text:
    George PHILPOT, Appellant, v. Charles B. STACY, Appellee.
    Court of Appeals of Kentucky.
    Sept. 27, 1963.
    John J. Tribell, Pineville, for appellant.
    Patterson & Berger, Robert B. Berger, Pineville, for appellee.
   ROBERT O. LUKOWSKY, Special Commissioner.

This is an action to recover for alleged malpractice on the part of a physician. The action was commenced on February 19, 1960 in the Bell Circuit Court. The gist of the action is that the Appellant, George Philpot, received improper treatment for an injury in an automobile accident on April 5, 1958, from the Appellee, Dr. Charles B. Stacy. After the issues were joined, the Appellee took the Appellant’s deposition and then moved for summary judgment on the ground that the action was barred by the statute of limitations. The Bell Circuit Court sustained this motion and entered summary judgment in favor of the Appellee, dismissing the Appellant’s complaint. It is from this that he appeals.

On April 5, 1958, the Appellant was injured in an automobile accident and he was taken to the emergency room of the Pine-ville Community Hospital in Bell County. He had a puncture wound in the lower left abdomen and the Appellee undertook treatment. Appellant states that he advised Ap>-pellee that the wound had bled only slightly and that some of the cloth from his clothing was gone and might be imbedded in the wound. Appellee then sutured the wound and apparently removed no cloth therefrom and permitted Appellant to return to his home.

Approximately a month after the injury, Appellant began to experience severe pain in his side and he returned to the Pineville Community Hospital for treatment by a Hr. Golden. He remained in the hospital about two weeks as Dr. Golden’s patient. At this time the wound showed some side infection which Dr. Golden treated with penicillin injections. After this the wound apparently healed. About a week after his discharge he returned to the hospital again, complaining of severe pain in the small of his back on the left side, and was given a thorough examination by Dr. Golden and Dr. Asher. During this second visit Dr. Stacy was called into consultation, and he suggested the possibility of a disc injury.

At this time the wound had turned black. Once again Appellant exhibited concern about cloth having been left in the wound at the time it was originally sutured and suggested that it was this foreign matter which caused the wound to turn black. During this stay in the hospital Appellant was later examined by Dr. Patterson, an orthopedist, who disagreed with the diagnosis of disc injury. Dr. Patterson knew that there was something wrong with Appellant, but felt that it was outside his specialty.

- Shortly thereafter Appellant was examined by Dr. Page at Middlesboro, who told him that something was wrong, but he couldn’t find it. Appellant returned home where he was seen by Dr. Evans, who told his family he was sick and suggested that he be sent to the Veterans Hospital in Louisville. The wound was still black at this time. Appellant went to the Veterans Hospital in Louisville, was examined, and told the doctor there that the wound had turned black about two weeks after the accident. This visit took place in July or August of 1958.

In November of 1958 a large mass formed on the Appellant’s side. Dr. Golden referred him to Dr. Hall in Knoxville. Dr. Hall told him, after examination, “ * * * there is a stick or something in the wound that is causing it. There has to be.” Appellant explained to Dr. Hall about the cloth missing from his clothes and Dr. Hall told him that was probably what was causing the infection. Dr. Hall lanced the wound at the Baptist Hospital and after the operation informed the Appellant only that he found three big abscesses.

After this operation Appellant’s condition improved until November 2, 1959, when he discovered a large sore mass on his stomach. Dr. Asher and Dr. Golden examined him and again referred him to Dr. Patterson. Dr. Patterson again felt that the difficulty was outside of his speciality, and referred him to Dr. Prince. Dr. Prince felt that a stick or some substance in the wound was causing the trouble and recommended an operation.

Appellant then contacted Dr. Bennett and Dr. Kleinert, who performed an operation on Appellant on January 4, 1960, in Louisville. They removed several pieces of cloth from the wound.

There is no question that Appellee neither examined nor treated Appellant after the summer of 1958. The record does not indicate, at any point, that Appellee attempted to discourage or limit the Appellant in obtaining medical attention and treatment elsewhere.

The only question to be considered by this Court is: Was the Appellant’s action, filed more than one year after the alleged malpractice occurred, barred by. the one year statute of limitations ?

