text:
    KANSAS CITY, Missouri, Appellant, v. Rose Marie BRADLEY, Respondent.
    No. 24752.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      George L. DeBitetto, Asst. City Counselor, Kansas City, for appellant.
    Louis Wagner, Kansas City, for respondent.
   HOWARD, Presiding Judge.

This is an appeal by the City of Kansas City, Missouri from the action of the Circuit Court of Jackson County discharging respondent on two charges of selling cigarettes without a tax stamp thereon evidencing payment of the City cigarette tax. The two charges originated in the Municipal Court of Kansas City, Missouri, and on appeal, were tried together in the Circuit Court sitting without a jury. The parties will be referred to as they appeared below.

A sergeant for the Kansas City, Missouri Police Department testified that on April 17, 1966, he stopped at the Country Club Market located at 5636 Troost, and purchased some groceries and two packages of Winston cigarettes. He gave one package to his wife and opened the other package himself. As he opened his package of cigarettes, he noted that there was no stamp or meter machine impression denoting the payment of cigarette tax. He examined the package which he gave to his wife, before she opened it, and observed there was no tax stamp or meter machine impression on this package of cigarettes. The witness smoked all of the cigarettes from his package and the wife from her package. The two empty containers were offered in evidence as exhibits 1 and 2. (Defendant’s objection was never ruled, but the exhibits were considered as evidence by the court.) No cigarettes or tobacco were contained in the packages as offered and each package had been opened by completely removing the top of the cellophane outer wrapping of the package and by removing the foil and paper covering of part of the top of the cigarette package itself. Otherwise, the two packages are complete. Each recites that it contains “20 Class A Cigarettes” being “King Size Winston Filter-Cigarettes” with “Full Rich Tobacco Flavor”. Each package bears the warning required by federal law: “Caution: Cigarette Smoking May Be Hazardous to Your Health”. Each package recites that the contents were manufactured by “R. J. Reynolds Tobacco Co. Winston-Salem, N. C, U.S.A.”.

It was admitted that defendant owned and operated the Country Club Market and was the holder of the merchant’s license and license to sell cigarettes issued by the City of Kansas City, Missouri. The sergeant positively testified that the cigarettes which he took out of the package were regular Winston cigarettes which he was accustomed to smoke. The testimony was that city tax stamps or meter machine impressions were ordinarily placed on the bottom of the outer cellophane wrapper but that sometimes they were placed on the top. As to each exhibit, the bottom of the cellophane wrapper was intact and there was no stamp or meter machine impression on the bottom of either wrapper. The same is true of the sides of each wrapper. However, the top of the cellophane wrapper of each exhibit had been completely removed and destroyed and the exhibits did not show whether or not there had been a stamp or meter machine impression on the tops. This was shown only by the testimony of the police sergeant as heretofore set out.

The City introduced the applicable ordinances and before plaintiff had formally rested its case, counsel for the defendant moved for a judgment of acquittal “on the ground that the City has failed * * * to prove the defendant guilty beyond a reasonable doubt”. Counsel for defendant supported this motion with a short argument and counsel for the City responded thereto emphasizing its contention that the City had offered sufficient evidence to establish the corpus delicti. Immediately thereafter, the following appears of record:

“THE COURT: I have a strong suspicion that probably the cigarettes were sold without the stamp, but I can’t take these mutilated packages alone to prove the defendant guilty beyond a reasonable doubt. The defendant is discharged.
“MR. DE BITETTO: Your Honor, the City will ask for statements of fact and conclusions of law, if we may,
“THE COURT: It’s very simple. You failed to prove this person guilty beyond a reasonable doubt, offering in evidence mutilated packages only, with no cigarettes in them, when it would have been very simple to have produced the original packages with the cigarettes. These could have come from any place. I have a strong suspicion that there was maybe unstamped cigarettes out there, but you can’t convict anyone on this evidence.”

Thereafter, plaintiff filed its motion for a new trial which was by the court overruled and plaintiff has duly appealed to this court.

Plaintiff’s central contention on this appeal is that “the Court erred in finding that plaintiff had not proven defendant guilty beyond a reasonable doubt”. Defendant was charged with violation of that portion of Section 13.0S0, Revised Ordinances of Kansas City, Missouri, 1956, which reads as follows:

“Sec. 13.050. Sale at retail without tax stamps; counterfeiting or altering stamps; tampering with meter machines, etc. — No person shall possess, sell or offer for sale or display for sale at retail any cigarettes unless on the container thereof there has been affixed a stamp or authorized meter machine impression thereof evidencing the payment of the tax; * * * ”

Plaintiff contends that the ruling of the trial court came on a motion for judgment of acquittal and that on such motion, the evidence of the plaintiff must be taken as true and, therefore, the trial court erred in discharging defendant at that point in the trial. Plaintiff relies on such cases as City of St. Louis v. Diechman, Mo.App., 135 S.W.2d 6. If this were a jury tried case, plaintiff’s contention would probably require a reversal. From the evidence as heretofore summarized, it would appear that plaintiff did make a prima facie case entitling it to go to the jury. However, in this jury-waived case, it is apparent that the substance of the defendant’s motion, although made in the form of a motion for judgment of acquittal, was in fact a submission of the issues on the merits to the court as the trier of fact. In any event, we will so consider it because it would accomplish nothing to reverse this case and require a new trial for the technical reason that the court erred in sustaining the motion for judgment of acquittal when it is apparent that if it had properly overruled such motion, it would then have reached the same conclusion on the merits when the case was submitted to the court sitting as the trier of fact without a jury. A close study of this transcript and the arguments submitted by counsel on both sides convinces us that the issue was in fact submitted to the court as the trier of fact at the close of all of the evidence in the case.

On such submission, it is apparent that the court decided the issue as the trier of fact and that it arrived at its conclusion to discharge the defendant because the plaintiff had not carried its burden of proving defendant guilty beyond a reasonable doubt. This determination of the trial court on the merits has the force and effect of the verdict of a jury, as is specifically provided by Criminal Rule 26.01 (b), V.A.M.R. See City of St. Louis v. Meixner, Mo.App., 285 S.W.2d 50.

In the trial court’s determination as the trier of fact, the matter of credibility must of necessity loom large. Even though the evidence is uncontradicted, the trier of fact is not required to believe all of such uncontradicted testimony, even in civil cases. See Mueller v. Mueller, Mo., 318 S.W.2d 365. Although we are here dealing with a civil case, it is quasi criminal in nature and the Rules of Criminal Procedure apply. In such cases, the City is required to prove the defendant’s guilt beyond a reasonable doubt. This was pointed out in City of St. Louis v. Langeneckert, Mo.App., 210 S.W.2d 736, 1. c. 738, where the court said:

“The burden was on the plaintiff in this case to produce evidence of such a convincing nature as to convince the trier of facts that defendant was guilty of the offense charged beyond a reasonable doubt. Town of Glenwood v. Roberts, 59 Mo.App. 167; King City v. Duncan, 238 Mo. 513, 142 S.W. 246; City of Stanberry v. O’Neal, 166 Mo.App. 709, 150 S.W. 1104; Grant City v. Simmons, 167 Mo.App. 183, 151 S.W. 187.”

In such a situation, the defendant can stand mute and thereby require the City to prove his guilt by evidence of all of the essential elements of the offense charged, beyond a reasonable doubt. See State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077, and State v. Martin, 349 Mo. 639, 162 S.W.2d 847. The matter of credibility is for the trier of fact and unless and until the trier of fact is convinced of defendant’s guilt beyond a reasonable doubt, the plaintiff is not entitled to a verdict of guilty. See State v. Helpley, Mo., 279 S.W. 701; State v. Bartlett, 359 Mo. 881, 224 S.W.2d 100; and State v. Wynn, Mo., 391 S.W.2d 245.

It is apparent that the evidence adduced by the plaintiff city did not convince the court sitting as the trier of fact that defendant was guilty beyond a reasonable doubt. The court specifically stated that the evidence raised a strong suspicion but did not convince him beyond a reasonable doubt. Plaintiff cites cases wherein the court was considering the issue of whether or not the evidence was sufficient to sustain a verdict of guilty and contends that since its evidence met the standards enunciated in these cases that it was entitled to a finding of guilt as a matter of law and that the trial court erred in discharging defendant. This argument of plaintiff is fallacious. Although the evidence in this case no doubt would have sustained a verdict of guilty, it does not follow that the city is entitled to such a verdict as a matter of law because the question of credibility is involved, as heretofore pointed out. Plaintiff has not cited any authority supporting this argument and considerable research by the writer has failed to reveal any similar cases where the prosecuting authority has appealed from a verdict of not guilty. The state in a criminal case cannot appeal from such a verdict and no reported Missouri case has been found where the city has done so.

We therefore conclude that this matter was taken by the trial court as submitted to it on the merits at the close of all the evidence and that the court did not err in deciding that the evidence offered by the city did not convince it beyond a reasonable doubt that the defendant was guilty.

Plaintiff argues in its brief that the court erred in finding that plaintiff did not establish the corpus delicti. The trial court did not make any specific reference to proof of the corpus delicti and what we have heretofore said disposes of this contention adversely to plaintiff.

Plaintiff also complains that the court erred in failing to provide findings of fact and conclusions of law. It will be noted that immediately after the court announced that the defendant was discharged, the attorney for the city said: “Your Honor, the City will ask for statements of fact and conclusions of law, if we may.” To this the court responded: “It’s very simple. You failed to prove this person guilty beyond a reasonable doubt, * * * In its reply brief, the city argues that it requested permission to submit specific findings of fact and conclusions of law and that the trial court refused to grant this request. This contention is not borne out by the transcript. All that appears is that which has heretofore been quoted. Statements in plaintiff’s brief which are not supported by the transcript cannot and will not be considered by this court. To do so would only be a waste of time. The transcript shows only a very general request by the city for findings of fact and conclusions of law. It does not show such a request as would entitle it to specific findings and conclusions as provided for in Criminal Rule 26.01(c). This rule requires the court, in court tried cases, to make “a general finding” which the trial court did, and in addition, it explained its finding as heretofore quoted, stating that plaintiff had failed to prove the defendant guilty beyond a reasonable doubt. In the absence of a specifc request, this is sufficient and we cannot find that the trial court erred in failing to make specific detailed findings of fact and conclusions of law on this appeal from the Municipal Court.

