author: CULLEN, Commissioner.

text:
    KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION OF the COMMONWEALTH OF KENTUCKY, Appellant, v. LOUISVILLE BUILDERS SUPPLY COMPANY, A Corporation, Appellee. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION OF the COMMONWEALTH OF KENTUCKY, Appellant, v. READY-MIX CONCRETE COMPANY, Appellee. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION OF the COMMONWEALTH OF KENTUCKY, Appellant, v. R. W. GREENE, Jr., et al., d/b/a Concrete Supply Company, Appellees. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION OF the COMMONWEALTH OF KENTUCKY, Appellant, v. AMERICAN BUILDERS SUPPLY COMPANY, Appellee. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION OF the COMMONWEALTH OF KENTUCKY, Appellant, v. COLONIAL SUPPLY COMPANY, Inc., Appellee. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION OF the COMMONWEALTH OF KENTUCKY, Appellant, v. WORRALL BROTHERS, INC., Appellee. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION OF the COMMONWEALTH OF KENTUCKY, Appellant, v. CONSUMER SUPPLY COMPANY, Inc., Appellee. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION OF the COMMONWEALTH OF KENTUCKY, Appellant, v. NUGENT SAND COMPANY, Inc., Appellee. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION OF the COMMONWEALTH OF KENTUCKY, Appellant, v. VALLEY CONCRETE COMPANY, Inc., Appellee. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION OF the COMMONWEALTH OF KENTUCKY, Appellant, v. OHIO RIVER SAND COMPANY, Appellee. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION OF the COMMONWEALTH OF KENTUCKY, Appellant, v. E. T. SLIDER COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.

      Paul E. Tierney, Frankfort, Ralph H. Logan, Hardy & Logan, Louisville, for appellant.
    W. Scott Miller, Louisville, for American Builders Supply Co.
    William F. Trusty, Jr., Louisville, for Nugent Sand Co., Inc. and Consumer Supply Co.
    Thomas C. Carroll, Louisville, for Louisville Builders Supply Co. and Worrall Brothers, Inc.
    Samuel Wells, Louisville, for Ready-Mix Concrete Co.
    Thomas S. Dawson, Louisville, for Concrete Supply Co. and Valley Concrete Co., Inc.
    C. H. Block and Samuel Manly, Louisville, for E. T. Slider Co.
    Albert Reutlinger, Louisville, for Ohio River Sand Co.
    Ernest Woodward, II, Louisville, for Colonial Supply Co.,
   CULLEN, Commissioner.

Employes of 11 different builders’ supply companies in Louisville applied for unemployment compensation benefits for a five-week period in the summer of 1958 during which they claimed to have been unemployed as a result of a lockout by their employers. Their applications were contested by the employers on the ground that the loss of employment was caused by a strike. The Kentucky Unemployment Insurance Commission found that there had been a lockout and entered orders awarding compensation benefits. On appeals to the Franklin Circuit Court judgments were entered setting aside the orders of the commission on the ground that the cause of the unemployment was a strike. From these judgments (11 in number — one for each employer) the commission has appealed to this Court. (In seven of the cases there are motions for appeal.)

The governing statute, KRS 341.360, provides in part that no worker may be paid benefits for any week of unemployment with respect to which a “strike or other bona fide labor dispute which caused him to leave or lose his employment is in active progress in the establishment in which he is or was employed,” but that “a lockout shall not be deemed to be a strike or a bona fide labor dispute and no worker shall be denied * * benefits by reason of a lock-out.”

The particular problem in this case arises out of the fact that the 11 employers (and a twelfth one) were associated together for collective bargaining and contracting purposes. The question is whether the action taken by the employes’ union constituted a strike against all of the employers, or whether there was a strike against only one of the employers followed by a lockout by the others.

Nine of the employers here involved, and another one, the R. B. Tyler Company, had for a number of years been associated together in a formal organization known as the Building Material Dealers and Haulers Association. The association had a labor contract with the union. The other two employers here involved were not members of the association but they had become signatory parties to the association’s contract, so for the purposes of this case they may be treated the same as if they were members of the association.

The contract expired on June 20, 1958. During a period which began prior to that date and extended into July, negotiations for a new contract were carried on between representatives of the association and representatives of the union. Demands were made by the union for an increase in wages and for other advantages. At first the association insisted that the new contract be on the same terms as the old one, but during the course of the negotiations the association offered an increase in wages less than that demanded by the union. The offer was rejected. The employes continued to work under the terms of the old contract while the negotiations were going on, but by a “strike vote” they authorized their union representatives to call a strike against any or all of the members of the association, as the representatives might deem advisable.

On the morning of July 16 the union called a strike against the R. B. Tyler Company. (The employes of that company have not sought unemployment compensation benefits because admittedly they went out on strike.) That afternoon the secretary-treasurer of the union was quoted in the Louisville Times as saying that the Tyler strike was “the start of an industry-wide strike,” and that by the next day six of the major employers would be struck. (That night the secretary-treasurer asked a television station to broadcast an appeal to the workers at all of the plants except that of the Tyler Company to report for work the next morning.)

On the afternoon of July 16 the members of the Association held an emergency meeting, at which they authorized their secretary to send to the union, the next morning, the following telegram:

“The member firms of the Louisville Building Material Dealers and Haulers Association construe the strike called by your union yesterday against the R. B. Tyler Company to be an action against the bargaining rights of the Association and its members. In order to protect the existence of the bargaining powers and privileges of the Association you and your union members who are employed by Association members are hereby notified that effective 7:01 a. m., July 17, 1958, the local business establishments operated by Association members whose employes are not then on strike will be temporarily closed.”

The telegram was sent to the union president at 6:44 a. m. on July 17.

The record indicates that on the morning of July 17 there was confusion on the part of the employes of the association members (other than Tyler) as to their work status. The employes all appeared at the plant locations, but none of them were put to work. At most of the plants they were told not to work. At others they stayed outside the plant and did not attempt to come in, and the employer made no effort to find out whether they intended to work. It is our opinion that the evidence supports the finding of the Unemployment Insurance Commission that the failure of the employes to go to work on that morning was attributable to action of the employers.

The employes remained out of their employment until August 20, at which time a new contract was executed.

The employers maintain that by reason of the fact that they for years had constituted a collective unit in their bargaining and contracting relationships with the union, the strike against the Tyler Company was in reality a strike against all of the employers, and that they had notified the union in their negotiations that they would consider a strike against one company as a strike against all. It is to be noted, however, that in their telegram to the union they did not say that they construed the strike against the Tyler Company to be a strike against all of them, but rather they said they construed it to be “an action against the bargaining rights of the Association and its members” (which of course it was). Also, the telegram stated that the plants of the Association members “whose employes are not then on strike” would be closed on July 17.

The employers rely upon cases from California and Utah to support the proposition that where for a substantial period of time a union has dealt with an association of employers as a bargaining unit, a strike against one of the members of the association constitutes a strike against all so as to bar the employes from unemployment compensation benefits under a statute denying benefits where the work stoppage is caused by a strike. Particular reliance is placed on McKinley v. California Employment Stabilization Commission, Calif., 34 Cal.2d 239, 209 P.2d 602) and Olof Nelson Construction Company v. Industrial Commission, Utah, 121 Utah S25, 243 P.2d 951.

There are several reasons why the California and Utah cases are not of controlling weight. In the first place, in neither of those states does the unemployment compensation statute provide (as does our Kentucky statute) that an employe shall not be denied benefits in case of a lockout. In the second place, in both of the cases relied upon, where there was a strike against one member of the employers’ association and the other members then closed their plants, the court used the term “lockout” to describe the action of the employers who closed their plants. (For example, in the California case, 209 P.2d at page 606, the court said, “here the lockout of the bakers was due to a strike”.) In the third place, the courts of both California and Utah applied a “who started it” theory, under which a lockout following a strike is deemed to have been caused by the strike so that the resulting unemployment falls within the statutory prohibition against payment of benefits where the cessation of work is caused by a strike. This theory was expressly rejected by our Court in Detroit Harvester Co. v. Kentucky Unemployment Insurance Commission, Ky., 343 S.W.2d 365.

The appellant, Kentucky Unemployment Insurance Commission, refers us to Bucko v. J. F. Quest Foundry Co., 229 Minn. 131, 38 N.W.2d 223, which involved a Minnesota statute authorizing unemployment compensation benefits where the unemployment is caused by a lockout. In that case the union called a strike against three members of a 12-member employers’ association, following which the other nine members closed their plants. The court held that the employes of the nine members had been locked out and were entitled to compensation. We concur in the reasoning of the Minnesota court and we reach the conclusion that in the cases before us there was a lockout within the meaning of the statute.

It seems to us that the controlling question under our statute is: What was the immediate cause of the cessation of employment? The record here shows that the employes of the 11 firms in question did not in fact go out on strike, but were excluded from working by their employers. It is true that the lockout grew out of the labor dispute, was initiated by the strike against the Tyler Company, and constituted an effort by the employers to invoke a weapon of their own to combat the potential strike weapon of the union. It is also true that a lockout may be a lawful weapon for the employer to use in a labor dispute. But the trouble is that in the unemployment compensation statute the legislature has chosen to limit the strength and effectiveness of the lockout weapon by permitting the locked out employe to receive unemployment benefits.

The appellee employers argue that under the definition set forth in Barnes v. Hall, 285 Ky. 160, 146 S.W.2d 929, 936, a “lockout” is a cessation of the furnishing of work by the employer in order to get “more desirable terms than then existed,” and that in the instant cases the employers were not seeking more favorable terms than under the previous, expired contract, but in fact were willing to grant some increase in wages. In Detroit Harvester Co. v. Kentucky Unemployment Insurance Commission, Ky., 343 S.W.2d 365, 367, a lockout is somewhat similarly defined as a refusal to furnish work “for the purpose of gaining * * * more favorable terms or concessions.”

