author: DONNELLY, Judge.

text:
    Meade WILLIAMS, Appellant, v. Lorraine FRISBEE, Defendant, Robert A. Smith, Sr., as Trustee under the Will of Roy V. Woodworth, Deceased, and St. Louis Union Trust Company, a Corporation, as Trustee under the Will of Roy V. Woodworth, Deceased, Garnishees (Respondents).
    No. 51980.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1967.
    Rehearing Denied Oct. 9, 1967.

      David Y. Campbell, St. Louis, for plaintiff-appellant.
    Thomas S. McPheeters, Jr., Thomas C. Walsh, St. Louis, for garnishees-respondents, Bryan, Cave, McPheeters & McRob-erts, St. Louis, of counsel.
   DONNELLY, Judge.

This is a garnishment proceeding.

On June 6, 1955, the District Court of Dallas County, Texas, entered a final judgment in favor of plaintiff Meade Williams and against defendant Lorraine Frisbee, in the amount of $10,000, with interest from the date thereof at 6% per annum, together with all costs.

A petition to register said foreign judgment was filed by Williams in the Circuit Court of St. Louis County, Missouri, on January 14, 1965, and on April 7, 1965, the Circuit Court of St. Louis County entered its final judgment against Lorraine Frisbee and in favor of Williams.

Thereafter, upon request of Williams, garnishments were issued by the Clerk of the St. Louis County Circuit Court, and writs thereunder were served on St. Louis Union Trust Company and Robert A. Smith as garnishees. Williams filed interrogatories, both garnishees filed their answers, Williams filed his denials of the answers of garnishees, and garnishees filed their separate replies.

Garnishees are trustees, under the will of Roy V. Woodworth, of a trust created under Article Ninth of said will, for the benefit of Lorraine Frisbee, his daughter. Woodworth died on August 11, 1958, and his will provides, in part, that seven years after the date of his death, 50% of the then remaining corpus and accumulated income of said trust for Lorraine Frisbee “shall be distributed, free from her separate trust, to my daughter, Lorraine Frisbee,” if living. Lorraine Frisbee was alive on August 11, 1965, seven years after her father’s death, and still lives.

Woodworth’s will further provides, in Article Fifteenth:

“To the extent permitted by law, no beneficiary shall have any power to dispose of or to charge by way of anticipation any interest given to him, and all sums payable to any beneficiary shall be free and clear of his debts, contracts, disposition, and anticipations, and shall not be taken or reached by any legal or equitable process in satisfaction thereof. * * * ”

The 50% of the trust assets to which Lorraine Frisbee was entitled on August 11, 1965, was of the market value of $17,190.61. Garnishees did not distribute said 50% of said trust assets to Lorraine Frisbee on August 11, 1965, and they continue to hold the same.

The trial court found that the assets held by garnishees are not subject to garnishment and ordered the garnishments dismissed. We affirm the order of the trial court.

The validity of spendthrift trust provisions in Missouri is not in issue. Lampert v. Haydel, 96 Mo. 439, 9 S.W. 780, 2 L.R.A. 113 (1888). Meade Williams contends that the direction in the will that a portion of the corpus and accumulated income be distributed seven years after the date of Woodworth’s death (which was the date of service of the garnishments, August 11, 1965) is mandatory and not permissive; that on August 11, 1965, the trust terminated as to the assets here involved and the spendthrift provision ceased to be applicable thereto; that on said date, and thereafter, Lorraine Frisbee was the fully vested owner in fee simple, entitled absolutely to possession of the property in the hands of garnishees ; and that Meade Williams stands in the shoes of Lorraine Frisbee, and is entitled to garnishment of the property, which garnishees admit they owe Lorraine Frisbee.

“In construing wills, the familiar rule prevails that they are to be construed as a whole; liberally construed; construed with reference to the intention of the testator; and unless that intention, if carried out, will violate some positive rule of law, or subvert some rule of public policy, such intention must be allowed to control, and be effectuated by the courts. And, in construing wills which create trusts, the same liberality of construction as to such trusts prevails.” Partridge v. Cavender, 96 Mo. 452, 456, 9 S.W. 785, 786 (1888).

In Partridge v. Cavender, supra, this Court held that accrued and accruing incomes could not be reached by creditors of a beneficiary under the following pertinent provisions of Jno. Cavender’s will :

“ ‘And, fourthly, the other half thereof (the residuary estate of the testator,) reckoning and including therein any and all advancements to my son, Robert Smith Cavender, in my life-time, made, my said executors, trustees as aforesaid, or the survivor of them, shall hold in trust for the use and benefit of my son, Robert Smith Cavender, for and during the term of his natural life; and I do hereby require and direct my said executors, trustees as aforesaid, or the survivor of them, to invest the same in such real or personal estate, or in such real or personal securities, and the same to sell again, and the proceeds thereof to reinvest in such other real or personal estate, or in such other real or personal securities as they or the survivor of them shall deem best, and receive the rents, issues, profits, and incomes thereof, and the same to pay over to the said Robert Smith Cavender, semi-annually, at the end of each and every half year, reckoning from the date of my decease, on his personal receipt therefor, without the said Robert having any power to sell, assign, or pledge the same previous to the payment thereof to him, as aforesaid, by way of anticipation; which said receipt shall be to said trustees or the survivor of them, their full acquittance and discharge therefor.

“ ‘And until my said estate shall have been sold and converted into money in the manner aforesaid, and the portion above herein given to said Robert for the term of his natural life, as aforesaid, shall be ascertained in the manner aforesaid, and not being longer than four years from and after my decease, my said executors, trustees as aforesaid, or the survivor of them, shall, in place of the said annual income, pay to my said son Robert, out of the said half of the said residue of my estate above herein given to him for and during the term of his natural life as aforesaid, the sum of one thousand dollars per annum, payable semi-annually at the end of each and every half year from and after the date of my decease, on his personal receipt, in the manner aforesaid.’

Williams properly contends that the Cavender will expressly directed payments be made by the trustee “on the personal receipt” of the beneficiary, and stated that the beneficiary was to have no power to alienate the property “previous to the payment thereof to him.” Language in this form does not appear in the Woodworth will. However, we must look to substance, not to form, and may not frustrate the intention of the testator.

Woodworth stipulated that “all sums payable to any beneficiary shall be free and clear of his debts, * * * and shall not be taken or reached by any legal or equitable process in satisfaction thereof.” (Emphasis ours.) We believe Woodworth intended that the assets of the trust should not be reached by garnishment, and should not be available to creditors of the beneficiary until actually paid to her. Williams may not by garnishment reach the assets held by garnishees. The order of the trial court is affirmed.

Garnishees have filed in this Court a claim for allowance of attorneys’ fees for services rendered and expenses incurred on appeal. By stipulation filed in the trial court on November 2, 1965, each of the parties reserved “the right to offer evidence with regard to the garnishees’ claims for attorneys’ fees or other expenses whether now or hereafter asserted by the garnishees.” The case is remanded for determination of this claim by the trial court.

Affirmed and remanded.

All concur.


source: Caselaw Access Project

author: FINCH, Judge. STORCKMAN, Judge.

license: Public Domain

text:
    Leona Fern CLEVENGER, Appellant, v. Clarence WALTERS, Jr., Respondent.
    No. 51908.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1967.
    Rehearing Denied Oct. 9, 1967.

      Robert L. Shirkey, Kansas City, for appellant.
    Somerville & Cleaveland, Ronald L. So-merville, Lloyd A. Cleaveland, David P. Macoubrie, Chillicothe, for respondent.
   FINCH, Judge.

Plaintiff sued for $25,000 damages on account of personal injuries alleged to have been sustained as a result of an automobile collision. The jury returned a verdict for $15,000, but the trial court sustained defendant’s motion for a new trial on the ground that plaintiff’s verdict-directing Instruction No. 3 was erroneous. On appeal, the Kansas City Court of Appeals reversed and remanded with directions to reinstate the judgment for plaintiff in accordance with the jury verdict. On application of defendant Walters, this court ordered the appeal transferred. An opinion was written herein but the court granted a rehearing and this opinion is written following argument on the rehearing.

The case was submitted to the jury on the so-called rear-end collision doctrine. All evidence on the issue of liability was adduced by the plaintiff. Except for a medical witness, defendant stood on his motion for a directed verdict.

The accident occurred on May 25, 1962, between 4:30 and 5.:00 p. m., on U.S. Highway 36 at a point 1.7 miles west of its junction with Missouri State Highway 139. The pavement was 20 feet wide with a bituminous surface. The day was bright and clear and the pavement dry. At the place where the accident occurred, a “country road” forms a T with U.S. 36 and extends north a sufficient distance to provide access to farmland in that area. The plaintiff and her husband operated a service station and cafe on the north side of U.S. 36 a little less than a half mile west of this side road. Eastward from their place of business, U.S. 36 is straight and downgrade for about a half mile and beyond that it is level for another half mile. The plaintiff’s husband cultivated some farmland located on the country road north of U.S. 36.

The plaintiff, her husband, and a highway patrolman were the witnesses on the issue of liability. The evidence tended to establish that the plaintiff, driving a 1954 Ford Ranch Wagon, left the place of business to drive her husband to the field where he was conducting his farming operation. Plaintiff drove in the eastbound lane (the south half of U.S. 36) at a speed of 35 to 40 miles per hour. When she was about halfway between the filling station and the entrance to the country road, she looked into her rear-view mirror for the first time and saw defendant’s automobile following some distance behind in the eastbound lane. When she was between 400 and 500 feet west of the country road, she put on her left blinker light to signal the left turn she intended to make and started to slow down. Another automobile was approaching from the east and the plaintiff slowed further to permit this car to pass before she made the left turn. Sometime before reaching the country road (she was unable to fix the distance) she again looked into the rear-vision mirror and saw the defendant’s car behind her, although closer. The defendant was still in the eastbound lane and there was no indication that he intended to pass the Clevenger automobile.

