he was not a party in that or any other capacity. Nor did he have any standing as attorney because the circuit court in overruling the motion found that he was “not acting as attorney in this case,” which we interpret as meaning that he was not an attorney for the city, special or otherwise.

The circuit court very properly overruled the motion because it was nothing more than an effort by the movant to interlope in a lawsuit in which he had no standing.

The order is affirmed.


text:
    SOUTHSIDE LIQUOR, INC., Appellant, v. Harold MOBERLY et al., etc., Appellees.
    Court of Appeals of Kentucky.
    Nov. 12, 1966.
    E. Gaines Davis, Jr., Smith, Reed, Yessin & Davis, Frankfort, for appellant.
    Frank M. Dailey, William A. Young, Frankfort, for appellees.
   MOREMEN, Chief Justice.

This is an appeal from the judgment of the Franklin Circuit Court affirming the decision of the Alcoholic Beverage Control Board which granted appellees a retail package liquor license for premises located at 234 West Second Street in Frankfort.

Appellant, a competitor in the Frankfort retail liquor business, contends that the ABC Board abused its discretion under KRS 241.060 by granting the license without considering: 1st) the proximity of appellees’ premises to those of appellant, and 2nd) the adequacy of appellant’s store to serve the area for which an additional outlet is sought.

KRS 241.060 under which the appellant contends that the ABC Board should have refused to grant the license to appellees provides, in relevant part, as follows:

“The Board shall have the following functions, powers and duties:
“(2) To limit in its sound discretion the number of licenses of each kind or class to be issued in this state or any political subdivision, and restrict the locations of licensed premises. To this end the board may make reasonable division and subdivision of the state or any political subdivision into districts. Regulations relating to the granting, refusal and revocation of licenses may be different within the several divisions of subdivisions.”

It is clear from KRS 241.060 that the legislature in the public interest has delegated to the ABC Board special powers to regulate the liquor industry in the light of variable local factors. We have held that this does not constitute an unlawful delegation of legislative functions. Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757, 192 S.W.2d 735; Alcoholic Beverage Control Board v. Woosley, Ky., 367 S.W.2d 127.

Although it is true that the ABC Board is granted wide discretion by KRS 241.060, this discretion is necessary in light of the nature of the supervision involved. As a practical matter it would be nearly impossible for the legislature or the courts to administer effectively the details of the alcoholic beverage business.

Nor is this trend toward the delegation of administrative functions anything new at this stage of our country’s development. In the last two decades courts have increasingly recognized that in a society growing in complexity it is necessary that many quasi legislative functions, which in smaller communities and under more primitive conditions were performed by the legislative branch of government, be entrusted to departments, boards, commissions and agents. Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W.2d 584; Ray v. Parker, 15 Cal.2d 275, 101 P.2d 665. In the Associated Industries case, 370 S.W.2d at page 588, we said that it is constitutionally permissible for the legislature to delegate discretionary power to others so long as it retains the right to revoke that power. That principle is particularly applicable when the power is delegated as in the present case to a public board as opposed to a private organization.

It is true that where a board is vested with wide discretion without specific statutory standards the danger of abuse is ever present. The courts will review and set aside actions of the board which are arbitrary. See Moberly v. Johnson, Ky., 376 S.W.2d 529. But the record discloses no such abuse in the present case.

Appellant contends that the Board erred by not considering the factors of proximity to existing outlets and adequacy of existing licenses. These contentions are not supported by the record.

In fact, the Board did take testimony on the distance between appellees’ premises and those of the nearest licensee and determined it to be 700 feet. With respect to the adequacy of existing licenses, we said the ABC Board does not have to reconsider that issue if it has previously established a quota system and has fixed the number of licenses which it has determined would adequately satisfy the needs of residents of the community. Spalding v. Alcoholic Beverage Control Board, Ky., 323 S.W.2d 859.

Therefore, the judgment is affirmed.


author: CLAY, Commissioner.

text:
    James Thomas HARRIS, Appellant, v. John W. WINGO, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.

      James Thomas Harris, pro se.
    Robert Matthews, Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

This is an appeal from a judgment dismissing appellant’s petition for a writ of habeas corpus. The petition fails to show the inadequacy of the remedy provided by RCr 11.42, and consequently the relief here sought is unavailable. Ayers v. Davis, Ky., 377 S.W.2d 154.

We will observe that we have examined the petition and it presents no ground which would justify vacating appellant’s judgment of conviction.

The judgment is affirmed.


author:
DAVIS, Commissioner.
      PALMORE, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. R. B. KETCHERSID and Clara Ketchersld, wife, Appellees.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Charles W. Huddleston, Dept, of Highways, Bowling Green, Robert J. Beale, Dept, of Highways, Frankfort, for appellant.
    Thomas W. Hines, Bowling Green, for appellees.
   DAVIS, Commissioner.

The Department of Highways appeals from a judgment awarding appellees $4,250 in this condemnation action. Appellees have not filed any brief, and by correspondence to the clerk of this court have stated that none will be filed.

Pursuant to RCA 1.260(c)(3) we regard the appellees’ failure to file brief as a confession of error and reverse the judgment without considering the merits of the case.

The judgment is reversed with directions to grant a new trial.

PALMORE and MILLIKEN, JJ., dissenting.

PALMORE, Judge

(dissenting).

Though it shows only in the evidence, and not by the pleadings, the actual amount in controversy on this appeal is $2030. The alleged errors mentioned in appellant’s brief do not appear to be of a substantial nature. At least one of them was not an error at all. Perhaps the rest would be found in the same category on a simple examination of the merits. I feel that landowners are being subjected to undue technicalities, indiscriminate appeals, unfair delay, and unnecessary expense in the great tide of condemnation cases coming before this court, and I do not think we should condone and aggravate the situation with a flood of easy reversals — one of which, I suspect, is this one.