The argument overlooks the fact that at the time of the cessation of work in the instant cases the previous contract had expired and there was no contract in existence. So the terms that “then existed” were no terms at all. We think that in such a situation an employer who uses the refusal of work as a bargaining weapon against the demands of the union as to the terms of a new contract may be considered to be seeking more desirable or more favorable terms. The situation in Ward v. Barnes, Ky., 266 S.W.2d 338, is not comparable because there the employer simply laid off some workers because his compliance with the union demands as to work shifts had resulted in a decrease in the amount of work available. And in Barnes v. Hall, 285 Ky. 160, 146 S.W.2d 929, there was no refusal of work by the employers.

Actually, it is questionable whether the definitions of “lockout” set forth in the Barnes v. Hall and in the Detroit Harvester case are entirely adequate, because it would seem that if an employer ceases to furnish work for the purpose only of stopping his employes from asking for terms more favorable to them than those under an existing contract, the same policy of labor relations law is involved as where thv purpose of the employer is to obtain terms more favorable to him. It may be that the test should be, as suggested by some of the language in the Detroit Harvester case, whether the purpose of the employer is to compel the employe “to accept terms or make concessions favorable to the employer,” regardless of whether the terms or concessions are to be considered “more” favorable than presently existing terms.

Some of the appellee employers maintain that their actual purpose in closing their plants was to guard against sabotage by strikers and to protect their equipment from damage that might occur if their employes should go on strike during the course of working hours and abandon the equipment (particularly ready-mix concrete trucks). However, the record does not show that there was any substantial basis for a fear of damage from such sources. Furthermore, in the telegram sent to the union the only stated purpose of the closing of the plants was “to protect the existence of the bargaining powers and privileges of the Association.”

The contention is made that a number of the employes who received “strike benefits” from the union in the amount of $15 per week, during the period the plants were closed, were in effect employed by the union for picketing purposes (the picketing protested the claimed lockout) and therefore they were not “unemployed” within the meaning of the statute. Reference is made to various rulings to the effect that strike benefits may constitute “income” for income tax purposes. It seems clear to us, however, that the fact that strike benefits may constitute “income” does not mean that they constitute wages for employment. The evidence here does not establish that the strike benefits were conditioned upon doing work on the picket lines.

The appellees attempt to draw an' analogy to cases involving vacation pay, but we find no analogy. An employe who receives vacation pay is still in employment and the pay is by reason of the employment, but an employe receiving strike benefits from his union is not in employment and the'benefits are not wages for employment.

A final contention of the appellees is that the employes who walked the picket lines were not “available for work” within the requirements of the unemployment compensation law. In support of the contention the appellees cite Tucker v. American Smelting & Refining Co., 189 Md. 250, 55 A.2d 692. It is true that in the Maryland case the court did use some language to the effect that the employes on the picket lines were not available for work, but the actual basis given for denying compensation benefits was that the employes were actively participating in a labor dispute, which constituted a bar to benefits under the statute.

There is nothing in the record in the instant cases to show that the employes on the picket lines had not registered for work and were not making reasonable efforts to obtain suitable work, in accordance with KRS 341.350. In this respect it is significant that KRS 341.100(2) (d) states that work shall not be deemed “suitable” if the acceptance of such work would be prejudicial to the continuance of an established employer-employe relationship to which the worker is a party. The statutes clearly do not contemplate that a worker who is tern-' porarily out of employment by reason of a labor dispute must seek some other permanent employment.

In the cases where there are motions for appeal the motions are sustained, and in all of the cases the judgments are reversed with directions to enter judgments affirming the orders of the Unemployment Insurance Commission.


source: Caselaw Access Project

author: MILLIKEN, Judge.

license: Public Domain

text:
    Arnold PARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.

      William R. Forester, Barbourville, for appellant.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

Arnold Partin was convicted of willfully and maliciously shooting and wounding his brother-in-law, Wesley Maiden, Jr., October 11,1960, and was sentenced to five years’ confinement in the penitentiary. Bad feeling existed between the men, apparently caused by Partin’s failure to support his children after his divorce from Maiden’s sister. The evidence conflicted, Partin claiming that Maiden fired first and wounded him while Maiden and his wife testified to the contrary — that Partin drove up and shot Maiden who did not return the fire. The trial court instructed the jury on malicious shooting and wounding, shooting in sudden affray, self-defense, and the usual reasonable doubt instruction, but failed to instruct the jury to find Partin guilty of the lesser offense of shooting and wounding in sudden affray if it had reasonable doubt about the degree of the offense he had committed. The omission of this instruction is the basis of this appeal.

The Commonwealth contends the evidence does not justify an instruction on sudden affray, and, hence, no error was committed when the instruction to find on the lesser offense was omitted. Although bad blood existed — enough to imply malice, nevertheless, Partin’s testimony was sufficient to justify an instruction on sudden affray. In any event, such an instruction was given which necessarily required the further instruction to find on the lesser offense of shooting and wounding in sudden affray if the jury found Partin guilty of an offense but had reasonable doubt whether malice caused him to shoot Maiden. Cr.Code, Section 239; Commonwealth v. Bullock, 24 Ky.Law Rep. 78, 67 S.W. 992; Breeden v. Commonwealth, 151 Ky. 217, 151 S.W. 407; Barnes v. Commonwealth, 32 Ky.Law Rep. 1152, 10 S.W. 806. We agree with Partin’s ruefuLcomment that “trouble is never worth anything” and that the court should have given the omitted instruction.

The judgment is reversed.


author: PALMORE, Judge.

text:
    LINCOLN BANK & TRUST COMPANY, Administrator, etc., Appellant, v. Ethel Wilder BAILEY et al., Appellees. Ethel Wilder BAILEY et al., Appellants, v. LINCOLN BANK & TRUST COMPANY, etc., Citizens Fidelity Bank & Trust Company, etc., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.

      Leo T. Wolford, Eugene B. Cochran, O. Grant Bruton, Middleton, Seelbach, Wol-ford, Willis & Cochran, Louisville, for Lincoln Bank & Trust Co.
    James W. Stites, James W. Stites, Jr., Louisville, for Citizens Fidelity Bank & Trust Co.
    Squire R. Ogden, Richard F. Newell, John T. Ballantine, Ogden, Brown, Robertson & Marshall, Louisville, for Ethel Wilder Bailey.
   PALMORE, Judge.

James B. Wilder died testate in 1888, survived by two sets of grandchildren, being the five children of his deceased son, Graham Wilder, and the four children of his deceased daughter, Emma Wilder Hast. This is an action to construe paragraphs 6 and 7 of his holographic will, by which the residue of a substantial estate was left in trust for the benefit of the nine grandchildren and their descendants until 21 years after the death of the last survivor among the grandchildren, at which time the corpus is to be distributed.

All of the grandchildren are now deceased except for Ethel Wilder Bailey, one of the five children of Graham Wilder. Her deceased sister and brothers are survived by a number of descendants. But all four of the Hasts died without issue, and what becomes of the ⅜ interest of which they were the beneficiaries is the issue in this case.

Louis Hast died intestate and unmarried in 1905, survived by his three sisters, Emma, Etta and Lisette. Emma died in 1942, leaving her estate by will to Etta and Lisette. Etta died in 1944, leaving her estate by will to Lisette. Lisette died in 1958, and her will left in trust for certain charitable purposes whatever interest in the Wilder estate was subject to testamentary disposition by her. Her personal representative takes the position that she was able to will a % interest in the income and corpus. The chancellor rejected this theory and held that upon extinction of the Hast line the interest of which its members theretofore had been beneficiaries simply became a part of and thereby enlarged the interests of the Wilder line. We agree with that conclusion.

Here, with emphasis added, is the pertinent language of the will:

“6th I give devise and bequeath * * * in trust for my grand children (My children both being dead) To wit, Emma Hast Lizette Hast, Etta Hast and Louis Anderson Hast, and Nellie Wilder, James B. Wilder Jr, Oscar Wilder, Ethel Wilder and Edward Wilder Jr, all the residue of my Estate, real personal and mixed, and direct that it shall be held together as a whole, except such as I may hereafter direct or authorise to be disposed of, until twenty one years after the death of my said grand children, who may be alive at my death and the last survivor of them, when it shall be divided among the descendants of said grand children or it may then be sold and the proceeds divided as aforesaid, the shares of any one or more of them, having died without issue to go to his or her brothers and sisters or descendants, or if any be dead leaving descendants, such descendants to take the share of such grand child * *
“7th * * * the whole of said net profit of said Estate as aforesaid shall after paying Taxes assessments insurance &c and my said daughter in law her said annuity, be equally divided among all my grand children, The shares of those under age going into the hands of their respective guardians or trustees and the shares of such as may be then dead going to their descendants if any, or if any be dead at the date of such divission of income without leaving lawful issue, the same shall go to the surviving brothers and the sisters, which disposition of said net profits shall continue untill the time fixed for final distribution herein. No beneficiary under this Will, shall sell Mortgage or pledge or by any means anticipate his or her share of said income or of the principal of said estate, until after the general divission thereof, Nor shall the same be subjected by legal process to the payment of his or her debts and if either shall sell mortgage, pledge or anticipate his or her income or principal or attempt to do so, or if any court of final resort shall adjudge either such income or principal of said Estate liable for the payment of his or her debts, prior to said divission, the interest of such ones shall become forfeited and cease and the share of such thenceforth shall pass and belong to the legatees under this Will who shall not have incured such forfeiture and the parts there of going to the Females shall be for their sole and separate use and free from the debts and control of any of their husbands * *

All the parties are agreed on the principle that the will must be construed according to the testator’s intent, gathered from what he did say in the instrument as distinguished from what the court thinks he would have said if he had considered the problem now before it. And though they are not further utilized in this opinion, we give full recognition as well to the familiar rules of construction favoring testacy over intestacy, absolute over qualified estates, and early vesting as against contingent rights. All of these, however, apply only where there is real doubt as to what the testator intended by what he said. They cannot be hoist by their own petard to achieve a result repugnant to the testator’s legitimate objectives as the court is able to recognize those objectives from a reading of the instrument itself.

