author: WADDILL, Commissioner.

text:
    Linda TAYLOR, Appellant, v. Gerald TAYLOR, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.

      Val A. House, Jr., Scottsville, for appellant.
    Frank R. Goad, Scottsville, for appellee.
   WADDILL, Commissioner.

Linda Taylor appeals from that portion of a judgment which awards $30 a month for the support of her eight month old daughter and permits her former husband, the child’s father, to take the child with him one weekend each month. In seeking modification of the judgment she argues that the award is inadequate for the needs of the child and that it is not in the best interest of a child of such tender years to be separated from its mother for the length of time permitted in the judgment.

Under facts similar to those appearing in the instant case we held, in Robinson v. Robinson, Ky., 363 S.W.2d 111, that $10 a week was clearly insufficient and that an able-bodied father must pay the minimum amount necessary for the decent support of his children. While ordinarily the fixing of support for children is left to the Chancellor, it is our opinion that, under this record, the needs of this child require an award of at least $50 a month.

We also believe it is not in the best interest of the child to be separated from its mother as authorized by the Chancellor. We reach this determination because of the child’s extreme youth. At the present time visitation by the father should be limited to brief periods during daylight hours at a place convenient to the child’s mother.

To the extent indicated herein the judgment is reversed and the case is remanded to the Allen Circuit Court with directions to enter a new judgment which is not inconsistent with this opinion.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    Marvin FANNIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.

      William H. McCann, John Y. Brown, Lexington, Harvey Parker, Jr., E. V. Holder, Jr., Vanceburg, for appellant.
    Robert Matthews, Atty. Gen., Joyce Ferris Nedde, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

This is an appeal from an order overruling appellant’s motion to vacate a judgment under RCr 11.42.

Appellant was convicted and given a life sentence on March 6, 1964, under an indictment rendered February 10, 1964, on a charge of a willful murder committed on December 14, 1963. After the verdict of guilty was rendered, appellant, in the presence of his attorneys, entered a plea of guilty to a charge of malicious shooting and wounding of his wife with intent to kill and was given a 15 year sentence. The judgment provided the two terms run concurrently.

On November 11, 1964, appellant filed motion to vacate these judgments under RCr 11.42. The substance of the contentions made by appellant on this appeal is that he was improperly denied a continuance and he has newly discovered evidence. He contends now, that since the trial and judgment, he has discovered that there was a “relationship” between his wife and the deceased person. It is shown in the record that the person supplying this claimed newly discovered evidence was a surety on appellant’s appearance bond and related to appellant.

The trial court found against appellant on disputed questions of fact, which is one legal reason for denying appellant relief on his appeal.

Yet, another, and perhaps better, reason we dismiss this appeal is the well-established rule that unless the irregularities would render the judgment void this Court will not inquire into proceedings under RCr 11.42 wherein the movant had a remedy by appeal, which he did not pursue.

In Tipton v. Commonwealth, Ky., 376 S.W.2d 290 (1964), this Court said:

“RCr 11.42 does not authorize relief from a judgment of conviction for mere errors of the trial court. In order for the rule to be invoked there must be a violation of a constitutional right, a lack of jurisdiction, or such violation of a statute as to make the judgment void and therefore subject to collateral attack. * * * ”

This Court also said in Perkins v. Commonwealth, Ky., 382 S.W.2d 393 (1964), that newly discovered evidence is not a ground for relief under RCr 11.42. Furthermore, this evidence was cumulative. In Chambers v. Commonwealth, Ky., 264 S.W.2d 61 (1953), it was held merely cumulative evidence does not warrant a new trial on the ground of newly discovered evidence. See also Collier v. Commonwealth, Ky., 387 S.W.2d 858 (1965); King v. Commonwealth, Ky., 387 S.W.2d 582 (1965). See also Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Kinmon v. Commonwealth, Ky., 383 S.W.2d 338 (1964); and Braxton v. Maxwell, 1 Ohio St.2d 134, 205 N.E.2d 397 (1965); Walker v. Maxwell, 1 Ohio St.2d 136, 205 N.E.2d 394 (1965).

Appellant also contends his second conviction should be set aside. We find no supporting ground either in the motion or in the .evidence to justify such relief. This Court said in Lawson v. Commonwealth, Ky., 386 S.W.2d 734 (1965):

“Appellant does not assert that counsel badgered him into entering a guilty plea, nor does he claim that he failed to understand the consequences of his guilty plea. Under these circumstances, the record shows on its face that no basis has been laid upon which to support the claim of inadequate counsel.”

We find no merit in appellant’s contention he was entitled to a continuance.

Judgment is hence affirmed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Charles PARKER, Appellee.
    Court of Appeals of Kentucky.
    Oct. 16, 1965.
    H. C. Smith, Frankfort, Reed D. Anderson, Madisonville, for appellant.
    Gross C. Lindsay, Henderson, for appel-lee.
   DAVIS, Commissioner.

This appeal presents a question whether a summons on an appeal to the circuit court from an award of the Workmen’s Compensation Board was properly served. The trial court dismissed the appeal as improperly prosecuted; the Department of Highways contends that the lower court’s ruling was erroneous.

Appellee Parker, an employee of the appellant Department, filed claim for compensation arising from an injury alleged to have been suffered by him in his employment. The Workmen’s Compensation Board made an award to him; the Department appealed to the Henderson Circuit Court, pursuant to KRS 342.285. The filing of the appeal was timely.

The Department caused summons to be issued against appellee Parker; this process was placed in the hands of the Henderson County Sheriff and promptly served. Summons was also issued for the Workmen’s Compensation Board, hut, pursuant to the directions of the Department’s attorney, was caused to be served by leaving a copy with the Attorney General. The plain provision of KRS 342.285(1) requires that in such appeals the service of process upon the Workmen’s Compensation Board shall be had on the Executive Secretary of the Board — not the Attorney General. CR 4.04 (6) prescribes that service of process shall be made upon the Commonwealth or any agency thereof by serving the Attorney General or any assistant attorney general, and may account for the mistake of the Department’s attorney.

Appellee Parker moved for dismissal of the appeal from the Board on the ground that service upon the Board had not been made properly. Subsequently, and after the time allowed for the appeal from the Board to the circuit court, alias summons was issued and duly served upon the Executive Secretary of the Board. It is significant that the Board does not raise any question as to the adequacy of service.

It is our view that the trial court erred in dismissing the appeal. There is no showing of any “bad faith” upon the part of appellant. CR 3 and KRS 413.250 provide that a civil action is commenced by the filing of the complaint with the court and the issuance of summons or warning order thereon in good faith. As recently as Roehrig v. Merchant’s and Businessmen’s Mutual Ins. Co., Ky., 391 S.W.2d 369, we treated the question of “good faith” as applied in this type situation. It is our view that the rationale expressed in that opinion, and the authorities there cited and discussed, are dispositive of the question before us, and require reversal. Blue Grass Mining Co. v. North, 265 Ky. 250, 96 S.W.2d 757, and Appleton v. Southern Trust Co., 244 Ky. 453, 51 S.W.2d 447, relied on by the trial court, are distinguishable on their facts from the case at bar and are not controlling here.

The judgment is reversed for further proceedings consistent with the opinion.


text:
    CITY OF RUSSELL, Kentucky, a Municipal Corporation, Appellant, v. CITY OF FLATWOODS, Kentucky, a Municipal Corporation, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.

      J. W. McKenzie, A. W. Mann, Ashland, for appellant.
    J. G. M. Robinson, Ashland, Frank K. Warnock, Greenup, for appellee.
   WADDILL, Commissioner.

By this action the appellee, City of Flat-woods, seeks to judicially establish the validity of a contract which it allegedly entered into with appellant, City of Russell, providing for the latter’s use of certain sewage disposal facilities to be constructed, operated and owned by Flatwoods. The trial court held that the contract is a valid one and entered judgment requiring both cities to perform its terms.

Russell appeals urging for reversal of the judgment that the contract is invalid because it contravenes Sections 159, 162, 164 and 179 of the Constitution of Kentucky and because it was not lawfully executed. Russell further urges that, if the contract were valid, its terms were abrogated by Flatwoods thereby excusing performance by Russell.

Flatwoods and Russell are cities of the fourth class and are located in Greenup County near the south bank of the Ohio River. Prior to July 18, 1960, neither of these cities had a sewage treatment plant. In order to lawfully and properly dispose of sewage certain officials of these cities agreed upon a plan whereby Flatwoods would build the necessary facilities and finance their construction by the sale of revenue bonds. It was further agreed that Russell’s sewage would be collected through a trunk line constructed by Flat-woods and that Russell would pay Flat-woods, over a period of twenty years, a monthly sum to be determined by the amount of Russell’s sewage that was collected and treated by Flatwoods’ facilities.

After these cities had purportedly enacted appropriate ordinances authorizing their mayors to sign the proposed contract, and after Flatwoods had spent approximately $190,000, constructing the sewage facilities, the officials of Russell refused to honor and perform the contract that they entered into. We consider the grounds upon which this refusal is based.

It is contended that the contract (and the ordinance authorizing Russell’s mayor to execute it) violates Section 159 of the Constitution of Kentucky because Russell failed to levy an annual tax for the raising of funds to pay for the costs incurred under the contract. This contention is without merit because, as we construe the contract, it does not create an indebtedness in violation of Sections 157, 158 and 159 of our State Constitution. Russell has not and will not be required to issue any bonds or to make an appropriation of public funds to finance its obligation under the contract. To the extent that Russell is required to collect and pay to Flatwoods a monthly service charge from the individual users of the sewage facilities, there is no commitment of public funds. The only sum Russell will be required to pay Flatwoods from public funds is an undisclosed monthly amount for the treatment of sewage from its city-owned buildings. In Francis v. City of Bowling Green, 259 Ky. 525, 82 S.W.2d 804, we found no constitutional objection to an arrangement such as this.