MILLIKEN, J., joins in this dissent.


author: DAVIS, Commissioner.

text:
    Chase McCLURE and the Medical Arts Center, Inc., a Corporation, Appellants, v. George A. YOUNG and the George A. Young Company, a Corporation, Appellees.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.

      H. David Hermansdorfer, Diederich & Hermansdorfer, Ashland, Wallace, Turner & Reed, Lexington, for appellants.
    Stoll, Keenon & Park, Lexington, for appellees.
   DAVIS, Commissioner.

This litigation results from various disputes which have arisen incident to the purchase of a building in Lexington by the appellants from appellees. For clarity we shall refer to appellant McClure as McClure; the appellant The Medical Arts Center, Inc. shall be designated as MAC. Appellee George A. Young will be referred to as Young, whereas the corporate appel-lee, The George A. Young Company, will be known as GAY. The specific questions presented in this appeal will be better understood after a preliminary statement of the background.

In 1957 Young organized the corporate appellant MAC. Into this venture he invested $800 in behalf of his mother, his sister and himself as the three organizers of MAC. Young and the same members of his family also had dominant ownership and control of corporate appellee GAY. Young’s purpose in organizing'MAC was to handle through it the construction of a medical office building in Lexington. Young was able to interest executives of Begley Drug Company in making an investment in MAC, and it is apparent that the primary concern of the Begley interests was to place an apothecary in the proposed medical building. The Begley interests acquired 530 shares of MAC’S stock, which had no par value, but a “stated” value of $100 per share, as fixed at the organizational meeting of MAC’S incorpora-tors.

GAY contracted with MAC to construct the medical office building. MAC agreed to compensate GAY, as general contractor for the construction of the building, on a basis of cost of time, material, sub-contracts, labor and 5% for overhead, plus 10% profit. Shares of MAC stock were issued to GAY on a basis of $100 per share to pay GAY according to the construction contract.

In June, 1960, McClure began negotiations with Young for the purchase of the medical office building. It is evident that McClure’s purpose was to buy a building — ■ not a corporation. He had communicated with Young in response to an advertisement of Young (not GAY) to sell investment property. According to McClure, Young agreed to sell the MAC building to McClure for actual cost, less depreciation. Young denies that the selling price was predicated on cost less depreciation. McClure contends that Young represented to him that the actual cost was $1,054,000; that the depreciated figure, the sales price, would be $999,353.46.

After some negotiations and a couple of written instruments looking toward the completion of the transaction (the first two writings were abrogated by mutual consent), McClure agreed to purchase from GAY 3470 shares of MAC stock for an aggregate sum of $337,906.75, of which part was to be paid in cash and part evidenced by 14 notes. The same writing bound McClure to offer $53,000 for the 530 MAC shares held by the Begley interests. It was also stipulated in that contract that MAC had obligations of $95,843.25 (which McClure paid as a part of the overall consideration). The balance of the purchase price was represented by a first mortgage lien of MAC to Commonwealth Life Insurance Company in a sum of about $512,603.00. McClure did buy the Begley stock as agreed.

It will be noted that the mode of completing the transaction was NOT by a deed from MAC to McClure, but by McClure’s acquisition of the entire capital stock of MAC. McClure said that he acceded to that procedure at the request of Young who indicated that it would be helpful to Young from a tax viewpoint. The closing date of the transaction was July IS, 1960.

Upon taking control of MAC, McClure caused his accountants to examine the books with a view to preparing an imminently due income tax return. Shortly after the tax return was filed McClure received “disquieting inquiries” from the U. S. Internal Revenue Service relating to building costs and depreciation allowances. This inquiry set off a chain reaction which culminated in the present litigation.

When McClure’s auditors scrutinized the MAC books they concluded that the building costs had been extravagantly padded because of what the auditors conceived to be improper charges by GAY to MAC. Preliminary negotiations begun in June, 1961, between McClure and Young were not fruitful of settlement. On the contrary, McClure informed Young that he would not pay the outstanding notes as they fell due until an appropriate settlement of their differences was effected; Young denied any liability to McClure or MAC.

Thereupon, on July 6, 1961, GAY and Young filed this suit against MAC and McClure asserting a precipitation of the 14 lien notes, seeking judgment for the aggregate sum of the notes, together with an enforcement of a mortgage lien. McClure filed answer and counterclaim denying that he had refused to pay the notes, but admitting that he would not make direct payments upon them until the controversy was adjusted; he tendered into court a sum sufficient to defray such notes as would fall due during the course of the litigation. By his counterclaim and amendments to it, McClure asserted that Young had fraudulently misrepresented to him that the depreciated cost of the building and its grounds was $999,353.46, when in fact the real depreciated cost was $925,-001.50. He prayed recovery of the difference of $74,351.96. McClure also sought damages for alleged injury to his credit on account of the suit, but that phase of the matter is not presented on this appeal.

MAC also filed answer and counterclaim. In substance MAC asserted that Young, as the promoter of MAC, occupied a fiduciary relation toward MAC and, in violation of such relationship, Young and GAY had improperly obtained $206,761.96 from MAC. Specific details as to the items aggregating this total were set forth by MAC’S pleadings, and proof was adduced respecting them.

