author: YOUNG, Justice.

text:
    Adeline Marguerite KAHERL, Appellant, v. Elwood Franklin KAHERL, Appellee.
    No. 16005.
    Court of Civil Appeals of Texas. Dallas.
    May 18, 1962.
    Maurice Amidei, Fort Worth, for appellant.
    A. Foy Curry, Jr., and A. F. Curry III,. Fort Worth, for appellee.
   YOUNG, Justice.

This is an action for divorce filed by Elwood Franklin Kaherl against Adeline Marguerite Kaherl on grounds of statutory cruelty, also for division of community property. On the non-jury trial of May 29,. 1961 a judgment of divorce was granted’ to Kaherl after a contest, decreeing that real estate located at Round Lake, Illinois, was community property and to be held by the parties as tenants in common; awarding Adeline Kaherl a judgment of $250 against appellee as attorney’s fees and taxing cost of suit against her. The judgment so rendered has been duly appealed.

Of the eleven grounds of appeal, appellant asserts in point No. 6 the insufficiency of evidence to establish cruel treatment as a basis for divorce; and we will first outline the testimony adduced from the parties on that issue.

Elwood Kaherl testified to living in Texas since 1959, this having continuously been his home, living in Dallas County for more than six months before filing of petition for divorce; that he married defendant on March 5, 1949, separating from her January 31, 1961. He was employed by Railway Express Company as traveling investigator, doing undercover work; that defendant was always threatening him, and on several occasions she had threatened to kill him; that the home was not well kept, they having constant arguments about it. That defendant had gotten acquainted with a lady who belonged to an “over 30” dance club, going out often with her; on one occasion defendant mentioning that “she and this lady friend had gone out to a smorgasbord for dinner and two fellows asking for a ride and they gave them a ride and they went to some private club at the Statler Hotel”; that he had talked with her before the separation in an effort to “get her to straighten up” and make a home for him, she doing alright for a time and then it would be “the same thing again”. Then when defendant told him about going out with a man, “that was the last straw”; that they had no real property except a home at Round Lake, Illinois, a suburb of Chicago. On cross-examination by defense counsel, Kaherl testified that he had resigned from his job with Railway Express on January 19, 1961, not so advising defendant but leading her to believe that he was being transferred back to Chicago, his former place of employment, the couple leaving Dallas on January 30, arriving in Chicago the next day when he separated from her, going to a hotel, mailing her a letter of final separation (later placed in evidence by defendant). He further stated that he had given defendant a birthday present on January 16, 1961, separating from her on January 31st and that they had cohabitated as husband and wife up until that time.

Defendant, Mrs. Kaherl, testified to their living together harmoniously in Dallas, denying all charges made by plaintiff — no threats or misconduct on her part; that he had told her earlier in January of his transfer to Chicago; and on January 30th, 1961 he took her there; she not knowing of his resignation from the Railway Express Company until the letter written by him on January 31 as follows: “Adeline: By the time you receive this will be some distance from Chicago so guess it will be somewhat of a surprise to you. Well here is the whole story did resign from the REA Express January 19, 1961 by letter to Chicago. There is no sense to continue this pretending on my part regards to our being married to each other as for the past 11 years that is just what it has been for me just pretending. This will no doubt be a shock to you and every one else but the sooner you realize it is true the better off you will be. You will think there is another person involved well that is a mistake as have just had all the married life that ever want. So please do not attempt to contact me as it will not change a thing and will only be wasting your time. Do not think am sick or off my rocker as never did feel better in my life. Will in the future contact you in regards to the house at Round Lake. As stated attempting to contact me is useless as no one will force us to life together again it just can not be done, therefore may as well except (sic) this letter and any other correspondence you may receive and forget about it all. /s/ Elwood Kaherl”. She related that on January 16th, 1961 he had bought her a necklace and earrings, embracing her, saying that she had been a wonderful wife; and that up until the date of separation they had continued to cohabit and have relations as husband and wife.

Points one and two are directed to insufficiency of allegations concerning in-habitancy and residence of plaintiff. Art.

4631, Vernon’s Ann.Civ.St. providing that “no suit for divorce shall he maintained in the Courts of this State unless the petitioner for such divorce shall at the time of exhibiting his or her petition, he an actual bona fide inhabitant of this State for a period of twelve (12) months, and shall have resided in the county where the suit is filed for six (6) months next preceding filing of same.” Appellee’s amended petition manifestly did not follow above statutory wording, appellant pointing to several deficiencies in special exceptions. They do not appear to have been brought to the attention of the trial court and hence must be considered as waived. Rule 90, Texas Rules of Civil Procedure. Allegations of residence of the parties are not jurisdictional, however, Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198; but constitute qualifications upon the right of plaintiff to maintain the suit for divorce. Goforth v. Goforth, Tex.Civ.App., 335 S.W.2d 281. While the statute by its terms does not require its language to be exactly followed, Martinez v. Martinez, Tex.Civ.App., 343 S.W.2d 734, the failure to do so by a litigant can hardly be excused. And the facts of residence must be proven on a trial to the merits before a court can entertain the action. 20 Tex.Jur.2d p. 405. The necessary proof of residence is here shown by testimony of the parties and it may be that the allegations made by appellee are also sufficient, but the matter need not be further labored. For condonation has here been established as a matter of law; Kaherl having admittedly cohabited with appellant as husband and wife until the date of their separation. * * * “or continuing to cohabit without interruption, with full knowledge of all misconduct charged, constituted condonation thereof and precludes setting up of the misconduct as a ground for divorce.” 20 Tex.Jur.2d § 55, p. 399; Bippus v. Bippus, Tex.Civ.App., 246 S.W.2d 502. Appellant first pled this defense in second amended original answer on date of trial, allegedly “after having obtained leave of court”; and while appellee in answering brief states “the trial court refused to allow the same to be filed”, the record does not indicate any such adverse ruling by Judge Mead. This amended answer and defense must therefore be considered by us as properly in the record. Condonation as a defense has been clearly established by both parties and the judgment of the trial court: is accordingly reversed and is here rendered denying the divorce. This conclusion, renders unnecessary a consideration of further points of appeal, except point eleven,, which is also sustained. Appellant correctly states that: “The trial court had no-jurisdiction over the appellee’s and appellant’s real estate located in Illinois to adjudge that it is community property and' that they are to hold it as tenants in common. Moor v. Moor, Tex.Civ.App., 255-S.W. 231 (235) (Tex.Civ.App.1900). It is. possible that Illinois does not recognize our community property laws or tenancies in common. The law of the situs controls as. to land.”

Reversed and rendered.


source: Caselaw Access Project

author: MOREMEN, Judge.

license: Public Domain

text:
    Nell B. DONOHO, Appellant, v. Glen B. DONOHO, Jr., Appellee.
    Court of Appeals of Kentucky.
    May 18, 1962.
    Reed & Hines, Paducah, for appellant.
    Emery & Carroll, Paducah, for appellee.
   MOREMEN, Judge.

Appellant, Nell B. Donoho, and appellee, Glen B. Donoho, Jr., a dentist, were married at London, Ky., on June 29, 1955. Two children were born to the marriage, Glen B. Donoho III and George B. Donoho. The Donohos lived in Paducah where appellee practiced his profession. On September 15, I960, appellant voluntarily left their home. Soon afterward Dr. Donoho filed suit for divorce on the ground that appellant had habitually behaved toward him in a cruel and inhuman manner. At that time the children were of the ages of four and two years respectively. After extensive hearings the court found that appellant was guilty of such cruel treatment toward ap-pellee as constituted grounds for divorce, and awarded to him the custody of the two children. The mother was given visitation rights. Dr. Donoho was awarded the home property. Appellant was given the sum of $1500 in full satisfaction of any interest she may have claimed in the property. No alimony was awarded.

We have said many times that in determining the custody of infant children of divorced parties the prime consideration is the welfare of the children. A few of the later cases so saying are: Sparkman v. Sparkman, Ky., 256 S.W.2d 20; Renfro v. Renfro, Ky., 291 S.W.2d 46; Turner v. Turner, Ky., 336 S.W.2d 586. It is axiomatic that the custody of small children is usually given to the mother if she is a suitable person, Sparkman v. Sparkman, 256 S.W.2d 20, or to say it another way: the grant of custody of such children to the father is usually unnatural, but sometimes justified, Day v. Day, Ky., 347 S.W.2d 549. Some cases have indicated that before the mother should he denied custody of her children she must be morally unfit to have their custody, Conlan v. Conlan, Ky., 293 S.W.2d 710, but denial of custody is not always placed solely on grounds of moral unfitness, Day v. Day, Ky., 347 S.W.2d 549, and Turner v. Turner, Ky., 336 S.W.2d 586. Usually when opinions speak of moral unfitness, the reference is to incontinence on the part of the wife, actions pertaining to breach of her duties as a faithful wife, lewd behavior, or other derelictions of that nature. Morality, of course, has many aspects, and is concerned with ethical principles which apply to all phases of human conduct, and is not confined solely to the rules of behavior governing the relationship between men and women.

The circuit court found that there was evidence which might indicate infidelity on the part of appellant or, at least, that her conduct was not above suspicion. The proof did not point unerringly to her guilt, but did disclose indiscreet actions on several occasions. We do not believe, however, that this was the major basis of the award of the children to the father. An attitude of indifference toward her children appears to have been the decisive factor.

At the time of the separation appellant was about twenty-seven years of age. The proof is certain that soon after the birth of her second child she seemed to become bored with married life and its responsibilities and gradually lost interest in the home.