Finding no error, the judgment of the trial court discharging defendant is affirmed.

All concur.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, Appellant, v. John Rodney JOHNSON et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.
    Robert Matthews, Atty. Gen., Frankfort, David Murrell, Asst. Atty. Gen., for appellant.
    No appearance for appellees.
   MONTGOMERY, Judge.

The motion to suppress evidence and to dismiss an indictment was sustained. The indictment charged John Rodney Johnson, Tracey Cornell Levison, and Edsel Lightsy with storehouse breaking. KRS 433.150. The Commonwealth has appealed. No jury was impaneled.

Two questions are raised: Did the trial court err in sustaining a motion to suppress the evidence concerning several stolen television sets where the sets were plainly and openly visible to the police officers from the street prior to the arrest of defendants, and when the police officers had probable cause to believe that these sets were stolen prior to the arrest of defendants? and Did the trial court err by sustaining the motion to suppress evidence of stolen television sets when the sets were seized on stolen property?

About 9 a. m. on February 19, 1966, Officer Quigley of the Louisville Police Department received a message on the police radio to the effect that several television sets had been stolen from a T-V shop owned by William Martin in the 1200 block on East Oak Street in Louisville. Within two hours of the receipt of the call, Quigley and another officer received a police report concerning a U-Haul trailer parked on a lot in downtown Louisville. The report indicated the presence of television sets in the trailer. The officers also received more definite descriptions of the stolen sets.

The officers watched the trailer while seated in their police car parked on the street. Levison and Lightsy were seen getting out of a car near the trailer, unlocking the trailer, and getting inside. From where the officers were, they could see several television sets in the trailer. When the two men emerged from the trailer, the officers approached them and asked if they had been in the trailer. The men denied that it was their trailer or that they had just been in it. The officers then placed both men and Johnson under arrest for knowingly receiving stolen goods. (Johnson had remained in the car which had been parked about two car lengths from the trailer; it was later learned that the trailer had been stolen.) The television sets were seized and their further identification was then made. Lightsy had a remote control unit for an Admiral television set in his pocket. It was identified by a dent and a cracked place as belonging to Martin.

The trial court was in error in suppressing the evidence. For discussion of the principles involved, see Foster v. Commonwealth, Ky., 415 S.W.2d 373; Lynn v. Commonwealth, Ky., 408 S.W.2d 639; Noble v. Commonwealth, Ky., 408 S.W.2d 185; Taylor v. Commonwealth, Ky., 394 S.W.2d 895; and Clark v. Commonwealth, Ky., 388 S.W.2d 622. For discussion of the propriety of ruling on a motion to suppress evidence prior to trial, see Freeman v. Commonwealth, Ky., - S.W.2d -.

In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, it was held that one whose presence thereon is wrongful cannot invoke the privacy of the premises searched. See also Powell v. Commonwealth, Ky., 282 S.W.2d 340. In-as much as the trailer searched was stolen, appellees had no standing to question its search. Their right to privacy had not been violated. Cf. Commonwealth v. Mayfield, Ky., 394 S.W.2d 914, citing Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, in which a search was held unreasonable because it was too remote in time and place.

Judgment reversed for proceedings consistent herewith.

All concur.


author: PALMORE, Judge.

text:
    Fannie Mayo ATKINSON et al., Appellants, v. Imogene KISH et al., Appellees.
    Court of Appeals of Kentucky.
    June 23, 1967.

      J. K. Wells, Paintsville, for appellants.
    W. B. Hazelrigg, Paintsville, Eldred E. Adams, Louisa, for appellees.
   PALMORE, Judge.

Thomas J. Mayo died in 1917 leaving a will restraining the alienability of title to his 500-acre farm adjacent to Paintsville, Kentucky, until 21 years and 10 months after the death of the last survivor of four life. tenants, one of whom is still living. The surviving life tenant, Fannie Mayo Atkinson, and her five children appeal from a judgment which has the effect of confirming an agreement made in 1927 by which s(ie and her brother, Robert H. Mayo, another of the life tenants, who is now deceased, undertook to divide the farm in two equal parts which today, according to Mrs. Atkinson and her children, are not equal. Appellees are the three children (and their respective spouses) of Robert H. Mayo.

So far as we are now concerned, the farm in question was devised to the testator’s widow, Mary E. Mayo, for life with remainder to four of his children, Robert, Fannie, Washington and Milton, for life with remainder over to their issue, if any, in the manner hereinafter described. In 1927 Mary E. Mayo (testator’s widow) had died and Washington and Milton had died without issue. Robert and Fannie, together with their then and future issue or heirs, were the owners of all the title to the property, and Fannie was sole executrix of the will.

The agreement recited that Robert and Fannie were sole owners of the farm and had agreed upon a division along a line therein described; that Fannie had elected to take the upper and Robert the lower portion; that the line was to be run by a surveyor as soon as possible; “and that immediately after said line is run and the division is made each of the parties hereto agree and bind themselves to make to the other a good and sufficient deed conveying to each other the portion allotted to him * * * ” etc. It was signed by Robert and Fannie individually and by their respective spouses but was not acknowledged and not recorded. The provisions for a survey and an exchange of formal conveyances were never carried out. Nevertheless, a fence was erected along the agreed line, each of the parties proceeded to occupy and exercise exclusive dominion over his respective portion of the farm in accordance with the agreement, and it has remained so ever since. Robert constructed a residence and made other improvements on his portion and they have been maintained by his widow and children ever since his death in 1935. Likewise, Fannie has improved and maintained the portion occupied by her.

This suit was brought in 1957 by Robert’s children against Fannie and her children. The plaintiffs asked that they be declared the owners of the lower portion of the farm as divided in 1927 and, in the event such relief could not be granted, that the entire property be divided pursuant to KRS 381.-136, having regard to the improvements made by the parties. The answer asserted, inter alia, that the 1927 contract was intended only as a lifetime arrangement between the parties; that it was in fact abandoned and never consummated; that the separate occupancy of the land thereafter was merely a temporary expedient (and thus, presumably, terminable at will); that the agreement was not binding on the contingent remaindermen; that the purported division was and is unequal and unfair; and that by reason of certain actions pertaining to a condemnation suit the plaintiffs are estopped to rely on the division.

Both parties took depositions after which, on September 25, 1959, by agreement of counsel the case was submitted for judgment. On March 31, 1961, the trial court filed a memorandum opinion to the effect that in 1927 Robert and Fannie were owners of the fee, that the restraint on alienation imposed by the Thomas J. Mayo will was unreasonable and void, that KRS 381.-136 is inapplicable because the parties are not life tenants, and that the 1927 division was valid.

The next document in the record is a “Supplemental Opinion and Finding of Fact” filed on December 4, 1964, in which the facts are again recited and it is again stated that the boundary line is binding upon all the parties.

Judgment was entered on February 19, 1965. It reiterates that the attempted restraint on alienation was void and that the division made by Robert and Fannie “is valid and binding upon all parties to this action.” It further adjudges that the two portions as so divided “are of approximately the same market value,” “reaffirms” the voluntary partition pursuant to the court’s authority under KRS 381.136, and declares the Robert Mayo children owners of the lower portion and Fannie and her children owners of the upper portion.

Before proceeding to an analysis of the legal problems now presented it is necessary to set forth in detail the relevant terms of the Thomas J. Mayo will.

Clause IV, as modified by codicil, provided as follows:

“Upon the death of my said wife and subject to the conditions and restrictions herein imposed, I devise and give the real estate mentioned in clause II of this will in remainder unto my sons, * * * Washington I. Mayo, Robert H. Mayo, Milton S. Mayo, and my daughter, Fannie E. Atkinson, wife of Fred Atkinson in equal shares but in the event one or more of my said children shall die before or after the death of my said wife without legal issue him or her surviving the equal portion so devised to the one or more of them so dying shall pass and go to the survivor of the one or more of my said children so dying.
“Should one or more of my said children die before or after the death of my said wife leaving issue him or her surviving the issue of such deceased child shall take the share devised to the parent so dying.
“But the devise in this clause contained is subject to the express condition that neither of my said children herein specifically named nor his, her or their survivors or survivor, his, her or their issue shall have power to incumber, sell, charge against or upon or lease said real estate or any part thereof or interest therein until twenty-one years and ten months after the death of the last remaining survivor of my said children herein specifically named. Provided further that the respective interests in said real estate may be leased for a period of not longer than one year at a time preference being given to the children living at the time of said lease.
“And provided further that upon the death of all my said children before the expiration of twenty-one years and ten months from the death of the last survivor of them, said real estate shall thereupon be vested absolutely and without further restriction in the real representative or representative of my respective children then owning the said real estate and interest created therein by this will.
* * * * * *
“Provided, further that my Executors, hereinafter named in their discretion and upon consent in writing of such of my aforesaid children as shall be living at the time may and they are hereby empowered to make sale and conveyance of said real estate mentioned in clause II hereof and receive and acquit the purchaser of the purchase money to be paid therefor and with the proceeds of such sale so paid to and received by them they are directed to purchase real estate in such location and at such price as may be agreed upon by the said executors and such of my said children as may be living at the time and the title to such property so acquired shall be taken to my said children, the survivors or survivor of them, or the issue of such one or more of them as shall have deceased per stirpes and held by them for the like time and upon the same terms and restrictions as are imposed in this will upon upon [sic] the said real estate mentioned in clause II herein.” (Emphasis ours.)