It is contended that the contract (and the Russell Ordinance) violates Section 164 of the Kentucky Constitution because it awards Flatwoods a franchise.

In Louisville & Jefferson Co. M.S.D. v. Town of Strathmoor Village, 307 Ky. 343, 211 S.W.2d 127, we upheld the validity of a sewage disposal contract between Louisville and two six-class cities. Therein we recognized that the construction and maintenance of public sewers is a governmental function for which public funds could be expended. (Also see KRS, Chapter 58). In rejecting the claim that the contracts granted a franchise we stated:

h= * The contracts involved have some of the attributes of a privilege, but the rights conferred do not have the character of a franchise. * * * The contracts are mutually advantageous to the three municipal corporations. They have added no appreciable burden. They constitute mere rental of a surplus facility. * * *.
“We, therefore, hold that these contracts do not violate Section 164 of the Constitution.”

It is argued that if this contract is approved, Russell would become a stockholder in the corporate affairs of Flatwoods and would lend its credit to Flatwoods in violation of Section 179 of the Kentucky Constitution. There is absolutely no basis for this assertion. Under the contract Flat-woods is to issue and sell its own revenue bonds and construct, own and operate the sewage facilities. The only financial obligation that Russell incurs is in payment for benefits received by it from the use of the Flatwoods’ facilities. The argument in support of this contention deserves no further consideration. See Norvell v. City of Danville, Ky., 355 S.W.2d 689; Bennett v. City of Mayfield, Ky., 323 S.W.2d 573; Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80.

It is contended that, even though the mayor of Russell signed the contract with Flatwoods, this was ineffectual since the city ordinance authorizing Russell’s mayor to sign the contract was not signed by him. The short answer to this is that the ordinance was validly enacted without the mayor’s signature since he did not return the ordinance to the city clerk with his written objections within ten days after its passage. KRS 86.090(3). It is our opinion that the ordinance was lawfully enacted.

It is finally contended that Flat-woods abrogated the contract when it authorized the sale of 30-year revenue bonds rather than 20-year bonds as Flatwoods had originally intended. Since Russell incurred no obligation in respect to these bonds, and since the term of the bonds was not a part of the contract, there is no merit in this contention.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. CITIZENS ICE & FUEL COMPANY, Inc., Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellant.
    T. E. Mahan, Williamsburg, for appellee.
   DAVIS, Commissioner.

This appeal is here pursuant to Motion for Appeal, KRS 21.080, and presents the question whether it was proper for the trial court to allow appellee interest of $431.86 in the judgment entered pursuant to mandate of this Court in Commonwealth, Department of Highways v. Citizens Ice & Fuel Company, Ky., 365 S.W.2d 113. Appellee has not filed brief. Pursuant to RCA 1.260(c) (2) we reverse the judgment as the appellant’s brief reasonably appears to sustain such action. The Motion for Appeal was sustained because we felt the issue involved should be resolved for the guidance of bench and bar, hence we briefly state the nature of the controversy.

In this condemnation proceeding pursuant to KRS 177.081, et seq., the Department duly made deposit in the hands of the Clerk of the Whitley County Court of $1972.00, the amount reported as due by the commissioners in that tribunal. KRS 177.086 (2) (c). The county court judgment, entered September 9, 1959, adjudged that the Department had the right to condemn. The Department took possession of the condemned property before the litigation was concluded.

On appeal to the Whitley Circuit Court, by the first judgment, the amount of award was increased to $2500.00; interest at 6% per annum on the $528 increase was awarded appellee in that judgment, to be computed from September 9, 1959, (date of the county court judgment) until paid. The trial court then sustained appellee’s motion for a new trial, following which the second judgment was entered in the Whitley Circuit Court; the award on the second trial was $5000.00. The judgment allowed interest at the same rate from date of the county court judgment until paid, on the increase of $3028.00. It was the second judgment which was reversed upon the first appeal to this Court; see 365 S.W.2d 113. Our mandate directed that the first verdict be reinstated and a new judgment entered upon it.

The trial court complied with that mandate, but varied the judgment as it affects the computation of interest. This appeal challenges the judgment in that respect. The trial court found as fact, in the judgment before us now, that the Whitley County Court Clerk had refused to pay to appellee the $1972.00 originally deposited by the Department, until May 3, 1963. The trial court then further found that “ * * * it was the duty of * * * (Department) * * * to see that the said clerk paid said sum to defendant after deposit with said clerk.” Accordingly, the trial court adjudged that the present appellee recover interest at 6% per annum from September 9, 1959, to May 3, 1963, on the $1972.00 originally deposited by the Department. This was error.

The Department had no duty to tender any order in the county court providing for payment to the condemnee; its duty in that respect was fulfilled when it paid in the money. Here there is no claim that the condemnee apprised the Department of its difficulty in obtaining the deposit — and even had there been such notice to the Department, we doubt that it would have served to impose a duty on the Department to practice the case for the condemnee.

The judgment is reversed with directions to enter judgment in all respects the same as the judgment appealed from except that no allowance shall be made for interest in any amount upon the sum of $1972.00 paid into the Whitley County Court by the Department.


text:
    John J. COLEMAN et al., Appellants, v. Andrew PONTICOS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.

      Robert F. Greene, Burlington, for appellants.
    Howell W. Vincent, Rodney S. Bryson, Covington, for appellees.
   HILL, Judge.

This is an appeal from a judgment entered on appellee’s motion for summary judgment, in appellee’s suit to cancel a contract and performance bond.

The Colemans, who owned a house in a subdivision being developed by appellee, Andrew Ponticos, had previously filed an action against Ponticos seeking to enjoin him from building any more houses in the subdivision on the ground that he was not complying with restrictions reserved in the deed to the Colemans. Before entry of a judgment in that case the parties executed the contract and performance bond which are the subject of this action.

The contract, dated December IS, 1961, provided that on June 15, 1962, the Cole-mans would convey and Ponticos would purchase the Coleman property for $19,350. Ponticos agreed to and did execute a $5000 performance bond with the appellee, The Cincinnati Insurance Company, as surety. The Colemans in turn agreed to waive, release and forever quitclaim all right, title and interest they had in the restrictions set out in their deed. They also agreed to dismiss the suit seeking to enjoin Ponticos from building any more houses.

On the date set in the contract for conveyance Ponticos filed this action to enjoin the Colemans from enforcing the contract. The Colemans counterclaimed against Pon-ticos and cross-claimed against The Cincinnati Insurance Company.

At the conclusion of a hearing on motion for summary judgment the chancellor entered judgment declaring the contract in question void for “lack of mutuality,” and adjudging Ponticos the relief he sought in his complaint. We conclude the chancellor was in error in so finding. The contract is valid. 17 Am.Jur.2d Contracts, Section 104; Fowler’s Bootery v. Selby Shoe Company, 273 Ky. 670, 117 S.W.2d 931; and Rodgers v. Larrimore & Perkins, 188 Ky. 468, 222 S.W. 512.

The judgment is therefore reversed with directions that it be set aside, and that the parties be heard on issues presented by the pleadings.

Judgment reversed.


author: OSCAR SAMMONS, Special Commissioner.

text:
    Frank WILLIAMS, Appellant, v. Raymond EHMAN, James B. Walters and Ralph Veals, Appellees.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.

      James Levin, Ben Hanish, Louisville, for appellant.
    Robert C. Hobson, John P. Sandidge, Arthur H. Wilding, Jones, Ewen & Mackenzie, Louisville, for appellees.
   OSCAR SAMMONS, Special Commissioner.

This action comes as a result of an automobile accident that occurred on Shep-herdsville Road in Jefferson County, Kentucky, about 1:15 a. m., May 2, 1962. Shep-herdsville Road is a two-lane highway that runs north and south. The appellee, Veals, traveling north, in order to avoid an oncoming car ran off the road on his right. His car came to rest against a telephone pole about three to five feet off the pavement a short distance south of the crest of a hill. As a result of this accident Veals was knocked unconscious, received a broken right arm, and various cuts and bruises. As appellee Walters drove by going south, Veals was standing by his wrecked car waving and calling for help. Walters rer duced his speed from about forty-five to twenty-five miles per hour, preparatory to stopping to render assistance to Veals. Ap-pellee Ehman, also traveling south behind Walters, ran his car into the rear of the Walters automobile. Appellant, Frank Williams, a passenger in the Ehman car, was seriously injured.

Williams filed this action against Walters, Ehman, and Veals. Appellee Walters answered alleging that appellant’s injuries resulted solely from the negligence of ap-pellee Ehman. Appellee Ehman answered alleging that appellant’s injuries resulted solely from the negligence of Walters. The appellee, Veals, answered alleging that appellant’s injuries were caused entirely by the action of Walters and Ehman. The depositions of all the parties were taken and are part of this record. The judge entered a summary judgment dismissing the complaint as against the appellee, Veals. From the summary judgment this appeal is taken.

Appellant raises two questions on this appeal. They are:

“(1) Did the actions of appellee, Veals, present a question of negligence that should have been submitted to a jury?
“(2) If the acts of the appellee, Veals, were negligent, was the injury to appellant so related to such negligence as to justify submitting to the jury the question of whether such acts were the proximate or contributing cause of the injury?”

