text:
    PENNSYLVANIA RAILROAD COMPANY, a Corporation, Plaintiff-Respondent, v. CHROMCRAFT CORPORATION, a Corporation, Defendant-Appellant.
    No. 32842.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 18, 1968.

      Hocker, Goodwin & MacGreevy, Edward K. Fehlig, St. Louis, for defendant-appellant.
    Coburn, Craft & Kohn, Alan E. Popkin, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

The plaintiff, Pennsylvania Railroad Company, instituted this action against the defendant, Chromcraft Corporation, in the Magistrate Court of the City of St. Louis to recover additional freight charges of $166.86. Plaintiff prevailed in the Magistrate Court, and again in the Circuit Court, where the parties waived a jury, and this appeal followed.

Most of the facts were stipulated and the remainder are uncontroverted. Defendant made five shipments of furniture which were carried by plaintiff from St. Louis to New York and there transferred to Bush Terminal Railroad, a connecting carrier. The latter carried the shipments to a track adjacent to the Brooklyn Army Terminal where the merchandise was delivered to the consignee, the Federal Government. Delivery was made outside of the Army Terminal because no common carrier, including Bush, was permitted by the government to operate within the terminal. The furniture was ultimately exported, and plaintiff’s undisputed evidence was that the export rate was applied to all shipments consigned to the Brooklyn Army Terminal unless the shipper, at the government’s direction, put a code designation on the bill of lading to indicate that the shipment was for domestic use or consumption. It is a fair inference that no such designation was inscribed on the bills of lading covering the shipments in question. Defendant paid the proper rate for domestic shipments but plaintiff claimed that it was entitled to the rate for export shipments, which was higher, the difference amounting to an additional $166.86.

The rates charged for interstate rail shipments are controlled by tariffs, published by the Interstate Commerce Commission, 49 U.S.C.A. § 1, et seq.; Chicago, Rock Island & Pacific R. Co. v Furniture Forwarders of St. Louis, Inc., D.C.E.D. Mo., 267 F.Supp. 175, 176. Such tariffs have the same force and effect as a statute, and are binding on the carrier and the shipper alike. Pennsylvania R. R. Co. v. International Coal Mining Company, 230 U.S. 184, 33 S.Ct. 893, 57 L.Ed. 1446. The determination of whether a rate is or will be reasonable or otherwise in violation of the Act is initially a matter to be determined by the Interstate Commerce Commission, whose determination is subject to judicial review. 49 U.S.C.A. § 15; United States v. Interstate Commerce Commission, 91 U.S.App.D.C. 178, 198 F.2d 958, cert. den. 344 U.S. 893, 73 S.Ct. 212, 97 L.Ed. 691. Where, however, the issue between a shipper and a carrier is not the reasonableness of a rate but only the construction or interpretation of a published tariff the courts, including a state court, may entertain jurisdiction. Great Northern Ry. Co. v. Merchants’ Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943; Milne Lumber Co. v. Michigan Cent. R. Co., Mo.App., 57 S.W.2d 732; Sunderland Bros. Co. v. Baltimore & O. S. W. R. Co., 196 Mo.App. 154, 190 S.W. 650. Defendant in its brief expressly disclaims any contention that the export rate is unreasonable, and the parties both agree that the determination of their dispute depends entirely upon the construction of Item 3210-G of Tariff 490-B of the Central Territory Railroad Bureau, of which plaintiff is a member. Considering the amount involved, we accordingly have jurisdiction. Milne Lumber Co. v. Michigan Cent. R. Co., supra; Sunderland Bros. Co. v. Baltimore & O. S. W. R. Co., supra.

Item 3210-G of Tariff 490-B is headed "Application of Export Rates to North Atlantic Seaboard Ports of Export or Trans-Shipment,” and so far as here pertinent reads:

“The rates named in this tariff, or as same may be amended, and designated as ‘Export Rates’ will apply on property for export when exported direct from port stations named in this tariff, or as same may be amended and will only apply, except as otherwise provided herein, on traffic which does not leave the possession of the carrier, and is delivered by the Atlantic Port Terminal Carriers direct to the steamer or steamers’ docks upon arrival at the port or after storage or transit has been accorded by the carriers under tariffs which permit the application of the export rates, and also on traffic delivered to the party entitled to receive it at the carriers’ seaboard stations to which export rates apply, which traffic is handled direct from carriers’ stations to steamship docks and on which required proof of exportation or trans-shipment is given. (See Exceptions) (See Note A in Item).
“All shipments consigned in bills of lading for export to points covered herein are to be waybilled at the export rates named herein. Shipments not consigned in shipping orders or bills of lading for export, which are ordered for export after arrival at seaboard or outer holding yard or yards will be subject to the rates, rules and regulations applicable to export traffic, or the same as would have applied had the shipment been originally consigned for export, so long as the property has not passed from the possession of the carrier, subject to the reconsigning charge or other provisions as published in tariffs lawfully on file with the Interstate Commerce Commission. (Will not apply to Ports in Canada. See Item No. 3250 of tariff, as amended.)
“Export rates applicable on shipments exported direct from railroad terminals will apply on shipments. consigned in bills of lading for export, handled through United States Naval Shipyards, Naval Bases or Army Bases or delivered to United States Government vessels docked thereat on presentation of proper evidence of exportation.”

Defendant maintains that the last paragraph quoted is ambiguous and that we should construe it to mean “handled through (the military facility) by the railroad” and “delivered by the railroad” to the government vessel docked thereat. In short, defendant’s position is that in order to become entitled to the export rate the plaintiff was required to transport the shipments all the way through the military facility to the water carrier. Plaintiff concedes that under Item 3210-G it is generally incumbent upon the rail carrier to deliver the shipment to the water carrier in order for the export rate to apply, but it asserts that the last paragraph of that Item constitutes an exception by providing that when shipments are consigned in bills of lading for export from a military facility the export rate applies.

The rule which governs the construction of railroad tariffs is that stated in United States v. Missouri-Kansas-Texas R.R. Co., 5 Cir., 194 F.2d 777, 778-779, where it was said:

“The construction of a printed railroad tariff presents a question of law and does not differ in character from that presented when the construction of any other document is in dispute. The four corners of the instrument must be visualized and all the pertinent provisions considered together, giving effect so far as possible to every word, clause, and sentence therein contained. - The construction should be that meaning which the words used might reasonably carry to the shippers to whom they are addressed, and any ambiguity or reasonable doubt as to their meaning must be resolved against the carriers. But claimed ambiguities or doubts as to the meaning of a rate tariff must have a substantial basis in the light of the ordinary meaning of the words used and not a mere arguable basis. Hohenberg v. Louisville & N.R.R.Co., 5 Cir., 46 F.2d 952; Christensen v. Northern Pac. Ry. Co., 8 Cir., 184 F.2d 534; Norvell-Wilder Supply Co. v. Beaumont, Sour Lake & Western Railway Company, 274 ICC 547.”

A careful study of Item 3210-G in the light of that rule has convinced us that defendant’s position is untenable and that the export rate applied to the shipments in question. Considering the Item from its four corners, it is readily apparent from the first paragraph that in general the export rate “will only apply” to a shipment that does not leave the possession of the rail carrier and is delivered by it to the water carrier. However, by the same paragraph that general rule is made subject to the proviso that it is applicable “except as otherwise provided herein.” That exception is found in the third paragraph of Item 3210-G, which provides that the export rate is applicable to shipments consigned in bills of lading for export from military facilities. To construe the third paragraph as defendant does would be tantamount to ruling that it has no effect and is mere surplusage. It would have been totally unnecessary to have included it in the Item if, as defendant maintains, it means that a rail carrier must handle a shipment through a military installation and deliver it to a government vessel in order to become entitled to the export rate. For under those circumstances the rail carrier would be entitled to the rate under the first paragraph of Item 3210-G. The apparent reason for the rule, at least in the case of the Brooklyn Army Terminal, is that rail carriers are not permitted to operate within the Terminal, a restriction which seemingly is not uncommon in such military facilities. See Chicago, Rock Island & Pacific R.R. Co. v. Furniture Forwarders of St. Louis, Inc., supra.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court.

Accordingly, judgment affirmed.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    H.J. CROSS, d/b/a H. J. Cross Construction Company, Plaintiff-Appellant, v. LADUE SUPPLY, INC., Defendant-Respondent.
    No. 32770.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1967.
    Rehearing Denied Jan. 18, 1968.
    Barnard, Timm & McDaniel, Walter F. Timm, St. Louis, for plaintiff-appellant.
    Armstrong, Teasdale, Kramer & Vaughan, Kenneth S. F. Teasdale, John J.Cole, St. Louis, for defendant respondent.
   BRADY, Commissioner.

This action began in the magistrate court upon plaintiff’s petition alleging defendant’s breach of contract and seeking judgment as damages therefor in the sum of $1,296.00. The answer was a general denial. The magistrate court entered judgment in favor of defendant and plaintiff appealed to the circuit court. After jury-waived trial the circuit court entered judgment in favor of defendant on June 1, 1966. On June 10th plaintiff filed his motion to amend the judgment with an alternative motion for new trial. On October 14, 1966 the circuit court rendered its findings of fact and conclusions of law as a result of which it “reversed” the earlier judgment of June 1st in favor of defendant and entered judgment in favor of plaintiff in the sum of $1,296.00. On October 20, 1966 defendant filed a motion to vacate the trial court’s order of October 14th based on the ground that court was without jurisdiction to enter the order of October 14th by reason of the expiration of more than ninety days from the date of filing plaintiff’s after-trial motion. (See Civil Rule 78.04, V.A.M.R.) That motion was never ruled upon but in order to preserve his contentions for review plaintiff filed a motion with this court praying that he be granted permission to file notice of appeal by special order pursuant to Civil Rule 82.07, V.A.M.R. We granted plaintiff such permission provided he do so within ten days from the receipt of notice of our order. Plaintiff complied with this provision and as therein provided filed his notice and appeal from the judgment of the circuit court entered June 1, 1966 in favor of defendant and against plaintiff. Accordingly, plaintiff filed the first brief and has otherwise proceeded as appellant in this court. He seeks reversal of the judgment of June 1, 1966 and entry of judgment in his favor.