After the westbound automobile passed, plaintiff, then going 5 to 10 miles per hour, started to turn left (north) onto the country road. At that time she was approximately even with the west edge of the country road onto which she was going to turn. When plaintiff’s automobile, headed in a somewhat northeasterly direction, had reached a position with at least a portion of its rear end still a foot or two south of the center line of U.S. 36 and the front end extending a little over the north edge of the pavement and onto the gravel of the country road, it was struck by defendant’s approaching car. No horn was heard by plaintiff or her husband, but they did hear the screech of brakes before the collision.

Debris consisting of dirt, glass and metal was found to the north of the center line of U.S. 36 and just to the west of the T intersection with the country road onto which plaintiff was turning. Skid marks, 174 feet in length, started at a point in the east lane of traffic (south half of Highway 36) and led to defendant’s car. Both skid marks crossed the center line and went over into the north half of the pavement. A little more than half of the skid marks were on the south side of the center line before they crossed into the westbound lane of traffic. Defendant’s automobile came to rest headed southeast in the north half of U.S. 36 at its intersection with the country road. Plaintiff’s car, after the accident, was on the north shoulder of U.S. 36 and about 50 feet east of the country road. It was knocked east by the impact and started down the embankment toward a utility pole, but plaintiff’s husband grabbed the wheel, pulled the car back on the shoulder, got his foot on the brake and brought the car to a stop.

Plaintiff testified that defendant’s “right front end hit our left rear driver’s side and knocked a hole in the middle of the car and the bumper was bowed up, and it knocked the big taillight, broke that red light out, and the fender was bent into the tire.” Trooper Conyers, who was called to the scene after the accident, described the damage to plaintiff’s car as consisting of “the left rear fender, the taillight, bumper and rear door bashed in.” He said the defendant’s automobile had “the right front end, the grille and the radiator bashed in.” Plaintiff’s husband testified as to the damage to both vehicles. He stated that the front end of defendant’s car collided with the rear end of plaintiff’s station wagon, although he did not actually see defendant’s automobile until after the collision. Defendant did not testify, but Patrolman Conyers, in testifying for plaintiff, stated that defendant told him, “I was going east and started to pass this car and she turned left and I couldn’t stop.”

The trial court, in granting the defendant a new trial, stated that “it was error to give Instruction No. 3.” In reviewing this question, it should be kept in mind that when a motion for new trial is sustained, an appellate court is more liberal in upholding the action of the trial court in granting a new trial than when the motion is denied. Tate v. Giunta, Mo., 413 S.W.2d 200 [4], “This rule of liberality applies even when a new trial is granted for error in an instruction.” Coit v. Bentz, Mo., 348 S.W.2d 941, 946.

Instruction No. 3 was as follows:

“You are instructed that under the law of Missouri it is the duty of one driving and operating a motor vehicle on the highways of this state to at all times use and exercise the highest degree of care in the driving, management and operation of the motor vehicle.
“You are further instructed that if you find and believe from the evidence on May 25, 1962 plaintiff Clevenger was proceeding in an easterly direction on Highway No. 36 at the place mentioned in the evidence and was at all times in the exercise of the highest degree of care for her own safety and that as plaintiff proceeded eastwardly and turned to her left, or north and as the defendant Walters was operating his vehicle in an eastwardly direction and to the rear of plaintiff Clevenger’s automobile he negligently and carelessly allowed his automobile to run into and collide with the rear end of the automobile plaintiff Clevenger was operating, if you so find and as a direct result of such negligence, if any, on the part of Walters, the plaintiff Clevenger was injured, then in such circumstances, if you so find them, your verdict should be in favor of the plaintiff Clevenger and against the defendant Walters.”

It is well established that one of the fundamental requirements of the rear-end collision doctrine is that plaintiff’s vehicle, at the time of the collision, be in a place where he had a right to be. Judge Hyde, in Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, 918, stated it thus: “Did defendant’s driver run its truck into the rear end of plaintiff’s car while plaintiff’s car was being properly driven in the part of the highway where it should have been and was entitled to be ?” In that connection, the court, in discussing plaintiff’s verdict-directing instruction, stated as follows, 1. c. 917: “Plaintiff’s instruction authorized his recovery only if the jury found that defendant was ‘driving and operating’ its transport truck south ‘behind (plaintiff’s) pickup truck,’ while plaintiff was driving it south ‘on the west and right hand side of the pavement’ and ‘west of the center line,’ and that defendant ‘negligently caused, allowed and permitted’ its transport truck ‘to run into, strike and into collision with the rear end of the pickup truck’ of plaintiff ‘at said time and place.’ ”

In the case of Rosenfeld v. Peters, Mo., 327 S.W.2d 264, 1. c. 269, the court, in discussing the instructions, had this to say: “Instruction G, offered by plaintiff, referred to by plaintiff as a rear end collision instruction and claimed to be authorized by our decisions in Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68, was not a proper instruction. This instruction (leaving out the ‘if you find’s’) submitted that ‘plaintiff was a passenger in an automobile which was being driven in an easterly direction over and along Highway 40 at the place mentioned in evidence, * * * that the defendant drove his automobile in an easterly direction over and along said Highway, into the rear of the automobile with plaintiff therein, and * * * that the defendant caused, suffered and permitted the front end of his automobile to come in contact with the rear end of the automobile with plaintiff therein, and was negligent.’ The trouble with this instruction is that it did not (as the Jones case instruction did) ‘require a finding of plaintiffs position in a place where he had the right to be, operating his car properly as required by the highest degree of care, together with his environment and other facts of the situation which showed he could not have been negligent, and then required the finding of the affirmative act by the defendant of driving its truck into that part of the highway and against the rear end of plaintiff’s car.’ ” (Emphasis supplied.)

Again, in Snyder v. Hedges, Mo.App., 381 S.W.2d 376, 380, the court had this to say on the necessity of submitting the issue of whether plaintiff’s vehicle was in a place where it had a right to be: “But, in any application of the doctrine, it remains essential to plaintiff’s recovery for the evidence to show, and for plaintiffs verdict-directing instruction to hypothesise and require the finding of a state of facts demonstrating, that the front vehicle was in a place where it then had the right to be.” (Emphasis supplied.)

By way of contrast, Instruction No. 3 required no finding by the jury that the plaintiff, at the time of the collision, had her car at a place where she had a right to have it. The instruction makes reference to the fact that the plaintiff turned to her left or north but requires no finding as to where the vehicle was on the highway at the time it was hit, or even that it was on the highway, and it cannot be said that the instruction required a finding of plaintiff’s position in a place where she had a right to be, and consequently the trial court was correct in granting a new trial for error in that instruction. We do not deem it necessary to discuss the matter in further detail because cases now are tried under MAI instructions. This case, however, was tried before MAI instructions were required and consequently it was necessary that the instruction meet the requirements which the cases then had made with reference to instructions in rear-end collision cases. The sufficiency of the instruction cannot be determined on the basis of the MAI instruction for rear-end collision cases.

Defendant also insists that the plaintiff did not make a submissible case under the rear-end collision doctrine. We will not attempt to rule that question since we do not know just what the evidence may disclose on retrial, but in view of the fact that the case is to be retried, we feel obligated to say that on the record presently before us there is grave doubt that a sub-missible case can be made under that doctrine.

In the first place, there is a dispute between the parties as to whether the evidence shows that defendant collided with the rear end of plaintiff’s vehicle. Photographs of the plaintiff’s station wagon were made but were not introduced in evidence and are not before us. We are unable to say on the record before us that defendant did collide with the rear end of plaintiff’s vehicle. We observe, parenthetically, that not even all rear-end collisions fall within the doctrine. Todd v. Presley, Mo., 413 S.W.2d 173.

Secondly, this is not the classic case where plaintiff is proceeding directly ahead in his proper lane and defendant runs into the rear end of his vehicle. It seems quite clear from the evidence that plaintiff’s station wagon had almost completely left the south half of the pavement (eastbound lane) and at the time of the impact completely occupied the width of the north half of the pavement. The impact by defendant’s car occurred entirely on the north half of the pavement. This differs materially from the situation in the Jones case, which established this doctrine. In Jones, as pointed out previously, plaintiff’s instruction required a finding that plaintiff was driving on the right-hand side of the pavement, and the defendant’s instructions informed the jury that plaintiff could not recover if he permitted his vehicle to travel across the center line onto the left-hand side of the pavement.