The chancellor has given the parties and this court the benefit of an extremely able written opinion in which he concluded that no one has a vested interest in the corpus until the end of 21 years after the death of the last grandchild. In the meantime no vested interest could amount to more than a life estate. He held “that by necessary implication, there is disclosed from the whole content of testator’s will an .intention that, should one line of his grandchildren die out, the corpus of the trust he created should devolve * * * to the other line of his grandchildren,” and that under the doctrine of implied cross-remainders the income accruing during the life of the trust also goes to the other line, the descendants of Graham Wilder. We reach the same result, but on the express wording of the will without resort to implications.

Paragraph 6 of the will directs an ultimate distribution of the whole corpus “among the descendants of said grandchildren.” This is an express statement of the testator’s primary purpose. His further direction that if any should die without issue his share should go to his brothers or sisters or their descendants states a subsidiary purpose, a refinement, which does not oust or supplant the primary command but, on the contrary, complements and is consistent with it. It is a specific implementation of the general but nevertheless primary direction. As to the Hasts, the subsidiary purpose ended upon their eventual demise without progeny, but all of the conditions necessary to consummation of the primary purpose still subsist, and the express provision for an ultimate division among the descendants of the grandchildren remains applicable.

With respect to the income during the life of the trust, which is governed by paragraph 7 of the will, the testator unequivocally ordered a division “among all my grandchildren,” or their descendants, after which he proceeded to direct the manner in which this purpose should be carried out in event of a beneficiary’s death without issue. And again we must observe that this specific direction does not evince any disposition on the part of the testator to override or render inoperative his main purpose, which was to provide for his grandchildren and their descendants. Though circumstances made the specific direction inapplicable to the death of Lisette Hast, the general direction continued to apply, and it controls. (It may occur to the reader at this point that there is an old bromide in the law to the effect that the specific limits the general, and that perhaps we have applied it backwards. That rule, however, if appropriate in a will construction case, would be subordinate to the principle that the intention of the testator is to be gathered from the will as a whole.)

The administrator d. b. n. with the will annexed of the Lisette Hast estate insists that the equitable title taken by each of the nine grandchildren was a defeasible fee, in which the condition of divestment was his or her death (a) with issue or (b) without issue but with surviving brothers or sisters. Hence Lisette’s death without issue and without surviving brothers or sisters perfected her interest as an indefeasible fee, which she had the right to transmit by will. It is further argued that according to the “accrued share” rule, Restatement of the Law of Property, Future Interests, § 271, the shares of Louis, Emma and Etta Hast were free of the Wilder will after passing from the original takers. (For purposes of this opinion we accept the proposition that equitable estates are determined and governed by the same rules as are legal estates. See Simes and Smith, Future Interests, § 166, p. 207.)

It seems to us that this would be a most awkward and unnatural construction of the will. If the testator had a design that is utterly unmistakable, it was to tie up the bulk of his estate and secure it to the use of his lineal descendants as long as the law would allow. This was the framework within which the specific or subsidiary provisions, as we have termed them, were set, and from which they cannot fairly be isolated and considered alone. Regard, for example, the charge in paragraph 7 that no beneficiary “by any means anticipate his or her share of said income or of the principal of said estate, until after the general divission [sic] thereof. * * * ” That the testator, in designating the cestuis, did not use “for life” or similar words, and spoke of “the share of said grandchild” (par. 6) and “his or her share” (par. 7) with reference to a future time when the share must necessarily have passed to someone else, does not obscure his plain intention that until the final day of reckoning, 21 years after the death of Ethel Wilder Bailey, none of the beneficiaries shall have an interest beyond his or her lifetime. All of the ultimate remainder interests are contingent. Cf. 33 Am.Jur. 535 (Life Estates, Remainders, and Reversions, § 75); Curtis v. Citizens Bank & Trust Co. of Lexington, Ky., Ky.1958, 318 S.W.2d 33. In our opinion that is precisely what the testator meant by what he said, hence we find ourselves entirely in accord with the chancellor’s con-‘ elusion that “to hold otherwise would be to. frustrate the intention of the testator.”

There are a number of cases in which this court has held that if property is devised in remainder with a provision that if a re-mainderman should die without issue his portion shall go to others, the remainder-man takes a vested fee subject to defeasance in event of his death without issue before expiration of the particular estate or estates. See, for example, Roach v. Dance, 1904, 26 Ky.Law Rep. 157, 80 S.W. 1097; Cooper’s Adm’r v. Clarke, 1921, 192 Ky. 404, 240 S.W. 361; Edmunds v. Bronaugh, 1925, 208 Ky. 226, 270 S.W. 828; and Carroll v. Carroll’s Ex’r, 1933, 248 Ky. 386, 58 S.W.2d 670. Each of those cases, however, involved the interest of a re-mainderman or, at least, a devisee who was designated as the ultimate taker following a temporary postponement of possession. The question was whether the remainder interest was vested or contingent. In the case now before us it was not intended, and was in fact impossible from the beginning, that any of the grandchildren ever be an ultimate taker. On the contrary, they were the first takers, the holders of intervening particular estates, and not remaindermen. Since they could never have any interest in the ultimate remainder, they did not have a fee of any kind. Their interests were vested, of course, but they were life interests only.

Every will case, as every divorce case, stands peculiarly on its own facts. We do not believe that an exhaustive analysis by further comparison of this case with other cases cited to us in the briefs would serve a useful purpose. What this will means is just a matter of judgment, and we think it is sufficiently clear on its face to negate the relevance of any technical rule of construction except the pole star rule. Cf. Carroll v. Carroll’s Ex’r, 1933, 248 Ky. 386, 58 S.W.2d 670, 672; Skiles v. Bowling Green Trust Co., 1943, 294 Ky. 211, 171 S.W. 235, 239.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    MARY HELEN COAL CORPORATION, Appellant, v. R. L. CHITWOOD et al., Appellees.
    Court of Appeals of Kentucky.
    June 16, 1961.
    Rehearing Denied Dec. 15, 1961.
    James Sampson, William A. Rice, Sampson & Rice, Harlan, for appellant.

      H'erschel M. Sutton, Lohren F. Martin, Jr., Corbin, G. E. Reams, Harlan, for ap-pellees.
   WADDILL, Commissioner.

Mary Helen Coal Corporation is appealing from a judgment affirming an award of the Workmen’s Compensation Board allowing appellee, R. L. Chitwood, benefits for total disability as a result of silicosis. The only question raised on the appeal is whether appellee gave appellant timely notice of his disability under the 1956 Amendment to KRS 342.316(2), which requires:

“ * * * that notice of disability shall he given to the employer as soon as practicable after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease, or a diagnosis of such disease is first communicated to him, whichever shall first occur.”

Appellee had worked in appellant’s mine since 1926, Beginning in 1955 appellee experienced some pains in his chest and shortness of breath. However, after being advised by two physicians that they had only found traces of coal dust in his lungs, he continued to work for appellant until February 3, 1959. A lung specialist who examined appellee on March 17, 1959, found that he had silicosis and was unable to perform any labor in a mine. Appellee gave appellant notice of his disability on April 7, 1959. Although appellant concedes that it received this notice, it nevertheless contends that such notice does not satisfy the requirements of KRS 342.316(2) because appellee failed to notify appellant of his condition after he first experienced pain and difficulty in breathing in 1955.

In view of the fact that the notice requirement of KRS 342.316(2) is “notice of disability,” it necessarily follows that no notice need be given until the employee has a disability from an occupational disease. Consequently, this subsection in substance means that before such notice is required to be given by the employee to his employer the following conditions must concur: (1) The employee has a disability from an occupational disease which impairs his capacity to perform his work, and (2) the employee knows or should know by the exercise of reasonable care and diligence that he is suffering from the disease.

The contention of appellant that ap-pellee’s failure to give it timely notice after he had first experienced some discomfort in breathing is unavailing because there was insufficient proof that appellee had sustained a disability from an occupational disease which impaired his capacity to perform his work prior to February 3, 1959. Hence, we conclude that the Workmen’s Compensation Board was amply justified in determining that the notice which appellant received from appellee on April 7, 1959, satisfied the requirements of KRS 342.316(2).

Judgment affirmed.


author: WILLIAMS, Judge.

text:
    PEABODY COAL COMPANY, Appellant, v. Melvin GUTHRIE et al., Appellees.
    Court of Appeals of Kentucky.
    June 16, 1961.
    Rehearing Denied Dec. 15, 1961.

      James Sampson, William A. Rice, Sampson & Rice, Harlan, for appellant.
    J. Leonard Davis, Harlan, for appellees.
   WILLIAMS, Judge.

The appellee, Melvin Guthrie, worked for appellant Peabody Coal Company from 1933 until 1958. From 1944 to 1958 appel-lee operated a jackhammer in appellant’s mine. The operation of the jackhammer in dry sandstone rock produced a congested dust condition. In 1956 appellee discovered that he was suffering from shortness of breath and from a burning sensation in his lungs. His condition became progressively worse, but he continued regular work until the mine closed in March 1958. About the first of August, 1958, appellee visited a doctor who sent him to the Harlan Memorial hospital for an examination. He was given the doctor’s report on the 16th day of October, 1958, and he notified appellant of his condition about the 20th of November, 1958. Appellee was found to be suffering from Grade 2 Silicosis. Application for workmen’s compensation was made before the Kentucky Workmen’s Compensation Board and an order 'was entered approving the Referee’s recommendation which allowed appellee total disability payments of $27 per week not to exceed 425 weeks and the maximum sum of $11,500. Following entry of that order and before the 14-day period that KRS 342.280 provides for full Board review had passed, motion was made by appellee to correct a clerical error. The full Board sustained appellee’s motion, set aside the Referee’s award and entered an award allowing ap-pellee $32 per week not to exceed 425 weeks, and not to exceed the maximum sum of $13,600. Appeal was taken from the final award of the Workmen’s Compensation Board to the Harlan Circuit Court, and from a judgment affirming appeal is made to this Court.

The appellant contends that the appellee did not give due and timely notice under KRS 342.316(2), which requires:

“ * * * that notice 'of disability shall be given to the employer as sooh as practicable after the employee 'first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease, or a diagnosis of such disease is first communicated to him, whichever shall first occur.”