There is no serious dispute as to the facts. In order to prepare a bid as general contractor for a high school addition to be built by the Bayless School District plaintiff sent postcard notices to prospective suppliers and subcontractors. The postcard received by defendant invited it to submit a proposal for furnishing materials and labor involved in the installation of a protective roof decking known in the trade as “Tectum roof decking or Tectum decking” on the addition. At the time (1960) the witness Green was a sales engineer employed by defendant and acted as an estimator for it. He examined the plans and specifications and on June IS, 1960, the day the bids were due, telephoned a bid to plaintiff in the amount of $627.00. In this telephoned bid the amount stated was for 775 square feet which Green testified he assumed to be the entire roof of the high school addition. In submitting his bid to the school district plaintiff used the sum submitted by defendant and on the evening of June 15th was advised that his bid as general contractor had been accepted. He commenced work shortly thereafter. By letter of July 21st defendant, acting through Green, confirmed its oral proposal and bid. The letter then sent to plaintiff read as follows: “Proposition 1: High school addition and alterations. To furnish the labor and material, 2)4" Tectum plank for approximately 77S square feet for the sum of — Six Hundred and Twenty-Seven Dollars, ($627.00). * * * Complete drawings will be submitted for your approval before work begins. Thank you for the privilege to work with you. We appreciate your business very much. Sincerely yours, LADUE SUPPLY, Inc. /s/ Marion A. Green, Marion A. Green, Sales Engineer ACCEPTED /s/ H. J. Cross Prop. 1 yes * * * DATE: July 23/60 TERMS -“Ñet 30 days.”

Green testified that when he entered the bid on behalf of defendant he was doing it on the basis of a bid for the entire roof but later discovered he had figured it incorrectly as to the quantity required. When he discovered his error defendant wrote plaintiff as follows: (Exhibit 3, dated August 29, 1960) “Reference is made to our signed contract for furnishing the labor and material for approximately 775 square feet of 2¾4" Tectum plank for the sum of — Six Hundred and Twenty-Seven Dollars, ($627.00). However, upon detailing the job, we discover that there is an area of approximately 2,890 square feet of Tectum required. To furnish this quantity, add the sum of — Eight Hundred and Sixty-Seven Dollars, ($867.00) to the basic contract.” Plaintiff refused to add any additional amount to the bid and by letter informed defendant he expected defendant to furnish all the Tectum roof decking needed upon the job for $627.00 and that if defendant did not do so by a given date plaintiff would purchase this material elsewhere, thereafter proceeding against defendant for the increased cost and expenses occasioned thereby. Defendant refused to supply all the Tectum roof decking and do the installation for the sum of $627.00 and plaintiff employed another firm to supply and install it at a price of $1,923.00. The difference between this sum and the amount of $627.00 found in plaintiff’s Exhibit 1 is $1,296.00 which amount plaintiff seeks as damages for breach of contract.

The determinative issue in this appeal is whether Green’s undisputed testimony defendant's bid was intended to be for the entire roof compels a decision in plaintiff’s favor. As earlier stated herein the trial court ultimately so held and entered judgment for plaintiff on that theory although it did so at a time when its prior decision to the contrary could not be so changed.

Plaintiff’s contention cannot be sustained for at least two reasons. First, it has long been the rule in this jurisdiction, as it is generally throughout the nation, that absent ambiguity courts are not privileged to resort to rules of construction or interpretation such as giving effect to the intention of the parties. When the contract speaks plainly and unequivocally, the language used must be given its plain meaning and enforced as written. Community Federal Sav. & Loan Ass’n v. General Casualty Co. (8th Cir., 1960), 274 F.2d 620. The contract here involved was that consummated by plaintiff’s acceptance on July 23rd of defendant’s offer of July 21st. By the terms of the contract defendant was “To furnish the labor and material, 21/2" Tectum plank for approximately 775 square feet for the sum of — Six Hundred' and Twenty-Seven Dollars, ($627.00).” This contract reduced to writing and merged within it all prior negotiations which, in this case, involved amounts and quantities which were the same as those stated in the final written contract. It is unambiguous and unequivocal. Under such circumstances Green’s testimony of his intention the bid cover all the roof cannot be allowed to vary the plain language of the contract calling for 775 square feet of Tec-tum decking.

Another reason plaintiff cannot prevail in the instant case springs from a basic inquiry applicable to those cases involving contracts; i. e., what was the offer accepted? In the instant case defendant did not offer to furnish labor and materials for the roof of this addition at the stated price regardless of Green’s testimony of his intention to do so. Green conditioned defendant’s offer upon the roof requiring the quantity of decking stated; i. e., 775 square feet. As so conditioned in Exhibit 1 plaintiff accepted the offer arid thus irrevocably accepted the condition. The situation is analogous to that found in Sharp Bros. Contracting Co. v. Commercial Restoration, Inc., Mo.App., 334 S.W.2d 248. In Sharp Bros, the condition involved was a time limit set for acceptance of the subcontractor’s bid. Therein the court held: “It is a basic principle of law, we think, that a general contractor may, if he chooses, specify the conditions under which he will receive, accept and consider bids from interested subcontractors. Likewise, an offeror may submit a bid or quotation with a definite time limit for acceptance on it. We know of no usage or custom that will implant upon a bid or offer conditions different from the plain wording thereof.” If we substitute the condition here involved for the time limit condition involved in Sharp Bros., supra, the lack of merit in plaintiff’s contention becomes readily apparent.

There was no contention made in the trial court, neither was there proof there offered, nor any contention upon appeal before us, to the effect defendant is entitled to damages for plaintiff’s refusal to comply with its contract for 775 square feet of Tectum decking at $627.00. In short, defendant’s whole position has been to avoid the contract plaintiff claims it entered into rather than enforcing the contract which was in fact made by these parties. Accordingly, although we are empowered to enter such judgment as should have been entered when reviewing jury-waived cases, it is unnecessary for us to rule upon the validity of the contract for 775 square feet of Tectum decking and the possible liabilities of the plaintiff for his refusal to allow defendant to perform that contract. That issue is not before us as we are bound by the theories of the parties in the trial court.

The judgment of June 1, 1966, is affirmed. Plaintiff shall pay the costs of this appeal.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment of June 1, 1966, is affirmed. Plaintiff shall pay the costs of this appeal.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.


author: CLEMENS, Commissioner.

text:
    Richard JOKISCH, Plaintiff-Respondent, v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE, Defendant-Appellant.
    No. 32740.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 18, 1968.

      H. L. C. Weier, Dearing, Richeson, Weier & Roberts, Hillsboro, for appellant.
    Earl R. Blackwell, Hillsboro, for respondent.
   CLEMENS, Commissioner.

Plaintiff was southbound and defendant’s collector-salesman Lawrence Langenecker was northbound on Highway 61-67 when Mr. Langenecker’s car crossed the center line broadside into plaintiff’s path. Plaintiff sued only the corporate defendant and it has appealed from plaintiff’s $2,000 verdict and judgment.

The appeal brings up two sharp issues: Is the defendant liable for the alleged negligence of its collector-salesman while he was driving his own automobile on company business? And if the automobile was sliding sideways when it crossed the highway’s center line, was it error to submit plaintiff’s case under MAI 17.01-17.13 for driving on the wrong side of the road?

Defendant’s first point concerns its relationship with Lawrence Langenecker. It contends that he was an independent contractor rather than its employee, that it had no right of control over Mr. Lang-enecker’s operation of his automobile, and that it therefore is not liable under the doctrine of respondeat superior for his negligence. Since the defendant contends the trial court should have directed a verdict against the plaintiff because of this relationship, we relate the evidence on this issue in a light favorable to plaintiff.

Mr. Langenecker testified as plaintiff’s witness. The defendant had insurance policies in force in Jefferson County. In February of 1965, four months before the collision, the defendant employed Mr. Lang-enecker as its “agent”, authorizing him to collect premiums in Jefferson County and to sell new policies anywhere in the state. A written employment contract set Mr. Langenecker’s compensation on a straight commission basis for premiums collected and new policies written. It provided for payment of $10 a week as a “general expense allowance” and required him to account for his expenses regularly. This $10 allowance was paid to Mr. Langenecker weekly to cover his automobile expenses, and he made a weekly report of the number of miles driven. By the contract Mr. Langenecker agreed to “be bound by the rules and regulations of the Company as embodied in the Company’s Rate Book and Rule Book, as heretofore and hereafter amended by Field Letters and Mirror notices.” None of these documents referred to in the contract was introduced in evidence. By the contract Mr. Langenecker’s employment could be terminated at any time by either party.

In making collections Mr. Langenecker covered Jefferson County every week. When he took over from another agent at the start of his employment, the company gave him what he called a “pay schedule,” a book listing the company’s policy holders in Jefferson County. The book was divided into sections, geographically and by days; each policy holder paid on a certain day of the week. The company’s supervisor “suggested” that Mr. Langenecker make collections in that way. According to Mr. Langenecker, that was the way it had been set up and that was the easiest way to do it.

Mr. Langenecker made his collections in cash and in checks and money orders payable to the company. On Tuesday and Thursday mornings of each week he was required to go to the defendant’s office to turn in his collections and to balance his books with the company’s ledgers.

Mr. Langenecker’s collision with plaintiff occurred on a Wednesday evening. The time and place jibed with his regular Wednesday route. He had just collected from one of defendant’s policy holders and was on his way to collect from another. Thus, the collision occurred within the scope of his work for the defendant. As said, the defendant contends Mr. Lange-necker was not its employee but was an independent contractor over whom it had no right of control in the operation of his automobile. This issue was submitted by MAI 13.06 requiring a finding that the defendant either controlled or had the right to control Mr. Langenecker’s physical conduct.

We first note the principles governing our review. In deciding a similar issue in the case of Gardner v. Simmons, Mo., 370 S.W.2d 359[1-4], the Supreme Court ruled that in determining whether the salesman was an independent contractor— and, thus, that his employer was not liable under the doctrine of respondeat superior —the court is to consider the evidence and the reasonable inference to be drawn therefrom in the light most favorable to the injured plaintiff, and to disregard unfavorable and contrary evidence. The ruling further stated each case must depend on its own facts, and no single test considered alone is conclusive of the ultimate test: the right to control. Furthermore, whether or not the right of control existed in a particular case is ordinarily a question of fact for the jury.