The Appellant urges reversal on three grounds: 1) The Appellee either fraudulently concealed or misrepresented the Appellant’s condition to him, 2) The treatment of Appellant by Appellee was continuous, and 3) the statute would not begin to run until the Appellant discovered the cloth in the wound in November of 1959.

We have minutely examined the record in an effort to find any evidence of probative value which would show, or tend to show, that the Appellee either fraudulently concealed or fraudulently misrepresented the Appellant’s condition to him. This search met with no success whatever. The most the record discloses is that the Appellee may have made a mistake in his diagnosis and treatment of Appellant. When Appellant was asked the basis of his allegation of fraud he responded, “In fact I don’t know hardly how to answer, except I believe he knew that he had made a mistake when he examined me the second time.” This was the only reason for the allegation which Appellant could give. Fraud must be pleaded and clearly proved. Curry v. Stewart, 301 Ky. 645, 192 S.W.2d 739. CR 9.02. Neither requirement is met here.

It was Appellant who called Appellee’s attention to the possibility that there might be cloth in the wound, at the time it was originally sutured. The possibility of foreign matter in the wound was known at all times to the Appellant. The Appellant, after April 5, 1958, never relied on Appellee for treatment or advice. After the original treatment by Appellee, Appellant went from physician to surgeon and back again on numerous occasions seeking treatment and advice in regard to his difficulties. The record clearly shows that the last time Appellant saw Appellee in a professional capacity was in about June of 1958. Certainly this falls short of fraudulent representation or concealment and reliance thereon. 34 Am.Jur., Limitation of Actions, sections 233, 234.

In November of 1958 the Appellant received advice to the effect that “ * * * there is a stick or something in the wound that is causing * * * ” the difficulty. This was well within the one year statute. Even if we were to assume for the purpose of argument that the statute did not begin to run until Appellant had this notice he still did not file his suit within one year of that date.

We believe that the disposition of this case is controlled by Carter v. Harlan Hospital Association, 265 Ky. 452, 97 S.W.2d 9, wherein the Court held that a cause of action accrues when a party has the right and capacity to sue and his right of action is not suspended until he ascertains that he has a cause of action. Here the alleged injury could only have been the result of negligence in the original operation. There is no evidence showing that Appellee had any knowledge not also possessed by the Appellant of any cloth in the wound. The innuendo that if the Appellee had used ordinary care he could have learned of the cloth in the wound is not sufficient to show fraudulent concealment. With respect to the Statute of Limitations, the time of the injury itself is the controlling fact, and not the means by which the injury is inflicted. Appellant could only have been injured when the operation was performed. The only thing he could not have known was the means of his injury, although we are convinced that he knew this at the time, and certainly within six months of the infliction of the injury, so that from either date, more than one year passed before this action was commenced.

We do not believe that Adams v. Ison, Ky., 249 S.W.2d 791, controls the disposition of this case because that case was decided on the basis that the doctor made an actual affirmative misrepresentation to his patient upon which representation the patient relied. There is no such evidence here. Appellee concealed no facts from Appellant affecting liability which delayed or prevented Appellant from bringing suit.

For the reasons herein given, we believe that the record discloses no dispute as to any material fact, that the Appellee was entitled to Judgment as a matter of law and that the Summary Judgment entered by the learned Trial Judge in favor of the Ap-pellee, should be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    John SHARP, Petitioner, v. C. J. WADDILL, Judge, Hopkins Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Sept. 27, 1963.
    John Sharp, pro se.
   CULLEN, Commissioner.

John Sharp, a prisoner in the state penitentiary under a sentence of conviction from the Hopkins Circuit Court, made application to that court, in forma pauperis, for a transcript of the testimony at his trial. His stated reason for desiring the transcript was that he intended to institute a habeas corpus proceeding collaterally attacking the judgment of conviction on the ground that the court was without jurisdiction. He alleged that the transcript would show that “the alleged crime was not allegedly committed in Hopkins County.” The circuit court denied the application. Sharp has filed a petition in this Court seeking an order of mandamus directing the circuit court to furnish him the transcript.