At first the young couple lived in an apartment house in Paducah with which Mrs. Donoho was not content and she began to spend more and more time away from home. She would go at night to the laundrymat and bowling lanes and spend considerable time there. She would visit with her neighbors for extended periods on many nights. She complained that she was dissatisfied with the apartment in which they were living. Dr. Donoho tried to build a home, but was unable to make financial arrangements at that time. He soon purchased a home, however, which was larger and to their liking and for a few weeks Mrs. Donoho seemed satisfied and worked at fixing up the house. She then drifted into’ her old habits and began visiting her friends in the neighborhood where they formerly lived, and also began going to the bowling alley frequently; Often when appellee returned home at four-thirty or five o’clock in the afternoon she would not be there. The children would' be with the maid or the baby sitter and on some occasions the doctor would find it necessary to put the children to bed and otherwise minister to them. Some witnesses testified that she went to the bowling alley five or six times a week and spent three or four hours there on each occasion — often at night.

It is not necessary to outline the complete process of deterioration of this home. All the evidence points unerringly to the fact that appellant had become bored with married life and had lost interest in her husband and in her children. This may be a temporary thing that will soon pass and perhaps if conditions do change other adjustments will be made if it is shown there has been a true reformation. Under the evidence in this record we believe the chancellor at this time had no choice but to grant custody of these children to the father. Certainly he did not abuse sound discretion in refusing under the circumstances to give the children to her.

We are of the opinion that the chancellor was correct in denying alimony. This case does not fall under the category of cases such as that of Coleman v. Coleman, Ky., 269 S.W.2d 730, where it was held that if the wife was not wholly at fault and was not guilty of any moral delinquency, she’ would be entitled to alimony although the divorce was granted to the husband. In most of these cases there was a long span of married life and for many years the wife assisted the husband to a certain- measure in building up his estate. Often she had reached an age where it was too late, because of her’ age, for her to start a new way of living.

Further, in this action appellant counterclaimed for divorce on the ground that Dr. Donoho had treated her in a cruel and inhuman manner. In the findings of fact the court specifically made the determination that he had not subjected her to such treatment. There is nothing in the opinion which was filed in the case and made a part of the judgment, or in the judgment, that indicates Dr. Donoho was at fault in any degree.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Louis MASON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 18, 1962.
    Joseph S. Freeland, Paducah, for appellant.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst, Atty. Gen., for appellee.
   PALMORE, Judge.

The appellant, Louis Mason, was convicted of storehouse breaking, KRS 433.-190, and sentenced to one year in prison. He neither testified nor offered any other evidence in defense, but stood on a motion for a peremptory at the close of the state’s case. The only question is whether the evidence was sufficient to support a conviction. We think that it barely was.

The office of Commercial Credit Corporation at Paducah was forcibly entered during the night. When the employees ar- . rived for work the next morning they found it in a state of disarray and several items of property missing. Among other things, a soft drink vending machine, or “drink box,” had been moved out several feet from the corner of the room where it had been standing and had been damaged by some blunt instrument in an apparent attempt to break it open. Appellant’s right thumb print was discovered on one side of this box, a few inches back from a rip in the metal molding on the front corner, and his left index print was found on the back, some 12 or 14 inches from the corner. These prints were on the two sides of the machine that had been against the wall as it stood in the corner.

There was no other evidence to connect appellant with the crime. The drink box did not belong to Commercial Credit Company, but was the property of the soft drink company, and had been in the offices of the Commercial Credit Company for about 12 weeks immediately prior to the break-in. There was no evidence as to where it had been before that time, nor any testimony relating to the length of time the prints could have been on the box. There was no showing that it did or did not bear the fingerprints of other persons. No prints of the appellant’s fingers were discovered in any of the other places (including the broken rest room window, whence the illegal access was gained) checked by the police identification expert at the scene.

Appellant cites the familiar rule that if the evidence is equally consistent with innocence and guilt it cannot convict. Had there, been any evidence of his prior access to the drink box under innocent circumstances, this principle would certainly have applied. Standing alone, however, the prints on the jimmied machine point the finger of guilt at the appellant. The remote possibility that els one member of the public at large he might have had his hands on the side and back of the machine at some other time and place three months or more prior to the date of the crime does not, in our opinion, offset or equally balance the inference of guilt arising from the presence of his prints on the box immediately after it had been handled by the burglar.

It has been stated as the general rule that fingerprints alone will support a conviction only if they are found in the place where the crime was committed “under such circumstances that they could only have been impressed at the time when the-crime was committed.” (Emphasis added.) Annotation, “Fingerprints, palm prints, or bare foot prints as evidence,” 28 A.L.R.2d 1115, 1154. See also 16 A.L.R. 370, 371. To accept this choice of words would, it seems to us, refute the oft-repeated rule in this state that “if there is any evidence, however slight or circumstantial, which tends to show guilt of the crime charged or any of its degrees, it is the trial court’s duty to submit the case to the jury.” Harlan v. Com., 1934, 253 Ky. 1, 68 S.W.2d 443, 447.

It is our conclusion that the unexplained presence of appellant’s fingerprints on the machine immediately after it had been handled by the guilty party tended to identify him as that party. However weak the inference may have been, it was stronger than the speculative possibility that the prints were impressed innocently, and was sufficient to sustain the verdict.

Judgment affirmed.


author: BIRD, Judge.

text:
    Carl FOLTZ et al., Appellants, v. KENTON COUNTY WATER DISTRICT, Appellee.
    Court of Appeals of Kentucky.
    May 18, 1962.

      Frank V. Benton, III, Benton, Benton, Luedeke & Rhoads, Newport, for appellants.
    Thomas E. Horne, Covington, for appel-lee.
   BIRD, Judge.

The nature of this action can best be described by quoting the brief complaint, to-wit:

“1. On about April 29, 1960, by order of the Kenton County Court, defendant, Kenton County Water District levied an assessment against plaintiffs, Carl Foltz and Marie Foltz, in the sum of Four Thousand and Six and 9%oo ($4,006.93) Dollars, for the purpose of constructing a water main along the right of way of Turkeyfoot Road in Kenton County, Kentucky, abutting the property of said plaintiffs, as part of a new water line and system extending from Orphanage Road, in a general southerly direction. Construction of said water main system has now begun.
“2. The assessment above mentioned was illegally and unlawfully levied, and plaintiffs have no adequate remedy at law to obtain relief from said assessment.
“3. The assessment mentioned was levied without notice to plaintiffs, and without public hearings, as required by law.
“4. The assessment above mentioned is excessive and constitutes an arbitrary and flagrant abuse of discretion.
“5. The assessment above mentioned was levied without complying to the requirements of the statutes relating thereto.
“6. The Kenton County Water District failed to obtain a certificate of public convenience and necessity from the Public Service Commission of Kentucky, and by reason thereof, the construction of the said water main system is illegal and unlawful.
“WHEREFORE plaintiffs demand:
“1. Judgment permanently enjoining defendant, Kenton County Water District, from constructing the water main described in paragraph 1 of this complaint.
“2. That the Kenton County Water District be permanently enjoined from collecting the assessment levied against the plaintiffs in paragraph 1 of this complaint.”

Seven defenses appear in the answer, the first of which states that complaint “fails to state facts upon which relief may be granted.”

The trial court dismissed the action and the plaintiffs have appealed.

The record does not clearly show the manner in which the trial court reached its findings of fact and conclusions of law. Such findings and conclusions are in dispute.

However, the complaint clearly shows that the plaintiffs merely seek to avoid the payment of an assessment.

It is the Court’s opinion that the complaint shows that the plaintiffs have an adequate remedy at law by defending an effort to collect the assessment and are therefore not entitled to injunctive relief.

Regardless of how the trial court arrived at its judgment the complaint should have been dismissed under the first defense.

The judgment is affirmed in so far as it denies injunctive relief and dismisses the complaint. Due to the condition of the record, neither this opinion nor the judgment of the circuit court shall be construed to deprive appellants of any remedy at law available to them at the time of the filing of this action.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. James A. BROWN et al., Appellees.
    Court of Appeals of Kentucky.
    May 18, 1962.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Lawrence L. Pedley, Asst. Attys. Gen., Frankfort, for appellant.
    William M. Deep, King, Deep & Brana-man, Henderson, J. W. Blackburn, Louisville, for appellees.
   BIRD, Judge.

This appeal arises from a condemnation action tried before a jury in the Henderson Circuit Court.

The measure of damages was the difference in market value of a tract of farm land immediately before the taking for highway purposes and immediately after.

On appeal the condemnor insists that condemnees failed to prove an “actual after the taking value.”

Our examination of the record discloses that two witnesses testified on behalf of condemnees in answer to specific questions on that point, each giving his opinion as to the value of the farm after the taking of 4.24 acres for highway purposes. The witnesses were properly qualified. The questions and answers did not follow in the usual sequence and it would not be difficult to overlook them. They are, however, in the record and we find no prejudicial error regarding that point.

It is contended further that the verdict of the jury was the result of passion and prejudice. The record discloses that the verdict was for far less than it could have been under the evidence. The witnesses showed themselves to be adequately qualified on the question of values. The verdict is liberal but we cannot, under the evidence reasonably say that it is the result of passion and prejudice. Commonwealth Dept, of Highways v. Hall, Ky., 353 S.W.2d 548.

Condemnor further argues that the testimony on behalf of condemnees concerning value is without probative value because of interest. Our examination of the record does not disclose a situation of that kind.