In distinguishing between employees and independent contractors, Missouri courts have repeatedly adopted the definitions in Restatement of the Law of Agency, Second, § 2:

“(2) A servant [employee] is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
“(3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking. * * * ”

In applying these definitions to cases like ours, “the right to control is more vitally important than the exercise of that right.” Klaber v. Fidelity Bldg. Co., Mo.App., 19 S.W.2d 7S8, l.c. 762. The right to control is “the ultimate and decisive test.” Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174[2-4]. The difficulty lies in applying the test. In the Klaber case, supra, the court adopted this statement from 31 Corpus Juris, 473, 474: “‘It is impossible to lay down a rule by which the status of men working and contracting together can be definitely defined in all cases as employees or independent contractors. Each case must depend on its own facts, and ordinarily no one feature of the relation is determinative, but all must be considered together. Ordinarily the question is one of fact’”

The factors usually considered in drawing the line of distinction between an employee and an independent contractor are listed in Restatement of the Law of Agency, Second, § 220(2). Four factors there apply to the evidence here :

“(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
“(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
“(f) the length of time for which the person is employed;
“(h) whether or not the work is a part of the regular business of the employer ;”

Before considering factor (a), “the ultimate and decisive test,” we examine factors (e), (f) and (h).

Factor (e): Here the workman furnished his own automobile. The defendant, however, authorized him to use his car and paid him $10 a week for its operation. The factor of ownership, therefore, did not make Mr. Langenecker an independent contractor. Margulis v. National Enameling & Stamping Co., 324 Mo. 420, 23 S.W.2d 1049[3]. Factor (f): The defendant had the right to discharge Mr. Langenecker at any time. That fact indicates that the workman was an employee rather than an independent contractor. Wright v. McDaniel, 203 Ark. 992, 159 S.W.2d 737, 740, quoting 31 Corpus Juris 475. Factor (h): Mr. Langenecker was not engaged in an independent business, since collecting premiums was part of the regular business of the defendant insurance company. The fact that defendant used his services for that purpose detracts from its contention that he was an independent contractor. Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761 [6,7]; and see 56 C.J.S. Master & Servant § 3(2), pp. 48-49. These three factors support the ultimate factor: defendant’s right to control Mr. Lange-necker’s physical conduct in the performance of his services.

Factor (a): Two facts indicate that defendant did not give Mr. Langenecker free rein to choose his own means of work. The defendant “suggested” that he follow the established collection schedule whereby his territory was divided into certain accounts to be collected on certain days of the week. From this it could be inferred that the defendant told Mr. Langenecker not just what to do but also how to do it. More significant on this issue of right-of-control was the written contract with Mr. Langenecker. As said, it required him to comply with the company’s rule book, “as heretofore and hereafter amended.” We do not know what the rule book required of Mr. Langenecker, but the defendant’s stated right to prescribe rules binding upon him is inconsistent with its contention that he was not subject to company control of his physical conduct in performing his work. A similar situation appeared in the case of Singer Mfg. Co. v. Rahn, 132 U.S. 518, 10 S.Ct. 175, 33 L.Ed. 440. There, a salesman was hired under a contract that provided he “agrees to employ himself under direction of the said Singer Manufacturing Company, and under such rules and instructions as it, or its manager at Minneapolis, shall prescribe.” In holding that under this contract the salesman was an employee rather than an independent contractor, the court said: “ * * * and the company reserves to itself the right of prescribing and regulating, not only what business he shall do, but the manner in which he shall do it, and might, if it saw fit, instruct him what route to take, or even at what speed to drive.”

We have considered the cases cited by the defendant: Reiling v. Missouri Ins. Co., 236 Mo.App. 164, 153 S.W.2d 79, 84; Douglas v. Natl. Life & Accident Ins. Co. of Nashville, Tenn., 236 Mo.App. 467, 155 S.W.2d 267; Pfeifer v. United Bakers Supply Co., Mo.App., 160 S.W.2d 795, 800; Usrey v. Dr. Pepper Bottling Co., Poplar Bluff, Mo.App., 385 S.W.2d 335, 339. Each is materially distinguishable. It would unduly prolong this opinion to compare the factual differences readily apparent in those cases. It is enough to say that in none of them did the employer, as here, specifically bind the employed person to comply with rules it might impose.

Under the verdict-consistent evidence here it was for the jury to say whether the defendant had the right to control the physical conduct of Lawrence Langenecker. The court properly denied the defendant’s motion for a directed verdict. Having determined that the defendant was bound by Mr. Langenecker’s conduct, we pass to the defendant’s second point: that plaintiff’s verdict-directing instruction erroneously hypothesized driving on the wrong side of the road when the evidence was that Mr. Langenecker slid onto the wrong side of the road.

The evidence about the collision came from plaintiff, his passengers and defendant’s driver, and their testimony was consistent: Highway 61-67 has four lanes, and was wet. Plaintiff was southbound in his inner lane and defendant’s driver was northbound in his own inner lane. Both cars were going about 40 m. p. h. When the cars were 200 to 300 feet apart, the Langenecker car began to “fishtail”. Its rear end swung first to its right, into the outer lane, and then swung back to its left, across the center line, and came broadside into plaintiff’s path. The front end of plaintiff’s car collided with the left side of the Langenecker car. Plaintiff described it: “Well, first it fishtailed over, he was in the northbound lane, the inner northbound lane and he fishtailed into the outer northbound lane, then fishtailed over in my lane and come down my lane [sideways] and hit me.” Similarly, defendant’s driver said: “I lost control of my car and it fishtailed one way, came around broadside, into the other lane in front of his car.”

Defendant challenges plaintiff’s verdict-directing instruction, MAI 17.01-17.13:

“First, * * * [Langenecker’s agency], and
“Second, Langenecker drove on the wrong side of the road, and
“Third, Langenecker was thereby negligent, and
“Fourth, * * * [resultant damage].”

The defendant argues that the instruction erroneously ignores the element of skidding and submits on driving onto the wrong side of the road, citing Evans v. Colombo, Mo. (banc), 319 S.W.2d 549, and Wray v. King, Mo.App., 385 S.W.2d 831. Plaintiff, responding to this challenge, seeks to justify the instruction on the sole ground that his evidence did not show the defendant’s driver skidded — that no witness used the word "skid”.

As used to describe automobile movements, Webster’s Third New International Dictionary (unabridged) defines the word “skid”: “to fail to grip the roadway; specif: to slip sideways on the road (the truck skidded on the wet road).” According to Blashfield’s Automobile Law and Practice, Third Edition, § 105.38: “ ‘Skidding’ means that the wheels of a vehicle slip sideways, resulting in the inability of the driver to control the movement of the vehicle.” (Citing Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11.) As said in Doyle v. Wilmesherrer, Mo., 358 S.W.2d 837[7]: “Trucks are not driven or guided sideways,” and if they move in that direction it must appear that such movement was negligently caused. And see Wray v. King, supra, at 385 S.W.2d l.c. 833, where plaintiff’s evidence showed defendant’s car “turned sideways” and “slid down the highway toward us.” The court declared it was “hardly worthwhile” to notice plaintiff’s contention that there was no evidence of skidding.

We conclude, therefore, that the witnesses’ descriptions of the movement of the Langenecker car do show, in legal contemplation, that it was skidding — even though they avoided using that word. So, plaintiff’s verdict-director must stand or fall on the question of whether he erroneously submitted the issue of defendant’s negligence on evidence that merely showed the Lange-necker car skidded onto the wrong side of the road, without further evidence that defendant’s driver negligently caused that skidding.

We stress the fact that here we are not concerned with an issue of submissibility; that point is not raised in defendant’s brief. Instead, defendant’s attack is limited to the propriety of plaintiff’s verdict-directing instruction.

The Supreme Court adopted MAI 17.13 (the wrong-side-of-the-road instruction) in the light of its “Committee’s Comment”: “Where plaintiff seeks to recover because of defendant’s presence on the wrong side of the road, and where defendant got in that position by skidding, it should be remembered that mere skidding ‘is not negligence and does not give rise to an inference of negligence.’ [Citing cases.]” That principle has been embedded in our automotive law since this court’s decision forty years ago in Heidt v. People’s Motorbus Co. of St. Louis, 219 Mo.App. 683, 284 S.W. 840[2]. The rule applies when the evidence, as here, shows that skidding is the sole factual cause of the collision. See Karch v. Stewart, Mo., 315 S.W.2d 131 [1], and cases there cited.

Two cases determine the issue here. The first is Evans v. Colombo, Mo. (banc), 319 S.W.2d 549. The court noted the principles that skidding in itself is not negligence and that no submissible case is made where skidding is the sole factual cause of a collision. The evidence there was that the plaintiff’s car was stopped on the right-hand side of the street; the defendant’s car, approaching from the opposite direction, spun around and skidded into plaintiff’s lane. The court instructed the j-ury to find for plaintiff if the defendant drove across the center line and in doing so failed to exercise the highest degree of care. On appeal the court condemned this submission on the grounds “(a) that it completely ignores the admitted factual element of skidding and does not properly hypothesize the necessary facts; and (b) that it assumes that defendant operated ‘her automobile across the center line,’ thus excluding the possibility of an accidental or non-negligent skidding as the proximate cause.”

The second case is Davis v. Werremeyer, Mo., 377 S.W.2d 319[2], a center-line skidding case. The court commented on the instruction given in Evans v. Colombo, supra, where the cause of crossing the center line was not submitted, and said: “Thus it enabled the jury to return a verdict for plaintiff if defendant’s automobile crossed the center line and struck plaintiff’s automobile, ‘regardless of the reason for the crossing, whether excusable or inexcusable, without any consideration of the manner in which the crossing occurred (while skidding) and without requiring the finding of any negligent act on the part of defendant which caused the skidding-crossing.’ ”

On the strength of those two cases we must rule here that plaintiff’s MAI 17.01-17.13 submission is erroneous. This, because (1) it ignores the factual element of skidding and fails to hypothesize the essential ultimate facts of the cause of skidding, and (2) it assumes that defendant’s driver operated his automobile onto the wrong side of the road, thus excluding the possibility of non-negligent skidding as the proximate cause. This requires a new trial.

