author: STONE, Judge.

text:
    Arvil COTTON, Plaintiff-Respondent, v. VOSS TRUCK LINES, INC., and Transport Insurance Company, Defendants-Appellants.
    No. 8363.
    Springfield Court of Appeals. Missouri.
    June 7, 1965.

      Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for defendants-appellants.
    Padberg & Raack, St. Louis, for plaintiff-respondent.
   STONE, Judge.

Arvil Cotton (hereinafter called the employee) instituted this proceeding under the Missouri Workmen’s Compensation Act [V.A.M.S. Chapter 287] against Voss Truck Lines, Inc., his employer, and its insurer, Transport Insurance Company, by the filing of his claim with the Division of Workmen’s Compensation on May 8, 1962. In his claim, the employee alleged that, on May 12, 1959, while at a truck stop near Rolla, Phelps County, Missouri, he had sustained an accident thus described, “was hooking up some trailer lines to a tractor unit and was stepping on a butane tank to alight from putting on the lights and slipped off due to grease on the tank,” and that, as a result of the accident, his “lumbar back, right side and genitals” had been injured. By their answer, the employer and insurer denied that “either permanent total or permanent partial disability of any part of the employee’s body resulted from the alleged accident” and asserted that the employee could not maintain his claim (a) because he had failed to give the employer or insurer written notice of accident within the time prescribed by Section 287.420 and (b) because the claim had not been filed within the time permitted by Section 287.-430. (Except as otherwise specifically stated, all statutory references are to RSMo 1959, V.A.M.S.)

Upon hearing, the referee awarded to the employee $208.93 for temporary total disability ($37.50 per week for a “healing period” of 5fi weeks beginning as of May 13, 1959), $2,250 for 15% permanent partial disability of the body as a whole ($37.50 per week for 60 weeks beginning as of July 6, 1959), and $215 for medical aid, the total amount of the award being $2,673.93. See Section 287.190; Laws of 1957, p. 560. On the employer’s and insurer’s application for review [Section 287.480], the Industrial Commission, after hearing oral arguments and considering written briefs, adopted the referee’s findings of fact and conclusions of law and affirmed his award. Being cast again upon appeal to the Circuit Court of Phelps County [Section 287.490] by af-firmance of the final award of the Commission, the employer and insurer, still protesting, come to us.

The primary contention of the employer and insurer has been and still is that the employee’s claim filed on May 8, 1962, almost three years after the accident on May 12, 1959, was barred by the statute of limitations which provides that “[n]o proceedings for compensation . . . shall be maintained unless a claim therefor be filed with the commission within one year after the injury or death, or in case payments have been made on account of the injury or death, within one year from the date of the last payment.” Section 287.430. It has long been settled that the furnishing of medical aid by an employer or insurer to an injured employee constitutes such payment on account of the injury as tolls the running of the statute of limitations, and that this is so regardless of whether such aid is furnished voluntarily or under compulsion of law. And it is equally clear that, if an employer or insurer has made itself legally liable for such aid, it is of no consequence that the physician or hospital rendering the aid has not received actual payment.

In the instant case, the employer’s and insurer’s position is that, when the employee indicated a need for medical attention, the employer tendered the services of “the company doctor, Dr. Demco,” but that the employee “rejected the services of the company doctor and elected to engage the services of Dr. Meador,” so that whatever services the latter may have rendered to the employee did not become “the responsibility of the employer or insurer” [see Section 287.140(1)] and, therefore, did not toll the running of the one-year statute of limitations. This (so counsel insist) was established by “the positive testimony of the employee” by which he is “conclusively bound.” On the other hand, the employee’s position is that “the employer acquiesced in and adopted Dr. Meador as the treating physician,” rendering the employer and insurer legally liable for such treatment (which continued to the time of hearing) and tolling the running of the one-year statute of limitations.

With the foregoing statements of basic principles and adversary contentions before us, we turn to the facts, according appropriate and required recognition to the applicable precept that, although on judicial review the circuit court was in the first instance, and this court is on appeal, authorized to determine whether, upon the entire record, the Commission reasonably could have made the findings and award under consideration, this does not mean that either court should substitute its own judgment on the evidence for that of the Commission, but that, on the contrary, a reviewing court may set aside the findings and award of the Commission only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and award.

In maneuvering around a parked automobile at the truck stop near Rolla about dusk on May 12, 1959, the employee jackknifed his unit and pulled loose the air and electrical cords between the tractor and trailer. When, after reconnecting those cords, he stepped back onto some grease on the top of the fuel tank, his feet slipped and he fell some three or four feet, landing on the driveway in a sitting position. “It more or less stunned me at the time . . . It hurt, but I didn’t realize I was injured seriously.” He sat in the cab for a short time and then walked around some before continuing on his run to St. Louis. After checking into the St. Louis terminal about 9 P.M., he went home. By the next morning, he was having considerable pain in the “small of [his] back . . . right lower side and right testicle,” but nevertheless he left St. Louis early that morning on a run to Springfield. That was his last trip before he laid off work for a period of about eight weeks.

Norman E. Krutzman, then manager of the employer’s St. Louis terminal, was gone when the employee checked into the terminal on the evening of May 12, 1959, the date of accident. Either “the next day ... or the following day after that . . . the first time I could make contact with him after the accident,” the employee orally reported the accident to Krutzman by telephone. “I told him what happened and that I was going to have to take some time off.” Krutzman said “to call him when I felt like working.”

Some time elapsed, “probably a week or two,” before “I made up my mind I was going to have to go to the doctor.” At the hearing, the employee was “sure” that he had “discussed it” with Krutzman “before I ever went to the doctor,” but the record is silent as to what was said by either party on that occasion. In any event, the employee first received medical care when he consulted James R. Meador, M.D., at his office in Clayton, St. Louis County, on a date fixed by the doctor’s records as having been May 29, 1959; and “the main discussion” (hereinafter referred to as such) between the employee and Krutzman concerning medical care was on the following day, i. e., on May 30, when the employee first talked with Krutzman over the telephone and then went to his office. We record verbatim the employee’s testimony concerning “the main discussion” (characterized by counsel for the employer and insurer as “positive testimony” conclusively establishing their contention that the employee “rejected the services of the company doctor and elected to engage the services of Dr. Meador”): “I told him [Krutzman] I had been to the doctor and it looked like I was going to have to have some medical attention and he said, ‘Well, you know we have our company doctor who is available to you/ and I told him I realized that but the main reason I was there was to find out if it was possible for me to go to my own doctor, at which time he told me that it was . . . The best I can recall he said he seen no point in me going to two different doctors and that I was covered by insurance and I had the right to choose my own doctor, possibly he would later want me to see the other doctor . . . Dr. Demco,” identified as “the company doctor.” When asked for “any discussion at that time with Mr. Krutzman relative to whether the company would or would not pay Dr. Meador,” the employee answered, “his statement was that his insurance company was responsible for it no matter who I went to,” this response properly having been received in evidence as being relevant to the primary factual issue, to wit, whether or not the employer (acting by and through Krutz-man) authorized medical treatment of the employee by Dr. Meador.

When pressed on cross-examination to state why he had asked Krutzman “if it would be all right to go” to Dr. Meador, the employee said that “there were several reasons” and then detailed two of them, namely, (1) that “the company doctor [Dr. Demco] was so far from my home, I was having trouble driving” — it “was at least an hour” to Dr. Demco’s office but only “approximately twenty minutes” to Dr. Meador’s office, and (2) that “truthfully I didn’t have too much trust in the company doctor and I thought I should be able to choose my own doctor.”

Robert L. Martin, a fellow driver who testified that he was present and heard the conversation between the employee and Krutzman, substantially confirmed the employee’s account of it. As Martin related it, “Mr. Cotton [the employee] told Mr. Krutzman it hurt him too bad to drive in a car clear down there” to Dr. Demco’s office — “it was a long ways to drive down to Dr. Demco, wouldn’t it be all right for him to go to his family doctor,” and Krutz-man said “he thought yes, that would be all right, since he [the employee] was in the condition he was in he should go to the family doctor, there wasn’t any sense in having to pay two doctors.”

Krutzman, employed by another truck line at the time of hearing, was called as a witness for the employee. He verified the fact that the accident under consideration had been reported to him by the employee, although he frankly conceded that he could not fix the precise date of any conversation — “I don’t remember dates and I am not going to tell you I do.” But his recollection was positive in this area: “I very definitely remember this, that we had a standing order so to speak with Transport Insurance Company [the insurer], issued to me by Mr. Bonnett [the St. Louis branch claim manager], that any employee hurt on the job . . . there was an outstanding rule that anybody hurt on the job they could pick out any physician or M.D., as long as it (sic) was a reputable one, and I told Mr. Cotton [the employee] he could go to any man he wanted to but the insurance company also wanted him to go to the company doctor and have him make an examination too.” Krutzman did not recall that the name of Dr. Meador was mentioned in that conversation; but, in the course of his testimony, he identified the original “Report of Injury” (on Form 1 used by the Division of Workmen’s Compensation) signed by him under date of July 7, 1959, and admittedly received at the insurer’s St. Louis claim office on July 8, 1959, which gave the “name and address of attending physician” as “Dr. Meador, 4 S. Central, Clayton, Mo.”