We find no reversible error. The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. MIDDLESBORO-LaFOLLETTE BUS LINE, INC., Appellee.
    Court of Appeals of Kentucky.
    May 18, 1962.
    Glenn W. Denham, Middlesboro, for appellant.
    James W. Smith, Elizabeth Gillis, Mid-dlesboro, for appellee.
   MONTGOMERY, Judge.

The Middlesboro-LaFollette Bus Line, Inc., recovered judgment against the Hartford Accident & Indemnity Company in the, sum of $4,203.20 for the destruction by fire of a bus. The bus line sued to recover $4,500 as the value of the bus insured under an alleged contract of insurance pursuant to an oral agreement by Hayden Smith, its president and general manager, and Jack T. Jenkins, Hartford’s local agent. Hartford contends that there was no meeting of the minds as to the amount of insurance or the preimum to be paid; hence, no contract. The bus line urges that Hartford’s agent, Jenkins, bound his company to insure the bus in the amount of $4,500 for a premium to be determined by Hartford, which the bus line agreed to pay upon such determination. The verdict was for the net amount after deduction of the premium.

Early in June 1959, Smith approached Jenkins, local agent for several insurance companies, to secure a fire and theft policy of insurance on a fleet of buses, including the one in question, and other equipment. No policy had been delivered and no premium had been paid at the time of the loss on August 14, 1959.

Smith testified for the bus line that the bus was to have been insured for $4,500; that he inquired of Jenkins what the premium would be; that Jenkins advised that the amount of the premium would have to be ascertained; and that he agreed with Jenkins to pay whatever amount the premium was determined to be. About two weeks after the initial discussion about the coverage, Smith said Jenkins advised that the Travelers Insurance Company to which he had sent the application had quit writing that type of business and that he had sent it to Hartford. In response to Smith’s inquiry, “What happens if I have a loss?” Smith testified that Jenkins replied, “It doesn’t make any difference, you are protected anyway.” Jenkins’ authority as local agent for Travelers and Hartford was identical and included the authority to bind a risk upon application being made.

Smith reported the loss to Jenkins the morning after the fire and was advised that the policy had not been received. Smith also said that he called Jenkins’ attention to the listing of the value of the bus at $3,000 on the schedule and told him it should have been $4,500. He testified that Jenkins said, “I guess that is a mistake on my part and you will get insurance for $4,500.00.”

A few days later, Jenkins, in the presence of Smith, called Hartford’s Cincinnati office about the loss. Smith testified that he heard Jenkins say, “No, I didn’t give him anything in writing, I just told him he was under binder.” Jenkins later told Smith he would write Hartford about the loss. A reply denying liability was received.

Jenkins admitted telling Smith that the risk was under binder when he sent the application to Travelers. Upon receipt of Travelers’ rejection of the risk, Jenkins, then about to depart on a three-week vacation, left a note to his secretary to “write Hartford on fire and theft.” The secretary wrote Hartford, asking that a fire and theft policy be written to cover the bus (which was later burned) and the other property, effective immediately. A schedule of the equipment was attached.

Jenkins denied telling Smith that the application had been rejected, that ap-pellee was protected, or that the coverage was to be $4,500. Jenkins admitted making the call to the Cincinnati office but denied that he had told Smith the risk was under binder. Jenkins further said that he was unfamiliar with premium rates on this type of business but felt that Smith “would pay for the insurance when it was secured.”

It is conceded that there was an agreement on four of the essential elements of an insurance contract. The buses and equipment of the bus line were to be insured by Hartford against fire and theft for one year. The subject matter, the risk, its duration, and the identity of the parties were not in controversy. See Shawnee Fire Insurance Company v. Roll, 145 Ky. 113, 140 S.W. 49; Kitchen v. Yorkshire Insurance Company, 226 Ky. 376, 10 S.W. 2d 1074.

Hartford contends that there was no agreement on the amount of insurance or the rate of premium, the other two essential elements of an insurance contract. The witnesses were in agreement that the premium rate was to be ascertained and that whatever it was determined to be would be paid by appellee. This is typical of the transaction where temporary protection against a risk is sought to be covered. In such case, the agreement as to rate of premium is that the insured agrees to pay such premium as is usual and customary or a reasonable one to be fixed or determined by the insurer. In the absence of a specified premium, it was enough to “provide a way in which it was to be fixed.” Pennsylvania Fire Insurance Company v. Cullin, 202 Ky. 107, 258 S.W. 965. The agreement of the parties here on the rate of the premium was sufficient. Standard Fire Insurance Company v. Robey, 257 Ky. 204, 77 S.W.2d 785; Preferred Risk Fire Insurance Company v. Neet, 262 Ky. 257, 90 S.W.2d 39.

Appellant relies on Campbell v. Aetna Insurance Company, Ky., 269 S.W.2d 292, wherein recovery was sought, but denied, for $120,000 against the twenty insurance companies represented by a single agency. In that case the rule as to rate of premium, as stated above, was approved but was held inapplicable because there was a question as to the kind of insurance contemplated by the parties. There is no such question here. Further, in the Campbell case there was a failure to show the amount each company was to insure. Here, there is a single company, Hartford, which admittedly is the would-be contracting company. But it contends that there was no meeting of the minds on the amount of insurance.

The trial court submitted this question to the jury under instructions which permitted the jury to determine whether each element of the insurance contract, except the premium rate, had been established and, if so, to find that the amount of insurance was to be either $4,500 or $3,000. The jury was further instructed that in order for the parties to have made a contract “their minds must have met and both of them or their agents must have agreed.” Inasmuch as there was a conflict in the testimony on the amount of insurance, the issue was properly submitted to the jury under the instructions mentioned. Ordinarily where parties differ as to the terms of an express contract and there is evidence, as here, to support the claim of each of them, it is for the jury to determine what the contract term in question is. Meem-Haskins Coal Corporation v. Pratt, 299 Ky. 767, 187 S.W. 2d 435.

The evidence offered by appellee was sufficient to establish the contract; the jury believed Smith instead of Jenkins and his witnesses; and the verdict was supported by substantive evidence. The motion for judgment notwithstanding the verdict was properly overruled.

Judgment affirmed.


author: CLAY, Commissioner.

text:
    Fannie DECKER, Appellant, v. Claude COFFEY, Appellee.
    Court of Appeals of Kentucky.
    May 18, 1962.
    W. C. Dabney, Bruce H. Phillips, Monticello, for appellant.
    Appellee not represented by counsel.
   CLAY, Commissioner.

Appellant is the owner of land through which there is a private passway appellee is entitled to use. For his convenience in driving his cattle over this passway, appel-lee asserted a right to fence it through appellant’s land. This right was confirmed by a judgment which determined other controversies between the parties.

It appears the proposed fence will be erected (or already has been erected) a few feet off the right of way, although the judgment does not specify its exact location. The location, however, is not material.

The only interest appellee has in appellant’s land is an easement to use the pass-way. He has no right to erect fences on such land either within or without the confines of the passway. This very question was settled in the case of Higdon v. Nichols, 204 Ky. 56, 263 S.W. 665.

The judgment is reversed to the extent that it adjudges appellee a right to place fencing on appellant’s land.


text:
    The HOME INSURANCE COMPANY, Appellant, v. Bernard COHEN et al., Appellees. FIDELITY-PHENIX FIRE INSURANCE CO. OF NEW YORK, Appellant, v. Bernard COHEN et al., Appellees.
    Court of Appeals of Kentucky.
    May 18, 1962.

      James S. Welch, Percy Brown, Jr., Ogden, Brown, Robertson & Marshall, Louisville, for appellants.
    Carl K. Helman, William S. Heidenberg, Louisville, for appellees.
   BIRD, Judge.

Bernard Cohen and Rose Cohen operated a ready-to-wear mercantile establishment in Louisville, Kentucky.

On June 16, 1958, they suffered a substantial loss by fire which was partially covered by policies of insurance issued by The Home Insurance Company and the Fidelity-Phenix Fire Insurance Company.

Demand was made for payment under the provisions of the respective contracts. Each company denied liability. The Co-hens sued and a jury found for the Cohens against each insurance company in the full amount of coverage. The companies have appealed.

Each of the policies contained the following provision:

“This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning the insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.”

On appeal it is contended that the trial court erred in striking from the record the following paragraphs of the answer:

“7. Morton Cohen, the son of the plaintiffs, was the manager of the la-
dies’ ready to wear store owned by plaintiffs and damaged by the fire here in suit, and, as such manager, was the agent of the plaintiffs with full power and authority to do all things necessary or desirable relating to the conduct of the business. On August 26, 1958, Morton Cohen stated under oath as follows:
“ ‘Q. What do you think caused this fire?
“ ‘A. Well, the only thing I can think is what they say, is the wiring.’
which statement by Morton Cohen was sworn to and was false and was known to Morton Cohen to be false and to pertain to a matter material to the insurance.
“8. By making the statement contained in paragraph 7 above. Morton . Cohen as agent of and standing in the place and stead of the plaintiffs wil-fully concealed a fact material to this insurance, to wit: the fact that he, Morton Cohen, wilfully and maliciously caused the fire which damaged plaintiffs’ property.”

It is likewise contended that the trial court erred in refusing to admit testimony that the fire in question was caused by the arson of Morton Cohen, the person mentioned in the foregoing paragraphs of the answer.

The companies claim that Morton Cohen wilfully burned the place at a time when he was manager of the store and that his false statements concerning the origin of the fire are, by reason of his managership and confidential relationship, imputed to the insured and that they are thereby precluded from recovery under the quoted provision of the policy.

It is not charged in the pleadings that the insured or either of them entered into a conspiracy to burn the store or that they or either of them had any knowledge concerning the origin of the fire at the time they made statements in the proof of loss that the cause of the fire was unknown to them.

