author: HOUSER, Commissioner. PER CURIAM.

text:
    Leonard TERRY, Respondent, v. BOSS HOTELS, INC., a Corporation, Appellant.
    No. 50038.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Eeb. 10, 1964.

      Hendren & Andrae, by John E. Burruss, Jr., and Kenneth W. Shrum, Jefferson City, for appellant.
    Bond & Dominique, John O. Bond, P. Pierre Dominique, William A. Jolley, Jefferson City, for respondent.
   HOUSER, Commissioner.

Action for $40,000 damages for personal injuries brought by Leonard Terry against Boss Hotels, Inc., owner and operator of Missouri Hotel in Jefferson City. There was a jury verdict for defendant. A new trial was granted for error in giving Instruction No. D-4. Defendant has appealed.

Plaintiff, a member of the Optimist Club, attended a dance given by the club in the ballroom of the hotel. The club hired an orchestra and paid the hotel a rental charge for the use of the ballroom. Defendant provided waiters to serve club members and their guests. A hotel employee, who had standing instructions with reference to the preparation of the ballroom floor for dancing, sprinkled Johnson’s powdered dance wax out of a shaker. The floor was hard, nonporous terrazzo, polished to a fine glaze. Too much wax was applied to the floor, as a result of which the floor (as described by various witnesses) was unusually, awfully, exceptionally, extremely, slick and slippery. It was “overslick” — “definitely too slick foi comfort” — ’“entirely too slippery to dance.” People were having a difficult time dancing ; “having a hard time standing up” because of the floor; were complaining about it being too slick. Several people slipped and fell and were seen picking themselves up off the floor. The slippery condition of the floor became the general topic of conversation. Four people fell during the first two or three pieces the orchestra played. Complaint was made to the hotel manager, who was warned that somebody was going to get hurt. After the third dance the manager ordered the floor swept with push brooms, after which wax was piled up around the edges of the dance floor. Later there were complaints that the floor was still too slippery. The manager then had the floor mopped with damp mops. The floor was still too slick, so it was damp-mopped a second time. Approximately ten persons fell on the dance floor between the time the dance started at 9 p. m. and the second damp-mopping. Plaintiff fell and sustained injuries to his left knee and ankle during the fourth dance, after the sweeping of the floor but before the first damp-mopping.

Plaintiff testified that the floor was slick “to start with” and that during the second dance he had some difficulty. Plaintiff knew the floor was slick; saw several people picking themselves up off the floor prior to his fall; noticed spots “so bad” he “tried to dance around certain areas” where there was “a lot of wax”; testified that there was “danger of falling * * * after the way they had that wax bunched up” ; that “everybody was sliding and slipping.” He testified by deposition that he could tell there was danger of falling from the way the other people “were reacting,” from the way his own feet “were slipping,” and the way his dancing partner was slipping. Plaintiff testified that there were “gobs” or “puddles” of wax located along the edge of the floor, next to the tables. When they swept up the wax plaintiff assumed they helped the condition; assumed that they had taken off most of the wax, but as plaintiff and the lady with whom he danced the fourth dance “started up” he knew there was “too much wax on there.” Plaintiff and his partner talked about the condition of the floor, and when they found out there was too much wax; that it “wasn’t fit to dance”; that it was “too slick to dance”; that “there was still danger of falling,” they decided they would quit dancing and go sit down. According to his dancing partner they were still dancing at the time they slipped and fell; they were on their way back to the table, but still dancing. Another witness for plaintiff saw plaintiff fall. Asked where he fell she testified plaintiff “was dancing on that side by those tables.” A witness for defendant testified unequivocally that plaintiff was dancing at the time he fell. At the trial plaintiff testified that they had stopped dancing and were walking at the time they fell, but also testified that after his dancing partner said “It is slippery. We better sit down,” he agréed with her and thát they started to dance back towards the table and were about fifteen feet away from their table when they fell. He testified “We turned around to dance toward the tables. Mrs. Rusk slipped and I was trying to hold onto her, at the same time I slid underneath her, and she fell on top of me.” Further: “I didn’t want to take any chances, so I tried to maneuver Mrs. Rusk back to the tables through this wax, so we could avoid stepping in it or dancing in it * * * [g]uid-ing her off the dance floor * * *.”

“Q. How did you get over there [to the side of the tables], sir? A. We danced up that far.

“Q. You danced over there, sir? A. That’s right. We started out right where we were sitting, danced over in front of the band, right straight across the floor, going south, danced about halfway across from our tables — I would say fifteen or twenty feet from where we sat down, turned around and headed back for it. That is where the accident happened.

“Q. Then you decided it was too slick for you to dance, you started dancing back over toward your table, is that right, sir? A. Danced over to the side.

“Q. Over to that side of the room, is that right, sir? A. That’s right.

“Q. Then you were dancing after you had decided it was too slick ? A. Well, we had to dance to find out, that is why we decided to sit down, when we tried a few steps and found it too slick, and headed back for the table. * * * We wanted to get out of the immediate dance floor area, so we danced over to the side, over toward the wall, right close to the entrance. * * *

“Q. In other words, Mr. Terry, when you decided that it was too slick to dance any longer, you danced in a northerly direction over toward the north wall of the ballroom; is that right? A. Right.”

In his deposition plaintiff testified “That’s right” in answer to the question “You were on your way back, dancing to the table, when you had your accident, is that right ?”

Instruction No. D-4, for the giving of which a new trial was granted, follows:

“The Court instructs the jury that under the law plaintiff, Leonard Terry, was required to exercise ordinary care for his own safety while attending and participating in the dance sponsored by the Jefferson City Optimist Club on December 9, 1960, at the Missouri Hotel.

“Therefore, if you find and believe from the evidence that plaintiff, Leonard Terry, knew or should have known that the floor of the ballroom of said hotel was slippery and that there was danger of falling while dancing thereon, if you so find; and that thereafter plaintiff, Leonard Terry, danced and continued to dance on said ballroom floor, if you so find; and that in so doing plaintiff, Leonard Terry, failed to exercise ordinary care for his own safety and that such failure, if any, directly caused or contributed to cause his injuries, if any, then, your verdict must be in favor of the defendant and against the plaintiff, and this is true even though you find and believe from the evidence that the defendant was guilty of negligence.”

Plaintiff attacks D-4 on three grounds.

First, it is objected that instead of directing a verdict for defendant if plaintiff knew or should have known that the ballroom floor was slippery and there was danger of falling while dancing thereon D-4 should have required a finding that plaintiff knew or by the exercise of ordinary care should have known that there were excessive collections of wax upon the floor, so as to cause the floor to he dangerous and unsafe for dancing; that D — 4 is confusing because the jury might have found the floor somewhat slippery but not slippery enough for persons using ordinary care to refuse to use the floor. This objection is not well taken. The finding required by D-4 is tantamount to the substitute finding suggested by plaintiff. The words “and that there was danger of falling while dancing thereon, if you so find,” save it from criticism that it was confusing on the ground assigned.

Next, it is objected that D-4 places an absolute duty on plaintiff to discover that the floor was slippery, by directing a verdict based on a finding that plaintiff “should have known” of the slipperiness and danger, whereas plaintiff was only obligated to use ordinary care to discover that the floor had excessive amounts of wax applied to it in time to have avoided the accident. Plaintiff testified positively that the floor was slick from the start; that he saw several people picking themselves up off the floor prior to his fall; that he saw accumulations of wax and knew there was danger of falling “after the way they had that wax bunched up.” This is a concession of actual, personal knowledge of the fact that there were excessive accumulations of wax on the floor and that the floor was dangerous for dancing. In this situation the submission of constructive knowledge, in whatever form, is not essentially important for it is obvious that no jury would have considered whether plaintiff could, should or in the exercise of ordinary care would have discovered the condition, where plaintiff himself conceded that he did make the discovery and did appreciate the danger. If the inclusion of the language objected to may be said to have constituted error it was harmless. See Gould v. Chicago, B. & Q. R. Co., 315 Mo. 713, 290 S.W. 135, Keynote 4, pp. 138, 139.

Plaintiff objects, however, that his positive testimony as to knowledge of the accumulations of wax and of the danger related to the situation which existed before the wax was swept off the floor; that when the wax was swept off the floor he assumed and had every right to assume that the floor had been made safe, and that he did not discover that excessive amounts of wax were still on the floor “until he was in the crowd,” dancing; that when he made the discovery he and his partner edged and maneuvered themselves out of the crowd and started walking to their table, and that it was only then that he fell. This ignores plaintiff’s testimony that as he “started up” the fourth dance, in the course of which he fell, he knew there was too much wax on the floor and that there was danger of falling, but nevertheless continued to dance. If we accept the premise that the sweeping of the floor constituted an assurance of safety to plaintiff and a justification for his assaying to dance on the ballroom floor, plaintiff is yet confronted with the fact that the first paragraph of D-4 and the words following the second semi-colon of the second paragraph make it clear that the jury was properly instructed as to the duty of care plaintiff was obliged to exercise. In the first paragraph the jury was told that plaintiff was required to exercise ordinary care for his own safety while attending and participating in the dance, which would include his movements after the sweeping up of the wax as well as before. Again, following the second semi-colon of the second paragraph the jury was instructed as to the result if plaintiff failed to exercise ordinary care for his own safety “in so doing” (i. e., in continuing to dance with knowledge of the condition and danger). A jury of ordinarily intelligent laymen, considering the instruction as a whole, Knox v. Weathers, 363 Mo. 1167, 257 S.W.2d 912, 916; Pohl v. Kansas City, Mo.Sup., 238 S.W.2d 405, 406, would not conclude from it that plaintiff was under an absolute duty to know of the condition and danger. Furthermore, plaintiff’s main verdict-directing Instruction No. P-1 required a finding that at the time plaintiff fell he was using ordinary care for his oivn safety. Instruction No. D-8 directed a verdict for defendant if plaintiff assumed the risk, even though the jury should find that defendant was negligent as set out in other instructions, and that plaintiff was exercising ordinary care for his own safety at the time and place in question. Instruction No. D-2 defined the words “ordinary care.” When all of the instructions were read together and as an entirety, as it was the duty of the jury to do, there was no danger of prejudice to plaintiff in the manner suggested. An ordinarily intelligent jury would understand that the law of this case imposed upon plaintiff no greater duty than that of ordinary care. Warren v. Kansas City, Mo.Sup., 258 S.W.2d 681; Elmore v. Kansas City, Mo.App., 333 S.W.2d 795.