Of course, the failure of an employer (and its insurer) “within ten days after knowledge of an accident resulting in personal injury to an employee, [to] notify the commission thereof, and . . ., within one month, [to] file with the commission . . . a full and complete report of every injury ... to any employee for which the employer would be liable to furnish medical aid or compensation,” as Section 287.380(1) plainly directs, does not toll the running of the one-year statute of limitations [Section 287.430], notwithstanding the fact that such failure renders it impossible for the Commission to “inform the employee generally of his rights” [Section 287.400] under the Missouri Workmen’s Compensation Law. Price v. Kansas City Public Service Co., 330 Mo. 706, 50 S.W.2d 1047; Armstrong v. Union Electric Light & Power Co., Mo.App., 60 S.W.2d 1013, 1014(1). However, it may be observed in passing that, although Krutzman’s form report of the employee’s injury was received by the insurer on July 8, 1959, it was not filed with the Division of Workmen’s Compensation until May 15, 1962, after the employee’s “Claim for Compensation” had been filed. And it may be noted that this form report not only identified Dr. Meador as the attending physician but also showed that “employee returned to work” on “7-6-59,” almost eight weeks after the date of accident. Neither the employer nor the insurer made any monetary payment of compensation or for medical aid.

In urging their contention that “the positive testimony of the employee” by which he was “conclusively bound” established that the employee “rejected the services of the company doctor and elected to engage the services of Dr. Meador,” counsel for the employer and insurer emphasize (in addition to the employee’s testimony concerning “the main discussion” with Krutzman on May 30, 1959) the following questions and answers in the employee’s cross-examination: “Q. Now, when you went to Dr. Meador, you told him you were engaging his services ? A. I did. Q. You never at any time told him you were not engaging his services? A. No sir. Q. The services of Dr. Demco, the company doctor, were tendered to you, were they not ? A. If I chose to use him, yes. Q. And you did choose to use Dr. Meador? A. Right.” Standing alone, the quoted questions and answers might have the force and effect accorded to them by counsel. But taking the employee’s testimony as a whole, as we must do, we are of the opinion that it may not rightly be characterized as “positive testimony” reasonably susceptible of no interpretation or construction other than that placed upon it by counsel for the employer and insurer.

Rather, we are convinced that, on the record as a whole, the referee fairly and reasonably could have made (as he did) the following findings which, upon review, were adopted by the Industrial Commission: “In finding that the employer and insurer are responsible for the services of Dr. James Meador (thereby rendering them responsible for medical bills incurred as the result of his treatment and thereby tolling the statute of limitations) I find that the employer, through the action of their person in authority, Norman E. Krutzman, who testified for the employee, acquiesced in the use of Dr. Meador as its treating physician. This was established by the testimony of both the claimant and Mr. Krutzman to the effect that the employee requested permission to use Dr. Meador rather than Dr. Demko, and that Mr. Krutzman told the employee that, in accordance with company policy, this would be satisfactory with the employer. The crux of the dispute in this case centers around the insurer’s contention that this conversation [“the main discussion” between the employee and Krutzman on May 30, 1959] constituted an election by the employee to use Dr. Meador as his own physician at his own expense. This contention I specifically reject for the reason that the employee did not need to get permission of Mr. Krutzman to incur his own medical bills and the only reasonable inference to be drawn from Mr. Krutzman’s authorization to use Dr. Meador is that it was the employer’s intention that it be responsible for these bills. This inference is also supported by testimony of Mr. Bon-nett [insurer’s St. Louis branch claim manager] on cross-examination indicating that the employer, on several occasions, requested the insurer to pay these bills, which also indicates the intention of the parties at the time of the original coversation between Mr. Krutzman and the employee.” See particularly Morrow v. Orscheln Bros. Truck Lines, 235 Mo.App. 1166, 151 S.W.2d 138, 143.

At this point, we quote also the significant and meaningful statement of the referee, incorporated in his findings of fact, that “[i]n evaluating the testimony in this case I am impressed by the straightforward convincing manner in which the employee and Mr. Krutzman presented their testimony, and I do not feel that this testimony was impeached, either directly or by inference, by the testimony of three employees of the Transport Insurance Company [the insurer] for the reason that none of 1jiis testimony is sufficient to prove that the employer did not authorize the employee to use Dr. Meador.”

We need not determine, and accordingly do not say, that the referee and the Industrial Commission drew (as they thought) “the only reasonable inference” permissible upon the record. For, on judicial review the inquiry is whether, upon the entire record, the Commission reasonably could have made the findings and award under consideration, not whether a contrary conclusion might have been permissible. If from the evidence as a whole two different inferences or conclusions may be drawn as to the ultimate fact at issue, each of such inferences or conclusions being consistent with the testmony, and each inconsistent with the other, it is for the triers of the facts to draw the inference and determine the issue and such determination does not become a matter of law. Thus, in the instant case, it is immaterial what our findings and conclusion might have been if we had heard the evidence originally. Davis v. Brezner, Mo.App., 380 S.W.2d 523, 529; Slider v. Brown Shoe Co., Mo.App., 308 S.W.2d 306, 310(6); Blair v. Armour & Co., Mo.App., 306 S.W.2d 84, 89. Suffice it to say that, as we already have indicated, our opinion is that the above-quoted findings of the referee and the Commission were, upon the entire record, permissible and not clearly contrary to the overwhelming weight of the evidence. Aside from the patent factual differences between the case at bar and the only two workmen’s compensation cases cited in employer’s-insurer’s brief which dealt with alleged rejection of medical services tendered by an employer, it is worthy of note that in each of those cited cases the appellate court simply affirmed, as permissible the finding of the Commission that the employee had, within the contemplation and meaning of Section 287.140(1), rejected the tendered services and elected to engage a physician of his own selection at his own expense. Sams v. Hayes Adhesive Co., Mo.App., 260 S.W.2d 815, 820(7); Moorman v. Central Theatres Corp., Mo.App., 98 S.W.2d 987(5,7).

In another point, counsel for the employer and insurer argue that, “assuming, but denying, that the services rendered the employee by Dr. Meador could be said to have been rendered under circumstances constituting him the employer’s doctor, nevertheless such relationship would not have endured beyond ninety days after the injury without a special order of the Commission.” See Section 287.140(1). No such order having been made, counsel say that the one-year statute of limitations [Section 287.430] in any event began to run ninety days after May 12, 1959, the date of accident, so that the claim filed on May 8, 1962, was barred anyway.

It is true that Section 287.140(1) provides that the employer shall furnish needed medical and related services “for the first ninety days after the injury or disability . . . and thereafter such additional similar treatment as the commission by special order may determine to be necessary.” However, under the findings of the Commission (which, as we have said, on the record before us we have no right to set aside) Dr. Meador indeed did become, during the period of ninety days after the date of the employee’s injury, “the employer’s doctor” to furnish to the employee needed medical aid to cure and relieve from the effects of the injury. Nothing in Section 287.140 (or, for that matter, elsewhere in the Missouri Workmen’s Compensation Law), upon expiration of the initial period of ninety days after the date of the employee’s injury, worked any change in, or termination of, Dr. Meador’s status as “the employer’s doctor” to furnish needed medical aid to the employee. So, in the absence of evidence of any change in such status, it must be presumed to have continued through the subsequent course of treatment by Dr. Meador to the time of the filing of the employee’s claim. For it is well-settled that a status once shown to exist will be presumed to have continued, absent any showing to the contrary. The continued furnishing of medical aid by the employer through Dr. Meador after the first ninety days following the injury, without a special order therefor [Section 287.140(1)], waived the statutory requirement for any such order and tolled the running of the statute of limitations. The point under discussion is without merit.

The only other point presented on this appeal is that “the finding by the referee, adopted by the Industrial Commission, that 'the employee sustained fifteen per cent permanent partial disability of the body as a whole, referable to his lower back,’ is not supported by the record.” Dr. Meador diagnosed the employee’s injuries as “low back strain and epididymitis,” expressed his “opinion based upon a reasonable degree of medical certainty” that there was a causal connection between the employee’s accident and his injuries and that both the low back strain and epididymitis were in some measure permanent, and rated the employee’s permanent partial disability at fifteen per cent of the body as a whole. Because the above-quoted finding of the referee, adopted by the Commission, was “fifteen per cent permanent partial disability of the body as a whole, referable to his lower back,” without specific mention of epididymitis, counsel for the employer and insurer argue that both the referee and the Commission “rejected the doctor’s testimony that there was a causal connection between the accident and the epididymitis” and that Dr. Meador’s rating, which took into account both the low back strain and epididymitis, did not support the finding.

We do not attach such significance to the failure of the referee and the Commission to make specific mention of epididy-mitis, and we are unwilling, on the attenuated and hypercritical argument of counsel, to agree with them that Dr. Meador’s rating does not afford support for the Commission’s finding of fifteen per cent permanent partial disability of the body as a whole. That was a finding of fact within the special province of the Commission [Barron v. Mississippi Lime Co. of Missouri, Mo.App., 285 S.W.2d 46, 48(1)], and we review it (as we do all other findings of fact) under the applicable precept that we may not substitute our judgment on the evidence for that of the Commission and may set aside the finding only if it is clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to the finding. See cases cited in footnote 4, supra. Without further extending. this opinion by the recitation of needless evidentiary detail, we conclude that, with proper regard for the stated principle limiting the nature and scope of judicial review in cases of this category, we may not set aside the Commission’s finding as to the extent of permanent partial disability. See Worley v. Swift & Co., Mo.App., 231 S.W.2d 828, 832(3,4); Johnson v. Fogertey Bldg. Co., Mo.App., 194 S.W.2d 924, 929-930(1-5).