After an extensive hearing the trial court, sitting without a jury, rendered judgment. First, the lower court adjudged that the 14 notes sued on were not in default, and denied recovery upon them to Young and GAY. Second, the judgment of the trial court was that McClure had not sustained the burden of proving his claim that Young fraudulently misrepresented the depreciated cost at $999,353.46. Finally, the trial court ruled that MAC could not recover on its claim because all of the stockholders of MAC — before the sale of the stock to McClure — had known of and acquiesced in the various transactions between GAY and Young and MAC.

The appellant, McClure, urges reversal as to his counterclaim on the ground that the trial court erred in holding McClure had not exercised prudence in examining the documents relating to cost of the MAC building.

Appellant MAC contends that the trial court erred in affording appellees the benefit of a defense which had not been pleaded.

We first examine the contentions of McClure as to his claim that Young fraudulently misrepresented to him the actual cost of the building and its appurtenant land. As noted, McClure asserted that Young affirmatively told him that the cost of the building and land equaled $1,054,000. Young denied this. To bolster his elaim, McClure presented in evidence a page from a legal pad tablet upon which McClure said that he had been taking notes during his first conference with Young. McClure points out that upon that yellow pad appears, in ink, the figures $1,054,000—that these figures are upside down as to the other figures on the sheet—and that the other figures on the page are in pencil and written by McClure. McClure asserts that the inked figures were inscribed on the paper by Young when it was apparent that McClure was having some difficulty in setting down the figures. Young did not deny that he wrote the inked figure on the yellow pad, but explained that the figure merely represented the total as shown at the foot of page 7 of an audit report prepared by an accounting firm.

Page 7 of that audit is in the record, and on it is reflected the cost of land and building as follows:

“Property and Equipment Cost
Land $ 98,269.70
Building 906,379.80”

It is true that the total of all assets shown on that page is $1,054,000, but the page does not purport to reflect that figure as the total cost of the land and building. The trial court laid heavy emphasis on the fact that McClure had complete access to the audit report, and found that McClure could not be heard to say that he had relied on Young’s statements in face of the written audit report to the contrary. The court below resolved the issue against McClure on the basis that equity will give no relief to a complaining party who has means of knowledge of the truth or falsity of representations at hand, citing Mayo Arcade Corp. v. Bonded Floors Corp., 240 Ky. 212, 41 S.W.2d 1104; Farmers’ Trust Co. of Harrodsburg v. Threlkeld’s Adm’x., 257 Ky. 211, 77 S.W.2d 616.

Moreover, the trial court opined that “(O)ne entering into a contract must exercise ordinary care for his protection.” In support of this the trial judge cited Kreate v. Miller, 226 Ky. 444, 11 S.W.2d 99, and Selke v. Stewart, 260 Ky. 442, 86 S.W.2d 83.

Additionally, the lower court pointed out that McClure testified that the price he paid for the property was reasonable, and that McClure said the property is worth more than he paid for it. It is our view that the finding of the chancellor with respect to the claimed fraudulent misrepresentation is amply supported by the record. We do not find that the holding of the lower court is clearly erroneous, and therefore we will not disturb it. CR 52.01.

The claim of MAC is based on its assertion that Young (and GAY, acting as Young’s alter ego) occupied a fiduciary relationship to MAC, as its organizer and promoter, and must, therefore, account for alleged unconscionable and secret profits extracted from MAC by Young—and GAY. This legal concept finds its chief basis in Old Dominion Copper Min. & Smelting Co. v. Bigelow, 188 Mass. 315, 74 N.E. 653, 108 Am.St.Rep. 479. That authority has been cited with approval and followed in this jurisdiction. Datillo v. Roaten Creek Oil Co., 222 Ky. 378, 300 S.W. 854. See annotation at 85 A.L.R. 1262, et seq. Specific instances of alleged “plundering” of MAC by Young and GAY were alleged, and proof supporting the allegations was presented. As noted, MAC’s claim on these accounts aggregated $206,761.96.

The trial court denied the claim of MAC in its entirety and based its ruling on the premise that the alleged “plundering” had been fully ratified by all of the MAC stockholders before McClure acquired any of the MAC stock. The chancellor ruled that the defense of ratification, although not pleaded, was available to Young and GAY on the theory that the parties had tried the issue, by express or implied consent. CR 15.02. MAC vigorously challenges the propriety of the court’s ruling that CR 15.02 is available to appellees here.

In our view of the case it is not necessary to resolve the application of CR 15.02 to the case at bar. Assuming, without deciding, that Young and GAY had “plundered” MAC before McClure acquired all MAC’s stock, it is our conclusion that MAC, as now entirely owned by McClure, is in no position to complain. It is our view that the factual situation before us does not authorize application of the principles enunciated in Old Dominion Copper Min. & Smelting Co. v. Bigelow, 188 Mass. 315, 74 N.E. 653, 108 Am.St.Rep. 479. It will be recalled that McClure acquired the entire capital stock of MAC, not upon the basis of his buying corporate stock, as such, but rather as the vehicle or means through which he became the beneficial owner of the medical office building. So far as McClure was concerned, the only significant asset of MAC was the office building, along with its leases to the various tenants Young had already obtained. McClure could not have cared less whether Young or GAY, or both, had made improper charges against MAC respecting broker’s commissions, interest charges, “finder’s fees,” and the like. McClure’s prime concern was whether the office building was what it was represented as being — that is, whether he was acquiring it (by way of transfer to him of all the MAC stock) at cost less depreciation. This is not a situation in which the corporate stock of MAC was offered to the public (or in which previously unissued “treasury” stock is sold) with the actual or tacit representation that the corporate assets had been transferred to the corporation by the promoters at fair value. Hence, it was not necessary for the trial court to adjudge that the ratification defense had been made by virtue of CR 15.02, because there was no cause of action to which such a defense was necessary. All that McClure ever contracted for was the building; he did not contemplate that he would receive anything else. He took the stock of MAC in lieu of a deed. In this state of case we perceive that it is appropriate to disregard the corporate entity — MAC—and regard it as the alter ego of McClure, the sole owner of MAC’s stock. See 18 Am.Jur.2d, Corporations, § 15, pp. 561-562. If McClure was deceived, it was with respect to his buying the building. That is the very issue which was resolved against McClure on his claim for misrepresentation as to the cost of the building, less depreciation. It was not within McClure’s contemplation that when he acquired MAC’s stock he would also acquire a windfall chose in action — a lawsuit for more than $200,000 in favor of MAC. Assuming that MAC had been shorn by its organizers, McClure bought the lamb sans wool; he cannot now complain that he should have acquired the wool too. All that McClure bought was MAC’s stock, which he understood to represent the value of the building itself, and no more. He has acquired that. There is no equitable principle which would entitle him, either in his own name, or in the name of MAC, to obtain more than he bargained for.