Lastly, it is objected that D-4 erroneously assumes it was negligent for plaintiff to dance on the slippery floor, instead of requiring the jury to find that this was negligence. A reading of the instruction demonstrates the contrary. The words “and that in so doing [continuing to dance with knowledge of the slipperiness of the floor and of the danger of falling] plaintiff, Leonard Terry, failed to exercise ordinary care for his own safety * * * ” save it from this criticism.

Other errors in D-4 charged in plaintiff’s motion for new trial hut not carried forward in plaintiff’s brief and argument have been considered, as have eight cases cited in plaintiff’s brief in its attack upon the instruction. Without elaborating or unduly extending this opinion by a case-by-case analysis we hold this instruction not erroneous for any of the assigned reasons.

Plaintiff seeks affirmance of the order granting a new trial on the basis of other alleged errors. Cantwell v. Zook, Mo.Sup., 250 S.W.2d 980.

Plaintiff impugns Instruction No. D-3:

“The Court instructs the jury that if you find and believe from the credible evidence that plaintiff, Leonard Terry, was not injured as a direct and proximate result of any negligence on the part of defendant, then your verdict must be in favor of defendant and against plaintiff, Leonard Terry.”

Plaintiff contends that D-3 is general in nature; a mere statement of an abstract legal proposition; that it fails to hypothesize the specific facts required to be found to bring in a verdict for defendant, and permits the jury to find contributory negligence for any conceivable reason even though without the scope of the pleadings or evidence. Plaintiff’s case against defendant, as submitted in his verdict-directing Instruction No. P-1, was negligent application of excessive amounts of wax upon the dance floor making it unsafe and dangerous for dancing purposes at the time plaintiff fell. D-3, which negatived plaintiff’s injury and proximate causation, was a converse of P-1. In Rhinelander v. St. Louis-San Francisco Ry. Co., Mo.Sup., 257 S.W.2d 655, [2], the negligence submitted was failure to give a warning signal of the approach, proximity and movement of the locomotive to and towards the crossing. Instruction 4 directed a verdict for defendant upon a finding, inter alia, that the collision “was not caused in whole or in part by negligence on the part of defendant * * Here, as there, the instruction attacked presented defendant’s “side of the case and in the same view of the law.” “[A] plaintiff cannot complain of an instruction which only presents the defendant’s side of the case and in the same view of the law.” Woehler v. City of St. Louis, 342 Mo. 237, 114 S.W.2d 985, 987. The failure to hypothesize facts in this converse instruction was not error. Plaintiff cites several cases holding that defensive instructions must hypothesize facts, but all of them except Herr v. Ruprecht, Mo.Sup., 331 S.W.2d 642, involve sole cause instructions, in which a different rule applies. “A converse instruction by nature does not call for hypothesization of facts to show the injuries of plaintiff resulted from the fault of someone else as in a sole cause instruction.” 1 Raymond Missouri Instructions, 1963 Cumulative Pocket Part, § 40, p. 23; Happy v. Blanton, Mo.Sup., 303 S.W.2d 633; Terrell v. Missouri-Kansas-Texas R. Co., Mo.Sup., 327 S.W.2d 230; Rhinelander v. St. Louis-San Francisco Ry. Co., supra, 257 S.W.2d, 1.c. 658, [5]; Missouri Bar Continuing Legal Education Handbook, “Missouri Civil Instructions,” § 14.9 p. 214. The Herr citation relates to a hypothesis of facts in a plaintiff’s verdict-directing instruction, and has no bearing on the instant question. We find no error in D-3.

Next, plaintiff excepts to Instruction No. D-5:

“The Court instructs the jury that, in deliberating upon this case, it is your duty to decide first whether or not under all the facts and circumstances in evidence, under the instructions of the Court, plaintiff is entitled to recover against defendant. Until this question has been determined by you, you have no right to consider the amount, if any, of plaintiff’s damages.”

Plaintiff maintains that D-S denied the jury the right to consider the nature and extent of plaintiff’s injuries in determining if defendant was negligent, and invaded the province of the jury. In West v. St. Louis Pub. Serv. Co., 361 Mo. 740, 236 S.W.2d 308, [1,2], an instruction analogous in every respect to D-S was challenged on the same principal ground, and the instruction was vindicated for reasons fully applicable and which need not be parroted here.

Plaintiff seeks to impeach Instruction No. D-6:

“The Court instructs the jury that this case should be considered by the jury the same as if it were a contest between two persons of equal standing in the community. The fact that one of the parties is a corporation should not affect your minds in any way, hut the right of the parties should and must be determined upon the evidence introduced in the case and the Instructions given to the jury, which is the law, and only law to guide you in your deliberations.

“The Court further instructs the jury that, in considering what your verdict will be, neither passion, prejudice, sympathy nor the relative condition of the parties to the suit should influence you in any manner in deciding this case, for it is your sworn duty to lay aside all such feelings and be governed solely by the evidence as you have heard it in the trial and the law contained in the Instructions.”

Plaintiff contends D-6 is a comment on the evidence and misdirects the jury by requiring the jury to ignore the fact that plaintiff received serious, permanent injuries, citing Frye v. Baskin, 241 Mo.App. 319, 231 S.W.2d 630, [17], but we hold that a direction to ignore the relative condition of the parties to the suit is not a direction to ignore the fact of the injury. The Frye case, which involves the refusal of the court to give an instruction of this, general type but different in language under the quite different factual situation of' that case, is not persuasive.

Plaintiff contends that the reference in the first paragraph of D-6, to the-standing and relative condition of the parties is erroneous because defendant was a business invitor and that as such it had' superior knowledge of the condition it created; that this is a matter which the jury should have been allowed to consider but-was prohibited from considering by reason-of the foregoing reference. To instruct the-jury that the parties are of equal standing in the community and before the court and' that the jury is not to be influenced by the-relative condition of the parties is not tantamount to an instruction not to consider-the superior knowledge of the business in-vitor or its employees that dangerous, amounts of wax had been left on the floor.. We find no such relation between these-two concepts as to cause any jury to blend' and confuse them to the prejudice of the-plaintiff. The first paragraph of D-6 was approved in Feary v. Metropolitan St. Ry. Co., 162 Mo. 75, 62 S.W. 452, 458, [4], and we find no error in giving it under-these circumstances.

Plaintiff contends that the second' paragraph of D-6 suggests that only through passion or prejudice against defendant or sympathy for plaintiff could the-jury find for plaintiff, citing Eisenbarth v. Powell Bros. Truck Lines, 235 Mo.App. 442, 125 S.W.2d 899, 904. Substantially the-.same matter contained in the second paragraph of D-6 was contained in the third! paragraph of Instruction No. 5 in Lukitsch v. St. Louis Pub. Serv. Co., 362 Mo. 1071, 246 S.W.2d 749, 755, [8]. The giving of No. 5 containing that matter was upheld in that case as properly within the trial court’s discretion. In this case we rule the same way, for the same reason.

Instruction No. D-7 is the object of plaintiff’s next complaint: “The Court instructs the jury that in determining the amount of damages, if any, to which plaintiff is entitled you may not consider as an element of such damages, if any, the following items:

“1. Future medical expense.

“2. Past loss of wages.

“3. Future loss of wages.”

Plaintiff complains that D-7 erroneously told the jury plaintiff was not entitled to any compensation for future loss of wages and erroneously withdrew consideration of future medical and hospital expense. Since there was a verdict for defendant these points would not entitle plaintiff to a reversal of the judgment, even if meritorious. ■Conceding this, plaintiff suggests that “a warning is in order in case of a new ■trial,” but our ultimate ruling will not involve remand for a new trial.

Instruction No. D-8 is attacked as harmful and erroneous. D-8 is an instruction on the defense of voluntary assumption of risk, ■or “incurred risk” as it is sometimes designated. By it the jury was instructed that if plaintiff knew the floor was slippery and there was danger of falling while dancing thereon and that plaintiff thereafter voluntarily chose to continue to dance on the ■ballroom floor, plaintiff assumed whatever risk existed because of the slipperiness of the floor while dancing, and that if plaintiff -assumed the risk the verdict should be for defendant, upon a finding of causation, even though defendant was guilty of negligence and plaintiff was exercising ordinary care for his own safety at the time and place in question.

Plaintiff claims that D-8 erroneously directs the jury to find plaintiff not entitled to recover even though defendant was negligent and plaintiff was not; that when proof of negligence on the part of defendant appears the defense of assumption of risk “falls out of the case.” The rule that whenever proof of negligence appears the defense of assumption of risk disappears is a rule applicable in master and servant cases, as indicated by the cases cited by plaintiff, but that rule has no application in this case. The reason for that rule is that the servant’s assumption of risk relates only to those risks usual and incident to the employment, and that he does not assume the risks arising from the master’s negligence, a reason mot here pertinent. Assumption of risk does not always go out of the case where the issue is one of negligence and contributory negligence, as suggested. Nor is the doctrine invariably limited to cases arising out of a contractual relationship or master and servant cases. It may extend to other cases in which the defense is based upon the principle expressed by the maxim volenti non fit injuria, Fletcher v. Kemp, Mo.Sup., 327 S.W.2d 178, 182; Dietz v. Magill, Mo.App., 104 S.W.2d 707, 711, and cases cited; 65 C.J.S. Negligence § 174, p. 848, and may apply to preclude recovery in negligence cases. Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345; Dietz v. Magill, supra; 65 C.J.S. Negligence §§ 117, 174, pp. 709, 848. In the great majority of negligence cases, however, an instruction on contributory negligence is all that is needed to adequately cover the defendant’s rights. In determining whether to invoke the defense of assumption of risk a defendant in a negligence case should be discriminating and well advised that the case is one for the application of the doctrine, the rationale of which is that one who voluntarily exposes himself to a known and appreciated danger due to the negligence of another may not recover for an injury resulting from such exposure.