The fact that Veals ran off the road on the east side and hit a telephone pole, in itself did not contribute to or cause the accident in which appellant, Williams, was injured. There remains, however, the matter argued by appellant as to whether the action of Veals in standing off the edge of the road by his damaged automobile in his injured condition, a short distance below the crest of a hill, in the nighttime, waving his arms and calling for help as a car passed constituted negligence.

The problem of what constitutes actionable negligence is clearly stated in Warfield Natural Gas Co. v. Allen, (1933) 248 Ky. 646, 59 S.W.2d 534, 91 A.L.R. 890: “Actionable negligence consists of a duty, a violation thereof, and consequent injury. The absence of any one of the three elements is fatal to the claim.” See also Chesapeake and Ohio Ry. Co. v. Carmichael, (1944) 298 Ky. 769, 184 S.W.2d 91; Louisville & N. R. Co. v. Vaughn, (1942) 292 Ky. 120, 166 S.W.2d 43; Eaton v. Louisville & N. R. Co., et al., (1953) Ky., 259 S.W.2d 29; Leonard v. Enterprise Realty Co., (1920) 187 Ky. 578, 219 S.W. 1066, 10 A.L.R. 238. In the case at bar, Veals was standing beside a heavily traveled highway in the nighttime just below the crest of a hill in an injured and dazed condition. We cannot say that he had a duty to not stand there; nor can we say that he was under a duty to refrain from attempting to obtain assistance by waving his arms and calling out for help.

The argument of appellee that Veals was in an emergency situation is well taken. Veals was injured and knocked unconscious. He had just recovered consciousness and in a dazed condition realized that he needed help. One acting in a sudden crisis is not required to exercise that deliberate judgment which time for reflection affords. See Louisville Ry. Co. v. Logan, (1947) 306 Ky. 35, 206 S.W.2d 80; Louisville & N. R. Co. v. Henry’s Adm’r, 252 Ky. 278, 66 S.W.2d 818 (1933).

It is also the opinion of the Court that the acts of one who is injured and standing by the side of a highway waving his arms and calling out to a passing motorist for help, whereby the motorist slows down and is struck in the rear by a trailing motorist with resulting injury to a passenger in the trailing car are so remote from the injury that it cannot be considered a reasonable consequence of the acts. In Hines v. Westerfield, (1953) Ky., 254 S.W.2d 728, this Court said: “If, however, the ultimate injury is brought about by an intervening act or force so unusual as not to have been reasonably foreseeable, the intervening act is considered as the superseding cause and the actor is not liable.” See also Milliken v. Union Light, Heat and Power Co., (1960) Ky., 341 S.W.2d 261, and cases cited therein. The many authorities cited by appellant are not applicable to this case in that they do not deal with the factual situation herein involved.

Although we have already held that the acts of appellee Veals did not constitute actionable negligence, appellant’s argument that proximate cause, foreseeability and intervening acts should be submitted to a jury deserves comment.

In the case at bar, there is no contention that any other witness is available. There is no contention that the evidence to be submitted to a jury would differ from the evidence presented by the depositions. We agree with appellant’s argument that summary judgment is not a substitute for the trial of an action on its merits, and we agree with the authorities cited by appellant on this point of law. However, in the present case, there is no genuine disagreement as to any material fact. There is no genuine issue of fact as to any negligence on the part of Veals. A summary judgment may be invoked in any case where the record shows that there is no real issue as to any material fact with respect to a particular claim. See Continental Casualty Company, Inc. v. Belknap Hardware & Manufacturing Co., (1955) Ky., 281 S.W.2d 914, and cases cited therein. Upon this basis the trial court properly granted the motion for summary judgment, and we recommend that the judgment be affirmed.

This opinion is approved, and the judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    John M. BURGE, Executor of the Will of Joseph D. Burge, Appellant, v. Janies V. MARCUM, Commissioner of Revenue, etc., et al., Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Blakey Helm, Joseph B. Helm, Louisville, for appellant.
    William S. Riley, Virginia R. Collins, Frankfort, for appellee.
   MOREMEN, Chief Justice.

The question is whether KRS 140.150 sets up an arbitrary classification for taxation in violation of section 171 of the Kentucky Constitution or the Fourteenth Amendment of the U. S. Constitution.

For over half a century Joseph D. Burge lived and owned property in Louisville. He moved to Guatemala about eight years before his death in that country in 1957. At the time of his death Mr. Burge owned stock in certain Louisville businesses for some of which he had worked before becoming a resident of Guatemala. The Commonwealth of Kentucky has not attempted to subject his entire estate to taxation; it has assessed a tax on the transfer of shares of stock that he owned in Kentucky corporations at the time of his death. This was done under authority of KRS 140.150, which provides:

“All shares of stock in corporations organized under the laws of this state, belonging to a person whose domicile is in a country foreign to the United States or its possessions, shall, on the death of the owner, be subject to a tax of five percent of their actual value upon their transfer, payment, or delivery to the personal representative or trustee of the estate of the decedent.”

Under the definition of domicile in Wheeler v. Burgess, 263 Ky. 693, 93 S.W.2d 351, Mr. Burge had a domicile in Guatemala because he had resided there with an intention to stay indefinitely. Therefore, if KRS 140.150 is not unconstitutional, the transfer tax was properly imposed on Mr. Burge’s estate.

Appellant contends that the classification set up by KRS 140.150 violates the uniformity clause in Section 171 of the Kentucky Constitution, and the equal protection clause of the Fourteenth Amendment of the U. S. Constitution. Section 171 provides:

“ * * * Taxes shall be levied and collected for public purposes only and shall be uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax; and all taxes shall be levied and collected by general laws.”

Section I of the Fourteenth Amendment to the U. S. Constitution provides:

“ * * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is settled that Kentucky has the power to tax non-resident owners of stock in Kentucky corporations on the transfer of their stock. Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339, and that the state legislature is not prohibited by the equal protection clause of the Fourteenth Amendment from setting up reasonable classifications for the purpose of tax legislation. Bell’s Gap R. Co. v. Commonwealth of Pennsylvania, 134 U.S. 232, 10 S.Ct. 533, 33 L.Ed. 892.

But this Court has long held that the uniformity clause in Section 171 of the Kentucky Constitution, supra, requires that any legislative tax classification must have a reasonable relation to some permitted end of government action, i. e. the classification used cannot be arbitrary or unreasonable. Kentucky Tax Commission v. Lincoln Bank & Trust Co., Ky., 245 S.W.2d 950. This same requirement is implicit in the “equal protection clause” of the Fourteenth Amendment to the U. S. Constitution, supra, as interpreted by the United States Supreme Court. Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 40 S.Ct. 228, 64 L.Ed. 460. (Part of New York Income Tax held to be unreasonable discrimination against non-residents.)

The primary issue presented is whether the selection of citizens of the United States who are domiciled in a foreign country as a class on which to impose an estate tax on the transfer of capital stock is a reasonable classification. If there is a valid justification for imposing this transfer tax on citizens domiciled in a foreign country, but not citizens domiciled in states other than Kentucky, the classification of KRS 140.150 is reasonable and should be upheld; per contra, if no valid justification exists the classification constitutes an arbitrary discrimination against foreign domiciled U. S. citizens in violation of the “uniformity clause” of Section 171 and the “equal protection clause” of the Fourteenth Amendment.

The chancellor, in upholding the constitutionality of KRS 140.150, cited Maxwell v. Bugbee, 250 U.S. 525, 40 S.Ct. 2, 63 L.Ed. 1124 as standing for the proposition that it is reasonable to classify citizens for tax purposes on the basis of residence. But that case simply held that New Jersey did not violate the “equal protection clause” when it used a different formula to calculate the inheritance tax rate of residents from that which it used for non-residents. The court held that the intention of the formula was to equalize the tax between residents and non-residents, and the fact that occasional inequalities resulted from this system was not sufficient to make the statute unconstitutional because of dis-crriminatory classification. The crucial point that made the classification in the Maxwell case reasonable was that nonresident testators or intestates stood in different relation to the state from that of residents, thus making them amenable to different classification.

The Supreme Court did not intimate, however, that it would not be a violation of the “equal protection clause” for New Jersey to impose a different inheritance tax rate on citizens residing in Kentucky from that imposed upon those residing in Tennessee, Texas, Virginia or Guatemala. Unless there is some reason in the present case for finding that U. S. citizens domiciled in foreign countries stand in a different relation to Kentucky from that of U. S. citizens living in other states, the classification cannot be justified by the Maxwell case, supra.

It is contended that the justification for the classification set up by KRS 140.150 is that foreign domiciled citizens are not subject to taxes on their capital stock in the country of their domicile, but citizens of other states might be subject to such taxes in their home state. Therefore, the classification is a reasonable method used by the state legislature to equalize the tax burden and avoid double taxation.

We have found no authority for assuming that foreign countries do not levy taxes on the capital stock owned by their domiciles. The possibility of double taxation exists whether the decedent’s domicile is in another state or another country. Therefore, the classification of KRS 140.150 cannot be justified as a method of equalizing the tax burden or avoiding double taxation.

Under the circumstances disclosed, we are unable to find adequate grounds to justify the discrimination of KRS 140.-150 against U. S. citizens domiciled in foreign countries. This discrimination has no reasonable relation to a permitted end of government.

We find that KRS 140.150 sets up an arbitrary standard of taxation in violation of Section 171 of the Kentucky Constitution and the Fourteenth Amendment of the U. S. Constitution. It is, therefore, unconstitutional and void.

Judgment reversed.


author: WILLIAMS, Judge.

text:
    Archel DAVIDSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Francis Dale Burke, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

The appellant, Archel Davidson, was convicted in the Pike Circuit Court of knowingly receiving stolen goods and sentenced to one year at hard labor at La Grange State Reformatory.