Appellees have filed cross-appeal, asserting that it was error to adjudge the court costs as payable equally by appellants and appellees. We adhere to the rule that a court of equity has a judicial discretion in apportioning costs, and this court will not disturb the chancellor’s findings as to costs apart from an abuse of that discretion. We conclude that there has been no such abuse of discretion here. See Johnson v. Johnson, Ky., 273 S.W.2d 558, and authorities there cited.

The judgment is affirmed on the original appeal and on the cross-appeal.


text:
    Abner J. DAVIS, Appellant, v. John WINGO, Warden, Kentucky State Penitentiary, Eddyville, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.
    Abner J. Davis, pro se.
    Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CULLEN, Commissioner.

The circuit court dismissed the petition of Abner J. Davis, a prisoner in the state penitentiary, seeking release by habeas corpus on the ground that the judgments sentencing him to serve consecutive terms on convictions of two separate offenses are void for various reasons. Davis has appealed from the judgment of dismissal.

The petition for habeas corpus properly was dismissed because the petition failed to show inadequacy of the remedy provided by RCr 11.42. Ayers v. Davis, Ky., 377 S.W.2d 154.

We deem it appropriate to comment that the petition sets forth no valid ground for relief even under RCr 11.42. See King v. Commonwealth, Ky., 387 S.W.2d 582.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Appellant, v. Everett D. HUTTON et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.

      Malcolm Y. Marshall, Wesley P. Adams, Jr., Ogden, Robertson & Marshall, Louisville, Herman M. Tye, Barbourville, for appellant.
    Carlos B. Pope, Barbourville, for appel-lees.
   WILLIAMS, Judge.

This is an action brought by appellees to recover the loss of gross earnings as a result of a fire on a business interruption insurance policy issued by the appellant. The policy provided a maximum amount of recovery of $9,850. The trial judge awarded appellee this maximum amount, and the appellant insurance company has appealed from that judgment. Appellee has not filed a brief. Pursuant to RCA 1.260(c) (2), we reverse the judgment as the appellant’s brief reasonably appears to sustain such action.

The policy provided that the insurance company would “be liable for the actual loss sustained by the insured resulting directly from such interruption of business, but not exceeding the reduction in gross earnings less -charges and expenses which do not necessarily continue during the interruption of business, for only such length of time as would be required with the exercise of due diligence and dispatch to rebuild” or replace the property destroyed. The policy also provided a formula or definition for determining precisely the amount of gross earnings giving consideration to the previous earning experience of the business before the date of the damage or destruction and the probable experience after the damage if no loss had occurred.

The controlling question is whether this policy is an open or a valued policy. The plain and unambiguous language of the policy leads us to the conclusion that this was an open policy. The terms actual loss sustained and but not exceeding denote “that uncertainty of amount which is the chief characteristic distinguishing an open from a valued policy.” Stuyvesant Ins. Co. v. Jacksonville Oil Mill, 6 Cir., 10 F.2d 54, 56, (1926).

The insurance policy specified the manner in which a loss was to be computed. The appellees failed to offer any proof in accordance with the formula provisions of the policy, nor did they offer any proof as to the length of time it would take to replace the building by the use of due diligence and dispatch. Proof introduced by the appellant shows that if the period of interruption had lasted six months following the fire, operation of the appellees’ business during that period would have resulted in a net loss of $331.40. Appellant also introduced uncontradicted testimony that it would take three months and three weeks to rebuild or replace the destroyed property. The only evidence which conforms to the provisions of the policy shows that there was no actual loss sustained by the appellee, and he therefore has no basis for recovery on the policy.

The trial judge sustained appellant’s motion for an order requiring appellees to pay the reasonable expenses incurred in producing a witness at the trial. The judge found there was no good reason for denial of certain admissions sought by appellant. The witness testified his necessary expense was $253.33.

The judgment is reversed with directions to enter judgment for the appellant on the policy, and to enter judgment against the appellees in the sum of $253.33, with interest


author: PALMORE, Judge.

text:
    Roberta B. MACKEY et al., Appellants, v. George S. ALLEN et al., Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.
    Rehearing Denied Dee. 17, 1965.

      Herman E. Frick, Louisville, for appellants.
    William Mellor, Louis N. Garlove, Carl J. Bensinger, Henry D. Hopson, Hamilton, Hopson & Hamilton, Louisville, for appel-lees.
   PALMORE, Judge.