In Witherspoon v. Guttierez, Mo., 327 S.W.2d 874, plaintiff was a passenger in a Nash automobile going north on U.S. Highway 71 which at that point is a divided highway with separate double lanes for northbound and southbound traffic. According to plaintiff’s evidence, the Nash was in the left half of the northbound 20-foot lane and was approaching Blue River Road intersection at 25 to 30 miles per hour. At a point 50 to 80 feet from the intersection the Nash began to slow down and angle left. When its left front wheel _ was a foot or so to the left of the west edge of the northbound pavement and the rear wheel two or three feet to the east of the west edge of the pavement, the driver of the Nash suddenly discovered the lights of a Chrysler coming up from behind at 40 to 45 miles per hour and trying to pass to his left. The driver of the Nash cut his wheels back right and accelerated. After it was entirely back on the northbound pavement, traveling north and parallel to U.S. 71 (its left wheels a couple of feet east of the west edge of the northbound pavement), the left rear end of the Nash was struck by the right front and right headlights of the Chrysler. Defendant’s version of the occurrence was different, but the court properly considered the evidence most favorable to plaintiff in considering whether a case was made under the rear-end collision doctrine. This court held that the factual situation brought the case within that doctrine. In so holding, the court said, 1. c. 878: “While this is not the typical factual situation in which the rear-end collision ‘doctrine’ ordinarily is invoked (because of the deviation in the course of the Nash) it is sufficiently akin to that class of cases (because the deviation was so slight) to require us to uphold a verdict based upon an instruction submitting the elements of that theory of recovery.” Subsequently, on the same page, the court further states: “Nor was there any deviation from this constant situation (the faster-moving Chrysler gaining on and finally overtaking the slower-moving Nash) sufficient to take this case out of the purview of the rear-end collision cases. True enough, there was a deviation in the course of the Nash (the driver angled to the left [west] edge of the pavement, intending to turn left onto the side road and started to make the turn) but the deviation was inconsequential, trivial and not so marked as to remove the case from the ‘clear and simple situation’ referred to in the decisions. * * * There was no real break in the continuity of the northerly movement of the Nash on No. 71. For all practical and legal purposes the Nash remained on No. 71 at all times preceding the collision.” In the same case, 1. c. 879, the court said: “If plaintiff’s evidence had been in accord with defendant’s evidence, namely, that the Nash suddenly and without warning turned left from the right lane onto the left or west half of the pavement, in front of the oncoming Chrysler then occupying the left or west half of the northbound lane, and that the Chrysler had struck the rear of the Nash under those circumstances, the so-called rear-end collision ‘doctrine’ would not have been applicable.”

We will not review all of the cases involving application of the rear-end collision doctrine nor undertake herein to define exactly what are the permissible outer limits of any deviation permitted from the basic premise of a following and overtaking vehicle which runs into the rear end of the lead or front vehicle which is traveling in the same direction at a place where it has a right to be. This can be determined satisfactorily only on a case by case basis, but we repeat the caveat expressed in Witherspoon v. Guttierez, supra, 1. c. 878: “It is not recommended that this theory of recovery be employed except where the facts come strictly within the pattern of the typical rear-end collision situation.” We emphasize that caveat.

It is unlikely that the other trial errors of which defendant complains will occur again in a new trial and hence we do not consider them herein. Defendant’s brief asserts that under the evidence the plaintiff was guilty of contributory negligence as a matter of law, but we do not so find. The judgment is affirmed.

HENLEY, EAGER and DONNELLY, JJ., concur.

STORCKMAN, J., dissents in separate dissenting opinion filed.

HOLMAN, C. J., and SEILER, J., dissent and concur in dissenting opinion of STORCKMAN, J.

DISSENTING OPINION

STORCKMAN, Judge.

The majority opinion deals chiefly with the propriety of Instruction No. 3, plaintiff’s verdict-directing instruction, and the sufficiency of the facts to make a submis-sible case under the rear-end collision doctrine. The defendant’s attack on the sufficiency of the evidence has two principal aspects. First it is contended that defendant’s motion for a directed verdict should have been sustained because the plaintiff failed to prove any negligence. Next it is asserted that defendant’s motion for new trial was correctly sustained because plaintiff’s verdict-directing instruction was erroneous in that the rear-end doctrine was wholly inapplicable and the instruction constituted a submisssion of “general negligence only and not specific negligence, thereby giving the jury a roving commission.” We will first consider the majority opinion’s treatment of the sufficiency of the evidence to support the plaintiff’s verdict returned in response to the submission of liability on the theory of a rear-end collision.

In determining whether the evidence was sufficient to make a submissible case under the rear-end collision doctrine, the plaintiff is entitled to have her evidence considered in its most favorable light and is further entitled to all favorable inferences that can reasonably be drawn therefrom. This rule is so trite that it would hardly need to be stated but for the fact that the majority opinion appears to have taken the opposite view.

The plaintiff was driving a 1954 Ford Ranch Wagon, sometimes referred to as a station wagon. It is common knowledge that one of the unusual features of this type of motor vehicle is a door in the rear or back end that can be opened for loading and unloading cargo of various sorts. This is in addition to one or more sets of side doors. The favorable view of the evidence would be that the witnesses were talking of such a rear door in describing the point of contact. This view would also be more consistent with the physical facts such as the position of plaintiff’s car when it was struck and the damage to the rear bumper, the rear fender, and the taillight. This view is also harmonious with the plaintiff’s description that the car was struck on the left rear driver’s side. Also when she said in this connection that a hole was knocked in the middle of the car the favorable view is that she was talking of the middle of the rear end or the back door. The same construction should be put on the testimony of her other witnesses including her son whose testimony is not referred to in the majority opinion. We must also keep in mind that the defendant offered no conflicting evidence. This dissenting opinion will undertake to view the evidence in a favorable light with as little repetition as possible.

In discussing the application of the rear-end collision doctrine, the majority opinion fails to give effect to direct and circumstantial evidence which gives further support to the factual proposition that the plaintiff’s automobile was struck from the rear when the plaintiff had her vehicle in a portion of the highway where she was entitled to have it in view of the course in which she was proceeding. The evidence shows that plaintiff’s car, at the time it was struck, was headed northeast in the north half of the highway with a portion of the front off the north side of the pavement and a portion of it still a foot or two over the center line in the south half of the highway. Placing a motor vehicle, approximately 18 feet long, in such a position headed in a northeast to southwest direction on a strip of pavement ten feet wide demonstrates that the left rear portion of the vehicle would be nearer to the middle of the ten-foot strip than to the center line of the highway. At the time of the collision, the defendant’s automobile was in the north ten-foot portion of the highway apparently moving straight ahead as shown by his skid marks and the shakedown. This is consistent with the evidence of physical damage to the plaintiff’s car which was described as being to the back end, the rear bumper, and the left rear taillight and fender.

There is further direct evidence that the Clevenger car was struck from the rear and in the rear end, particularly on the left portion of the rear end. Lyndell Gerald Clevenger, a son of the plaintiff, was working on a tractor in a field about 300 feet directly south of the place where the collision occurred. He testified that he saw the “family car” coming down the road with “this other car coming behind it,” that he “saw smoke coming from his tires” and that the other car hit the family car and pushed it down the highway. These questions were then asked and these answers given:

“Q (By Mr. Shirkey) What part of the family automobile was struck?
“A The rear end.
“Q All right, and what part of the other vehicle struck it?
“A The front end.”

As to what he saw after he went over to the place of collision, plaintiff’s son further testified:

“Q Can you describe the damage that you saw to his automobile?
“A Well, the hood, and headlights, and grille, and bumper was all smashed in.
“Q And what had happened to the family automobile?
“A Well, the back end was smashed in.
“Q By the back end what part do you mean by that?
“A Well, the fenders and bumper.
“Q Is this also what you call the rear end?
“A Yes.”

There is undisputed evidence by the highway patrolman that the left rear bumper and taillight of the Clevenger car was “bashed in”. This was corroborated by Mr. and Mrs. Clevenger. The majority opinion tends to discount as a conclusion their statements that their car was struck initially at the left rear corner on the ground that they did not actually see the contact. But sight alone is not the only reliable sense by which a person can determine where his car has been struck. The direction of the sound and the feeling of momentum resulting from the impact are quite trustworthy. If the occupant of the lead car cannot testify that his vehicle was struck from the rear, the testimony in a rear-end collision case will be severely limited which is a handicap the doctrine was intended to avoid.

The “rear-end collision doctrine” means that, if a person has his motor vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against the person in charge of the overtaking vehicle. Jones v. Austin, Mo.App., 154 S.W.2d 378, 381 [8]; Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, 919-920 [5]; Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360, 362 [3]; Witherspoon v. Guttierez, Mo., 327 S.W.2d 874, 880 [5]; Branch v. Gordon’s Transports, Inc., Mo.App., 375 S.W.2d 418, 421 [1]; Snyder v. Hedges, Mo.App., 381 S.W.2d 376, 380 [2, 3].

If the plaintiff’s evidence is true, and we must so accept it on this appeal, the plaintiff gave a proper and timely warning of her intention to turn left into the country road. At the time of the collision, her automobile was in a proper position to execute the turn which she had signaled for a distance of 400 to 500 feet west of the side road. There is direct evidence that the defendant was following in the same lane as the plaintiff which is buttressed by the fact that the defendant’s skid marks began in the eastbound lane and extended a distance of 174 feet to the place where defendant’s automobile came to rest headed southeast in the west lane or north half of the highway at the intersection of the country road and U. S. 36. The highway patrolman estimated that the defendant was traveling 70 miles per hour when he applied his brakes which was the legal limit at that section of the highway. Allowing for normal reaction time, the defendant’s automobile traveled 77 feet in the eastbound lane after he perceived the need of slowing or stopping his car and before the skid marks began. Thus he was in the eastbound lane a distance of at least 164 feet (one-half the skid marks plus the reaction distance) while he was undertaking to slow or stop before he crossed over into the west lane or north half of the highway. This is hardly consistent with the defendant’s contention that he was undertaking to pass the plaintiff when she started her left turn. In these circumstances the jury could reasonably believe that the defendant had proper warning of the left turn between 400 and 500 feet west of the country road but that he made no effort to lessen the speed of his automobile until he was about 251 feet from the point of collision, and that he thereby negligently allowed his automobile to collide with the Clevenger car.

