author: EDWARD P. HILL, Judge. STEINFELD, Judge.

text:
    MARC BLACKBURN BRICK COMPANY et al., Appellants, v. Ellis Dewey YATES, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.
    Rehearing Denied March 29, 1968.

      Harold Ricketts, Gordon L. Johnson, Harlin, Parker, Ricketts, Lucas & English, Bowling Green, for appellants.
    G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, for appellee Yates.
    Davis & Mahan, Louisville, C. H. Reynolds, Bell, Orr & Reynolds, Bowling Green, for appellee Cherry.
    J. Keller Whitaker, Frankfort, for Workmen’s Compensation Bd.
   EDWARD P. HILL, Judge.

Appellant, the employer, seeks to upset an award by the Workmen’s Compensation Board approved in circuit court in favor of Ellis Dewey Yates, Jr., the employee.

Appellant questions the sufficiency of notice of injury required by KRS 342.185 and contends that the relationship of employer-employee did not exist between it and Yates on the date of the claimed injury.

Inasmuch as appellee Mac G. Cherry, doing business as Cherry Distributing Company, has admitted this case has been correctly stated by appellant and appellee Ellis Dewey Yates, Jr., has made no statement in conflict therewith, we copy herewith appellant’s statement of the facts:

“On February 26, 1965, Marc Blackburn, owner of appellant Marc Blackburn Brick Company, received a request from appellee, Mac G. Cherry, d/b/a Cherry Distributing Company, for assistance in locating extra men to work that night as temporary help with the loading and unloading of trucks located on the premises of Cherry Distributing Company.
“The appellant owner, Marc Blackburn, telephoned appellee, Ellis Dewey Yates, Jr., a Blackburn Brick Company truck driver and another employee, Tommy Eaden, who were temporarily out of work because of adverse weather conditions and inquired if they were available to do the work about which ap-pellee Cherry had inquired. Both men agreed to do the work and the appellant owner, Blackburn, went with them to ap-pellee Cherry’s premises and informed appellee Cherry he had located some men to help. Thereafter, the appellant owner, Blackburn, left the Cherry premises to go about his own business.
“Appellee Yates worked on appellee Cherry’s premises approximately five and one-half hours on that day and during this period of time appellee Yates sustained the injury referred to in this appeal. Upon completion of the work on appellee Cherry’s premises, appellee Yates returned to work for appellant Blackburn as a truck driver as the weather conditions permitted.
“The day after the work was completed appellee Cherry made arrangements with appellant Blackburn to pay appellee Yates, for the work he had performed the night before and also made arrangements to reimburse appellant Blackburn for the amount paid to appellee Yates.
“The testimony conflicts as to the exact day that appellee Yates notified appellant Blackburn of his accident, injury and disability. Appellee Yates states first notice of accident and injury was during the first week of May, 1965, which corresponds with the period of time he was first treated for the injury by Dr. Richard Bevin. Appellant Blackburn states he was not notified of the accident or injury until receiving a letter from the Veterans Administration Hospital in Nashville, Tennessee, concerning a surgical operation on appellee Yates. Before receiving the letter from the Veterans Administration Hospital, appellant Blackburn recalled previous discussions with appellee Yates concerning an absence from work, for medical treatment, however these discussions were limited to a non-industrial personal ailment which appellee Yates was suffering.”

We first direct our thoughts to the question of notice. KRS 342.185 provides :

“No proceeding under this chapter for compensation for an injury or death shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable after the happening thereof * * *.” (Emphasis ours.)

It is noted that the statute, supra, does not fix a definite time in which notice is required. But it must be given as soon as “practicable.” Whether notice has been given as “soon as practicable” depends upon all the circumstances of the particular case.

Liberal legislative intent in the matter of time required in the giving of notice of an injury is further demonstrated by KRS 342.200, which reads as follows:

“The notice shall not be invalid or insufficient because of any inaccuracy in complying with KRS 342.190 unless it is shown that the employer was in fact misled to his injury thereby. Want of notice or delay in giving notice shall not be a bar to proceedings under this chapter if it is shown that the employer, his agent or representative had knowledge of the injury or that the delay or failure to give notice was occasioned by mistake or other reasonable cause.”

The Act, itself, directs this court to follow liberal rules of construction. KRS 342.004.

The provisions of the statute are mandatory that notice be given, but this court has uniformly said that the statute should be liberally construed in favor of the employee to effectuate the beneficent purposes of the Compensation Act. Cf. Bartley v. Bartley, Ky., 274 S.W.2d 48 (1954). In Bartley the injury was identical to the injury in the present case, except the element of time is different. The time in Bartley was forty-four days; while in the present case, it was sixty-six days before notice was given. The court said in Bart-ley at page 49:

“In view of the nature of the alleged injury suffered by the appellant and the known fact that herniated discs often appear gradually and are disabling in proportion to the degree of progress of the herniation, we conclude as a matter of law the notice was adequate and was given as soon as practicable.” (Emphasis ours.)

We are not unmindful of the following statement in Whittle v. General Mills, Ky., 252 S.W.2d 55, 57, cited by appellants:

“We are not prepared to say that a herniated disc is such an injury that no prejudice would result to the employer from delay in giving notice.”

We make no assault on the above statement from Whittle. We may envision a number of situations in which the rights of the employer could be seriously prejudiced by the failure to give notice of injury. It should be pointed out, however, that an injury such as a herniated disc may result from only slight exertion, leaving the injured person uncertain whether the injury is serious. He hopes the pain is temporary and will go away. But if it persists, he must act diligently to ascertain his trouble and promptly notify his employer. The nature of the injury is important on the question of notice insofar as it relates to the knowledge of the injured person of the extent ofv his injury.

The Workmen’s Compensation Board found that Yates “sustained” an injury on February 26, 1965, and “that due and timely notice of the accident was afforded the defendant employer as soon as claimant learned of his disability and was advised by the doctor of his condition and said employer was not prejudiced or misled by the delay in giving notice.” These findings are based on substantial evidence. Really there is little conflict in the evidence in regard to notice.

It is concluded that notice was given the employer “as soon as practicable” under the circumstances of this case. See Peabody Coal Co. v. Harp, Ky., 351 S.W.2d 170, 171, and Mengel Co. v. Axley, 311 Ky. 631, 224 S.W.2d 921. We quote from Mengel, 224 S.W.2d at page 923:

“There is nothing even to indicate the rights of the employer were affected by this delay. There was apparently an honest belief that the injury was slight. The delay, then, may be regarded as occasioned by mistake. Necessity seems to have been accountable for the man’s continuing to work. A poor man ought not to be penalized for trying to continue at his job rather than asserting a claim which may prove to be unsubstantial or even specious. We concur in the rulings below that this delay was not unreasonable or prejudicial.”

Yates said: “I didn’t think I was hurt. I went on ahead and went on working. * * * I needed to work and I needed the money and I went ahead and worked as long as I could.”

Appellant contends that the finding of the board that the injury occurred at a time when Yates was an employee of Blackburn is contrary to the evidence.

Appellant called Yates by telephone and made the arrangements for the latter to do the work unloading Cherry’s truck on the night of the injury. Blackburn met Yates at a designated point and took him to the Cherry premises. On the next day, Blackburn and Cherry agreed that Blackburn would pay Yates for his labor. Blackburn was asked and answered as follows:

“Q. Now Mr. Blackburn, did Mac Cherry owe you anything or anything of that kind, were you butting this off against anything he owed you or how did you make your settlement of your accounts?
“A. I had bought some trucks from Mac and bought some other trucking equipment and stuff up there, and I still owed him some on some of this equipment, stuff, chains and things that I didn’t buy when I bought the trucks. When I bought the trucks, I bought and paid him for them. He had some other stuff up there I needed and I bought them and he told me, he said you just go ahead and pay those fellows like you have been paying them and whatever that is, you just send me a hill and I will give you credit.
“Q. That’s the way it happened, he gave you credit?
“A. He gave me credit on what I owed on the account. See I had an account and stuff up there.
“Q. Mr. Cherry wanted you to pay him ?
“A. He wanted me to carry the payroll. He said I don’t want to put them on the payroll for this little amount.
“Q. He wasn’t on Mac Cherry’s payroll for , several reasons. No. 1, the question of deductions and the question of his insurance coverage and whether or not he would be under the Workmen’s Compensation Act of Mac Cherry’s and social security deductions and things of that kind, is that correct?
“A. That wasn’t brought up or nothing, but he just asked me to do that if it was all right with me. I said it’s all right with me. We didn’t go through all that.
“Q. That was the general understanding?
“A. I imagine that was his idea I guess.” (Emphasis ours.)

Appellant cites one case in support of his contention. In that case, Harbison-Walker Refractories Co. v. Brown, 296 Ky. 629, 178 S.W.2d 39, the employee was injured while engaged in “an enterprise for his own exclusive benefit.” The court properly held the injury did not arise out of and in the course of his employment. This case is of no assistance on the present question.

This court said in Wright v. Cane Run Petroleum Co., 262 Ky. 251. 90 S.W.2d 36, 38:

“[T]he employer who directs his servant to work for another is regarded in law as the general employer, and the one for whom he works as a special employer, and the relation of employer and employee, in the circumstances, exists between both of them and the employee, himself. * * * And he may, under the common law of master and servant, look to the former for his wages and to the latter for damages for negligent injuries; so under the Workmen’s Compensation Act he ‘may so far as its provisions are applicable, look to the one or to the other, or both, for compensation for injuries due to occupational hazards.’ ”

We find respectable support for the rule announced in Wright, supra, in Larson’s Workmen’s Compensation Law, Volume 1A, section 48, page 805, from which we quote:

“Lent Employees. When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if (a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work.
“When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen’s compensation. * * * The only presumption is the continuance of the general employment, which is taken for granted as the beginning point of any lent-employee problem.”

We conclude there was substantial evidence to support the award and the conclusion therein that the injury arose out of and in the course of Yates’ employment with Blackburn.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN and PALMORE, JJ., concur.

STEINFELD, MONTGOMERY, and OSBORNE, JJ., dissent.

DISSENTING OPINION

STEINFELD, Judge.