In Mary Helen Coal Corporation v. Chitwood et al., Ky., 351 S.W.2d 167, we said that the notice requirement of KRS 342.316(2) is notice of disability, and it necessarily follows that no notice need be given under that subsection of the statute until the employee has a disability from an occupational disease. Before notice must be given the following conditions must concur: (1) The employee has a disability from an occupational disease which impairs his capacity to perform his work; and (2) the employee ' knows or should know by the exercise of reasonable care and diligence that he is suffering from the disease. There is no proof that appellee had a disability from an occupational disease prior to October 1958. The Workmen’s Compensation Board was justified in determining that the notice which appellant received from appellee in November 1958 satisfied the requirements of KRS 342.316(2).

The Referee obviously assumed the award should be made under the law as it existed prior to August 1, 1956, in view of the fact that the award was written in words and figures of the Act as it existed prior to that date. While the appellee testified that he began having shortness of breath and a burning sensation sometime in 1956, the Referee found that he had become permanently and totally disabled on. October 16, 1958, as a result of silicosis. This being true, the award should have been made in accordance with KRS 342.095 as amended, effective August 1, 1956. Appellant contends the Board had no authority to set aside the first award and enter a new one allowing appellee compensation provided under the law in effect at the time of disability. The case of Black Mountain Corporation v. Gilbert, 296 Ky. 514, 177 S.W.2d 894, is in point. There the Board allowed the plaintiff compensation at the rate of $15 a week for a period not in excess of eight years. Plaintiff filed a motion to correct a clerical error on the theory that the law at that time allowed total disability to be paid for ten years. The defendant argued-that the Board did not have authority to enter an order extending the compensable period from eight years, to ten years because its award was final. This Court held that the entry of the order changing the period from eight years to ten years did not constitute a second review of the case but merely substituted language in accordance with the law as it then existed. The same reasoning is apropos to this case. The appellee is entitled to compensation as provided by law in effect at the time his disability occurred, and the Board did no more than correct the error of the Referee, who failed to specify the correct figures.

The judgment is affirmed.


text:
    PEABODY COAL COMPANY, Appellant, v. William R. HARP et al., Appellees.
    Court of Appeals of Kentucky.
    June 16, 1961.
    Rehearing Denied Dec. 15, 1961.

      James Sampson, William A. Rice, Sampson & Rice, Harlan, for appellant.
    J. Leonard Davis, Harlan, for appellee.
   WADDILL, Commissioner.

The appeal is from a judgment confirming an award of the Workmen’s Compensation Board that granted William R. Harp benefits for total disability resulting from silicosis which he contracted while working in the mine of the Peabody Coal Company. The company seeks reversal of the judgment on the ground that Harp failed to give it timely notice of his disability as required by KRS 342.316(2).

Harp had been employed by the company since 1936. During the last ten years of his employment he worked near a coal-cutting machine and was exposed to a high concentration of rock and coal dust. Between 1956 and 1958 he complained on several occasions to his foreman that the dust was affecting his ability to breathe but he continued to work in the miné until March 16, 1958. When he was examined by a physician on July 7, 1958, and after' X-rays were taken of his lungs, he was told that he had silicosis. The company received notice of this diagnosis in December, 1958.

As concerns the giving of notice, where the disability is from an occupational disease, KRS 342.316(2) provides as follows :

“The procedure with respect to the giving of notice of disability or death and as to the filing of claims and determination thereof in occupational disease cases and the compensation and medical benefits payable for disability or death due to such disease shall be the same as in cases o'f' accidental injury or death under the general provisions of this chapter except that notice of disability shall be given to the employer as soon as practicable after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease, or a diagnosis of such disease is first communicated to him, whichever shall first occur.”

In Mary Helen Coal Corp. v. Chitwood, Ky., 351 S.W.2d 167, we held that notice under this subsection is not required to be given until these conditions concur: (1) The employee has a disability from an occupational disease which impairs his capacity to perform his work, and (2) the employee knows or should know by the exercise of reasonable care and diligence that he is suffering from the disease.

Since these conditions were satisfied on July 7, 1958, when Harp knew that he was disabled from silicosis, the company contends that Harp’s delay in giving it notice until December, 1958, was fatal to his claim.

An examination of some of our opinions pertaining to the notice provision of KRS 342.316(2) reveals that the requirement to give notice as soon as practicable means within a reasonable time under the circumstances of each particular case. Osborne Mining Co. v. Davidson, Ky., 339 S.W.2d 626; Osborne Mining Co. v. Barrera, Ky., 334 S.W.2d 917; Inland Steel Co. v. Byrd, Ky., 316 S.W.2d 215; Lewallen v. Peabody Coal Co., Ky., 306 S.W.2d 262; U. S. Steel Corp. v. Birchfield, Ky., 296 S.W.2d 726; Deal v. U. S. Steel Corp., Ky., 296 S.W.2d 724. More specifically we have held that mere time lapse is not always the determinative factor because KRS 342.200 excuses the failure to give notice as soon as practicable if the Workmen’s Compensation Board has determined that the delay was occasioned by reasonable cause. Harlan Fuel Co. v. Burkhart, Ky., 296 S.W.2d 722. Such a determination is reflected by the findings of the board in the instant case and is supported by the record.

In the light of these considerations we conclude that the board was justified in finding that Harp gave the company timely notice of his disability within the meaning of the pertinent provisions of the Workmen’s Compensation Act.

Judgment affirmed.


text:
    PEABODY COAL COMPANY, Appellant, v. Marshall POWELL et al., Appellees.
    Court of Appeals of Kentucky.
    June 16, 1961.
    Rehearing Denied Dec. 15, 1961.
    James Sampson, William A. Rice, Sampson & Rice, Harlan, for appellant.
    J. Leonard Davis, Harlan, for appellees.
   WILLIAMS, Judge.

This is an appeal from a judgment of the Harlan Circuit Court affirming an award of the Kentucky Workmen’s Compensation Board allowing permanent and total disability benefits to appellee Marshall Powell as a result of silicosis. The appellee had worked for appellant Peabody Coal Company for many years until February 1958. Prior to that date appellee had complained of chest pains and shortness of breath. In October 1957 his trouble had been diagnosed as pulmonary fibrosis with pulmonary emphysema. The doctor who made that diagnosis did not advise appellee what was wrong with him at that time. On February 5, 1959, the appellee was examined by Dr. Boyce E. Jones, who diagnosed silicosis. About two weeks later, on February 20, he filed his application before the Workmen’s Compensation Board. The Board held as a fact that the appellee learned for the first time that he had silicosis when examined by Dr. Jones on February 5, 1959.

The sole issue in the case is notice. We have on this date decided in Mary Helen Coal Corporation v. Chitwood et al., Ky., 351 S.W.2d 167, that before notice is required to be given by the employee the following conditions must concur: (1) The employee has a disability from an occupational disease which impairs his capacity to perform his work; and (2) the employee knows or should know by the exercise of reasonable care and diligence that he is suffering from the disease.

The employee first learned he had silicosis on February 5, 1959, and filed his claim with- the Workmen’s Compensation Board approximately two weeks later. The filing of his claim within that time was sufficient notice to appellant.

Judgment affirmed.


author: MONTGOMERY, Judge.

text:
    Earl LYON et al., Appellants, v. Tennessee PRATER, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.

      C. Guthrie Yager, Harry F. Riddle, Ash-land, David B. Whites, Kit C. Elswick, Louisa, for Earl Lyon.
    Eldred E. Adams, Louisa, for Cratis Collier.
    Howard H. Moore, Louisa, William B. Hazelrigg, Paintsville, for appellees.
   MONTGOMERY, Judge.

Earl Lyon and Cratis Collier appeal from a joint judgment in the total sum of $10,246.25. The estate of Flora Jean Prater recovered $8,000. Tennessee Prater, Opal Prater, and Bobby Jean Prater, individually, recovered $1,043.25, $1,098, and $105, respectively. The damages awarded were compensation for injuries sustained in the collision between Lyon’s and Collier’s automobiles.

Both Lyon and Collier urge that their respective motions for a directed verdict made at the close of plaintiffs’ testimony should have been sustained and that the damages awarded Tennessee Prater and Opal Prater are excessive. In addition, Lyon contends that the verdict is flagrantly against the evidence and that the closing argument of plaintiffs’ counsel was inflammatory and prejudicial.

There is no merit in Lyon’s last contention, since there was no objection made during the course of the argument. In the absence of a timely objection, this question cannot be considered on appeal. Mahan v. Able, Ky., 251 S.W.2d 994; Louisville & N. R. Co. v. Howe, Ky., 255 S.W.2d 979; Triplett v. Napier, Ky., 286 S.W.2d 87.

The collision occurred on a two-lane highway near Blaine on July 22, 1956, about 9:30 p.m. The front seat of the Lyon car, -a 1954 Chevrolet, was occupied by Lyon, the driver; Patsy Sue, his daughter; and Mary, his wife. The four Praters occupied the rear seat. Cratis Collier was driving his 1950 Ford, with Edgel Collier on the front seat and Elmer Collier and Billy Barker on the rear seat.

The cars collided as the Collier car was descending and the Lyon car was ascending Blaine Hill. The distance by highway from top to bottom of the hill is about one mile. There are six or seven curves in this section ■of the highway. Each car emerged from a curve just prior to the collision and overturned on its right side of the highway.

The appellants questioned the sufficiency of the evidence at each stage of its introduction. Each now insists that the plaintiffs’ evidence is insufficient to charge him with liability.

Without giving the details, the testimony introduced in behalf of the plaintiffs, appellees, was to the effect that the Lyon car was “straddling” or over the center line of the highway and that the Collier car came down the hill by the light of a single headlight, with tires screaming, but on its proper side of the highway. The position of the Lyon car was fixed by observation of oil and tire marks. At this stage of the proof, the evidence showed Lyon to have been negligent by reason of having driven his car on the wrong side of the road. His motion for a direct verdict made at this point was correctly overruled. It is doubtful if- any culpable negligence had been shown as to Collier, whose motion also was overruled.