The evidence tends to show that the Clevenger car was propelled about 100 feet east of the side road and came to rest on the pavement and that Mr. Clevenger backed it onto the north shoulder to a point 40 to 50 feet east of the side road. The direction and distance of the propulsion is hardly consistent with the view that the Clevenger automobile was struck initially and primarily on its left side. The inference that the plaintiff was struck from the rear is the only logical one in the circumstances shown by the evidence.

The “rear-end collision doctrine” is de- ■ signed to cover situations where the driver or occupant of the car struck cannot be expected to know precisely the neglect or failure of the driver of the following car. If the doctrine, which is somewhat indigenous to Missouri, has any value, it serves that purpose and relieves the plaintiff from resorting to speculation in selecting the sub-missible ground of negligence. The driver of the following car, however, does have a view of what is ahead of him and can better explain why he allowed or permitted some portion of his car to strike the rear of the car ahead which is in a portion of the highway where it is entitled to be in view of the course in which it is proceeding. It is doubtful if the rear-end collision doctrine presents any stricter rule of liability than the several other grounds of primary negligence and also the humanitarian rule.

Moreover, it is apparent from the reported decisions that the rear-end collision doctrine is not limited to situations where the evidence clearly establishes that the lead car is proceeding straight ahead without deviation. In the parent case of Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, there was evidence that the defendant was attempting to pass, that the plaintiff’s vehicle swerved into the right wheel of defendant’s truck and was over the center line at the time of the collision.

In Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360, the plaintiff pulled out from the curb and drove towards the streetcar track, looked in his side-view mirror and could not at that time observe the approaching streetcar. Plaintiff’s car was struck from the rear after he had gone a short distance on the track.

In Jones v. Austin, Mo.App., 154 S.W.2d 378, at page 381, the court stated that the “very fact that the Robinson car was standing at a place it had a right to be, and that defendant’s taxicab ran into it in the rear, raised an inference that a proper effort to control the taxicab was not made.” Boresow v. Manzella, Mo., 330 S.W.2d 827, treated the res ipsa loquitur doctrine as available in a rear-end collision situation.

Witherspoon v. Guttierez, Mo., 327 S.W. 2d 874, presents a case very similar to the present one on the facts. The plaintiff in the lead car was negotiating a left turn off the highway at an intersection when she saw the lights of the defendant’s following vehicle attempting to pass. It appeared that he would strike the plaintiff’s car in the side and this would have happened but the plaintiff turned her car to the right and the right front and right headlight of the defendant’s automobile struck the left rear of the plaintiff’s car. Plaintiff’s submission under the rear-end collision doctrine was approved and plaintiff’s judgment was affirmed.

The duty of the following motorist is stated in 60 C.J.S. Motor Vehicles § 323, pp. 747-748, as follows: “The duty of an automobilist to keep a lookout, discussed generally supra §§ 284 — 287, imposes on him the obligations of observing vehicles on the road ahead of him and their movements and of being prepared for movements which might reasonably be anticipated. He must watch out for signals from the driver of the vehicle ahead and be prepared to avoid danger in case of any movement which is properly signaled. He must keep his car under control and operate it with care so that he will not run into vehicles ahead of him, and a collision with a vehicle ahead may constitute negligence or contributory negligence, imposing liability or barring recovery, as discussed infra § 328, provided the operator of the automobile ahead was driving in accordance with his rights.”

Thus we see the decisions have held that submissible cases were made where the lead vehicle was proceeding directly ahead, standing still, preparing to turn left and starting a left turn. The evidence demonstrates without question that the plaintiff signaled her left turn in adequate time and distance, that she was properly starting her turn but had not reached a point where she was out from under the intended scope and protection of the rear-end collision doctrine as stated in the reported cases. On the issue of submissibility under the rear-end doctrine, I would hold that a case was unquestionably made.

We pass to the question of whether plaintiff’s Instruction No. 3 is reversibly erroneous. The majority opinion quotes from Coit v. Bentz, Mo., 348 S.W.2d 941, 946, in justification of an appellate court deferring to a trial court’s action in granting a new trial for an error in an instruction. The opinion fails, however, to refer to the limitation contained in this statement immediately following, 348 S.W.2d at page 946: “This does not mean, of course, that the trial court’s construction can make a bad instruction good, or a good instruction bad, but its view is material as to the prejudicial effect on the jury of a misleading instruction or of one which constitutes a misstatement.” Italics supplied. The trial court’s ruling in the instant case simply was that “it was error to give Instruction No. 3.” There is nothing in the record to indicate that the trial court relied on any discretionary grounds in granting the new trial.

As we understand it, the majority opinion affirms the trial court’s ruling that Instruction No. 3 was erroneous on the ground that it required “no finding as to where the vehicle was on the highway at the time it was hit, or even that it was on the highway, and it cannot be said that the instruction required a finding of plaintiff’s position in a place where she had a right to be”.

The instruction is set out in full in the majority opinion, but for convenient reference- we state again its salient portions. The first paragraph of the instruction merely states the applicable degree of care and is not in question. The second paragraph (with emphasis added) instructs the jury “if you find and believe from the evidence” that on May 25, 1962, the plaintiff Clev-enger “was proceeding in an easterly direction on Highway No. 36 at the place mentioned in evidencethat she “was at all times in the exercise of the highest degree of care for her own safety” and that as she “proceeded eastwardly and turned to her left, or north” and as the defendant was operating his vehicle in an eastwardly direction and to the rear of plaintiff Clev-enger’s automobile “he negligently and carelessly allowed his automobile to run into and collide with the rear end of the automobile plaintiff Clevenger was operating”, and if as a result of such negligence the plaintiff was injured, the jury’s verdict should be in favor of the plaintiff. Contrary to the statement in the majority opinion, the instruction specifically requires the jury to find that the plaintiff was driving on the highway. Furthermore, the evidence describing the course of the plaintiff’s automobile on the pavement was uncontradicted. There was only one version in evidence regarding the movement of plaintiff’s automobile on the highway and its position when it was struck. The instruction required the jury to find that the automobile was “at the place mentioned in the evidence”. Under the evidence that direction of the instruction could have only one meaning and was sufficient under the law as we shall develop more fully later.

The sufficiency of the instruction’s hypotheses is buttressed by the further fact that the instruction commences with the phrase “if you find and believe from the evidence” and requires a finding that the plaintiff was “at all times in the exercise of the highest degree of care for her own safety”. If the jury found that the plaintiff was not guilty of negligence, then it would necessarily have to find that she was in a position on the highway where she had a right to be especially since there was only one version as to where her car was and how it was operated. In Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, 500 [2], this court stated: “Where there is no divergence in or denial of the essential facts, then the ultimate issue of the negligence pleaded and its being the proximate cause of the injury or damage alleged may be submitted by reference to the facts and circumstances shown by the evidence without specific hypothesization in the instructions. And, we may add, that if either of the parties deems a hypothesized fact or situation not to have been clearly or sufficiently hypothesized in any instruction, he should offer a clarifying or amplifying instruction.” Italics supplied. Also in Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, 977 [9], this court held that further hypotheses with respect to speed was not necessary because there was no conflict of factual theories stating: “There having been no real conflict of the factual theories relating to the physical setting and the circumstances of the collision relevant to the issue of speed, there was no real necessity of more particularized hypotheses of the facts than the hypotheses of Instruction No. 1.”

Further in keeping with the holding in Hooper v. Conrad, it is aptly stated in Quigley v. St. Louis Public Service Co., Mo., 201 S.W.2d 169, 171-172: “Plaintiff’s complaint is of nondirection, not misdirection; and plaintiff should have requested a clarifying instruction if desired.”

We submit that in Instruction No. 3 the ultimate facts were sufficiently hypothesized in keeping with the instructions approved in the above cases, including Jones v. Central States Oil Co., 350 Mo. 91. 164 S.W.2d 914, 919-920 [5], and Witherspoon v. Guttierez, Mo., 327 S.W.2d 874, 880 [5]. In these circumstances, the verdict of the jury should not be disturbed. As well stated in Arnold v. Fisher, Mo.App., 359 S.W. 2d 602, 609 [9], “* * * recent holdings of our Supreme Court sound the timely warning that, in the absence of plainly confusing or misleading instructions manifestly infringing substantial rights in a demonstrably substantial manner, there is no error ‘materially affecting the merits of the action’ [Rule 83.13(b); Section 512.160(2)] and the granting of a new trial is neither required nor justified. Kelly [Kelly v. Kansas City Public Service Co., Mo.], supra, 335 S.W.2d [159] loc. cit. 164(8); Stewart v. Boring, Mo., 312 S.W. 2d 131, 134; McGhee v. Jones, Mo., 336 S.W.2d 722, 726.”

As stated in the majority opinion, if the case is remanded for a retrial under the rear-end collision doctrine, it will be submitted under Missouri Approved Instruction 17.16, the verdict-directing instruction in a rear-end collision case, which simply reads as follows:

“Your verdict must be for plaintiff if you believe:
“First, defendant permitted his automobile to come into collision with the rear of plaintiffs automobile, and
“Second, defendant was thereby negligent, and
“Third, as a direct result of such negligence, the plaintiff sustained damage”.

The Committee’s Comment states: “1. While there is language in the cases cited below suggesting that the collision itself shows negligence, the safer course is to further hypothesize negligence.” Four leading Missouri cases are cited in support of this proposition. The comment indicates the strength of the inference authorized by the ultimate fact of a rear-end collision.