I respectfully dissent from the opinion for two reasons. The opinion states that:

“The appellant owner, Marc Blackburn, telephoned appellee, Ellis Dewey Yates, Jr., a Blackburn Brick Company truck driver and another employee, Tommy Ea-den, who were temporarily out of work because of adverse weather conditions and inquired if they were available to do the work about which appellee Cherry had inquired. Both men agreed to do the work and the appellant owner, Blackburn, went with them to appellee Cherry’s premises and informed appellee Cherry he had located some men to help. Thereafter, the appellant owner, Blackburn, left the Cherry premises to go about his own business.”

Yates was not a loaned employee. Rice v. Conley, Ky., 414 S.W.2d 138 (1967).

Yates claimed that he was injured on February 26, 1965. KRS 342.185 requires that “ * * * a notice of the accident shall have been given to the employer as soon as practicable after the happening” of the injury. More than 63 days passed before notice waá given. The phrase “as soon as practicable” has been construed in Peabody Coal Company v. Harp, Ky., 351 S.W.2d 170 (1961), to mean that notice must be given “within a reasonable time under the circumstances of each particular case”. See cases cited therein. Reasonable promptness is required. The delay must have been occasioned by reasonable cause. No reason is offered by Yates that convinces us that the notice was given “as soon as practicable” after the happening of the injury.

MONTGOMERY and OSBORNE, JJ., join in this dissent.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Claudie LITTLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.
    Rehearing Denied March 29, 1968.
    Francis D. Burke and Joseph W. Justice, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., H. N. McTyeire, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Claudie Little shot and killed Charles Castle. He was indicted for murder but upon trial was found guilty of the lesser offense of voluntary manslaughter and was given a 12-year sentence. He has appealed from the judgment of conviction.

Little’s primary argument is that his testimony conclusively showed that the killing was in self-defense, wherefore he was entitled to a directed verdict of acquittal.

The shooting occurred on a narrow country road along Marrowbone Creek in Pike County. No one was present other than Little and Castle. Little’s testimony was that as he was driving down-creek in his pick-up truck, Castle approached from the opposite direction in an Oldsmobile. Castle stopped his car in the middle of the road so as to block Little’s passage, and got out of his car with a Luger pistol in his hand. He approached Little’s truck, announcing that he was going to kill Little. The latter begged for his life but Castle came on, repeating his threats. Castle arrived at the right door of the truck, opened it and started to enter the truck with the pistol in his hand. Little then shot him twice with a 38 Special pistol which Little had with him in the truck. Castle died forthwith. Persons who arrived at the scene a short time later saw the Luger pistol lying across Castle’s wrist where his body lay on the ground.

A blood test of Castle’s body showed such alcohol content as to have created a condition of intoxication. Castle’s widow testified that he had been drinking during the day. She further testified that a few minutes before the killing Little drove by their house on Marrowbone Creek, going slowly and staring at the house; that her husband shouted at Little that he was “damn tired of your following me;” and that after Little’s truck had passed by, Castle got in his car and drove off in the same direction that the truck had gone. A policeman testified that she had told him that Castle said, as he left the house, “We will settle this now once and for all,” but on the trial she denied having made such a statement to the policeman.

There was evidence that a few months before the shooting Little and Castle had engaged in a quarrel. Also that a few days before the shooting Little had sued Castle for a debt and had secured an attachment against some of Castle’s property.

Little maintains that his account of the shooting was not contradicted or refuted by any evidence, direct or circumstantial, and in fact was corroborated by the physical circumstances and by the evidence of the events leading up to the shooting. He argues that he made out a clear and convincing case of self-defense such as to entitle him to a directed verdict.

The applicable rule of law is stated in Richie v. Commonwealth, Ky., 242 S.W.2d 1000, at 1004, as follows:

“ * * * though the defendant, who was the sole immediate eyewitness, testifies to a prima facie case of self-defense, yet if there is any evidence tending to disprove his testimony, the issue should be submitted to the jury. The circumstances of the case, or the credibility of the witness, or the inherent improbability of his testimony, may refute the claim that he killed the person in defense of his life, or to save himself from serious bodily harm.” See also Hatton v. Commonwealth, Ky., 412 S.W.2d 227.

It is our opinion that there were contradictions of, and improbabilities in, Little’s testimony sufficient to make a jury issue of self-defense. First, the reason Little gave for being in the neighborhood, to see a lady about buying a cedar chest from her, was challenged by the lady’s testimony that she had had no dealings with him about a cedar chest. Second, Little’s actions in driving slowly by the Castle home could be construed as calculated to provoke a quarrel. Third, there are some inherent improbabilities in the story that Castle, armed with a gun and announcing his intention to kill Little, but having reason to expect that Little also would be armed, walked openly down the road to the truck, opened the door, and started to get in, without ever making a move to fire his pistol. Why would he wait to get inside the truck before shooting? Likewise, why would Little, fearing for his life, wait until Castle started to enter the truck before shooting to defend himself? Fourth, Little’s testimony that he shot Castle as he was entering the truck was contradicted by the facts that no blood was found in or around the door, Castle’s body after the shooting was lying with the head next to the right rear wheel of the truck, and there were blood and skin tissue on the right rear wheel. Fifth, the fact that Castle was drunk might have afforded Little opportunities to defend himself other than by killing Castle.

Little’s second argument on this appeal is that error was committed in admitting in evidence an X-ray photograph purporting to show the position m Castle s body of one of the bullets. We agree that the admission was error, because the photograph was not properly identified, authenticated, or qualified. However, it is our opinion that the error was not prejudicial. The photographs purported to show only the position of one of the bullets in the right rib cage. The coroner had testified, from his physical examination of the body, that this bullet had entered on the top of the left shoulder. The location of the bullet in the body was significant only in that it indicated that the bullet had followed a downward course, which in turn indicated either that Little was in a higher position than Castle when the shot was fired, or that Castle was bending or leaning over. The fact that the other bullet (two were fired) had followed a downward course was established by testimony of the coroner, from his physical examination of the body, that the bullet entered below the left eye and exited at the back of the neck. Since the downward course of the one bullet had been established, and since both bullets admittedly had been fired in rapid succession, there was no need to show by direct proof that the second bullet had followed a downward course; therefore, the proof so made by the X-ray photograph was of no real significance. Furthermore, the course of the bullets was of no great importance because a downward course was entirely compatible with Little’s story that from his seat in the pickup truck he shot Castle as the latter attempted to enter the truck.

As his third ground of error Little asserts that the evidence did not warrant the instruction on voluntary manslaughter under which he was convicted — that the evidence showed either murder or nothing.

The rule is that if a reasonable inference can be drawn from the evidence that the defendant in a homicide case is guilty of a lesser crime than murder, instructions should be given consistent therewith. Harris v. Commonwealth, Ky., 389 S.W.2d 907. In the instant case the evidence warrants reasonable inferences that Castle blocked the road with his automobile so as to require Little to stop his truck; Castle then left his automobile and approached Little’s truck, with gun in hand but without voicing any threat of bodily harm; that Little got out of his truck with his gun and the two men engaged in a heated discussion in the course of which, in a sudden passion, Little shot Castle. The circumstances do not indicate an ambush by Little, so if that is eliminated, and if self-defense is eliminated, the plain inference is that the shooting was in sudden heat and passion. Accordingly, it was proper to give the voluntary manslaughter instruction.

Little’s final complaint is that the Commonwealth’s attorney was permitted consistently to ask leading questions. He does not really argue that this constituted error of such magnitude as to require a reversal of the judgment, nor do we, upon examining the questions complained of, find such error.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Lloyd STAMPER et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    Rehearing Denied March 29, 1968.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Robert Rieckhoff, Dept, of Highways, Frankfort, Lewis D. Jones, Dept, of Highways, Flemingsburg, for appellant.
    Ora F. Duval, Counts & Duval, Olive Hill, for appellees.
   DAVIS, Commissioner.

The dispositive question in this appeal taken by the Department of Highways in a condemnation proceeding is procedural. On December 28, 1965, the Department instituted condemnation proceedings in the Carter County Court seeking right-of-way over land owned by the appellees. The land was subject to a lease for excavating limestone, and the lessee was made a party in the county court.

The condemnees challenged the Department’s right to proceed on the basis that there had not been good faith efforts looking toward negotiation with the owners prior to the institution of the condemnation proceedings as required by KRS 177.081(1). On January 17, 1966, a hearing was had in the Carter County Court at which evidence was heard on that issue. On the same date, the county judge signed a purported judgment upholding the right of the Department to proceed and permitting the Department to take possession of the condemned land upon its payment into court of $30,000, the amount fixed by the commissioners. The purported judgment was recorded in the county court order book by means of a photostatic process so that the order book reflected an exact picture of the judgment as originally typed and as originally signed by the county judge. However, the county judge did not at that time sign the judgment on the county court order book.

On February 8, 1966, with the record in the condition just described and the judgment unsigned on the county court order book, the present appellees (the surface owners but not the lessees) filed a document entitled “Statement of Appeal — Exceptions to Commissioners’ Report and Award — Exceptions to Procedures and Judgment of Carter County Court.” Among other bases for attack on the county court judgment, the present appellees in their statement of appeal to the circuit court pointed out that the county court “judgment,” as signed on separate paper by the county judge on January 17, 1966, had never been signed on the order book of the Carter County Court.

After certain motions and hearings in the circuit court, the trial judge rendered the judgment now on appeal, setting aside the judgment of the Carter County Court dated January 17, 1966, as void. The appellant contends that the judgment of the circuit court is erroneous because the appeal to the circuit court was premature so that the circuit court acquired no jurisdiction by virtue of that appeal. We agree.

We have held frequently that a judgment of a county court is ineffective until signed on the order book by the presiding judge of the court. See Com., Dept. of Highways v. Daly, Ky., 374 S.W.2d 497, in which this principle was recognized in the following language:

“It seems clear from the decisions in City of Frankfort v. Yount, Ky., 262 S.W.2d 665, and Commonwealth, Dept. of Highways v. Clarke, Ky., 340 S.W.2d 442, that the judicial act which makes a judgment effective is the signing of the order book (wherein the judgment is recorded.” Id. 374 S.W.2d 498.