We hold that a principal is not liable for the torts of an agent, unless the tort committed was under the instruction of the principal, or within the apparent authority of the agent. Any liability must rest under the doctrine of “Respondeat Superior.” Wolford v. Scott Nickels Bus Co., Ky., 257 S.W.2d 594. See also Bray-Robinson Clothing Co. v. Higgins, 210 Ky. 432, 276 S.W. 129.

In order to impose liability upon the master for either a civil or criminal wrong, the proof must show that the act is one that the agent was employed to perform, or that it accrued substantially within the authorized time and space limits of the employment or that the offender was actuated at least in part by a purpose to serve the master. Brooks v. Gray-Von Allmen Sanitary Milk Co., 211 Ky. 462, 277 S.W. 816, 46 A.L.R. 1207; John v. Lococo, 256 Ky. 607, 76 S.W.2d 897; Moore v. Ford Motor Co., 265 Ky. 575, 97 S.W.2d 400; Fournier v. Churchill Downs-Latonia, Inc., 292 Ky. 215, 166 S.W.2d 38.

The facts stated in the stricken portion of the answer are insufficient to impute Morton Cohen’s statements and knowledge to the insured. Whatever statements that may have been made by Morton Cohen concerning the origin of the fire could not under the facts alleged and the law thereunto pertaining be imputed to the insured, and the falsity of these statements, if they were false, will not bar a recovery by the insured as provided by the policy. It was not error to strike from the answer those allegations which charge the insured with false and fraudulent statements by imputation through Morton Cohen.

Though this part of the answer had! been stricken and though there was no other pleading charging that the insured had sworn falsely as to their knowledge concerning the origin of the fire the insurers persisted in trying to prove the incendiary origin of the fire. The trial court would not permit the testimony to be introduced and, on the appeal, they insist that the trial court erred in so refusing.

They rely on Hyland v. Millers National Insurance Company, 9 Cir., 58 F.2d 1003. In that case testimony was introduced proving that the fire was of incendiary origin. However, in that case it was specifically pleaded as a defense that the plaintiff had sworn falsely concerning his knowledge as to the origin of the fire. The opinion in that case points out that “the evidence was introduced to establish that plaintiff knew that the fire was of incendiary origin when he swore to the proofs of loss.”

In that case, as here, the insured was required to state in his proof of loss his knowledge as to cause and origin. As here, the insured swore that the cause and origin were unknown to him. As in the present case the insured was not charged with the burning nor was he charged with having guilty knowledge of the incendiarism at the time of the fire.

Not as in this case, however, the insured was charged with swearing falsely concerning his knowledge of the origin of the fire at the time he executed his proof of loss, and the purpose of introducing the testimony was to show that he did at that time know the origin of the fire. On that issue the evidence was competent. In the present case that pleading is absent and there is no other pleading to justify the admission of such evidence.

The trial court refused to give an instruction on insured’s false swearing at the trial. The insurers insist that the fraud and false swearing provision, quoted in this opinion, applies to testimony at the trial as well as to statements made in the proofs of loss or preliminary examinations authorized under the policy.

In American Paint Service v. Home Insurance Company, 3 Cir., 246 F.2d 91, 94, 64 A.L.R.2d 957, it is said as follows:

“ * * * As early as 1872 the Supreme Court in Republic Fire Insurance Co. v. Weides, 14 Wall. 375, at pages 382-383, 20 L.Ed. 894, ruled on the issue involved and said:
“ ‘It is true the policies stipulated that fraud or false swearing on the part of the assured should work a forfeiture of all claim under them. The false swearing referred to is such as may be in the submission of preliminary proofs of loss or in the examination to which the assured agreed to submit. But it does not inevitably follow from the fact that there was a material discrepancy between the statements made by the plaintiffs under oath in their proofs of loss, and their statements when testifying at the trial that the former were false, so as to justify the court in assuming it, and directing verdict for the defendants. It may have been that the testimony last given was not true, or the statements made in the proofs of loss may have been honestly made, though subsequently discovered to be mistaken. It is only fraudulently false swearing in furnishing the preliminary proofs, or in the examinations which the insurers have a right to require, that avoids the policies, and it was for the jury to determine whether that swearing was false and fraudulent.’ (Emphasis supplied.)
“This case was cited in Carson v. Jersey City Insurance Co., 1881, 43 N.J.L. 300.
“Trial testimony in a case where fraud and false swearing is in issue serves to establish the truth or falsity of the preliminary proofs and the materiality and wilfulness of any false proofs. The fraud and false swearing clause is one beneficial to the insurer and it reasonably extends to protect
the insurer during the period of settlement or adjustment of the claim. When settlement fails and suit is filed, the parties no longer deal on the non-adversary level required by the fraud and false swearing clause. If the insurer denies liability and compels the insured to bring suit, the rights of the parties are fixed as of that time for it is assumed that the insurer, in good faith, then has sound reasons based upon the terms of the policy for denying the claim of the insured. To permit the insurer to await the testimony at trial to create a further ground for escape from its contractual obligation is inconsistent with the function the trial normally serves. It is at the trial that the insurer must display, not manufacture, its case. Certainly the courts do not condone perjury by an insured, and appropriate criminal action against such a perjurer is always available.”

The conclusion reached in that case is sound and we here adopt it.

We are not unmindful of this Court’s holding in World Fire and Marine Ins. Co. v. Tapp, 279 Ky. 423, 130 S.W.2d 848, in which we held that false swearing on a deposition as of cross-examination taken be>fore answer is covered by the fraud and false swearing provision heretofore quoted. For the sake of a sounder position we find it necessary to overrule that holding.

It is last contended that the trial court erred in not permitting the insurers to introduce the indictment and judgment in Morton Cohen’s arson trial. It would have been quite easy to impeach the testimony of Morton Cohen by establishing that he had been convicted of a felony without the introduction of records which could serve no purpose other than to prejudice the jury. The court ruled correctly.

We find no prejudicial error and the judgment is therefore affirmed.


text:
    Eb WADE, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    May 18, 1962.
    Eb Wade pro se.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, for ap-pellee.
   BIRD, Judge.

The Lyon Circuit Court dismissed Eb Wade’s petition for writ of habeas corpus. Wade appeals.

Wade was convicted in the McCracken Circuit Court on a charge of malicious shooting and wounding. In his petition for writ of habeas corpus he contends that he is wrongfully confined because of the introduction of evidence procured by an illegal search and seizure in violation of his constitutional rights.

A judgment of conviction on such testimony could be no more than erroneous. Only void judgments are subject to attack by habeas corpus proceedings. Lynch v. Jones, Ky., 342 S.W.2d 394; Mercer v. Commonwealth, Ky., 346 S.W.2d 761; Robinson v. Jones, Ky., 347 S.W.2d 514, 515. There is nothing in the record indicating that the judgment is void.

The action was properly dismissed and the judgment is therefore affirmed.


author: WADDILL, Commissioner. MONTGOMERY, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. R. T. VINCENT et al., Appellees.
    Court of Appeals of Kentucky.
    May 18, 1962.

      John B. Breckinridge, Atty. Gen., C. E. Skidmore, Department of Highways, Frankfort, Frank D. Berry, Madisonville, James H. Lucas, Bowling Green, for appellant.
    Sam Boyd Neely, Martin, Neely & Reed, Mayfield, for appellees.
   WADDILL, Commissioner.

On an appeal to the Graves Circuit Court from a county court award of $9,071, Robert Vincent and his wife recovered a verdict and judgment of $25,000 in a condemnation suit brought by the Commonwealth for construction of a bypass around the city of Mayfield. The verdict fixed the value of 9.24 acres of farm land taken from the Vin-cents at $15,000 and resulting damages to the remainder of their farm at $10,000. The land condemned was a portion of a 55-acre farm located about ½ mile from May-field which was shown to be reasonably adaptable for use as a residential subdivision.

Appealing from the judgment entered in the circuit court, the Commonwealth assigns as error: (1) The admission in evidence of a subdivision plat prepared after the condemnation proceeding was filed; (2) the verdict was based on incompetent testimony; (3) the failure of the instructions to state a proper basis for determining damages; and (4) the excessiveness of the verdict.

Over appellant’s objections the trial court permitted a plat to be introduced by the Vincents showing their entire 55 acres divided into a residential subdivision, although the property itself was not actually subdivided on the ground. The plat was offered in evidence solely to show the susceptibility of the land for use as a subdivision. For this limited purpose the plat was proper evidence. Commonwealth Dept. of Highways v. Evans, Ky., - S.W.2d - (decided May 4, 1962). Adaptability for particular uses to which the land may reasonably be put is a proper factor for the jury’s consideration in assessing damages. East Kentucky Rural Electric Co-op. Corp. v. Smith, Ky., 310 S.W.2d 535.

Appellant urges that the verdict was based on incompetent evidence. Two witnesses stated, without objection, that residential lots on the Vincent farm would have sold for $1,000 to $1,500 each and they apparently calculated the damages on that basis. While there is a serious question of whether this testimony was competent, it was not preserved for review in this Court by either a specific objection to the testimony or by the scope of the objections made to the introduction of the previously mentioned subdivision plat of the Vincent farm. CR 46; Division of Parks, Department of Conservation v. Hines, Ky., 316 S.W.2d 60. Appellant also claims that the trial court erred in permitting the landowner to testify concerning his intention to sell residential lots on his farm. Since it was shown that the land was adaptable to such use and there was a reasonable expectation that in the near future the farm could have been divided into lots, the landowner was entitled to have this evidence considered by the jury. East Kentucky Rural Electric Co-op. Corp. v. Smith, supra.