Section 512.160(3), V.A.M.S., declares that no new trial shall be ordered as to issues in which no error appears. The defendant has raised no issue concerning the amount of plaintiff’s verdict, so the damage issue need not be retried. Mullen v. St. Louis Public Service Co., Mo., 389 S.W.2d 838 [6], The issue of defendant’s responsibility for the conduct of its driver was properly tried below, and defendant’s challenge to the sufficiency of the evidence on that issue has been denied here. Hence, the issue of agency need not be retried. Bramblett v. Harlow, Mo.App., 75 S.W.2d 626 [17-18]; Brown v. Shield Fire Ins. Co., Mo.App., 260 S.W.2d 337 [3].

The judgment will be reversed and the cause remanded for trial on the sole issue of whether defendant’s driver, Lawrence Langenecker, negligently caused plaintiff’s injuries. The verdict in favor of plaintiff for $2,000 should be held in abeyance pending trial on the issue of the driver’s liability.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the judgment is reversed and the cause is remanded for trial on the sole issue of whether defendant’s driver, Lawrence Langenecker, negligently caused plaintiff’s injuries. The verdict in favor of plaintiff for $2,000 shall be held in abeyance pending trial on the issue of the driver’s liability.

ANDERSON, P. J., WOLFE, J., and MICHAEL F. GODFREY, Special Judge, concur.


author: CHARLES M. ALLEN, Special Commissioner.

text:
    Sarah Cain EATON, Administratrix of the Estate of Forest L. Eaton, Jr., Appellant, v. Alberta SWINFORD, Administratrix of the Estate of Hugh Swinford, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.
    Rehearing Denied March 8, 1968.
    Guy K. Duerson, Jr., Berea, G. Murray Smith, Jr., Richmond, for appellant.
    Charles R. Coy, Richmond, Kelly Clore, Clore & Swinford, Pineville, for appellee.
   CHARLES M. ALLEN, Special Commissioner.

This appeal arises from the action of the trial court dismissing the complaint filed by the appellant following a pre-trial conference and stipulation. The action itself was for damages sustained by the estate of the decedent, Eaton, by reason of his death while riding as a passenger in an automobile which it is alleged was negligently operated by the decedent, Swinford, on or about the 11th day of October, 1963.

At the pre-trial conference the stipulation entered into between the parties recites that the automobile owned by appellee’s decedent and occupied by him and appellant’s decedent was involved in an accident on U. S. 421 in Madison County, Kentucky. It is stipulated that the automobile was headed south, left the road on its left, or east, side of the road, struck an enbankment and went over a cliff, and that both occupants were found outside and at least 20 feet from the car. The stipulation further recites that it is further contended that both occupants died as a result of the automobile wreck and were dead when their bodies were discovered on October 12. The stipulation recited that it was to be presumed for the purpose of having the court rule that Swinford was the driver of the automobile involved.

The trial court was of the opinion that negligence was never assumed and that since none of the occupants survived and there were no eyewitnesses, the doctrine of res ipsa loquitur did not apply and hence that appellee was entitled to a directed verdict.

In the case of Wireman v. Salyer, Ky., 336 S.W.2d 349 (1960), appellee recovered a verdict of $5,000 for damages sustained when a truck in which she was riding left the highway and turned over. The truck belonged to the appellant and was driven by his son. The only evidence as to the accident was the testimony of the ap-pellee. She said that all she knew was that the truck just left the road and went over through a field and turned over. She estimated its speed at 35 or 40 m. p. h. This court stated that since in the ordinary course of things a motor vehicle under the exclusive care and management of the driver does not run off the road if there is due care exercised or if there is no intervening cause, the happening gives rise to an inference (or, more accurately speaking, a re-buttable presumption) of negligence on the part of the driver; and this is sufficient to shift to the responsible party the onus of producing evidence to explain away the presumption. The court further stated that this was, of course, the application of the familiar res ipsa loquitur rule.

Other cases in Kentucky upholding the doctrine of res ipsa loquitur as applicable where the proof shows an automobile leaving the roadway are Vernon v. Gentry, Ky., 334 S.W.2d 266, 79 A.L.R.2d 1 (1960), and Ralston v. Dossey, 289 Ky. 40, 157 S.W.2d 739 (1941). For a discussion of the procedural effect of the plaintiff’s proof in res ipsa loquitur cases in general, see Bell & Koch, Inc. v. Stanley, Ky., 375 S.W.2d 696 (1964).

As stated in Cox v. Wilson, Ky., 267 S.W.2d 83, 44 A.L.R.2d 830 (1954), in order to invoke the res ipsa loquitur doctrine there must be the following three requirements :

1. The defendant must have had full management of the instrumentality which caused the injury;

2. The circumstances must be such that, according to common knowledge and the experience of mankind, the accident could not have happened if those having control and management had not been negligent ;

3. The plaintiff’s injury must have resulted from the accident.

Under the cited decisions all three of these requirements have been met in this case. It is true as appellee points out in his brief that Louisiana decisions are apparently to the contrary. We believe the Kentucky decisions to be sounder.

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

All concur.

OSBORNE, T., not sitting.


author: STEINFELD, Judge.

text:
    Val BAGBY et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1968.

      Charles M. Summers, Campbellsville, for appellants.
    Lester Spalding, Henry Boldrick, Lebanon, Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
   STEINFELD, Judge.

Val and Junior Graham Bagby were indicted on May 5, 19,67, and tried on May 19, 1967. They were found guilty respectively of willfully and maliciously shooting into a motor vehicle in violation of KRS 435.170(4) and aiding and encouraging said shooting in violation of KRS 435.-170(6). They were sentenced to ten years in the penitentiary. They appeal. We affirm.

On the night of March 10, 1967, or the early morning of March 11, 1967, the Bag-by brothers were returning to their home in Taylor County by way of Kentucky Highway 337 from a night of bar-hopping in Lebanon, Kentucky. They saw a tractor parked beside the road. It was occupied by Luther Vaughn, an old friend of both brothers.

K. C. Abel, owner of the Riverside Cafe, said that he had learned that Vaughn had left his tavern in such a condition that it was unsafe for him to drive so he set out to find him. Abel came upon the group, parked his 1966 Chrysler behind the Bagby car and flashed a light over the scene. The Bagby brothers took offense at this, apparently because the light had been shined in Junior’s eyes. Abel testified that a scuffle shortly occurred over the gun he carried for his protection. The Bagbys say that Abel shot at them as they approached his car. The result was that Junior was hit in the hand by a bullet. The Bagbys hurriedly returned to their 1956 Chevrolet and “took off” in the direction of their home.

A chase then followed, the details of which are disputed by the parties. The Bag-bys claim, and Abel denies that the Chrysler bumped the Chevrolet several times from the rear. Abel says that the Bagbys were pursuing him and he was trying to get away from them. Everyone agrees that before the escapade ended in a wreck of both cars, Val had shot out the rear window and hit the front grill area of Abel’s car with bullets from a rifle that was in the Bagby car. The reason they give for shooting at Abel’s car was to puncture the radiator, cause the car to heat up and enable them to escape.

On May 13, 1967, counsel for Bagbys served the Commonwealth’s attorney with notice that on May 19, 1967, the date set for the trial, he would move for a continuance because the testimony taken before the grand jury had not been prepared, therefore, he could not examine it. The motion was made and overruled after arguments were heard. Bagbys claim that this was error, but they admit that their attorney received the transcript three days before the trial. They rely on RCr 5.16(2) which in part provides “that any person indicted by the grand jury shall have a right to procure a transcript of any stenographic notes or recordings relating to his indictment or any part thereof by paying the prescribed fee therefor.”

To answer this contention the Commonwealth relies upon Amburgey v. Commonwealth, Ky., 415 S.W.2d 103 (1967) which holds that:

“RCr 5.16 does not require that the testimony of witnesses before a grand jury be taken and transcribed. In White v. Commonwealth, Ky., 394 S.W.2d 770, it was held that a defendant had no cause to complain of the overruling of his motion for a transcript of the stenographic notes of the testimony before the grand jury when no such notes were made.”

Citing Riordan v. Riordan, Ky., 252 S.W.2d 901 (1952) and Simpson v. Sexton, Ky., 311 S.W.2d 803 (1958) it argues that granting or denying a continuance is within the discretion of the trial court and that unless this discretion is clearly abused the appellate court will not disturb the ruling.

The Commonwealth also says that because of the failure of counsel for defendants to support the motion with an affidavit stating facts upon which the motion was predicated no complaint that the trial court did not give him more time is meritorious. It relies upon RCr 9.04; Click v. Commonwealth, Ky., 418 S.W.2d 415 (1967); Wagner v. Commonwealth, Ky., 355 S.W.2d 151 (1962) and Smith v. Commonwealth, 278 Ky. 384, 128 S.W.2d 590 (1939).

In Farris v. Evans, 289 Ky. 418, 158 S.W.2d 941 (1942) we said:

“* * * the whole argument boils down to the question as to whether or not the court abused a vested discretion in denying continuance. The rule is well settled that the court in ruling on such motions exercises a discretion, and it is only where this court is convinced of abuse a judgment will be reversed. Herrell v. Davenport’s Ex’x, 259 Ky. 514, 82 S.W.2d 506. In Overstreet v. [Citizens’ Union Nat.] Bank, 256 Ky. 653, 76 S.W.2d 641, 643, we wrote:
‘A motion for continuance is a matter that addresses itself to the sound discretion of the trial judge and appellate courts are reluctant to and will not interfere unless it is clearly made to appear that there has been an abuse of such discretion.’ ”

Wide latitude must be given to the trial tribunal in conducting the affairs of the court. Without an affidavit revealing facts which show to us that the trial court abused its discretion we will not declare that an error was committed. Wagner v. Commonwealth, Ky., 355 S.W.2d 151 (1962); Pennington v. Commonwealth, Ky., 371 S.W.2d 478 (1963).