Early in the afternoon of December 15, 1961, Mrs. Roberta B. Mackey was having her hair dressed at Ken’s Beauty Salon on Central Avenue in Louisville. One of the young ladies employed in the shop became ill and Dr. Kenneth Hodge was summoned from the Central Medical Clinic, located diagonally across the street. At his request Mrs. Adams, proprietor of the beauty shop, got her automobile and transported the young lady over to the clinic. Mrs. Adams did not return at once to the beauty shop. Meanwhile, customers began to arrive pursuant to their appointments with her and the lady who had been taken ill, and the operator who had completed the job begun on Mrs. Mackey’s hair by Mrs. Adams asked Mrs. Mackey if she would be kind enough, on leaving, to go over to the clinic and find out from Mrs. Adams whether the customers should be asked to wait or to make new appointments. Mrs. Mackey obliged, and went over to the clinic for that purpose. She had never been there before. There were two identical doors side by side (five or six feet apart) under a canopy or marquee bearing the name “Central Medical Clinic.” The left door actually was the only entrance to the clinic. The right door opened directly from a sidewalk outside of the building into an unlighted stairway leading to a storage area in the basement. Assuming that both doors entered the clinic Mrs. Mackey opened the one to the right and stepped inside, all in one continuous motion. She landed at the foot of the stairs and was injured.

The building in which the accident occurred was owned by George S. and Helen W. Allen and occupied by two tenants, Arthur J. Voss, d/b/a Voss Pharmacy, and Central Medical Clinic, a partnership consisting of Dr. Hodge and Dr. Stuart Cohen. The basement storage area into which Mrs. Mackey fell was used by both Voss and the clinic. Each had a key to the door in question, --’hich ordinarily was kept locked. Within two hours or so before Mrs. Mack-ey’s accident a quantity of merchandise ordered by Voss had been delivered by two employes of Our Own Deliveries, Inc. Voss unlocked the door to the basement and directed the delivery men to store the packages below. When the delivery men left, they pulled the door to but did not lock it. In Voss’ own words, “I opened the door to the basement for a delivery from Gould’s Wholesale Supply House. I went back in the drug store and got busy and' forgot to check to see if the basement door had been locked after the delivery boy left. I didn’t tell the delivery boy to lock the door after he completed his delivery. * * I left the store about one-thirty and returned to my home, and I got a call — I forget whether I called the store or whether they called me and told me that someone had fallen down the basement stairway.”

In this action Mrs. Mackey sued Voss, the Allens, the doctors, and the delivery company for her personal injuries and damages. Her husband joined a claim against the same defendants for loss of consortium. After the taking of depositions the trial court sustained motions for summary judgment by the Allens and the doctors. At the close of the evidence for the plaintiffs a verdict was directed in favor of the remaining defendants, Voss and the delivery company. The Mackeys appeal.

As pointed out in a very able summary delivered by the trial court in passing on the motions for directed verdict, the facts of the case are virtually undisputed. Further details will be provided as our discussion relates to each defendant or set of defendants.

1. Central Medical Clinic.

In his deposition Dr. Hodge admitted that another lady, a Mrs. Showalter, had mistakenly entered the same door and fallen down the same stairway about a month before Mrs. Mackey’s accident. Following Mrs. Showalter’s fall he and Dr. Cohen actually discussed the advisability of putting up some kind of sign to prevent further accidents of the same nature. This evidence, we believe, with an appropriate admonition limiting its purpose, would have been admissible against the doctors to show their knowledge of the dangerous condition, hence the foreseeability of the accident. 38 Am.Jur. 1012-1014 (Negligence § 314); Louisville & N. R. Co. v. Jackson’s Adm’r, 250 Ky. 92, 61 S.W.2d 1104 (1933); O’Neil & Hearne v. Bray’s Adm’x, 262 Ky. 377, 90 S.W.2d 353, 356 (1936). In the absence of evidence to the contrary, Dr. Hodge’s deposition concerning the previous accident was sufficient to indicate its having occurred under substantially similar circumstances.

In the briefs much discussion has been devoted to the technical status of Mrs. Mackey, whether she was an invitee, licensee, or trespasser. We are inclined to regard her as a business invitee of the clinic, because her visit to the premises was “for the convenience or arose out of the necessities” of another person who definitely was in the clinic for purposes of the possessor’s business, that other person being Mrs. Adams. Cf. Restatement of Torts, § 332, Comment d. The principle that a business invitee’s guest is also an invitee was recognized in City of Madisonville v. Poole, Ky., 249 S.W.2d 133 (1952), and the Restatement of Torts has been cited repeatedly by this court as a reliable source of authority on this general subject. Cf. Kentucky & West Virginia Power Co. v. Stacy, 291 Ky. 325, 164 S.W.2d 537, 170 A.L.R. 1 (1942).

Certainly Mrs. Mackey was not a trespasser, and it really makes no difference whether she was an invitee or a bare licensee, because the basic distinction between the duties of the possessor is that he owes an invitee the duty of discovering a dangerous condition, whereas he owes a licensee only the duty to warn him of a dangerous condition already known to the possessor. Kentucky & West Virginia Power Co. v. Stacy, supra. If the possessor is aware of a condition involving unreasonable risk to the licensee and by the exercise of ordinary care should foresee that the licensee will not discover it or realize the risk, he has at least a duty to warn him. Coleman v. Baker, Ky., 382 S.W.2d 843, 848 (1964). In this case it is beyond cavil that the doctors knew of the dangerous condition.