It is apparent, therefore, that on February 8, 1966, no judgment of the Carter County Court had become effective by the required judicial act as noted in the just cited authority. It follows that there could be no appeal from the nonexisting judgment. Muncy v. Gibson, 169 Ky. 153, 183 S.W. 464; Pardue v. Commonwealth, 225 Ky. 60, 7 S.W.2d 512; Jones v. Commonwealth, 238 Ky. 607, 38 S.W.2d 461. See 73 A.L.R. 2d 255, wherein it is stated: “However, generally speaking, in all jurisdictions there must be a judgment or order before an appeal can be taken.” In the same annotation, decisions of this court handed down when the Civil Code governed our practice are cited for the proposition that an appeal is not supported by an unsigned judgment. See 73 A.L.R.2d 273, and Kentucky cases there cited, including Germann Bros. Motor Transp., Inc. v. Flora, Ky., 262 S.W.2d 821.

It is shown in the record that the county judge did sign the judgment on the order book on February 9, 1966, one day after the appeal had been undertaken by the present appellees. Appellees urge that this fact should be deemed as breathing life into their premature appeal, but we are persuaded that authority and reason impel the contrary view. Cf. Farris v. Matthews, 149 Ky. 455, 149 S.W. 896.

We are told in the brief for appellees that a timely appeal was taken to the Carter Circuit Court by Valley Stone Co., Inc., the lessee of the limestone rights, and it is suggested that this fact validates the judgment of the Carter Circuit Court in the present proceeding. The difficulty is that we have no proper record before us reflecting whether any such appeal was taken, so that we do not reach the question whether the separate appeal of the lessee had any effect upon the premature appeal by the present appellees.

Since there was no judgment from which an appeal could have been prosecuted from the Carter County Court to the Carter Circuit Court on February 8, 1966, the abortive appeal undertaken did not serve to confer jurisdiction upon the Carter Circuit Court in this proceeding; hence, any undertaken adjudication by the Carter Circuit Court was improper and erroneous.

The judgment is reversed with directions to enter a new judgment dismissing the appeal from the Carter County Court.

All concur.


author: OSBORNE, Judge.

text:
    A. W. HOLMES et al., Appellants, v. C. W. HUME et al., Appellees.
    Court of Appeals of Kentucky.
    March 1, 1968.
    George W. Hatfield, Jr., Whitley City, W. L. Rose, Williamsburg, for appellants.
    Homer W. Ramsey, Whitley City, for appellees.
   OSBORNE, Judge.

The appellees herein are trustees of the McCreary County Public Library. In July of 1967 they presented a petition to the fiscal court of McCreary County containing 2122 names subscribed by qualified voters of that county. The petition requested the creation of a public library and the levying of a tax to support same, as authorized by KRS 173.720. On the date the petition was presented to the fiscal court, the county attorney was absent and the judge elected to continue the proceedings on the petition to the next meeting, which was to be held on July 13, 1967. When the petition was brought up for vote on July 13, the fiscal court declined to follow the provisions of the statute by a vote of 4 to 3. Apparently the court was of the opinion that the matter was discretionary. Following this action, appellees instituted proceedings in the circuit court setting up the foregoing facts, further alleging that the petition authorized by KRS 173.720 was properly filed with the fiscal court. The petition requested the circuit court to issue a mandamus directing the members of the fiscal court to levy the tax as required by the statute. The circuit court issued the' mandamus and from that judgment this appeal is prosecuted.

Appellants contend that appellees did not prove the petition contained more than 51% of the voters who voted at the last general election. Appellees contend that there was no burden placed upon them to offer such proof as the fiscal court never denied that the petition was adequate. We believe appellees are correct. Once a petition is filed with the fiscal court it can not arbitrarily be ignored or denied. If technical deficiencies are found in the petition then certainly there rests upon the court an obligation to inform those who filed it of such deficiencies. See Shreve v. Taylor County Public Library Board, Ky., 419 S.W.2d 779. The case here is even stronger than the Taylor County case in that the appellants did not specifically challenge any portion of the petition. Here the trial court heard the evidence concerning the fiscal court’s objection to the petition and found it legally sufficient. With this conclusion, we agree. Mandamus is the proper remedy to compel a court of inferior jurisdiction to take such action as the law makes mandatory. Childers v. Stephenson, Ky., 320 S.W.2d 797.

The judgment is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    James Donald CLEMENTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 9, 1968.
    Rehearing Denied March 29, 1968.

      William L. Wiesman, Owensboro, for appellant.
    Robert Matthews, Atty. Gen., Howard E. Trent, Jr., Asst. A tty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant, James Donald Clements, was indicted for the crime of rape. KRS 435.090. Upon trial he was convicted of detaining a woman against her will with intent to have carnal knowledge of her and his punishment was fixed at two years in the state penitentiary. KRS 435.110. We consider the several grounds upon which he relies for reversal of the conviction. Hereinafter the victim of the alleged crime will be referred to as the prosecutrix.

It is contended that the trial court should have directed an acquittal because the testimony of the prosecutrix is unsupported and is intrinsically improbable and therefore unworthy of belief. To sustain a conviction our case law requires the testimony of the prosecutrix to be credible, probable and not at variance with the laws of common experience. Kearney v. Commonwealth, Ky., 386 S.W.2d 953; Carrier v. Commonwealth, Ky., 356 S.W.2d 752. In Holland v. Commonwealth, Ky., 272 S.W.2d 458, we said that in sex cases the evidence should be scrutinized by the appellate court because the charge is easily made and difficult to disprove, and by its very nature it is liable to create natural indignation in the jurors’ minds. It is therefore necessary for us to carefully examine the pertinent evidence upon which the conviction is based.

The prosecutrix was sixteen years of age at the time of the commission of the alleged offense but she only had a mental age of five years. Appellant was twenty-four years-old, married, and a resident of Owensboro, Kentucky.

A taxicab driver testified that during the evening of January 30, 1967, a man who resembled appellant and who had been drinking, called his attention to the prosecutrix’s condition while she was in the vicinity of a house on 18th street in Owensboro which appellant rented. This driver notified Owensboro police officers who came to the scene and questioned prosecutrix. At that time she was barefooted and clothed only in an old coat. Her conversation was incoherent and indicated she had been drinking. She related that her home was in Rockport, Indiana, and that she had been driven to Owensboro by some boys who had persuaded her to get in their car as she was returning home from school. She said that while they were in Indiana the boys in the car with her had forcibly taken off her clothes and one of them had sexually assaulted her. She also complained about being burned on her neck. The police officers were unable to determine from questioning her whether she had been sexually assaulted in Kentucky. Later that evening she was examined by a physician who found a few sperm which he said indicated that she had engaged in a sexual relationship. The physician discovered in the area of her jawbone a circular lesion compatible with a cigarette burn.

On appellant’s trial prosecutrix, in substance, testified that she got into appellant’s car in Rockport, Indiana, was driven to Owensboro, Kentucky, where appellant purchased some whiskey, and was then taken by him to a partially vacant house on 18th street where she was raped by him. Although the credibility of her testimony was somewhat shaken by testimony showing she had made some contradictory statements to police about where she was assaulted, her testimony in pertinent part was corroborated to the extent that several witnesses place appellant with her near the scene of the crime. Appellant himself testified that the prosecutrix was transported from Indiana to Kentucky in his car; that he had been drinking and went to sleep in the automobile during their drive back to Owensboro. Concerning what transpired upon reaching Owensboro, he stated:

“Q. 46. Tell the ladies and gentlemen of the jury what you do remember about what happened?
“A. Well, I remember trying to get Larry Lyons to take her home. I do remember that and he said he couldn’t do it on account of his wife, said he would have to call his wife and check on that first, and so I said, ‘well, let’s go up to the house and call. The house is empty,’ and I said, ‘you can use the phone in there.’ So, when we get out to go in the house she gets out of the car and she stumbles and falls and then Larry goes in to use the phone and I told him, I -said, ‘just call me a cab too and I will get on out of here and you take the car to Roy’s and I will get on home.’ I said, ‘I am not fooling with her, I can’t get rid of her,’ and he did, and I got out about two blocks down the street and started back towards the house to wait on the cab and I called a cab and I barely remember — well, I do remember telling the cab driver that there was a woman back there by the telephone pole, but other than that I don’t know no more there other than what I hear.”

Appellant unequivocally denied that he had molested her sexually in any manner or had any intention to do so.

We are unwilling to accept appellant’s argument that, as a matter of law, the testimony of the prosecutrix is unworthy of belief. She related in detail the occurrences in which she and appellant had been involved and her testimony was corroborated by that of appellant as well as other witnesses in all respects except as to the act of intercourse and her unlawful detention. In these circumstances the question of the credibility of her testimony was for the jury to determine. McCloud v. Commonwealth, Ky., 333 S.W.2d 264; Fugate v. Commonwealth, 291 Ky. 793, 165 S.W.2d 573. It is our opinion that the evidence is sufficient to support the jury’s belief that the crime of rape was not completed but that appellant had unlawfully detained the prosecutrix with the intention to have carnal knowledge of her. KRS 435.110; Newsome v. Commonwealth, Ky., 274 S.W.2d 484; Gambrell v. Commonwealth, 312 Ky. 573, 228 S.W.2d 457.

It is contended that the trial court erred in instructing the jury. No objection was raised concerning the instructions either when given to the jury or in the motion for a new trial. The mere stating in a motion that the verdict is contrary to law and the evidence is insufficient to raise any legal question involving the instructions. Duncan v. Commonwealth, Ky., 330 S.W.2d 419; Beach v. Commonwealth, Ky., 246 S.W.2d 587. In the absence of a proper motion or objection which affords the trial court an opportunity to pass on the alleged error, there is nothing preserved for appellate review. Piper v. Commonwealth, Ky., 387 S.W.2d 13; Merritt v. Commonwealth, Ky., 386 S.W.2d 727; Hartsock v. Commonwealth, Ky., 382 S.W.2d 861. We observe, however, that the instructions when read and considered in their entirety correctly stated the law governing the case. In form and substance they are similar to instructions we have approved in cases of this character.