Val admits the shooting and Junior admits that he operated the car. There was proof that Junior aided Val in his actions. They try to justify these actions on the claim of self-defense. The jury rather than this court is the trier of the facts. Proctor v. Com., Dept. of Highways, Ky., 412 S.W.2d 252 (1967); Com., Dept. of Highways v. Stocker, Ky., 423 S.W.2d 510 (decided January 12, 1968). It was its province to believe or disbelieve the testimony of the accused with respect to justification. Begley v. Commonwealth, 176 Ky. 796, 197 S.W. 448 (1917); Christie v. Commonwealth, 193 Ky. 799, 237 S.W. 660, 24 A.L.R. 599 (1922); Schuster & Chambers v. Commonwealth, 232 Ky. 171, 22 S.W.2d 586 (1929).

Bagbys urge reversal on the additional claim that the testimony of the prosecuting witness was incredible and full of contradictions so that it lacked the quality of probative evidence necessary for a conviction. They cite the following cases as supporting their contention that the verdict cannot stand. Richie v. Commonwealth, Ky., 242 S.W.2d 1000 (1951); Minix v. Commonwealth, 266 Ky. 801, 100 S.W.2d 825 (1937) and Holcomb v. Commonwealth, Ky., 280 S.W.2d 499 (1955).

They can find no comfort in the Richie and Minix cases because these two make it clear that when the defendant admits, or the undisputed proof shows, that the accused committed the offense, to support “his act on the ground of self-defense, it is incumbent upon him to convincingly establish that justification * * *” however, “* * * the sufficiency of the evidence (is) a question for the jury.” The Holcomb case stands for the proposition that if the defense is “* * * supported by uncontradicted evidence, it is the duty of the trial court to direct the acquittal of the defendant * * In the case now before us there is conflicting evidence. We have examined the testimony and find that the verdict of the jury is supported by sufficient evidence of probative value. Shepherd v. Commonwealth, 236 Ky. 290, 33 S.W.2d 4 (1930); McGahan v. Commonwealth, 257 Ky. 422, 78 S.W.2d 308 (1935); Hatton v. Commonwealth, Ky., 412 S.W.2d 227 (1967). We are therefore powerless to hold that the verdict of the jury was not justified.

The judgment is affirmed.

All concur.


author: CLAY, Commissioner.

text:
    BLUE DIAMOND COAL COMPANY, Appellant, v. Johnny PENNINGTON, Special Fund and Workmen’s Compensation Board, et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 2, 1968.

      Maxwell P. Barret, Reeves, Barret, Cooper & Ward, Hazard, for appellant.
    Denver Adams, Hyden, Stuart E. Alexander, Louisville, for appellees.
   CLAY, Commissioner.

This is a workmen’s compensation case in which the appellee employee sought disability benefits for the occupational disease of silicosis. The Board found against him. On appeal the circuit court set aside this order on the ground that the form of the award did not comply with KRS 342.275, and remanded the case to the Board.

The parties stipulated that appellee was an employee of appellant; that they were operating under the Workmen’s Compensation Act at the time the alleged disability occurred; and that the employee’s wage at that time was $24.25 per day for a five-day-week.

Two doctors testified that the employee had pneumoconiosis. Four doctors, including one appointed by the Board, testified the employee did not have pneumoconiosis or silicosis. After a hearing, the Board entered the following order or award in the form of a “Decision”:

“FINDINGS OF FACT
“1. As stipulated by the parties.
“2. Plaintiff is not affected by silicosis or any other form of pneumocon-iosis and has no compensable disability as the result of such disease.
“RULINGS OF LAW
“KRS 342.005; KRS 342.316.
“ORDER
“It is ORDERED by the full Board that plaintiff’s application for adjustment of his claim for compensation be, and the same is hereby, dismissed and denied.”

It is the contention of the employee, which was upheld by the circuit court, that this “Decision” does not comply with KRS 342.275, which provides in part:

“The award, together with a statement of the findings of fact, rulings of law and any' other matters pertinent to the question at issue shall be filed with the record of proceedings. * *

It is apparently the employee’s view that this statute mandatorily directs the Board to compile a formal and lengthy document, for what purpose we cannot imagine. On the contrary, the statute requires only those findings, rulings or other matters which are pertinent to the question at issue. Considering the nature of this case, the order or award was certainly adequate. In view of the stipulation, there remained only one fact in issue. That was whether the employee was disabled by reason of silicosis or other form of pneumo-coniosis. The finding on this issue was determinative of the controversy. What other findings or matters could be significant in support of the decision ?

Of course the stipulated facts could have been recited, but they were a matter of record. The ruling of law could have been in the form, “The plaintiff is not entitled to compensation under KRS 342.005 and KRS 342.316”, but these words add nothing to the statutory references.

The purpose of the statute is to have the Board record the relevant basic considerations upon which its ultimate decision rests. This is important to the parties, may be of benefit to the Board in the event the case is reopened, and is most helpful to a reviewing court. Unnecessary findings or recitations tend to defeat the objective. Even under this statute, simplicity is still a virtue.

We believe the trial court erred in vacating the Board’s order or award on this formal ground.

The judgment is reversed, with directions to confirm the order of the Board.

All concur.


author: MILLIKEN, Judge.

text:
    C. H. FARLEY, Appellant, v. BOARD OF EDUCATION OF PIKE COUNTY, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1968.
    Kelsey E. Friend, Friend & Mullins, Pikeville, for appellant.
    Jean L. Auxier, Pikeville, Joe Hobson, Prestonsburg, for appellee.
   MILLIKEN, Judge.

This appeal is from a judgment in an action brought by the Pike County Board of Education for a Declaration of Rights between the Board and C. H. Farley, Superintendent of Schools of Pike County.

The appellant, C. H. Farley, was elected Superintendent of Schools of Pike County and Secretary of the Board of Education for concurrent terms of four years, beginning July 1, 1962, and ending on June 30, 1966. Written contracts employing him for the respective terms were executed. However, on January 12, 1965, approximately eighteen months before the expiration of the terms just mentioned, the Board again elected Farley to be the superintendent of schools and secretary of the Board and entered into written contracts with him for four-year terms in each respective office beginning July 1, 1965, and ending June 30, 1969. On September 13, 1966, after the initial terms had expired on June 30, 1966, the Board met and unanimously approved the latter contracts of January 12, 1965.

It is the position of the Appellee Board that the latter contracts executed January 12, 1965, are void and unenforceable and it bases its case primarily on Board of Education of Pendleton County v. Gulick, Ky., 39S S.W.2d 483 (1966) and KRS 160.350. The pertinent part of the statute reads:

“Each board of education shall appoint a superintendent of schools whose term of office shall begin on July 1, following his appointment. The appointment may be for a term of one, two, three or four years. The board shall fix the salary of the superintendent at not less than $1,-200.00 per annum, to be paid in monthly installments. In the case of a vacancy in the office for an unexpired term, the board of education shall make the appointment so that the term will end on June 30.”

The Gulick case contained a fact situation somewhat similar to this one. There, the Board employed Gulick for a four-year term beginning July 1, 1961, and ending June 30, 1965. On June 6, 1964, a majority of the Board entered an order employing Gulick as superintendent for another four-year term beginning July 1, 1964, (precisely one year before the end of the first term), and terminating June 30, 1968. The court ruled that Gulick’s second term contract was unenforceable, holding that:

“Our question relates to the power of the board of education in the present case to change a term after it has once been established under legislative authority.”
******
“In the present statute, a choice is given in the matter of the length of term to be fixed, either one, two, three or four years. But once the length of the term has been fixed, the board loses control over the term thus created. Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26, 28 (1930) wherein it is said: ‘When a power is given and has been exercised, and the repository of the power has no further control over the subject, except to remove the appointee for cause, the appointing power is exhausted and may not be reconsidered. * * * Thus the appointment became complete, and the power of the board for the time being was exhausted.’ ”
******
“Finally, we conclude the board of education was without power to create a new term before the end of and out of the previous term. Under any other conclusion, it would be possible for a superintendent, by hook or crook, barter or trade, to secure the votes of a majority of the board members, splice terms, and perpetuate himself in office indefinitely, thereby defeating the right of the people to indirectly select this important officer.”

While the facts in Gulick and the case at bar have some resemblance, they do differ on at least two important points.

The first of these is that in Gulick,'the terms of two members of the board who voted to create a new term of office for the superintendent would have ended before the expiration of the initial term created. In the case at bar, the terms of the members of the Board who voted for Farley extended beyond the end of his initial term of office, and the same Board would have had full authority to give him another four-year term on June 30, 1966.

The other distinguishing feature between Gulick and this case is that the Board in Gulick did not ratify the second contract after the expiration of the first one as did the Pike County Board, which confirmed the latter agreement unanimously twenty-one months after making it and while the Board of that date had the authority to grant him a new contract..

We are not impressed with the materiality of the issue as to whether the Board’s action in granting the superintendent a new four-year term in January 1965 was a void or voidable act. What we are impressed with is that the Board, in September 1966 unanimously approved, ratified, confirmed and adopted that contract which will terminate on June 30, 1969. Under the governing statute, KRS 160.350, the Board had the obligation of appointing a superintendent at the end of the first four-year term on June 30, 1966, if the second four-year term was invalidly created.

Obviously under the belief that its action in January 1965 in granting Farley another four-year term in office to begin July 1, 1965, arid end June 30, 1969, was valid, the Board took no action in June 1966, when Farley’s first four-year term terminated, to select a superintendent for a new term in office and Farley continued to perform the duties of the office. When the Board realized that our 1966 decision in Gulick cast a shadow on the validity of its January 1965 action in giving Farley a new term to end on June 30, 1969, it promptly adopted what it had done in January 1965 as the basis or framework for continuing him in office until June 30, 1969, as it had intended to do when it undertook to grant him the latter four-year term. Thus the pivotal issue in this case is not whether the Board’s action in January 1965 was valid, but whether its action in September 1966 was valid.

We conclude that the Board’s September 1966 action was a proper exercise of its power to appoint a superintendent for a term of office and that the effect of the September 1966 action was to grant Farley a three-year term of office beginning July 1, 1966, and ending June 30, 1969. The fact that this was done in September instead of before the previous June 30, when it should have been done, did not preclude the Board from acting — from seeing to it that the Pike County school system had a superintendent to supervise' it. We conclude that Gulick does not govern the factual situation here encountered, because here the Board acted in September 1966, when it was entitled to act, and that its act amounted to giving Farley a three-year term in office beginning July 1, 1966.