An instruction offered by the Commonwealth would have authorized the jury to fix damages at the difference between the fair market value of the Vincent property immediately before it became generally known that the bypass would be constructed and its fair market value just after the land was taken by condemnation. The proffered instruction was apparently premised upon certain language used in Commonwealth Department of Highways ex rel. v. Baldwin, 312 Ky. 782, 229 S.W.2d 744. In the instant case there was no evidence introduced concerning when it became generally known that the bypass would be constructed around Mayfield. Consequently the court did not err in refusing to give this instruction.

Finally, as to whether the verdict was excessive, we observe that the landowners’ witnesses, who were familiar with the Vincent farm and with land values in its vicinity, estimated the difference in the before and after value of the farm at amounts ranging from $28,000 to $40,000. When witnesses assign sound reasons for their estimates of damage, as here, we are unable to hold that the verdict is a result of passion and prejudice on the part of the jury. Commonwealth Dept. of Highways v. Hall, Ky., 353 S.W.2d 548; Commonwealth Dept. of Highways v. Kennard, Ky., 342 S.W.2d 531. Therefore, we cannot reasonably say that the sum awarded is excessive.

Judgment affirmed.

MONTGOMERY, Judge

(dissenting)'.

I respectfully dissent from the majority opinion because I feel that the objection made to the testimony concerning residential lots was preserved and the damages are excessive.

During the cross-examination of a witness for the Commonwealth, appellees’ counsel, over objection made, introduced a subdivision plat of the land in controversy. At that time counsel for the Commonwealth stated that he wished to obj ect to any testimony or any maps showing the intended use of the property as a subdivision, and referred to a case in which the Commonwealth had been required to pay for graveyard lots in a similar instance. Exception was granted to the court’s denial of the objection and counsel then requested a standing objection to all questions with reference to the landowners’ intended use of the land for subdivision purposes. Counsel for appellant then specifically objected to the next twenty or thirty questions asked concerning the proposed subdivision.

The single issue to be determined in this condemnation proceeding is the one of value of the land taken and the damages resulting to the remaining land. The sole purpose for which the subdivision plat was sought to be introduced was to influence the jury in arriving at the amount of damages to be awarded. The landowners were permitted to introduce evidence of the value of the platted lots in the proposed subdivision. One must be blind to reality to ignore the fact that such evidence did influence the jury. I feel that the objections made were sufficient to apprise the trial court that evidence as to the value of the land as subdivided lots was objectionable.

Further, there was evidence that the 55-acre farm was listed for taxes at $4,500. The landowners fixed the value of the home and outbuildings at $12,000 to $16,000. When these factors are considered with the other testimony and the amounts awarded, it is evident that the verdict was excessive.

In this case the substantial rights of the appellant have been affected by a palpable error, and even though it may have been insufficiently raised or preserved for review, relief should be granted to correct a manifest injustice. CR 61.02. The judgment should be reversed.


author: WILLIAMS, Judge.

text:
    John BROWN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 18, 1962.
    Robert P. Hastings, Stuart Lyon, David Kaplan, Louisville, for appellant.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

The appellant, John Brown, Jr., was tried in the Jefferson Circuit Court for the crime of armed robbery and the jury returned a verdict of guilty and a sentence of death. Brown prosecutes this appeal upon the sole ground that the prosecuting attorney made improper, inflammatory and prejudicial remarks in his closing argument to the jury.

On the afternoon of February 12, 1961, Brown entered Graf’s Produce Market, in Louisville, ordered some beer, and, upon being handed the beer, pointed a gun at the proprietor and said, “Let’s have it.” The proprietor withdrew $137 in small bills from the cash register and handed it to Brown, who walked backward out of the place of business, got into an automobile and drove away. The license number of the automobile was observed by two customers who were in the establishment at the time of the robbery. The police were notified and Brown was arrested within a short time.

At the trial Brown testified that he had previously been convicted of a felony and on cross-examination he admitted that he had been convicted of robberies in this state and in Illinois, and had served time in the penitentiary on those convictions. The jury was admonished that the testimony .concerning the prior felony convictions. was to be considered only as such would affect his credibility or truthfulness as a witness if the jury believed beyond a reasonable doubt that it did affect his credibility ,or truthfulness. The court properly admitted the testimony and properly admonished the jury concerning it. In White v. Commonwealth, 312 Ky. 543, 228 S.W.2d 426, we said:

“For the purpose of affecting the credibility of the witness the Commonwealth may show either by the witness or by court record that he has been convicted of a particular felony and the punishment inflicted.”

The prosecuting attorney, in his closing argument to the jury, stated:

“ * * * I ask you, I implore you, to help us, help us make Jefferson County a. place where a robber does not dare to pull an armed robbery. Confinement in the penitentiary, is that the answer, in view of the record of the man? Three and a half years for robbery, another robbery in Rockford, Illinois, assault with intent to rob here in Jefferson County with a 21. year sentence. Did any of those confinements stop him? The answer is obvious.”

The' appellant was on trial for one crime only. Substantive evidence concerning the other crimes which he had committed would not have been admissible. The effect of the closing argument of the prosecuting attorney was to make substantive evidence out of that which was admitted only for the purpose of attacking the witness’s credibility. As a consequence the argument was prejudicial. A similar argument was condemned in Matters v. Commonwealth, Ky., 245 S.W.2d 913, where it was said:

“In his argument to the jury the Commonwealth’s Attorney commented on Matters’ conviction of robbery in Ohio as though the evidence was admissible without qualification. This he should not have done. Fry v. Commonwealth, 259 Ky. 337, 82 S.W.2d 431.”

The prosecuting attorney also pointed out the fact that armed robberies were common in the community. The court overruled an objection to that argument on the ground that it is permissible to discuss the history of crime but at the same time admonished the jury that the defendant was on trial for only the one offense. The prosecuting attorney then went ahead with his history of crime in the community and included the following statement:

“It will certainly come as no surprise to you that a day does not pass that you can turn on your radio or your television without a report- of one or more crimes of violence. It may, however, come as some surprise to you for me to tell you that police statistics reveal that in December of this past year, in Jefferson County, Kentucky, there were 119 armed robberies — 119.”

He went outside the record to recite police statistics when there had been no testimony heard from which a fair and reasonable deduction concerning such statistics could have arisen. It is not improper to refer to the prevalence of crime in the community and to plead for the imposition of severe penalties as a method of stopping a crime wave. But argument should be limited to matters within the record or to fair and reasonable deductions arising from the record. Sexton v. Commonwealth, 304 Ky. 172, 200 S.W.2d 290. The statistics referred to were within the peculiar knowledge of the Commonwealth Attorney’s office and the police department. Had the record been offered as evidence it is doubtful that the court would have permitted its introduction. The appellant was being tried for only one offense. To permit 119 other offenses to be brought before the jury was prejudicial and improper.

An objection is also made to the statement that violence was used in the perpetration of this crime. The fact is that defendant pointed a loaded pistol at the proprietor and demanded money from him. It appears to us that such an act is sufficiently violent to warrant comment by the prosecuting attorney.

It is our belief that the arguments of the prosecuting attorney constituted errors which prejudiced the appellant’s substantial rights. Consequently, the judgment is reversed.


text:
    LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al., Appellants, v. Mildred M. FISHER, Executrix of the Estate of Marvin J. Fisher, Deceased, Appellee.
    Court of Appeals of Kentucky.
    May 18, 1962.

      Joseph E. Stopher, A. J. Deindoerfer, Boehl, Stopher, Graves & Deindoerfer, C. Hayden Edwards, W. L. Grubbs, Joseph L. Lenihan, James M. Terry, Louisville, for appellants.
    Charles C. McConnell, Raymond C. Stephenson, Louisville, Melvin M. Belli, San Francisco, Cal., for appellee.
   CLAY, Commissioner.

Marvin Fisher was killed when one of defendant’s freight trains struck the automobile he was driving at a railroad crossing in Jefferson County. A jury awarded his estate $162,121.50. The defendant appeals, contending it was entitled to a directed verdict.

The accident happened in the afternoon. The decedent was proceeding north on a paved two-lane county-maintained public road. There are two tracks at the crossing. A 61-car freight train headed by two diesel engines approached from decedent’s right (the east) on the far track at a speed of approximately 45 miles an hour. Decedent was alone in his automobile and no eyewitness observed the actual impact. The front engine struck the automobile squarely broadside and carried it some distance down the track.

The principal controversy developed at the trial and continued here is whether this crossing was extra-hazardous because of the alleged presence of tall weeds and/or other vegetation on the right of way. We do not find it necessary to decide that issue because in our opinion, whether or not the crossing was extra-hazardous in this respect, the decedent must be charged with contributory negligence as a matter of law. We will assume without deciding that because of the condition of the crossing and/or the acts of defendant’s employees, the jury could properly have found the defendant negligent.

On the question of contributory negligence, the significant factors are (1) the physical conditions at the crossing, (2) the duties of the decedent, and (3) decedent’s conduct in the operation of his automobile.

Certain physical conditions are not in dispute. The accident occurred at 4:00 p. m. on a cold, clear, winter day. The road on which Fisher was traveling was straight for< several hundred feet, with a slight offset to the left and a rise in the roadway a short distance before the crossing is reached. It intersected the track line, which was straight for a distance of 1700 feet, at a 52-degree angle.