The judgment of the circuit court affirming the final award of the Industrial Commission is affirmed here.

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

      . Buecker v. Roberts, Mo.App., 260 S.W.2d 325, 326 (1); Thomas v. Baker-Lockwood Mfg. Co., 236 Mo.App. 1248, 163 S.W.2d 117, 119(2); Morrow v. Orseheln Bros. Truck Bines, 235 Mo.App. 1166, 151 S.W.2d 138, 142(1); Blahut v. Liberty Creamery Co., Mo.App., 145 S.W.2d 506, 508(1). See also Myers v. Cap Sheaf Bread Co., 354 Mo. 943, 192 S.W.2d 503, 504(1); Martensen v. Schutte Lumber Co., 236 Mo.App. 1084, 162 S.W.2d 312, 317(4).

      . Buecker v. Roberts, supra, 260 S.W.2d at 326(1); Buecker v. Roberts, Mo.App., 200 S.W.2d 529, 533; Mussler v. American Car & Foundry Co., Mo.App., 149 S.W.2d 429, 431(3); Parker v. St. Louis Car Co., Mo.App., 145 S.W.2d 482, 485 (4).

      . McEneny v. S. S. Kresge Co., 333 Mo. 817, 62 S.W.2d 1067, 1070; Buecker v. Roberts, supra, 260 S.W.2d at 326(1); Thomas v. Baker-Lockwood Mfg. Co., supra, 163 S.W.2d at 119(3) ; Morrow v. Orseheln Bros. Truck Lines, supra, 151 S.W.2d at 143(4).

      . Heaton v. Ferrell, Mo.App., 325 S.W.2d 800, 802(1); Barton v. Western Fireproofing Co., Mo.App., 326 S.W.2d 344, 345(1); Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80, 83(5-7); Garrison v. Campbell “66” Express, Inc., Mo.App., 297 S.W.2d 22, 30(8), and cases collected in footnote 11.

      . Dimond v. Terminal R. R. Ass’n. of St. Louis, 346 Mo. 333, 353, 141 S.W.2d 789, 799(12); Haire v. Stagner, Mo.App., 356 S.W.2d 305, 310(6); Garrard v. State Dept. of Public Health & Welfare, Mo. App., 375 S.W.2d 582, 592(25); Lane v. Wilson, Mo.App., 390 S.W.2d 943, 945 (2).

      . Karch v. Empire Dist. Elec. Co., 358 Mo. 1062, 1070, 218 S.W.2d 765, 770; Francis v. Sam Miller Motors, Inc., Mo., 282 S.W.2d 5, 13; Vandaveer v. Reinhart & Donovan Const. Co., Mo.App., 370 S.W.2d 156, 163; Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743, 747 (5); Davis v. McKinney, Mo.App., 303 S.W.2d 189, 193(7).

      . Sanderson v. Producers Commission Ass’n, 360 Mo. 571, 579, 229 S.W.2d 563, 567-568(7); Karch v. Empire Dist. Elec. Co., supra, 358 Mo. at 1071, 218 S.W.2d at 771; Arnold v. Wigdor Furniture Co., Mo., 281 S.W.2d 789, 797(9); Ashwell v. United States Seed Co., Mo.App., 167 S.W.2d 950, 952-953(2, 3). See Shrock v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812, 815(4); Damore v. Encyclopedia Americana, Mo., 290 S.W.2d 105, 108(6).

      . Eberle v. Koplar, Mo.App., 85 S.W.2d 919, 921 (1); Graham v. St. Louis & S. F. Ry. Co., Mo.App., 273 S.W. 221, 224(4); Westinghouse Elec. & Mfg. Co. v. Hodge, 181 Mo.App. 232, 167 S.W. 1186, 1187 (2); Sisk v. American Central Fire Ins. Co., 95 Mo.App. 695, 69 S.W. 687, 692(7). See Nelson v. Jones, 245 Mo. 579, 151 S.W. 80, 82(2); Sanderson v. New York Life Ins. Co., 239 Mo.App. 688, 194 S.W.2d 221, 227(8); Preston v. Preston, Mo.App., 342 S.W.2d 956, 958(4).

      . McEneny v. S. S. Kresge Co., supra, 333 Mo. at 824, 62 S.W.2d at 1070(3); Buecker v. Roberts, supra, 260 S.W.2d at 327 (2); Morrow v. Orscheln Bros. Truck Lines, supra, 151 S.W.2d at 142(2); Blahut v. Liberty Creamery Co., supra, 145 S.W.2d at 509(2); Curtin v. Zerbst Pharmacal Co., 229 Mo.App. 82, 72 S.W.2d 152, 155.

      . See eases cited in footnote 1, supra.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY et al., Appellants, v. Lora WOOD, Administratrix of the Estate of John J. Riley, Appellee.
    Court of Appeals of Kentucky.
    July 2, 1965.
    Ben D. Smith, Smith & Blackburn, Somerset, for appellants.
    Homer Ramsey, Whitley City, for appel-lee.
   DAVIS, Commissioner.

This is a wrongful death action resulting from the death of John J. Riley who was struck and killed by a southbound freight train of the appellant railroad at a public crossing in Pine Knot. The jury returned a verdict of $10,000 against the railroad and its engineer. They appeal from the judgment entered on the verdict, asserting that the decedent was guilty of contributory negligence as a matter of law, and that the verdict is contrary to the law and evidence in the case.

When John J. Riley was walking across the railroad crossing on a clear day in October he was struck and killed by a diesel locomotive on the freight train. The evidence reveals that Riley had a clear view of the train for at least five or six hundred feet, but that he did not look toward the area from which the train was approaching the crossing. For the railroad there was evidence that the statutory signals by whistle and bell were duly given. KRS 277.190. For the appellee there was substantial evidence that neither of these signals was given. The trainmen deposed that the brakes of the train were set in emergency when the locomotive was more than two hundred feet from the crossing, but this evidence was contradicted by credible evidence.

The fireman said that he observed Riley walking across the first main track, and then, in the fireman’s words:

“Q18 Then what did he do?
A He just kept walking. He never slowed up or broke his pace. He just kept walking like he started.
Q19 What did you do?
A Well, when he got past the first main track coming toward the track we was on I hollered at my engineer and said ‘I don’t believe that man is going to stop walking.’ That’s when he put the brakes in emergency.
Q26 About how far were you from the crossing when the brakes were put into emergency?
A About six or eight car lengths.”

(The fireman testified that the length of the cars ranged from forty to fifty feet each.)

There is no showing that the train could have been brought to a stop, or indeed materially slowed, from the time of the application of the brakes until it struck the decedent.

We think there can be no serious question that the decedent was as a matter of law guilty of contributory negligence. For examples of the host of authorities sustaining that view, see Louisville & N. R. Co. v. Hyde, Ky., 239 S.W.2d 936; Louisville & N. R. Co. v. Fisher, Ky., 357 S.W.2d 683.

The only other question is whether the railroad and its engineer may be held liable on the “last clear chance” theory. The Court is of the view that liability may not be imposed on that theory. The Court does not feel that the last clear chance rule permitting recovery for negligence of the defendant after the plaintiff’s inattentiveness is discovered serves to save this decedent’s estate from the contributory negligence of the decedent. See, Prosser on Torts, 2d Ed., § 52, pp. 293, 294; Restatement of Torts, § 480. It is the Court’s opinion that the record fails to reflect that the railroad’s operatives could have done anything to avoid the accident after the decedent’s inattentiveness was realized. See, Whitesides v. Reed, Ky., 306 S.W.2d 249.

Appellants made timely motions for directed verdict and judgment n. o. v. It was error to deny them.

The judgment is reversed with directions to enter judgment n. o. v. for the defendants.


author: WADDILL, Commissioner.

text:
    LOUISVILLE BUILDERS SUPPLY COMPANY OF ST. MATTHEWS, INC., Appellant, v. CITY OF RICHLAWN et al., Appellees.
    Court of Appeals of Kentucky.
    July 2, 1965.

      Thomas C. Carroll, Louisville, for appellant.
    H. Bemis Lawrence, Louisville, for ap-pellees.
   WADDILL, Commissioner.

The appeal is from a judgment assessing damages against Louisville Builders Supply Company of St. Matthews, ordering this Company to remove debris it deposited in a public drainage ditch, restraining the Company from enlarging the use of its property located within the corporate limits of the City of Richlawn and directing that the Company’s application for permission to make certain improvements on this property be passed upon within 30 days after the Company complies with the affirmative requirements of the judgment.

The grounds for reversal are that the chancellor erred in his award of damages, in determining that the Company must apply for a permit to make certain changes on its property located in Richlawn and in not deciding all the issues.