While the question is troublesome, we believe there was no error in submitting the issue of assumption of risk in this case and that D-8 is not “unsupported by the evidence.” There is evidence that plaintiff voluntarily exposed himself to a known and appreciated danger; that plaintiff knew there was too much wax on the floor when he commenced the fourth dance; that while dancing he and his dancing partner discussed the condition of the floor and concluded that the sweeping of the wax from the floor “didn’t do it any good”; that he knew the floor was “too slick to dance” and that there was still danger of falling, even after the sweeping of the floor; that the danger was so evident and imminent that they decided to dance over to their table and sit down, but nevertheless plaintiff continued dancing and danced until the time he fell. See Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Wagner v. Lone Star Gas Co., Tex.Civ.App., 346 S.W.2d 645. Under these circumstances plaintiff reasonably could be found to have assented to the danger, thereby relieving the defendant of any liability for his injuries. Our limited ruling is not intended to encourage the submission of instructions on assumption of risk in the average negligence case. The circumstance in which reliance on the doctrine of assumed or incurred risk will be approved are exceptional.

Plaintiff claims that D-8 is in direct conflict with P-1 in that it denies recovery even though defendant was negligent and even though plaintiff was using ordinary care, so that the jury was confused and confounded by the two instructions. P-1 authorized a verdict for plaintiff if at the time he fell he was using ordinary care for his own safety and that he fell because of the negligence of defendant in applying excessive amounts of wax upon the dance floor, making it unsafe and dangerous for dancing purposes. P-1 concluded with these words, “unless you find for the defendant, Boss Hotels, Inc., a Corporation, under Instruction No. D-8 given you herewith.” We find no inconsistency or lack of harmony between D-8 and P — 1. Dietz v. Magill, supra. The giving of D-8 did not prevent the jury from considering the negligence of defendant, under P-1, but if the jury found the facts submitted in D-8 the result would be the same as if plaintiff had consented to relieve defendant from performing the duty otherwise owing to him.

Finally, plaintiff makes the point that the court erred in refusing to permit plaintiff’s counsel to state to the jury that it did not matter whether plaintiff was dancing or walking at the time of his injury, and erred in other rulings during argument. Although this point was properly made under “Points and Authorities” in plaintiff’s brief we deem it to have been abandoned because it was not supported by the citation of authorities on the question, and was not developed or even referred to in the “Argument” portion of the brief. Lansford v. Southwest Lime Co., Mo.Sup., 266 S.W.2d 564. In spite of the fact that plaintiff, technically speaking, abandoned the point we have considered its effect if it had been properly preserved for review and fully established, and have satisfied ourselves that it would not have affected the final result.

Finding no error in the trial of this case in any manner suggested, and that plaintiff had a fair trial, the order setting aside the verdict and judgment and granting a new trial is reversed and the cause remanded with instructions to reinstate the verdict and judgment for defendant.

COIL and WELBORN, CC, concur.

PER CURIAM.

The foregoing' opinion by HOUSER, C, is adopted as the opinion of the court.

All of the Judges concur.

On Motion for Rehearing and to Transfer to Court En Banc

PER CURIAM.

Plaintiff asserts in his motion for rehearing and to transfer to the court en banc that the defense of assumption of risk has no place where primary or contributory negligence is present, citing August Viermann Bricklaying Co. v. St. Louis Contracting Co., 335 Mo. 534, 73 S.W.2d 734, decided by Division No. 2. On the ground that our present opinion conflicts with Vier-mann he urges that it be set aside or the conflict resolved by the court en banc.

It was formerly held that the defense of assumption of risk must rest upon contract and that this defense had no place where negligence, primary or contributory, was present. Under the later cases in both divisions of this court the basis of the doctrine is not contract but consent and the doctrine is not limited to master and servant cases or cases arising out of a contractual relationship. Two years after Viermann, Division No. 2 decided Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369, an invitee (not master and servant) case in which a postman received a $22,500 verdict for injuries sustained in a fall while delivering mail on a runway leading from the sidewalk to the landowner’s place of business, due to the slippery condition of the runway. Pointing out that there was no hidden peril, but an obvious danger actually known and appreciated by plaintiff, and that “whatever risk existed incident to passage over the runway was voluntarily incurred by plaintiff — volenti non fit injuria — and defendant breached no legal obligation owed plaintiff,” the court reversed the judgment as a matter of law. We regard Paubel, not Viermann, as the latest controlling decision of Division No. 2 on this subject. We are not in conflict with Paubel. In Stein v. Battenfield Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345, deceased, an independent contractor, not a servant, was killed while working on defendant’s premises. Defendant pleaded that deceased assumed the risk, and plaintiff-widow contended this plea confessed that the relation was master-servant. Division 1 of this Court said: “Furthermore in its broader application the doctrine of assumption of risk, or incurred risk, is not limited to master and servant cases, but may be applied to other relations, * * In our recent Fletcher v. Kemp, Mo.Sup., 327 S.W.2d 178, which did not involve a master-servant relationship between plaintiff and defendant, we announced this same rule, that the doctrine of assumption of risk is not confined to master and servant cases, and held that assumption of risk in that negligence case was a jury question (the defense of contributory negligence was also submitted).

Plaintiff is mistaken in urging that the doctrine of assumption of risk falls out of every case where it is shown that defendant is negligent. In many negligence cases assumption of risk may defeat a claim originating in a charge of negligence. For instance a spectator at a ball park is held to assume the risks of a necessary and ordinary incident of the game, Grimes v. American League, Mo.App., 78 S.W.2d 520, 1. c. 523; Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, 142 A.L.R. 858; a spectator following a golf tournament assumes the risks ordinarily incident to watching such a match, Thompson v. Sunset Country Club, Mo.App., 227 S.W.2d 523; a skater at a skating rink assumes the risks of falling and colliding with other skaters, Reay v. Reorganization Inv. Co., Mo.App., 224 S.W.2d 580; Schamel v. St. Louis Arena Corp., Mo.App., 324 S.W.2d 375; Humbyrd v. Spurlock, Mo.App., 345 S.W.2d 499; a patron at a circus tent assumes all the risks inherent in structures of that character, King v. Ringling, 145 Mo.App. 285, 130 S.W. 482.

The doctrine of assumption of risk was held applicable to a patron of a restaurant who fell down a stairway leading to the basement, in Dietz v. Magill, Mo.App., 104 S.W.2d 707. The court said, 1. c. 711:

“In considering the propriety of the instruction in its relation to the facts in evidence, one may at first be inclined to be confused in that it not only submits the defense of assumption of risk in a case involving neither a master and servant nor any other contractual relationship, but purports to make such defense availing to defendant notwithstanding the fact that the risk assumed was one alleged to have arisen from the negligence of defendant.

“It must be borne in mind, however, that the doctrine of assumption of risk is not invariably limited to cases arising out of a contractual relationship between the parties, but in its broader aspects may extend as well to cases wherein the defense is founded upon the theory of volenti non fit injuria, which means that that to which a person assents is not regarded in law as an injury.” Arnold v. May Dept. Stores, 337 Mo. 727, 85 S.W.2d 748, a case of a customer in a beauty shop suing for negligently applying hair dye, in which it was indicated that if the maxim is applicable it could be invoked, was cited.

Missouri has followed the general trend of the decisions in this regard. Cf. Prosser on Torts, 2nd Ed., § 55, p. 309: “It was said in the early decisions that assumption of risk will not be found apart from a contract relation of the parties. It is now recognized, however, that the basis of the defense is not contract but consent, and that it is available in many cases where no contract exists. It is also said on occasions, particularly in employment cases, that the plaintiff never assumes the risk of the defendant’s negligence. Such a statement is a confusion in terms: if the plaintiff consents to the risk, there is no duty to him, and hence no negligence. The plaintiff does not assume the risk of any negligence which he has no reason to anticipate, but once he is fully informed of it, it is well settled that the risks arising from such negligence may be assumed.”

Contributory negligence and assumption of risk are defenses to be pleaded affirmatively. § 509.090, V.A.M.S. They may be pleaded in the alternative. § 509.-110, V.A.M.S. They were so pleaded, in separate paragraphs of defendant’s answer, and were submitted to the jury by separate instructions. This case presented a fact situation in which the jury might find for defendant on the defense of assumption of risk on the theory that plaintiff, aware of the risk created by the negligence of the defendant, voluntarily encountered it, not negligently but reasonably and with caution because he appreciated the danger, and therefore is to be barred from recovery because the injury he sustained resulted from a “risk which he has accepted and brought upon himself.” Prosser, Torts, § 55, p. 304. In such case defendant is under no duty to plaintiff. Or, under the evidence in this case, the jury might find for defendant on the defense of contributory negligence, on the theory that “plaintiff’s conduct in encountering a known risk is itself unreasonable, and amounts to contributory negligence. There is negligence on both sides; and the plaintiff is barred from recovery, not only by his ‘implied consent’ to take the chance, but also by the policy of the law which refuses to allow him to impose upon the defendant a loss for which his own fault was at least in part responsible. The plaintiff’s conduct in accepting the risk may be unreasonable because the danger is out of all proportion to the interest he is seeking to advance, as where he consents to ride with a drunken automobile driver in an, unlighted car on a dark night, or dashes into a burning building to save his hat Or, •even after accepting a very reasonable risk, be may fail to exercise proper care for his ■own protection against that risk. In such cases, both assumption of risk and contributory negligence are available as defenses.” Prosser, Torts, § 55, p. 304. We have quoted and emphasized the language that fits this case.

There was no error in giving Instruction D-8 under the peculiar circumstances of this case, and no error in its form. We find no lack of evidence to sustain the giving of Instruction D-4, as claimed.

The motion for a rehearing and to transfer is overruled.