Clause V directed investment of the testator’s surplus personal assets in real estate to be held in the same manner as the farm mentioned in clause IV, the issue of any deceased children taking per stirpes.

Clause VI provided as follows:

“VI. The interests devised and bequeathed by the terms of this will or any profit or income thereof shall not be in any manner encumbered or in any way anticipated by or in any way subject to the debts or liabilities, if any, of either of my said sons or daughter or issue of any one or more of them either by process of law or by any order, assignment or contracf he or she may make, and no beneficiary under this will shall have power to dispose of or in any way encumber or charge by way of anticipation or otherwise, any interest in land or income from the part or share provided for his or her benefit or dispose of charges [sic] or encumber a part of the share itself or his or her interest therein or rights thereto; nor shall such be liable or chargeable in the hands of the executors, or other persons, for any debt or liability of such beneficiary nor shall the same be at any time so liable is [sic] chargeable prior to the actual receipt thereof by such beneficiary from the executors under and pursuant to the terms and provisions of the trust created and declared by this will.” (Emphasis ours.)

The first question to be decided is whether and to what extent Robert and Fannie in 1927 had the power to effect a division of the property.

In Gray v. Gray, 300 Ky. 265, 188 S.W.2d 440, 160 A.L.R. 663 (1945), the testator devised his estate to his widow for life, or until remarriage, with remainder to several named children of his brother, “they to be joint tenants of said land and they are to occupy and use the same together. Any one of them may sell or lease his interest in the said land to any of his co-tenants, but no one shall lease or, sell any interest to any other person than one of said children or their descendants as hereinafter provided.

“If any one of my said nieces or nephews die either before or after my death, and leave no living descendants his interest shall vest in those living under the same conditions as above. Should any one of said children die leaving descendants the said descendants shall take the place of its parents, but no fee shall vest in any descendant until after all of my nieces and nephews above named shall die, when the event happens the title to said real estate shall vest in the descendants of my said nieces and nephews according to their legal rights.”

After the widow’s death the nephews and nieces sued for a construction of the will that would enable them to convey the fee. This court held that each of the nieces and nephews took a life estate with defeasible fee in remainder to his or her descendants, and that the restraint on alienation was good as to the life interests but not as to the remainder interests.

The case before us bears striking similarities. Following Gray, we construe the Thomas J. Mayo will as devising to each of the four named children a life estate. The other two having died childless, Robert and Fannie in 1927 were life tenants of the whole. Quite aside from the testamentary restraint on alienation, it is our conclusion that they could not have made a voluntary division that would dispose of future interests they did not own. Cf. Milligan v. Masden, 74 S.W. 1049, 25 Ky.Law Rep. 144 (1903).

It is not entirely clear from the 1927 agreement itself that Robert and Fannie actually intended the division to be permanent, in the sense of extending beyond their lives. But assuming they did, nowhere does the will give the life tenants any authority to affect or disturb the fee except insofar as the executors are empowered, with the consent of the' life tenants, to sell the property and reinvest the proceeds in other property “for the like time and upon the same terms and restrictions as are imposed” on the property sold. Even if Fannie had signed the agreement both as an individual and in her capacity as executrix, a partition would not have satisfied that provision, because neither part of the farm would then have been held “upon the same terms and restrictions” as before. In the context of this will, it seems clear to us that the words “same terms and restrictions” necessarily embrace identity of ownership. The testator’s whole scheme, and the very subject of all the “terms and restrictions” to which he refers, was to keep the ownership intact against all but the two contingencies he could not avoid— death and the law.

Continuing with our holding in Gray, certainly the restraint on alienation applied validly to the life estates of Robert and Fannie. “It is settled in Kentucky that a restraint prohibiting voluntary alienation of a legal life estate for the entire duration of the estate is valid.” Duke-minier, Perpetuities Law in Action, — Kentucky Case Law and the 1960 Reform Act, p. 119; Gray v. Gray, supra. Thus it would appear that even insofar as it affected only their respective life estates, the division between Robert and Fannie violated the restraint. However, the point now is academic, because a conveyance made in violation of a valid restraint against voluntary alienation of a legal interest is not void, but voidable. “If there is no express provision for forfeiture in the instrument, the law implies one and creates a right of entry in the transferor or his heirs.” Id., pp. 131-132; Kentland Coal and Coke Co. v. Keen, 168 Ky. 836, 183 S.W. 247, L.R.A. 1916D, 924 (1916). In this instance there has been no assertion or exercise of a right of forfeiture against the interests of Fannie, Robert, or Robert’s issue, and under Section 6 of the Kentucky Perpetuities Act of 1960, now KRS 381.221, every right of entry created prior to July 1, 1960, ceased to be enforceable 30 years after its creation unless a declaration of intention to preserve it was recorded before July 1, 1965. This provision, which is the equivalent of a statute of limitation, applies to the right of entry impliedly retained to enforce a restraint on alienation. Id., pp. 132-133. Hence in the absence of a record of such a declaration before July 1, 1965, the restraint itself is no longer enforceable, and under no circumstances could anyone now assert a right of entry theretofore existing by reason of a violation of the restraint.

We come then to the question of whether the circuit court could properly confirm the division under KRS 381.36(1), which provides for involuntary partition at the instance of a life tenant.

There are three basic statutes in Kentucky authorizing partition. They are KRS 381.120 (as qualified by KRS 381.-130), KRS 381.135. and KRS 381.136. The statutes supplement, or are supplemented by, the traditional jurisdiction of equity courts to decree partition. Cf. KRS 381.135(16); Howard v. Long, 238 Ky. 822, 38 S.W.2d 951 (1931); Beeler’s Heirs v. Bullitt’s Heirs, 10 Ky. (A.K.Marsh.) 280, 283 (1821).

KRS 381.120, formerly Ky. Stat. § 2348, provides that joint tenants may be compelled to make partition. KRS 381.-135, formerly Civil Code § 499, is broader in scope and detail. It provides that anyone holding land jointly with others may have it divided by the county or circuit court. All persons having interests must be made parties, so they are bound. Cf. KRS 381.135(1) and (3); see also Turley v. Turley, 193 Ky. 151, 235 S.W. 18, 20 (1921). And the person maintaining the action must have a possessory estate— that is, a present right to share possession. II American Law of Property § 6.22, p. 97; Simes and Smith, The Law of Future Interests, ¶ 1766; 2 Powell on Real Property ¶ 290, pp. 529-530; Duke v. Allen, 198 Ky. 368, 248 S.W. 894 (1923). Evidently, though we need not pursue the question in this proceeding, a judgment in an action brought either under KRS 381.135 or under the non-statutory powers of equity would not bind future interest holders not in esse and thus not before the court. Cf. Burchett v. Clark, 162 Ky. 586, 172 S.W. 1048, 1051 (1915). This may be the reason for KRS 381.136 (formerly Civil Code § 499a) which was enacted as § 1 of Chapter 1171, Acts of 1886, and provides as follows (the word “the” appearing in brackets was not in the original act, but was inserted when it was incorporated in the Civil Code as § 499a):

“Where [the] land is held under deed or will vesting a life estate in two or more persons or in trust for their benefit, with remainder as to the share of each to his or her children or descendants, it shall be lawful for a court of equity, on the petition of one of such life tenants and his or her children or descendants who would then be entitled to such remainder, all persons having interests in such lands being made parties, to partition such land so as to set apart to such life tenants and children or descendants so much of said land to which they shall be entitled in severalty; and to that alone shall attach the title or interest of after-born children or descendants in whom, by the terms of said deed or will, such remainder would vest.”

The statute of 32 Henry VIII (1540) extended the remedy of partition to estates for a term of life or years, and also to estates in which some of the cotenants held for a term of life or years and others held estates of inheritance. “At the common law, none but parties having estates in possession were bound by the judgment. It could not affect estates in remainder or contingency.” Freeman on Cotenancy and Partition, § 439, p. 597 (Bancroft-Whitney & Co., 1886).

Whatever may have been the law in this state theretofore, the Act of 1886 made it clear that a permanent partition, binding upon future interests, including those of persons not in esse, can be effected by judicial decree when the land is held under a deed or will vesting a life estate in two or more persons with remainder to their respective children or descendants. This is as it should be, because “if it is once accepted that a possessory owner is entitled to partition so that he may enjoy his possession in severalty, it logically follows that all of the other interests in land, present and future, are liable to partition. Some of the other interests in the land may be future, or contingent, so that under the statute their owners could not themselves initiate partition proceedings to compel partition. But, in order to give effective partition to the entire estate of the possessory owner, those future or contingent interests may be subjected to partition.” Simes & Smith, The Law of Future Interests, § 1768.

Unfortunately, KRS 381.136 is so worded that literally the action may be instituted only by one of the life tenants and is applicable only if the life estate of each tenant is followed by a remainder in fee to his children. Judging from the dearth of precedent dealing with it, it has been seldom employed. In Eversole v. Combs, 130 Ky. 82, 112 S.W. 1132 (1908), it was held inapplicable, apparently on the technical point that the life estate-remainder relationship had been created by intestacy and the allotment of dower rather than by a deed or will.