The instant case was tried before the effective date of the Missouri Approved Instructions, but the new instructions do not change the law, only the manner of submitting the issues. As we have demonstrated, the instruction as given is sufficient under the instruction practice existing at the time of trial. However, MAI No. 17.16' furnishes less factual guidance for the jury and demonstrates that the instruction in question could not be misleading or prejudicial. All that is required under MAI 17.16 is a finding by the jury of the ultimate fact that the defendant permitted his automobile to come into collision with the rear of plaintiff’s automobile and that the defendant was thereby negligent. Instruction No. 3 covers all of this and more. To require a new trial in these circumstances seems to be a vain and useless thing.

Having these views, I would reverse the judgment of the trial court and remand the cause with directions to reinstate the verdict. For the reasons given, I respectfully dissent.


author: CULLEN, Commissioner.

text:
    Ray DAUGHERTY and Carl Billiter, d/b/a D and B Coal Company, Appellants, v. Hudson WATTS and the Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.
    Fred B. Redwine, Sanders & Redwine, Pikeville, for appellants.
    Kelsey E. Friend, Friend & Mullins, Pikeville, for appellees.
   CULLEN, Commissioner.

The appeal is from a judgment upholding an order of the Workmen’s Compensation Board which reopened a previous agreed award under which the appellee Hudson Watts had been given compensation on the basis that 57.2 percent of his disability (total) was due to silicosis, and substituted a new award giving him compensation on the basis of 100 percent disability from silicosis.

The original agreed award was made in May 1962 in proceedings initiated in April 1961 by the filing of a claim by Watts seeking an award for total permanent disability from silicosis. All the doctors who then had examined Watts agreed that he was totally disabled, some attributing it to silicosis but others saying that they found no evidence of silicosis and that the disability was due to other (noncompensable) causes.

The motion by Watts to reopen was filed in February 1966. At the hearing on the motion two of the doctors who had examined Watts in 1961 for his employer and who had testified then that they found no evidence of silicosis, testified that upon reexamining Watts in 1965 they found positive and definite evidence of silicosis; that the disease is a progressive one, and that the scarring of the lungs in the form of nodular fibrosis had progressed or continued in Watts’ body since 1961 so as to become clearly visible on X-rays in 1965. Watts had not worked, and therefore had not been exposed to the hazards of silicosis, since 1961, so his silicotic condition in 1965 clearly was attributable to development of a condition of early stage silicosis that was present in his body but not clearly discernible in 1961. The two doctors testified that Watts’ present silicotic condition is of totally disabling character.

The board ruled that there was a change of condition warranting the reopening of the former award and the granting of compensation for total permanent disability. The appellant argues that since, admittedly, Watts was totally disabled in 1961 (only a part of which was agreed then to be due to silicosis), any change in the causes of his disability is not of any significance. In other words, the appellant argues that the only change of condition that will authorize a reopening is a change in the extent of disability, not in the cause. In substance, this amounts to an argument that if an employe is disabled simultaneously by two causes, one compensable and the other not, he should receive no compensation.

The appellant cites no authority for its argument and we think the argument is not sound. We do not believe that our workmen’s compensation law contemplates that any disability an employe sustains in the course of and arising out of his employment shall be cancelled out, for compensation purposes, by disability from another cause. There seems to be little authority on the question but it is that if a workman has suffered a compensable injury he will not be deprived of compensation merely because of the existence of an independent, concurrent cause of disability. See 58 Am.Jur., Workmen’s Compensation, sec. 338, p. 810.

If, as the medical testimony showed, Watts has a silicotic condition, attributable to his employment, that alone would totally disable him, we think it is immaterial that he may suffer from other ailments which, too, would alone disable him. Accordingly, we think that the development or advancement of Watts’ silicotic condition, from a 57 percent disability factor to a 100 percent one, was a change of condition authorizing a reopening of the former award.

The appellant suggests that in any event there should be an apportionment of the disability between the compensable cause and the noncompensable one, and that the award of compensation should be in accordance with the apportionment. This is simply an argument that if the independent, noncompensable disabling cause will not completely cancel out an equal compensable cause, it at least should cancel it out half way. As hereinbefore indicated, it is our opinion that it is not within the intent of the workmen’s compensation statutes that an independent, noncompensable disabling cause shall in any way reduce the force and effect of a compensable disabling cause.

Appellee Watts did not file a cross-appeal but he suggests that the Workmen’s Compensation Board committed a “clerical” error in directing that the compensation under the new award should run for a period of weeks beginning as of the date of the new award, rather than as of the date he quit work. The hoard’s order in this respect clearly was intentional, based on the finding of a change of condition. Ap-pellee is arguing in effect that this is a case of a mistake — that in truth Watts was totally disabled from silicosis back when the original award was made. We think the case properly was treated as one of change of condition — that in silicosis cases if an award has been denied or an award has been limited as for partial disability, because of lack of clear proof of the existence or extent of a silicotic condition, and there is later an advancement or progression of the disease in the claimant’s body so as to make clear its disabling existence and effect, the case is truly one of change of condition and not one of mistake. Cf. Turner Elkhorn Mining Co. v. O’Bryan, Ky., 414 S.W.2d 410; Messer v. Drees, Ky., 382 S.W.2d 209.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MILLI-KEN, OSBORNE, PALMORE and STEINFELD, JJ., concur.


author: IRA D. SMITH, Special Commissioner.

text:
    Guy E. McGAUGHEY, Jr., Appellant, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Appellee.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.
    Wilbur Fields, Louisville, for appellant.
    Wesley P. Adams, Jr., William D. Lambert, Ogden, Robertson & Marshall, Louisville, for appellee.
   IRA D. SMITH, Special Commissioner.

The appellant, Guy E. McGaughey, Jr., is appealing from a judgment entered in the Jefferson Circuit Court against him for the reason that he was served with a summons by a special bailiff instead of the sheriff in the county.

KRS 454.145 provides:

“The court, for good cause, may appoint a person to serve a particular process or order, and he shall have the same power to execute it which a sheriff has. His return must be verified by his affidavit. He shall be entitled to the fees allowed to sheriffs for similar services.”

It would appear from the record that the appellee, Continental Illinois National Bank and Trust Company of Chicago, had encountered some difficulty in bringing McGaughey before the court after filing its complaint on January 28,1965, and that pursuant to the above quoted statute a special bailiff was appointed on March 29, 1965, to serve the summons on McGaughey. The summons was duly served by the special bailiff on March 31, 1965.

The sole question presented is whether or not this service upon the appellant was proper and valid.

The order appointing Louis F. Jarosch or John B. Schmid, Jr., special bailiff, was signed by Lyndon Schmid, circuit judge, and was made pursuant to an affidavit filed by counsel stating that the defendant had previously evaded attempts to serve him with summons and that affiant believed it would be impossible to serve such a summons unless a special bailiff was appointed.

This court believes, as did the trial court, that the appointment of the special bailiff was properly made for a “good cause” and that McGaughey is in no position to make a groundless attack on the discretion exercised by the trial court in so appointing a special bailiff.

We are not inclined by the record here presented to criticize the judges of the Jefferson Circuit Court for appointing special bailiffs where in their good judgment cases may require same. Nor can we say, for the good of the appellant and litigants generally, that we should find the judgment in this case void.

Defendant was in no way prejudiced by the use of a special bailiff, and such service was sufficient to bring the defendant within the jurisdiction of the court. If there is any 'abuse of the special bailiff statute, it can be tightened by legislative action. But upon the record in this case, we are of the opinion that the trial court properly and correctly granted the judgment against the appellant.

The judgment is affirmed.

All concur.


author: MONTGOMERY,. Judge.

text:
    James L. BOYD et al., Petitioners, v. Woodard C. TIPTON, Judge, etc., Respondent.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.

      Charles A. Williams & Associates, Padu-cah, for petitioners.
    T. W. Threlkeld, Waller, Threlkeld & Whitlow, Paducah, for respondent.
   MONTGOMERY,. Judge.

James L. and Katie Jo Boyd seek an order prohibiting Woodard C. Tipton, Judge, Ballard Circuit Court, from permitting Phillips Petroleum Company to file an amended answer in an action styled Boyd et al. v. Phillips Petroleum Company.

The Boyds executed a lease dated June 13, 1958, in favor of Phillips Petroleum Company. The property was used as a service station. The Boyds sued to collect past due rent. Phillips, by answer and counterclaim, sought to cancel the lease based on paragraph 3 of the main lease. Summary judgment was granted upholding Phillips’ construction of paragraph 3, which would have permitted Phillips to cancel the lease on ten days’ notice. The summary judgment was reversed and the case was remanded for further action not inconsistent with the opinion rendered therein. Boyd v. Phillips Petroleum Company, Ky., 418 S.W.2d 736.

Upon return of the action, Phillips asked to file an amended answer by which it sought to defend the action on another ground, an alleged breach of a covenant to keep the premises in good repair. Since the respondent has indicated that the filing of the amended answer would be permitted, the Boyds have sought an order prohibiting it.

The Boyds contend that they have no adequate remedy by appeal or otherwise and will suffer great and irreparable injury if the filing is permitted, in that they will be caused to oppose a defense which had been available to Phillips at the time of the filing of their original answer, if at all.

Leave to amend a pleading is discretionary with the trial court. Graves v. Winer, Ky., 351 S.W.2d 193; Farrow v. Downing, Ky., 374 S.W.2d 480. CR 15.01 provides that leave to amend shall be freely given when justice so requires. Clay, CR 15.01, Comments 3 and 4. However, it has been held to be error to permit a plaintiff by amendment to present a new cause of action after he has closed his evidence. State Contracting & Stone Company v. Walker, Ky., 294 S.W.2d 931. Thus, it is questionable whether the filing of an amended answer should be permitted after a summary judgment has been reversed. This is especially so in the light of CR 12.08 concerning the waiver of a defense which a defendant does not present timely.