Appellant urges that a certain remark by the Commonwealth’s Attorney was prejudicial. During the questioning of the prosecutrix, counsel for appellant was complaining to the court about leading questions being propounded to the witness. At one stage of the questioning she was asked a certain question and appellant’s counsel commented to the court:

“That is still leading judge. They have drilled her in this.”

The retort of the Commonwealth’s Attorney was:

“Your Honor, that is simply not true. This girl has a 30 I.Q. and a four and a half-year-old mental condition.”

The court then informed the Commonwealth’s Attorney that the witness had responded to every question asked of her. No objection or request for an admonition was made but only an exception to the court’s ruling was saved by the Commonwealth’s Attorney. Neither was there any reference made to this ruling in the motion for a new trial. Therefore the alleged prejudicial remark has not been properly preserved by the appellant for this court’s review. Merritt v. Commonwealth, Ky., supra.

During the cross-examination of prosecutrix the Commonwealth’s Attorney suggested to the court that it take a five-minute recess. Appellant’s counsel objected. The court inquired of the witness if she were feeling all right. She replied:

“No, my stomach hurts.”

The Commonwealth’s Attorney remarked:

“She has epilepsy. Her mother is out there.”

The court ordered a five-minute recess and directed the witness’ mother to see after her. It is contended that the remark of the Commonwealth’s Attorney was inflammatory and prejudicial. However, there was no request for an admonition or any question raised before the trial court concerning the propriety of the remark, so there is nothing here to review.

It is further contended that the trial court erred in allowing the Commonwealth’s Attorney to ask the prosecutrix numerous leading questions. It is argued that the Commonwealth’s Attorney so persistently indulged in such practice and so greatly prejudiced the appellant that an objection to such conduct was not necessary. While it does appear in the record that some of the questions asked the prosecutrix were of a leading character, we also find that the prosecutrix was a reluctant witness and also one that was far below the standard of normalcy, especially as to her mental capacity. In these circumstances the trial court has much discretion. Grace v. Commonwealth, 302 Ky. 796, 196 S.W.2d 417. We have carefully read the questions propounded to the prosecutrix and find no abuse of discretion.

The judgment is affirmed.

All concur.


author: HILL, Judge.

text:
    Tom GOLDEN, Administrator of the Estate of Earnest Kincheloe Lam, Deceased, by Arthur Dethridge, Successor Administrator and Katherine Lam, now Katherine Finley, Appellants, v. GRACE FAITH TABERNACLE, also known as Faith Tabernacle, and Houchens Foundation Successor to V. S. Andrews, Appellees.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.
    Rehearing Denied March 29, 1968.
    L. B. Weir, Madisonville, for appellants.
    Paul R. Huddleston, Bowling Green, for Grace Faith Tabernacle.
    Bell, Orr & Reynolds, Bowling Green, for Houchens Foundation.
   HILL, Judge.

This action was instituted September 10, 1962, by the appellants as personal representatives of the estate of Earnest Kinche-loe Lam, an itinerate preacher, to recover $545, for salary in arrears, and $2000, claimed to have been promised Lam in the articles of incorporation of Grace Faith Tabernacle for “labor and donations” contributed by him in 1955 during the early stages of construction of the church building at Bowling Green, Kentucky.

By amended answer and counterclaim filed January 2, 1963, appellees sought to recover the sum of $8086.17 from the estate of Lam for money “took and converted” by Lam from funds belonging to the church.

At the conclusion of a jury trial held February 8 and 9, 1965, the jury returned a verdict for appellees of $1. Judgment was entered in that amount and the complaint dismissed. This appeal followed.

The above dates are given as they are important in the light of questions argued by appellants.

A large part of the appellants’ 28-page brief and the appellees’ 37-page brief is devoted to the exaltation or degradation of Preacher Lam. Appellants contend Lam, although having limited education, was “called” to preach to the poor people “across the track.” Appellees counter with the argument that Lam was a “rogue of religion” like unto “Lucifer” and “Judas Iscariot,” ’’hypocrites,” “jovial frairs,” and other “false prophets.”

Preacher Lam died in 1962; and if we subscribe to the doctrine that a man must personally make his own peace with the Lord, it is too late for the appellants, the appellees, or this court to change the moral status of Preacher Lam. The allegations of the amended answer and counterclaim, charging that Preacher Lam “took and converted” church funds to his own use, bring into question his moral or immoral characteristics. This question was thoroughly, and perhaps excessively, aired before the jury, including reports that upon being granted a one-year leave of absence from the church in 1956, Preacher Lam left with an eighteen-year-old maiden and was later convicted of crimes in Illinois and Tennessee.

We list verbatim the two points raised by appellants:
1. “The court committed error when it failed to pass on all the pleadings and proof then in the record as submitted to the court by order entered November 18th, 1963. This includes Appellants’ motion to complete case to a final judgment and Appellants’ motion for summary judgment.
2. “The court erred when it set this case for a jury trial and permitted testimony in the nature of mistake in accounting to be given when no pleading claiming mistake had been filed herein concerning the final settlement already made .with Appellants’ decedent on December 10, 1956.”

The order submitting this cause for final trial, entered November 18, 1963, was signed by the Honorable John B. Rodes, then judge of the circuit court, who shortly thereafter vacated his office. He was succeeded by the Honorable Robert M. Coleman, who entered a partial judgment March 20, 1964, awarding judgment to V. S. Andrews, mortgagee for his debt. It also impressed the tabernacle property with a lien and ordered a sale of the property. No reference was made in this partial judgment to the claim of Lam. Numerous pleadings, amended pleadings, and motions were made by both parties between March 20, 1964, the date of the entry of the partial judgment, and January 4, 1965, when an order was entered setting this case for trial on February 8, 1965, “on all the issues.” No mention is made of a jury trial in this order, although on the following day appellants filed a paper in which they noted an objection and exception to the assignment of the case for trial by jury.

A jury trial was demanded in the very first answer and counterclaim filed November 16, 1962. It is true, we think, that the order of submission entered by Judge Rodes contemplated a trial of the issues by the court without a jury. However, this makes no difference as Judge Rodes had an absolute right, even after the entry of his order of submission, to later order a jury trial. Certainly, Judge Coleman had the same power. This is the answer to the first part of appellants’ Point I. Also included in Point I is the contention that appellants were entitled to summary judgment. We find this contention wholly without merit.

The above discussion also covers a portion of appellants’ Point II. Appellants also argue in Point II that the trial court erred in “permitting testimony in the nature of mistake in accounting to be given when no pleading claiming mistake had been filed.”

Appellees denied owing the Lam estate $2000 mentioned in the articles of incorporation. Conceding for the purpose of argument that the articles of incorporation were valid and not a forgery as ap-pellees contend, they amounted to nothing more than evidence of debt. Appellees’ evidence that portions of the articles of incorporation were forgeries is admissible without pleading for reformation.

We think, in conclusion, that appellants were afforded a fair and impartial trial by both the trial court and the jury. The verdict is amply supported by substantial and competent evidence and may not be disturbed. Cf. Southern Railway Co. v. Kelley Construction Co., Ky.App., 406 S.W.2d 305.

The judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    AMERICAN OIL COMPANY, Appellant, v. J. H. BROOKS et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    As Modified on Denial of Rehearing March 29, 1968.

      H. M. Tye, Barbourville, O. Grant Bruton, Hubert Willis, Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, for appellant.
    William S. Tribell, Pineville, Charles G. Cole, Jr., Carlos B. Pope, Barbourville, for appellees.
   STEINFELD, Judge.

J. H. Brooks sued American Oil Company on a claim that the oil company had failed to make rental payments to the National Bank of Commerce of New Orleans, Louisiana. The bank instituted a separate action against Brooks to recover on a note, and Brooks filed a third party complaint against American seeking indemnity for any recovery that the bank might make against him. The two actions were consolidated. American has appealed from a judgment which required Brooks to pay the bank and granted indemnity to Brooks. We affirm.

On October 22, 1952, Sillus Brooks (brother of J. H. Brooks) and Jennie Brooks leased land near Fourmile, Bell County, Kentucky, to Pan-Am Southern Corporation, an oil and gasoline company, for a period beginning January 1, 1953, and running for ten years. The rental was $182.25 per month. The lease provided that Sillus Brooks construct a service station at a cost of $18,000.00. A controversy arose with respect to the improvements and by agreement the rental was reduced. On April 27, 1953, the tenant subleased the property to J. H. Brooks “on a yearly basis”. Pan-Am also had entered into- an “oil distributors sales contract” with J. H. Brooks.

On July 24, 1953, Charles G. Cole, Sr. and Mattie Hayes Cole, his wife, leased land near Barbourville, Knox County, Kentucky, to J. H. Brooks for a term of ten years beginning December 1, 1953. Shortly after the lease was signed Brooks was given possession and constructed an automobile service station on that land at a cost of approximately $18,000.00. On August 10, 1953, the same oil company entered into a contract whereby J. H. Brooks agreed to sublease that real estate to the oil company at a monthly rental of $182.34. The company and J. H. Brooks entered into a distributors sales contract for this location and Pan-Am leased the property back to Brooks.

On November 6, 1953, Charles and Lillie Mae Patterson leased land on U. S. Highway 25 E in Knox County to J. H. Brooks for a term of ten years. The lease stipulated that Brooks would build an automobile service station and that when constructed he would sublease it to Pan-Am at a monthly rental of $177.19. To finance the construction of the improvements on the Patterson property, on August 4, 1954, J. H. Brooks executed his promissory note in the amount of $17,500.00 to the National Bank of Commerce of New Orleans. To secure the bank the Pattersons gave a mortgage on the property and Brooks assigned rental due him under the lease. The note provided for installment payments at the rate of $177.19 per month beginning August 1, 1954, with the balance due and payable on August 1, 1964.

After that transaction with the bank, Pan-Am subleased the Patterson property back to Brooks on a year to year basis at the rental of $177.19 per month. Brooks agreed to pay the rental to Pan-Am and Pan-Am agreed to forward that rental to the bank to apply on the Brooks note.