The appeal is based on (1) statements made by Circuit Judge Lowe in the presence of the jury which the appellant contends so poisoned the mind of the jury against the appellant as to deprive him of any chance that the jury would weigh his defense fairly and objectively, and (2) the alleged error of the trial judge in allowing the Commonwealth’s Attorney to read a written statement of witness Willie Rowe, in which Rowe stated that he gave a stolen shotgun to the defendant Davidson. The appellant contends that the combination of these two alleged errors deprived him of a fair trial and that his conviction should be reversed and the case remanded for a new trial.

The first alleged error developed when Commonwealth witness Rowe refused to answer whether he had pawned stolen property to the appellant. His reason for refusal was not a legal one and no privilege was claimed. At that point Judge Lowe commented:

JUDGE LOWE:
“Young man is the reason you don’t want to testify in this case today, are you afraid of Archel Davidson?
MR. BURKE (defense counsel):
“Object and move the court to set aside the swearing of the jury and continue the case.
JUDGE LOWE:
“Overruled.
WITNESS ROWE:
“No.
JUDGE LOWE:
“Did anyone make any threats toward you if you testified?
WITNESS ROWE:
“No.
JUDGE LOWE:
“You are refusing to do it under your own free will?
WITNESS ROWE:
“I am not answering the question.”
JUDGE LOWE:
“Has anyone made any threats toward you if you testify in this case?
WITNESS ROWE:
“No, sir.”

The appellant contends that this line of questioning by Judge Lowe gave the jury the impression that the judge believed the appellant had threatened witness Rowe, or at least that the judge considered the appellant the type of person who would intimidate a witness. Appellee contends that the judge’s questions were an exercise of his reasonable discretion, not prejudicial to appellant and not constituting reversible error.

Appellant also contends that the trial judge’s threat to hold witness Rowe in contempt if he did not testify gave the jury the impression that the judge felt Rowe’s testimony would benefit the Commonwealth, and coupled with the judge’s questions to Rowe prejudiced the jury against the defendant and constituted reversible error.

The trial judge’s discretion to question a witness in a criminal case is not arbitrary and uncontrolled, but judicial, to be used carefully in conformity with the standards governing his judicial office. He may properly ask questions of a witness in order to expedite the orderly procedures of the trial. Kelly v. Commonwealth, Ky., 260 S.W.2d 953, 955 (1933). But, in asking such questions in the presence of the jury while the issues still hang in the balance, he should not allow his personal opinions to “leak into the crucible.” Merritt v. Commonwealth, Ky., 386 S.W.2d 727 (1965). The trial judge’s observations and comments usually carry such weight with the jury that they must be subject to safeguards against abuse.

The statement by the trial judge came at a time when it was very likely to be prejudicial. The defendant had admitted possession of the stolen property and was faced with the practical necessity of proving his lack of guilty knowledge to the satisfaction of the jury. His good faith was the major question before the jury. The opinion of the trial judge, as expressed by his question to witness Rowe, that the defendant was possibly the type of person who would intimidate a witness could very likely have been decisive of the issue.

The second alleged error occurred when the Commonwealth’s Attorney read part of a written statement during the testimony of the troublesome witness, Rowe. The testimony was as follows:

“Q. 19. Did you read this statement?
“A. Yes.
“Q. 20. Is that the statement you made?
“A. I am not answering the question.
“Q. 21. You neither affirm nor deny that you made this statement?
“A. I am not answering the question.
"Q. 22. I will ask you specifically then, if when this statement was taken about the shotgun, whether or not you were asked, ‘What did you do with it * * *
MR. BURKE (defense counsel)
“Object.
JUDGE LOWE:
“Overruled.
MR. BURKE:
“Except.
MR. RUNYON: (continuing)
“ * * * what did you do with it after you got up there? Answer: ‘Gave it to Archel Davidson/ Were you asked that question and did you make that answer ?
“A. I am not answering the question.
MR. BURKE: “Move to set aside the swearing of the jury and continue this case.
JUDGE LOWE: “Overruled.”

Appellant contends that the reading of this question and answer statement was an improper attempt to impeach witness Rowe, and that it deprived appellant of the right to meet the witness against him face to face. The appellee’s contention was that the reading of the statement was a proper but unsuccessful attempt to refresh the memory of a recalcitrant witness, but even if not proper the error was not serious enough to merit reversal.

We decided this question in McQueen v. Commonwealth, Ky., 393 S.W.2d 787, where a similar interrogation was held to he prej-udicially erroneous. Therein we said:

“As early as Champ v. Commonwealth, 59 Ky. (2 Metc.) 17, 74 Am.Dec. 388, this court recognized the rule that a party may impeach its own witness, by proof of contradictory statements, only where the witness testifies positively to the existence of a fact prejudicial to the party, and not where the witness merely fails or refuses to testify as to the existence of a fact that would be favorable to the party. See Click v. Commonwealth, Ky., 269 S.W.2d 203, 205, and cases there cited. The rule has been followed consistently. Cf. Webb v. Commonwealth, Ky., 314 S.W.2d 543. * * * ”

Each of the above discussed errors was prejudicial.

The judgment is reversed and the case is remanded for a new trial.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Dayton MAYFIELD, Jr., Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., for appellant.
    Frank E. Haddad, Jr., Louisville, for ap-pellee.
   MILLIKEN, Judge.

This is an appeal by the Commonwealth to obtain a certification of the law. The trial court had suppressed evidence procured by the police when they searched the truck of the accused, Mayfield, after his arrest for a traffic violation and after taking him to police headquarters. The search admittedly was made in the absence of the accused, without his consent, and without a search warrant. The truck contained seven air conditioners which were plainly visible at the time of the arrest, but the subsequent search revealed the name of their manufacturer and their serial numbers which enabled the police, three days later, to establish that they had been stolen from the warehouse of a distributor. The truck was not registered in the name of the accused and the person in whose name it was registered could neither be found nor identified. Ultimately, the truck was sold for storage charges, and the accused was indicted for knowingly receiving stolen property. Shortly after his arrest for the traffic violation the accused signed a statement which is not in the record before us, but in which he apparently denied ownership of the truck or the air conditioners.

The Commonwealth contends that freedom from unreasonable search is a personal right under the Fourth Amendment and that the accused’s constitutional right has not been violated in this case because he denied ownership of the truck or the air conditioners, citing United States v. Shelton, D.C., 59 F.Supp. 273; Ragland v. Commonwealth, 204 Ky. 598, 265 S.W. 15; Lakes v. Commonwealth, 200 Ky. 266, 254 S.W. 908.

We think it is clear enough in the case at bar that the accused, Mayfield, had control of the truck at the time of his arrest regardless of how he obtained it, and in Lane v. Commonwealth (1964), Ky., 386 S.W.2d 743, this Court reviewed the cases in which we had held that only the owner usually could complain about an illegal search of his property, but concluded that where Lane had had control of the car, “even though he was not the owner, he was entitled to have the evidence obtained by reason of the search suppressed.”

On the authority of the Lane case and Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, we conclude that the search here was illegal and that the evidence thus obtained was properly suppressed, and the law is so certified.

The judgment is affirmed.

HILL, J., dissenting.


author: STEWART, Judge.

text:
    Fred KEOWN, Appellant, v. Charles KEOWN, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Reginald L. Ayers, Bell, Orr & Reynolds, Bowling Green, for appellant.
    G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, for appellee.
   STEWART, Judge.

This appeal is from a judgment of $5000 recovered as damages by Charles Keown, the son, from Fred Keown, the father, for injuries received by the son as a result of a fall in a tub-shower enclosure in the father’s house.

A summary of the pertinent facts in this case is that appellee, Charles Keown, age 25, whose residence is Nashville, Tennessee, paid a visit to his father, appellant herein, in Bowling Green, arriving at the latter’s home on September 22, 1963, at around 9 a. m. Some three weeks prior to this date appellant had completely remodeled his bathroom and, in doing so, had installed a new bathtub with a shower attachment. Two sliding doors of transparent glass enclosed the tub-showef.

Shortly after arriving at his father’s home, the son allegedly remarked in the presence of his father that he was going into the bathroom and take a shower. Ap-pellee had been in the new bathroom on a previous occasion and had observed it but reportedly had not used the bathtub or the shower. Marie Keown Jones, a married daughter of appellant who with her husband was living with her father, testified she had cleaned the bathtub on the evening before. She had on that occasion turned the bath mat over in the tub to dry, leaving the bottom of the mat, where there were small suction cups, turned upward.

The bathroom was sufficiently lighted when appellee entered it to take a shower, so that he could see without difficulty the inside of the bathtub and the position of any article that lay on the bottom of it. It is not claimed the light factor had any connection with his falling. He stated he did not check the bath mat before getting into the tub; he merely closed the glass doors on the side of the tub and turned on the shower. Testimony was introduced to the effect that the mat was practically new.

Appellee began to lather himself with soap. He slipped a little in the tub but did not fall. From five to ten minutes later he slipped again and, according to his testimony, fell and “went through the door.” Appellee was seriously injured to the extent of 75% permanent impairment of the use of his left arm.

Appellee’s deposition was taken before the trial. When asked at that time what caused his mishap, he answered: “I just slipped. I started to bend over and when I did I slipped and that’s all I remember until I was in the hospital.” Upon the trial of his case, on direct examination and also on cross-examination, he gave these explanations as to how the accident happened: “I can’t tell you. * * * All I know is my feet came out from under me.” This question was put to him on direct examination: “What happened to the bath mat?” He responded: “I don’t know, sir.”