The Company owns a 6.4-acre tract of land of which about 2 acres are located in Richlawn and the remainder in the City of St. Matthews. In 1949 Richlawn, a city of the sixth class, enacted a zoning ordinance which, among other things, restricted all property in Richlawn to residential use. Before (and since) the enactment of this ordinance the Company was engaged in manufacturing concrete blocks and selling various building materials on its tract of land.

In September 1961 the Company removed 24 pine trees from the right-of-way lying between Hubbard’s Lane and the Company’s land. The following month the Company sought an injunction to require Richlawn to issue a permit for improvements upon its property or to prevent Rich-lawn from interfering with any change in its use of this property and to declare it had the right to remove the trees. By answer Richlawn denied the Company’s right to change the use of its property without a permit and counterclaimed for the return of the trees.

During the subsequent months the Company filed an application for a permit with Richlawn but its merits have not been passed upon. The appealed judgment was based on the chancellor’s findings, in part, that the trees belonged to Richlawn and had a fair market value of $1800, were maliciously removed by the Company and could not be practicably returned.

It is contended that the award for actual damages for the trees is excessive. The parties’ evidence concerning the size and beauty of the trees was in sharp conflict and the evidence of their value shows an even greater disparity of opinion. Suffice it to say that the finding of actual damage of $1800 is supported by evidence which would have justified an award of more than twice that amount. The Company also contends that punitive damages were not warranted because the finding that it removed the trees maliciously is unauthorized. At the time of their removal there was a dispute between the Company and Richlawn as to which one owned the land upon which the trees were located, but it is not denied that these trees were planted by Richlawn and were removed by the Company over Richlawn’s specific protests. The chancellor found that the land in question belonged to Richlawn and that the removal of the trees was accomplished in wanton and wilful disregard of the rights of Richlawn. Since the evidence justified these findings punitive damages were properly assessed. Maddix v. Gammon, 293 Ky. 540, 169 S.W.2d 594. The amount of the punitive damages is not argued on this appeal. We conclude there is no reversible error in the imposition of damages.

The next contention is whether KRS 100.068 and 100.069 relating to nonconforming uses are applicable to this case. The chancellor correctly held that these sections are inapplicable. KRS 100.033 provides that any incorporated municipality within a county containing a city of the first class may, under certain conditions, avail itself of the benefits of KRS 100.031 through 100.097 and shall thereafter be subject to their provisions. In the absence of affirmative acts by the proper parties, acts which were neither alleged nor found in the instant case, the contended for sections are inapplicable. The statutory provisions which are applicable to this case are found in KRS 100.500 et seq. (Also see Louisville Timber and Wooden Products Co. v. City of Beechwood Village, Ky., 376 S.W.2d 690).

Finally it is contended that the chancellor erred in not determining whether the Company is entitled to a permit. We have previously observed that the Company’s application has not been passed upon by the appropriate administrative body. This is initially an administrative not a judicial function and therefore the chancellor properly refrained from determining the merits of the application.

The judgment is affirmed.


author: STEWART, Judge.

text:
    MONTICELLO ELECTRIC PLANT BOARD et al., Appellants, v. DEPARTMENT OF REVENUE and James E. Luckett, Commissioner of Revenue, Appellees.
    Court of Appeals of Kentucky.
    June 26, 1965.

      Parker W. Duncan, Duncan & Allender, Bowling Green, Oldham Clarke, McElwain, Dinning, Clarke & Winstead, Louisville, for appellants.
    Robert F. Matthews, Atty. Gen., William S. Riley, Asst. Atty. Gen., Robert J. Rieck-hoff, Dept, of Revenue, Frankfort, for ap-pellees.
   STEWART, Judge.

This action was instituted in the Franklin Circuit Court by the Monticello Electric Plant Board (herein called “the plant board”) and the City of Monticello (herein called “the city”) for a declaration of rights on the question of whether the plant board and the city were liable for the payment of tax equivalents for the years 1955 through 1959. The Franklin Circuit Court dismissed the complaint and this appeal followed.

On September 16, 1947, the City of Monticello passed an ordinance which stated in substance it was the intention of the city to acquire and operate the Monticello Electric Light Company, a private corporation, in accordance with the provisions of KRS 96.-550 to KRS 96.900, inclusive, known as the “TVA Act.” Monticello’s intention culminated in the purchase of the Monticello Electric Light Company on January 20, 1954. The plant was operated thereafter by the city through the plant board, as provided by KRS 96.570. Until December 8, 1960, the plant board obtained power for this facility from Kentucky Utilities Company, a private corporation.

It is the contention of appellees that, as the plant board was organized, and has since been operated, under the TVA Act and as the city by ordinance agreed to all the provisions contained in, or that might be added by amendment to, the Act, the plant board and the city (hereinafter called appellants) were liable to the state for the years mentioned for tax equivalents, as such are denominated by the TVA Act. Appellants maintain the requirement for the payment of any tax equivalent to the state or to any taxing district in the state does not apply to a municipality which purchases electrical energy from sources other than TVA.

A “tax equivalent” is not an ad valorem tax; it is a legislative substitute for the loss of revenue which results to the various tax districts when a municipality, in order to supply a service, takes over a facility formerly owned and operated by a private company which paid taxes.

KRS 96.560(3) reads:

“It hereby is declared to be the legislative purpose and intent to vest in municipalities of all classes in this Commonwealth full power and authority to establish, acquire, own and operate electric plants; to empower and authorize said municipalities to contract with and acquire from the Tennessee Valley Authority or any governmental agency electric power or current for resale and to authorize and require the payment, out of earnings from the resale of such electric power or current, of certain amounts to the state, counties, municipalities, school districts and other taxing districts in order that they may not suffer from loss of revenue resulting from the tax exemption created by the transfer of property from private to public ownership, and in the interest of the general welfare.”

The first portion of the foregoing subsection was merely a reaffirmation of statutory authority already reposed in cities of the second to sixth classes to acquire and operate electric plants. See KRS 96.520 to KRS. 96.540, inclusive. A new authority granted was the right to contract with TVA or any governmental agency for electric power or current for resale. See City of Middlesboro v. Kentucky Utilities Company, 284 Ky. 833, 146 S.W.2d 48. However, this new authority was accompanied by a requirement that tax equivalents be paid to the state and to all other taxing districts, to which taxes would be owed by a nonexempt privately owned utility company, “out of the earnings from the resale of such electric power or current(Emphasis added.)

It is apparent the purpose and intent of the TVA Act are clearly stated in the Act itself. A contract must first be entered into by a municipality with TVA to acquire its electrical energy; and, only after this agreement is consummated, is a condition imposed upon the municipality to pay tax equivalents. Furthermore, it is manifest that no municipality shall become liable for the payment of tax equivalents except out of the earnings from the resale of such electrical energy as is acquired from TVA. In the case at bar, from. 1955 through 1959, there were no earnings from the resale of electric current and power obtained from TVA out of which tax equivalents could or should have been paid.

KRS 96.570(11), which outlines the authority of a plant board operating under the TVA Act, provides, so far as pertinent herein, that such a board may not contract with TVA for electrical current “ * * * unless the contract shall provide that the resale rates of the board for electric service or electric energy shall be sufficient to cover * * * payments to the state, any county, any school district, any municipality, and any other special taxing district in which the board operates, of amounts determined as provided in Section 25 (KRS 96.820) of this Act * *

It is thus apparent the quoted provision of KRS 96.570(11) compels tax equivalents to be paid by a municipality only when and if it enters into a contract to purchase electrical energy from TVA. Stated differently, a limitation on the acquiring from TVA of electrical energy by a municipality for distribution is that it must pay tax equivalents out of all earnings from resales to each taxing district in which it supplies service. In the alternative, if the municipality decides not to contract with TVA for the purchase of electrical energy, it logically follows that the tax equivalents are not due to be paid.

Appellees rely upon KRS 96.820 to bolster their position, arguing this section specifically states that a municipality must pay tax equivalents under the facts presented. We do not agree. This statutory section merely prescribes the method of formulating the tax equivalents required by KRS 96.570(11) to be paid whenever a municipality enters into a contract to buy electrical energy from TVA or any other governmental agency.

The exaction of the tax equivalent is a condition imposed by the Legislature upon municipalities as the price they must pay for the privilege of contracting with TVA for cheap electrical energy. In our opinion the TVA Act cannot be considered applicable to a situation where a municipality obtains electrical energy from other sources.

Wherefore, the judgment is reversed, with directions to enter a new one for appellants declaring void the tax assessments for the years 1954 to 1959, inclusive.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Earl ROSE and Hettie Rose, Wife, Appellees.
    Court of Appeals of Kentucky.
    July 2, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Asst. Atty. Gen., C. E. Skidmore, Dept, of Highways, Frankfort, Walter Mobley, Flemingsburg, for appellant.
    H. R. Wilhoit, Jr., Wilhoit & Wilhoit, Grayson, W. H. Counts, Olive Hill, for appellees.
   WILLIAMS, Judge.

The Commonwealth of Kentucky, Department of Highways, condemned a strip of land 18 feet deep across the front of a lot belonging to appellees for the purpose of widening U. S. 60 through the city of Olive Hill. An additional 14-foot strip was taken for temporary use during construction. A jury in the Carter Circuit Court found the difference in value before and after taking to be $8,000. The Commonwealth has appealed.