It is unnecessary to decide whether the decision to permit the filing of the amended answer is error. Whether the trial court has abused its discretion in such instance is a matter reviewable by appeal. Thus, an adequate remedy is available to the Boyds. Prohibition may not be used as a substitute for an appeal. Burke v. Tartar, Ky., 350 S.W.2d 146. There is no question as to whether the trial court is acting within its jurisdiction. The question is whether the contemplated action will result in irreparable injury because of the vexation and expense of continued litigation. Similar petitions have been denied. Ison v. Bradley, Ky., 333 S.W.2d 784; Shelby County Board of Education v. Wright, Ky., 390 S.W.2d 654.

Relief denied.

All concur.


author: PALMORE, Judge.

text:
    Albert L. CRUSH, Appellant, v. Ben M. KAELIN, Jr., Appellee.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.

      Wallace H. Spalding, Jr., Louisville, for appellant.
    W. Scott Miller, Jr., Louisville, for ap-pellee.
   PALMORE, Judge.

The appellant, Crush, hired three carpenters including the appellee, Kaelin, to help him build a house. Kaelin was injured on the job and sued Crush for negligent failure to provide him a safe place and safe materials or equipment with which to work. Cf. KRS 338.030. Crush appeals from a $25,000 verdict and judgment against him in Kaelin’s favor.

The case was submitted to the jury under the theory that the employment was within the coverage of the Workmen’s Compensation Act, KRS Chapter 342, so that Crush could not avail himself of the defense of contributory negligence pleaded in his answer. KRS 342.410. Crush’s motions for a directed verdict and for a judgment n. o. v. were overruled. It is our opinion that Chapter 342 was not applicable, that if Crush was negligent Kaelin necessarily was negligent also, and that Crush was and is entitled to a judgment n. o. v.

Early in the year 1963 Crush, who lived in Louisville, wished to build for his personal use a vacation cottage or lodge on a lot he owned at Guist Lake in Shelby County. He was a distributor and salesman of power transmission equipment and had little or no familiarity with the arts of carpentry and construction. He secured plans from a lumber company. Kaelin, a regular employe of a building contractor, had done some construction work for Crush’s brother, who suggested to Crush that he try to get Kaelin to help in his spare time. Kaelin agreed to do so, and for a time the work was done by Crush, Kaelin and Crush’s young son. After a month or so, at Crush’s suggestion Kaelin procured the assistance of two other carpenters regularly employed by the same contracting firm for which he worked. The three carpenters worked for Crush parttime and he paid them on an hourly basis.

When the walls had been raised and rafters put in place it became necessary for the carpenters to erect scaffolding so they could work from a level above the surrounding grade. Shortly after completion of the scaffold one of its supporting members, a 2-by-4, broke under the weight of Kaelin and one or both of the other two carpenters, whereupon Kaelin fell a distance of several feet to the bottom of an excavation which had been made for the foundation and basement wall and sustained the injury that precipitated this litigation.

Crush did not participate in and was not present during construction of the scaffold and, in fact, did not see it until after the accident had occurred. The claimed negligence on his part that he had failed (1) to have the excavation backfilled and (2) to provide materials suitable for the construction of a safe scaffold. Without pursuing the details, it may be assumed that Kaelin’s evidence was sufficient to support a finding of negligence in these respects. It may be assumed also, though we need not so decide, that Kaelin was a servant rather than an independent contractor.

If it is true that Crush should have caused the excavation to be backfilled, so that it would be easier to construct an adequate scaffold and less hazardous to work on it, and that he should have provided heavier and stouter lumber for use as scaffolding, Kaelin nevertheless was fully aware of his having failed to do so when he (Kaelin) chose to build and use a scaffold with the materials at hand and under the circumstances as they were. “Where the master has failed to provide the servant a safe place to work, assumption of risk by the servant applies if the servant knows of the danger and continues to work. * * * Where a workman continues to work with inadequate or defective tools he assumes the risk, if the defect is known or is obvious to a person of ordinary prudence, or that continuous use is liable to cause injury.” Batsel v. Brown, 310 Ky. 524, 221 S.W.2d 78, 80-81 (1949). See also Mitchell v. Franklin, Ky., 398 S.W.2d 707 (1966).

Kaelin was experienced in the building and use of scaffolding. If Crush’s failure to do that which he should have done created an unreasonable risk of harm to Kaelin, Kaelin was the first who should have recognized and appreciated it. He was the old hand, Crush the greenhorn.

The concept of assumed risk as distinguished from contributory negligence has been abandoned in the recent case of Parker v. Redden, Ky., 421 S.W.2d 586 (1967). The doctrine that one who assumes a known risk is barred from recovery regardless of the reasonableness of his choice has ceased to be legal tender in Kentucky. Nevertheless, “in a situation where the defendant’s already-committed negligent acts of which the plaintiff is aware have created a risk also of which the plaintiff is aware * * * if there was no substantial necessity or urgency for the plaintiff’s subjecting himself to the risk, or if the risk was one that easily could have been eliminated before the plaintiff took action, the plaintiff who took the risk must be considered as a matter of law to have acted unreasonably and he will not recover. * * * We think any problem can be eliminated by weighing reasonableness in the light of the necessity or urgency for the action and the difficulty of removing the risk before acting.” Id., p. 592.

There was no “substantial necessity or urgency” for Kaelin’s subjecting himself to the risk he claims was thrust upon him in this case. He was working as- andwvhen he pleased during off-hours from his regular employment. So far as we can discern from the record he was under no compulsion of any kind unless it was the need for more money than he was earning at his regular job. We do not belittle economic necessity, but even so there is no suggestion that a loss of this side-job with Crush was the only alternative to his going ahead under hazardous conditions. He did not, for example, make any serious effort to impress Crush with the existence of a substantial risk of injury. Indeed, from a reading of his testimony it is obvious that Kaelin himself really did not believe there was such a risk.

From what we have said thus far it follows that if it could be successfully maintained that Kaelin, knowing all that Crush knew and having then built the scaffold, was not negligent in using it, neither can Crush have been negligent. Hence Crush could not be liable unless his duty under KRS 338.030 to furnish a safe place to work and such safeguards as were reasonably necessary for the protection of his employes was an absolute duty as distinguished from the duty to exercise ordinary care in these respects.

The common law duties of the master to provide for the safety of his servants are not absolute. “The master is not an insurer of the safety of his premises. He is only required to use ordinary care to make them reasonably safe for the uses for which they are intended.” Interstate Coal Co. v. Shelton, 152 Ky. 92, 153 S.W. 1, 3 (1913). “An employer’s obligation to its employee is not the frequently impossible duty of furnishing absolutely safe instrumentalities or place to work. Its duty is to provide its employee with a place reasonably safe having regard for the character of work and reasonably safe tools and appliances for doing the work. The measure of duty is to exercise ordinary or reasonable care to do so. The standard is the care exercised by prudent employers in similar circumstances.” Happy-Scuddy Coal Co. v. Combs, 310 Ky. 52, 219 S.W.2d 968, 970 (1949).

KRS 338.030 was enacted as § 3, Art. II of the Hunnicutt Act, c. 105, Acts of 1940, which among other things created the Kentucky Industrial Safety Board and authorized the formulation and promulgation of safety standards and regulations. There is no indication in the Act, or otherwise, that the general provisions for safe places of employment, safe methods and practices, and reasonable safeguards were intended to make the employer an insurer. Had that been the purpose, the formulation of standards by an administrative body would have been superfluous and unnecessary. It may be that a specific standard or regulation, once promulgated, fixes an absolute duty, but the mere statutory recitation of general duties theretofore existing at common law cannot reasonably be construed as anything more than a codification of established principles.

In holding that the workmen’s compensation law does not apply to the employment relationship in this case we do not underestimate the importance of the question and the significance of our decision. KRS 342.005 brings within the coverage of the law “all employers having three or more employes regularly engaged in the same occupation or business,” with enumerated exceptions including domestic employment. It can be reasonably argued that in the absence of a specific exclusion the word “employer” means any employer in any type of employment situation. It can be logically countered that any employment in, about and concerning an individual employer’s private residential premises is “domestic employment.” But we need not resort to a technical approach. The fact is that we do not believe the social objectives of workmen’s compensation in shifting the risk of injury from the workman to the employer, and thence to the consuming public, cf. Ratliff v. Redmon, Ky., 396 S.W.2d 320, 324 (1965), were or are intended to embrace the domain of an employer’s private household affairs. In arriving at this conclusion we are by no means alone. “It appears * * * that whatever the statutory background, the courts will not ordinarily find in the compensation act coverage of work undertaken by a person as, so to speak, a consumer instead of a producer.” Larson’s Workmen’s Compensation Law, § 50.22, p. 740.