Neither Lyon nor Collier elected to stand on the ruling on his motion for a ■directed verdict. Collier introduced his proof next which tended to establish that Lyon’s negligence, already mentioned, was the sole cause of the collision. Lyon then introduced his proof to the effect that Collier had been driving down the hill at an excessive rate of speed, had lost control of his car, and had crashed it into the left side of the Lyon car, thereby making a showing of negligence on the part of Collier. Thus, there was a conflict in the evidence as to what negligence was the cause of the collision and the resulting injuries. Under such circumstances, the trial court correctly overruled Lyon’s motion for a direct verdict made at the conclusion of all the evidence and submitted the case to the jury. Hundley v. Gossett, Ky., 278 S.W.2d 65; Wilson v. Little, Ky., 293 S.W.2d 715; Woods v. Asher, Ky., 324 S.W.2d 809.

Collier insists that his motion for a directed verdict made at the conclusion of the plaintiffs’ evidence should have been sustained. Ordinarily, an error in denying such a motion at the close of the plaintiff’s evidence is held to be cured when the defendant by his subsequent testimony has supplied the omission in plaintiff’s case. Springfield Fire & Marine Insurance Company v. Ramey, 245 Ky. 367, 53 S.W.2d 560; Kennedy Transfer Co. v. Greenfield’s Adm’x, 248 Ky. 708, 59 S.W.2d 978; Paducah Dry Goods Co. v. Thompson, 308 Ky. 12, 213 S.W.2d 440; Kentucky Aerospray v. Mays, Ky., 251 S.W.2d 460. At the conclusion of all the testimony, a plaintiff is entitled to the benefit of any facts which may have been developed by the defendant in order to sustain his cause of action. Sarver v. Lawson’s Adm’r, Ky., 265 S.W.2d 470.

The refusal of Collier to submit .the case without introducing witnesses in ■his own behalf waived his right to rely on the insufficiency, if any, of the plaintiffs’ testimony. Eureka Elkhorn Coal Co. v. Lawson, 195 Ky. 14, 241 S.W. 335. The error, if any, in denying Collier’s motion for a directed verdict was cured by the subsequent proceedings. Matlack v. Sea, 144 Ky. 749, 139 S.W. 930. It has been held that the proper practice before directing a verdict in favor of one of two or more defendants is to allow the other defendant to present his testimony on the question of the liability of each and all the defendants, and evidence of one defendant, as here, may inculpate the other the same as though proved as a part of the plaintiff’s case. Smith v. Lit Brothers, 174 Pa.Super. 102, 100 A.2d 390; 88 C.J.S. Trial Section 257, page 672. Cf. Carson v. Weston Hotel Corp., 351 Ill.App. 523, 115 N.E.2d 800. Whatever merit, if any, there may have been in Collier’s position falls by reason of his failure to stand on the ruling denying his motion for a directed verdict when he proceeded with the introduction of testimony. The shortcomings of appellees’ case as to Collier were supplied by the testimony of Lyon’s witnesses which made a showing of negligence as to Collier, thus raising a proper issue for submission to the jury.

Appellants insist that the damages of $1,043.25 and $1,098 awarded to Tennessee and Opal Prater, respectively, are excessive. Tennessee was “knocked unconscious” in the collision. Her local physician said that she “had a contusion and an abrasion of the left eye and face area, a contusion of the left knee and thigh, and a cerebral concussion,” and that a temporary impairment of the-hearing would result from the latter injury. The' same physician testified that Opal, eleven years of age, suffered “multiple face lacerations, and a contusion of the left knee.” He said one of the lacerations was in the area of an eye. A neurosurgeon who 'examined Opal found no abnormal symptoms except for a dilated left pupil, which he considered the only injury that could have been permanent. An optometrist testified that the pupil of Opal’s left eye was larger than the right, that her vision had been corrected by glasses, and that the cause of the pupil inequality could have been trauma, but was unable to say so definitely. The only possible permanent injury was the one to Opal’s eye. Apparently the jury awarded each $1,000 for the injuries suffered plus medical expenses.

The test of excessiveness of a verdict for damages is whether the award is so great as to strike the mind at first blush as being the result of passion and prejudice. Williams v. Larkin, Ky., 268 S.W. 2d 394; Marcum v. Hedger, Ky., 303 S.W.2d 558. The determination of the propriety of personal injury verdicts depends upon the facts of the particular case and what compensation has been upheld for similar injuries, giving consideration to changed economic conditions since the precedents were established. Hedges v. Neace, Ky, 307 S.W.2d 564; Field Packing Co. v. Denham, Ky, 342 S.W.2d 524.

Appellants rely on Pagliro v. Cleveland, 302 Ky. 306, 194 S.W.2d 647, a 1946 case, wherein an award for $1,000 was reversed as being excessive. The injuries sustained were similar to the injuries here suffered. However, since then, similar awards have been upheld. Spartman v. Rowlett, Ky, 312 S.W.2d 618; Davis v. Davis, Ky, 333 S.W.2d 753; Taulbee v. Mullins, Ky, 336 S.W.2d 597. The damage awards here questioned do not merit reversal for excessiveness.

Judgment affirmed.


text:
    E. P. PHELPS, Appellant, v. Cal TURNER et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.

      Marvin J. Sternberg, Louisville, for appellant.
    Frank R. Goad, Scottsville, Leonard Wilson, Jamestown, for appellees.
   MILLIKEN, Judge.

This appeal involves a chattel mortgage on after-acquired goods.

On March 16, 1955, Clyde O. Thomas and his wife executed a promissory note, payable in one year, to the appellant, E. P. Phelps, and a chattel mortgage on their one-fourth interest (valued at $15,000) in the stock and fixtures of the Russell Dry Goods Company in Russell Springs, Kentucky. The chattel mortgage was duly recorded two days later.

Pursuant t'o a prior understanding reached by the partners in the Russell Dry Goods Company, they incorporated on May 5, 1955, capitalized at $45,000, and apportioned the stock in their new corporation, the Russell Dry Goods Company, Inc., on the basis of one-fourth to the appellees Thomas and three-fourths to the appellees Turner.

On May 23, 1955, the Thomases sold their interest in the new corporation to their former partners, the appellees, the Turners, for $7,500, guaranteeing that their stock was clear of all liens and encumbrances. The Thomases paid only $300 on the note before they went bankrupt and their trustee in bankruptcy subsequently paid another $315.73.

With his personal action on his note discharged by the bankruptcy decree, Phelps sought to assert his chattel mortgage lien on the interest the Thomases -had sold to the Turners after the incorporation of the partnership business, an interest which he claimed had been converted into cash from insurance after a fire had destroyed the entire stock of goods and fixtures of the corporation in April 1956.

Finding that both the appellant, Phelps, and the Turners had acted honestly and had been cheated by the Thomases, the chancellor gave Phelps judgment for $987.-61 to cover the mortgaged one-fourth interest in the fixtures and held the mortgage illegal so far as the changing stock of merchandise was concerned. The court relied on Sandy Valley Grocery Company v. Patrick, 267 Ky. 768, 103 S.W.2d 307, 310, wherein this Court in 1937 reluctantly and critically reaffirmed the common-law doctrine that mortgages on after-acquired property, such as a changing stock of goods, were illegal because of the opportunity they afforded for cheating other creditors, saying: “If third parties dealing with the mortgagor possess either actual or constructive notice of such prior bona fide transaction, we fail to see wherein they should not be bound by the mortgage when with such knowledge they consent to the creation of their subsequent debts. But, however that may be, the stare decisis rule, so overwhelmingly adopted and approved by this and all courts, admonishes us that we should not depart therefrom, it involving a rule of moperty.”

We affirm the judgment on the basis of the Sandy Valley case, comforted by the knowledge that the Uniform Commercial Code, KRS 355.9-204, now effective in this jurisdiction, permits mortgages on after-acquired goods. See Anderson, U.C.C., Section 9.204.

The judgment is affirmed.


author: STEWART, Judge.

text:
    MOUNTAIN PETROLEUM COMPANY, Appellant, v. Asa HOWARD, Administrator of the Estate of Cecil Howard, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.
    W. A. Johnson, Paintsville, for appellant.
    W. W. Burchett, Prestonsburg, G. C. Perry, III, Paintsville, for appellee.
   STEWART, Judge.

Plaintiff, Asa Howard, as administrator, recovered a judgment of $10,000 from defendant, Mountain Petroleum Company, for the wrongful death of his son, Cecil Howard (herein referred to as “Howard”). This appeal is prosecuted by defendant on the theory that it should have been granted a directed verdict when it moved therefor at the conclusion of plaintiff’s evidence. We shall refer to the parties hereinafter as “plaintiff” and “defendant.”

Howard was struck and killed by defendant’s tractor-trailer tank truck on U. S. Highway 23 in Johnson County on November 30, 1957, at approximately 3:30 a. m. Dennie Ratliff, an employee of defendant who was operating the truck, was proceeding in a northerly direction towards Low-mansville. Howard was on foot when he collided with the truck.

Plaintiff undertook to establish by the location near the highway of certain articles of clothing and other personal effects of his son, and by the presence of skid marks that ran from the truck’s right of way over to the other side of the pavement, that Howard was not in the truck’s lane of traffic when he was hit. Plaintiff went to the place where his son was killed and, although it was sometime in the afternoon when he arrived there, he was permitted to voice this theory as to his son’s position on the hard surface when he received the impact:

“I saw his shoe and his cap, and his flashlight, and his flashlight batteries, and the glass from his flashlight laying on the left-hand side, about four foot out in the grass, back behind where he said- — -where Ratliff said— he hit him; looked like about ten feet back behind where he said he had hit him, on the left-hand side, and looked like skids come from over to the right, and then slid back to the left.”

Later on he was again allowed to surmise, as a result of examining certain skid marks, which side of the highway his son was on when he was struck. This portion of his testimony follows:

“Q. Could you tell from observing these skid marks which side of the road that truck was on at the time it hit your son? A. Why—
“Q. I said, could you tell from observing the skid marks, which side of the road the truck was on at the time it struck your son and killed him? A. Yes, sir. The skid marks started about eight or ten feet from where the flashlight and the batteries were laying, and his shoe and-cap.
“Q. Was that on the truck’s left-hand side, or right-hand side — A. On the left as you go toward Lowmans-ville.”