This case has been tried twice in the Carter Circuit Court. The first judgment in the amount of $7,750 was reversed by this Court on the grounds that the amount allowed for temporary easement was excessive, and the trial court erred in refusing to permit proof of on-street parking. On this trial the evidence of on-street parking was admitted and the jury’s award for temporary easement was substantially reduced. However, the Commonwealth claims that there was not sufficient evidence to sustain the verdict, and that the trial court erred in refusing to strike the testimony of the landowners’ witnesses.

In Commonwealth v. Tyree, Ky., 365 S.W.2d 472 (1963), it was stated that, if a witness based his estimate on irrelevant factors, his testimony is subject to objection or motion to strike. But, where a witness used both proper and improper factors, his entire testimony is not subject to be stricken. Commonwealth v. York, Ky., 390 S.W.2d 190 (1965) r Commonwealth v. Shaw, Ky., 390 S.W.2d 161 (1965).. It is incumbent upon the movant to show where the testimony has no probative value and to restrict his motion to that portion of the evidence which is related to and founded upon the unreliable or unjustified factors. Although some of the evidence of appellees’ witnesses was based upon improper factors, some of it was not, and, consequently, the testimony of such witnesses was not subject to be stricken in its entirety.

The second ground raised by the Commonwealth that the verdict is not sustained by sufficient evidence is well taken. A building was located on appellees’ property 52 feet from the front property line. The 18 feet taken left 34 feet between the new property line and the front of the building. The witnesses for appellees testified that before the taking the property was rented to a National Guard unit which parked tanks and trucks in front of the building. After the taking appellees’ witnesses say there is no room for parking at all. Although they were not familiar with the measurements of the lot or the number of feet taken by the Commonwealth, they based their estimates of the after value of the property on the fact that all parking area was gone. It doesn’t make sense that tanks and other vehicles could be parked in front of the building when there were 52 feet separating it from the highway, but nothing can be parked there now that there are 34 feet separating it from the highway. Each of the witnesses testified that the taking caused the market value of the property to be reduced 50 per cent.

The testimony of appellees’ witnesses that the value of the property was reduced 50 per cent because no parking space remained is obviously without probative value. Commonwealth v. Tyree, supra. Except for the lack of parking space, there was no basis by which they came to their conclusions. We said in Commonwealth v. Priest, Ky., 387 S.W.2d 302 (1965), that bare opinions of appraisal witnesses, while admissible, lacked sufficient probative value to support the appraisals to which they testified. In Priest, we also said;

“Although we are cognizant of the salutary precept that the determination of the amount of damages is primarily the province of a properly instructed jury, we remain impressed with our responsibility to upset any verdict in which the jury’s award appears so excessive as to strike us as being unreasonable, and such as to show that the jury acted as the result of passion, partiality or prejudice.”

Upon the first appeal this case was reversed because the award given for the temporary easement was excessive, and "because certain testimony was not permitted to be introduced on behalf of the Commonwealth which resulted in an excessive award for the land taken. On this appeal the jury has awarded the landowners an even greater amount for the land taken, based upon testimony which lacks probative value to sustain the estimates testified-to by the witnesses or the jury’s verdict. The verdict strikes us as being palpably excessive.

The judgment is reversed.


author: MILLIKEN, Judge.

text:
    Guy E. McGAUGHEY, Jr., Petitioner, v. The Hon. J. Paul KEITH, Jr., Judge, Jefferson Circuit Court, etc., Respondent.
    Court of Appeals of Kentucky.
    July 2, 1965.
    Wilbur Fields, Louisville, for petitioner.
    Squire R. Ogden, William D. Lambert, Ogden, Robertson & Marshall, Louisville, for respondent.
   MILLIKEN, Judge.

Alleging that the question of due process is an issue, the petitioner seeks an order prohibiting the respondent from proceeding with exercising any jurisdiction over Action No. 88192, Jefferson Circuit Court, because the petitioner had been served with a summons therein by a special bailiff appointed by the respondent for that purpose under KRS 454.145 which authorizes the appointment of special bailiffs “for good cause shown.”

We find no evidence of great or irreparable injury to the petitioner nor great injustice to him by being served with process by a special bailiff appointed for that purpose. The petitioner has an adequate remedy on appeal.

The motion is denied.


author: CULLEN, Commissioner.

text:
    Howard T. HELTON, Petitioner, v. Honorable B. Robert STIVERS, Judge, Knox Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    July 2, 1965.

      Howard T. Helton, pro se.
   CULLEN, Commissioner.

The petition of Howard T. Helton, a prisoner in the state penitentiary, states that the respondent circuit judge has not complied with the order of this Court, made on December 18, 1964, in Helton v. Stivers, Ky., 385 S.W.2d 172, requiring him to rule on petitioner’s motion under RCr 11.42 to vacate the judgment by which he was sentenced to the penitentiary. The petition seeks various mandatory orders.

By way of response to the petition Judge Stivers has filed a copy of an order dated December 21, 1964, overruling the RCr 11.42 motion. Attached is a certificate of the clerk of the Knox Circuit Court that on the day of entry of the order he mailed a copy to Helton. We accept this as a satisfactory showing of compliance with our order of December 18.

The facts recited in the respondent’s order of December 21 (which facts we assume appear on the face of the trial record) show that Helton’s claim of invalidity of the judgment of conviction, by reason of his having been tried in absentia, was not sustainable. The order recites that Helton, having been present at the start of the trial, escaped during a recess and thereafter the trial was continued to verdict in his absence. However, judgment and sentence were not pronounced until Helton had been recaptured and brought back into court. Under RCr 8.28, and under the holding in Collier v. Commonwealth, 110 Ky. 516, 62 S.W. 4, the procedure was proper and valid.

The petition is denied.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, etc., et al., Appellants, v. Richard T. OCHSNER et al., Appellees.
    Court of Appeals of Kentucky.
    July 2, 1966.

      E. P. Sawyer, Louisville, County Atty., Edwin A. Schroering, Jr., Louisville, for appellants.
    Eugene E. Pendergrass, Marvin J. Stern-berg, Louisville, for appellees.
   PALMORE, Judge.

This is a condemnation action brought by the state highway department to acquire 9.59 acres of land for the construction of a portion of the Outer Loop Highway in Jefferson County. Pursuant to a jury ver-diet the owners were awarded $32,000, and the state appeals.

The land affected by the taking was a 154-acre dairy farm situated at the intersection of Urton Lane with English Station Road just south of U. S. Highway 60 near Middletown. The 9.59-acre strip runs north and south across both Urton Lane and English Station Road, leaving a 2.58-acre triangle in the corner of the former intersection to the east and the remainder of the farm to the west. The truncated portions of Urton Lane and English Station Road west of the new road have been joined together by a new roadway along the west edge of the Outer Loop. This gives the appellee landowners some new frontage along this connection, but it faces a high fill on which the Outer Loop has been constructed.

The first claim of error is that the witnesses were allowed to assign per lot values to the property though it had not been developed as a subdivision. See Commonwealth, Dept. of Highways v. Evans, Ky., 361 S.W.2d 766, 771 (1962); United Fuel Gas Co. v. Clarke, Ky., 387 S.W.2d 844 (decided March 5, 1965). The portion of the farm now traversed by the Outer Loop was embraced within “Middletown Heights” subdivision as shown by a plat recorded in 1915. It may be assumed for purposes of discussion that this subdivision never has been developed and could not be developed and sold off in lots until such time in the future as water lines and sewer facilities are available. However, the evidence of which the state complains was not related to the plat. On the contrary, it was directed to (1) past sales of lots fronting on Urton Lane and other comparable locations in the immediate area and (2) the value of lots that were similarly situated on the condemnees’ property and were salable on an “as is” basis without further development.

In Commonwealth, Dept. of Highways v. Caudill, Ky., 388 S.W.2d 376, 378 (1965), it was held that if there is a market for the sale of lots off a farm on an “as is” basis it is proper to show what prices have been paid for similar lots in comparable locations. That is what was done in this case. Witnesses for the Commonwealth admitted that the portions of the property fronting on the roads and lying within the condemned area could have been sold as lots at higher unit prices than were reflected in their evaluations of the farm as a whole, but they discounted the effect of that circumstance by further explaining that the sale of lots off the front would diminish the value of the remainder of the farm in the back. The other evidence in this vein consisted of testimony by the owner showing the prices at which he actually had sold two lots fronting on Urton Lane, by some of his expert witnesses estimating the value of the strip taken in terms of number of such lots destroyed, and by other owners in the neighborhood showing prices at which they had sold similar road frontage lots off larger tracts.

It is our opinion that there was not any impropriety in admitting the evidence pertaining to lot values.

The next contention advanced in support of the appeal is that the award was excessive. As usual in condemnation cases, the estimates given by witnesses for the state were much more closely documented by comparable sales than were those given by witnesses for the landowners, but we cannot for that reason say the verdict is not supported by competent evidence and is thus excessive. The expert witnesses for the owners possessed the very highest professional qualifications. One of them, for example, who himself resides in neighboring Middletown, was a director of the Louisville Real Estate Board and chairman of the board of supervisors for Jefferson County. Their testimony ranged from $47,912 to $78,861 for the reduction in value of the property, as against a range of $16,000 to $17,000 in the estimates given by the state’s expert witnesses. We are not convinced the award was excessive. Cf. Commonwealth, Dept. of Highways v. Elizabethtown Amusements, Inc., Ky., 367 S.W.2d 449 (1963).