      . Bishop v. Musick Plating Works, 222 Mo.App. 370, 3 S.W.2d 256; Schneider v. Southwestern Bell Tel. Co., Mo.App., 354 S.W.2d 315; Page v. City of Fayette, 233 Mo.App. 37, 116 S.W.2d 578; August Viermann Brick Co. v. St. Louis Contracting Co., 335 Mo. 534, 73 S.W.26 734; Evans v. General Explosives Co., 293 Mo. 364, 239 S.W. 487; Cathey v. DeWcese, Mo., 289 S.W.24 51.


source: Caselaw Access Project

author: CULLEN, Commissioner. MOREMEN, Judge

license: Public Domain

text:
    Ronald TIPTON and James Sprinkle, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 4, 1963.
    Concurring Opinion Oct. 11, 1963.
    As Modified on Denial of Rehearing March 13, 1964.
    Ronald Tipton, pro se.
    James' Sprinkle, pro se.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Appellants, who are confined in the. penitentiary under a judgment of the Clark ■ Circuit Court convicting them of armed robbery, filed motion in the Clark Circuit Court, under RCr 11.42 to , vacate the judgment on the ground that the offense of which they were convicted did not occur in Clark County. Their motion was overruled and they have appealed from the overruling order.

The substance of appellants’ claim for relief was that there was an insufficiency of proof of venue at their trial. In Sharp v. Waddill, Ky., 371 S.W.2d 14, we have held that insufficiency of proof of venue is not a ground for collateral attack of a judgment.

RCr 11.42 does not authorize relief from a judgment of conviction for mere errors of the trial court. In order for the rule to be invoked there must be a violation of a constitutional right, a lack of jurisdiction, or such violation of a statute as to make the judgment void and therefore subject to collateral attack. Though designed to furnish a new and more satisfactory form of remedy than habeas corpus, the rule does not establish any new grounds of remedy (with the possible exception of the imposition of a sentence in excess of that authorized by law).

The basis of appellants’ motion is not one on which a judgment could have been collaterally attacked. Accordingly, the court properly overruled the motion.

The order is affirmed.

MOREMEN, J., concurring in the result.

MOREMEN, Judge

(concurring).

I concur with the result obtained by the majority opinion. The bystander’s bill of evidence and the admission of appellants in the statement of facts in their brief disclose that the crime began» in Campbell County and was consummated in Clark County. Under KRS 431.020 (now reenacted as KRS 452.630) where there is a doubt in the opinion of the circuit court of the county in which the indictment is found as to whether the offense was committed in that county or in some other county — the court of the county in which the indictment was returned shall have jurisdiction (in the sense of venue) of the offense. Appellants were properly tried in Clark County.

I believe that the'interpretation of the purpose and meaning of RCr 11.42 is incorrect. If it is correct, then the adoption- of 'the rule was a futile gesture, because it offers no broader remedial scope of inquiry than did the ancient writ of habeas corpus.

The majority opinion assumes, first, that an action under RCr 11.42 is a collateral attack upon the first judgment. I understand that a judgment of a court of general jurisdiction cannot be “collaterally attacked” either in the court which rendered it or in any other court, unless the judgment is void- — White v. White, 294 Ky. 563, 172 S.W.2d 72 —but all attacks upon judgments are not classified as being indirect. The old Civil Code of Practice, Sections 344, 414 and 518 ■provided and CR 60.02 provides methods for direct attack and we have never applied to these procedures the strict rules used when the attack is collateral. When the new criminal rule was proposed, I, alone, seem to have had the impression that under certain conditions the attack was frontal. (I am supported to some extent in this view by the comment in published copies of the rule which reads: “RCr 11.42 supplements CR 60.02 and provides a post-conviction review procedure consistent with the trend of U. S. Supreme Court pronouncements.”)

A pertinent part of RCr 11.42, reads:

“A prisoner in custody under sentence who claims a right to be released on the ground that the sentence was imposed in violation of the Constitution or statutes of the Commonwealth or of the United States, or that the court imposing the sentence was without jurisdiction to do so, or that the sentence was in excess of that authorized by law or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed the sentence to vacate, set aside or correct the same.”

It may be noted that the motion to vacate the judgment will lie when the sentence is imposed:

1. In violation of the Constitution or statutes of the Commonwealth or of the United States.
2. When the Court imposing the sentence was without jurisdiction to do so.
3. When the sentence was in excess of that authorized by law or is otherwise subj ect to collateral attack.

Before the adoption of the rule, such defects might be reached and corrected by the writ of habeas corpus, but this right was subject to rigid limitations. Some of the restrictions were enumerated in Owen v. Com., Ky., 280 S.W.2d 524, where it was stated:

“It is elementary that a petition for a writ of habeas corpus to obtain release from confinement under a judgment of conviction of a crime constitutes a collateral attack upon the judgment, and will lie only where the judgment is void. Harrod v. Whaley, Ky., 239 S.W.2d 480; Vickery v. Lady, Ky., 264 S.W.2d 683; Commonwealth v. Crawford, 285 Ky. 382, 147 S.W.2d 1019. The writ is not available to obtain relief from mere errors committed during the trial. Hoskins v. Buchanan, 311 Ky. 246, 223 S.W.2d 904; Wooten v. Buchanan, 311 Ky. 310, 223 S.W.2d 976. Furthermore, the writ will lie only where the invalidating defects are shown in the record of the trial. Smith v. Buchanan, 291 Ky. 44, 163 S.W.2d 5, 145 A.L.R. 813; Wolford v. Buchanan, 313 Ky. 512, 232 S.W.2d 1016. Even the denial of a constitutional right will not render a judgment void if the court had jurisdiction of the person and of the offense. Smith v. Buchanan, 291 Ky. 44, 163 S.W.2d 5, 145 A.L.R. 813.”

On March 22, 1963, in Rice v. Davis, Warden, Ky., 366 S.W.2d 153, the rules were somewhat relaxed and the case was reversed on the ground that the accused was denied effective assistance of counsel which prevented him from obtaining an effective appeal. This was not shown in the record, but relief was granted. In this case it was stated:

“We are changing the rule in Kentucky applicable to habeas corpus, so that it will conform to the federal rule, noted above. Therefore, to the extent our former holdings on this subject are in conflict with this opinion they are overruled.”

The new rule apparently permits the use of the writ where “extreme irregularities” occur and they are such as render the judgment void. But the limitation that the judgment be void is still present and apparently to satisfy the old requirement that a collateral attack may only be made successfully on a void judgment.

I reiterate that in cases of a direct attack it is not required that the judgment be void, and I believe RCr 11.42 under the conditions specified permits a frontal attack.

It has been pointed out an attack on a judgment is collateral if made in any manner other than by a proceeding the very purpose of which is to impeach or overturn the judgment. Wilder v. Harris, 205 Ark. 341, 168 S.W.2d 804. RCr 11.42 appears to offer a direct remedy.


author: MOREMEN, Judge.

text:
    Robert RAMEY et al., Appellants, v. Thomas RUTH, Appellee.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.

      R. Howard Smith, Newport, for appellants.
    Lewis A. White, Mt. Sterling, for appel-lee.
   MOREMEN, Judge.

This is an action by Robert Ramey and Edith Ramey, who are husband and wife, arising out of an automobile collision between cars driven by Robert Ramey and by Thomas Ruth. Edith Ramey claimed damages for personal injuries resulting from the collision and her husband sought to recover for loss of consortium. The case was tried in the Menifee Circuit Court where a verdict was returned in favor of the appellee, Thomas Ruth. From the judgment entered on that verdict, this appeal is prosecuted.

On February 6, 1960, appellants were traveling Ky. Highway 460 when they entered an S curve in the road at a point near Mariba. At the same time appellee Ruth was approaching from the opposite direction. Mrs. Ramey described the accident in this manner:

“I saw this red car coming around the curve and he was coming right toward us. I hollered and my husband cut the car; completely got the front end out of the way and Mr. Ruth hit the back fender and bumper of our car, with his front headlight, and he was at least three to four feet over the yellow line, his tracks from the rainy road showed that after we were completely stopped.”

Mr. Ramey testified:

“This road is very crooked, so I couldn’t — I didn’t make too much speed, and I made a turn on the curve of the road and then went to the left and went around one car then (witness demonstrates) — I hope I am making this plain — as I got in within I would say around thirty, forty feet I happened to see another car coming right toward me.”
(The other car was then identified)
“Q. Well, go ahead and tell the jury just what occurred ? A. Well, as I was coming around on this small curve and coming up on this other one I was getting ready to make the curve that goes to the left, I noticed this car coming at me, so I cut my car — and I thought I had cut out of his way, but he crashed me, he came over the yellow line and crashed his left front fender into my left rear fender and tore the bumper loose.”

■ Ruth testified that when he’first saw the Ramey car it was about 125 feet away and about 3 feet into the wrong' lane of traffic. Ruth thereupon applied brakes which caused the rear-end of his car to slide to the left and about a foot over the yellow line. He released the brakes and the car straightened out before the collision. He stated that the front-end of his car was never over the line and when it straightened out he supposed the rear end was about on the line. He then testified:

“Q. Did he (Ramey) get back on his side before the accident happened? A. Well, I don’t think so. When I released the brakes the last time we were getting pretty close, I thought we would miss but we just tipped the back bumpers.”

Appellants urge as grounds for reversal: (1) They were entitled to a directed verdict; (2) appellee’s counsel should not have been permitted to use a special blackboard during his argument to the jury; (3)appellee’s counsel used improper argument.

At the conclusion of all the testimony appellants moved the court for a directed verdict. We agree with the trial court that appellee’s evidence was sufficient to require the case to be submitted to a jury. The motion was properly overruled. In addition, the record does not disclose that appellants stated the grounds upon which the motion was based. Where the record does not show the grounds on which the party’s motion for a directed verdict is made, the order overruling such motion is not reviewable on appeal. Scott v. McLean County Board of Education, Ky., 357 S.W.2d 312. Later appellants moved for a judgment notwithstanding the verdict of the jury. This motion was also overruled. As was stated in Commonwealth v. Ragland Potter Co., Ky., 305 S.W.2d 915 where such a motion is based upon the erroneous overruling of a motion for a directed verdict at the conclusion of all the evidence and movant had failed to state grounds for its motion for a directed verdict, it is as if no such motion had in fact been made. Therefore the trial court correctly overruled the motion for a judgment notwithstanding the verdict.