The crossing was marked by two railroad signs, one a standard county yellow circular sign, and the other a “crossbuck” sign (one of the arms of which was missing). In addition, there was an official county STOP sign. It was the type of sign customarily used in the county to designate a boulevard stop and was located to the right of the roadway about 10 feet from the near track. Because of the slight bend of the road to the left just before reaching the crossing, a motorist traveling in the direction of the decedent (on the right side of the road) would run squarely over this sign unless he turned left to go over the crossing.

The only other significant physical characteristic of the crossing affected the visibility a motorist would have of an approaching train. This was violently in dispute, but on the issue under consideration we must accept plaintiff’s portrayal. Plaintiff introduced six witnesses concerning this condition.

Mr. Roberts testified in substance that on the day of the accident there were “massive” weeds on the right of way, eight feet tall, which blocked the motorist’s view of the tracks to the right of the crossing; and that the front bumper of an automobile “would almost be up to the ties before you could get any vision down the track”.

A Mrs. Link testified there were weeds and brush, also eight feet high, on the right of way and that the vision of a motorist was obstructed until “he was almost on the railroad tracks”. She said that one. could not see a train coming until “practically on the tracks”. She could not estimate how far she could see (in feet) if she stopped at the STOP sign above referred to.

A Mrs. Davidson testified about weeds and high bushes, although she was not very specific and the time of her observations was not clear.

Three additional witnesses testified about various types of vegetation which more or less obstructed a motorist’s view to the right when approaching from the direction Fisher approached. These three witnesses were the only ones for the plaintiff who attempted to describe the visibility from the point where the STOP sign was located. Mr. Miller testified that one would have to “get sort of close to the track” to see an approaching train, and he said “I would think so” when asked if one could get a good view to the east when 10 feet from the track. Officer Roehrs testified one could see approximately 140 feet to the right when the STOP sign was reached.

Officer Scannell, who investigated the accident and apparently made a careful study of the physical conditions, testified as follows :

“Q. How close would you have to get to that railroad track, that is, the actual rail itself, before you could see down the tracks ?”
“A. Well, if you’re driving a police car, we always had to get — your wheels almost had to be on your first track.”

In clarifying his testimony on this point he was asked on cross-examination the following questions and made the following answers :

“Q. Now, as you made your investigation there that afternoon on the scene of the accident, did you observe as to whether or not if Mr. Fisher came up here and made a stop at this stop sign that we talked about a moment ago, that red and white sign, he came up there and made a stop, did he or not have good visibility down this track to the east?
“A. Yes, Sir.
“Q. He did?
“A. (Witness nodding head in the affirmative).
“Q. No question about that, is there ?
“A. If he’s close to that stop sign, yes, Sir.”

On this appeal plaintiff has strenuously insisted that Fisher would have been unable to discover the approach of defendant’s train if he had stopped at the STOP sign, and that he had no visibility to his right until his automobile actually reached the near rail. The evidence does not establish such facts. However, for the purpose of analyzing our problem, we will indulge an inference most favorable to the plaintiff. We will assume Fisher’s visibility to the right was blocked at the point of the STOP sign. , However, we will bear in mind that all of plaintiff’s witnesses portrayed the obstruction as open and obvious. And it is clear from the evidence that the approaching train could have been observed at some indeterminate point between the sign and the near rail.

No contention is or could be made that Fisher was not aware of this crossing or did riot observe the warning signs. Nor is it.disputed that he was required to exercise due care under- the circumstances for his own safety. Our question is whether the only proper conclusion to be drawn from the evidence by fair-minded men is that Fisher failed to exercise such care. (Obviously his negligence, if any, was 'a contributing proximate cause of the accident.) See Hunt’s Admr. v. Chesapeake & O. Ry. Co., Ky., 254 S.W.2d 705. We now turn to the recognized duties' of Fisher in the operation of his automobile.

Two extreme cases at opposite poles of the law furnish a starting point for an analysis of the due care required of a motorist at a railroad crossing. These are both older cases and the courts deciding them have since moderated their views. In Louisville & N. R. Co. v. Ratliff’s Adm’r, 260 Ky. 380, 85 S.W.2d 1006, the motorist couid have observed the approach of the train wh.en he was 360 feet from the crossing. We held the plaintiff was not contributorily negligent as a matter of law. This decision appears unsound and certainly has not been followed in the more recent cases of Nashville, C. & St. L. Ry. Co. v. Stagner, 305 Ky. 717, 205 S.W.2d 493; Hunt’s Adm’r v. Chesapeake & O. Ry. Co., Ky., 254 S.W.2d 705; Southern Ry. Co. v. Feldhaus, Ky., 261 S.W.2d 308; Louisville & N. R. Co. v. Hines, Ky., 302 S.W.2d 553; Louisville & N. R. Co. v. Troutman, Ky., 351 S.W.2d 516.

At the other extreme is Baltimore & O. R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R. 645. In that opinion it was stated that if a motorist reaches a crossing and cannot ascertain whether a train is dangerously near, he must not only stop but get out of his vehicle if necessary for that purpose. This burdensome duty was repudiated in Pokora v. Wabash R. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049. However, the doctrine is still followed in other jurisdictions. See 91 A.L.R. 1057. Unless we follow one of these extremes, our solution lies somewhere between them.

It must be borne in mind that in the foregoing cases there was no special sign or law requiring the motorist to stop. That added factor in this case we will find of controlling significance.

While no distinction appears to have been drawn in the cases between the duties of a motorist and those of a pedestrian in the exercise of due care at railroad crossings, our decisions involving the latter have consistently recognized a strict code of care. The pedestrian is required to look and listen right up to the time he actually crosses the railroad track, and if he fails to do so, he is guilty of contributory negligence as a matter of law. Louisville & N. R. Co. v. Mitchell’s Adm’x, 276 Ky. 67, 124 S.W.2d 1025; Louisville & N. R. Co. v. Brock’s Adm’r, 281 Ky. 240, 135 S.W.2d 898; Louisville & Nashville R. Co. v. Mitchell’s Adm’x, 285 Ky. 576, 148 S.W.2d 1048; Louisville & N. R. Co. v. Jackson, 286 Ky. 595, 151 S.W.2d 386; Louisville & N. R. Co. v. Lefevers’ Adm’x, 288 Ky. 195, 155 S.W.2d 845; Louisville & N. R. Co. v. Hyde, Ky., 239 S.W.2d 936. In the latter case we said, page 938 S.W.:

“We have never adopted the widely accepted rule that one must stop, look, and listen before going onto a railroad track, but neither have we held that the railroad company is a guarantor of the safety of those who might come in contact with its facilities. Nor have we held that one may close his eyes or reject all audible sounds before he enters upon the facilities. Contrariwise we have held that one must use both his eyes and ears at least to the extent of the ordinarily prudent person in such a situation.”

It is apparent from a review of older Kentucky cases that the principle above quoted has not generally been alluded to in cases involving a motorist. Perhaps the ultimate decision in the two types of cases has been subtly influenced by the mobility of the person involved in a railroad crossing accident. A pedestrian may at the last minute avoid a collision more readily than a person encased in a motor vehicle.

This differentiating circumstance has led us in some cases (notably Louisville & N. R. Co. v. Ratliff’s Adm’r, 260 Ky. 380, 85 S.W.2d 1006) to hold the motorist not strictly accountable when he does not discover the approach of a train until he is very close to the track, on the ground that he is then confronted with an emergency. This line of reasoning is, however, subject to the following criticisms: (1) the “emergency” would not have arisen had the motorist exercised due care before reaching the crossing, (2) the motorist is required by law to have his vehicle under control, (3) a traffic situation the motorist must anticipate should not create an emergency, and (4) the modern motorist is better conditioned and equipped to avoid collisions with competing traffic.

While it is still true that the mobility of the pedestrian and the motorist is not the same, at least three of our more recent cases have tended to equate their duties. In Hunt’s Adm’r v. Chesapeake & O. Ry. Co., Ky., 254 S.W.2d 705, we applied to a motorist the same standard of care with respect to looking and listening for a train as was invoked in the pedestrian cases. In Nashville, C. & St. L. Ry. Co. v. Stagner, 305 Ky. 717, 205 S.W.2d 493, in adjudging a motorist contributorily negligent as a matter of law who could have seen the train within 180 feet of the crossing, we called attention to the fact that if he had not observed the train until he was within 10 feet of the crossing he still could and should have avoided the accident.

In Chesapeake & Ohio Railway Company v. Trimble, Ky., 306 S.W.2d 310, the plaintiff stopped his truck 15 or 20 feet from the near track as a train passed over the crossing on the far track. At that point a pump house and standing cars blocked his view of a train approaching on the near track. The driyer was held contributorily negligent as a matter of law in failing to discover the train between the point where he stopped and the near track.

The above three cases have effectively overruled or at least limited the authority of Louisville & N. R. Co. v. Ratliff’s Adm’r, 260 Ky. 380, 85 S.W.2d 1006; Southern R. Co. v. Lyen, 289 Ky. 726, 160 S.W.2d 1; Illinois Cent. R. Co. v. Applegate’s Adm’x, 268 Ky. 458, 105 S.W.2d 153; and Cincinnati, N. O. & T. P. R. Co. v. Hare’s Adm’x, 297 Ky. 5, 178 S.W.2d 835.

Plaintiff urges a distinction between cases where the motorist’s view is obstructed and where it is unobstructed. This attempted distinction does not aid our analysis of the issue because it does not change the duties of the motorist. An obstruction, be it big or little, near or far, is simply a factor in determining what constitutes reasonable care in the light of that circumstance. As we will discuss later, an obstruction constitutes a warning that more rather than less care must be exercised.