After three other witnesses had testified and a recess had been called, appellee was recalled for additional direct testimony over the objection of counsel for the defense. We quote the following from his testimony given at that time:

“Q. 15. Do you know what caused you to slip and fall?
A. The mat slipped.
Q. 16. What is that?
A. The mat slipped.
Q. 17. Slipped out from under you?
A. Yes, sir.”

When cross-examined, this testimony was elicited by counsel for the defense:

“Q. 18. Since I examined you, have you had a conference with your attorney?
A. We had a talk.”

Appellee contends his fall was directly caused by the slipping of the bath mat. His argument in this connection is that, because this mat was laid in the tub with the suction cups up, this position created a condition of danger to anyone standing on it while taking a shower. Furthermore, he maintains that this upside-down placing of the mat in the tub under the circumstances exposed him to a hidden or latent risk which culminated in the injuries he received. He asserts the condition of the mat was unknown to him, but that his father knew about it and should have warned him it was unsafe.

The father-son relationship in the case at bar made the son a social visitor and therefore a licensee in his father’s home at the time he was injured. It has been held in such a situation that a social visitor occupied the same status as a member of the household, that he took the premises as the owner used them, and that he could not expect precautions would be taken for his safety which were not likewise taken for the owner’s safety. See Terry v. Timberlake, Ky., 348 S.W.2d 919.

On the occasion of appellee’s taking a shower, the bathroom was new and clean; and the lighting in it was adequate for observing through the sliding glass doors any object that was placed in the tub. Ap-pellee stated that when he got in the tub he did not notice that the cups on the mat were up. He admitted he had seen and used at other times mats of the type under consideration.

This Court has held there is no duty to warn a person lawfully on the premises of an occupant or owner of any defect or danger thereon which is as well known to that person as to the occupant or owner, or which is obvious or which should or could be observed by that person in the exercise of ordinary care. See Fisher v. Hardesty, Ky., 252 S.W.2d 877.

In the instant case appellee had only to use his eyes to ascertain whether the cups were turned up on the mat. More than that, when he stood barefoot on the mat it is almost unbelievable that he could not feel the cups press against the soles of his feet. It is our view appellee’s knowledge of the condition of the mat was equal to that of his father. Stated differently, he was in a position to know as much as his father could have told him concerning the correct manner in which the bath mat should be placed in the tub.

Appellee testified he entered the tub-shower enclosure, turned the water on, lathered himself with soap, and then slipped a little bit but did not fall. Five or ten minutes later he slipped and fell. Certainly, when appellee slipped a little the first time he was put on guard that a condition existed that might result in an accident. He should have at that time investigated the cause of his slipping. Every person has a continuing duty of caution for his own safety, and it is evident that appellee himself was guilty of not using proper care for his own safety under the facts presented.

No witness testified how the mat was turned after appellee’s fall or where it was. Every person who has ever taken a shower or bath in the modern-day bathtub knows that the slick and smooth surface of the tub when it comes in contact with water and soap produces a slippery condition that requires carefulness on the part of the bather. It has been said that more accidents take place in a bathroom than in other portion of the house.

We conclude there is no showing that appellant violated any duty owed appellee as a social visitor in his home. The motion for judgment notwithstanding the verdict should have been sustained.

Wherefore, the judgment is reversed with direction to enter a new one for appellant.


author: PALMORE, Judge.

text:
    Eurbin R. SULLIVAN, Appellant, v. FOSTER & CREIGHTON COMPANY and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    May 28, 1965.
    Rehearing Denied Nov. 19, 1965.

      Charles A. Williams, Paducah, for appellant.
    Robert Manchester, Wheeler, Marshall & Manchester, Paducah, for appellees.
   PALMORE, Judge.

Eurbin Sullivan, a heavy equipment operator, suffered a badly comminuted fracture of the right heel in a fall of some 10 feet or more from a ladder onto a concrete surface. He claimed workmen’s compensation for permanent total disability. KRS 342.095. The board made an award based on a finding of 25% permanent partial disability. KRS 342.110. The award was affirmed by the circuit court and Sullivan appeals.

It is conceded that the claimant is 100% disabled, but the board found in effect that 75% of the disability is attributable to a herniated intervertebral disc not proved to have been caused by the accident. The question we have to decide is whether upon the whole case a finding of total disability resulting from the accident was the only reasonable conclusion to be drawn from the evidence, that being the basis on which a claimant bearing the burden of proof and risk of non-persuasion can prevail as a matter of law over an adverse factual finding. Cf. Akers v. United Carbon Gas Company, Ky., 386 S.W.2d 957, 959 (1965); Thompson v. Mayflower Coal Company, Ky., 379 S.W.2d 459, 461 (1964); Lee v. International Harvester Company, Ky., 373 S.W.2d 418, 420 (1963).

At the time of his injury Sullivan was 48 years old and in good health. For 33 years he had operated earth moving equipment such as bulldozers, draglines and the like. This work requires use of the feet as much as the hands. According to his own testimony, which was not contradicted, he had never been hospitalized prior to the accident, nor had he experienced symptoms of any trouble that might reasonably be related to his present condition. Also un-contradicted was his testimony that he has not been involved in any accident or sustained any injury since his fall from the ladder on July 28, 1960.

The first physician to see the claimant upon his admission to a hospital immediately after the accident was Dr. James T. Fuller, of Mayfield, who did not testify in this proceeding. Dr. Fuller later signed for defendant’s insurance company a “Surgeon’s First Report of Injury” describing the accident as follows:

.“Working for Foster & Creighton on new General Tire plant near May-field and a ladder slipped out from under him and he fell about 10 feet injuring right foot and back.”

On the same report the nature and extent of injury and objective findings were noted as “Fracture os calcis — right.”

The hospital card made out for Sullivan on July 28, 1960, notes that about 2:30 P.M. that day “a ladder slipped out from under him and he fell about 10 ft. injuring rt. foot and hurt back — X-ray—Fracture Os Calcis.”

The fractured heel was reduced by Dr. J. S. Robbins, a general practitioner and surgeon of Mayfield, and the patient’s leg was put in a cast. He was kept in the hospital for a week or so and remained in the cast for six to eight weeks. He used crutches until April of 1961. After the fractures had healed his foot remained to some extent deformed and swollen and he was continuing to suffer pain. On October 20, 1960, Dr. Robbins referred him to Dr. Samuel L. French, of Paducah, an orthopedic surgeon.

Dr. French treated Sullivan for about a year, until October of 1961, at which time the swelling had lessened and the motion of the ankle had improved, but otherwise the symptoms were essentially the same— that is, he still suffered pain upon weight-bearing. The doctor recommended a triple arthodesis, which is a surgical procedure to fuse and thus immobilize three joints of the foot. The purpose of such a procedure is to reduce or eliminate pain resulting from interaction of the joints in question, two of which directly involve the heel bone. Sullivan elected not to undergo surgery.

It was Dr. French’s opinion that if a great deal of strain on the claimant’s foot is required by his normal occupation he would be disabled from performing it and would have to seek other employment. We quote as follows the salient portions of his testimony in this respect:

Q— “Considering the fact that this man’s occupation is that of a heavy equipment operator, in which he is required to use his feet on rough, uneven surfaces — navigating over rough, uneven surfaces — and exerting pressure on brake pedals that are used to assist in turning equipment, what would be the extent of his disability as a result of this?”
A — “I would think he would have some difficulty. I don’t know that I could describe his disability. I believe he would have difficulty operating anything on an uneven surface.”
Q — “You think he would be able to perform a day’s work with that heavy equipment under those circumstances ?”
A— “I don’t know how much is actually required of the man, but if he had to stand and walk, I believe he would have a job doing a day’s work if he had to put his foot down where it comes under a strain.”
Q— “Do you mean then that you think he would have difficulty doing that at all?”
A— “I think so, yes.”
Q— “Do you mean by that that you think he would be disabled from performing that type of work, and be required to seek other employment?”
A — “If a lot of strain were required of that foot, I’d say yes.”

And on cross-examination:

Q — • “Doctor, have you reached a percentage of disability in regard to this man’s foot?”
A — “I don’t know if I have stated it in any report that I have written, but I believe on January 25, 1961,1 reached an approximation of his percentage of disability.”
Q — “What was that percentage?”
A — “Fifty percent.”

At a hearing held on January 19, 1962, Sullivan testified that he had been assigned to two or three jobs by his union but was unable to use his right foot and could not operate the brake pedal of a dragline. He said that his foot continued to hurt when he walked on it. The local business representative of his union testified that the operation of heavy earth-moving equipment requires excellent physical condition and that a person with an impaired foot could not do it for any appreciable length of time.

When the case was first submitted, the only evidence in the record was that which has been thus far summarized, excluding Dr. Fuller’s “Surgeon’s First Report of Injury” and the hospital record, which were introduced later. The defendant company did not offer any evidence. The referee assigned to consider the case found 50% disability to the body as a whole but inadvertently applied KRS 342.105 as a limitation of the recommended award. On the claimant’s motion for a full board review the board remanded the case “for taking of further proof on the sole issue of the extent of disability, if any, to the body as a whole, sustained by the plaintiff.”