Appellants’ next ground for reversal is based upon the fact that during his final argument to the jury counsel for appellees produced a blackboard of his own which had theretofore not been used during the trial, placed toy automobiles upon the board (which contained a drawing of the curve in the roadway depicting the scene of the accident) and used them during the course of his argument. It was claimed that it wholly misrepresented the evidence in the case. However, there was no showing made either in the record or in the brief for appellants in what manner counsel allegedly departed from the evidence which had been given and any reasonable inferences which might be drawn therefrom. We learn from the brief for appellee that this was a magnetized board along which the automobiles could be moved easily and thus counsel could give his interpretation of what actually happened at the scene of the accident. We find nothing that shows he departed from the usual practice of using a blackboard or other device to help illustrate an argument. This board may have been novel and improved, but we find nothing wrong in that so long as counsel adhered to the evidence and reasonable inferences. If he departed from that course, it does not appear of record.

It is finally argued that appellee’s counsel improperly stated to the jury in his closing argument that “these three people (meaning appellants and their attorney) are from the Sin City of Newport down here looking for some easy money.” The final argument of counsel was not taken down and it does not appear of record that such statement was made or objected to. About five months after the trial, appellants moved to include in the record a statement to the effect that the above statement was made and was objected to. The court overruled the motion, but by letter indicated to counsel that although he believed counsel did make such a statement he did not recall that there was any objection to it at that time or any motion made to set aside the swearing of the jury. For that reason the matter is not before us for decision.

We believe the appellants received a fair trial and the jury was well within its province when it elected to accept appellee’s version of the accident rather than that given by appellants and their witness who appeared at the scene shortly thereafter.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Edith BEGLEY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, John J. Blackburn, Covington, for appellant.
    Brock & Brock, Daniel N. Brock, Lexington, for appellee.
   WILLIAMS, Judge.

This is an appeal from a judgment of the Lee Circuit Court which (1) affirmed an award of the Board of Claims for damages sustained by appellee Begley as a result of the alleged joint negligence of the Commonwealth in maintaining a bridge near Beattyville, and (2) reversed a ruling of the Board crediting against the Board’s award the partial payment by a co-tort-feasor of a separate judgment for the same harm.

On October 11, 1958, at about 9 o’clock a. m., the appellee, Edith Begley, and her son were passengers in an empty pickup truck operated by her husband who was driving south toward Beattyville over the North Fork Bridge. Approaching from the opposite direction was a truck loaded with approximately 800 concrete blocks and weighing 18 tons or more. The North Fork Bridge consisted of three spans — the main span over the river, and a “pony” span at each end. The “pony” span at the north end of the bridge and the main span were level; the “pony” span nearest Beattyville slanted 45 degrees upgrade from the bank to the main span. Because of this angle, motorists at either end of the bridge could not view the other end or ascertain approaching traffic until nearing the point where the angled “pony” span joined the main span. At that point, the two trucks' met, stopped, and, as they began to pass, the angled “pony” span collapsed. Both trucks-fell 50 feet to the bank below. The driver of the overloaded truck was killed. The appellee was severely and permanently injured.

The North Fork Bridge was a two-lanc bridge built in 1906 of steel trusses and wood flooring and maintained by the Commonwealth. Signs posted at each end of the bridge read: “Load Limit 6 Tons.”

The assistant director of maintenance in charge of bridges for the Highway Department testified that he had visually inspected the bridge both in January and in the summer of 1958 before its collapse. He considered the bridge safe for a gross capacity of 6 tons, but admitted that continued overstress of the bridge by loads exceeding 6 tons could render it unsafe even for smaller loads.

The evidence disclosed that the bridge was being used by trucks carrying heavy oil equipment, concrete blocks, coal, logs, bulldozers, and other heavy loads exceeding the posted load limit. During the summer of 1958, a delegation from Lee County, including the County Judge and other officials, visited the Commissioner of Highways and complained about the unsafe condition of the bridge and the heavily loaded traffic crossing it.

Appellee first sued Claude Compton, the owner of the truck overloaded with con-crele blocks, and obtained a judgment of $66,000, of which $12,500 has been paid.

In a later action before the Board of Claims, pursuant to KRS 44.070 et seq., appellee sued the Commonwealth for negligently failing to maintain the bridge in a reasonably safe condition. The Board found the Commonwealth jointly negligent with Compton, awarded appellee $10,000, and credited against the $10,000 award the $12,500 paid by Compton, thereby preventing any recovery against the Commonwealth. On appeal to the Lee Circuit Court, the joint negligence of the appellant was affirmed but the credit of damages was reversed, permitting recovery of the $10,000 award from the Commonwealth.

The Commonwealth contends (1) that it was not negligent or (2) if so, that the $12,500 paid by Compton must be credited against the $10,000 award by the Board of Claims.

In general, negligence is conduct involving an unreasonable risk of harm to others. It includes a failure to act where, under the circumstances, a reasonable man would do so. Restatement, Torts, sections 284, 289 (1934). To determine whether conduct creates such an unreasonable risk of harm as to be negligent, the likelihood and gravity of possible injury to others must be weighed against the utility of such conduct. Harper & James, Torts, vol. 2, section 16.9, p. 928, et seq., (1956) ; Prosser, Torts, section 30, p. 119, et seq., (2 ed. 1955).

With respect to defective or hazardous conditions of the highways (which include bridges), the duty of the Commonwealth, as well as private corporations and municipalities, is to exercise ordinary care to keep the highways under its charge in a reasonably safe condition for public travel. Shrader v. Commonwealth, 309 Ky. 553, 218 S.W.2d 406 (1949); Commonwealth v. Dever, 284 Ky. 150, 143 S.W.2d 1065 (1940); Louisville & Nashville R. Co. v. Muncey, 229 Ky. 538, 17 S.W.2d 422 (1928); Town of Paintsville v. Commonwealth, 21 Ky.Law Rep. 1634, 55 S.W. 915 (1900). Of course, the Commonwealth is not an insurer of the traveling public. Commonwealth Dept. of Highways v. General & Excess Ins. Co., Ky., 355 S.W.2d 695 (1962) ; Commonwealth Dept. of Highways v. Young, Ky., 354 S.W.2d 23 (1962). But the liability for hazardous conditions of the highways does include situations where the danger is brought about by third persons if the agency responsible for maintaining the highway or street has actual or constructive knowledge of the unsafe conditions. Criswell v. City of Jackson, 257 Ky. 222, 77 S.W.2d 622 (1935); City of Pineville v. Lawson, 225 Ky. 542, 9 S.W.2d 517 (1928).

Under the facts of this case, the Commonwealth exerted little if any care. It took no action to remedy, warn or guard against the hazardous situation which had resulted from a combination of known violations of the posted load limit and an obstruction of view across the two-lane bridge from either end. The traveling public was prevented from discovering approaching traffic until part of the bridge had been traversed. The probability that a vehicle driven with due care within the load limit would meet an approaching vehicle exceeding the load limit, and that the bridge would collapse, was so great that a failure to warn or guard against the hazard was negligent conduct. The risk was foreseeable. The negligence of the Commonwealth rests not in the creation of the hazardous condition, but in permitting the situation to continue without attempting to remedy, warn, or guard against the danger.

The appellant argues that the posting of low load limit signs as authorized by KRS 189.230 fulfills its duty to exercise ordinary care. Adequate warning of hazardous conditions in the highway system may be an exercise of ordinary care. We have some doubt whether load limit signs alone would have been sufficient warning at the North Fork Bridge had no violations of the load limit been expected. In addition to the ambiguous meaning of the language “Load Limit 6 Tons/' there would have been some likelihood that two trucks, with a combined weight exceeding 6 tons but each weighing less than 6 tons, would meet on the bridge and cause an overstress or collapse of it even though both drivers had exerted ordinary care for their own safety. Since that question does not arise under the specific facts of this case, it is sufficient to say that the type of warning given by the load limit signs did not remedy, warn or guard against the hazardous situation at the North Fork Bridge; the message was unrelated to the danger permitted to exist there.

The Commonwealth urges that the negligence of the driver of the overweight truck was the proximate cause of appellee’s injuries. As we view it, the negligence of the truck driver was a foreseeable intervening force within the scope of the original risk. Such an intervening force will not supersede the concurrent negligence of the Commonwealth. Harper & James, Torts, vol. 2, section 16.12, p. 940, et seq. (1956); Prosser, Torts, section 49, p. 268 (2 ed. 1955). In Louisville Home Telephone Co. v. Gasper, 123 Ky. 128, 93 S.W. 1057, 9 L.R.A.,N.S., 548 (1906), this Court held that the negligent maintenance of a guy wire extending 18 inches into an alley was not superseded by the intervening negligence of the driver of a wagon which fell upon the plaintiff after striking the guy wire. As was noted in the Gasper case, supra, 93 S.W. at p. 1059:

“ * * * So, the defendant is clearly responsible where the intervening causes, acts, or conditions were set in motion by his earlier negligence, or naturally induced by such wrongful act or omission, or even, it is generally held, if the intervening acts or conditions were of a nahtre, the happening of which was reasonably to have been anticipated, * * *. An act or omission may yet be negligent and of a ' nature to charge a defendant with liability, although no injuries would have been sustained but for some intervening cause, if the occurrence of the latter might have been anticipated.” (Emphasis added.)

See State Contracting & Stone Co. v. Fulkerson, Ky., 288 S.W.2d 43 (1956); Miles v. Southeastern Motor Truck Lines, 295 Ky. 156, 173 S.W.2d 990 (1943); City of Louisville v. Hart’s Adm’r, 143 Ky. 171, 136 S.W. 212, 35 L.R.A.,N.S., 207 (1911); Watson v. Kentucky & Indiana Bridge & R. Co., 137 Ky. 619, 126 S.W. 146, 129 S.W. 341 (1910); Snydor v. Arnold, 28 Ky.Law Rep. 1250, 122 Ky. 557, 92 S.W. 289 (1906).

There is no evidence to indicate that the appellee or her husband was contributorily negligent or that the danger could have been discovered had they exercised extreme care for their own safety.