Before turning to the evidence of Fisher’s conduct at this crossing it is necessary to consider plaintiff’s legal theory which he contends necessarily takes this case to the jury. The theory is that Fisher must be presumed to have exercised due care at the crossing.

There is direct evidence by one of the defendant’s trainmen that Fisher’s automobile was seen by him when it was approximately 130 feet from the crossing proceeding at a speed of about 45 miles per hour, and that it moved onto the crossing without slackening speed. Plaintiff attacks the credibility of this witness and even though it appears a reasonable explanation of the accident, we will ignore it. Plaintiff insists that in the absence of direct evidence of Fisher’s conduct, we must presume he exercised due care. This theory of course would foreclose our consideration of the significant circumstantial evidence. Such a proposition is demonstrably unsound.

This particular “presumption” theory seems to have originated in insurance cases where the question was whether a person had died by his own hand. It has been said there is a presumption a person did not commit suicide, which is nothing more or less than saying that if the insurance company, having the burden of proof, does not show how the insured came to his death, it has failed to establish its defense. Sovereign Camp W. O. W. v. Valentine, 173 Ky. 182, 190 S.W. 713.

This general idea has occasionally crept into railroad and other traffic accident cases. In Cox’s Adm’r v. Cincinnati N. O. & T. P. Ry. Co., 238 Ky. 312, 37 S.W.2d 859, 862, it was said that negligence will never be presumed since the burden of proving contributory negligence is on the defendant, which of course is sound. The rule was restated with its essential qualification in Owen Motor Freight Lines v. Russell’s Adm’r, 260 Ky. 795, 86 S.W.2d 708, 714, as follows:

“The rule in such case is that where there is no evidence, direct o" circumstantial, of conduct of the injured party, indicium of his negligence, there is in death cases a presumption of due care on his part.’J (Our emphasis.)

In Illinois Cent. R. Co. v. Applegate’s Adm’x, 268 Ky. 458, 105 S.W.2d 153, 158, and Cincinnati N. O. & T. P. Ry. Co. v. Hare’s Adm’x, 297 Ky. 5, 178 S.W.2d 835, 838, the so-called presumption was apparently invoked, each of the opinions reiterating its applicability where “there was no evidence to the contrary”. Strangely, in both of these cases there was evidence to the contrary so that the actual decisions were not governed by the rule. We have already in this opinion questioned the soundness of these two cases and to the extent they incorrectly apply this legal theory both cases must be overruled. (In Iowa where the burden is on the plaintiff to prove freedom from contributory negligence, there is a counterbalancing presumption of due care when there is no eyewitness. See Mast. v. Illinois Cent. R. Co., D.C., 79 F.Supp. 149, affirmed 8 Cir., 176 F.2d 157.)

It is difficult to find much utility in the proposition that in the absence of any evidence, direct or circumstantial, a person will not be presumed negligent (or con-tributorily negligent), or conversely, will be deemed to have exercised due care. No one would question this self-evident truth. It is simply another way of stating (which is likewise axiomatic) that if the party with the burden of proof fails to produce any evidence he does not win. However, if there is proof, the so-called presumption, by its very terms, vaporizes. (In the res ipsa loquitur cases circumstantial evidence alone is sufficient to create a very real and opposite presumption that a party was negligent. See Knop v. Atcher, Ky., 308 S.W.2d 287.)

In the final analysis a “presumption” that a person is not negligent is of no assistance in the solution of the problem before us. If there was no evidence Fisher failed to exercise due care for his own safety, then a jury could not properly find, much less could we determine as a matter of law, that he was guilty of contributory negligence. On the other hand, defendant’s contention is that even if we disregard the direct testimony of its employee (who said he saw the decedent approach the crossing without slackening speed), the circumstantial evidence unerringly establishes that Fisher failed to exercise any care at the crossing. We will briefly review that evidence.

It was broad daylight and general visibility was good. The evidence was uncon-tradicted that the hell on the engine was ringing before the train reached the crossing. The only witness to testify for the plaintiff about the signals stated he heard not only the bell and the whistle but the train itself when he was a half a block away from the crossing.

The nature of the collision indicates that Fisher had not changed his course-line over the track since his automobile was struck broadside by the train. The inference must be either that he was unaware of the train’s approach or was trying to beat it across. (There is no reason to infer he was attempting suicide.) There was no evidence of tire marks to suggest he made any mechanical effort to avoid the collision.

That the crossing was well marked, there can be no dispute. Since Fisher lived within half a mile of it, he must have been generally familiar with the railroad line passing through this vicinity. (At the trial neither party seemed inclined to develop Fisher’s familiarity or unfamiliarity with this particular crossing, but it does appear he had been over it at least once.) In spite of the warnings Fisher drove his automobile directly into the path of the train. In the recent case of Louisville & N. R. Co. v. Troutman, Ky., 351 S.W.2d 516, 519, we said:

“It is unquestioned that a railroad crossing is in itself a warning of danger and that a traveler having knowledge of its existence must exercise care for his own safety in such a degree as is proportionate to the danger then present or apparent of being struck by a train. Nashville C. & St. L. Railway Co. v. Stagner, 305 Ky. 717, 205 S.W.2d 493; L. & N. R. Co. v. Hyde, Ky., 239 S.W.2d 936. If he knows, or in the exercise of reasonable care and prudence must have known, of a train approaching by using his senses of sight and hearing in a way that an ordinarily prudent person would do under similar circumstances, and drives his automobile in front of the train, he assumes the risk of crossing in safety. If he miscalculates and is injured, he is guilty of contributory negligence.”

Plaintiff’s theory is that even though Fisher was amply warned of the railroad crossing, the defendant had blocked his visibility of the approaching train and this somehow relieved him of a duty to continue to exercise due care. If Fisher was confronted with an extraordinary hazard which was not obvious and about which he had not been given an adequate warning, a theory of entrapment might justify plaintiff’s position. The stark fact is, however, that this additional hazard was open and obvious (being readily apparent to all of plaintiff’s witnesses). Perhaps most important is the fact that counterbalancing the extra-hazard was the extra-warning to Fisher in the form of the STOP sign, to which we have referred.

It seems clear the decedent pursued one of two courses. He either ignored the STOP sign and proceeded over the crossing without heeding its warning or he stopped (or slowed his vehicle sufficiently), before reaching the track, to appraise the hazard of proceeding further. If he pursued the first course and completely ignored the STOP sign and the other warnings of the crossing, he must be held negligent as a matter of law. On the other hand, if he did stop or even slowed his vehicle sufficiently to prepare for the obvious crossing hazard (plaintiff would have us presume he actually stopped), then reasonable minds must conclude that he did not exercise due care thereafter when he failed to see or hear the approaching train.

This is the first case we have had involving an official highway STOP sign at a railroad crossing. (It is not the type of sign designated by KRS 189.560(3).) KRS 189.231(2) provides that the driver of a vehicle shall obey the instructions of an official traffic control device. The fact that the sign is located at a railroad crossing rather than a highway intersection does not impair its efficacy as a warning device, particularly since a railroad crossing confronts the motorist with the same type of hazard (though in some respects even more hazardous than an intersecting highway). In North Carolina the words “intersecting highway” in a statute fixing the duties of the operator of a motor vehicle were construed to include a railroad crossing. Hinton v. Southern Ry. Co., 172 N.C. 587, 90 S.E. 756. As a matter of fact, it is clear the reason the county engineer placed this STOP sign at this point was to furnish the same warning as is given at the intersection of a boulevard or through highway thoroughfare.

Even in the absence of KRS 189.-231(2), in the modern day of motoring, an official highway STOP sign is a well understood monitor of traffic control and its meaning must be known to anyone competent to drive. Wherever located, its urgent warning cannot be ignored. Its message to the motorist is to stop for the purpose of analysing the traffic conditions and possible hazards immediately ahead. Romans v. Duke, 313 Ky. 157, 230 S.W.2d 439.

In our opinion no reasonably prudent motorist may justifiably ignore the warning of such a STOP sign on a highway. To do so is to engage in a form of Russian roulette. If Fisher did so, he was negligent as a matter of law. The reasoning in the highway intersection cases is clearly applicable here. See Romans v. Duke, 313 Ky. 157, 230 S.W.2d 439; Yates v. Kurtz, 314 Ky. 867, 238 S.W.2d 669; Manning v. Claxon’s Ex’x, Ky., 283 S.W.2d 704.

Our only other plausible hypothesis is that Fisher complied with the law and the dictates of common sense and did heed this warning of a special hazard'. (Plaintiff says we must presume he did so.) If he pursued this course, then his subsequent conduct can only be explained as complete carelessness. If he did stop (or even slowed his vehicle sufficiently so that he could stop before going onto the track), he performed only the initial step of due care. Stopping in itself is entirely ineffective unless the motorist thereafter uses his faculties to ascertain the hazard of proceeding further.

In an earlier day, before the development of modern traffic patterns and' traffic controls, it was held by this Court that there was no duty upon a traveler on. the highway to stop, look and listen at railroad crossings. Louisville & N. R. Co. v. Ueltschi’s Ex’rs, 29 K.L.R. 1136, 97 S.W. 14. Since that time, because of the increase in the number and kinds of highways and the vast increase in vehicular traffic, all motor vehicle driving has become more hazardous and the motorist must constantly be prepared to yield the right of way. It would be a curious turn in the law if the motorist, who has certain known duties to perform on reaching a STOP sign marking a through highway thoroughfare, would have lesser duties when confronted with the same sign at a railroad crossing, which is potentially a much more dangerous intersection. The sign is placed at both locations for identically the same purpose, and it constitutes a clear warning to take extra precautions before proceeding further.