The third and final claim of error is that the trial court erroneously refused to allow the state to introduce rebuttal testimony to the effect that soundings made by an engineer reveal a layer of rock five feet under the surface of the farm in question, for which reason it is less valuable for use as a residential subdivision.

The question of whether this farm was adaptable for residential subdivision was raised during cross-examination of the state’s witnesses, all of whom testified to the point and had ample opportunity to say whether and why it was or was not. As a matter of fact, in the course of adducing its evidence in chief the state proved that the 2.59-acre triangle left on the east side of the Outer Loop can be divided into two or three readily marketable building lots. Since the advantages and disadvantages of devoting the affected property to subdivision purposes were under discussion before the landowners put on their evidence, the information regarding the rock formation was not rebuttal evidence, but further evidence in chief. “Rebuttal testimony offered by the plaintiff should rebut the testimony brought out by the defendant and should consist of nothing which could have been offered in chief.” 53 Am.Jur. 107 (Trial, § 121).

CR 43.02(4) authorizes the trial court to permit the introduction of evidence in chief at the rebuttal stage upon “good reasons in furtherance of justice.” There having been no showing of such reasons in this instance, and the evidence offered being non-vital, it is our opinion that there was no abuse of discretion. Cf. New Bell Jellico Coal Co. v. Sowders, 162 Ky. 443, 172 S.W. 914, 917 (1915).

The judgment is affirmed.


author: JOHN J. WINN, Special Commissioner.

text:
    Emory NOBLE, Jr., Appellant, v. Farmous JONES and Geneva Jones, Appellees.
    Court of Appeals of Kentucky.
    July 2, 1965.
    F. Byrd Hogg, Whitesburg, for appellant.
    William Melton, Hazard, for appellees.
   JOHN J. WINN, Special Commissioner.

This appeal is from a judgment in favor of two passengers in an automobile against its owner for personal injuries received by them when it was wrecked on a public highway. The trial was before the judge sitting without a jury. We agree with the findings of fact of the trial judge on one point only and disagree on all others.

It is stated in the findings that at the time of the accident the vehicle was being driven by Charles Allen. This we believe to be true. Significantly this finding was arrived at after plaintiffs were permitted to amend their complaint “to conform to the proof,” over the vigorous and anguished objection of counsel for defendant, by alleging that the vehicle was being driven by Charles Allen or the defendant, Emory Noble, Jr., although it was positively alleged in the original complaint that the defendant owner was the driver and both plaintiffs had so testified unequivocally.

It appears to us that the trial judge based this particular finding upon his belief that the contrary admissions and statements made by the plaintiffs at the scene of the wreck to the investigating officer and other disinterested witnesses precluded the giving of any credence to their contention that defendant, Emory Noble, Jr., was himself the driver.

By the same token and for the same reason all of the other testimony of the plaintiffs were rendered equally incredible. The plaintiff, Farmous Jones, even denied that their car had been stopped in Indiana by an officer for a traffic violation although that occurrence had been testified to by both his wife and the defendant.

Both plaintiffs testified that there had been no intoxicants consumed on the trip, in fact that none were at any time in the automobile. Yet undeniably vodka and V. O. whiskey bottles and beer cans, some empty, some full and some partially full, were strewn in and about the wrecked car. The odor of intoxicants was detected upon the breath of all the occupants of the car by the investigating officer and ambulance driver and in the opinion of these witnesses all of said occupants were under the influence of alcohol in varying degrees. We are perforce led to believe the testimony of the defendant in regard to the consumption of intoxicants and related matters.

The findings of fact fairly derived from the entire record we believe would be essentially of this substance:

Very early in the morning, shortly after midnight, Emory Noble, Jr., his roommate, Charles Allen, and Farmous Jones and the latter’s wife, Mrs. Geneva Jones, all temporary residents of Chicago, began a trip in the Noble automobile for a visit to their family homes in Perry County, Kentucky, Emory Noble, Jr., and Charles Allen had already been drinking and carried intoxicants with them in the car. All three of the men continued to drink throughout the journey as far as Madison, Indiana, and to that end obtained additional intoxicants along the road. Before leaving Madison it became manifest that Emory Noble, Jr., who had driven all the way from Chicago, had become too drunk to drive. At the behest of Geneva Jones, or at least with her acquiescence, as well as that of the others, Charles Allen, on the assumption that though drunk he was less so than Emory Noble, Jr., was substituted as the driver; the latter passed out or went to sleep on the back seat and Charles Allen drove until the car was wrecked in the vicinity of Bedford, Kentucky.

To hold that the drunken man asleep on the back seat was in charge of the operation of the automobile and that the driver was his agent whose negligence was imputed to him solely and not to the passengers who had, or should have had, full knowledge of the circumstances, thus authorizing a recovery by those passengers against that owner, affronts one’s innate sense of justice. By pursuing their journey with a driver known by them to be intoxicated, the Joneses assumed the risk and were guilty of contributory negligence as a matter of law. Cosby v. Younger, Ky., 311 S.W.2d 389, and cases cited therein.

It is no sufficient answer to say, relying upon CR 52.01, that the findings of fact of a trial judge are equivalent to the verdict of a properly instructed jury. The findings in this case were clearly erroneous. Had this evidence been presented before a jury it would have been the clear duty of the judge to direct a verdict for the defendant; and failing that, if it can be assumed that a jury should find a verdict for plaintiffs, upon timely motion the judge should just as clearly have entered a judgment n. o. v. dismissing the complaint.

We recommend that the judgment be reversed and remanded with directions to enter judgment for the defendant.

The opinion is approved by the Court and the judgment is reversed and remanded with directions that a new judgment be entered for the defendant.


text:
    Rosetta HALL et al., Appellants, v. Arthur Lee CHILDRESS et al., Appellees.
    Court of Appeals of Kentucky.
    July 2, 1965.

      Wilbur Fields, Louisville, for appellants.
    J. Earl Dearing, Charles J. Lunderman, Jr., Louisville, for appellees.
   DAVIS, Commissioner.

Appellants are contesting the will of the late Sarah C. Hampton. The circuit court directed a verdict upholding the will; the appellants assail that judgment in two respects: (1) The court should have directed a verdict against the will since the original will was not presented in the circuit court trial, and (2) there was sufficient evidence to submit to the jury whether appellee Childress had exercised undue influence upon the testatrix.

The testatrix was a widow, 69 years of age, when she died on June 28, 1962, a resident of Jefferson County. The principal beneficiary of her will and the real contestee here is the appellee Arthur Childress, who was 29 years old when the testatrix died and who had been her paramour for two or three years before her death.

The husband of the testatrix had died in 1955; testatrix had no children. She owned three parcels of real estate at the time of her death; these are designated as 2408, 2422, and 2426 West Chestnut Street, Louisville. By the terms of the challenged will the property at 2422 West Chestnut Street is devised to Arthur Childress for life with remainder to two nephews and a cousin of the testatrix. The will directs the executor to sell the property at 2408 West Chestnut Street and divide the sale proceeds among five kinsmen of the testatrix (some of whom are appellants and some are appellees). The property at 2426 West Chestnut is devised to appellant Rosetta Hall (sister of testatrix) for her lifetime, with the provision that it shall be sold at the end of the life estate. The will directs that the proceeds of the sale of the latter property be distributed $2,000 to Sarah Flowers, an appellee cousin of testatrix, and $7,000 to appellee Arthur Chil-dress. Presumably any excess would fall into the residuum of the estate. A bequest of $200 is made to a church; a diamond cluster ring is specially bequeathed to Chil-dress, but the will directs that all other jewelry owned by testatrix is to be sold, and concludes by devising the entire residue of the estate to Arthur Childress.

The will was admitted to probate by order of the Jefferson County Court on July 12, 1962. Appellees Childress and Dearing qualified as co-executors of the estate. On May 27, 1963, the appellants filed in the Jefferson Circuit Court their appeal from the probate order of July 12, 1962, “on the grounds that said document is not the last will and testament of Sarah C. Hampton.” The appeal complaint did not specify whether the will was challenged for improper execution, inadequate mental capacity of the testatrix, or because undue influence had been exerted upon her. With the appeal complaint filed in the circuit court the contestants filed a certified copy of the order of probate, but did not file the original challenged will or any copy of it.

When the case came on for trial the contestees introduced the two witnesses who had witnessed the will; they gave evidence that testatrix had signed the will in their presence and that they had subscribed it as testamentary witnesses in her presence and in the presence of each other. KRS 394.040. The original will was not presented in evidence, but a photostatic copy of it was introduced; the photostatic copy bears the rubber-stamped legend: “A Copy, Attest, James Hallahan, Clerk by V. Zion, D. C.” The attestation is dated “8-20-62.” The signature of “V. Zion” and the figures “8-20-62” are in original script and not rubber stamped.