It is true that there was no intent on the part of the doctors to invite people into the basement. But the extension over their marquee and sign over both doors gave the appearance of inviting entry through either. That circumstance alone distinguishes the case from Farmer v. Modern Motors Co., 235 Ky. 483, 31 S.W.2d 716 (1930), and Illinois Cent. R. Co. v. Sanderson, 175 Ky. 11, 192 S.W. 869, L.R.A. 1917D (1917). In neither of those cases was there a sign on or over the door to suggest that it was an entrance to the visitor’s intended destination. It is our opinion that an apparent invitation must be equated with an invitation in fact.

The negligence of Voss in causing the basement door to be left unlocked was not an independent act superseding the negligence of the clinic under the principles stated in Brown Hotel v. Levitt, 306 Ky. 804, 209 S.W.2d 70 (1948), and Bengold Properties Inc. v. Crook, Ky., 377 S.W.2d 56 (1964), unless it was an act the members of the clinic could not reasonably have been expected to foresee. This appears to be a deviation from the familiar rule that a person is not bound to anticipate the negligence of another, but it is well settled nevertheless. Hines v. Westerfield, Ky., 254 S.W.2d 728 (1953). We quote the Restatement of Torts, § 447, as follows:

“The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about if
“(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
“(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or
“(c) the intervening act is a normal response to a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.”

The doctors knew that Mrs. Showalter’s accident also had happened as the result of a failure by Voss to lock the door to the basement. That they did in fact realize he might do the same thing again is established conclusively by the express admissions of Dr. Hodge in relating the ensuing discussion with Dr. Cohen.

We are not persuaded that Mrs. Mackey was contributorily negligent as a matter of law. She walked out of the bright sunlight of mid-day into the comparative darkness of an unlighted staircase reasonably expecting a floor to be there. There was neither floor nor platform. She had no opportunity to realize she might have entered the wrong door or to appreciate the existence of danger, as did the injured plaintiff in Illinois Cent. R. Co. v. Sanderson, 175 Ky. 11, 192 S.W. 869 (1917). Whether she exercised ordinary care for her own safety in choosing the door to the right, and in the manner in which she entered it, is properly a question for the jury. Cf. Phelps Roofing Company v. Johnson, Ky., 368 S.W.2d 320, 324 (1963).

It is our conclusion on this phase of the case that the clinic was negligent as a matter of law, and that if the evidence produced at a trial be substantially the same the jury should be required to determine only the questions of contributory negligence and damages.

2. Voss.

We reach the same conclusion with respect to Voss. He and the clinic shared the use of the basement door. They had the only keys to it. He knew the clinic sign was over the door. He was as well able as were the members of the clinic to foresee the probable consequences. His knowledge that the sign gave the appearance of an invitation to enter his door puts him in the same position as if he had shared in the invitation. If he did not want people to act on the strength of that ostensible invitation he should have kept the door locked. By sharing in the occupancy and possession of the basement he shared in the responsibility of exercising ordinary care to see that the invitees or licensees of his co-possessor were not lured into a trap known to him but concealed to them.

As a matter of fact, Voss also knew of Mrs. Showalter’s fall down this same stairway. The evidence was excluded by the trial court because Voss did not know that the circumstances were similar. We think this was a hypertechnical result. The doctors had advised him of Mrs. Showalter’s accident. In the usual course of human events people do not fall down stairways on purpose. The very fact that a lady had fallen down the stairs was enough to put a reasonably prudent man on notice that it was not safe to leave the door unlocked.

3. The Allens (landlord).

The lease to Voss specifically covered two-thirds of the basement. The lease to the clinic made no reference to the basement. Nevertheless, the understanding among the parties was that it was in the exclusive possession of the two tenants. The Allens did not have a key to the door in question. Mr. Allen visited the premises once a month when he came around to collect the rents, and on these occasions he usually borrowed a key from one of the tenants and went down into the basement for the purpose of cleaning it up, though he had no duty to do so.

When a landlord retains control of a portion of the leased premises for the common use of two or more tenants he is responsible for the condition of the part so retained. 32 Am Jur. 561-562 (Landlord and Tenant, § 688). In Primus v. Bellevue Apartments, 241 Iowa 1055, 44 N.W.2d 347, 25 A.L.R. 565 (1950), it was said that in the absence of proof to the contrary a landlord is presumed to have retained control over premises used in common by his different tenants. See also Starks Building Co. v. Eltinge, Ky., 269 S.W.2d 240, 242 (1954). Be that as it may, we think such a presumption would be conclusively rebutted by the circumstances of this case. At the time Mrs. Mackey was injured the exclusive control of the basement and its entrance lay jointly in Voss and the clinic.

The Allens were entitled to their summary judgment.

4. Our Own Deliveries, Inc.

The legal position of the delivery company is not free of doubt. Its employes did participate in the act, or omission, of the door’s being left unlocked. See Brown Hotel Company, Inc. v. Sizemore, 303 Ky. 431, 197 S.W.2d 911 (1946), recognizing the liability of a deliveryman for insecurely replacing the cover of a manhole in a public alley. In this instance the door was equipped with an inside push-button type of lock, though the delivery men did not actually notice that fact. They could have asked Voss whether they should lock the door when they finished their job. They could also have notified him when they left. On the other hand, they were on the premises for only 10 to 15 minutes at the most, and neither of them had ever been in the basement before. An ordinary workman employed on a delivery truck can hardly be expected to exercise a great deal of independent judgment beyond what he is told to do. We think it would be unreasonable to find that these two men should have appreciated the risk to third persons that would result from their failure to see that the door was locked, much less to recognize an affirmative responsibility to prevent it. The Brown Hotel Company-Sizemore case is distinguishable on the ground that the delivery man in that instance knew very well that he was to replace the manhole cover securely and is bound to have been fully aware of the probable consequences of a failure to do so.