The decisions cited in support of Kae-lin’s position that his employment by Crush was subject to the workmen’s compensation law are all cases in which, obedient to the direction of KRS 342.004 that the chapter be liberally construed on questions of law, this court has taken a broad view in favor of coverage, particularly -as to the status of the injured workman, but none of them involved the question of whether the provisions of the act itself were applicable to the employer. Cf. McCorkle v. McCorkle, Ky., 265 S.W.2d 779 (1954); Brewer v. Millich, Ky., 276 S.W.2d 12 (1955); Dick v. International Harvester Company, Ky., 310 S.W.2d 514 (1958); Bowen v. Gradison Const. Co., 236 Ky. 270, 32 S.W.2d 1014 (1930); Ratliff v. Redmon, Ky., 396 S.W. 2d 320 (1965); and Smith v. Klarer Company, Ky., 405 S.W.2d 736 (1966). In the Dick case, for example, there was an issue as to whether the employer had accepted the silicosis provision, but no question as to its eligibility. We do not say that the rule of construction stated by KRS 342.004 does not extend to the type of question before us in this case; only that it does not command a result not called for by the spirit and purpose of the act. This is not, in our opinion, a marginal case.

The judgment is reversed with directions that a judgment n. o. v. be entered in favor of the appellant.

All concur.


text:
    James E. FINCH, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Millard D. GRUBBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.

      Jack M. Lowery, Jr., Louisville, for appellants.
    Robert Matthews, Atty. Gen., Darryl Owens, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

James E. Finch and Millard D. Grubbs were convicted under KRS 435.150 of arresting one H. A. Lewis “otherwise than according to law.” Finch was given a one-year sentence and Grubbs received a five-year sentence. Both have appealed.

Two associates of Finch and Grubbs in an organization created by Grubbs called the National Law Enforcement Committee made a “citizen’s arrest” of Lewis on a charge of false swearing. They took Lewis before a magistrate who held a hearing and then ordered Lewis released from custody on the ground that since the evidence produced at the hearing did not show that Lewis had knowingly and willfully sworn falsely, the evidence was not sufficient to justify holding Lewis for the grand jury. Indictments for false arrest then were brought against Finch, Grubbs, the two associates who had physically made the arrest, and another associate. The theory of the prosecution, fully proved and in fact not denied, was that the arrest was planned and carried out as a specific project of the. “National Law Enforcement Committee” in which project all of the " defendants participated. One of the defendants was permitted to plead. guilty to an amended charge of assault and battery and was given a suspended sentence. The other four all were convicted but the two other than Finch and Grubbs were given suspended sentences and they have not appealed.

The statute authorizing a “citizen’s arrest,” KRS 431.005(2), provides that a private person may make an arrest when a felony has been committed in fact and he has reasonable grounds to believe that the person being arrested has committed it. The indictment in the instant case did not indicate in what respect the arrest did not comply with this statute or in what other way the arrest was illegal or false; it simply charged in the words of KRS 435.-150 that the arrest was “otherwise than according to law.” The appellants moved that the indictment be quashed for failure to state the facts constituting the offense, and they moved in the alternative for a bill of particulars. The trial court overruled both motions, in which rulings the appellants claim error.

Prior to the adoption of the present Rules of Criminal Procedure the holding of this Court was that an indictment under KRS 435.150 was not sufficient, and was demurrable, if it merely alleged that the arrest was “otherwise than according to law,” without specifying the circumstances and facts of the arrest. See Carroll v. Commonwealth, 164 Ky. 599, 175 S.W. 1043. Kimbler v. Commonwealth, Ky., 269 S.W. 2d 273; Lewis v. Commonwealth, Ky., 299 S.W.2d 635. However, the new rules have adopted the principle of notice pleading, RCr 6.10, and it now is considered sufficient if the indictment fairly informs the defendant of the nature of the crime with which he is charged, without detailing the “essential” factual elements. See Fitzgerald v. Commonwealth, Ky., 403 S.W.2d 21; Hines v. Commonwealth, Ky., 390 S.W. 2d 152; Runyan v. Commonwealth, Ky., 393 S.W.2d 877. So we think there was no error here in the overruling of the indictment. But we think it was error to overrule the motion for a bill of particulars.

The theory of the new rules of criminal procedure is that if the defendant needs information concerning the details of the charge against him to enable him to prepare his defense he should be supplied them through a requested bill of particulars, rather than that a requirement be made that every indictment set forth all details of the charge. As we shall show, we think the defendants in the instant case reasonably needed a bill of particulars to enable them to prepare their defense and to protect them against the surprise of a multiple-theoried prosecution.

As the trial progressed it developed that the prosecution was proceeding on three different theories of an unlawful arrest, each resting on different evidence. One theory was that Lewis (the man who was arrested) did not in fact swear falsely. Another was that the arrest made by the defendants was not a citizen’s arrest (without warrant) but was an attempted official arrest on an invalid warrant. The third theory was that even if the arrest technically was valid it was not made in good faith. See Begley v. Commonwealth, Ky., 60 S.W. 847, 22 Ky.Law Rep. 1546. We think the presentation of these varied theories, without notice or warning, put an unreasonable burden of defense upon the defendants and therefore the court committed prejudicial error in overruling the motion for a bill of particulars.

The appellants make another claim of error in which we find merit. The error consisted of a statement by the trial judge to the jury that the Court of Appeals had decided in the civil case in which Lewis was alleged to have made a false affidavit, that what was said in the affidavit was true, and that the decision was conclusive of the question of whether Lewis was guilty of false swearing. This statement amounted to a directed verdict of guilty against the defendants, because it told the jury that Lewis had not committed an offense, whereas one of the prerequisites of a citizen’s arrest is that a felony actually have been committed. The statement was highly prejudicial and in our opinion it was wrong on several grounds, as we shall show.

Lewis was an employe of the Urban Renewal and Community Development Agency of Louisville. That agency had instituted a condemnation proceeding against one Dinwiddie, who was a friend of Grubbs. On behalf of Dinwiddie Grubbs caused a motion to be filed in the condemnation suit for dismissal of the suit on the ground of failure to have joined one Emerson, who was asserted to have an interest in the property as a sublessee. Lewis thereupon made and filed in the suit an affidavit that Emerson did not have any interest in the property. (This is the affidavit on which the false swearing charge was based.) The motion to dismiss was overruled and the suit went to judgment. On appeal to the Court of Appeals Dinwiddie asserted as one of his claims of error that Emerson had erroneously been adjudged not to be a necessary party. This Court, in its opinion on the appeal, Dinwiddie v. Urban Renewal and Community Development Agency, 393 S.W.2d 872 @ 875, said, “The evidence shows that he [Emerson] transferred such interest as he had in the lease to Phillips Petroleum Company * * This statement in the opinion is what the circuit court in the instant case said was a conclusive adjudication that Lewis had not sworn falsely.

There are at least two reasons why the circuit court’s ruling was erroneous. First, for all that appears from the opinion of this Court on the Dinwiddie appeal, Emerson may have transferred his interest to Phillips Petroleum Company after Lewis made his affidavit. Second, part of the record which this Court relied upon as showing that Emerson had no interest may have been the Lewis affidavit itself. Additional reasons may be found in the fact that the defendants in the instant case were not parties to the Dinwiddie suit so as to supply the element of sameness of parties which is essential to res adjudicata, and the quantum of proof required in a civil case is different from that in a criminal prosecution.

It is true that the trial court permitted the defendants to introduce evidence in the latter stages of the trial tending to show that Emerson did have a leasehold interest in the Dinwiddie property and the Lewis affidavit was therefore false, but the court never withdrew its ruling that the Lewis affidavit had been conclusively adjudged by this Court not to be false. Furthermore, the court permitted the evidence to be harpooned by erroneous- statements by the prosecuting attorneys that a sublessee of real estate has no interest in the real estate.

Further error was committed by the trial court in instructing the jury that a certain document exhibited to Lewis by the two defendants who physically arrested him was “not a valid arrest warrant.” The evidence was that when the two defendants confronted Lewis they told him they were making a “citizen’s arrest.” (Of course this would be an arrest without a warrant, because that is the only kind of citizen’s arrest there is.) Lewis asked them what was the charge, and they then handed him an affidavit stating the alleged offense of false swearing, which was attached to a paper entitled “National Law Enforcement Committee’s Official Warrant of Arrest.” Despite the fact that the defendants never at any time pretended or claimed that they were arresting upon the warrant, or represented to Lewis that they were arresting him upon the warrant, and despite the fact that Lewis did not testify that he attached any significance at all to the so-called warrant, the prosecuting attorneys insisted throughout the trial, by repeated comments to the jury and to the court, and in their final argument to the jury, that the defendants were guilty of false arrest solely and simply because they handed the so-called warrant to Lewis. In the context of the trial and the other instructions, the instruction that the warrant was not a valid arrest warrant was erroneous and highly prejudicial, because it in effect told the jury that the defendants could be found guilty simply because of - their handing Lewis the paper, even though Lewis already had been told that he was under a “citizen’s arrest” and the papers were handed to him only after he had asked the nature of the offense with which he was charged.

We find merit also in another claim of error. A policeman was permitted, over objection, to testify that he had kept Grubbs’ home (which was also the headquarters of the National Law Enforcement Committee) under surveillance for several days and had observed a known criminal enter and leave. This evidence had no possible relevance to the offense charged.

Other errors are asserted which we find it unnecessary to pass on and which therefore are reserved.

It appears that Grubbs, a disbarred lawyer, at the very least was misguided in his quest (as stated by him) to arrest and bring to trial “traitors who committed high crimes in high places; ” that the arrest of Lewis was not conducive to or consistent with the orderly enforcement of law, nor made necessary or even desirable by any urgency; and that the defense tactics and antics of Grubbs at the trial were calculated to make it difficult to conduct a fair and impartiál trial; nevertheless, our system of justice entitled him to a scrupulously fair trial.

The judgment is reversed with directions for a new trial.