Pursuant to this order of remand only one item was added to the record, and that was an affidavit by Dr. French, stipulated to be considered as evidence. It reads as follows:

“The affiant further states that from his findings the plaintiff would have pain on prolonged standing or walking on smooth surfaces and that walking on rough ground would give him considerable pain. That because of the location of the injury in the lower extremity which is a weight bearing joint, when the joint surface is roughened or uneven or irregular it will swell and putting effort on the joint will cause pain. That anyone with this injury who must walk on uneven surfaces or in carrying a load of any kind will aggravate the condition. That if the plaintiff had a job requiring that he put his foot down where it would come under a strain he would be disabled from performing that type of work and would be required to seek other employment. That due to the weight bearing function of the lower extremity the pain would radiate upward into the leg affecting the activity of the entire body. Mr. Sullivan would be totally disabled from performing this type job. He could do light work which did not involve average weight bearing or use of his foot.
“Affiant further states that the area of pain complained of by the plaintiff is consistent with the pain found in this type of injury and there is no question that the injury is serious and disabling. That this injury is a permanent one.”

At this stage of the proceeding the claimant was entitled, as we view it, to an award based on permanent total disability. Leep v. Kentucky State Police, Ky., 366 S.W.2d 729 (1963). However, after expiration of the time fixed for the production of further evidence the board, being still dissatisfied, ordered him examined by an impartial physician for the purpose of determining whether “the plaintiff’s disability is a result of the accident and injury * * * and if so, the degree and duration of said disability, if any.” KRS 342.315. Here the case takes a rather unusual turn. Apparently by coincidence, the board appointed a physician who had theretofore examined Sullivan at the request of his counsel but had not been used as a witness. This was Dr. Dale Furnell, an orthopedic surgeon of Paducah.

Dr. Furnell had first examined Sullivan on November 19, 1961, and had made about the same clinical findings as Dr. French, but estimated “his disability due to this injury at 25% with regard to his previous occupation.” After again examining him on March 11, 1963, Dr. Furnell commented on his condition as follows:

“The right foot at this time * * * shows a much greater restriction in the range of motion than it did on the examination of November 19, 1961. X-rays made of the right foot and ankle on March 11, 1963, show increased sclerosis of the articulating surfaces of the talus and calcaneous where they oppose, particularly in the middle third area. My impression is that there is a residual valgus deviation of the right os calcis from this injury, with a consequent subtalar traumatic arthritis involving the talo calcáneo joint of the right foot. * * * My impression of the effects of this injury as it influences Mr. Sullivan’s ability to perform the duties of his usual occupation are that his working ability, due to the foot injury, is limited 25%, as is his overall bodily disability by the effects of this injury. In my report of March 13, 1963, I said that considering also the present symptomatology of the lumbar spine, even though I have no knowledge that this is attributable in any way to the injury of July 28, 1960, his present disability, considering this, would be 100%, because he does have very severe limitation which he did not have in November of 1961. * * * My impression of it was that he has 25% over-all disability as a consequence of the effects of the injury.” (Emphasis added.)

In his report to the board Dr. Furnell had noted that in the area of his right ankle and heel Sullivan was sensitive to pain on pressure, and that motion of the subtalar joint elicited "a very exquisite pain.” When cross-examined on this point he admitted that any kind of weight-bearing on the foot would involve the subtalar joint, and that it is reasonable to assume that the same type of pain would result from the performance of his regular occupation. Nevertheless, he stuck to his opinion that the limitation “of his normal activity in the foot is 25%.” Asked whether the pain would not make it impossible for the claimant to do the work of a heavy equipment operator, he replied, “I would not say it would render it impossible.” Neither, however, did he say it would not. This witness conceded also that in the absence of an arthrodesis the condition of the foot is likely to grow worse with continued use.

Now, at this point and before considering the remainder of the testimony, which was introduced subsequently and relates entirely to the back condition observed by Dr. Furnell in March of 1963, it seems to us that the proof of Sullivan’s incapacity to perform his usual occupation, resulting from the foot and ankle condition alone, leaves no room for reasonable difference of opinion. Dr. Furnell’s remark that he “would not say” is essentially non-committal and therefore of no probative value. Cf. Horton v. United States Steel Corporation, Ky., 384 S.W.2d 73, 74 (1964), and cases therein cited. His description of the condition of Sullivan’s foot and ankle can be reconciled with the estimate of 25% disability only on the theory that he did not fully understand the meaning of “disability” as it has been defined and firmly settled with regard to the workmen’s compensation law of this state. The evidence is overwhelming that this claimant cannot use his right foot in the manner necessary in order for him “to perform the type of work demanded by his occupation.” Cf. Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905, 906 (1964). To hold otherwise under the evidence in the record would simply be (and was) arbitrary.

The evidence relating to the disc injury makes the claimant’s case even stronger. According to Dr. Furnell, Sullivan did not complain of back trouble. “What particularly drew my attention to it was the way he walked when he came in the office.” This was on the occasion of the last examination, in March of 1963. In November of 1961 he had found no symptomatology of a herniated disc. Though he was of the opinion that such a condition ordinarily results from an injury, he thought it likely that if the injury had occurred on July 28, 1960, Sullivan would have been aware of it and would have complained of it at that time. He went on to explain that when he saw the patient in November of 1961, sixteen months after the accident, the symptoms could have subsided as the result of rest and inaction.

From the information he had, Dr. Furnell said he had no way to be certain whether the disc injury had been precipitated by the accident on July 28, 1960. But in so testifying he had not been advised of Dr. Fuller’s “Surgeon’s First Report of Injury” and the hospital card on which notations of back injury had been entered at a time immediately following the accident. These were introduced by stipulation after Dr. Furnell had testified. In addition, the board permitted the claimant to testify further and to produce a new witness, Dr. J. M. Hunt, Jr., a general practitioner of Wickliffe, Kentucky, where the claimant makes his home.

Sullivan himself testified that when he first entered the hospital he had pain in the back of his right hip, extending downward into the calf of his leg, but that after two or three days “when they put me in the bed and taken all the weight off of it, and then that cast, and had it all, well, I had my leg all propped up, and my back seemed to quit hurting me and when I got back out on my crutches, going, why it began hurting me, which I thought it was from packing so much weight and giving to it, see.” In other words, the man quite naturally thought his aches and pains were mere discomforts attributable to the weight of the cast and the way in which he was required to walk. Nonetheless, in April of 1962, between visits to Dr. French, the specialist in Paducah, he went to see Dr. Hunt about his back.

Dr. Hunt was Sullivan’s “family doctor” and had known him for many years. Between 1957 and 1962 he had seen and treated him on numerous occasions in connection with minor ailments. On April 13, 1962, Sullivan came to his office with a back complaint. They had theretofore discussed his foot and back since the accident, but not on a professional or physician-patient basis. Dr. Hunt concluded at this time that the patient had either a ruptured disc or a severe back strain, and prescribed medication for pain relief. Based on his own knowledge of the patient together with further details of the case provided by way of a hypothetical question he testified as follows :

“From my experience of treating Mr. Sullivan, like I say I have treated him since 1957 and I have known him all my life and I have never known of any more accidents he has sustained or been involved in and with you giving the history of his injury in 1960 and my findings in 1962 and ’63 I feel strongly that the injury which he received in 1960 is the total cause of his back trouble and his foot, of course.”

If there is anything in this case of real substance to refute or reduce the conclusive force of the evidence indicating total disability resulting from the accident of July 28, 1960, we do not find it inside the record.

The judgment is reversed with directions that an award be entered on the basis of permanent total disability.

      . A process described by one of the other medical witnesses as loosening the impacted bone fragments by pounding with a padded mallet and then molding them back into shape.

      . We do not have before us the question of whether this was an unreasonable failure to follow competent medical advice within the provision of KRS 342.035 (2).

      . It will be noted that this is the first time any real question as to the causal connection between the injury and the disability was injected into the case. In remanding, the board had confined its inquiry to “the sole issue of the extent of the disability, if any, to the body as a whole, sustained by the plaintiff.”


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mary Potts Hagyard BURNS et al., Appellees.
    Court of Appeals of Kentucky.
    July 2, 1965.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., H. C. Smith, Dept, of Highways, Frankfort, Deddo G. Lynn, Department of Highways, Lexington, for appellant.
    Strother Kiser, Lexington, for appellees.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, appeals from a judgment awarding the appellee landowners $54,015 as the difference in value of their farm resulting from the taking by condemnation for highway purposes of a strip of land running diagonally across the farm.

Admittedly the farm, originally consisting of 295 acres, was high value property. The witnesses for the Commonwealth gave it a “before” value of $200,000, and the landowners’ witnesses put the value as high as $250,000. The condemnation (for a nonaccess highway) took a strip 300 feet wide which resulted in the farm’s being divided into two separate, triangular tracts, one of 105 acres with the main (luxury-type) dwelling and a large barn on it, and the other of 164 acres with a tenant house and a number of outbuildings on it. The strip taken embraced 25.5 acres.

At the close of the opening arguments the Commonwealth moved for a mistrial, on the ground that one question asked and one remark made by appellees’ counsel on voir dire examination of the jury, and four references to damage factors made by appel-lees’ counsel in his opening statement to the jury, cumulatively had such a prejudicial effect as to prevent a fair trial, notwithstanding that as to each of the allegedly improper things an objection by the Commonwealth had been sustained and, when asked for, an admonition given. The Commonwealth maintains that the court erred in overruling the motion for a mistrial.