In the particular case now before us, it would certainly seem that the trial court’s first conclusion, later abandoned, was correct in that the plaintiffs are not life tenants and therefore cannot proceed under KRS 381.136. The issue of Robert H. Mayo consisted of three children, all of whom survived him. At the very least, each of them took a defeasible fee — that is, a fee simple title subject to divestment upon his death prior to 21 years and 10 months after Fannie’s death. Cf. Gray v. Gray, 300 Ky. 265, 188 S.W.2d 440, 160 A.L.R. 633 (1945). But we think their title is even more than that, and is a fee simple absolute in one-half. We reach that conclusion in this way:

Although the will provides literally (and somewhat paradoxically) that upon the death of all the testator’s children “before the expiration of twenty-one years and ten months from the death of the last survivor of them, said real estate shall thereupon he vested absolutely and without further restriction,” etc. (our emphasis), we are of the opinion that this terminology was intended to delimit the restraint on alienability rather than to postpone the vesting of title. It will be noted, for example, that once the title reaches the issue of the testator’s children, he makes no provision for a shifting of any interest outside the direct line of inheritance. If one of Robert’s children dies without issue, the testator had nothing in mind as to his interest except that it remain in the family line — in other words, that it not be transmissible by deed or will. All this really amounts to is a restraint, not a withholding of title. Bearing in mind, then, the familiar policy of law that favors vesting of title, we hold that the children of Robert Mayo now have an indefeasible fee in an undivided one-half of the property.

Since Fannie is still living, the issue who will be surviving at her death are as yet unascertained. Should we treat this action as having been brought under KRS 381.135 rather than KRS 381.136, a question arises as to whether all interests can be brought before the court, whereas KRS 381.136, when applicable, expressly •dispenses with that necessity. The technical result is that Fannie (unless estopped) and her children could force a partition under KRS 381.136 while the children of Robert cannot, because it authorizes the suit only by a life tenant. This, it seems to us, is a rather absurd state of affairs, never intended by those who fashioned the statutory law as it now comes to us. We conclude that common sense and the basic purpose of the law require us to say that since Fannie and her children could maintain the action, so can the Robert Mayo •children, despite the circumstance that their father, with whom they could have joined in such a suit, and whose title is now extinguished, is deceased.

Fannie and her children contend, nevertheless, that the trial court could not properly effect a partition by simply confirming the presently existing arrangement, that the law requires the appointment of commissioners for that purpose, as set forth in KRS 381.135. To this the Robert Mayo children respond that such a requirement ■does not apply under KRS 381.136, but that if it does, Fannie and her children waived it by failure to move for the appointment of commissioners and by agreeing to the submission of the case for judgment.

It is our opinion that the procedures set forth in KRS 381.135 are applicable under KRS 381.136. It is not without significance that the Act of 1886 was placed in the Civil Code as § 499a and the word “the” inserted before “land”. Apocryphal though it may now seem, this action by the compiler of the Civil Code has remained undisturbed and unquestioned for •80 years or so, and we are not disposed to question it. The Act was intended to become a part of Civil Code § 499. We find further support for this deduction in Milligan v. Masden, 74 S.W. 1049, 1950, 25 Ky. Law Rep. 144 (1903), an action very much like this, in which commissioners actually were appointed and this court, in holding .a remainderman not bound by a division made in 1881 by his mother, the life tenant, said:

“But it is proper for us to say that in making a new partition of the land the commissioners should have been instructed to allot to appellants that part of the land on which they had erected buildings and made improvements, without taking into consideration the value of such improvements, in so far as this can be done consistently with an equitable partition of the land as it existed in 1881.”

Regardless of how or under what authority an action for partition is brought, the trial court is not authorized to divide the land without an examination and report by commissioners appointed for that purpose. Boyers v. Boyers, 310 Ky. 727, 221 S.W.2d 657 (1949); Eakins v. Eakins, 112 Ky. 347, 65 S.W. 811, 23 Ky.Law Rep. 1637 (1901). Whether a failure in that respect renders the judgment void or merely erroneous need not be decided, because in any event we do not agree that the appellants waived the defect. It was the appellees who sued for a partition, not the appellants. Indeed, had appellants moved for the appointment of commissioners there would be some basis for arguing that they had abandoned their defense. By parity of reasoning, when the appellees, who asked for a partition in the event the 1927 agreement should be held ineffective, agreed to a submission of the case for judgment without having themselves insisted on the procedures requisite to a partition, it could well be argued that they abandoned that aspect of their complaint. As it is, the judgment went against the appellants, it was erroneous, and they are entitled to relief.

Upon remand the trial court may proceed to effect a partition pursuant to the procedure set forth in KRS 381.135, making appropriate adjustment and allowance for improvements made by the respective parties and their predecessors in interest.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

All concur.

HILL, J., not sitting.

      . That is, a vested remainder in fee subject to defeasance by the descendant’s predeceasing the last surviving life tenant.

      . Fannie did not testify in this proceeding. What seems probable is that they did so intend, but then learned that their legal right to effect that intention was doubtful.

      . The heirs of Thomas J. Mayo would include persons other than Fannie, her children, and Robert’s children.-

      . We do not necessarily imply that a forfeiture could have been enforced against Robert’s surviving issue. From a practical standpoint, however, they have recognized the division by acquiescence in it since 1935.

      . Since a reversionary right of entry, like a possibility of reverter, amounts to no more than an expectancy, it does not come within the constitutional protection of “vested rights.” Cf. 16 C.J.S. Constitutional Law § 226c, pp. 1192-1193; see also Varble v. Phillips, 20 S.W. 306, 14 Ky.Law.Rep. 363 (1892), in which contingent remainders in unascertained parties are classed in the same category.

      . The authority to sell real estate under various statutes in KRS Chapter 389 implements the right of a plaintiff to have his particular interest sold, as distinguished from a right of partition. Cf. KRS 389.020(1) (b) and (c), formerly Civil Code § 490-2 and 3.

      . There is, however, authority to the contrary. “Doubts were formerly entertained whether in a suit in equity for a partition brought only by or against a tenant for life where the remainder is to a person not in esse, a decree could be made which would be binding upon tlie persons in remainder. That doubt however is now removed, and the decree is held binding upon them upon the ground of a virtual representation of them by the tenant for life in such cases.” Story, Equity Jurisprudence, § 889 (14 ed.1918). This statement is quoted with approval in Milligan v. Masden, 74 S.W. 1049, 25 Ky.Law Rep. 144 (1903). See also Restatement of Property, § 177.


author: STEINFELD, Judge. WILLIAMS, Chief Justice

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Gay MARCUM, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    March 31, 1967.

      Henry V. B. Denzer, Henry A. Triplett, Hogan, Taylor, Denzer & Bennett, Louisville, for appellant.
    B. C. Green, Green & Connor, Clarence Bartlett, Woodward, Bartlett & McCarroll, Owensboro, Kenneth Ragland, Calhoun, John D. Miller, Owensboro, for appellees.
   STEINFELD, Judge.

Gay Marcum, individually and as administrator of the estate of Ada B. Mar-cum, his deceased wife, and as administrator of the estate of Stevie Marcum, his deceased son, recovered judgments totaling $54,389.22 in an action against Ernest Earl Bell. State Farm Mutual Automobile Insurance Company, the appellant, was the liability insurance carrier of Bell but the maximum limit of the policy was $20,000.00. After the above judgments were rendered, State Farm paid $20,000.00 into Court. Marcum individually, and in the capacities mentioned, sued State Farm to recover the difference between the amount paid and the total amount of the judgments, on the claim that the insurance company was guilty of bad faith in failing to settle these claims when it had an opportunity to do so. Upon a verdict of a jury, the lower court found in favor of the appellees for the full amount. State Farm appeals.

The original judgments for Marcum were awarded after a determination that Bell was wholly at fault in negligently operating his truck at the time it collided with the automobile owned and operated by Marcum. Riding with Marcum were his wife, Ada, and their infant son, Stevie, both of whom were killed. Other passengers in the car were Teresa Marcum, Dale Henry Marcum and Randy Marcum, young children of Gay Marcum. Teresa was cut on the head and fourteen stitches were required to close the wound. Dale Henry lost three teeth and Randy was “banged up.” No action for the three surviving children had been filed at the time this suit was tried. Marcum was injured seriously.

State Farm claims that it was entitled to a directed verdict. It asserts that it acted in good faith; that Marcum and “Bell presented no claim against State Farm” and that they did not prove any act of bad faith on the part of State Farm. The appellant argues that the action was brought under the garnishment statute, KRS 426.381, and that Marcum had no right to proceed under that statute. It also contends that Marcum, in his various capacities, is not an “implied assignee” of Bell, the assured. State Farm argues that even if Marcum had a cause of action it is in tort and that it was incumbent upon him to prove the damages which each claimant sustained and that none were proved.

State Farm also alleges that many prejudicial errors were committed during the trial, among which were improper admission of certain evidence, misconduct of counsel and that erroneous instructions were given.

The first suit was filed in the Federal Court by Marcum in his various capacities against the United States of America under the Federal Tort Claims Act on the theory that Bell, at the time of the accident, was acting as an agent of the United States. The United States filed a third party complaint against State Farm alleging that it insured Bell. The district court dismissed upon a finding that Bell was not acting as agent for the government. Marcum, et al. v. United States of America, (D.C.Ky.) 208 F.Supp. 929. That decision was affirmed. Marcum, et al. v. United States of America, (CA 6) 324 F.2d 787, 789.

The second action was in the Ohio Circuit Court wherein Marcum, individually and as administrator of the estate of his wife and son, demanded damages in the amount of $15,000.00 for himself, $200,-000.00 for his wife’s estate and $70,000.00 for his son’s estate. State Farm notified Bell that the claims exceeded the policy limits and that he should employ his own attorney if he desired to do so. Bell did not employ his own attorney until after Marcum sued State Farm. Bell, through the attorney supplied by State Farm, answered denying that he was negligent and alleging that the accident resulted from the sole or contributory negligence of Marcum and he counterclaimed for the damage to his truck. At the conclusion of the evidence, but over Bell’s objection, the court directed that the jury enter verdicts against him for Marcum in his various capacities. It found for Marcum individually $10,-000.00, for the estate of Ada Marcum $31,075.00 and for the estate of Stevie Mar-cum $13,314.22, a total of $54,389.22. The court did not submit to the jury the claim for punitive damages. A motion for a new trial was filed but was overruled. Judgments were entered pursuant to that verdict but no appeal was taken.