Pan-Am and Brooks entered into an oil distributors agreement for the Patterson property the same as with the other two stations. The sublease with respect to that property was terminable by the oil company under the following provisions:

“Lessee shall have the privilege of using said premises for any purpose including, but not limited to, the operation of a gasoline service station, and for the sale of tires, tubes, and automobile accessories and any other commercial activity, and shall have the privilege of erecting on said premises or to make arrangements with third persons to erect thereon such buildings, driveways, curbing or other improvements or equipment as may be necessary or desirable for the proper use of said premises for the aforesaid purposes. In case Lessee shall be unable to obtain from the proper public authorities, municipal, state or otherwise, any permit or license necessary for the operation of a gasoline service station upon said premises, or in case any such permit or license, if obtained, be afterward revoked without fault of Lessee, or should the use of said premises for any of the purposes stated above be restricted by the enactment of any state or municipal law or ordinance or by legal proceedings or by any federal government action in such manner as to make the operation thereof unprofitable, or if the use of said premises for any of the purposes stated above be restrained or enjoined by judicial process or otherwise, then Lessee shall have the right to terminate this lease by giving Lessor ten day written notice of its intention so to do, and shall thereupon be relieved from all liability hereunder. In the event Lessee is deprived of the use of said property as a gasoline service station, in whole or in part, or in the event the normal operation of said gasoline service station be curtailed, by reason of any federal, state or local government action, the Lessee shall be entitled to a proportionate diminution of all rentals due hereunder during such period of deprivation of use or curtailment of said operations.”

In 1957 American Oil Company became the successor of the Pan-Am Southern Corporation and assumed all of its obligations and became the beneficiary of all of the contracts which are involved in this litigation.

On October 10, 1958, Brooks and American entered into an oil distributors sales contract which superseded the earlier distributors contracts between Brooks and Pan-Am. Among other things it provided for distribution of American Oil products; by Brooks in areas including the three mentioned locations.

In 1960 the Patterson station was materially and adversely affected by the relocation of U. S. 25 E. During that year Brooks-discontinued making rental payments to American and ceased handling American products at all three locations. He operated the stations under the name of another major oil company. American discontinued making payments to the bank but made no effort at that time to evict Brooks from any of these properties.

Brooks sued American for specific performance to require it to make the payments to the bank and to pay the rental reserved in the Patterson lease. He contended that American’s failure to make the payments to the bank was a violation of its; agreement. The bank brought a separate suit and named Brooks and Patterson as defendants. It demanded judgment against Brooks for the balance due on the note, and sought to enforce its mortgage on the Patterson property. It did not make American a party to that action. The bank alleged that there was a debt due it of $7,851.02. In the bank’s suit Brooks filed a third party complaint against American whereby he sought indemnity for any judgment that the bank might recover against him. The actions were consolidated. American counterclaimed against Brooks on various claims.

A summary judgment decreed that the bank should recover from Brooks $7,851.02 with interest, and that Brooks should recover the same amount from American. Later an amended judgment was entered which reduced the award in favor of Brooks against American from $7,851.02 to $6,261.02, but there was no change in the judgment in favor of the bank against Brooks. The reason for the reduction was that the court decided that it had made an error in the adjudication of the counterclaim. American now contends that Brooks was not entitled to a summary judgment for the several reasons which we will discuss.

American argues that the Knox Circuit Court did not have venue to entertain the suit which Brooks filed against American. It contends that the subject matter of the suit was a lease that had been assigned to the National Bank of Commerce of New Orleans and was to be performed in Louisiana; that the products mentioned in the distributors contract were to be shipped to Brooks’ home in Bell County and that American did no business whatsoever in Knox County. American also contends that the lease on the Patterson property was executed in Louisiana, but Brooks counters by arguing that American had signed the lease and that the final action of the transaction was its execution by Brooks which took place in Knox County. He argues that the contract was made in Knox County and that the circuit court of that county was the proper place for an action that arose out of that contract. KRS 452.450.

American relies on Wilgus v. Commonwealth, 9 Bush. 556 (1873) and Edwards v. Bernstein, 231 Ky. 100, 21 S.W.2d 133 (1929) in support of its claim that a lease is personal property and that the location of the property leased is immaterial. Caudill v. Little, Ky., 293 S.W.2d 881 (1956).

American argues that the conflict' as to the place where the lease was executed is an issue of a material fact and that the summary judgment should not have been granted to Brooks. CR 56.03. It cites Schiber v. City of Louisville, Ky., 324 S.W.2d 822 (1959); Fletcher v. Indianapolis and Southeast Trailways, Inc., Ky., 386 S.W.2d 264 (1965) and Robert Simmons Construction Co. v. Powers Regulator Co., Ky., 390 S.W.2d 901 (1965). American relies upon testimony contained in certain depositions. They were not filed in evidence or in opposition to the motion for summary judgment. They were not included in the record submitted to this court. We cannot consider the contents of these depositions. Harmon v. Harmon, 227 Ky. 341, 13 S.W.2d 242 (1928); Harned, et al v. Smoot, 306 Ky. 813, 209 S.W.2d 485 (1948); Pike County Board of Education v. Varney, Ky., 253 S.W.2d 253 (1952) ; Crowe v. Taulbee, Ky., 350 S.W.2d 620 (1961) ; Travelers Indemnity Company v. Patrick, Ky., 386 S.W.2d 256 (1964); Ford v. Gilbert, Ky., 397 S.W.2d 41 (1965). and Com., Dept. of Highways v. Richardson, et al, Ky., 424 S.W.2d 601 (decided November 10, 1967).

Brooks relies upon Holcomb v. Kentucky Union Co., 262 Ky. 192, 90 S.W.2d 25 (1936) and Trinity Universal Ins. Co. v. Mills, 293 Ky. 463, 169 S.W.2d 311 (1943).

American is a corporation to which KRS 452.450 applies. The principal part of the lease was the agreement to operate an automobile service station on the land in Knox County. There was venue in the Knox Circuit Court. Torrent Lodge v. National Surety Co., 231 Ky. 302, 21 S.W.2d 439 (1929) ; Holcomb v. Kentucky Union Co., 262 Ky. 192, 90 S.W.2d 25 (1936); Glasscock v. Louisville Tob. Whse. Co., 31 K.L.R. 702,103 S.W. 319 (1907) ; Dye Bros, v. Butler, 209 Ky. 199, 272 S.W. 426 (1925).

American also contends that granting a judgment to Brooks was error because the operation of the three stations was a “package agreement” and so accepted by the parties. It argues that it would be inequitable to permit Brooks to repudiate part of the “package agreement” and retain the benefits of the other leases. It cites cases and texts which hold that separate written documents (including oil station leases) between the same parties and relating to the same subject matter are to be construed together as one transaction. Lynch v. Bank of American National Trust & Savings Association, Calif., 2 Cal.App.2d 214, 37 P.2d 716 (1935); 5 West Ky. Digest, Contracts, 126 A.L.R. 1375, 83 A.L.R. 1416; Ratcliff v. Union Oil Co. of California, 159 Or. 221, 77 P.2d 136 (1938). Brooks counters by arguing that the Patterson Cole and the Sillus Brooks transactions were not a “package agreement” because they involved separate instruments, properties, people, circumstances and that none of the writings refers to the others. He also relies on the cancellation in May 1958 of the lease which he, J. H. Brooks, had with American on the Sillus Brooks’ property. He supports these contentions on other occurrences which he says are revealed by certain depositions. For the reasons heretofore expressed we cannot consider so much of the facts on which Brooks relies which are found only in the unfiled depositions. See Harmon v. Harmon, supra, and other cases cited above.

From the facts which we may consider it is our opinion that the matter in litigation which substantially involved only the Patterson transaction is not so mingled or intertwined with the other leases, stations and transactions that it may not be separately decided. There seems to be no jus-ticiable controversy in this court between any of the parties with respect to the Cole or Sillus Brooks properties.

In its original answer American made certain allegations in an effort to establish that there had been a settlement of all differences between the parties. It is our opinion that the facts alleged did not have the affect of releasing American from its obligation to pay the bank the rental which it agreed to pay for the Patterson property.

The last contention of American is that it had the right to terminate the lease on the Patterson property by reason of the fact that the U. S. Highway 25 E had been relocated. It relies upon the provisions of Clause 11 of the lease which we have heretofore quoted in this opinion. The word “restricted” is dispositive of this argument. The road on which the station was located was not changed and the use of the property was not restrained, limited or confined. These are the meanings courts have given to the word “restricted”. Dart v. City of Gulfport, 147 Miss. 534, 113 So. 441 (1927) ; Forest Land Co. v. Black, S.C., 57 S.E.2d 420 (1950). We do not construe the language in Clause 11 to authorize American to terminate the lease under the facts in this case.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY, OSBORNE and PAL-MORE, JJ., concur.


text:
    Bertie Clay SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.
    As Modified on Denial of Rehearing March 15, 1968.

      Donald D. Harkins, Begley & Harkins, Danville, for appellant.
    Robert Matthews, Atty. Gen., Howard E. Trent, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

As a result of an accident in which an automobile struck and killed a highway workman, appellant Bertie Clay Smith was convicted of involuntary manslaughter, second degree, KRS 435.022(2), and of failure to stop and render aid, KRS 189.580, 189.990(1). A judgment was entered imposing a sentence of 12 months in jail and a fine of $2,500 on the first charge, and a sentence of six months in jail and a fine of $1,000 on the second charge. Bertie Clay undertook to appeal as a matter of right from that judgment.

The Commonwealth has moved to dismiss the appeal as to the six months’ sentence and $1,000 fine on the hit-and-run charge, on the theory that under KRS 21.-140(2) a motion for appeal was required in order to obtain appellate review of that part of the judgment. We are overruling the motion because we think that under a proper interpretation of KRS 21.140(1) an entire criminal judgment is appealable as a matter of right by any defendant if among the punishments imposed upon him there is a sentence of confinement or imprisonment of twelve months or more. This interpretation is consistent with the underlying purpose of the statute, which is to make appealability as a matter of right depend upon the existence of a major controversy between the state and the defendant. The extent of the controversy should be' measured by the total impact of the judgment on the defendant. Cf. Creech v. Jackson, Ky., 375 S.W.2d 679, Dr. Pepper Bottling Company v. Ricks, Ky., 375 S.W.2d 299.