The judgment is reversed.

All concur.


text:
    Lucille DORSEY et al., Appellants, v. Marcia Hutton McCASKILL, Appellee.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.
    As Modified on Denial of Rehearing Feb. 23, 1968.

      Lloyd A. MacDonald, MacDonald & Walton, Flemingsburg, for appellants.
    Marvin W. Suit, Flemingsburg, for ap-pellee.
   CLAY, Commissioner.

This is a suit for a declaration of rights with respect to the ownership of a house and lot in Flemingsburg. The Chancellor adjudged title in appellee. The appellants are heirs of Emma Emmons.

In 1943 the property was deeded to Myrtle McVey and Emma Emmons. The granting clause would have vested them with a fee simple title but the deed further provided as follows:

“It is the agreement and covenants of this Deed that if said parties of the Second Part (Myrtle and Emma) have not sold or conveyed said property at the time of the death of one of them, then in that event said property shall go to the survivor and if the survivor does not sell or convey said property before her death, then said property shall go in fee simple to Marcia Ann Hutton.”

Three years later Myrtle conveyed her undivided half interest to Emma. The latter died in 1962 without having conveyed the property.

It is the contention of appellants that the conveyance by Myrtle terminated the joint tenancy, eliminated any survivor-ship interests, and thereby extinguished the estate of Marcia Ann Hutton. The narrow question is whether Marcia’s estate could only be cut off by a conveyance or conveyances by both Emma and Myrtle (or by the survivor who acquired the other half interest). The chancellor answered that question in the affirmative, with which we agree.

It will be noted that the contingent remainder interest (or defeasible fee) of Marcia is conditioned upon the failure of the “parties” (Myrtle and Emma) to convey prior to the death of one, or the failure of the survivor to convey. It is manifest the grantor intended that the estates of both Myrtle and Emma be disposed of by them prior to ⅛⅛ death of the last one living or the remainder would go to Marcia. Without trying to confuse the issue by technical terminology, it could be said that the two initial grantees were conveyed only life estates with a power of appointment to defeat the interest of the remainderman. To accomplish this result, the power of appointment must be exercised by both grantees or the survivor. If Myrtle’s conveyance to Emma could be considered a proper exercise of the power by one of them (which is questionable), it did not fulfill the conditions which would cut off the fee simple remainder interest of Marcia.

Appellant relies upon Mills v. Taylor et al., Ky., 249 S.W.2d 779. In that case both parties who had an interest similar to that of Emma and Myrtle in the present case conveyed the property. That is the very thing that was not done in the present case and that is the vitally distinguishing feature.

It is perhaps true the grantor never contemplated the possible conveyance of one joint tenant to the other. However, the continuation or termination of the joint tenancy was not material to the grantor’s scheme. From the language used the grantor apparently intended that unless the estates of both Myrtle and Emma were disposed of (to third parties) prior to the death of the survivor, fee simple title was to vest in Marcia. The preceding estates were not so disposed of and therefore the latter’s interest was not defeated.

It is contended that since Myrtle is still living, she, as the survivor, may yet divest appellee of her defeasible fee by making a sale or conveyance of the property. We think it significant that though Myrtle was made a party to this suit, she asserted no claim and has not appealed from the judgment. It is apparent that when she conveyed her undivided one-half interest to Emma, she thereby relinquished all her rights, including such as she might have had as the survivor. Her conveyance vested Emma with all the interests in the property the same as if Emma had been the survivor. Therefore a sale or conveyance by Emma prior to her death (which did not occur) was the only contingency that would have defeated appellee’s title.

The judgment is affirmed.

All concur.


author: MONTGOMERY, Judge.

text:
    Paul Curtis WALKER, Petitioner, v. William GANT, Commonwealth’s Attorney, etc., Respondent. Earl Lester AUSTIN, Petitioner, v. William GANT, Commonwealth’s Attorney, etc., Respondent. James Joseph CLEMENS, Petitioner, v. William GANT, Commonwealth’s Attorney, etc., Respondent.
    Court of Appeals of Kentucky.
    Feb. 9, 1968.

      Paul C. Walker, pro se.
    Earl Lester Austin, pro se.
    James Joseph Clemens, pro se.
    Robert Matthews, Atty. Gen., Howard E. Trent, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MONTGOMERY, Judge.

Paul Curtis Walker, Earl Lester Austin, and James Joseph Clemens have each filed an original action in this court seeking to compel William Gant, Commonwealth’s attorney, Sixth Kentucky Judicial District, “to honor the rights of an accused to a quick and speedy trial or to release petitioner from any and all charges which said county may have against him, and to inform the Record Office of the Virginia State Penitentiary of their decision to withdraw the detainer warrant.” Each urges that his right to a speedy trial under the Sixth Amendment to the United States Constitution has been violated.

Each petitioner is presently confined in the Virginia State Penitentiary. The present status of each is taken from an exhibit filed with the response, to-wit:

“Earl Lester Austin, alias Earl Edward Anderson, was convicted December 12, 1966, of robbery (life), burglary (20) and abduction (10-10) in the Lynchburg City Corporation Court and given a total sentence of life and 60 years. He will be eligible for parole November 3, 1981.
“Paul Curtis Walker was convicted February 9 and April 6, 1967, of burglary (15), robbery (10), unauthorized use of car (1) and abduction (1-1) in the Lynchburg City Corporation Court and given a total sentence of 28 years. He has left to serve from a former conviction 2 years, 1 month and 24 days. He will be eligible for parole April 14, 1974.
“James Clemmons (sic), alias James Edward Parker, was convicted February 14, 1967, of robbery (15), burglary (10), grand larceny (1) and abduction (7½-7½) and given a sentence of 41 years. He has left to serve for escape from a former sentence 32 years, 5 months 16 days. He will be eligible for parole November 17, 1978.”

The petitioners are in the anomalous position of insisting upon a speedy trial in the Daviess Circuit Court from whose custody they have escaped twice by breaking jail. But for their insistence on fleeing, the Daviess Circuit Court, presumably, would have disposed of their cases. It is noted that each of their convictions in Virginia is after the date, May 3, 1966, of their alleged commission of the crime of armed robbery with which they were charged on May 11, 1966. Under the circumstances the petitioners have waived their right to a speedy trial. Barker v. Commonwealth, Ky., 385 S.W.2d 671.

In Chick v. Commonwealth of Kentucky, D.C., 140 F.Supp. 418, it was held that a prisoner serving a sentence in a Texas prison had no standing to ask for a speedy trial in a Kentucky court until he had satisfied the punishment inflicted on him by a Texas court, and that the transfer of the prisoner was a matter of cooperation between the two states and did not involve any right on the part of the inmate. In view of the escapes and the character of offenses for which the petitioners have been convicted, or are charged, there is a serious problem of security which the Virginia authorities might well resolve in favor of keeping the petitioners in the Virginia State Penitentiary. Further, the relief sought by petitioners cannot be obtained against a Commonwealth’s attorney, a nonjudicial officer, under Kentucky Constitution Section 110. Commonwealth ex rel. Breckinridge v. Wise, Ky., 351 S.W.2d 491.

Mandamus denied.

All concur.


author: DAVIS, Commissioner.

text:
    Robert ROGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 9, 1968.

      J. B. Johnson, Jr., Williamsburg, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for appel-lee.
   DAVIS, Commissioner.

Having been convicted of possessing alcoholic beverage for sale in local option territory, Robert Rogers prosecutes this appeal by appropriate motion, attacking the sufficiency of the affidavit in support of the search warrant and asserting prejudicial misconduct of the trial judge.

Omitting the caption and other irrelevant portions of the affidavit, we quote so much of it as constitutes the basis of the claimed error: “The affiant states that he bases the aforesaid belief on his own knowledge and observations made by him that this affiant on March 17, 1967 at 11:00 A.M. saw a man coming from the above premises, with a brown paper bag, which appeared to be a 6 pack-beer. The man also appeared to be intoxicated — affiant knows said man as a Mr. Mobley. The af-fiant says Robert Rogers has a reputation as a bootlegger and he has some beer, whiskey and other alcoholic beverages now in his house or premises adjacent thereto on today for the purpose of sale, gift or barter in violation of the Local Option Law.”

The applicable principles respecting issuance of a search warrant have been stated frequently. Kentucky Constitution, Section 10, provides in part that “ * * * no warrant shall issue to search any place, * * * without probable cause supported by oath or affirmation.” The vital question before us is whether the quoted affidavit was sufficient to afford basis for the constitutionally required “probable cause.” In our view, it was.

Appellant relies on Elliott v. Commonwealth, 216 Ky. 270, 287 S.W. 726, in which a closely similar question was presented. In Elliott the court referred to Goode v. Commonwealth, 199 Ky. 755, 252 S.W. 105, wherein it was recited that the usual test of sufficiency of an affidavit for a search warrant is whether it is so drawn as to support a prosecution of the affiant for false swearing in the event its allegations are proven false. We have other cases reaffirming that test, but in light of recent developments in the law, we question whether they are still sound.

In Henson v. Commonwealth, Ky., 347 S.W.2d 546, we specifically renounced the “ultimate fact” theory as a basis for deducing “probable cause” from an affidavit for a search warrant. That decision has been followed in Smallwood v. Commonwealth, Ky., 349 S.W.2d 830; Scamahorne v. Commonwealth, Ky., 376 S.W.2d 686; and other opinions. It would appear, therefore, that the basis for testing the sufficiency of the affidavit by whether its author could be sued or prosecuted for false swearing no longer exists. Reference is had to Gossett v. Commonwealth, Ky., 426 S.W.2d 485, wherein we recognized the more modern guideline laid down in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. We adhere to the principles therein enunciated and have no difficulty in concluding that the allegations of the affidavit under consideration were adequate to support a finding of “probable cause” by the issuing magistrate. If this case should be deemed “doubtful or marginal,” the resolution of that doubt is tipped in favor of the warrant. To the extent that Elliott v. Commonwealth, 216 Ky. 270, 287 S.W. 726, may be deemed in conflict with this opinion, it is overruled.