State Farm paid into the registry of the circuit court $20,000.00 and moved that an order be entered “adjudging that it has complied with the terms of its insurance policy covering * * * Bell, and that it is now released from any and all liability by the payment into Court of the sum of $20,000.00”. Executions were issued to the sheriff, who promptly returned each one with the notation “no property found.” Marcum filed an “Amended and Supplemental Complaint, and Response to Motion of State Farm * * * An order of distribution was entered directing that the $20,000.00 be distributed to apply on the adjudged claims but that it be without prejudice to the rights of Marcum to seek recovery from State Farm and its insured, Bell, the balance of the judgments rendered .and without prejudice to State Farm to contest any further liability. State Farm claims that its liability has been satisfied,.

The proceedings came to trial on the amended and supplemental complaint and the other pleading which we will discuss. After hearing evidence on the issues presented the jury found against State Farm in the amount of $34,389.22.

State Farm moved for a judgment notwithstanding the verdict or alternatively for a new trial. These motions were not sustained. The court entered judgment that Marcum individually, and as administrator of the two estates and Bell recover from State Farm $34,389.22, interest and ■costs.

One of the contentions for reversal is that Marcum, in his various capacities as a judgment creditor of Bell who was insured by State Farm, had no right to bring this action under KRS 426.381. Mar-cum’s theory is that as a creditor of Bell he is attempting to subject an indebtedness owing from State Farm to Bell. That statute provides that after the return of an execution by the proper officer, showing that no property was found to satisfy the execution, the execution plaintiff, “may by an amended and supplemental petition filed in the action have the same re-docketed and join with the execution defendant or ■defendants any person believed to be indebted to him or them, or to hold money or other property in which he or they have any interest, or to hold evidences or securities for the same.” The statute also authorizes that the property be “subj ected to the satisfaction of the judgment.”

Marcum’s amended and supplemental complaint followed a form of pleading long outmoded. He completely ignored CR 8.01 which directs that “A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which he deems himself entitled.” The pleading Marcum filed is subject to that rule. Fact after fact was stated until 10i/> pages of typing had been used to charge that the insurance company had not acted in good faith and was indebted to Bell and Marcum. This type of pleading has been condemned. Capdevielle v. American Commercial Alcohol Corp., D.C.N.Y., 1 F.R.D. 365; 6 Kentucky Practice, Clay 127, 132.

CR 41.02 provides that “for failure of the plaintiff * * * to comply with these rules * * * a defendant may move for dismissal of an action or of any claim against him.” Bell and State Farm jointly moved to dismiss but restricted that motion to the alleged failure of Marcum to state a claim against the defendant; therefore, the violation of CR 8.01 was not raised.

Among other things Marcum alleged:

“ * * * defendant insurance company contracted and agreed to defend said Ernest Earl Bell from all claims and demands arising out of the operation of a pickup truck involved in said accident, and providing that it, the insurance company, would have exclusive control of the handling of any claim that might arise under said policy and prohibiting said Bell from making settlement or otherwise compromise or adjust any claims that should be made against him for any act done or omitted to be done in the purview of said policy of liability insurance issued as aforesaid.”
“Said insurance company refused to settle said claims or to negotiate a reasonable settlement thereof at a time when it knew that should judgments be rendered in said action that they probably would be far in excess of said policy coverage and, therefore, violated the terms and provisions of said policy of insurance, in that it gave no consideration to the welfare of its insured, Ernest Earl Bell, but took into account its own selfish interest in failing and refusing to thus settle said claims as it could have done as aforesaid and, therefore, failed to act in good faith as the insurer of said Ernest Earl Bell, which resulted in said verdict and judgment against said Ernest Earl Bell far in excess of said insurance coverage provided in said policy, and said loss to said Bell was a direct and proximate result of said acts and conduct of bad faith of and on the part of the defendant, State Farm Mutual Automobile Insurance Company, * * * ”
“Thus * * * insurance company is * * * indebted to Bell in * * * amount of $54,389.22, an indebtedness * * * within the meaning * * * of KRS 426.381.”
“ * * * as such third party beneficiary and real party in interest, plaintiffs have the right to prosecute this claim against the * * * insurance company * * *''.
“ * * * they are subrogated to the rights of Bell to require * * * insurance company to make full payment of said judgment, * * * ”.

The claim against the insurer was predicated both on the failure of the insurance company to fulfill its obligations of the policy and upon bad faith.

Marcum sought personal “judgment against said State Farm Mutual Automobile Insurance Company in the full amount of said judgments, to wit, $54,389.22 and their costs expended * * * ” and for discovery.

Bell, for the first time employed his own counsel who moved that the action be dismissed because the “Amended and Supplemental Complaint did not state a claim against Bell.” This motion was overruled and Bell was given thirty days within which to answer. His answer was filed and again he demanded that the action be dismissed, hut this demand was never ruled on.

The trial court overruled the motion of State Farm to dismiss. Meanwhile, depositions were taken and various motions were made not germane to the issues now before this court. A pretrial hearing was conducted. With leave of Court granted over objection of State Farm, Bell filed an amended answer. Stewart v. Burks, Ky., 384 S.W.2d 316.

It was discretionary with the court below to permit the filing of the amendment and it was not error to overrule an objection to its being filed. CR 15.01. Kentucky Home Mut. Life Ins. Co. v. Hardin, 277 Ky. 565, 126 S.W.2d 427; and Bradford v. Billington, Ky., 299 S.W.2d 601.

Bell admitted the allegations of Marcum’s pleadings and demanded “that judgment be granted to the plaintiffs against the defendant State Farm * * * ” for the amount claimed and “that he and his estate be relieved of any and all liability on account of the judgment of $54,389.22 previously rendered against him * * * ”. CR 13.07; CR 18.01; CR 20.01. Stewart v. Burks, supra.

The action then proceeded to trial with Marcum and Bell joining in their effort to recover, to the end that State Farm be required to satisfy the balance of the judgment.

Marcum and Bell, to hold State Farm liable, rely on a provision in the policy which obligates State Farm “to defend any suit against the insured alleging such bodily injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent, but the company may make such investigation; negotiation and settlement of any claim or suit as it deems expedient; * * * ”.

State Farm denies that it failed to fulfill its obligations under the terms of the policy. It interposes certain defenses which we-discuss herein.

State Farm claims that the procedure is incorrect and relies upon Wittenauer v. Kaelin, 228 Ky. 679, 15 S.W.2d 461. The facts in that litigation were entirely different from those which exist herein. It is not applicable.

Appellant cites 7 Am.Jur.2d 491, 492, Automobile Insurance, but that text refers to a garnishment on an unliquidated claim. Here we have liquidated claims and no garnishment.

It is contended that Marcum had no cause of action against State Farm. We are referred to Tabben v. Ohio Casualty Ins. Co., D.C.Ky., 250 F.Supp. 853. In Tabben the judgment debtor was adjudicated a bankrupt without assigning his rights to the creditor. It was there held that since “ * * * the creditor has no such cause of action in his own right, * * * ” recovery was denied. Tabben is not analogous for here the insured is claiming against State Farm.

Whether the amended complaint stated a cause of action on behalf of Marcum against State Farm, we need not decide because the action was pending when Bell asserted a valid cause of action based on “bad faith”.

“It is well established in Kentucky that a liability insurer which exercises bad faith in refusing to settle a claim against its insured within the policy limits may become liable to the insured for amounts in excess of the policy limits. Lemons v. State Auto Mut. Ins., Co., 171 F.Supp. 92 (E.D.Ky.1959); Harrod v. Meridian Mut. Ins. Co., 389 S.W.2d 74 (Ky.1965); American Surety Co. v. J. F. Schneider & Son, 307 S.W.2d 192 (Ky.1957); Georgia Cas. Co. v. Mann, 242 Ky. 447, 46 S.W.2d 777 (1932).” Tabben v. Ohio Casualty Ins. Co., supra.

Appellant claims that Marcum is not an “implied assignee” of Bell and is not subro-gated to any rights which Bell did not assert against State Farm. It has been held that a claim of the type asserted here is transferable Brown v. Guarantee Ins. Co., 155 Cal.App.2d 679, 319 P.2d 69, 66 A.L.R.2d 1202; Critz v. Farmers Insurance Group, 230 Cal.App.2d 788, 41 Cal.Rptr. 401, 12 A.L.R.3rd 1142. Also see annotation 12 A.L.R.3rd 1158. This question is moot for the reason just expressed.

State Farm argues that Marcum’s cause of action is in tort; therefore, it was incumbent upon him to prove the damages alleged, and that he failed to do so. It asserts that Bell was not damaged because he has not paid the judgment. It cites cases from without Kentucky to support this contention.

However, we find the great weight of authority is that the entry of a final judgment, rather than satisfaction of it, gives rise to the cause of action. Southern Farm Bureau Casualty Ins. Co. v. Mitchell (CA 8 Ark.) 312 F.2d 485; Lee v. Nationwide Mut. Ins. Co. (CA 4 Md.) 286 F.2d 295; Jessen v. O’Daniel (D.C.Mont.) 210 F.Supp. 317; Alabama Farm Bureau Mut. Casualty Ins. Co. v. Dalrymple, 270 Ala. 119, 116 So.2d 924; Farmers’ Ins. Exchange v. Henderson, 82 Ariz. 335, 313 P.2d 404; Brown v. Guarantee Ins. Co., 155 Cal.App.2d 679, 319 P.2d 69, 66 A.L.R.2d 1202; American Fire & Casualty Co. v. Davis (Fla.App.) 146 So.2d 615; Henke v. Iowa Home Mut. Casualty Co., 250 Iowa 1123, 97 N.W.2d 168; Sweeten v. National Mut. Ins. Co., 233 Md. 52, 194 A.2d 817; Alford v. Textile Ins. Co., 248 N.C. 224, 103 S.E.2d 8, 70 A.L.R.2d 408; Murray v. Mossman, 56 Wash.2d 909, 355 P.2d 985. We adopt the view expressed in those cases and others which we cite herein.