The issues raised on the appeal will be better understood if we first briefly state the essential facts.

A number of employees of the Department of Highways and of a highway contractor were engaged in doing some ditching and draining work along the sides of the state highway which- runs between Burgin and Shakertown (north and south). A backhoe machine was occupying the west half of the highway at the point where the work was being done. Around eight workmen were engaged in various tasks along both sides of the road. Leon Cheatham, one of the workmen, was standing on the shoulder on the east side of the road, across from and a little south of the backhoe machine. South of this place, extending over a substantial distance there were numerous signs calling attention to the project and giving warning to reduce speed. About one-half mile to the south there was a sign announcing the project, containing the words “Proceed Carefully” and “Reduce speed to 35.” A little closer to the work point there was a second sign directing a reduction of speed to 25. Finally, some 500 to 600 feet from the work point there was a third sign directing a reduction of speed to 15. The day was clear and the scene was clearly visible from the south for not less than 800 feet.

A white automobile, coming from the south, entered the work area at 40 miles per hour; it struck Cheatham (who was standing on the east shoulder) and knocked him a distance of 47 feet into a ditch, inflicting fatal injuries; and without stopping or even slowing down the automobile left the scene. A pursuit was undertaken and a white automobile being driven by Bertie Clay Smith was apprehended. She was prevailed upon to return to a place near the scene of the accident, where she was met by several state policemen. At this point, and later in Harrodsburg, she was questioned and the exterior of her automobile was examined. As a result the authorities were convinced that her car was the one that had struck Cheatham and the instant prosecution resulted.

Bertie Clay admitted that she had passed the scene of the accident but she maintained that she was in a line of cars that was moving only 15 mile per hour and she denied that her car struck anyone. However, one of the policemen testified that she admitted when first apprehended that she had passed through the work area at 40 miles per hour. Her car was observed after the accident to have a dent in the right front fender and a bent radio aerial on the right side. She said that these were the results of minor accidents that had occurred several weeks previously.

Although the issue of whether it was in fact Bertie Clay’s car that hit Cheatham was vigorously contested on the trial, there is no contention on this appeal that the evidence was not sufficient to establish that fact.

The first contention presented is that the evidence was not sufficient to establish that Bertie Clay was guilty of “reckless conduct according to the standard of conduct of a reasonable man under the circumstances” so as to sustain a conviction under KRS 435.022(2). She contends that at the most the evidence shows only ordinary negligence and not reckless conduct. It is our opinion, however, that the evidence warranted a finding of reckless conduct, which for the purposes of this statute has been defined to mean “conduct done with indifference to the rights of others, and indifference whether wrong or injury will result from the act done.” Hemphill v. Commonwealth, Ky., 379 S.W.2d 223. Summarized, there was evidence that in total disregard of three warning signs, the last one directing a reduction of speed to 15 m. p. h., and with clear vision of a congested condition on the highway, with the left side completely occupied by the backhoe and with workmen occupying various positions on or near the pavement, Bertie Clay proceeded at an unreduced speed of 40 miles per hour and struck a workman who was not on the pavement. Surely reasonable minds could consider such conduct to evince an indifference to the rights of others and to whether wrong or injury might result. We think the conduct here is comparable with that which in Stephens v. Commonwealth, Ky., 356 S.W.2d 586, was held to justify an instruction on gross negligence (this being prior to the enactment of KRS 435.022).

It is next contended that the instruction on involuntary manslaughter, second degree, was erroneous, in that it did not follow the form spelled out in Hemphill v. Commonwealth, Ky., 379 S.W.2d 223. As hereinbefore indicated, the instruction specified in Hemphill defined reckless conduct as being “conduct done with indifference to the rights of others, and indifference whether wrong or injury will result from the act done.” The instruction given in the instant case defined reckless as meaning “having little or slight regard for the safety of others, gross carelessness.” It would have been better for the court to use the Hemphill instruction; however we do not believe any prejudice could have resulted from the instruction actually given. At one time “reckless” was equated with “wanton” as a characteristic of conduct punishable as voluntary manslaughter, and gross negligence (failure to exercise slight care) was the basis for involuntary manslaughter. See Marye v. Commonwealth, Ky., 240 S.W.2d 852. As a result of the statute, KRS 435.022, “reckless” has been classified as less offensive than “wanton”. See Lambert v. Commonwealth, Ky., 377 S.W.2d 76. Whether the demoted “reckless conduct” is the same as gross negligence is a question we are not required here to decide. We think it is enough to say that a jury would not be expected to make much distinction between “failure to exercise slight care,” or “having little or slight regard for the safety of others,” and “indifference to the rights of others, and indifference whether wrong or injury will result from the act done.”

A third contention is that it is grossly unfair, even of the proportions of a denial of due process, for the law to permit a conviction of the lesser degree of crime, involuntary manslaughter, second degree, under an indictment charging involuntary manslaughter, first degree. The simple answer to this is that as far as the record shows, the indictment charged both degrees.

The next argument is that the instruction on the charge of failing to stop' and render aid was erroneous in failing to require the jury to believe that the-defendant knew she had struck and injured someone. The instruction given did require the jury to find that the defendant did “willfully and unlawfully fail to stop and ascertain the extent of injury and make her identity known and render assistance.” In our opinion this instruction, in coupling; together the factors of stopping, ascertaining the extent of the injury, making known, her identity, and rendering assistance,, necessarily required a belief that the defendant knew there was someone with an extent of injury to be ascertained, to whom her identity should be made known, and to whom should be rendered assistance.

Another contention is that the court erred in admitting in evidence photographs of the warning signs containing directions for speed reductions. It is argued that this evidence might have led the jury to believe that the signs established official speed limits the violation of which was negligence per se, whereas under KRS 189.390(3) a limit lower than the regular open highway limit of 60 m. p. h. can be established only by official order of the Commissioner of Highways. We are not persuaded that any prejudice could have resulted from the evidence. The issue in this case, as clearly stated in the instructions, was one of reckless conduct. If the jury believed, as apparently it did, that the defendant drove through the congested work area at 40 miles per hour, ignoring the visible conditions at the scene and ignoring the multiple warning signs, it surely could have made no difference in their minds whether or not the warning signs established official speed limits. We think that evidence as to the signs was admissible as .bearing on the question of the existence •of warnings of the amount of caution •necessary to safely negotiate the work area, :and that it was unnecessary under the •circumstances to admonish the jury (as 'the defendant requested) that the signs did not fix an official speed limit.

Next, it is argued that the court erred in allowing the introduction in evidence of photographs showing a state trooper holding the victim’s trousers in a vertical position against the right front fender <of the appellant’s car. The purpose of the •evidence was to illustrate that a spot of ■white paint found on the seat of the trousers -would have been at the same height from the ground, when the trousers were being worn by a man, as the dent in the fender, thus tending to show that it was in fact the appellant’s car that struck the victim. We think it was error to admit these posed photographs. See Nunnelley’s Adm’r v. Muth, 195 Ky. 352, 242 S.W. 622, 27 A.L.R. 910. However, we do not believe that the evidence could have been prejudicial. There was ample evidence that it was the appellant’s car that struck the workman. There was testimony that white paint was found on the trousers and that laboratory tests showed it to be of the same kind as on the appellant’s automobile; and that the dent in the fender showed lines indicative of contact with corduroy trousers (such as were the victim’s). The photographs were mildly cumulative and surely not of dis-positive weight.

Another claim of error relates to the admission in evidence of a particle of fabric removed from a crack on the right front fender of appellant’s car and later identified as being of the same material as the victim’s jacket (again the purpose of the evidence was to prove that it. was appellant’s car that struck the victim). The particle was found by police officers who made a close inspection of the fender while the appellant was being questioned at the courthouse in Harrodsburg. The appellant claims that the particle was obtained in an illegal search; that although she did not voice an objection to the inspection of the car she at the time was in effect in police custody and she had not been advised of her right to counsel or of her right to insist upon a search warrant. The police officers testified that she was not under arrest, that they had informed her of her right to counsel, and that she freely consented to the inspection of her car.

We find it unnecessary to consider the question of consent or lack of consent because in our opinion there was no “search” or at least no unreasonable search within the meaning of the Fourth Amendment to the Federal Constitution and Section 10 of the Kentucky Constitution. See Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730. As pointed out by the Supreme Court in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, the principal object of the Fourth Amendment is the protection of privacy rather than property. Here, there was no invasion of privacy in the inspection of the exterior of the appellant’s automobile.

Another contention is that the trial court erred in denying appellant’s motion that a test and demonstration be made on the highways north of the scene of the accident to show the incredibility of the testimony of one of the Commonwealth’s witnesses concerning his having kept the appellant’s automobile in sight during his pursuit of it after the accident. Appellant cites no authority. It appears from our own limited research that demonstrations or experiments may under certain conditions and circumstances be conducted outside the courtroom, in the sound discretion of the trial court. See 29 Am.Jur., Evidence, Secs. 818, 819, pp. 908 to 910. We would think that their use should be restricted to situations in which the desired facts cannot reasonably be established by ordinary evidence; otherwise there could be a serious impairment of orderly progress of a trial. In the instant case the credibility of the testimony could have been attacked by testimony of other witnesses as to the conditions of visibility in the area in question. Furthermore, it would have been extremely difficult to reconstruct the same conditions so as to make a fair test or demonstration. It is our opinion that the trial court did not err in overruling the motion.

As a final contention the appellant claims that the jury may have been prejudiced as a result of insincere weeping in the courtroom by the victim’s widow. The point is not properly raised because no objection was made on the trial or in the original motion and grounds for a new trial. The alleged insincerity is attributed to the fact that the widow was keeping company at the time of the trial with a man whom she married shortly after the trial, which fact was not discovered by the appellant until after the filing of the original motion and grounds for a new trial. Whether the late discovery could excuse the lateness of the objection we need not decide because, first, the widow might genuinely have suffered grief upon being reminded of the circumstances of death of her late husband even though she was contemplating another marriage; and, second, we do not see how any practical way can be devised to measure the impropriety of emotional outbursts in a courtroom on the basis of sincerity or lack of it.