Maude Dye, Howard’s employer during his last days, and a witness who appeared in plaintiff’s behalf, stated she accompanied the latter on that same afternoon to the site of the accident. After telling about seeing Howard’s shoe, cap, flashlight, the batteries from it, and some pieces of headlight glass in the grass along the side of the highway, she was asked as regards certain skid marks she viewed and this is the testimony on that point:

“Q. Did you see any skid marks? A. Yes, I did.
“Q. Go ahead and describe the skid marks. A. Well, looked like he had stepped on the brakes, and the car — the truck — had went from the right side of the road to the left side. ■ There were skid marks on the concrete, looked like he had stepped on the brakes and went over there to where we found the cap and shoe.
“Q. Do you mean the marks led over to where you found the cap and the shoe — the skid marks? A. Well, almost.”

Dennie Ratliff, defendant’s truck driver, in giving his version of the accident, testified he had just come around a sharp curve at which place, in meeting an oncoming car, he had dimmed his lights and was headed along a straight stretch traveling at a speed of 35 to 40 miles per hour. Suddenly, without warning, a figure -darted out of the darkness onto the highway directly in the path of the truck, about two or three feet from the edge of the black top. This person was no more than eight or ten feet from Ratliff when he first came into vision. He immediately cut to the left and applied his brakes in an attempt to avoid striking the man. However, he was unable to do so and the right front of the truck struck the man and carried him a distance of some 140 feet to the left side of the highway. The broken glass of his headlight was deposited on the right side of the road. The man, later identified as Howard, was killed instantly. The driver, Ratliff, was the only eyewitness.

A state patrolman, Jack Music, arrived at the place of the accident at 4:00 a. m., which was about one-half hour after it had occurred, and proceeded to make a detailed investigation. He found the right headlight of the truck was broken out and that crushed glass from it was strewn along the right side of the highway, about four or five feet from the berm. From the point where the glass was deposited he traced the skid marks 140 feet, which was 50 feet past where Howard was found. The skid .marks started on the truck’s right side and ended on its left.

U. S. Highway 23 is a heavily traveled road. By the time plaintiff and Maude Dye arrived in the afternoon (the exact hour was not fixed) at the point where the collision purportedly occurred, at least 8 or 9 hours had elapsed. It will be recalled that Howard was hit and fatally hurt at 3:30 a. m. The record contains no evidence which reveals that the conditions had remained the same from the moment of the accident until these witnesses made their observations, or that there were any distinguishing marks or special circumstances by which the skid marks seen by them could be identified as those made by the truck.

The principle is well established in this jurisdiction that the subsequent existence of a temporary condition, such as tracks or debris on a much-traveled road, is not admissible as evidence where considerable time has intervened and there is no showing that the condition has remained the same in the interval. See Appalachian Stave Co. v. Pickard, 260 Ky. 720, 86 S.W. 2d 685. In Powell v. Commercial Standard Ins. Co., 294 Ky. 7, 170 S.W.2d 857, it was held that the testimony of a witness who reached the scene of the accident four hours thereafter, which testimony purported to explain the marks he saw upon a much-traveled highway, was inadmissible in the absence of a showing that the conditions were the same when the witness arrived as when the accident occurred. See also Arnett v. Dalton, Ky., 257 S.W.2d 585.

In the present case plaintiff and Maude Dye, over defendant’s objection, testified in respect to skid marks they noticed on the pavement and drew certain deductions from them as to where on the pavement Howard had been hit, but they offered no evidence to show that these marks were made by the truck at the time of the accident. However, conceding arguendo these marks were produced by the truck on the occasion of the mishap, these witnesses could only testify as to the fads concerning them, such as their general direction, their length and their starting and stopping points. Plaintiff could not properly postulate, as the trial court gave him leave to do, which side of the pavement the truck was on at the instant of the impact as a result of his examination of certain unexplained tire tracks that went from the truck’s side of the highway to the left side thereof. His statement in this connection amounted to nothing more than a speculation or conclusion based upon conjecture. Any inference that might be drawn from his evidence as to where the truck was traveling on the highway when his son was killed was solely a jury matter.

The rule is a witness must testify to information within his knowledge, and he should not be allowed to advance an opinion in regard to any facts he may state. See Springfield Fire & Marine Ins. Co. v. Ramey, 245 Ky. 367, 53 S.W.2d 560, and Coker v. Coker, 216 Ky. 669, 288 S.W. 291. In 32 C.J.S., Evidence, sec. 567, pp. 380-381, it is stated: “Mere opinions or conclusions of an unskilled witness, without adequate supporting facts, possess little or no probative value, and have been held insufficient to authorize or sustain a verdict, decree, award, or finding, or to warrant submission of the issue to the jury. So an opinion based on speculation or conjecture is of no probative force and is insufficient to support a verdict or finding.”

Thus, it would appear beyond any doubt that the testimony introduced in behalf of plaintiff, for the reasons shown, does not rise to the dignity of evidence that has .any probative value. It rests entirely upon certain undetermined physical facts and certain unwarranted assumptions inferred therefrom which, when evaluated by the tests laid down, would not authorize the submission of this case to the jury. In the very recent opinion of Steely v. Hancock, Ky., 340 S.W.2d 467, 470, we said: “* * We do not hold that physical evidence, standing alone and uncontradicted by other evidence, must in the absolute sense be 'conclusive’ in order to support a case, but certainly it must substantially support a definite conclusion, excluding all reasonable conflicting hypotheses.” We believe plaintiff’s proof completely failed to establish “a definite conclusion” as to where Howard was on the highway when he was hit.

Appellee contends, however, appellant’s truck was being operated at the time in a negligent manner because there was a failure to comply with KRS 189.040(3). This subsection provides that motor vehicle lights, on low beam, must project forward so as to reveal persons and vehicles for a distance of at least 100 feet ahead.

It is the rule that, although one may be guilty of negligence per se as a consequence of the violation of a statutory provision, a party will not be entitled to recover for an injury unless the violation is the proximate cause. See Milliken v. Union Light, Heat & Power Co., Ky., 341 S.W.2d 261. Nevertheless, even if we assume KRS 189.040(3) was violated, plaintiff does not show wherein the failure to have the truck lights on bright played any part as a causative factor in this accident.

Other points are raised which our decision of this case renders unnecessary to-answer. We are of the opinion appellant was entitled to have its motion for a directed verdict sustained. As a motion for judgment notwithstanding the verdict was properly made, upon the remand of this case judgment will be entered for defendant.

Wherefore, the judgment is reversed.


text:
    Harlan NOBLE and Chester Terry, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.

      Buford A. Short, Rose & Short, Beatty-ville, for appellants.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty Gen., for appellee.
   STEWART, Judge.

Appellants, Harlan Noble and Chester Terry, were jointly indicted, tried and convicted of grand larceny in the Lee Circuit Court and each was sentenced to two years’ imprisonment. They appeal, urging these grounds for reversal:

1. The court committed reversible error in admitting testimony of other acts of larceny not charged in the indictment and for which appellants were not on trial.

2. There is no proof the larceny occurred in Lee County with the result that venue was not established.

On April 29, 1960, James Chapman, the prosecuting witness, had three cows in his pasture in Lee County. One was owned by him; one by his brother, Wallace Chapman; and one by a neighbor, Grover Spencer. He had the care and custody of all three. When James Chapman went to the pasture on May 1, 1960, the animals were gone; After examining the fences and looking for them,r he decided they were stolen and then notified the sheriff.

About nine days later he was called to identify three cows in Magoffin County. He recognized two of them — his own, which had been sold to T. E. Montgomery, and his brother’s which had been sold to Oral Williams, both residents of that county. Williams and Montgomery had bought the cows on the Paintsville livestock market. He found out the third cow had been sold to someone in Ohio. It was ascertained this market bought the cows from Challie PeL frey, who testified he had purchased them from appellants at the Paintsville livestock market at about 7:30 a. m. on Saturday; April 30, 1960, for $305.

Appellant, Terry, testified he never on any occasion sold any cattle nor did he steal the ones he was alleged to have stolen. He claimed he was in Flat Rock, Indiana, at the time the cattle were taken and sold. He introduced no corroborative testimony. Appellant, Noble, denied knowledge of the theft and stated he stayed at the home of a friend on April 29, 1960, the date the cows were supposedly stolen. He produced several witnesses to substantiate his testimony, but some of them were not sure of the exact date he was at his friend’s house.

It is first contended the admission of testimony to the effect that three cows were stolen was improper, as only the stealing of the one which belonged to the prosecuting witness and for which appellant was indicted could constitute the crime committed. This argument is based upon the assumption that, since each cow was owned by a different person, each taking was the subject matter of a separate offense; and that it was therefore error to allow evidence to be introduced concerning the larceny of property which belonged to persons other than the prosecuting witness.

Ordinarily, proof relating to other crimes committed is inadmissible. This rule, however, does riot apply where other offenses which have been perpetrated are so interwoven with the one being tried that they cannot well be separated from it in the introduction of relevant and competent evidence, and this is especially true where two or more crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other. See Fleming v. Commonwealth, 284 Ky. 209, 144 S.W.2d 220.

For instance, where two victims were shot and killed at practically the same time, this Court held that the facts in respect to the two killings were inseparable, and in a homicide prosecution for the slaying of one of such victims evidence as to the manner in which the other victim was shot was admissible. Carson v. Commonwealth, Ky., 239 S.W.2d 262.

In the case at bar all the cattle were in the care and custody of the prosecuting witness and the larceny of all was simultaneous in point of time and place. The fact that one cow belonged to the prosecuting witness and the other two were owned by his brother and another man does not make such evidence inadmissible. It is apparent from the proof that this prosecution comes within the application of the rule laid down in the two opinions to which we have referred.

Appellants argue that there was insufficient evidence to establish venue; that there was no actual proof the cows were stolen in Lee County; that they could have strayed from the county.