Appellant’s second contention that the $12,500 paid by Compton should be credited against the $10,000 award by the Board rests upon a misinterpretation of the applicable principles of damages. Although joint or concurrent tort-feasors may be jointly or severally liable, only one full satisfaction of damages for a single harm may be recovered by the injured party. Therefore, the payment of any sums by co-tort-feasors should be credited against the value of a full legal compensation. The remainder after such credit is the extent to which co-tort-feasors may be liable. This Court’s position was clearly discussed in United Society of Shakers v. Underwood, 74 Ky. (11 Bush) 265 (1875), wherein it was noted:

“ * * * the plaintiff may maintain separate actions and recover separate judgments against joint trespassers, and may elect to take the largest sum assessed, or to proceed against the solvent defendant, or in case no one of them is able or can be compelled to pay the whole of the judgment rendered against him, may accept part satisfaction from one and still look to the others for such balance as may be nee- ' essary to give him full legal compensation for the wrong suffered * * (Emphasis added.)

The remainder of damages due, after crediting Compton’s payment of $12,500 against the full legal compensation of $66,000, exceeds the $10,000 limit of liability of the appellant. Accordingly, the appellant is liable for the full amount of $10,000.

The judgment is affirmed.

MONTGOMERY, J., dissenting.


author: MONTGOMERY, Judge.

text:
    DR. PEPPER BOTTLING COMPANY, Inc., et al., Appellants, v. Myrtle RICKS et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.

      Farland Robbins, Mayfield, for appellants.
    Marvin Prince, Prince & Clayton, Boyce C. Clayton, Benton, David R. Reed, Padu-cah, for appellees.
   MONTGOMERY, Judge.

Dr. Pepper Bottling Company, Inc., and its truck driver, J. L. Holmes, have appealed from a judgment awarding damages to Myrtle Ricks and her husband, John Ricks, in the respective sums of $6,000 and $1,000 arising from an auto collision. Before examining the grounds for reversal of the appeal, two motions to dismiss the appeal must be considered.

The appeal is attacked because Myrtle Ricks was not named as an appellee in the body of the statement of appeal as provided by RCA 1.090. In the caption of the statement, “Myrtle Ricks and husband, John Ricks” are designated as appellees.

The purpose of RCA 1.090 is to designate the parties taking the appeal and the parties against whom the appeal is taken. The situation here is the reverse of the one in Pelphrey v. Lemaster, 240 Ky. 759, 43 S.W.2d 29, wherein it was held to be sufficient that the names of appellees were shown in the body of the statement although the caption did not contain the names of all of the appellees. While the preferred practice indicated under RCA 1.090 would seem to be that the names should appear in the body of the statement, no valid reason is shown why designation by name of the ap-pellees in the caption is not sufficient. The caption fulfills the purpose of the rule by indicating that Myrtle Ricks and John Ricks are both appellees. The casts cited by ap-pellees are inapplicable.

Appellees also moved to dismiss the appeal because appellants failed to move for an appeal from such part of the judgment as awarded $1,000 to John Ricks. In support of the motion, appellees cite Garnett v. Hicks, Ky., 333 S.W.2d 509, wherein a single appellant appealed from a judgment in which one appellee was awarded $4,523.48 and another was awarded $476.52. The opinion merely recites that a motion for an appeal is required under KRS 21.080, and it was held that the appeal as to the sum of $476.52 should be dismissed.

Garnett v. Hicks is directly in conflict with Spartman v. Rowlett, Ky., 312 S.W.2d 618, wherein an appeal was permitted by a single appellant from a judgment by which three appellees were awarded $5,000, $1,000, and $100, respectively, and the further sum of $1,947.70, collectively. No motion for an appeal was made.

The Court overruled the motion to dismiss under the following reasoning:

“Despite the fact that the amount in controversy as regards two of the ap-pellees is below the amount for which an appeal lies as a matter of right, KRS 21.060, and despite the fact that the appellant failed to make a motion for an appeal of the actions instituted by these two parties, KRS 21.080, we are not disposed to dismiss the appeal because we believe that the form of the instructions and the manner in which the case was practiced warrant the treatment of the judgment as a single one. * * * ”

The Court has recently considered the question of permitting an appeal where several sums, some of which are less than the required jurisdictional amount, when added together are more than the necessary jurisdictional amount. See Creech v. Jackson, Ky., 375 S.W.2d 679 (1964). So far as an appellant is concerned, the total amount of the judgment is the amount in controversy. The division of the amount recovered in a judgment between or among appellees is of no concern to appellant. An appellant is concerned only with whether the whole amount must be paid.

The injustice of any other view is shown in the Garnett v. Hicks case where the appeal was dismissed as to a recovery of $476.52 and reversed as to the recovery of $4,523.48. Both of these amounts were awarded under the same liability. Therefore, if there was error as to one there was error as to the other. The same situation prevails here. There is no justice in denying an appeal as to the award of $1,000 to John Ricks if appellants have a meritorious appeal on the question of liability as to Myrtle Ricks. Both claims stand or fall on the same basis. As was pointed out in Spartman v. Rowlett, this has been permitted before. See also Browley v. Murkison, Ky., 282 S.W.2d 352. In Creech v. Jackson, the rule is more fully stated and authorities cited. Accordingly, the motion to dismiss the appeal on the John Ricks award should be denied. Garnett v. Hicks, Ky., 333 S.W.2d 509, is overruled in part.

On the merits of the appeal it is contended that: (1) Appellants were as a matter of law not guilty of negligence; (2) the •instructions were erroneous; (3) the damages are excessive; (4) there was an improper use of a blackboard; and (5) improper evidence was admitted.

The injuries sustained by appellees resulted from a collision between their car .and a truck owned by Dr. Pepper Bottling ■Company and driven by Holmes near Pos•sum Trot. The appellees were traveling west on U. S. 62. The truck was being ■driven north on Kentucky 1042 preparatory to stopping at the intersection of the highways and then making a right turn onto U. S. 62. A Mr. Bloodworth (not a party -.to this litigation) was driving his car east on U. S. 62. Holmes was unable to stop his truck at the intersection because of a claimed sudden failure of its service brakes which thereby caused it to collide with both cars.

The sufficiency of the evidence was raised on motions for summary judgment made by both parties and by appellants’ motions for a directed verdict and for judgment notwithstanding the verdict. The ruling on the motions for summary judgment will not be reviewed. Clay, CR 56.03, Comment 10; Bell v. Harmon, Ky., 284 S.W.2d 812; Gumm v. Combs, Ky., 302 S.W.2d 616.

The evidence for appellants was to the effect that the brakes had been maintained in a proper working condition and had been operating satisfactorily prior to the sudden and unexpected failure which gave rise to the collision. Appellees contend that the truck was not properly equipped with brakes; that Holmes failed to use the hand brake; that he also failed to keep a lookout toward the direction of appellees’ car; and that the truck could have been driven into the ditch to avoid the collision. All of these factors are important in considering the propriety of the truck driver’s action in the emergency.

The rule has been stated thus:

“Where the evidence is conflicting or different inferences reasonably may be drawn from the evidence, it is for the jury, or for the trial court in actions tried without a jury, to determine whether defendant was confronted with an emergency, the nature and extent of the emergency, whether the emergency was created by defendant, and whether defendant conducted himself in the emergency as an ordinarily prudent person in like circumstances might have done. Where the evidence is undisputed and but one inference reasonably may be drawn therefrom, it is a question of law whether there was an emergency which would excuse defendant from liability and whether m such emergency defendant acted as a reasonably prudent person would' have acted under the circumstances.”

61 C.J.S. Motor Vehicles § 526, pages 446-447. See also 8 Am.Jur.2d, Automobiles and Highway Traffic, Section 700, page 251; Moreland’s Adm’r v. Stone, 292 Ky. 521, 166 S.W.2d 998; Depp v. Martin, Ky., 243 S.W.2d 665; Crawford v. Alexander, Ky., 259 S.W.2d 476; Jewell v. Dell, Ky., 284 S.W.2d 92; Knop v. Atcher, Ky., 308 S.W.2d 287; Shepherd v. Marcum, Ky., 334 S.W.2d 903. Cf. Agee v. Hammons, Ky., 335 S.W.2d 732.

Appellants contend that the facts "are not in dispute and the question of their negligence is, therefore, one of law. Veal v. Davis, Ky., 343 S.W.2d 593, is cited, but in that case the issue was submitted to the jury who found for the defendant. Here, different inferences of negligence or non-negligence could have been drawn from the facts by reasonable men. In such case the effect of the facts and the inferences to be drawn present a question for the jury. Middleton v. Partin, Ky., 347 S.W.2d 75. The court correctly overruled the motions.

The propriety of giving an instruction based on KRS 189.090 governing brakes is questioned by appellants. The argument is based on Veal v. Davis, Ky., 343 S.W.2d 593, wherein such an instruction was not given. It was held that the distance from the intersection was so short that failure to use the hand brake could not have been the proximate cause of the collision. Here, the service brakes failed when the truck was more than seventy feet from the intersection and was traveling only ten to fifteen miles per hour. Under these circumstances the lack of a proper hand brake or the failure to use it might have been the proximate cause of the collision, and such an instruction was proper.

Appellants complain of various other instructions but make no argument and cite no authority in support of their complaint.- An examination of the instructions ■given .reveals that they fairly submit thp issue. There is likewise no merit in the claims of excessive damages and improper use of a blackboard. No proper objection appears to have been made to the latter. No objection on the trial was made to the admission of testimony of the witness, Walter Thurtell, and appellants will not be heard to complain now.

Judgment affirmed.


author: STEWART, Judge.

text:
    Joseph R. BERRY, Appellant, v. OWENSBORO ICE CREAM & DAIRY PRODUCTS et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.

      Nathan B. Cooper, Owensboro, for appellant.
    James M. Graves, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees.
   STEWART, Judge.

This is an appeal from a judgment of the Daviess Circuit Court affirming the opinion and order of the Workmen’s Compensation Board which dismissed an application of Joseph R. Berry for compensation.

A summary of the facts, about which little if any dispute exists, is that appellant, Joseph R. Berry, who had worked as a truck driver for appellee, Owensboro Ice Cream & Dairy Products, since 1952, was transferred to the job of shipping clerk in the spring of 1958. His duties in this capacity required him to go in and out of a refrigeration room many times each day. The temperature in this room was between ten and eighteen degrees below zero.