If it be found that State Farm did not fulfill its contractual obligation or was guilty of bad faith as claimed, in failing to negotiate and bring about a settlement before judgment, the damage to Bell is apparent. It is the difference between the total amount of the judgments and the limit of the policy. “The normal recovery, where the insurer’s actionable bad faith or negligence is established and an excess judgment is recovered, is the amount for which the insured becomes charged in excess of his policy coverage.” 29A Am. Jur. 561; section 1446. Ballard v. Citizens Casualty Co. (CA 7th Ill.) 196 F.2d 96; American Fidelity & Casualty Co. v. G. A. Nichols Co. (CA 10th Okl.) 173 F.2d 830; American Fire & Casualty Co. v. Robert, 186 F.2d 921; Hartford Acc. & Indemn. Co. v. Vanderbilt University, 218 F.2d 818; National Mut. Cas. Co. v. Britt, 203 Okl. 175, 200 P.2d 407, 218 P.2d 1039; Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785. See Noshey v. American Auto. Ins. Co. (CA 6th Tenn.) 68 F.2d 808, and other cases cited in 131 A.L.R. 1500.

In order to determine whether or not the judgment against State Farm shall stand it is necessary that we examine the facts with respect to the accident and related occurrences subsequent thereto. Bell was driving his truck and Marcum was driving his automobile in opposite directions on the same highway. Bell made a left turn directly in front of the Marcum automobile and a collision occurred. The highway was damp and the sky was overcast. Marcum was coming out of a dip immediately before the impact. On one occasion Marcum testified that Bell’s truck was approximately 405 feet away from him when he first saw it but on another occasion he testified that it was only 200 feet away. When the collision occurred Marcum was traveling about 40 miles an hour and Bell was going quite slowly. Mar-cum admitted that he did not apply his brakes until he was within about 20 feet of the point of impact and that had he attempted to stop when he first saw the Bell truck indicating that he was about to make a left turn he would have been able to do so, but did not see any reason to stop.

Marcum also testified that when he looked ahead after he came out of the dip he saw the left turn blinkers of Bell’s truck operating to indicate that a left turn would be made, but he did not anticipate that Bell would turn directly in his path. Bell admitted that he did not see the Mar-cum automobile until just before the impact. Failure to see under the conditions related reveals failure to keep a proper lookout. Potts, et al v. Krey, Ky., 362 S.W.2d 726; Hollar Truck Lines, et al v. Harrison, et al, Ky., 323 S.W.2d 219. The facts make it perfectly clear that Bell was negligent as a matter of law and the trial court so held. Wandling v. Wandling, Ky., 357 S.W.2d 857; Smith v. Sizemore, Ky., 300 S.W.2d 225; Hollar Truck Lines v. Harrison, Ky., 323 S.W.2d 219; Miles v. United States (D.C.Ky.) 205 F.Supp. 728.

Bell’s negligence was a proximate cause of the accident. The alleged contributory negligence of Marcum was not imputed to his wife or his children. McCallum v. Harris, Ky., 379 S.W.2d 438; Reed v. Hostetler, Ky., 245 S.W.2d 953; McGuire v. East Kentucky Beverage Co., Ky., 238 S.W.2d 1020 and McFarland v. Bruening, 299 Ky. 267, 185 S.W.2d 247.

In Marcum, et al v. United States of America, supra, the court stated: “There is no question about Bell’s negligence being a proximate cause of the accident which gave rise to this lawsuit.” The fact that there were strong cases against Bell may be considered on the issue of bad faith. See 40 A.L.R.2d 196-205.

Ada Marcum, the wife of Gay Marcum, was 29 years of age, in good health and the mother of eight children. Stevie, a healthy and normal child, was then eleven months old. The other three children were injured as heretofore stated, although fortunately the injuries were not critical. This case is unusual in that the liability of Bell for the death of the two passengers and the injuries to three more was certain. Liability to Marcum for his injuries was likely. Even disregarding the injuries to the three children and the very serious injuries to Gay Marcum, it should have been obvious to the insurance company that the judgment would be far in excess of the insurance policy limit of $20,000.00. State Farm was confronted with a dilemma because the claims of the three surviving children were not being asserted. It could have extricated itself by filing an inter-pleader action, and paying the policy limits into court but none was filed. CR 22. The proof showed that it could have settled the claims in litigation for less than the coverage, and thereby restricted its liability to the policy limits. Augustin v. General Acc. Fire & Life Ins. Corp. (CA 7 Wis.) 283 F.2d 82; Alford v. Textile Ins. Co., 248 N.C. 224, 103 S.E.2d 8, 70 A.L.R.2d 408. These failures, in the unusual circumstances existing in this case, are evidence of bad faith. Comunale v. Traders & Gen’l Ins. Co., 50 Cal.2d 654, 328 P.2d 198, 68 A.L.R.2d 883.

State Farm objected to the introduction of testimony given by Marcum concerning how the accident happened and the injuries he sustained. It contends that the only proof admissible, material or relevant is concerning the evidence introduced and what transpired before and during the trial of the Marcums against Bell. We find no merit whatsoever in this contention. The issue was the claim of bad faith, and the failure of State Farm to fulfill its contractual obligations. The jury could not reach a verdict without being informed of all facts germane to those issues. Vital were the manner in which the accident happened; the injuries sustained and the age, condition of health and relevant facts pertaining to the various claimants; the negotiations with respect to settlement and the verdict reached by the jury in the original trial.

There were some negotiations toward a settlement but none was reached. After the decision in the Federal Court the attorney for Marcum offered to settle the two death claims and the personal injury claim of Gay Marcum for a total of $18,500.00. Later, by letter, he offered to settle those claims for $20,000.00. These offers were not accepted although they were not withdrawn. During the trial, but before the verdict, there was an opportunity to settle those three claims for $18,500.00, and while the jury was deliberating, for $20,000.00. At that time State Farm offered to pay $15,000.00 in settlement of all claims including those of the three injured children but never offered more. Being confronted with these very substantial claims based upon a finding by the court that Bell was liable, the refusal to settle the three very substantial claims is sufficient evidence upon which the jury could find a failure of the insurer to properly perform its obligation. Noshey v. American Auto Ins. Co., supra.

The insurer, as a professional defender of law suits, is held to a standard higher than that of an unskilled practitioner. 7A Insurance Law and Practice, Appleman, 562 section 4712. While it is an independent contractor (Bratton v. Speaks, Ky., 286 S.W.2d 526) and is not bound to act to the prejudice of its own interest, nevertheless, it must not abuse the power it has to negotiate and make settlements and refuse to settle within the limits of the policy if the damage to the insured is reasonably certain. American Surety Co. of New York v. J. F. Schneider & Son, Inc., Ky., 307 S.W.2d 192. Fidelity and Casualty Co. of New York v. Stewart Dry Goods Company, 208 Ky. 429, 271 S.W. 444, 43 A.L.R. 318. It must not be guilty of fraud or bad faith. Georgia Casualty Co. v. Mann, 242 Ky. 447, 46 S.W.2d 777; Best Building Company, Inc. v. Employers’ Liability Assurance Corp., Ltd., et al, 247 N.Y. 451, 160 N.E. 911, 71 A.L.R. 1464.

In Harrod v. Meridian Mutual Ins. Co., Ky., 389 S.W.2d 74, 76 we wrote:

“To support a recovery it was incumbent upon appellant to allege and prove that Meridian’s conduct was of such an arbitrary and reprehensible nature as to constitute bad faith. In the case of Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 416, 8 N.E.2d 895, 907, it was said:
‘ “Bad faith” is a general and somewhat indefinite term. It has no constricted meaning. It cannot be defined with exactness. It is not simply bad judgment. It is not merely negligence.
It imports a dishonest purpose of some moral obliquity. It implies conscious doing of wrong. It means a breach of a known duty through some motive of interest or ill will. It partakes of the nature of fraud. * * * It means “with actual intent to mislead or deceive another.” * * * ’
See also Slater v. Motorists Mutual Insurance Company, 174 Ohio St. 148, 187 N.E.2d 45; Johnson v. Hardware Mutual Casualty Co., 108 Vt. 269, 286, 187 A. 788, 796.”

It was proper for the court to submit the claims to the jury under appropriate instructions. United States Fidelity & Guaranty Co. v. Canale, (CA 6) 257 F.2d 138; Brown v. United States Fidelity and Guaranty Co., (CA 2) 314 F.2d 675.

The instructions to the jury contained a narration of certain facts. Appellant claims that these instructions “were prejudicially erroneous because they imposed the standards of negligence and prophecy in addition to ‘bad faith’ * * * ”, and contained evidentiary matters favorable to the appellees. The instructions contained certain statements of fact, but these facts were so clearly established that the statements were not prejudicial. There was no instruction as to presumption of law or fact such as we condemned in Pacific Mutual Life Ins. Co. v. Meade, 281 Ky. 36, 134 S.W.2d 960, 965; Massachusetts Mutual Life Ins. Co. v. Bush, 236 Ky. 400, 33 S.W.2d 351, 353. Lowe v. McMurray, Ky., 412 S.W.2d 571 decided March 10, 1967. No erroneous standards regarding bad faith of any prophecy were imposed. The duty of State Farm was expressed “to exercise good faith in determining whether said offer of settlement should be accepted or rejected; and ‘to exercise good faith’.” The jury was told that “good faith, * * * required said defendant insurance company to investigate the accident and claims in suit to such an extent that it would be in position to exercise an honest judgment as to their merits and whether the claims should be settled, considering the interests of its insured Bell as well as its own.” The duties were correctly stated. Radio Taxi Service, Inc. v. Lincoln Mutual Ins. Co., 31 N.J. 299, 157 A.2d 319; Cotton States Mutual Ins. Co. v. Phillips, 110 Ga.App. 581, 139 S.E.2d 412. The explanation was proper. Insurance Law and Practice, Appleman, Vol. 7A 565.