Appellants earnestly insist that failure of contestees to present the original will entitles contestants to a peremptory instruction invalidating the will. We do not agree. The decision of this court in Ramsey v. Howard, 289 Ky. 389, 158 S.W.2d 981, is dispositive of the point. Moreover, contestants filed the certified copy of the probate order reflecting that the purported will had been admitted to probate and duly recorded. No issue was presented about the existence of the paper as the will. The fact that one attesting witness recalled that he had read the will to the testatrix vis-a-vis the evidence from the other attesting witness to the effect that the testatrix had read it to herself is not sufficient to create the inference that there was failure to prove due execution of the paper as a will.

The appellants presented the evidence of Rosetta Hall, a sister of the testatrix, who recounted that testatrix had expressed physical fear of Childress. We will not detail the evidence, as much of it is somewhat sordid, but believe it is sufficient to warrant the inference that testatrix was under the dominion of Childress. This evidence from Rosetta Hall was corroborated by testimony from other unrelated persons who gave testimony reflecting that Childress had physically mistreated the testatrix; the evidence reflected that testatrix had expressed fear of Childress and that she had admonished some of her neighbors not to disclose to Childress that testatrix had loaned money to the witnesses, etc.

The trial court was of the view that the decision of this court in Mayhew v. Mayhew, Ky., 329 S.W.2d 72, precluded his letting this case go to the jury. It is to be noted that -in the Mayhew opinion the following statement is made: “Nevertheless, Denver’s testimony along this line [undue influence] is so obviously self-serving that it has little, if any, value as substantive proof.” Without pausing to undertake a distinction between the nature of the evidence in Mayhew and the evidence here, we point out that the Mayhew opinion must not be understood as standing for the bald proposition that self-serving evidence ipso facto lacks probative value. We are not dealing with that phase of the law of evidence having to do with “self-serving declarations” — we are considering evidence which a party adduces that tends to benefit his side of the lawsuit. The matter of the probative value of the evidence is generally one for the jury, unless there are present other factors which destroy the probative value as a matter of law. In this case we are persuaded that the evidence offered foi the contestants possessed sufficient probative value to make a jury issue on the matter of undue influence. There was credible evidence, which the jury could have accepted, tending to show the exercise by Childress upon testatrix of such character of undue influence as to invalidate the will. The five “usual” elements in undue influence cases as catalogued in Golladay v. Golladay, Ky., 287 S.W.2d 904, 906, are substantially presented for the appellants. In view of this it was error to peremptorily instruct the jury to find the will valid.

Since the court did peremptorily instruct the jury to uphold the will before the contestees were afforded an opportunity to present evidence seeking to refute the evidence of contestants, we do not find merit in appellant’s contention that we should order judgment n. o. v. invalidating the will.

The judgment is reversed with directions to grant appellants a new trial and for further proceedings consistent with the opinion.


text:
    Patsy Clay Marcum WENNEKER et al., Appellants, v. Georgiabel Bishop BAILEY, Appellee.
    Court of Appeals of Kentucky.
    July 2, 1965.
    Robert H. Helton, Jr., Brown, Tooms & Helton, London, for appellants.
    Clay M. Bishop, Roy W. House, Manchester, for appellee.
   PALMORE, Judge.

The appellee, Georgiabel B. Bailey, was injured in an automobile accident in 1955, at which time she was 14 years of age and unmarried. She married in 1960 at the age of 19. Two years later, in 1962, and within one year after attaining the age of 21, she brought this action for her personal injuries arising out of the 1955 accident. The defendants pleaded limitations, KRS 413.140, and thereafter at proper times during the proceeding made motions for summary judgment, directed verdict, and judgment n. o. v., all of which were overruled. They appeal from a judgment entered pursuant to a jury verdict awarding the appel-lee $3,000.

To sustain this judgment would require us to overrule Hicks v. Steele, 309 Ky. 833, 219 S.W.2d 35 (1949), which the court specifically declined to do in Williamson v. Carr-Consolidated Biscuit Co., 313 Ky. 235, 230 S.W.2d 917 (1950). The question was discussed fully in Hicks v. Steele, and it would serve no useful purpose to repeat what can be found in that opinion. The provisions with respect to married women then contained in §§ 34, 35 and 36 of the Civil Code are today preserved in KRS 404.060 and in CR 17.02 and CR 17.03. What was then § 2525 of the Kentucky Statutes has been carried into KRS 413.170. The basic arguments on the issue of whether the unqualified term “infant” in the latter statute includes or should be construed to include a married infant are still the same. As an original proposition the question might well have been decided either way, but it has been laid to rest too long to resurrect it now.

The cause is reversed with directions that a judgment be entered dismissing the complaint.


text:
    R. S. WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 2, 1965.
    H. M. Tye, Barbourville, for appellant.
    Robert Matthews, Atty. Gen., Henri L. Mangeot, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Appellant was the county treasurer of Knox County during the fiscal year ending June 30, 1963. In this proceeding he was convicted and fined $50 under an indictment charging him with failure to publish a financial statement in the time and manner directed by KRS 424.220.

In this appeal, which has been granted on motion, he does not contend that he was not required under the law to publish the statement. His main point is that the evidence was insufficient to support a conviction and that his motion for a directed verdict should have been sustained.

KRS 424.220 requires that the statement in question be published within 60 days after the expiration of the fiscal year, “in a newspaper qualified under KRS 424.120.”

Broadly speaking, the qualifications of a newspaper under KRS 424.120 are that it (1) be published in the publication area (in this instance, Knox County), (2) be of regular issue and have the largest bona fide circulation in the publication area, and (3) “bear a title or name, consist of not less than four pages without a cover, be of a type to which the general public resorts for passing events of political, religious, commercial and social nature,” and so on. If there is not any qualified newspaper in the county, the statement may be advertised in a qualified newspaper published in an adjoining county.

In a nutshell, the case here is that the Commonwealth proved that the appellant did not within due season publish his statement in the Barbourville Mountain Advocate, but failed to prove that this newspaper possessed the qualifications required by KRS 424.120. Here is the whole testimony on the latter point:

Q- “State your name to the jury?”
A- “C. A. Wilson.”
Q- “What is your business?”
A- “I’m the publisher of the local newspaper.”
Q- “And what is the name of the local newspaper?”
A- “The Barbourville Mountain Advocate.”
Q- “Is that the newspaper with the largest circulation?”
A- “Yes, it is.”

Appellant’s motion for a directed verdict at the close of the Commonwealth’s evidence having been overruled, he took the stand in his own defense and testified that he had published the financial statement in the Barbourville Mountain Advocate in April of 1964. During the course of certain questioning by way of avowal he gave answers that could fairly be construed as admitting that at no time prior to April of 1964 did he have his report published, either in the Mountain Advocate or any other publication. If this testimony had been given in the presence of the jury there would be a valid basis for the argument that the Commonwealth’s failure to prove that the Mountain Advocate was the KRS 424.120-qual-ified newspaper for Knox County was cured by appellant’s admission that he had not published it at all. However, it is elementary that when a person is tried by a jury on a plea of not guilty, a verdict against him cannot be sustained on the basis of information not heard by the jury. Nor can we accept the Commonwealth’s argument that the jurors of the community can be presumed to have known that the Mountain Advocate possessed the qualifications set forth in KRS 424.120.

It is our opinion that the evidence was not sufficient to prove the newspaper’s qualifications. We do not suggest that each little item enumerated in the statute must have been repeated in the form of a question or questions propounded to Mr. Wilson. No doubt he was quite familiar with the requirements of the statute and, if so, it would have been enough for him to say that his paper was the one that met those requirements for Knox County, the publication area, throughout the 60-day period in which the financial statement was directed to be published.

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


author: PER CURIAM.

text:
    TRAVELERS INSURANCE COMPANY, Petitioner, v. Johnnie Lee ROSE, Respondent.
    No. A-10800.
    Supreme Court of Texas.
    July 7, 1965.
    Rehearing Denied July 28, 1965.
    Crenshaw, Dupree & Milam and Cecil Kuhne, Lubbock, for petitioner.
    Splawn & Maner, Lubbock, for respondent.
   PER CURIAM.

We refuse petitioner’s application for writ of error with the notation “no reversible error.” 389 S.W.2d 317.

The action taken, however, is not to be construed as approval of the holding of the Court of Civil Appeals that the lay witness Doyle Price was qualified to give opinion testimony to the effect that the respondent would not be able to hold a roughnecking job any more.


author: FRASER, Chief Judge.

text:
    REPUBLIC SUPPLY COMPANY, Appellant, v. FRENCH OIL COMPANY, Appellee.
    No. 5720.
    Court of Civil Appeals of Texas. El Paso.
    June 16, 1965.
    Rehearing Denied July 14, 1965.

      Garland Casebier; Kerr, FitzGerald & Kerr, Midland, for appellant.
    Turpin, Smith, Dyer & Hardie, Lynch & Chappell, Midland, for appellee.
   FRASER, Chief Judge.