Only slight evidence, either direct or circumstantial, is required to sustain venue in a criminal prosecution. Parks v. Commonwealth, 288 Ky. 447, 156 S.W.2d 468. In Warren v. Commonwealth, Ky., 256 S.W.2d 368, 369, Warren was convicted of grand larceny growing out of the theft of a fox hound in Hart County. The hound had been at its owner’s home in Hart County on a Friday night and was sold to a third party by defendant on the following Sunday morning in Jefferson County. This Court .said: “Hart and Jefferson counties are not adjoining but are separated by several counties, thus the circumstances unerringly point to the fact this hound was stolen in Hart County and transported to Jefferson County.” The facts there are somewhat like those in this case.

The evidence shows that the cows were in Chapman’s pasture on April 29, 1960, and were discovered- missing therefrom on May 1, 1960. The three animals .were bought and resold in Johnson County on April 30, 1960. Two of them were located nine days later in Magoffin County. We believe it was clearly proven the cows did not break out of the place where they were enclosed and, furthermore, that the sequence of events plainly indicates they were stolen from Lee County.

Wherefore, the judgment is affirmed.


author: BIRD, Chief Justice.

text:
    Orville BROWN, Appellant, v. DEPARTMENT OF WELFARE, DIVISION OF PROBATION AND PAROLE et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.

      Orville Brown, pro se, for appellant.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellees.
   BIRD, Chief Justice.

In 1948 Orville Brown was convicted of murder in the Rowan Circuit Court and sentenced to life imprisonment in the Kentucky State Reformatory. On October 23, 1956, he was released on parole. On October 24, 1957, he was released from parole supervision. On or about September 25, 1958, he was arrested and returned to the reformatory on the following warrant:

“Department of Welfare
“Parole Board
“Warrant No. 2551
“To the Parole Officer of the Appointed Officer Judicial District of Kentucky or any Peace Officer of the Commonwealth of Kentucky, or any other State or Commonwealth: It appearing from information furnished to the Parole Board of the Commonwealth of Kentucky that Orville Brown #39364-KSR a paroled prisoner who was convicted of the offense of Wilful Murder in the Rowan Circuit Court, and who was paroled on the 23rd day of October, 1956 has violated the terms of his parole as set out herewith: (1) Threatening the Life of Another (2) Possessing Firearms (3) the Welfare of Society Demands His Return. This therefore is to command you to forthwith arrest the said Orville Brown whose last known address is Milwaukee, Wisconsin and deliver him to the custody of the Warden of the Kentucky State Reformatory or Penitentiary at LaGrange or Eddyville, Kentucky. This warrant is issued pursuant to Act of Legislature approved May 18, 1956 governing paroled convicts. Given under my hand this 25th day of September, 1958.
“Walter Ferguson
“Chairman of Parole Board
“By Authority of the Parole Board”

On June 26, 1961, he filed a petition for writ of habeas corpus in Oldham Circuit Court. The trial court dismissed the petition on the ground that the facts alleged did not state a cause for granting the relief sought. Brown appeals.

He insists that he is wrongfully imprisoned because he was never given a hearing on the charges set forth in the parole-violation warrant heretofore quoted.

However, he is not being held as prisoner on the charges made in that warrant. He is imprisoned on a conviction for murder. He has never been finally discharged from prison. Though he was released from supervision he was not discharged from parole, nor had he served his sentence or been restored to citizenship. He was a prisoner at all times and subject to the regulations thereunto pertaining. KRS Chapter 439. In Mahan v. Buchanan, 310 Ky. 832, 221 S.W.2d 945, 947, we. said:

“We note under KRS 439.150 above; that the parolee is at all times during the continuance of the parole in the legal custody of the Department. Mahan was already in the legal custody of the Department. The mere fact that he was rearrested does not change that status. Habeas corpus lies where persons are held in custody illegally.
“In Board of Prison Com’rs v. Crumbaugh, Police Judge, 161 Ky. 540, 170 S.W. 1187, 1188, it was said:
“ ‘A prisoner, who has been paroled by the board, remains subject to its control, and, if he violates the parole, may be rearrested and placed again in prison. While at liberty under the parole, he is subject to the control of the board as he was before the parole was granted. George v. Lillard, 106 Ky. [820] 824, 51 S.W. 793, 1011, 21 Ky.Law Rep. 483; Board of Prison Commissioners v. De Moss, 157 Ky. 289, 163 S.W. 183.
“ ‘The prisoner who has been paroled and has subsequently been rearrested under a warrant by the board is not illegally detained in custody. The writ of habeas corpus may be used to release from custody persons who are held in custody illegally; but, under this summary process, the officer issuing it in the case of a paroled convict, rearrested upon the order of the board, cannot go behind the order of the board, for the board has authority by law to issue the warrant, and the detention of persons under the warrant is not without authority of law.’
“It is also pointed out in the case above that in the event the board should abuse its authority in rearresting a convict, the remedy is not by writ of habeas corpus but by a proceeding in the circuit court in the proper county to obtain a writ of mandamus requiring the board to proceed properly.”

While there has been some modification of Chapter 439 the holding in Mahan v. Buchanan is still sound and is applicable in this case.

The record showing clearly that the petitioner is imprisoned upon a conviction for murder and showing further that he has not served his sentence or been restored, it is obvious under the authority cited, that petitioner is not wrongfully imprisoned. The trial court was therefore correct in dismissing the petition for habeas corpus.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    Howard JONES, Appellant, v. Floyd ROBINSON et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.

      Hamm, Taylor & Milby, London, for appellants.
    D. B. Mills, Barbourville, C. Homer Nei-kirk, M. D. Harris, Somerset, for appellee.
   MOREMEN, Judge.

Appellant, Howard Jones, is a member of the City Council of London, a city of the fourth class. The city has under KRS 96-350-96.510 acquired a water system and established a Utility Commission to manage it. The Utility Commission is composed of four residents of the city and a member of the City Council,, all of whom were appointed by the mayor with approval of a majority of the voting members of the Council. Appellant Jones was appointed ex officio member of the Utility Commission and was so acting when on March 15, 1961, the Commission purchased a motor vehicle from the Dixie Motor Company. Jones was the principal stockholder of the Dixie Motor Company.

KRS 61.270 reads:

“If any officer of a city of the fourth class becomes directly or indirectly interested as agent, principal or surety in any contract with the city, he shall thereby vacate his office, and the contract, if entered into while he is in office, shall be void.”

KRS 86.050 reads in part:

“No member of the council shall be interested in any contract with the city, or be in arrears to the city for money collected or withheld without a settlement or quietus therefor. The absence of any of the qualifications, or the existence of any of the disqualifications provided for in this subsection shall render a person ineligible to be a member of the council, and the council shall so declare, and shall fill the vacancy.”

On the 4th day of April 1961, at a regular meeting of the City Council, one of the members, Floyd Robinson, introduced a motion seeking to declare vacant the seat held by appellant Jones on the ground that he entered into a contract with the Utility Commission and sold to it a motor vehicle contrary to the provisions of the statutes above quoted. All six members were present and a vote on the submitted motion was divided. Thereupon the Mayor broke the tie by voting against the motion and appellant retained his seat on the Council.

Thereafter this suit was filed in the Laurel Circuit Court wherein, with other relief sought, it was requested that the office held by Jones be declared vacant and the City Council be ordered to fill the vacancy. The parties plaintiff were Floyd Robinson,, Ted Jody, and Luther Har-ville, who alleged that they were residents and tax payers of the city of London and were also members in good standing in the City Council.

In an amended answer appellant alleged “the plaintiffs do not have the capacity or authority to sue or maintain this action in this court either as city councilmen or individuals * * *.” The reason assigned for the averment was that such an action must be taken by the Council as an entity and not by individual members. Although the foregoing reason was not the basis of the argument in this case, we believe the quoted allegation was sufficient to bring to the attention of the court that the right of the parties plaintiff to bring suit was being challenged.

KRS 415.030 (formerly Section 483 of the Civil Code of Practice) reads:

“If a person usurps an office or franchise, the person entitled thereto, or the Commonwealth, may prevent the usurpation by an ordinary action.”
KRS 415.050 (C.C. § 485) reads:
“For usurpation of other than county offices or franchises, the action by the Commonwealth shall be instituted and prosecuted by the Attorney General.”

In Jenkins vs. Congleton, 242 Ky. 46, 45 S.W.2d 456, 457, it was held that the clear intention of the above section was to limit the right to maintain an action to try the title to public office to the person entitled thereto or to the Commonwealth — and gave the reason for this exclusive mode of testing title to be:

“The generally recognized rule that quo warranto proceedings or the substituted statutory proceedings are the exclusive method of determining the right to hold and exercise a public office is founded upon considerations of policy and necessity. It would be detrimental to the public welfare and highly inexpedient that title to a public office should be put in question whenever any private citizen sees fit to make the assault. Under the rule a public office may not be the subject-matter of private litigation at the instance of one who has no interest therein, which differs from that of every other member of the public.”

Appellees argue that the case at bar contains no question of usurpation of office because appellant by his own conduct abandoned, resigned or relinquished his office and thereby made the office vacant, and KRS 415.030 and 415.050, which pertain to usurpation of office, have no application here.

In Hall vs. Allen, 313 Ky. 441, 231 S.W.2d 702, we noted a distinction between an action to declare a forfeiture and an action to have the fact of abandonment adjudged. In the former instance the proceeding would deprive a man of an office he is claiming, while in the latter the officer has voluntarily renounced the office.

We have no difficulty in declaring that this suit is concerned with forfeiture of an office because KRS 415.060 (C.C. § 486) provides: “A person who continues to exercise an office after having committed an act, or omitted to do an act, the commission or omission of which, by law, creates a forfeiture of his office, may be proceeded against for usurpation thereof.”