The jury also was instructed that in order for it to find against State Farm it had to believe that the conduct of State Farm “in negotiating about and failing to settle the plaintiff’s claims for the amount of the policy limits was of such an arbitrary and reprehensible nature as to constitute bad faith, meaning conscious doing of wrong, or breaching a known duty through some motive of interest or ill will.” The court continued:

“Now if the jury believe that said defendant Insurance Company failed to perform the duties above set out and acted in bad faith within the meaning of these instructions, and shall further believe from the evidence that the facts and circumstances of said accident known to said Insurance Company or could have been known by due diligence on its part were such as to cause said defendant Insurance Company to reasonably conclude and believe that a verdict against said Bell on a trial of the issue of liability was probable and that a verdict and judgment would probably be returned and rendered against the defendant Bell exceeding said policy limits of $20,000.00 you will return a verdict for plaintiffs and the defendant Bell against the defendant, State Farm Mutual Insurance Company in the sum of $34,389.22 but unless you so believe or if you believe as set out in instruction number 2 you will return a verdict in favor of defendant insurance company.”

Instruction number 2 was as follows:

“The court instructs you that if you believe from the evidence that said Insurance Company acted in good faith and not in bad faith within the meaning of the instructions or that the facts and circumstances of said accident known to said Insurance Company or could have been known to it by the exercise of due diligence were not such as to cause said defendant Insurance Company in the exercise of an honest judgment to conclude and believe that a verdict against said Bell upon a trial of the issue of liability was probable and that a verdict and judgment would probably be returned and rendered exceeding the sum of $20,000.00 then the defendant Insurance Company was under no duty to settle said claims and in those events you will return a verdict in favor of the defendant Insurance Company.”

The instructions clearly submitted to the jury the issue to be decided. There was evidence of probative value sufficient to support the verdict of $34,389.22 which was not flagrantly against the evidence.

We have examined the other contentions of appellant, including the claim that there was misconduct on the part of counsel for Marcum and alleged improper remarks of the trial court. We find that the acts complained of, if erroneous, were not prejudicial.

The judgment is affirmed.

All concur except WILLIAMS, C. J., and HILL, J., who dissent.

WILLIAMS, Chief Justice

(dissenting).

I respectfully dissent from the majority ■opinion for two reasons: First, appellant did not at any time have a bona fide opportunity to settle all of the claims which might have been made against it; second, Bell failed to avail himself of the opportunity to employ his own counsel although appellant specifically authorized him to do so. His failure to obtain special counsel was his implied consent for appellant’s counsel to represent his personal interest and he cannot now be heard to complain. Furthermore, he never at any time requested the appellant to settle.

HILL, J., joins in this dissent.


author: MILLIKEN, Judge.

text:
    Delores ALLEN, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF CHILD WELFARE, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.

      Edward L. Clark, Louisville, for appellant.
    Lynn T. Mitchell, Dept, of Child Welfare, Frankfort, for appellee.
   MILLIKEN, Judge.

The appellant, Delores Allen, lost the parental rights to her five children in an involuntary termination of parental rights proceeding under KRS 199.600 which was brought by the Department of Child Welfare. She appeals on the ground that she has not been proven guilty of abandonment or desertion as is required by KRS 199.600. The facts show that through circumstances beyond her control, she was forced to place the children with the Department of Child Welfare. Her husband had abandoned her and she was unable to support them. The parental rights of the fathers of the children also were terminated and the fathers have not appealed.

After placing the children with the Department, Delores tried to get various welfare groups to help, but was unsuccessful in her attempts. Her determination in this respect was rather short lived, however, because after appearing at Department offices on February 15, 1964, she did not contact that agency nor permit it to contact her until this proceeding was begun in February of 1966. Thus, for nearly two years she had not inquired about her children. During the two-year period, appellant also acquired a reputation for hanging around bars, drinking, living with a strange man and was arrested once for prostitution. Appellant told the court at the hearing that she wanted the children back, but admitted she didn’t have a job to support them with or a decent place to live. Her mother was willing to help appellant, but it was doubtful she could improve the situation much with her $144.00 a month take-home pay.

The Department argues that appellant was not at fault originally in placing the children with the Department, but while the children were so placed, displayed her unfitness for parenthood. It is the Department’s contention that the children were abandoned by their mother because she left them with the Department and then went two years without even asking about them. Certainly during the two-year period neither she nor her mother made any effort to prepare a home for them.

The chancellor found that the appellant both neglected and abandoned the children within the meaning of KRS 199.011, and that the parental rights of both the mother and fathers should be terminated in the interests of the welfare of the children. . He observed that the appellant was not primarily at fault when she brought the children to the Department, but her conduct since then was “her own doing and her own choosing”.

Counsel for Delores points to her many efforts to get financial assistance before she placed the children with the Department as evidence that she wanted to keep them. The testimony reveals the deplorable condition of the children, physically and emotionally, when the Department obtained them, and the bestial, perverted nature of the father of the younger children. It was necessary to call in a psychologist to attempt to relieve the abnormal fears of two of them.

We agree with the chancellor that the appellant’s indifference to the children after they were placed with the Department and her apparent lack of effort to establish a home for them to return to are potent evidence that she had neglected and abandoned them. A return to the type of parental care these children experienced certainly would again endanger their “morals, health or welfare”, and put them in “destitute circumstances” within the meaning of KRS 199.011.

For the welfare of these children, the judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    Roy SANDERS et al., Appellants, v. Jerre C. MATTICK et al., d/b/a East End Lumber Company, Appellees.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.

      William G. Reed, Carrollton, for appellants.
    R. L. Hardin, Carrollton, for appellees.
   STEINFELD, Judge.

Appellees are engaged in the lumber and building materials business. Appellant, Roy Sanders, is a building contractor. The lumber company claimed that Sanders owed it $22,048.70 for goods and supplies bought and delivered between May 24, 1958, and May 8, 1961. Various defenses to this claim were made. From a judgment in favor of the lumber company in the amount of $9,472.10 with interest the contractor appeals. We affirm.

The contractor admits that over a period of years he had made many purchases from the lumber company. Apparently he had depended upon Mr. Jerre C. Mattick, one of the owners of the lumber company, to keep the records of his indebtedness and Sanders kept no records. The original answer was a general denial. Next tendered was an amended answer and counterclaim in which Sanders charged that instead of being indebted to the lumber company the lumber company owed him $25,626.00 for merchandise returned, payments made but not credited and for bookkeeping errors. Later he filed a second amended answer and counterclaim admitting mistakes made in the first counterclaim. This time he demanded that he recover of the lumber company $20,603.39. In his third amended answer and counterclaim he charged that in addition to the other demands he had made, the lumber company owed him the additional sum of $5,805.00 for discounts on purchases he had made.

The trial court appointed a special commissioner for the purpose of hearing testimony, examining the multitude of entries of account and supporting memoranda and making a report to the court. Five volumes of testimony were taken. The special commissioner sought and obtained the aid of a certified public accountant in preparing his computation. Exceptions were filed to the commissioner’s report. The trial court sustained some of the exceptions and entered the judgment from which this appeal is taken.

It appears that the usual and customary bookkeeping methods of the lumber company included the preparation of three copies of each sales ticket. The customer took the yellow copy, the pink copy went into the ticket machine and the original which was a white ticket was used by Jerre C. Mattick in entering charges for sales on the loose leaf ledger sheets. These ledger sheets became the “book of original entry” as defined in Givens v. Pierson’s Adm’x, 167 Ky. 574, 181 S.W. 324 (1916). The ledger sheets were produced in evidence. 114 yellow and pink daily sales tickets were offered by Sanders to support his claim that a haphazard method was used by the lumber company in its bookkeeping procedures. The lumber company objected to their introduction. The testimony showed that these tickets were made in the usual course of business and promptly transmitted to Mattick for entry on the ledger sheets. Jungkind Photo Supply Co. v. J. W. Yates, Mo., 257 S.W. 820 (1924). We know of no reason why they should not have been admitted for the purpose offered.

Appellant says that “the sole question to be determined on this appeal is: Should appellant, Roy Sanders, be charged with the sum of $10,920.57 represented by the 114 irregular yellow and pink daily sales tickets?”. He contends that these 114 sales tickets were “irregular” and that these made up a total of $10,920.57 of the charges. He says that the testimony of Jerre C. Mattick with respect to these sales tickets indicates a “feeble” effort to justify these charges.

He claims that these 114 daily sales tickets are branded “with every badge of fraud”, but he introduced no proof which indicated fraudulent acts. The appellant did not testify that he did not receive the merchandise. He did not produce any bookkeeping records to show what purchases he made. He demands that we conclude that the testimony is unworthy of belief, and argues that “a casual examination of all the evidence * * * would cause an open minded person to wonder if they ever existed prior to the introduction in evidence as completely as appellee Mattick had prepared them, in absolute contradiction of that firm’s method of bookkeeping.”

The trial tribunal is the finder of fact. Fleming v. Rife, Ky., 328 S.W.2d 151 (1959); Standard Farm Stores v. Dixon, Ky., 339 S.W.2d 440 (1960); CR 52.01. Here a special commissioner, aided by a certified public accountant, reported his conclusion and then the trial court made a decision on which the judgment was entered. Whether we are caused to wonder if this decision is correct is not the test. “The scope of our review is to determine whether there was sufficient competent evidence to support a judgment * * * ”. Creech v. Miniard, Ky., 408 S.W.2d 432 (1965). Burke v. Burke, Ky., 416 S.W.2d 724 (1967); Ferguson Contracting Co., Inc. v. Charles E. Story Construction Co., Ky., 417 S.W.2d 228 (decided June 30, 1967).