The question asked the jurors on voir dire, which brought out the fact that the federal government would pay most of the condemnation award, was not considered by counsel for appellant to be, by itself, of mistrial proportions, because the only remedy sought at the time was an admonition, which was given. The remark to one of the jurors, to the effect that on some unidentified occasion counsel for ap-pellees had “voted for” the juror, was of no ultimate consequence because that juror did not sit on the trial. One of the references in the opening statement, to the claimed fact that the appellees no longer would be able to hear the call of the mourning doves, was inconsequential. Two of the references, one to the inconvenience that would result from continued operation of the separated parcels as a single farm unit, and the other to the cost of the main dwelling on the farm, would have been proper if limited in application to their effect on market value. Commonwealth, Department of Highways v. Stamper, Ky., 345 S.W.2d 640; Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844. The fourth reference, to the amount of fencing that would be required, was of course improper. Commonwealth, Department of Highways v. Wood, Ky., 380 S.W.2d 73. None of these things was calculated to arouse passion, and there was no more effort to get before the jury improper factors of damage than seems to be customary in condemnation cases in Kentucky. In our opinion the possibility that the jury might have been prejudiced by the cumulative effect of the various things complained of was not so strong as to have required the granting of the motion for a mistrial.

Appellant next contends there was error in permitting the landowners’ witnesses to testify concerning inconvenience, such as the necessity to haul livestock and farm products back and forth by truck, encountered after the condemnation in the landowners’ efforts to continue to operate the separated parcels as a single farm unit.

Certainly, to the extent that this . testimony might be calculated to create in the minds of the jurors the idea that compensation could be allowed for personal inconvenience or for hurting the owners or making less advantageous the use of the property for their particular purposes, the testimony would be improper. Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844; Commonwealth, Department of Highways v. Wood, Ky., 380 S.W.2d 73. However, we think it would be proper for the limited purpose of showing that as a fact the two parcels no longer could feasibly be operated as a single farm, as a foundation for testimony that the two parcels, separately, would have less value than if operable as a single farm.

Since the testimony was admissible for a limited purpose, and since the Commonwealth did not move for an admonition but simply objected to the testimony in toto, the court did not err in admitting the testimony. Commonwealth, Department of Highways v. Shaw, Ky., 390 S.W.2d 161 (decided May 7, 1965).

It is suggested by appellant that the testimony concerning inconvenience of attempted continued operation of the farm as a single unit represented an effort to obtain damages for reduction in value attributable to “circuity of travel,” which is a non-compensable element of damage. See Cartee v. Commonwealth, Department of Highways, Ky., 374 S.W.2d 860. However, as pointed out in Commonwealth, Department of Highways v. Brown, Ky., 392 S.W.2d 50 (decided June 18, 1965), the kind of circuity of travel that is a noncompensable factor is travel from the landowner’s property to other places on the highways system — not travel from one place on the landowner’s property to another place on the same property.

We think it should be made clear that in situations such as here presented, where a farm has been severed into separate parcels, the “after” value should be based solely on what exists after the taking, without regard to what existed before the taking; the question is not how much did the taking do by way of damage to the original farm, but what was the value of the farm before the taking and what is the value of the parcels that remain. The fact that the separate parcels into which the farm has been split cannot feasibly be operated as a single unit has no relevance except as may be given as a value-affecting factor by a witness who testified that the separated parcels would bring less on the market, sold as separate parcels, than they would bring if they could be sold as a single unit.

Appellant’s counsel makes a sort of “Mother Hubbard” argument, covering everything and touching nothing, with respect to allowance for depreciation of value attributable to aesthetic factors. He says that the proof was not strong, but does not enlighten us as to what the proof consisted of. He complains of the testimony of one witness who spoke of loss of attractiveness of view without relating it to depreciation of market value, but the only objection made to this on the trial was that aesthetic factors could never be considered, which was not a valid objection. Commonwealth, Department of Highways v. Raybourne, Ky., 364 S.W.2d 814. He states that objections should have been sustained to testimony of valuation witnesses that loss of view, peace and quiet, and the presence of noise, traffic and odors, effected a depreciation of market value, but he does not suggest on what principle of law the objections should have been sustained. He cites a Missouri case as authority for the proposition that depreciation in value attributable to traffic noise is not compensable, whereas in our case of Commonwealth, Department of Highways v. Elizabethtown Amusements, Ky., 367 S.W.2d 449, we held that it is. Nothing that would constitute reversible error is shown by the appellant.

The judgment is affirmed.


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    BROWN EQUIPMENT COMPANY, Appellant, v. Roosevelt DUFF and the Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.
    Robert L. Milby, Hamm, Taylor & Milby, London, for appellant.
    Tribell & Tribell, Middlesboro, for appel-lees.
   WADDILL, Commissioner.

The appeal is from a judgment of the Bell Circuit Court dismissing an appeal from an opinion and order of the Workmen’s Compensation Board which overruled a motion by appellee Roosevelt Duff to reopen his claim for compensation benefits. We are affirming the judgment because appellant, Brown Equipment Company, merely seeks to have certain language deleted from the Board’s written opinion.

Duff received an injury on September 21, 1956, for which Brown Equipment Company paid him compensation under an agreement which was approved by the Board. After Duff returned to work March 25, 1957, a final settlement agreement was approved by the Board. In September, 1957 Duff filed an application seeking further compensation for his injury. Following a hearing in 1958 a referee found that Duff was not entitled to further compensation and recommended that his claim be dismissed.

No further effort was made by Duff to obtain compensation until June, 1964 when Duff moved to reopen pursuant to KRS 342.125. The Board found that this motion was filed too late.

Although Brown Equipment Company had defeated Duff’s attempt to reopen the case it appealed to the Bell Circuit Court urging it to strike from the Board’s written opinion a statement concerning what the referee recommended in 1958. There is no authority for appealing from a statement appearing in a written opinion of the Board, a fortiori, this is so where, as here, it is not even relevant to the disposition of the case. KRS 342.285. Moreover, there was no justiciable issue presented by the purported appeal. We conclude that Duff’s motion to dismiss the appeal was properly sustained by the circuit court.

The judgment is affirmed.


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    Ralph PHELPS et al., Appellants, v. Arthur GOVER et al., Appellees.
    Court of Appeals of Kentucky.

      Oct. 22, 1965.
    Cabell D. Francis, Stanford, for appellants.
    Leslie C. Gay, Meriel Harris, H. K. Spear, Somerset, for appellees.
   HILL, Judge.

Ralph Phelps and Robert Phelps, Jr., brothers, appeal from a judgment which found that an option to purchase a seventeen acre farm given them by the heirs of Thomas and Sally Smith had expired. The lower court also determined other questions incident to the option.

The option in question, undated, entered into in “February or March, 1961,” contains the following germane provisions:

“We, the following hereinafter signed and designated parties, do hereby grant and give to Ralph Phelps and Robert Phelps, Jr., * * * the exclusive rights and option to purchase all of our rights, titles and interests in and to the Smith lands located at Elihu, Pulaski County, Kentucky. * * *
“This option shall remain and be in full force and effect up to and including the 10th day of July, 1961. * * *
“In the event the parties are not able to complete, make and deliver a good deed on or before the 10th day of July, 1961, then the parties all agree to extend additional option until a good general warranty deed can be perfected. * *

At a meeting during September, 1961, the identical Smith heirs who signed the option presented their “general warranty” deed to appellants in the presence of an attorney for appellants. This attorney stated he could not certify that the deed passed good title. Thereupon the Smith heirs present, apparently impatient with the delay, walked out with the deed still in their possession. During this period and until the end of the year 1961, appellants had possession of the farm and produced tobacco on the six-tenths acre base allowed thereon. One of the Smith heirs “ran” appellant’s tenant “off” the farm about the end of 1961. Between April and early June, 1962, the Smith heirs disregarded the option and conveyed the farm to the appellees Arthur and Alma Gover.

The judgment appealed from states:

“ * * * it further appearing to the Court after examination of the option herein which was introduced in evidence is invalid because of the want of consideration and all the equities appearing in favor of the plaintiff and is therefore invalid in (sic) unenforceable and the Court further hearing all the evidence and the argument of counsel adjudge as follows: * * * that the defendants, Arthur Gover and Alma Gover, are the owners in fee simple title to the following described lands, same being in issue herein and his title is quieted. * * * ”

The Smith heirs were adjudged to recover $351.42 for the usual landlord’s share of the income from tobacco and $45 rentals collected by appellants from their tenant.

The complaint alleges there was one outstanding Smith heir who did not sign the proffered deed. The evidence showed two known heirs residing in different states, but that they died without issue before tender of the deed. Thus, the allegation that there was a defect in title was not supported by any evidence. The attorney, who declined to certify that the deed tendered conveyed good and complete title, testified he made a partial check of the title; that he found two affidavits of descent but was unable to tell who the heirs were and so he quit.

In 91 C.J.S. Vendor and Purchaser § 10, p. 856, it is noted that an option must be accepted according to its terms; hence, if by its terms it prescribes certain conditions for its acceptance, such conditions must be performed while the option is still outstanding. Furthermore, the rights of a purchaser in a mere option contract cease on his failure to exercise the option within the time, and on the terms prescribed, and he has no enforceable contract against the vendor. Stewart v. Gardner, 152 Ky. 120, 153 S.W. 3 (1913). In the case at bar, the Smith heirs performed their obligation under the option by tendering the deed, and the refusal of the appellants to accept the same terminated the option. Therefore, we conclude the appellants’ right to exercise the option was forfeited and abandoned by their failure to accept the deed tendered.

The judgment is affirmed.


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    Kimble VINCENT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.
    Hugh L. Hollingsworth, Russellville, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

This is an appeal of a denial, after hearing, of an RCr 11.42 motion to vacate a judgment of conviction.