Appellees’ suit was based on the theory that the sale to the Utility Commission by the Dixie Motor Company was an act by which appellant had forfeited his right to hold the office of councilman. Under KRS 415.060, when an act creating a forfeiture of office has been committed by an officeholder he may be proceeded against for usurpation of the office he occupies. Proceedings for usurpation of a city office under KRS 415.030 and 415.050 must be instituted by a person claiming title to it or by the Commonwealth. Neither one was plaintiff in this action.

Judgment reversed.


text:
    Roy COOK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.

      W. D. Bratcher, Greenville; for appellant.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

The appellant, Roy Cook, was tried in the Muhlenberg Circuit Court, convicted of rape and sentenced to 20 years in the State penitentiary. He now prosecutes an appeal from the judgment pronounced upon the verdict.

The first ground alleged for reversal is the failure of the Commonwealth to elect whether to prosecute on attempted rape or on rápe. This ground was not mentioned .in the motion and grounds for a new trial, and this Court will not consider it for that reason. Lair v. Commonwealth, Ky., 330 S.W.2d 938.

Other grounds relied upon by appellant, except the one hereinafter specifically discussed, probably will not recur on a new trial. Consequently, any questions regarding them are hereby reserved.

The prosecutrix testified that she made complaint to her husband immediately upon his arrival home approximately one hour after the alleged crime occurred. She also testified concerning the details and particulars of the complaint. The husband was permitted to testify concerning the condition of his wife at the time she made complaint to him, and the husband’s employer, who was present at the time the wife related the details to the husband, was permitted to testify that the prosecutrix stated she had been raped. A police officer took a statement from the prosecutrix six hours after the alleged crime occurred. Upon the trial he was permitted to read the statement which set out the details of the complaint.

It is proper to prove the fact of complaint by the prosecutrix. This Court said in Meade v. Commonwealth, 214 Ky. 88, 282 S.W. 781, 782, that the fact of complaint may be proved if the statements of the prosecutrix as to what occurred are controverted by the accused, for the reason that the fact of complaint corroborates the testimony of the prosecutrix. The following rule is recited in the above case:

“By the weight of authority the evidence must be confined to the bare fact that complaint was made; the details or particulars of the complaint not being admissible as substantive testimony, unless the statement is part of the res gestae.”

There is no longer room for doubt that the declarations of a prosecutrix made immediately after commission of the offense are admissible to prove that the offense was committed. It is contemplated that the complaint should have been made before there “had been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance,” precluding the complaint’s being the product of afterthought or deliberate design. Wright v. Commonwealth, 267 Ky. 441, 102 S.W.2d 376.

The prosecutrix lived in a remote section and made complaint to her husband immediately upon his arrival home. She was at that time visibly nervous and excited, and made complaint at the first opportunity following the alleged offense. Under the circumstances the passage of one hour’s time would not be sufficient to exclude her statement from the exception afforded by the res gestae doctrine. On the other hand, her statement made to the police officer six hours later is clearly not a part of the res gestae, and under the authority stated above is inadmissible. See Annotations, 19 ALR2d 579. The admission of the testimony of the police officer is reversible error. Hopper v. Commonwealth, 311 Ky. 655, 225 S.W.2d 100.

The judgment of the trial court is reversed.


text:
    UNITED CARBON COMPANY, Appellant, v. W. M. CONN, etc., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.

      O. T. Hinton, Pikeville, Clifford Latta, Prestonsburg, for appellant.
    Woodrow Burchett, Prestonsburg, for appellees.
   PALMORE, Judge.

The main question involved on this appeal is what is included by the term “one dwelling house” as it is used in the free gas provision of an oil and gas lease.

The lease entitles W. M. Conn, the appellee, who resides on the leasehold, to free gas “for heat and light in one dwelling house” on the premises up to 200,000 cubic feet per year, all gas taken in excess of that quantity to be paid for at "“current published local rates. ” On October 16, 1959, in a suit brought by the lessee (appellant, hereinafter called the company), the circuit court entered a judgment enjoining appellee and his son, Emmitt Conn, who also resides on the leased premises but in a separate dwelling, “from maintaining any service lines to any building or buildings other than the residence * * * of W. M. Conn,” etc.

The lawsuit was occasioned by the fact that the connection with the gas well had been extended to include not only the ap-pellee’s house, but also the separate dwelling house of Emmitt Conn and several other buildings, each under separate roof. The judgment, however, did not end the trouble. Contending that they were a part of his residence, the appellee did not disconnect the service lines to his garage, a wash house that contained the hot water heater for his house, and a small building containing a sleeping room used by a member of his immediate family. This led to a redocketing of the case and a rule to show cause why appellee should not be held in contempt. After hearing evidence on the rule the circuit court discharged it and found appellee not to be in contempt. The final order so determining, in which the trial court concluded that appellee’s “residence” included the garage, wash house, and separate sleeping apartment, is the action from which the company appeals.

The word “residence” in the judgment necessarily referred to the term “dwelling house” used in the lease. It is traditional to the common law that a “dwelling” or “dwelling house” includes the cluster of buildings in which a man with his family resides and extends to such outbuildings as are within the curtilage. Bouvier’s Law Dictionary. See also Words and Phrases, Vol. 13, pp. 716 et seq., and, more specifically, Italian-American Building & Loan Ass’n of Passaic County v. Russo, 1942, 132 N.J.Eq. 319, 28 A.2d 196; Horst v. Handke, 1921, 190 Iowa 658, 180 N.W. 762, 769; Smith v. State, 1920, 80 Fla. 315, 85 So. 911, 912; Marston v. Stickney, 1879, 58 N.H. 609, 610; Daniels v. Commonwealth, 1887, 9 Ky.Law Rep. 276, 4 S.W. 812. That description covers the buildings in question here.

The company cites a stipulation made by the parties during the course of the litigation prior to the judgment of October 16, 1959, to the effect that “the defendant is entitled to use gas from this well only inside his dwelling house, and not in any other dwelling house, or any garage or apartment building, or office building.” However, it is the judgment that finally defines and determines the rights of the parties, and it supersedes all interlocutory actions.

In a cross-appeal the appellee attacks certain aspects of the judgment entered on October 16, 1959. It is too late. Neither party appealed from it by filing a notice of appeal within the time provided by the rules.

Judgment affirmed.


text:
    J. C. McCLELLAN, Appellant, v. Bearl DARNELL et al., Appellees.
    Court of Appeals of Kentucky.
    May 19, 1961.
    Rehearing Denied Dec. 15, 1961.
    Farland Robbins, Robbins & Cross, May-field, Rodney A. Miller, Fulton, for appellant.
    Henry O. Whitlow, Waller, Threlkeld, Whitlow & Byrd, Paducah, for appellees.
   MILLIKEN, Judge.

This appeal originated in a school board squabble resulting in withholding part of the salary of appellee, Bearl Darnell, superintendent of schools, and his replacement, before the expiration of his term, by his assistant, the appellant McClellan. After the withdrawal of their appeal by certain members of the school board and the expiration of Darnell’s term of office on July 1, 1960, apparently the only remaining issue on the appeal is whether McClellan or Darnell is entitled to the salary withheld. Without specifically discussing the charges against Darnell, the learned chancellor adjudged him entitled to the office and its emoluments for the remainder of his term, and we concur in his conclusion.

When contiguous school districts are merged in this state “the members of the boards of education of the merged districts may serve out the terms for which they were elected.” KRS 160.040. When the Hickman Independent School District and the Fulton County School District merged in February, 1956, the members of the respective school boards continued in office and on May 4 following, the members of the merged boards undertook to adjust one of the personnel problems created by the merger by authorizing the execution of a contract with J. C. McClellan (appellant), former superintendent of the Hickman Independent School District, for a period of four years, beginning July 1,. 1956, as assistant superintendent of the new merged district, and by authorizing the execution of a 3-year contract with Bearl Darnell (an appellee), former superintendent of the Fulton County District, beginning July 1, 1957, as superintendent of the newly merged district and secretary of the school board. Again, in November, 1956, the minutes of the board disclose the intention to confirm the contract of Darnell. It was the purpose of the board to have the terms of the superintendent and assistant superintendent terminate at the same time— July 1, 1960 — and for that reason Darnell, who had a year to run on his old contract at the time of the merger, was offered a 3-year term instead of a 4-year one. At a meeting on January 4, 1957, the chairman of the board was authorized to sign the contract with Darnell which subsequently was done.

Despite the fact that Darnell served as superintendent pursuant to the aforesaid acts on the part of the board, recommended the selection of teachers and in other respects carried out the functions of the office, the office was declared vacant on October 2, 1959, and J. C. McClellan was appointed superintendent to fill the vacancy. Apparently, the controlling group on the board decided that the previous actions of that body had been illegal or ineffective and, as a consequence, Darnell.never really had been superintendent of the newly merged district. The chancellor made short shrift of the contentions of the McClellan group, found Darnell holder of the office and directed that he be paid the salary withheld.

It is difficult for us to comprehend how the learned chancellor could have found otherwise on the record before us. The excerpts from the minutes of the board filed in the record, both before July 1, 1957, and after that date, reflect no schism on the board relative to the superintendency until the proceedings culminating on October 2, 1959, in the board’s assumption that the office of Darnell was vacant. The chancellor made no specific findings on the charges against Darnell, so we are not in a position to pass on them specifically. In adjudging Darnell to be “the duly appointed, qualified and acting Superintendent of Schools of Fulton County, Kentucky, for the period and term ending June 30, 1960,” we infer that he found that the charges against Darnell were not substantiated. CR 52.01.

It is significant that the vast mar j.ority of the bpai;d members who effected the merger of the districts were still in office at the beginning of Darnell’s new 3-year term on July 1, 1957, and for that reason there is no factual basis for concluding that the old board tied the hands of the board in power in 1957. Certainly, the members of the board in 1960 had the power to make suitable arrangements for the period beginning July 1, 1960, when Darnell’s 3-year term terminated.

The gist of this opinion was ready to be rendered in June, 1960, when members of the school board, who were then appellants, moved to dismiss their appeal, and it was mistakenly assumed at the time that appellant McClellan was a party to that motion. The appeal of the members of the school board was dismissed in compliance with their motion. On the appeal of the appellant, J. C. McClellan, the judgment is affirmed.