The judgment is affirmed.

All concur except OSBORNE, J., who did not sit.


author: MONTGOMERY, Judge.

text:
    Donnie E. LOWRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.

      Robert L. Gullette, Nicholasville, for appellant.
    Robert Matthews, Atty. Gen., James H. Barr, Asst. Atty. Gen., Frankfort, for appel-lee.
   MONTGOMERY, Judge.

Donnie E. Lowry appeals from a judgment of conviction of grand larceny. He was sentenced to serve one year in the penitentiary. The question involved on the appeal is whether the circuit court had jurisdiction to try the appellant on an indictment made after he became eighteen years of age, when he was under that age at the time of the offense and no proceeding had been commenced in the juvenile session of the county court prior to his becoming eighteen years of age.

The appellant is charged with stealing $100 from a service station on January 16, 1967. At that time-appellant was approximately seventeen years and ten months old. On March 13, 1967, five days before he became eighteen years of age, he was indicted. On March 31, 1967, that indictment was dismissed. The matter was again referred to the grand jury. On June 24, 1967, appellant was reindicted, a second motion to dismiss was overruled, and he was tried and convicted.

The pertinent portion of the statute, KRS 208.020 (1) (a), follows:

“(1) The juvenile session of the county court of each county shall have exclusive jurisdiction in proceedings concerning any child, living, or found, within the county and has not reached his eighteenth birthday:
(a) Who has committed a public offense, * * *.”

Appellant relies on cases decided under Carroll’s Kentucky Statutes, Section 331e, 1915 Edition, later incorporated in KRS 199.020 and 199.080, the pertinent part of which provided:

“(2) The county court of the several counties of this State shall have exclusive jurisdiction in all cases coming within the terms and provisions of this act.”

In Mattingly v. Commonwealth, 171 Ky. 222, 188 S.W. 370, this provision was construed to mean that the juvenile court had exclusive jurisdiction over an adult who had committed an offense while still a minor.

In 1952 the juvenile court jurisdiction provision was changed to read as follows:

“Any person who is alleged to have violated or attempted to violate any federal or state law, or municipal ordinance, prior to having reached his eighteenth birthday shall, if proceedings concerning him are instituted prior to his twentieth birthday, be dealt with as provided in KRS 208.010 to 208.590 for a child.” Kentucky Acts, 1952, Chapter 161, Section 2.

This “twentieth birthday” provision was repealed in 1956, and the statute was re-enacted substantially in its present form. Kentucky Acts, 1956, Chapter 157, Sections 22 and 23. It should be noted that prior to 1952, a juvenile court had exclusive jurisdiction over any person, regardless of age, who had committed, an offense before reaching the age of eighteen years. By the chan'ge in the statute, the exclusive juvenile court jurisdiction was limited to “proceedings * * * instituted prior to his twentieth birthday.” This limitation was later omitted.

The present statute, in effect, says that the juvenile court shall have exclusive jurisdiction in proceedings concerning any child who has not reached his eighteenth birthday. It is silent concerning a person who has reached the age of eighteen years before any proceedings are instituted. This is indicative of a legislative intent to restrict proceedings in the juvenile court to persons who are proceeded against therein before becoming eighteen years of age. The exception in KRS 208.020(1) (a), which provides that a child sixteen years of age or older who commits a moving motor vehicle offense shall not be tried in juvenile court but shall be tried as any adult offender, is a further indication of a legislative intent to limit the exclusive jurisdiction of the juvenile court.

In Smith v. Commonwealth, Ky., 412 S.W.2d 256, it was recognized that since 1911, juvenile court proceedings are directed toward the rehabilitation of the juvenile and are not considered as criminal proceedings. The history of such legislation indicates such a purpose. The recent changes in the statutes defining the jurisdiction of the juvenile court confirm this conclusion. The trend in our statutes has been to restrict jurisdiction so far as criminal matters are involved.

The conclusion is thus reached that under the language of KRS 208.020, the juvenile court has exclusive jurisdiction only when the proceedings are instituted against a child who has not reached his eighteenth birthday. The indictment here was made after appellant’s eighteenth birthday. As was pointed out by the trial court, it would be rather ridiculous to return a sixty-year-old man to the juvenile court because his crime had been committed before he had reached eighteen years of age, especially in view of the fact that the juvenile court’s power to impose or maintain correctional treatment ends when the juvenile becomes twenty-one. KRS 208.200(1) (c). Our conclusion is in harmony with the majority rule that the age of the offender at the time the proceedings are instituted should control the jurisdiction of the juvenile court. See Annotation, 89 A.L.R.2d 506. The trial court correctly so held.

Judgment affirmed.

All concur.


author: PALMORE, Judge.

text:
    J. B. GATLIFF, Sr., et al., Appellants, v. E. F. WHITE, Appellee.
    Court of Appeals of Kentucky.
    March 1, 1968.

      T. E. Mahan, Williamsburg, for appellants.
    W. M. Cox, Jr., Williamsburg, for ap-pellee.
   PALMORE, Judge.

The heirs of Mrs. Florida E. Gatliff brought this suit against E. F. White (who died during the pendency of the action) for allegedly cutting and removing timber from their property in Whitley County. It is basically a boundary dispute. The trial court made findings of fact and reached conclusions of law favorable to the defendant, and the Gatliffs appeal from the resulting judgment. A review of the evidence convinces us that the chancellor’s finding with respect to the correct location of the boundary is clearly erroneous and must be set aside.

White acquired his title from the heirs of Clell Veach. In 1921 a similar action (wrongful cutting and removal of timber) brought by Mrs. Gatliff against Clell Veach ended in an agreed judgment establishing the Gatliff boundaries as follows (we have numbered the calls and italicized certain portions of the description for the purpose of easy reference in the course of the opinion) :

Beginning on a white oak and two beeches standing in Pack’s Branch, a corner of a survey made in the name of Amos Veach;
1. thence with the line of said survey on the reverse call N 74)4 W ¾4 poles to a stake on a line of the Isaac Anderson survey;
2. and with said survey N 21 E 26 poles to a white oak,
3. N 48 E 36 poles to a white oak,
4. S S3 E 22 poles to a maple,
5. S 65 E 16 poles to a gum,
6. N 12 poles to a stake in the Riley Hamblin survey;
7. and with said survey on the reverse S 77 E 27 poles to two chestnuts;
8. thence S 8 W 60 poles to a maple and two chestnuts in the Pack Gap;
9. S 34 W 5 poles to a black gum, a corner of the John Veach deed:
10. thence with a conditional line between G. M. Veach and General Powers S 79 W 7 poles to a chestnut oak;
11. thence S 15 W 8 poles to a gum;
12. thence S 41 W 12 poles to a chestnut oak;
13. thence S 80 W 9 poles to two sour-woods and chestnuts in a line of Amos Veach survey;
14. and with same on the reverse N 7)4 W 36 poles to the beginning, containing 28)4 acres, more or less.

It is conceded that this 1921 judgment is binding on all parties and must prevail. However, the description will not close, and the surveyors employed by the respective parties in the present lawsuit differ as to where the mistake was. The Gatliff surveyors say it was in the last call (No. 14), which, in order to conform to the Amos Veach survey, must run N 49 W 66 poles rather than N 7)4 W 36 poles. The White surveyors contend it was in call No. 8, which they change from S 8 W to S 48 W 60 poles, but in so doing get a line that actually measures 68 poles instead of 60 poles and does not fit with the Riley Hamblin patent. They also find the oak and beeches, which are given as the beginning point in the 1921 judgment, at a place that is not and cannot be a corner of the Amos Veach patent; this follows frcim the fact that the call for N 7)4 W 36 poles (No. 14) does not run with any line of the Amos Veach patent.

A fact-finder's choice between conflicting opinions of expert witnesses rarely can be held “clearly erroneous.” Nevertheless, if an expert opinion is based upon erroneous facts or assumptions, or fails to take into account indispensable factors that are otherwise established, it lacks probative value. In this case the Gatliff surveyors filed copies of the adjacent patents called for in the 1921 judgment, established the beginning point at a corner of the Amos Veach patent, surveyed the lines from that point, platted in the bordering patent lines, and found everything in place except for the last call (No. 14). They figured this call to be erroneous for at least two reasons. First, though it (a) started at a point in the Amos Veach line, and (b) was to run “with the same on the reverse,” and (c) ended at the beginning point, which also is a corner of the Amos Veach survey, the course N 7½ W did not follow the Amos Veach boundary (and, in fact, it would not intersect any line of the Veach survey even if extended) and, secondly, the distance of 36 poles would not reach the beginning point. They therefore conformed this line to the Amos Veach survey so as to run “with same on the reverse * * * to the beginning,” making it N 49 W 66 poles. In the absence of something to show that the error is elsewhere, this is the orthodox procedure. Cf. Martt v. McBrayer, 292 Ky. 479, 166 S.W.2d 823, 825 (1942); Watlington v. Kasey, 293 Ky. 382, 168 S.W.2d 988, 990 (1943).

Otherwise, the survey and plat executed by the Gatliff surveyors deviates from the 1921 judgment in only two insubstantial details. On call No. 7 it runs S 77 E 27 poles instead of S 80 E 27 poles, conforming to the Riley Hamblin survey, which calls for a course of N 80 W; and on call No. 8 it runs S 8 W 60 poles instead of S 7 W 60 poles, again conforming to the Riley Hamblin survey, which calls for a course of “N 7 E with said ridge 60 poles to two chestnuts.”

The White surveyors obtained a different result by starting from Pack’s Gap with call No. 9 and then adjusting call No. 8 to close (except, as above mentioned, the distance of 60 poles comes up short). They treated the course and distance given in the last call (No. 14) of the 1921 judgment as correct. This can be done, of course, only by eliminating the reference to “with same on the reverse” and only by disregarding the fact that the oak and two beeches to which this line runs are supposed (by the 1921 judgment) to be at a corner of the Amos Veach survey.