After Berry had worked at his new position for approximately three months, he began to complain of asthmatic symptoms. About the middle of May, 1959, he left his work, asserting his asthmatic condition disabled him to the extent he could not perform the type of work in which he was engaged. It was shown Berry was able bodied and in good health prior to 1959. He was still suffering from his impairment three months after he quit his job.

His application for compensation was filed July 6, 1959, and he alleged therein he was permanently and totally disabled as a result of bronchial asthma. He claims this is an occupational disease within the purview of KRS 342.316(1) 'and, that it arose"out of and the course of. his employment with appellee. The Board found, against him upon the ground that his disease was'not occupational in character but, on the contrary, that it was an ordinary disease that may be contracted at any time or at any place.

KRS 342.316(1), the governing statutory provision, reads: ‘Occupational disease’ as used in this chapter means a disease arising out of and in the course of the employment. Ordinary diseases of life to which the general public is equally exposed outside of the employment shall not be com-pensable, except where such diseases follow as an incident of an occupational disease as defined in this section.” !

The testimony of two medical experts constitutes the decisive evidence in this case. Both Dr. John D. Lovett, who appeared in behalf of appellant, and Dr. E. R. Gernert, who was a witness for appellee,, were of the opinion that Berry’s asthmatic impairment was of an infectious nature, i. e., caused by a germ or virus. Dr. Lovett stated, however, that an individual’s resistance is lowered by periodic exposures to adverse elements such as rigorous coldness. He believed “that an individual who goes in and out of a freezing unit is more susceptible to respiratory infection than one who maintains a more constant environment.”

Dr. Gernert testified that some people, when subjected to a low and then a high degree of temperature, excessive cold followed by extreme heat, could have a seizure of asthma “ * * * but that this is not the cause of the asthma. * * * In other words, they have got some other factor there that is causing the asthma and if they didn’t have that then this change in temperature would not bother them. * * * ”

Although this is a case of first impression in Kentucky, a number of foreign cases illustrate the application- of the ordinary disease exception. The Supreme Court of Illinois, in construing an occupational disease statute, which for all practical purposes is identical with ours, denied coverage in a case involving facts similar to those now before this Court. See Stewart Warner Corporation v. Industrial Commission, 376 Ill. 141, 33 N.E.2d 196.

In the Stewart Warner Corporation case, the employer was engaged in the manufacture of refrigerators and the deceased’s employment, which lasted over a period of about two years, required him to go in and out of a heated testing room some two hundred times a day. The temperature in the testing room ranged from ninety to one hundred and ten degrees Fahrenheit and the temperature of the building outside the testing room was kept some thirty to sixty degrees lower. There was also the additional factor of sulphur dioxide which was sometimes said to escape into the testing room. Prior to the deceased’s employment he was active, strong and well. At the end of six months he began to cough and lose weight and thereafter he became so enfeebled he quit his work. Later, he was hospitalized and an examination of his sputum disclosed tubercle bacilli. His death soon occurred, the cause being diagnosed as pulmonary tuberculosis.

The decedent’s widow and dependent children, who filed a claim for compensation benefits, contended the intermittent changes of temperature to which the deceased was exposed on the job, coupled with the inhalation of sulphur dioxide fumes, operated to weaken the deceased’s condition and thereby activate within him previously latent tubercle bacilli, causing him to contract tuberculosis. The employer argued that the disease from which the deceased employee suffered was an ordinary disease of life and, therefore, was excluded from coverage by the statute.

In denying compensation, the opinion stated:

“The medical experts agree that tuberculosis is a germ disease; that it is caused by tubercle bacilli, that after the germ enters the body it may remain inactive for years and possibly never cause trouble. Medical science has not been able to determine when a tubercular germ enters the body nor the length of time it lies dormant before becoming active. There are persons of all ages and in all walks of life who have tubercular bacilli in their bodies.. There is no proof that the germ infection was a hazard of the work in which deceased was engaged. Proof that the hazards of the employment produced a weakened physical condition and a lowered resistance to germs does not establish that such a hazard was the direct cause of the tuberculosis. It is well known that there are many things that weaken the physical condition and lessen the resistance to germs which are not in any way related to an employment. * * íjí »

In each of the following cases compensation was denied under occupational disease statutes where the claimant contended the adverse conditions of the environment in which the claimant worked produced an occupational disease: Blake v. Bethlehem Steel Co., 225 Md. 196, 170 A.2d 204; Russell v. Auburn Central Mfg. Co., 107 Ind.App. 17, 22 N.E.2d 889; Schlechtweg v. McQuay-Norris Mfg. Co., 116 Ind.App. 375, 64 N.E.2d 664; Star Publishing Co. v. Jackson, 115 Ind.App. 221, 58 N.E.2d 202; McGill Mfg. Co. v. Dodd, 116 Ind.App. 66, 59 N.E.2d 899; Landers v. Muskegon, 196 Mich. 750, 163 N.W. 43, L.R.A.1918A, 218; and Sanford v. Valier-Spries Milling Co., Mo.App., 235 S.W.2d 92.

The recent New York case of Conroy v. Rupert Fish Co., 8 App.Div.2d 553, 183 N.Y.S.2d 332, is an interesting decision on the subject of causal connection and bears upon the facts of the case at bar. In that case the employee claimed to have contracted pneumonia and then tuberculosis as a direct result of his work which required him to handle frozen fish and to go continuously in and out of cold-storage freezers. The New York court recognized that pneumonia and tuberculosis are ordinary diseases of life and held, furthermore, that the employee there had failed to establish the necessary causal connection between the work he did and the disease he asserted he contracted.

In view of the medical testimony and of the authorities herein discussed, there can be little doubt that infectious bronchial asthma is an ordinary disease of life to which the public is equally exposed. There is no contention that appellant contracted the germ or virus while on the job. The only on-the-job element developed in this case is the fact that his resistance may have been lowered by many daily exposures to temperature changes. Appellant’s condition, therefore, falls within the statutory exclusion, and in order to bring it out of the exclusion, he was obliged to prove that his condition followed as an “incident of an occupational disease.” KRS 342.316(1). In this respect it is our opinion he failed to produce evidence of sufficient persuasive force to compel a finding in his favor.

Wherefore, the judgment is affirmed.


author: PALMORE, Judge.

text:
    David W. HIGBEE, Appellant, v. Luther THOMAS, Warden Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.

      As Modified on Denial of Rehearing March 13, 1964.
    David Higbee, pro se.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

In October of 1960 the appellant, David Higbee, pleaded guilty to an indictment in the Hopkins Circuit Court charging him with incest and was sentenced to 21 years in prison. KRS 436.060. He was committed to the penitentiary at Eddyville and in May of 1962 filed in the Lyon Circuit Court a petition for habeas corpus based on sworn allegations to the following effect:

(1) On the date of the trial in circuit court "counsel for the defense spent approximately three to five minutes with defendant prior to his assignment and therefore your petitioner did not and could not have a reasonable length of time to make, prepare and present an adequate defense * * * all of which denied to your petitioner effective ‘assistance of counsel for liis defense,’ ” etc.

(2) After “the approximate three to five ■minute conference with said court appointed counsel who dominatedly insisted on entering a ‘plea of guilty,’ and further your ■petitioner being overwhelmed by both court .and aforesaid counsel also being deceived ,by an oral statement from the Hopkins ■County Sheriff to your petitioner’s wife in ■words to the effect that if Dave (meaning •me — the petitioner) will plead guilty, he won’t get over two to five years, and therefore your petitioner being deceived and under duress and coercion made the plea to .the court but not of his own free will.”

(3) The prosecuting witnesses, Betty L. Higbee and Rowena Higbee, had demanded withdrawal of the incest charge in October of 1960.

The Lyon Circuit Court sustained the Commonwealth’s motion to dismiss the petition for habeas corpus on the ground it did not state facts upon which relief could be granted. Higbee then appealed to this court in forma pauperis. Our decision affirming the dismissal was expressed as follows in a memorandum opinion written by Judge Moremen:

“(1) The broad allegation contained under this item is not sufficient to cause the writ to issue. Three to five minutes of time on the day of the trial may have been sufficient if defendant intended to plead guilty. Etherton v. Jones, Warden, Ky., 350 S.W.2d 151.

“(2) Item two is subject to the same •criticism because it is merely alleged that .counsel ‘dominatedly insisted on entering a ■plea of guilty’ and petitioner was overwhelmed by the court and counsel. The allegation is entirely too general to be the "basis for the issuance of the writ. The .allegation that reliance was had upon the •statement made by the sheriff to his wife • indicates that he was willing to plead guilty in order to receive a short sentence. The -sheriff has no right or authority to bind the court or the Commonwealth’s attorney or the jury with such a promise.

“(3) The alleged crime was committed against the peace and dignity of the Commonwealth of Kentucky and the right of prosecution was not a personal one vested in the two complaining witnesses. As was pointed out in Roberson’s New Kentucky Criminal Law and Procedure, 3d Edition, page 7, wrongs are either public or private ‘and in case of a crime, when the state’s right and duty to punish has accrued, the person particularly injured has no control over the criminal proceedings and he can make no settlement with the wrongdoer that can take away the right of the state to punish it. Thus a woman who has been ravished can not condone the crime by excusing or forgiving her ravisher.’

“We find nothing in the foregoing allegations, even if true, which would have rendered the judgment void. At most, it would have been merely erroneous and such a judgment may not be reached by a writ of habeas corpus. See Owen v. Commonwealth, Ky., 280 S.W.2d 524; Adams v. Tuggle [300] Ky. [751], 189 S.W.2d 601; and Etherton v. Jones, Ky., 350 S.W.2d 151.”

The Supreme Court of the United States has sustained Higbee’s petition for a writ of certiorari and remanded the case to this court “for further consideration in light of Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126.” Higbee v. Thomas, 375 U.S. 13, 84 S.Ct. 79, 11 L.Ed.2d 41 (1963).