Venue in criminal cases is a “jurisdictional fact” put in issue by a plea of not guilty. Woosley v. Commonwealth, Ky., 293 S.W.2d 625; Anderson v. Commonwealth, Ky., 349 S.W.2d 826. However, it does not follow that an erroneous finding of venue, or even a complete failure of proof of venue, will render a judgment of conviction void so as to be subject to collateral attack.

The established rule is that where the jurisdiction of a court depends on a fact which the court is required to ascertain, the court has jurisdiction to determine that jurisdictional fact, and its judgment determining that fact is conclusive on the question of jurisdiction until set aside or reversed in direct proceedings; it cannot be attacked collaterally. Collins v. Duff, Ky., 283 S.W.2d 179; Strother v. Day, Ky., 279 S.W.2d 785. See also Weintraub v. Murphy, Ky., 240 S.W.2d 594.

Here, the Hopkins Circuit Court, in rendering a judgment of conviction of Sharp, necessarily determined the “jurisdictional fact” of venue. That determination is not subject to collateral attack. Toy Toy v. Hopkins, 212 U.S. 542, 29 S.Ct. 416, 53 L.Ed. 644. (Extended research by us has failed to disclose any recorded case in which lack of proof of venue in a criminal prosecution was held to be a ground for habeas corpus.)

The rule we are here invoking applies where there was an issue of fact on the trial as to whether the offense was committed within the territorial jurisdiction of the court. (That such was the situation in the instant case is evidenced by Sharp’s allegation that the transcript of evidence will show a lack of venue.) If the record, apart from the evidence on the issue of venue, showed on its face that the offense occurred beyond the territorial jurisdiction of the court, perhaps the judgment would be subject to collateral attack. See discussion in Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455, and in State ex rel. Du Fault v. Utecht, 220 Minn. 431, 19 N.W.2d 706, 161 A.L.R. 1316.

Since the desired transcript of testimony would be of no avail for the purpose for which Sharp proposed to use it, the circuit court did not err in refusing to furnish it.

No question of violation of any constitutional rights is involved.

The petition is denied.


author: PALMORE, Judge.

text:
    Crandell G. BENSON, Petitioner, v. Arthur ILER, Judge, Muhlenberg Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Sept. 27, 1963.
    Crandell G. Benson, pro se.
    Arthur T. Her, Judge,, Muhlenberg Circuit Court, Greenville, pro se.
   PALMORE, Judge.

Crandell G. Benson, a prisoner in the Kentucky State Penitentiary, seeks in this court original relief in the nature of mandamus to compel respondent, judge of the circuit court by which he was convicted and committed, to rule on his motion under RCr 11.42 to vacate the judgment of conviction.

The response indicates that the RCr 11.42 motion is insufficient on its face. If so, it should be summarily overruled in order that petitioner will not be deprived of the right of testing its sufficiency by appeal.

The petition is sustained and respondent is directed to dispose of the motion by appropriate order.


author: BIRD, Judge.

text:
    Crandell G. BENSON, Petitioner, v. Arthur ILER, Judge, Muhlenberg Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Sept. 27, 1963.
    Crandell G. Benson, pro se.
    Arthur T. Iler, Judge, Muhlenberg Circuit Court, Greenville, pro se.
   BIRD, Judge.

Crandell G. Benson, a prisoner in the Kentucky State Penitentiary, seeks in this Court original relief in the nature of mandamus to compel respondent, judge of the circuit court by which he was convicted and committed, to rule on his motion to provide transcripts forma pauperis for the purpose of his appeal.

Our record does not disclose the motion as made before the trial court but we see no reason why the trial court should not rule on the motions.

Consequently, we are directing that the trial court rule on the motion or motions by appropriate order.

The petition is therefore sustained and the relief sought is granted.


author: CLAY, Commissioner.

text:
    Robert LANE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 27, 1963.

      Wix Unthank. Harlan, for appellant.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort,, Daniel Boone Smith, Commonwealth’s Atty., Harlan, for appellee.
   CLAY, Commissioner.

Appellant was convicted under KRS 405.-030 of unreasonably neglecting to support his infant child when he was tried in ab-sentia.

On this appeal he first contends he was entitled to a continuance. While the unusual circumstances would certainly have justified a continuance, we do not find the trial court abused its discretion.