The Commonwealth announced closed before having proved that Whitley County is local option territory as prescribed by KRS Chapter 242. At that point appellant moved the court for a directed verdict of acquittal, which was denied. Thereupon the appellant announced closed. Then it was, according to the brief for the appellant (and not denied in the appellee’s brief), that the presiding judge whispered to the Commonwealth’s attorney that the latter had inadvertently failed to prove the existence of local option in Whitley County. After receiving this information from the judge, the prosecuting attorney moved the court for permission to reopen the case, and the motion was sustained over the appellant’s objection. Then the technical proof of existing local option was introduced. Appellant was then permitted to reopen his case.

We are committed to the proposition that the trial judge shall refrain from partisan participation in litigation over which he presides. Merritt v. Commonwealth, Ky., 386 S.W.2d 727; Preston v. Commonwealth, Ky., 406 S.W.2d 398. It remains to determine whether the alleged actions of the trial judge were of such a nature as to warrant reversal of this conviction. We conclude that they were not.

As recently as Patterson v. Commonwealth, Ky., 411 S.W.2d 940, we held that the failure of the prosecution to show that the offense charged had occurred in dry territory was fatal. Upon re-examination of that question, we are persuaded that the rule followed in Patterson, and many cases prior to it, is unrealistically strict and should no longer be followed. Cf. Eagle v. Cox, 268 Ky. 58, 103 S.W.2d 682; Lord v. Delaware Liquor Commission, 2 Terry 154, 41 Del. 154, 17 A.2d 230 (1941); Newman v. State, 248 Ala. 486, 28 So.2d 313.

In 29 Am.Jur.2d, Evidence, Section 76, Pages 106-108, it is said in pertinent part:

“In general, the courts will take judicial notice of matters of general or common knowledge concerning the political rights and welfare of the public, and of the political history of the United States and of the several states. The courts have taken judicial notice of the dates of general elections provided by general statutes of the state; the fact that primary elections are a fundamental part of our political system; the qualifications prescribed from time to time for electors; the existence of various political parties and the manner in which candidates are selected; the vote at a particular election and the general result thereof, including the successful candidates ; the political affiliations of prominent office holders; the relative strength of the various political parties in a certain locality; the fact of a contest over the results of an election; and the fact that public officers are not above accusations of corruption in their official duties.
“The national flag and seal of every state or sovereign recognized by the executive power of the United States will be judicially noticed by every court in the Union without proof. However, judicial notice will not be taken of the seal of a newly established foreign country which has not yet been recognized by the United States.”

Of like import is the statement in 31 C.J.S. Evidence § 51, page 1044, where it is written: “Matters of general law or common knowledge relating to elections, including elections on propositions, and to appointments will be judicially noticed.”

It seems anomalous that the Whitley Circuit Court may judicially note the national flags of Tanzania and Trinidad & Tobago, as well as the seal of Surinam, while that same court must profess total ignorance of the result of a public election in the county where it sits, involving so important a matter as local option. We think it stultifies the dignity of the court to require proof of such a generally known public matter, particularly in situations where prosecutions for violation of the local option law recur with monotonous regularity at each term of the court. In these _circumstances, it is our view that the action of the trial court in prompting the Commonwealth’s attorney was not prejudicial. RCr 9.24.

Henceforth, absent some special issue as to the existence of local option, the trial court will take judicial notice of the county’s status in this respect. It follows that Patterson v. Commonwealth, Ky., 411 S.W.2d 940; Ramsey v. Commonwealth, 314 Ky. 702, 236 S.W.2d 930; Click v. Commonwealth, Ky., 247 S.W.2d 371; and cases of like import are overruled to the extent they may be in conflict herewith.

The motion for appeal is overruled.

All concur.

      . Cf. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503.


author: CULLEN, Commissioner.

text:
    Jerry Franklin PARKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 9, 1968.
    Jerry Franklin Parks, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appel-lee.
   CULLEN, Commissioner.

Jerry Franklin Parks filed a motion in the Daviess Circuit Court that a pending indictment against him be dismissed because the state had failed to afford him a speedy trial. The court did not specifically rule on that motion but entered an order that proceedings under the indictment be stayed until such time as Parks’ competency has been restored. Parks has undertaken to appeal from that order.

Because it appears to us that Parks could not prevail in any event, we shall not decide the question, raised by a motion to dismiss the appeal, whether an appeal will lie from an order of the kind here involved or whether the remedy, if any, is by original proceeding in this court under Section 110 of the Kentucky Constitution.

The indictment by the Daviess County Grand Jury was on November IS, 1966. However, prior to that date Parks was taken into custody in Jefferson County by federal officers on a federal charge and since that time has been in federal custody. The record shows that he was adjudged by the federal court to he mentally incompetent to stand trial and was committed to the Medical Center for Federal Prisoners in Springfield, Missouri, where he still is confined.

There is no showing that Parks, prior to moving for dismissal of the Kentucky indictment, ever moved for a trial of that indictment or that he ever has been or now is available for trial and capable of being tried. Absent such a showing Parks cannot complain of the failure to try him. See Ruip v. Knight, Ky., 385 S.W.2d 170; LaVigne v. Commonwealth, Ky., 398 S.W.2d 691; Ruip v. Commonwealth, Ky., 415 S.W.2d 372; 21 Am.Jur.2d, Criminal Law, secs. 249, 250, 252, pp. 284 to 288.

The order undertaken to be appealed from shall stand affirmed.

All concur.


author: PALMORE, Judge.

text:
    Norman R. HOPWOOD et al., Appellants, v. CITY OF PADUCAH, Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 9, 1968.

      William E. Scent, David R. Reed, Padu-cah, for appellants.
    H. Warren Middleton, Earle T. Shoup, Paducah, for appellees.
    Charles J. Schear, Newport, amicus curiae atty. for Ky. State Lodge Fraternal Order of Police.
   PALMORE, Judge.

Paducah is a city of the second class. KRS 81.010. Its police and firemen are under the civil service protection of KRS 95.440 et seq. KRS 95.495 limits the hours of work for policemen to eight hours per day for five days each week except in the event of emergency. In April of 1966 the city legislative body enacted an ordinance providing in substance that from and after June 1, 1966, no member of the police department would be permitted to engage in any other occupation or employment for more than four hours during any work day, nor more than 16 hours within the five working days of any week. Members of the police department, some of whom were and are regularly engaged in “outside work” exceeding the prescribed limits, brought suit against the city challenging the validity of the ordinance. The circuit court held it valid and sustained a motion to dismiss the action. This appeal followed.

The complaint alleged that disciplinary action would be inflicted for violation of the ordinance, and it sought injunctive relief and a declaration of rights. The grounds on which the ordinance is claimed to be invalid are that it violates Const. §§ 1, 2 and 19 and conflicts with various sections of KRS Chapter 95 beginning with KRS 95.430.

The constitutional objections are that the ordinance deprives the members of the police department of the rights to enjoy life and liberty and to acquire and protect property (Const. § 1), is arbitrary and unreasonable (Const. § 2), and impairs their vested rights (Const. § 19). Corollary to the § 19 argument they contend also that the ordinance is an ex post facto law in violation of KRS 446.110.

The statutory objections have been reduced to one point, that the ordinance is not an authorized “rule” within the meaning of KRS 95.450(1), which prohibits disciplinary action, other than temporary suspension, “for any reason except inefficiency, misconduct, insubordination or violation of law or of the rules adopted by the city legislative body” etc. (Emphasis added.) Drawing an analogy to the rule of ejusdem generis, the appellants contend that in regard to off-duty activities the rule-making authority of the city is confined to the areas of “inefficiency, misconduct, insubordination or violation of law.”

With respect to this latter argument, it will be noted that the statute enumerates five grounds for disciplinary action. It says nothing about on-duty and off-duty hours, and there is nothing in its terminology to suggest that four of these grounds apply around the clock but the fifth can apply only to on-duty conduct. If that is the effect, it must result from some reason or principle to be found outside the statute. KRS 95.430(2) empowers the city legislative body to ordain and enforce such “rules for the government of the departments as it may deem expedient.” KRS 95.440(4) and 95.470(2) make comparable references to “rules of the department.” We construe the statutes as authorizing the legislative body to prescribe rules and regulations that are not unlawful, and we find no statutory law that makes the ordinance in question unlawful.

To the extent that punitive actions may result from violation of the ordinance there can be no problem of an ex post facto effect. City of Louisville v. Thompson, Ky., 339 S.W.2d 869, 873 (1960). KRS 446.110 simply is not involved. However, the possibility that the ordinance may impair vested rights presents a more serious question.

In holding that there is nothing fundamentally unsound about an “anti-moonlighting” ordinance the Superior Court of New Jersey dismissed the vested rights argument with such comments, all documented by case law of that state, as follows : “From early times our courts have declared that a police officer holds an office, and that a contractual relation does not exist between a municipality and its police officers. * * * A policeman is a public officer concerned with the administration of public duties. * * * There is no property right in a public office. * * Hence plaintiffs have no vested rights or contractual obligations that might be impaired.” Isola v. Borough of Belmar, 34 N.J.Super. 544, 112 A.2d 738, 744 (1955).

We cannot travel that path. In this state a civil service or similar job status is regarded as a vested right or, at least, is given the same protection as if it were. Thus in City of Owensboro v. Board of Trustees, 301 Ky. 113, 190 S.W.2d 1005, 1008 (1945), in which the city had repealed a civil service ordinance the court said, “It must be admitted * * * that the repeal of it * * * did not and could not affect the vested rights and the inviolable contract of the employees who became such, and qualified under the Civil Service Ordinance within its operative life.”

The question we have to face is not whether the appellants have “vested rights,” but whether the ordinance unlawfully impairs their rights. Cf. Const. § 19.

As we have seen, the statutes expressly contemplate the promulgation of rules and regulations by the city legislative body and by the police department itself. Even without this explicit statutory recognition, it would hardly be suggested that an employe entering a civil service status could not be affected by future regulations relating to personnel and operations. Any way this problem is approached, the answer must lie in whether the particular regulation is so unreasonable as to be arbitrary (cf. Const. § 2), and in this context it is not the province of a court to judge the wisdom of the regulatory authority. Our concern is whether it has exceeded its power.