We think the action of the trial court in directing a verdict for the delivery company was correct.

The cause is affirmed as to the appellees George S. Allen, Helen W. Allen, and Our Own Deliveries, Inc. As to the appellees Hodge, Cohen, and Voss it is reversed for further proceedings consistent with this opinion.


author: PALMGRE, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Charles Thomas DEVINE, Appellee.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.

      Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellant.
    Daniel Taylor, Louisville, for appellee.
   PALMGRE, Judge.

The appellee, Devine, having been fined $100 and costs in the Jefferson Quarterly Court on each of two charges of violating the game laws, appealed the convictions to the Jefferson Circuit Court (KRS 23.032), where the cases were jointly tried anew (KRS 25.070) and resulted in a directed verdict and judgment of acquittal based on the insufficiency of the evidence to warrant a conviction on either charge. The Commonwealth appeals, seeking a reversal and new trial. KRS 21.140(3). Devine has failed to respond.

Before reaching the merits it is necessary to consider whether this court has the authority to reverse for a new trial.

KRS 21.140(3), which provides that the Commonwealth may in criminal cases appeal to this court from adverse rulings and decisions of circuit courts, was enacted incident to adoption of the Rules of Criminal Procedure, effective January 1, 1963. It replaces the substantive law formerly contained in Crim.Code §§ 335, 347, and 352. As pointed out in the introductory General Comment to Section XII (Appeals) of the Rules of Criminal Procedure, in the separation and rearrangement of substantive and procedural matters as between the statutes and the rules, provisions regarded as attempts to define double jeopardy were eliminated. As we understand it, therefore, KRS 21.140(3) was intended to allow the Commonwealth an appeal not only for a certification of the law, but also for a reversal in any case in which a new trial would not constitute double jeopardy.

“In misdemeanor cases punishable by fine alone the commonwealth may appeal from a judgment of acquittal, and, upon reversal thereof, have a new trial notwithstanding the former verdict and judgment of acquittal.” Commonwealth v. Williams, 230 Ky. 71, 18 S.W.2d 881, 882 (1929).

The Williams case was followed in Commonwealth v. Moyers, Ky., 272 S.W.2d 670 (1954), the defendant having been acquitted of violating a regulation of the Department of Fish and Wildlife Resources. The offenses Devine is alleged to have committed in the instant case are hunting rabbits out of season, KRS 150.370, and hunting rabbits with headlights, KRS 150^390 (2), for which the maximum penalties are, respectively, fines of $100 and $1,000. KRS 150.990 (2) and (8). Hence the Moyers case applies.

As briefly as we are able to state it, the evidence found insufficient to support a conviction of Devine was this:

On a November night in 1964 before the rabbit hunting season opened, Roy Toon, a conservation officer of the Department of Fish and Wildlife Resources, having received reports of night rabbit hunting around Long Run Park in eastern Jefferson County, stopped his car at the park entrance and stationed himself about 30 feet off the roadside in the park. At about 10:40 P.M. he saw an automobile coming slowly toward the park entrance with its headlights on. When the car was 50 to 75 yards from the officer it stopped, and he heard the report and saw the flash of a shotgun fired from the driver’s side of the vehicle. As Toon was starting to get back in his car he saw someone out on the side of the road picking up what appeared to be a small animal, and which he took to be a rabbit. Toon began to maneuver his own car out of the park without using his lights, and while engaged in that process he observed the other vehicle proceed on up to the park entrance, turn around, and start back in the opposite direction, again at a slow rate of speed. He followed behind, and at a point some 200 yards distant the vehicle being watched came to a stop with its headlights burning. Toon continued to approach with his own lights off, and turned them on when he had almost reached the parked vehicle, which was a station wagon. Its headlights were still burning, the door on the driver’s side was open, and standing in front of it were Devine and a young man. Toon saw De-vine hand a shotgun to the young man, who immediately walked or ran back and threw it onto the floor of the station wagon. In reply, to a query by Toon as to what he was doing, Devine said he was working on his headlights. Toon noticed the absence of any tools and, upon looking into the station wagon, saw the shotgun on the floor, a shell vest with a load of shells lying on the front seat, and a freshly killed rabbit in a kettle behind the seat. The gun was fully loaded and he could tell from the smell of gunpowder that it had been recently fired. The rabbit, which was still warm and bloody, bore evidence of a charge from a shotgun.

According to the officer’s testimony, he informed Devine that he was guilty of about five different offenses, to which Devine’s only response was, “I know it.” He cited Devine for the two he thought were most important, but did not cite the young man because of a policy against citing “young teenage boys in a violation of this kind.” While he was writing out the citations Devine sat in the driver’s seat of the station wagon and the boy sat in the back.

The trial court found the evidence shy because Toon could not identify which of the two occupants of the station wagon was driving it, which of them fired the shot, or which of them picked up the rabbit. Without belaboring the matter, it is our opinion that the circumstantial evidence was amply sufficient to sustain a conviction on either or both charges.

The causes are reversed with directions that the Commonwealth be granted a new trial on both charges.

      . Paradoxically, had the acquittals in this ease been returned in quarterly court it would appear that the state could not have appealed. See KRS 23.032.


author: MILLIKEN, Judge.

text:
    John BOWLING et al., Appellants, v. Rile GAYHEART, Appellee.
    Court of Appeals of Kentucky.
    May 28, 1965.
    Rehearing Denied. Dec. 17, 1965.