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY, OSBORNE and PALMORE, JJ., concur.


author: CLAY, Commissioner.

text:
    Tom GRISSOM et al., d.b.a. Grissom-Rakestraw Lumber Company et al., Appellants, v. Roy WALTERS et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.

      Robert L. Milby, Hamm, Taylor & Milby, London, for appellants.
    H. K. Spears, Somerset, Robert Matthews, Atty. Gen., Frankfort, for appellees.
   CLAY, Commissioner.

In this workmen’s compensation case the Board denied compensation and on appeal the circuit court reversed. The employer appeals from that judgment.

The employee contends he was injured on March 1, 1965, when a board struck him in the stomach while he was stacking some lumber. His principal complaint is a back injury, which apparently was disabling. The evidence, however, would justify a finding that the condition of his back was attributable to a bilateral hydrocele corrected by surgery in December 1959. This condition was again repaired in April of 1965, over a month after the alleged injury. The doctor who operated on the employee could not say his back condition was caused by the injury complained of or that such injury caused any disability. It appears that after the alleged accident the employee discovered a knot on his back, but there is no evidence this resulted from the injury or itself caused any disability.

The Board, while finding the employee sustained an injury and gave proper notice thereof, concluded there was no substantial evidence the accident caused his disability. The trial court took the view that since there was ample lay evidence that the employee was seriously disabled, the case should be remanded to the Board with directions to appoint three disinterested physicians to determine whether or not he had sustained such injuries by reason of the accident as would entitle him to compensation.

The employer has raised the question of proper notice of the injury. It is not necessary to consider this question and we can assume notice. Nor is it necessary to consider the employer’s contention that the circuit court had no power to direct the nature of the proceedings in a new hearing before the Board.

The basic question in the case is whether the evidence was so clear-cut and convincing on behalf of the employee that the Board could not justifiably find against him. Porter v. Goad, Ky., 404 S.W.2d 795. There is no doubt the evidence amply proved disability. However, the only medical evidence tended to prove the disability resulted from causes other than the accident. The burden was on the employee to prove his right to compensation. The Board found that he had not sustained this burden. Considering all the evidence most favorable to the employee, it was not sufficient to establish clearly and convincingly that there was a causal relationship between the injury and the disability. For this reason the finding of the Board must be upheld.

The judgment is reversed for consistent proceedings.

All concur.


author: EDWARD P. HILL, Judge.

text:
    Roland Franz Ludwig WEIGAND, Petitioner, v. Honorable Frank A. ROPKE, Judge Jefferson Circuit Court, Criminal Branch, First Division, Respondent.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.
    Roland Franz Ludwig Weigand, pro se.
    Edwin A. Schroering, Jr., Commonwealth’s Atty., Carl C. Ousley, Jr., First Asst. Commonwealth’s Atty., Louisville, for respondent.
   EDWARD P. HILL, Judge.

On August 4, 1967, petitioner filed in the Jefferson Circuit Court a motion to vacate a judgment of conviction in a criminal case, under which he was sentenced to four years in state prison on a charge of uttering worthless checks.

Respondent promptly entered an order assigning the motion for trial on September 22, 1967.

Petitioner filed in this court on August 14, 1967, his petition for a writ of mandamus, contending that respondent had no right or discretion under RCr 11.42 to enlarge the time for filing answer more than twenty days. RCr 1.10 provides that civil rules of procedure as to time shall apply to criminal rules.

Under CR 6.02 the court may grant enlargement or extension of time in which an act is required by law to be done except in certain enumerated instances set out in said section of the civil rules. The time required for filing of answer under RCr 11.42 is not among those enumerated instances. Consequently, it is concluded that respondent was authorized within his sound discretion to enlarge the time for filing of answer under RCr 11.42.

The congested condition of the docket, the work load of the commonwealth’s attorney, and the additional circumstances in regard to vacation time during the period following the filing of motion to vacate are deemed sufficient justification for the granting of the extension.

The writ of mandamus is denied, and the petition therefor is dismissed.

All concur.


author: DAVIS, Commissioner.

text:
    Gary CALHOUN, Petitioner, v. Honorable Richard H. PEEK, Judge Calloway Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.
    Ben B. Wright, Hopkinsville, for petitioner.
    Hughes & Gregory, Murray, for respondent.
   DAVIS, Commissioner.

Gary Calhoun invokes the original jurisdiction of this court pursuant to Kentucky Constitution, Section 110, seeking an order prohibiting the Judge of the Calloway Circuit Court from proceeding with the trial of a divorce action instituted in that court against Gary Calhoun by June Calhoun, his wife.

Petitioner asserts that Calloway County is not the county where his wife “usually resides,” and that Trigg County is the place where she usually resides and is, therefore, the proper county in which this divorce action must be brought. KRS 452.470.

After a hearing on petitioner's motion to dismiss the divorce action, the respondent judge found that venue lies in Calloway County and denied petitioner’s motion to dismiss the action. In the order denying the motion to dismiss for lack of venue, the respondent judge used the following language, upon which the petitioner relies heavily in this proceeding:

“It appearing to the court that the plaintiff June Calhoun has removed herself from Trigg County, Kentucky with the intention of becoming a resident of Callo-way County, Kentucky, and that the latter named county was her usual place of residence at the time of the bringing of the action herein, therefore
“IT IS CONSIDERED, ORDER (sic) AND ADJUDGED that the defendant’s motion to dismiss for lack of venue in the Calloway Circuit Court be and the same is hereby overruled; provided however, in overruling said motion the court expressly states that this order will show that the court takes notice that if step five in the Sebastian case (Sebastian vs. Turner 320 S.W. (2) 794 (1959) ) means totally and completely abandoning the county literally that the order herein should be set aside * * * ; said step five in the Sebastion vs. Turner case, wherein the following language is used:
‘The evidence must show that she has actually and completely abandoned her former residence.’
“This court being of the opinion that if the Court of Appeals meant what they apparently said, in that case, viz: that total and complete abandonment of former residence in which they live, then it is the opinion of the court that said plaintiff has not done that.”

The record reflects that Gary and June Calhoun were married in 1956 and have been residents of Trigg County since the time of their marriage; they have two sons aged, respectively, ten and eight, when this action was filed. The Calhouns operate two retail grocery stores in Cadiz and own the real estate on which one of the stores is located. In February, 1967, the Calhouns separated. Mrs. Calhoun left the Cadiz home and took the children with her to Wichita, Kansas, for a week and then returned to Cadiz to the home of her mother in that community, where she stayed approximately ten days. Mrs. Calhoun next ⅝ rented and moved, with her children, to a furnished house on Line Street in Cadiz about the first of March, 1967. The children continued to attend the public school in Cadiz.

About April 1, 1967, Mrs. Calhoun went to Murray in Calloway County with her children to an apartment which she rented from her father who lives in Murray. About a week after she had gone to Murray, Mrs. Calhoun filed the present suit. It was shown the Mrs. Calhoun continued to pay rent on the Line Street property in Cadiz and that on some occasions she and the children spent the night there after she had rented quarters in Murray. It is to be noted that Mrs. Calhoun moved from her father’s property in Murray to other property on Berry Street in Murray which she now contends to be her place of residence. Mrs. Calhoun testified that she had moved to Murray about the first of April with the unqualified intention of making Murray her place of residence. She explained that she retained the Line Street property in Cadiz because she was not certain that she could obtain suitable facilities in Murray and because the two children desired to complete the nearly finished school term in the Cadiz school. She further explained that it was necessary for her to return to Cadiz daily in order to perform her duties incident to managing one of the two grocery stores owned by her and her husband. Mrs. Calhoun related that she used the Line Street property primarily as a place to rest during the day and as a sort of base in Cadiz for her and the children, but not as a usual place of residence. She admitted that she would spend the night in the Line Street property on some occasions, but not regularly-

Our review of the decisions of this court interpreting KRS 452.470 leads us to the conclusion that the respondent correctly adjudged that Mrs. Calhoun had bona fide residence in Calloway County based on the evidence adduced at the hearing on the motion to dismiss. As observed, the respondent judge expressed doubt that Mrs. Calhoun had “actually and completely abandoned her former residence” as mentioned in Sebastian v. Turner, Ky., 320 S.W.2d 794, 795.

It is our view that we deal here with a question of semantics. The actual and complete abandonment referred to in the cited case is not to be construed as requiring that the wife shall never set foot in the county of her former habitat. The circumstances of the case at bar reflect that the wife did actually and completely abandon Trigg County within the meaning and purview of the statute and the decisions construing it. The facts that she returned to Cadiz to operate the grocery store and permitted the children to complete the brief remainder of the school term are not sufficient to negative actual and complete abandonment of her “former residence.” Nor did her temporary retention of the Line Street house for the limited purposes mentioned militate against her expressed and evinced purpose to make her residence in Calloway County.

No useful purpose would be served in seeking to analyze and reconcile the several cases which have dealt with KRS 452.470, as each of them must turn upon the peculiar fact situation involved. In addition to Sebastian v. Turner, Ky., 320 S.W.2d 794, and the authorities therein discussed, reference is had to Whitaker v. Bradley, Ky., 349 S.W.2d 831, and other cases collated in 7A Kentucky Digest, Divorce

The petitioner has urged that the order of prohibition should be granted herein as if by default because of the form of the response. The response was signed as being submitted by counsel for Mrs. Calhoun rather than as counsel for the respondent judge. We do not regard this irregularity as fatal. It suffices to say that we have considered the response along with the entire record and conclude that the decision of the respondent is supported by substantial evidence and is not clearly erroneous.

The order of prohibition is denied.

All concur.