The courts of those states in which the question has arisen have quite uniformly held this type of governmental action to be reasonable and valid. “While we have not made an exhaustive study of the legislation and ordinances of other states, we find that similar limitations upon the outside' activities of public employes are relatively common. The plaintiffs have not cited, nor have we found, a case in which such a statute or ordinance has been stricken on constitutional grounds.” Croft v. Lambert, 228 Or. 76, 357 P.2d 513, 518, 88 A.L.R.2d 1227, 1234 (1960). As the subject is fully discussed in an annotation at 88 A.L.R.2d 1235 we shall not attempt a cross-country review of the decisions here. In some instances ordinances or regulations prohibiting any outside employment whatever have been upheld. Cf. Croft v. Lambert, supra. According to the general rule, “regulations forbidding or regulating outside occupations of policemen or firemen have usually been sustained as valid, the courts generally taking the view that the duties of such officers are peculiarly connected with the public health and safety, so that it is particularly important that they not be subject to outside interests which might conflict with their official duties by diluting their energies, occupying time during which they are at least potentially on call, or involving themselves in situations where they might be motivated to neglect or subvert their official functions.” Annotation, 88 A.L.R.2d 1235.

What we have said disposes directly of all of the constitutional and statutory points except for Const. § 1. The ordinance certainly does not impair any of the rights vouchsafed by that section. It does restrict, by placing certain limitations upon, the right of the appellants to serve as policemen for the City of Paducah, and we hold that these limitations are not unlawful. But it neither forces them to serve nor prohibits them from doing whatever they wish to do if they choose not to serve.

We are not blind to the economic facts that give rise to the widespread practice of moonlighting by police and firemen. The Court of Appeals of New York in Flood v. Kennedy; 12 N.Y.2d 345, 239 N.Y.S.2d 665, 190 N.E.2d 13, 15 (1963), suggested that “the remedy is not by removing necessary controls but by providing more adequate compensation.” History is replete with the frequent treks of police and firemen to the state legislature seeking and often gaining statutory regulation of hours and wages. This is a natural course of events when municipal government is financially shackled, and it provides some insight into the much-bewailed shift of government from the local to state and national levels. Wherever the answer to the problem is to be found, it is not in the courts but in the legislative arm of the city or the state.

One other point made by the appellants is that because they sought a declaration of rights the judgment should have declared their rights instead of dismissing the complaint. Cf. Clay’s Kentucky Practice, CR 57, Comment 3. (Vol. 7, p. 190). Technically that is so, but under the circumstances of this particular case we do not perceive what practical difference it would make.

The judgment is affirmed.

All concur.


author: NOLAN CARTER, Special Commissioner.

text:
    Burton ARMES, Administrator of the Estate of Lewis Armes, Deceased, Appellant, v. Betty Lou ARMES, Appellee. Burton ARMES, Administrator of the Estate of Lewis Armes, Deceased, Appellant, v. Dorothy Faye MARCUM, Appellee.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    As Modified on Denial of Rehearing Feb. 23, 1968.

      Richard C. Ward, Willis W. Reeves, Reeves, Barret & Cooper, Hazard, for appellant.
    J. Robert Morgan, Cordell H. Martin, Hindman, for appellees.
   NOLAN CARTER, Special Commissioner.

On Christmas night, December 25, 1962, Lewis Armes, at the request of his daughter-in-law, appellee Betty Lou Armes, drove her in his truck from her home in Anco, Knott County, to a store at Sassafras, also in Knott County. On the way, they stopped and picked up Lewis Armes’ daughter, ap-pellee Dorothy Marcum, and her two-month old baby. They arrived at the store at about 9:30 or 10:00 p.m., and found the store closed. They then decided to drive north on Highway 15 toward Vicco. The truck refused to start, and with the aid of a man identified only as “Elwood”, who lived across the road from the store, the truck was backed into the highway and headed north. Elwood was called by his wife and returned home. As David (Kendrick) Combs, accompanied by a girl companion, drove his car along the highway headed south, he was flagged by Lewis Armes. He stopped his car approximately opposite the Armes truck on the traveled portion of the highway and in his lane, with his headlights burning. He alighted from his car to help push the truck, telling his companion to drive his car off the highway. Before his car was driven off the highway, and while David was helping to push the truck, a car driven by Donald Adams northwardly along the highway struck the rear of the Armes truck, and Lewis Armes, died as a result of the injuries he received, and appellee, Betty Lou Armes, was injured.

At the time of the collision, David Combs was at the left rear of the truck and managed to jump clear. Dorothy Marcum was at the steering wheel with her baby on the seat beside her. She was also injured. Admittedly, no flares, lanterns or other signals were placed upon the highway to give notice of the presence of the Armes truck, nor was anyone detailed to flag approaching traffic. There is a conflict of evidence as to whether the rear lights of the truck were on.

Appellee Betty Lou Armes and appellee Dorothy Marcum filed separate suits against the estate of Lewis Armes, deceased, David (Kendrick) Combs and Donald Adams, to recover for their injuries. The cases were consolidated and tried together. The jury returned a verdict for each appellee in the amount of $5,000.00 against the estate of Lewis Armes, but awarded nothing against the other defendants. Judgment was entered upon the verdict.

Appellant, the estate of Lewis Armes, filed motion for judgment notwithstanding the verdict, or in the alternative for a new trial. The motion was overruled, and appellant prosecutes this appeal.

Upon appeal, two grounds are urged for reversal: (1) “Even if truck owner was negligent in pushing his stalled truck on the traveled portion of the highway without giving warnings, were his alleged statutory violations the proximate cause of the collision which occurred when an oncoming motorist struck the rear of the stalled truck, causing his death and plaintiffs’ injuries?” (2) Did the two guest passengers who voluntarily assisted the truck owner to start the truck, thereby placing themselves in a position of ppril, assume the risk, or were they guilty of contributory negligence as a matter of law, barring their recovery for resulting injury?

(1) It is urged on behalf of appellant that the placing by Lewis Armes of his stalled truck on the highway, and his failure to place flares or other signals as required by statute, and his failure to detail anyone to flag approaching traffic, and his failure to have his taillights burning, if he did so fail, were not the proximate cause of the accident; that these acts and failures on the part of Lewis Armes merely created the condition or occasion of the injury, but were not a proximate cause thereof; and that the proximate cause of the collision was the defendant Donald Adams’ negligence which culminated in the collision.

A very thorough discussion of the precise question with which we are confronted is contained in Hines, et al. v. Westerfield, Ky., 254 S.W.2d 728 (1953). In that case, the court said:

“The determination of proximate cause has always been a difficult matter for the courts, particularly when there has been an intervening act or force between what is charged as the original negligent act and the resulting injuries. The rule for determination of proximate cause is universally recognized, but difficulty arises in an application of the rule to the facts of every case. It is elementary that if a cause is remote and only furnishes the condition or occasion of the injury it is not the proximate cause thereof. To be proximate, a cause is not required to be the last link in the chain of events. An act or force may intervene without breaking the chain of cause and effect, so long as the intervening force or act is not the superseding cause. A superseding cause relieves the original negligent actor from liability irrespective of whether the antecedent negligence was or was not a substantial factor in bringing about the injury. The most perplexing problem in connection with the subject of proximate cause is the determination under the facts of each case of whether or not the intervening force or act is the superseding cause. * * *
“If the original negligent act set in force a chain of events which the original negligent actor might have reasonably foreseen would, according to the experience of mankind, lead to the event which happened, the original actor is not relieved of liability by the intervening act. If, however, the ultimate injury is brought about by an intervening act or force so unusual as not to have been reasonably foreseeable, the intervening act is considered as the superseding cause and the original actor is not liable.”

See also Bosshammer v. Lawton, Ky., 237 S.W.2d 520 (1951).

Applying this test to the facts of the instant case, we have reached the conclusion that the placing of a stalled truck upon Highway 15 in the dead of night, and the failure to place flares or other devices upon the highway as required by KRS 189.070, and the failure to have someone flag approaching traffic upon the highway at the time, according to the experience of mankind, might reasonably have been foreseen as acts which would lead to the collision which occurred. Collisions with automobiles and trucks or other vehicles stalled upon the traveled portion of highways are frequent. The legislature recognized the foreseeability of such collisions in enacting KRS 189.070. We, therefore, conclude that Lewis Armes’ actions in placing his stalled truck upon the highway, and his failure to place flares or other devices to give notice of the fact, and his failure to have someone flag approaching traffic, plus his failure, if he did so fail, to have his taillights burning, were a proximate cause of the collision.

(2) Going now to the second ground relied on for reversal, in the case of Parker v. Redden, Ky., 421 S.W.2d 586, the opinion in which was handed down on June 23, 1967, this court abolished assumption of the risk as a separate defense and broadened the doctrine of contributory negligence to include it. This court now adheres to the rule that “if there was no substantial necessity or urgency for the plaintiff’s subjecting himself to the risk, or if the risk was one that easily could have been eliminated before the plaintiff took action, the plaintiff who took the risk must be considered as a matter of law to have acted unreasonably and he will not recover. On the other hand, if there was an urgent necessity for the plaintiff to incur the risk, such as to save a life, and if the risk could not easily have been eliminated, there is no reason why the damage suffered by the plaintiff should be borne by him rather than by the defendant who negligently created the risk * * * [I]t naturally follows that the question of whether (plaintiffs) should be barred from recovery in the instant case is one of contributory negligence—failure to observe the standard of care of the ordinarily prudent man (or a statutory standard of care)

We think, when all the circumstances are considered in this case, the ap-pellees had a justifiable reason for their actions in assisting in the effort to start the stalled truck. Here were two women marooned in a stalled truck miles from their home on a winter night with a two-month old child, with no other means at hand or easily obtainable to return them to their homes. Such a situation measured by the ordinarily prudent person test, admits of but one conclusion; that is, that the risk appel-lees took may have been a reasonable one, and should not bar their recovery as a matter of law. This issue was submitted to the jury which found them free of negligence.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, OSBORNE, PALMORE and STEIN-FELD, JJ., concur.

HILL, J., not sitting.