The opinion in Commonwealth of Pennsylvania ex rel. Herman v. Claudy states categorically that if Claudy should prove the allegations of his petition he would be entitled to relief. Claudy’s allegations, however, were very different from Hig-bee’s, and we must confess that the rather oblique mandate of the Supreme Court in this case leaves us in the dark as to whether, if Higbee’s factual allegations (distinguished from the legal conclusions con-taiiied- in' his petition) prove true, his conviction was void. In the fashion of a shell game, having guessed once we are simply told to guess again.

This much now seems certain, that Higbee’s petition for habeas corpus said enough to entitle him to a hearing. Cf. Rice v. Davis, Ky., 366 S.W.2d 153 (1963). It is our opinion that the alleged attempt of the prosecuting witnesses to “withdraw” the incest charge may he eliminated as clearly insufficient to raise a jurisdictional or constitutional question, thus leaving two issues to be heard and, determined, (1) whether Higbee had reasonable and effective representation of counsel and (2) whether he understood the nature and consequences of a guilty plea and entered the plea voluntarily, which is to say, free of such pressures or inducements as would make it unfair to hold him to it. In reaching its conclusions on these issues the trial court should make detailed findings of fact in support, and if either issue be resolved in the affirmative the judgment of the Hopkins Circuit Court shall be declared void and the prisoner remanded to the custody of the Sheriff of Hopkins County pending a new trial in that court.

Since the inception of this proceeding a new post-conviction review procedure has been established in the form of RCr 11.42, which provides for a direct attack upon any conviction that would otherwise be subject to collateral attack. An RCr 11.42 motion is a resumption or continuation of the criminal proceeding, in which the movant is entitled to appointed counsel upon a showing that he is financially unable to employ one. As the motion is in the same court wherein the conviction was had the records are available. A habe-as corpus action, on the other hand, is essentially civil in nature. Crady v. Cranfill, Ky., 371 S.W.2d 640 (1963). More often than not it is brought in a different court from the one in which the judgment under attack was rendered. Hence neither the records nor the witnesses are readily available, and the state is not obliged to furnish an indigent prisoner a copy of the record or an appointed counsel. This ha-beas corpus proceeding having originated’ prior to the effective date of th.e Rules of Criminal Procedure, Higbee is entitled to-have it determined under authority of Rice v. Davis, Ky., 366 S.W.2d 153 (1963), but it is not incumbent on the trial court to provide him the various protections now available to him by virtue of RCr 11.42

The judgment is reversed for further proceedings consistent with this opinion.

      . The statement in Tipton and Sprinkle v. Commonwealth, Ky., 376 S.W.2d 290 (1963), an RCr 11.42 proceeding, that insufficiency of proof of venue is not a ground for collateral attack on a judgment was not intended to imply that the RCr 11.42 motion there under discussion was a collateral attack.

      . See Ayers v. Davis, Ky., 377 S.W.2d 154 (1964), holding habeas corpus unavailable unless the remedy by motion under RCr 11.42 is shown tó be inadequate.


text:
    The CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY, a Corporation, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.

      Lewis Levy, Geoghegan, Levy & Daly, Cincinnati, Ohio, for appellant.
    John B. Breckinridge, Atty. Gen., Frankfort, H. D. Reed, Jr., Asst. Atty. Gen., C. E. Skidmore, Douglas Curry, Department of Highways, Frankfort, for appellee.
   MONTGOMERY, Judge.

The Cincinnati, New Orleans & Texas Pacific Railway Company appeals from a highway condemnation judgment by which it was awarded $11,877.75 for the taking of 8.07 acres of land. Appellant contends that the court erred in the admission and exclusion of testimony and in the refusal of an instruction.

The land in question is located on Crescent Springs Pike between Erlanger and Covington. It consisted of 24.4 acres of unimproved, uncultivated land. It was divided by appellant’s railroad right of way so that 18.84 acres were west of the railroad and 5.56 acres were east of it. Appellee took 6.01 acres of the western parcel and 2.06 acres of the eastern parcel, leaving 12.83 acres and 3.5 acres, respectively, or a total remainder of 16.33 acres.

The testimony is conflicting as to the amounts of highway frontage taken and remaining. Appellant’s testimony was that the frontage of the western parcel on Crescent Springs Pike was reduced from 650 feet to 185 feet. Appellee’s testimony was that the frontage consisted of only 480 feet before the taking, all of which was taken, but that new frontage of 165 feet was created. Upon completion of Interstate Highway 75, this property will be located 1.2 miles from the Buttermilk Road interchange and 2.1 miles from the Donaldson interchange.

Appellant complains that the appellee was permitted to introduce evidence that the value of land in Kenton County had increased between the date of the public announcement of improvement (April 26, 1957) and the date of taking (January 26, 1959). It also complains that evidence of enhancement in value because of nearness to the two interchanges was admitted.

The first complaint is not supported by the record, but there was evidence as to enhancement in value of the property taken and especially evidence of enhancement in value by reason of nearness to the two interchanges. Testimony of enhancement in value of property between the date of public announcement of the improvement and the date of the taking, which is attributable to the expected improvement, is admissible. Such enhancement in value is not compensable. Watson v. Chesapeake & O. R. Co., 238 Ky. 31, 36 S.W.2d 641; Commonwealth Department of Highways ex rel. v. Baldwin, 312 Ky. 782, 229 S.W.2d 744; Commonwealth Dept. of Highways v. Blackburn, Ky., 364 S.W.2d 332. Cf. Commonwealth Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844.

Further, witnesses on both sides testified to the value of the land as of January 26, 1959, the date of its taking. Testimony was admitted of two comparable sales, one shortly before and the other shortly after that date. The instructions directed that the jury fix the value as of January 26, 1959.

The value of the land in its condition and situation at the time of taking is the value to be determined. Evidence which tends to raise or lower that value is competent. United Fuel Gas Company v. Mauk, Ky., 272 S.W.2d 810. The evidence and instructions both pointed to January 26, 1959, as the date for which the value was to be fixed. There is no merit in the first two grounds urged for appeal.

The court refused to admit testimony offered by appellant that it was damaged $6,415 by reason of loss of frontage taken. The amount of damages sought was fixed at the claimed cost of additional frontage in lieu of the frontage lost. Such testimony is erroneous since the landowner is entitled to recover only on the basis of the fair market value of the property at the time of taking. Commonwealth, by State Highway Commission v. Begley, 261 Ky. 812, 88 S.W.2d 920; Commonwealth Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714; Commonwealth, Dept. of Highways v. Eubank, Ky., 369 S.W.2d 15. The evidence was properly rejected.

Appellant also complains that ap-pellee’s witness was permitted to testify that there was no demand to purchase appellant’s property until it was taken by condemnation. There was no harm in such testimony since it was one of the conditions prevailing concerning the value of the property. Kentucky Hydroelectric Co. v. Reister, 216 Ky. 303, 287 S.W. 357.

An Instruction No. 4 was offered by appellant and refused by the court. In essence, the instruction said that the jury in determining the fair market value of the land was not limited to its actual use but that it could consider all uses and award compensation on the basis of its best use. The witnesses on both sides testified that the best use of the land was for industrial purposes. This was taken into consideration by them in evaluating the property. The jury heard this testimony. The instruction offered by appellant would serve only to single out and give undue prominence to the use of the land for industrial purposes. Stanley’s Instructions, Volume 1, Section 28, page 54. The instruction would have further emphasized a point which was established and uncontradicted and it, therefore, was properly refused.

Judgment affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. C. S. BRENT SEED COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Hi. C~ Smith, Lexington (Dept, of Hwys.), for appellant.
    John C. Anggelis, Lexington, Marcus C Redwine, Jr., Winchester, James Park, Jr.,. Lexington, for appellees.
   PALMORE, Judge.

The Commonwealth brought this proceeding in the Fayette County Court to condemn certain easements under KRS 177.081 et seq. Commissioners appointed by the county court fixed the compensation to be paid the landowners at $12,896.33. The owners appealed the resulting award to cir.cuit court on the ground.it was inadequate. The Commonwealth did not appeal. A jury in circuit court, returned a verdict .in the-amount of -$9,560.00, or $3,336.33 less than the county court award. On motion of the landowners the circuit court entered judg■ment in their favor for $12,896.33. The Commonwealth appeals, contending the amount of the judgment should be $9,560.00.

When the Commonwealth does not appeal from the county court award the is.sue of excessive compensation is closed and no longer justiciable in the same proceeding. The only issues triable in the circuit court are those stated in the appeal. KRS 177.-087(1); Commonwealth v. Mayo, Ky., 324 S.W.2d 802 (1959). The landowners’ appeal ■stated exceptions to the award on the ground it was inadequate. This was the only issue before the circuit court relating to the .amount of compensation. The jury having arrived at an amount still less than the ■county court award, that issue was resolved against the landowners. But to deprive them of the benefit of the county court .award, the recovery to which they were entitled had they not appealed at all, would in ■ effect give one party an automatic cross-.appeal in the event of an appeal by the other. This would contravene the policy of the ■statute. See Commonwealth, Department of Highways v. Berryman, Ky., 363 S.W.2d 525 (1963). Despite procedural differences, the principle of Bullitt v. Commonwealth by & through Department of Highways, Ky., 298 S.W.2d 290 (1957), governs this case.

It is contended that the land- ■ owners’ failure to ask that the instructions limit the award to a minimum of $12,896.33 ■estopped them from insisting on a judgment •not in conformity with the verdict. However, a judgment is limited by the pleadings. 'The pleadings in this kind of case consist •of the statements of appeal and proper responses thereto. A certified copy of the ■ county court judgment is an essential adjunct of a statement of appeal. KRS 177.-'087(1). The pleadings in circuit court here •showed that the appealing landowners had recovered $12,896.33 in county court and -wanted more. There was no pleading contending they should have less.

It is our further opinion that instructions in condemnation cases should not state either maximum or minimum limits of recovery. In this particular case it would in effect have told the jury what the county court commissioners had awarded. We have recently held such information to be prejudicial. Commonwealth, Department of Highways v. Swift, Ky., 375 S.W.2d 691 (1964). The procedure followed by the circuit court was correct.

The judgment is affirmed.