Mattick testified that all tickets from which he made the entries on the books were prepared in the normal course of business. In Johnson’s Adm’r v. Johnson, Ky., 244 S.W.2d 969 (1951) we said:

“The degree of credence to be given books and records of account depends upon their character and the circumstances. Often they are regarded with suspicion for they are usually of a self-serving nature. Martin v. Taylor’s Ex’x, 285 Ky. 128, 147 S.W.2d 70; Hopkins’ Ex’x v. Osborne, 278 Ky. 229, 128 S.W.2d 575, 142 A.L.R. 1403. But the books in the present case were regularly kept by clerks in an office doing a substantial business and there is no reason why they should not be accepted at face value and without suspicion. Johnson’s Adm’r v. Pigg, 242 Ky. 631, 47 S.W.2d 63; Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498. That a modern looseleaf system of bookkeeping was used does not militate against competency, other conditions being present. Gus Datillo Fruit Co. v. Louisville & N.R.R. Co., 238 Ky. 322, 37 S.W.2d 856.”

The appellant points out that the deposition of fie two partners who operated the lumber business was taken for discovery (CR 26.01) and that each of them testified that the lumber company’s books and records with respect to the Sanders account were accurate, and that neither of them “even as much as hinted that any part of Sanders’ records were in the unworthy condition as they were when presented to the commissioner at the hearing.” Sanders claims that this constituted judicial admissions which prevent recovery. He cited Halbert v. Lange, Ky., 313 Ky. 648, 233 S.W.2d 278 (1950) and relies on the following:

“In 50 A.L.R. page 980, it is said: ‘An examination of the decisions reveals that when a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him so as to show that he was mistaken although testifying in good faith, it has generally been held that he is conclusively bound by his own testimony, and cannot successfully complain if he is non-suited or the court directs a verdict against him.’ See also annotated cases at page indicated above.
“Thus, it will be observed that admissions will be conclusive only as long as they are allowed to stand. This conclusiveness, however, is destroyed if and when the party corrects his statements, explains them, or introduces other testimony showing that he could have been mistaken as to the facts.
“It appears difficult to lay down an ironclad or entirely satisfactory rule. The true test seems to be whether the party’s testimony is merely a narrative of events observed or participated in, wherein there is always present the obvious possibility that he, like any other witness, could be mistaken, or whether he was testifying to facts peculiarly within his own knowledge. See Harlow v. LaClair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973. This can be observed by taking into consideration all the conditions and circumstances proven in the case. The correct and generally accepted rule seems to be that laid down in the Sutherland case, above cited by appellant: ‘We believe the law to be that admissions fatal to his cause given in the testimony of a party to an action on the trial of the case should be viewed in the light of all the conditions and circumstances proven in the case; and unless all such circumstances and conditions give rise to the probability of error in the party’s own testimony, he should not be permitted to avert the consequences of his testimony by the introduction of, or reliance on, other evidence in the case.”

The statements that the bookkeeping records were accurate supported the claim. The condition of the bookkeeping records did not “defeat the right to recover” and is not fatal to the cause. There was no “judicial admission” adverse to the lumber company.

Sanders also contends that the testimony of Mattick was uncorroborated and because he is an interested party his testimony should be weighed carefully. The testimony was corroborated to a degree by the ledger sheets and the sales slips which were prepared when and as the sales were made. The findings of fact made by the trial court (CR 52.01) indicate that careful consideration was given to all the testimony. The report of the special commissioner was not fully accepted. The court made a number of adjustments in the commissioner’s findings. It is our conclusion that there was sufficient evidence before the trial court to support the judgment and that appellants’ claims are without merit.

The judgment is affirmed.

All concur.


text:
    Larry SNELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.

      Howell W. Vincent, Joseph C. Healy, Covington, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst, Atty. Gen., Frankfort, James R. Ford, Commonwealth’s Atty., Owenton, for appellee.
   STEINFELD, Judge.

Larry Snell and Grace Reece were indicted on a charge that “on or about the 28th day of June 1966, in Owen County, Kentucky, (they) wilfully and maliciously threw stones, dangerous or deadly missies, at and into a storehouse, to-wit: The News Herald Building, a building where people frequent for business.” KRS 435.170(4). The Commonwealth elected to try Larry Snell separately. He was found guilty and the jury set his fine at $2,000.00. From a judgment upholding the verdict and assessing that fine Snell has appealed. We affirm.

Appellant complains that the court erred in failing “to instruct on the whole law of the case”, in “failing to instruct on what constituted a dangerous or felonious missle” and “in failing to instruct or define on what constituted a stone or dangerous or deadly missle.”

RCA 1.210(a) 3 provides that the brief of the appellant shall contain:

“A ‘STATEMENT OF THE CASE’, which shall include (a) a statement of the nature of the proceeding and (b) a concise chronological statement, in narrative form, of the essential facts necessary to determine the questions in controversy, with appropriate page references to the record and the transcript of testimony.”

Appellant contents himself with the following statement of facts:

“The evidence of the appellant is: that he did not throw a stone or stones into the News Herald Building, a building where people frequent for business. The evidence was disclosed that he did roll a stone on the floor into the herein business establishment to which there was a twenty dollar bill attached as set out in the Transcript of Testimony of Mildred Lynn Smith, page 80, which was that the twenty dollar bill was to be used in the payment for an ad.”

Nowhere else is there any statement of fact “necessary to determine the questions in controversy, with appropriate page references to the record and the transcript of testimony.” We have examined page 80 of the transcript of testimony to find what Mildred Lynn Smith stated. It reveals that she said that she was an employee of the Tax Commissioner’s Office in the Court House and that she was sitting at her desk from which she could see out through the window in the direction of the News Herald Building. Nothing more is found on page 80 of the transcript of testimony. We have carefully examined the remainder of the testimony of Mildred Lynn Smith and find that she said nothing similar to the statement quoted from appellant’s brief.

The only contention for reversal is that the instructions are erroneous. The propriety of the instructions must always be determined by facts in the particular case. Stanleys Instructions to Juries, Vol. I, page 3 § 2. The failure of appellant to comply with RCA 1.210 leaves this court without the statement of essential facts and references necessary for it to give proper consideration to this sole contention. Grief v. Wood, Ky., 378 S.W.2d 611 (1964). To warrant a reversal of a judgment of conviction, error must affirmatively appear in the record and this error must show that substantial rights of the defendants have been prejudiced. Hunt v. Commonwealth, 240 Ky. 293, 42 S.W.2d 315 (1931); Page, et al. v. Commonwealth, 202 Ky. 50, 258 S.W. 958 (1924). Every presumption is in favor of the regularity of the trial. Allen v. Commonwealth, 272 Ky. 533, 114 S.W.2d 757 (1938). The transcript of testimony is contained in two volumes on a total of 152 pages. We are not required to, and generally will not, search an entire record for the purpose of determining whether or not a contention of a litigant should be sustained. Garvey v. Garvey, 156 Ky. 664, 161 S.W. 526 (1913). The burden is on the parties and not the court. Jones v. Jones, 305 Ky. 5, 202 S.W.2d 746 (1947); Center v. Stamper, Ky., 318 S.W.2d 853 (1958).

From what was called to our attention we are not convinced that the instructions were improper. “Under the circumstances we must assume * * * that the court properly instructed the jury; * * Watkins v. Commonwealth, 290 Ky. 416, 161 S.W.2d 625 (1942).

The judgment is affirmed.

All concur.


text:
    E. I. DuPONT de NEMOURS & COMPANY and Insurance Company of North America, Appellants, v. Barbara F. CONNICK et al., Appellees.
    Court of Appeals of Kentucky.

      Oct. 27, 1967.

      Edgar A. Zingman, A. Wallace Grafton, Jr., Wyatt, Grafton & Sloss, Louisville, for appellants.
    Edwin A. Schroering, Jr., Louisville, for appellees.
   PALMORE, Judge.

In E. I. DuPont de Nemours & Company v. Connick, Ky., 400 S.W.2d 522 (1966), this court affirmed a judgment of the Jefferson Circuit Court which had confirmed a workmen’s compensation award to the appellee herein, Barbara F. Connick, individually and in behalf of her infant son, in the amount of $34 per week for 400 weeks plus a $500 burial allowance, arising from the death of her husband. Cf. KRS 342.070, 342.075, 342.160. The appellant company (hereinafter DuPont) had superseded the judgment pursuant to KRS 342.300.

On March 12, 1966, when the mandate was issued, $4,000 of the original award was due and payable, and it was promptly paid. DuPont’s tender of $400 in satisfaction of the 10% penalty imposed by KRS 21.130 was rejected. Mrs. Connick contended she was entitled to $1,410, being an amount equal to 10% of the entire award, including all payments due and to become due. The circuit court agreed and entered a judgment accordingly. DuPont’s motion for an appeal to this court was sustained.

In Rice v. Conley, Ky., 419 S.W.2d 769 (decided today), it was settled that the statutory 10% penalty applies only to the amount of money the supersedeas bond has prevented the successful party from being able to collect during the pendency of the appeal and until the mandate was issued. In this respect, the key words of KRS 21.130 are, “the collection of which * * * has been superseded,” etc. (Emphasis ours.) As stated in Solter v. Sandy Valley Grocery Company, Ky., 352 S.W.2d 816 (1961), the 10% damages are payable by reason of the delay “in the collection” of the debt.

The judgment is therefore reversed for further proceedings consistent herewith.

All concur.