      D. G. Boleyn, Hazard, for appellants.
    Don A. Ward, Hazard, for appellee.
   MILLIKEN, Judge.

This is essentially a fact case and involves the determination of a boundary line by the trial judge without a jury.

The land is located on Lost Creek m Perry County, west of the confluence of Laurel Branch. The appellee claims the land in dispute by a 1923 deed from Bob and Sithie Gayheart. The appellant claims title under a 1952 deed from Napoleon and Polly Gay-heart. The deed from Gayheart to Bowling gives the following description of the disputed line: (from a rock and oak tree marked X) “thence a straight line to a rock marked X on the bank of Main Lost Creek.” There was extensive proof introduced by the appellee which established the rock as the corner marker of the disputed line.

The appellants’ proof did not dispute the existence of the rock, but was slanted toward fraud and mutual mistake. Appellants tried to establish their boundary by deeds of adjoining land, as well as their own deed. Appellants also had a survey made by an engineer, who testified he did not find the rock marker where, according to his survey, it should have been. Appellants, during the time of their occupancy, constructed several small buildings on the land.

The evidence shows that appellee had, some years previous to this action, instituted a similar action against appellants over the same land. The Court records show that the suit was dismissed. It was shown in the evidence that the parties had reached an oral agreement the terms of which are in dispute. However, rents were paid by appellants to the appellee and a son of the appellants paid appellee $5 a month for about two years for the use of gasoline pumps on the disputed tract.

Based on this evidence, the trial judge entered a judgment in favor of the appel-lee on the ground that natural objects prevail over distances in the determination of boundary lines and that the appellee presented sufficient evidence to identify the natural objects and to establish their location on the land in positions which established his title to the disputed area. We conclude that the trial court’s findings are correct.

The judgment is affirmed.


text:
    Thomas BROCKIE, Appellant, v. Russell SHADWICK and Southern Tank Lines, Inc., Appellees.
    Court of Appeals of Kentucky.
    Oct. 1, 1965.
    Rehearing Denied Dec. 17, 1965.

      James Levin and Ben Hanish, Hanish & Hanish, Louisville, for appellant.
    J. Donald Dinning, McElwain, Dinning, Clarke & Winstead, Jones, Ewen & Mackenzie, Louisville, for appellees.
   CULLEN, Commissioner.

In Thomas Brockie’s action against Russell Shadwick for damages growing out of a collision between Brockie’s station wagon and a tractor-tank trailer operated by Shadwick, at the intersection of Second Street and St. Catherine Street in Louisville, the jury found against Brockie. Judgment was entered accordingly and Brockie has appealed.

Shadwick was going north on Second Street and Brockie was going west on St. Catherine Street. Traffic at the intersection was controlled by an electric stop- and-go signal. Shadwick testified that the light, which had been green in his favor, changed to yellow just as he reached the crosswalk. Being “too close” to stop, he proceeded into the intersection. The collision occurred in the northeast quarter of the intersection.

Brockie, as appellant, makes several major contentions all of which are rested on the premise that Shadwick was negligent as a matter of law in entering the intersection on the yellow light.

The courts of other jurisdictions have taken widely divergent positions on the question of the duty of a motorist when the green light changes to yellow as he approaches an intersection. See Annotation, 164 A.L.R. 8 at page 49; 60 C.J.S. Motor Vehicles § 360c, p. 856. Some of the decisions have been based on the provisions of statutes or ordinances.

Kentucky has no statute governing the duties of a motorist on a yellow light. In the instant case Brockie undertook to introduce in evidence a Louisville ordinance regulating traffic light duties, but the portion of the ordinance dealing with yellow lights, as it appears in the record, merely describes what a yellow light is and does not specify any duties.

It is our opinion that in the situation under discussion (yellow following green) the motorist lawfully may enter the intersection on the yellow light. The purpose of the yellow light is merely to put the motorist on warning that a red signal is coming up and that he must be prepared to stop if the light turns red before he enters the intersection. This is the view taken by the Ohio court in Case v. Carter, 103 Ohio App. 11, 142 N.E.2d 670. See also Brummett v. Cyr, 56 Wash.2d 904, 355 P.2d 994.

It is true that in Bryan v. Battoe, 290 Ky. 47, 160 S.W.2d 369, this Court approved an instruction stating that it was “the duty of the respective parties not to enter the intersection on red or yellow lights.” However, the only evidence in that case was that the light had turned to yellow after one of the parties had entered the intersection, so the question of entering on a yellow light was not in issue. The casual reference in the opinion to a yellow light cannot be accorded the dignity of a considered judicial pronouncement. To the extent that possibly it could be considered such we hereby overrule it.

The instructions in the instant case stated that Shadwick must stop on the yellow light “if he could do so in the operation of his vehicle in the exercise of ordinary care.” The instruction was erroneous because, as hereinbefore pointed out, Shad-wick lawfully could enter the intersection on the yellow light; however, Brockie was not prejudiced by the instruction because it was a more favorable one than he was entitled to.

Brockie contends that three improper and prejudicial questions were asked of witnesses by Shadwick’s counsel. It is sufficient to say that we find nothing erroneous or prejudicial in the questions. In fact, the trial court would not permit one of the questions to be answered and told the jury that an answer either way would not be relevant.

The judgment is affirmed.

      . In the official compilation of the Louisville Ordinances, Section 323.01(b) states that vehicular traffic facing a yellow light following a green light shall stop before entering the nearest crosswalk at the intersection. However, this provision does not appear in the record and the court cannot take judicial notice of it. Fryrear v. Kentucky & Indiana Terminal R. Co., 310 Ky. 250, 220 S.W.2d 546.