Our more modern view is exemplified in Hunt’s Adm’r v. Chesapeake & O. Ry. Co., Ky., 254 S.W.2d 705, 709. Therein we said:

“We have never held in a suit against a railroad resulting from an accident which occurred at a crossing’ that the plaintiff must first show he had stopped, looked and listened before he drove upon the track, in order to recover, but we have held in a great many cases, some of which have been cited herein, that where the injured party fails to look and listen under circumstances where an ordinarily prudent man would look and listen, such person will be guilty of contributory negligence as a matter of law.”

In the present case the STOP sign itself is a significant circumstance impelling a reasonably prudent man to look and listen. Having obeyed the directions of the sign and taken cognizance of its warning, the motorist must exercise ordinary care in the use of his faculties to discover the hazard about which he has been cautioned. Even when a plaintiff testified positively that he took precautions, we have held him guilty of contributory negligence as a matter of law if,- with a clear opportunity to do so, he did not hear or see an. approaching train. McCarter v. Louisville & Nashville R. Co., 314 Ky. 697, 236 S.W.2d 933; Chesapeake & Ohio Railway Company v. Trimble, Ky., 306 S.W.2d 310. Surely under similar circumstances an inference of careful conduct, totally unsupported by any proof, could not be drawn. See Louisville & N. R. Co. v. Hyde, Ky., 239 S.W.2d 936, and Louisville & Nashville Railroad Company v. Hines, Ky., 302 S.W. 2d 553.

Having outlined tire framework of the law which generally governs crossing cases, we now address ourselves to the special features of this accident. The basic contention of the plaintiff is that because defendant negligently permitted vegetation to grow on the right of way, Fisher’s view of the approaching train was blocked even beyond the point of the STOP sign, and this would justify a jury in allowing recovery. In essence this argument must be that defendant’s negligence absolved Fisher from exercising due care in discovering the approach of the train. While this proposition may constitute a good argument for a doctrine of comparative negligence (which in a case of this kind might well accomplish the most just result), it does not conform with rational conduct or settled legal principles.

Let us put our theoretical “reasonable man” in the place of the motorist Fisher and assume he had, in obedience to the mandate of the sign and in recognition of the nature of its warning, brought his automobile to a stop in the vicinity of the sign. Whether or not he would be startled at finding a barrier of massive weeds eight feet tall in February in Kentucky, he must certainly have recognized the obvious special hazard which plaintiff so diligently developed. At the point of the STOP sign he observes no threat from his left in the form of a train approaching on the near track. Obviously the only hazard is the possibility of a train approaching on the far track to his right.

Plaintiff insists that his view in that direction is blocked. Would the ordinarily prudent person under these conditions abandon all precaution and assume he had a clear field (which he knows he hasn’t) or would he drive forward to a point where he could determine whether he was endangered by an approaching train? Every motorist has been confronted with situations at boulevard stops where his vision from the point of the STOP sign, or even the intersecting line of the thoroughfare, is obscured. No one could say that this gives the motorist a license to charge blindly into the intersection. The precise warning of a STOP sign is to exercise extra care before venturing into the line of crossing traffic.

The fallacy in plaintiff’s position is that a motorist has exhausted his duty to exercise care upon reaching a STOP sign. This could not be true from the standpoint of common sense, rational conduct, or the law. See Bolam v. Louisville & N. R. Co., 6 Cir., 295 F.2d 809. (STOP sign on city street crossed by railroad track — Kentucky law applied.) Surely if a motorist’s view is obstructed when he stops at a STOP sign, he is under a duty to proceed with caution until he can discover the particular hazard the sign warns him to expect. Segreto v. American Automobile Ins. Co., D.C., 137 F.Supp. 194. That opinion states (page 196):

“If the plaintiff is correct in stating that he stopped for the stop sign on Dumaine at Dauphine, then he was negligent in proceeding into the intersection directly in the path of the La-naux car. It is no answer to say that the blind corner blocked his vision when stopped at the stop sign. Plaintiff was under a duty to proceed on Dumaine Street to a point where he could see to his right of Dauphine to determine whether the way was clear for him to proceed across the intersection.”

In Anderson v. Morgan City Canning Co., La.App., 73 So.2d 196, it was held that a person who merely stops before entering a right of way thoroughfare has only performed one half of the duty resting upon him, and that it is “negligence of a gross character” to proceed further without ascertaining if it is safe to do so.

The three cases just cited involved street intersections but we can discover no reason why the same principles of prudent conduct should not apply in like circumstances at a railroad crossing.

The extra-hazardous condition upon which plaintiff pins his case is the very condition which the motorist must observe and can neutralize if he obeys the literal warning of the sign and arrests his progress. Stopping puts him in a position of mobility, which we have heretofore discussed in connection with the duties of a pedestrian. Warned by the sign and confronted with an unseen but predictable peril on his right, a reasonably prudent person would certainly take extra precautions to discover his danger. The circumstance of obscured vision imposed on Fisher more rather than less care. Louisville & N. R. Co. v. Howser’s Adm’r, 201 Ky. 548, 257 S.W. 1010, 36 A.L.R. 327; Nashville C. & St. L. Ry. Co. v. Stagner, 305 Ky. 717, 205 S.W.2d 493; Layman v. Chesapeake & O. Ry. Co., Ky., 266 S.W.2d 111; Chesapeake & Ohio Railway Company v. Trimble, Ky., 306 S.W.2d 310.

If the decedent actually stopped in obedience to the STOP sign, his conduct thereafter is simply inexplicable in terms of due care. It is so inexplicable on this assumption that the assumption itself strains our reason. Even without accepting the testimony of defendant’s trainman, the only plausible explanation of this accident is that Fisher did not stop, or look, or listen. But if he did stop, the only reasonable inference that can be drawn from the evidence is that he failed to exercise any care for his own safety by either looking or listening. (Though we have emphasized the apparent reason decedent did not see the train, the failure to hear it is likewise unexplainable except in terms of negligence.)

All of the evidence points unerringly to a lack of due care on the part of Fisher. There is not a scintilla which points the other way. Unless it is due care to exercise no care to either see or hear at a railroad crossing, a jury could not justifiably find for the plaintiff. We are of the opinion plaintiff’s decedent was contribu-torily negligent as a matter of law.

We have not undertaken to decide any other issue raised on this appeal.

The judgment is reversed with directions to enter a judgment for the defendant under CR 50.02.


author: CULLEN, Commissioner.

text:
    Fred GORDON et al., Appellants, v. CITY OF LOUISVILLE et al., Appellees.
    Court of Appeals of Kentucky.
    June 23, 1961.
    Rehearing Denied June 22, 1962.
    R. D. McAfee, Louisville, for appellants.
    Herman E. Frick, William S. Wetterer, Jr., Louisville, for appellees.
   CULLEN, Commissioner.

The City of Louisville enacted appropriate ordinances for the annexation of a residential area adjoining a residential section of the city. A group of freeholders in the area brought an action protesting the annexation. The total number of remonstrants was less than 75% of the number of freeholders in the area so under KRS 81.110 the issues in the action were whether the annexation (1) would be “for the interest of the city” and (2) would “cause no manifest injury to the persons owning real estate in the territory sought to be annexed.” At the conclusion of the evidence the court directed a verdict for the city on issue No. 1 and submitted issue No. 2 to the jury. The jury’s finding was that the annexation would not cause manifest injury to the property owners in the annexed area. Judgment was entered upholding the annexation.

The remonstrants have appealed, maintaining that the court erred in directing the verdict on issue No. 1 and in excluding certain evidence offered by the remonstrants which had relation to the effect the annexation would have on the finances of the city.

The substance of the contentions of the appellants is that from the evidence in the record reasonable minds could have concluded that the cost of providing city services to the annexed area would exceed the revenues to be derived from the area through taxation, and that the rejected evidence would have provided additional proof that the annexation would result in a financial burden to the city; therefore, it is argued, the annexation could have been found by a jury not to be for the interest of the city.

In our opinion this case is controlled by the decision in City of Louisville v. Kraft, Ky., 297 S.W.2d 39. It was there said in effect that under the limited fact-finding function of the courts in annexation cases the annexation of urban territory to a city cannot be held to be contrary to the interests of the city unless the annexation would constitute an overextension of the capacities of the city to function as a sound going concern. The area involved in the instant case is a well built-up residential neighborhood and is urban in character, within the rule in the Kraft case.

The evidence in this case, including the rejected evidence, goes no further than to show that residential areas often do not carry their own weight as far as city finances are concerned: The evidence does not approach a showing that the annexation of the area in question would place such a financial burden on the City of Louisville as to threaten its continued existence as a sound going concern.

As stated in the Kraft case, the political and economic advisability of annexation is primarily a matter for legislative determination. Certainly, the broad question in essence posed, by the appellants, of whether cities should embrace residential, areas which usually cost more to serve than the taxes they produce, is a question of legislative policy.

As further stated in the Kraft case, it is not a proper function of the courts, in annexation cases, to make fine comparisons of benefits and burdens. The evidence in the case before us (again including the rejected evidence) shows at the most only the possibility of a slight excess of cost of services over tax revenues.

Of course the “interests” of the city include other things, such as sociological factors, health considerations, community spirit, etc., aside from pure operating finances. There was no evidence that the annexation here would be contrary to these interests of the city.

It is our opinion that the exclusion of the offered evidence was not prejudicial and that the court properly directed a verdict on the issue of whether the annexation would be for the interest of the city.

The judgment is affirmed.