This is an appeal from a summary judgment rendered by the District Court of Ector County, Texas. The appellant-plaintiff had filed a materialman’s and mechanic’s lien against certain oil well equipment and property sold to one Miles Kernaghan, which was to be used in an oil well described in the lien affidavit. This lien was dated June 4, 1957 and was filed three days later, on June 7, 1957. Subsequent to this time, and apparently on November 20, 1957, ap-pellee-defendant filed its lien affidavit covering the same property, and on February 5, 1958 filed its amended deed of trust. All of these documents were filed in Andrews County, the location of the oil well. Ap-pellee plugged and abandoned the well and removed the equipment therefrom on or about November 15, 1959. Appellee alleges in its brief that it reported such removal and plugging to the two State agencies concerned, to-wit, the General Land Office and the Railroad Commission of Texas, In September of 1960 appellant filed suit against Miles Kernaghan and other parties, but appellee-defendant was not cited in the lawsuit or included in the judgment obtained. Appellant, in its affidavit attached to the reply to the motion for summary judgment made by appellee, which affidavit was made by store manager Hines, employee of appellant, states that he saw the equipment in question in place in the early part of 1959, and that after the above-mentioned judgment and foreclosure against Kernaghan et al., he returned to the lease and found the equipment had been removed, probably by appellee (this statement is not, apparently, controverted), and the first knowledge that the equipment had been taken was received by appellant some time after February 20, 1962. On December 17, 1962 appellant filed this lawsuit against appellee, and from our study of the record it appears to be asking for damages [for wrongful conversion by the appellee of property on which appellant alleges he had a lien. So we have here a situation of two lien holders asserting liens against the same property.

Appellant has presented some six points of error, which allege that the trial court was in error in granting a summary judgment under the facts here present, and holding that appellant’s lien did not comply with | the statutes pertinent thereto, and that the^, trial court was in error in holding that appellant’s cause of action was barred by the two-year statute of limitations; and in his sixth point appellant states that the trial court erred in rendering summary judgment for appellee because the only arguable defense available to appellee — limitation— poses a fact issue.

First of all, we do not believe that the judgment taken by appellant against Kernaghan had, or could have had, any effect on the rights or legal position of appellee, as it has long been held that one not a party to a suit is not bound thereby unless such party is holding in privity thereto. In Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387, 169 A.L.R. 174, our Texas Supreme Court defines “privity” as a situation where one occupies the status of having mutual or successive relationship to the same rights of property derived through or under some parties to the lawsuit, which relationship accrued subsequent to the commencement of the action. In the matter before us, we do not have a trial of right of property, but actually a suit for conversion, and the acts of appellee which appellant complains of accrued and happened before appellant’s suit was either filed or judgment rendered. Therefore, we must hold that the judgment taken by appellant against Kernaghan can have no effect on the rights or position of appellee in this particular lawsuit.

We believe the important point here is whether or not appellant’s cause of action for conversion was barred by the statute of limitations, which in this case is a two-year statute; and it is uncontroverted that the conversion or taking by apoeffee-oesurred-i-n November of 1959. More than two years had elapsed from the time of the alleged- conversion”tmtil the lawsuit December of 19621 AppellañF' maintains that there are cases holding that the statute , does not begin to run until the aggrieved party discovers, or should have discovered, the conversion. We believe this to have been sufficiently adjudicated. In the case before us the affidavit of appellant’s servant, Mr. Hines, states that he knew the property was there in 1959, but he did not go near it until February, or after February, of 1962. There is no evidence that Hines, or any rep-resentatiye of ~aupeTffi'5E~~w'as in “gfiy way prevented from checking^ on or inspecting the property in controversy. Another element that may interrupFor toll the statutes of limitations is fraud or concealment on the part of the person accused of converting- Such is neither pleaded, alleged nor proven in the matter before us. Appellee merely took the property and moved off the well-site, after giving notice to the two State agencies, which is requisite when a well is to be plugged. We believe the statement in the case of Davidson v. Atmar, 243 S.W. 662 at page 664 (Tex.Civ.App., n. w. h.) sufficiently outlines the problem with which we are dealing here, as the following quotation from said case will illustrate:

f*The fact that appellee did not know ! that appellant was in possession of his ; stock certificates, claiming the right ; to hold them, did not postpone his cause i of action, but limitation began to run against him immediately on the unlawful taking. * * *
Appellant did not fraudulently conceal ; from appellee the fact that he was | holding the stock certificates, nor did he ! do anything that tended to ^prevent him from obtaining that knowledge, nor was there any trust relation between appellee and appellant. Therefore the authorities cited by appellee on his proposition that limitation did not begin to run until he knew of the wrong-1 ful detention, which was on the 7th of ^August, 1908, are not in point.”

This case cites Meyer Bros. Drug Co. v. Fry, 48 S.W. 752 (Tex.Civ.App., n. w. h.). To the same effect is Clevenger v. Galloway & Garrison, 104 S.W. 914 (Tex.Civ.App., err. ref.). Also to the same effect is the text in 37 Tex.Jur.2d 184, § 62. Furthermore, in 14 Tex.Jur.2d 64, § 76, it is stated that the two-year statute of limitations governs an action for conversion. In § 77, page 65 of the same text, it is stated that the statute of limitation begins to run from_theJúme jvhen the owner has notice, or by the_use of reasonable diligence would know, of the conversion. It seems to us, therefore, that the law is well established that limitation in a case of this sort begins to_run immediately on the so-called unlaw,fuL taking-;, and, as pointed out above, fraud,or .concealment,had not been pleaded or proved, nor was there any privity existing that involved the appellee, nor did appel-lee do_ anything to prevent appellant from obtaining knowledge of the taking or conversion. We again refer to the affidavit of Mr. Hines, store manager and employee of appellant, who apparently had not checked on^ this equipment from 1959 until some time after February, 1962. For these reasons we overrule appellant’s points maintaining that the court erred in holding that a suit for conversion (the present suit) was barred by the statute of limitations.

We now come to appellant’s points and assertions that the trial court had no right to render a summary judgment because the fact of appellant’s lack of knowledge or failure of diligence was a material fact issue. We do not believe appellant has been able to sustain this contention. At the time of the trial, the trial court had before him the uncontroverted evidence, including (inter alia) the affidavit of Mr. Hines that both parties had liens on this equipment; that appellee-defendant admittedly took the equipment off of the well-site in 1959; that appellant-plaintiff knew it was there in the early part of 1959, but stated that he did not know it was gone until some time after February 20, 1962. This is a prima facie,,case. of an. action barred by an applicable statute of limitation. In order to avail himself of any defenses, such as tolling the statute or proving that the time of taking began, at a different date,,, we. believe the burden was on the party pleading such, to-wit, the appellant. This record does not show that appellant assumed this burden. In other words, he pleaded and proved no facts that would mitigate or defeat the terms of the twoyear_ statute of limitations. Not having pleaded or proved such, this lawsuit was then presented to the trial judge on the prima facie basis, as outlined above, which, in our opinion, was sufficient to authorize him to grant the summary judgment. We do not believe that there has been any change in the law that charges the person suing for conversion or damages with the pains and penalties of the two-year limitation statute. _ The law still stands that such limitation begins at the time of the conversion unless some exception is pleaded and proved, which is not the case here. Appellant cites several cases, which we will not discuss as we do not believe them to be in point, since they deal with mortgaged property, bailments and, in one case, the action was filed within the two years, but was amended after the two-year period had elapsed. In the case of Paniels v. Conrad, Tex.Civ.App., 331 S.W.2d 411, the court said: “The damage from loss of use of car having begun on date of taking (October 14, 1954,) in order to toll the Statute it was nevertheless the burden of appellants to establish factually that Daniel did~not~ discover nor in the exercise of reasonable diligence could have discovered the identity of the one defai'mng’his car "until such later date; and in the_ absence of such showing the claim in question .was subject to limitation as pled by appellees.” (Emphasis oursJT”

We do not believe that any controverted material fact confronted the trial judge when he rendered his verdict, as stated above. Appellant did not plead or show, or attempt to show, any reason why" he did not know or could not have known that conversion had taken place, or the date of same. More than two years having elapsed — to-wit, 1959 until after February, 1962 — appellant was therefore barred by the statute from suing on such alleged conversion. We believe the burden _was_on appellant to initiate and present to the trial court any facts that he felt might have affected the running of the statuteWfTimitatipgs. As stated in 37 Tex.Jur.2d 391, § 201:""

“One who seeks to avoid the bar of the statute of limitation] wElícH is duly pleaded, on the ground of minority, coverture,, or.. any other exception that will toll limitation or bring him beyond the gale_of ,the_operation of the statute, should specifically plead the disability, [citing cases] Disability is said”'to"be similar to a plea of confession and avoidance; if it is[ not pleaded evidence relative thereto will not be considered, even though it was received without objection. One who sets up disability by way of avoidance should state Jacts that show that the statute could not have run; he should state when the disability commenced, the extent of its duration, and his plea should be directed to the particular disability sought to be relied on * *

We do not deal with or discuss whether there are, or could have been, any fact questions, although we do not find any apparent -in the record, but rather we rest this opinion mainly on the fact that it was the burden of the appellant to introduce and infuse same into the controversy.

We therefore hold that appellant’s action is barred by the statute of limitations applicable thereto. We do not discuss his other points, as we feel that our holding on the matter of limitations effectively disposes of the lawsuit.

The decision of the trial court is accordingly affirmed.