Kimble Vincent was indicted for the shotgun murder of his brother, pleaded guilty to the lesser offense of voluntary manslaughter after his counsel had effected an agreement with the Commonwealth’s Attorney to accept the plea to the lesser offense, and was convicted and sentenced to ten years in the penitentiary. Either immediately before or immediately after the conviction another jury found Vincent to be insane, and the court suspended serving of the prison sentence until further orders of the court, and committed Vincent to the Western State Hospital for psychiatric treatment. It was not the first time Vincent had been committed to that institution for the antisocial consequences of his alcoholism. Upon his release from the hospital he now seeks to avoid serving his prison sentence upon the principal ground that he was legally insane at the time of his conviction.

The trial court concluded that Vincent had sense enough to understand what he was doing at the time of his plea of guilty, and we think the record supports that conclusion. In Commonwealth v. Strickland (1964), Ky., 375 S.W.2d 701, this Court declared in a kindred case:

“The terms ‘insane,’ ‘unsound mind/ and ‘mental illness’ are too loose to serve as a reasonable test of whether a person is properly fit to plead or defend himself in a criminal proceeding. For this purpose, whatever may be the technical classification of his mental state, legally or medically, the test is whether he has substantial capacity to comprehend the nature and consequences of the proceeding pending against him and to participate rationally in his defense. Cf. 14 Am.Jur. 802 (Criminal Law, § 45). It is not necessary that this determination be made by a jury.”

The judgment is affirmed.


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    JOHNSON LUMBER COMPANY et al., Appellants, v. Noble E. STOVALL et al., Appellees.
    Court of Appeals of Kentucky.
    Oct 22, 1965.
    Frank R. Goad, Scottsville, for appellants.
    Douglas Keen, Scottsville, for appellees Noble Stovall, and others.
    James S. Secrest, Scottsville, for appel-lee First Federal Savings & Loan Ass’n of Bowling Green, Ky.
   WILLIAMS, Judge.

This case involves the priority between a mechanic’s lien filed by appellant Johnson Lumber Company and a mortgage filed by appellee First Federal Savings & Loan Association. The Allen Circuit Court found that First Federal had a first and superior lien on the property in question. This appeal is taken from that judgment.

The property involved is a house and lot in White Plains Subdivision, in Scottsville. The Johnson Lumber Company began furnishing materials for the house on October 2, 1961. Thereafter, on October 10, 1961, and again on March 5, 1962, the builder of the house mortgaged the property to First Federal. On June 19, 1962, Johnson Lumber Company gave notice and filed a mechanic’s lien covering the cost of materials supplied by the Company.

KRS 376.010 provides that a mechanic’s lien shall be superior to a mortgage created subsequent to the time the materials were furnished if a statement is filed in the office of the county court clerk of the county where the materials are furnished showing that there has been furnished, or will be furnished, labor or materials, and the amount in full thereof. Here the mechanic’s lien and the notice were filed long after the mortgage to First Federal was executed and filed. It follows that the mechanic’s lien does not take precedence over the mortgage under the provisions of the above-noted statute.

The issue boils down to the question then, whether First Federal was charged with such notice of an intent to file a mechanic’s lien as to cause the mechanic’s lien to take precedence over First Federal’s mortgage. Appellant Johnson Lumber Company supports its contention that First Federal had notice on the ground that Johnson Lumber Company’s manager stated to First Federal’s attorney that materials were being furnished for building the house and that the builder was indebted to Johnson Lumber Company for those materials. However, no date was shown as to when this conversation took place, and the burden is on Johnson Lumber Company to prove that the conversation did take place before First Federal recorded its mortgage.

There is an assumption on the part of appellants that the attorney heretofore mentioned as First Federal’s attorney was in fact their attorney and agent. That attorney did certify the title to First Federal, but at the time he was acting on behalf of the builder. In such capacity, even if he had knowledge that materials were being furnished and not paid for, that knowledge could hardly be imputed to First Federal.

The mere fact that the mortgagee knows that work is being done on the property is not sufficient to charge him with actual notice of the existence of the lien. Foushee v. Grigsby, 75 Ky. (12 Bush) 75. In Ideal Supplies Co. v. Underhill, 213 Ky. 741, 281 S.W. 988, it was held that the holder of a mortgage taken while materials were being furnished to construct a house, and with knowledge that the money was being borrowed to apply on the construction and before a materialman’s lien had been asserted, did not have such notice of the potential lien as to subordinate the mortgage below the lien. In this case there was no showing that the builder was not paying the claims as they became due, or that he was unable to do so. Further, there is nothing in the record showing that the alleged conversation between the Company manager and the attorney occurred at a time pri- or to the recordation of the mortgage. In addition to all of this, it is not adequately shown that the attorney was the agent for First Federal and had knowledge that materials were being furnished but not paid for, thereby imputing such knowledge to First Federal.

The judgment is affirmed.


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    Orville Lee MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.

      Orville Lee Moore, pro se.
    Robert Matthews, Atty. Gen., Joseph E. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Orville Lee Moore’s motion under RCr 11.42 to vacate the judgment under which he is serving a life sentence for armed robbery was overruled without a hearing. Moore appeals.

The motion alleged that (1) Moore was denied counsel throughout all of the proceedings culminating in the judgment of conviction; (2) he pleaded guilty under duress of a threat by the Commonwealth’s attorney to seek the death penalty; (3) his conviction was based on circumstantial and perjured evidence; (4) improper instructions were given; and (5) there was an illegal search and seizure at the time of his arrest. The last three of these allegations are of course without substance or merit, see King v. Commonwealth, Ky., 387 S.W. 2d S82, so we shall confine our discussion and consideration to the first two allegations, which are interrelated in that the alleged duress is predicated upon lack of counsel.

Response was filed to the motion alleging that Moore did have counsel. Attached to the response was a copy of the trial order and judgment which recited that the defendant was brought into court and “comes his attorney;” also that the defendant “in person and by counsel” pleaded guilty and waived the right to file motion for new trial.

Moore then filed a supplemental motion in which he stated that the clerk of the circuit court had advised him that the records showed that one Robert Zollinger was his attorney; but that upon inquiry Zollinger had mailed to Moore an affidavit stating that he did not represent Moore.

Moore has attached to his brief in this Court copies of (1) a letter from the circuit clerk to Moore stating that one Frank Thieman, Jr., was listed on the indictment as being Moore’s attorney; (2) a letter from Thieman to Moore stating that he did not represent Moore; and (3) a letter from Robert Zollinger stating that he had represented Moore’s brother but not him.

Of course these attached documents are not procedurally acceptable for our consideration, but we are not disposed to be too strict in application of procedural rules to an indigent prisoner who is without counsel. In our opinion the allegations of Moore’s motions in the trial court raise a genuine issue as to whether he had counsel upon his trial, and the additional documents submitted in this Court tend to confirm that there is a real issue.

We agree with the proposition set forth in Rayborn v. United States, 6 Cir., 251 F.2d 950, that mere unsupported allegations of lack of counsel will not be permitted to contradict plain, unambiguous court records. However, in the instant case Moore has some semblance of support for his allegations and the court records contain nothing other than formal recitations of representation by unnamed counsel. It is our opinion that Moore is entitled to a hearing, with counsel, on the question of whether he did in fact have counsel on his trial.

The judgment is reversed with directions for proceedings in conformity with this opinion.


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    Donald Ray BURTON, Sr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.
    Donald Ray Burton, Sr., pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appeflee.
   HILL, Judge.

This appeal is from an order overruling, without a hearing, a motion to vacate judgment under RCr 11.42. The question, therefore, is did the motion contain sufficient grounds to entitle appellant to a hearing?

The motion assigns the following claimed errors s

“(1) The aforesaid trial and judgment is void because of the fact that the conviction was obtained through duress, in violation of the movant’s constitutional rights, and contrary to the existing Code of Criminal Practice in force at the time of this sentence. Counsel insisted on a plea of guilty.
“(2) Movant was not advised of his constitutional rights either at the time of his arrest, incarceration in the local jail, or before proceeding with any of the steps required for his subsequent (sic) conviction and sentence; that he was held without bond. That he was denied’ effective assistance of counsel for his defense in that, he was only given the total of 30 seconds or less to confer with court-appointed counsel,
“and (3) because ‘he was* tried on evidence that was obtained through illegal search and seizure.”

Apparently from the motion, appellant relies on the insistence of his attorney that he plead guilty as constituting “duress.” He was charged with five separate counts of storehouse breaking in two indictments, three in one and two in the other. The record shows that after counsel was appointed for and conferred with appellant, a plea of guilty was entered.

The mere allegation his counsel “insisted” on his pleading guilty is insufficient. He does not allege any facts to indicate counsel acted in bad faith. His counsel may have given him good advice. He could have been given a total of twenty-five years on the five counts; whereas, he received a verdict totaling five years after his guilty plea. The allegation of “duress” by his attorney in insisting upon a plea of guilty is not sufficient to entitle appellant to an oral hearing. King v. Commonwealth, Ky., 387 S.W.2d 582 (1965).

Under the second argument, it is sufficient to say there was no evidence introduced at the trial. He pleaded guilty, presumably voluntarily and with advice of counsel. Therefore, he is in no position to complain he was not “advised of his constitutional rights when arrested, when incarcerated, or before proceeding with * * steps required for his subsequent conviction.”

Included in his second argument is the contention appellant was only given a total of “30 seconds or less” to confer with his appointed counsel. He does not contend this brief time was insufficient, or that he asked for more time and was refused. His attorney could ask, “are you guilty,” and get a yes or no answer in less than three seconds. We conclude this ground insufficient to entitle appellant to a hearing.

The contention in ground three that he was tried on evidence obtained through illegal search and seizure is wholly without merit, as pointed out above, in view of his guilty plea and waiver of jury trial.

The judgment is affirmed.