There can be no doubt, and indeed it is not disputed, that Pack’s Gap (a natural cut or gap in the ridge) is the one most indestructible and readily identifiable landmark mentioned in the 1921 judgment, and that is the reason the White surveyors chose it as their starting point. It must be recognized, however, that the Gatliff surveyors, beginning at a point which they establish as being the same as the beginning point called for in the 1921 judgment, also hit Pack’s Gap on the nose. The essential difference between the two approaches, which difference we regard as vital, is that the Gatliff surveyors conformed their survey to the adjoining patents (as the 1921 judgment requires), whereas the White surveyors expressly and steadfastly chose to disregard them. Their explanation was that the 1921 judgment controls, patents or no patents. That, however, is only half right. The judgment controls, but the judgment is anchored to the patents as well as Pack’s Gap, and it cannot be construed without both.

The importance of the adjacent patents in arriving at the correct boundaries of the Gatliff property arises from the nature of the Alfred L. Clapp patent, from which the Gatliff title devolves. This patent, issued in 1874, was a blanket or “wildcat” patent, covering everything not already owned by someone else in a territory of 48,040 acres. Hence the property to which it passed title from the Commonwealth must be identified by a process of elimination. In other words, it is necessarily described in terms of and by reference to the conflicting boundaries of superior titles. Yet the testimony of War-man and Wright, the surveyors introduced for White, is replete with such exchanges as the following:

WARMAN:
Q— “Why did you not run all the calls of the judgment?”
A— “It didn’t concern us. I realized that it all hinged around Pack’s Gap, a corner that couldn’t be denied. The old residenters pointed that out as a landmark.”
Q— “Why didn’t you run that line?” [That is, a line of the Riley Hamblin patent running from "a maple and chestnut on top of a ridge * * * N 7 E with said ridge 60 poles to two chestnuts,” which are the same two chestnuts mentioned in call No. 7 of the 1921 judgment,]
A— “Because it doesn’t correspond to the judgment. I didn’t run that line because it doesn’t say that on the judgment.” [Note, however, that the judgment does identify the two chestnuts as being in the Hamblin line, and then follows with call No. 8 running “S 8 W 60 poles to a maple and two chestnuts in Pack Gap,” which obviously is the same line mentioned in the Hamblin patent.']
Q— “Do you not admit that this line from 8 to 9 [call No. S] on the degree that you ran it from Pack’s Gap followed the top of the ridge?”
A— “No, we went across a hollow and then across the ridge.”
Q— “Then you didn’t follow the ridge as directed by the judgment?”
A— “I don’t think the judgment said anything about the top of the ridge. [True, it did not in so many words, but call No. 8 actually coincides with the same line of the Hamblin patent, which does call for the ridge.] As far as I’m concerned the judgment supersedes all deeds and all patents and all future claims. I went in there with that in my mind and so far as I’m concerned that patent is out and gone and I think the patents are no count as far as , that judgment is concerned.”
Q— “Now, did you do any surveying, or did you just take what the told-timers told you?”
A— “I surveyed two or three lines in each one of them. I wasn’t interested in the patents. I didn’t believe they were any good.”
Q— “You admit you don’t know where the Veach line is?”
A— “I think I do. I think I’ve done enough work to know where they’re all at. I know where nine of them patents is . .
So, far as that’s concerned, I’m just relying on the judgment because I think it supersedes all other surveys and patents. The judgment’s it so far as I’m concerned.”
Q— “You haven’t run any one of these surveys, not a single one.”
A— “Not all out, no sir, but I know where the judgment is and that’s all I’m concerned about is the judgment.”
Q— “And you agree that this patent [Hamblin] calls for the top of the ridge?”
A— “Yes, but I’m not interested in the patent.”
Q— “And you admit that the call in the judgment is, outside the variance of one degree, is the same call of South 8 W 60 poles as in the patent ?”
A— “They may be in degrees.”
Q— “Degrees and distances?”
A— “Oh, yes.”
Q— “What if you had started at Pack’s Gap and reversed your calls? Which line would you have had to change to close then?”
A— “Then I would have had to change one on the south.”
[Emphasis added.]
Q— “Even though the judgment specifically called to and with the Riley Hamblin survey and the Amos Veach survey and the Isaac Anderson survey and the John Sears survey, you threw them all away?”
A — “Yes, I think the judgment holds over all other judgments, patents and deeds.”
Q— “Doesn’t it say after the call South 80 West 9 poles to two sourwoods and a chestnut, in the line of the Amos Veach survey, and with the same on the reverse, North 7½ W?”
A— “I never found the Amos Veach patent.”
Q— “You never saw the Amos Veach patent?”
A— “No, but I can run a deed as good as you can or anyone else.”
WRIGHT:
Q— “All right, you knew that the judgment called for the beginning at a white oak and beech standing in Packs Branch, the corner of a survey made in the name of Amos Veach. Did you undertake to locate the line that is called for in the survey indicated in the Amos Veach patent?”
A— “No, I didn’t know anything about the patent. The judgment is the only thing I was relying on.”
Q— “Well, you say you didn’t locate the Veach patent, so you don’t know where that is. And you didn’t locate the Isaac Anderson patent.”
A— “That’s beyond the judgment and the judgment is what I was relying on.”
Q— “Then you don’t know that you started in the Amos Veach survey as called for, or that you went to the Isaac Anderson survey as called for, do you ?”
A — - “I didn’t go into that part of it.”
Q— “You don’t know if you got back to the Riley Hamblin patent, do you?”
A— “No.”
Q— “And you don’t know that when you came back here in the south end that you again intersected with the Veach patent? And you don’t even know that you got back to the Veach patent line when you extended that line to Packs Gap, do you?”
A— “I followed the metes and bounds of the judgment. I haven’t gone into detail about it.”
Q— “If you followed the judgment, you wouldn’t get back to Packs Gap at all, the way you surveyed it. When you changed that line from 8 to 9, if you had followed up that line you never would have got back to Packs Gap and you would never get back to the beginning corner if you stayed with the judgment, would you?”
A— “That’s right.”
Q— “And you would have missed that 40 degrees and 10 poles, wouldn’t you?”
A— “Yes.”
Q— “You don’t know if this watershed is on Mulberry Creek or not?”
A— “No, I wasn’t up there.”
Q— “And even though this calls for a ridge, you threw that away?”
A— “I don’t know anything about the lay of the ground.”
Q— “Assume that there is a ridge between 8 and 9, would you have felt justified in changing that course and distance 40 degrees and 10 poles to get back to the beginning?”
A— “If it said follow the ridge, no.”
Q— “You didn’t know what the call was of the Veach line that you were supposed to be following?”
Q— No, I don’t know anything about the Veach line.”
Q— “If you had known that it was north 74½ W 9½, that isn’t what you ran, is it?”
A— “No, I didn’t run that line.”
Q— “If you stayed on the Veach line?”
A— “I don’t go along with the patent call.”
Q— “The judgment is what calls for the Veach line specifically.”
A— “I don’t know but what the Veach line run like that. I don’t know anything about the patent.”
Q— “You wouldn’t argue with an engineer who has established this patent and marked it on this map, would you ?”
A — “No, I didn’t go into the patent.”

It is crystal clear from the evidence of Warman and Wright that they chose call No. 8 as the one that was in error, and thus to be corrected, simply because, with Pack’s Gap as their starting point, it became the last call, even though this result threw the entire description out of kilter with the adjoining patents mentioned in the 1921 judgment. On the other hand, in choosing the last call of the 1921 judgment as the one to be corrected the Gatliff surveyors had a logical basis in the fact that it called for the line of the Veach survey. Moreover, call No. 8, their easterly boundary, matches the Hamblin survey, which runs along the ridge, a natural dividing line, the same ridge on which they find Pack’s Gap, whereas Warman and Wright admit that their survey runs to a point east and beyond the ridge, in the Mulberry Creek watershed, so that the line from that point back to Pack’s Gap does not follow the crest of a ridge, but “goes up the side of a ridge, sort of a saddle,” or “across a hollow and then across the ridge.”

The White witnesses produced photographs of a beech and fallen white oak in the vicinity of where call No. 14 would end near the head of Pack’s Branch if it is run N 71/2 W 36 poles from the point described in the 1921 judgment as two sourwoods and chestnuts in a line of the Amos Veach survey. The beech shows signs of hack marks. John Veach, a son of Clell Veach, said he participated in establishing this point at the time of the 1921 judgment, not long after he had come back from the army, that the hack marks had existed since he was a boy, and that he had known of this corner for about 50 years. However, his testimony is clouded by the fact that when this controversy arose, and at the time he testified, he was physically unable to go on the ground and identify it and had not been there for at least four years. Moreover, he admitted that he had not followed the other lines called for in the judgment and did not know where they were. For several reasons, this beech and fallen oak could not have been the same ones mentioned in the judgment, because they are not in the line of the Amos Veach patent. Moreover, the Veach survey was made in 1845, and trees that were large enough at that time to be marked as a corner would now be giants or else down and gone. The inference most favorable to the White claim would be that the hack marks were made in 1921, but John Veach says in effect that they were there prior to the 1921 settlement, and in the absence of an explanation as to why they are not in the Amos Veach line, as called for by the 1921 judgment, and why the rest of the description does not fit with the patent lines referred to in the judgment, this evidence simply does not have enough probative value to support the position taken by the White surveyors against the overwhelming logic of the case presented by the Gatliff surveyors.

One other detail bears mention. Appellee contends that the Gatliff surveyors admit their boundary contains 44 acres, whereas the 1921 judgment calls for 28½ acres. In both their exhibits and testimony the Gatliff surveyors estimate the area as 33.75 acres. The record is silent as to how the acreage was ascertained in 1921. Under the circumstances we cannot ascribe much significance to this discrepancy in estimated acreage.

It is our opinion that the evidence produced by the Gatliffs was so clear and convincing as to require a judgment in their favor unless refuted by substantial evidence to the contrary, and that the evidence to the contrary was not sufficient to deny it.

The cause is reversed and remanded with directions that a judgment be entered awarding appellants the amount of their damages.

All concur.

      . “ * * * I know where the corner was and where it was run from when I was a boy 16 or so * * *. Gatliff contradicted it, but it was a corner we could indicate.” When John Veach gave his testimony in 1962 he was 65 years old.