Appellant further contends the Commonwealth failed to prove the commission of this crime. The facts are as follows. A divorce proceeding was pending between the parties when the infant involved was born. Appellant paid the hospital bill but did not contribute to the child’s support. However, in a deposition taken in the divorce action about two months before the indictment, the prosecuting witness, the mother of the child, had testified that she did not want any alimony or support for said infant from the defendant. After the returning of the indictment, the mother changed her mind about this, but at the time appellant was charged with this crime he had been led to believe by the prosecuting witness that support for the child by him was neither desired nor needed.

Under the peculiar circumstances of this case, it is our opinion that as a matter of law the evidence failed to support the charge that, at the time of the return of the indictment, appellant had unreasonably neglected to furnish such support.

The judgment is reversed.


author: STANLEY, Commissioner.

text:
    BEATRICE FOODS COMPANY et al., Appellants, v. Donald CHATHAM, Appellee.
    Court of Appeals of Kentucky.
    March 8, 1963.
    Rehearing Denied Sept. 27,1963.

      Joseph J. Leary, Frankfort, for appellants.
    Bernard Davis, Shelbyville, for appellee.
   STANLEY, Commissioner.

A fire destroyed a building in Shelbyville, the first or main floor of which was occupied by the Begley Drug Store and the basement occupied in part by offices of Dr. Donald Chatham and his associate, who were Begley’s subtenants. The furnace and other facilities under; the control of Begley were also in the basement. Among them was a refrigerating plant serving the drug store. It was owned and maintained by the Kentucky Ice Cream Company, which sold ice cream to Begley. That company was a wholly owned subsidiary of the Beatrice Foods Company. The fire occurred early in the morning of February 10, 1960.

Dr. Chatham sued Begley and the other two companies to recover damages for the loss of his office equipment and other personal property in the fire. The ground of the action was negligence in permitting defective electrical equipment and waste material in the basement. The verdict exonerated Begley but awarded $10,613.76 to the plaintiff against the other two defendants. They appeal from the judgment on the grounds that the court erred in denying them a directed verdict and that the verdict is not sustained by sufficient evidence and is contrary to law because based upon conjecture and speculation.

The question of error is two-fold, namely, proof of causation and of negligence.

On several recent occasions before the fire Begley had experienced a frequent blowout of a 100 ampere fuse in the line which serviced, among other installations, the refrigerator’s electrical motor. This may have been caused by overloading current when several motors ran at the same time, or, according to an electrician, because of some “malformation or abnormality in the particular circuit.” Adjustment in the interior service line had been made about a month before the fire, and it appears there was no more trouble with a blown-out fuse.

In the late afternoon of February 2, eight days before the fire, Dr. Chatham, smelling something burning, discovered a pall of smoke like a cloud hovering at the basement ceiling. The fumes were acrid and irritating, causing him to cough and his eyes to water. Dr. Chatham walked by the compressor motor and was positive that the smoke and odor came from it. Beg-ley’s manager, Calvin Dunavan, had also discovered the condition and cut off the motor shortly before Dr. Chatham’s employee reported it.

The next morning Dunavan called the Ice Cream Company’s office in Richmond and reported that its refrigerator motor had “gone out” and that his ice cream would be getting soft. The company’s mechanic and service man, John L. Henry, came promptly to Shelbyville. The plaintiff called him as a witness. He testified that the only thing he found wrong with the equipment was that the belt connecting the motor with the compressor was slipping, and he tightened it. He also oiled the motor and checked the brushes. Henry had usually checked the company’s motors four times a year and had attended to this motor regularly. A discrepancy developed in this witness’ testimony and that of Dunavan. Henry said that when he arrived that morning the motor was running, while Dunavan testified that he had cut off the motor the evening before. The plaintiff elicited from Henry that odors and smoke, as described, would indicate the motor was overheated and that would cause the winding to char and crack or break down and increase the amperage. He also testified that smoke might indicate that the connecting belt was scorched or burning, although, as stated, he found no evidence of such condition in the motor or the belt.

The electric motor rested on a concrete floor but was five to eight inches from a partition wall of frame and plaster and four to six feet from a wooden stairway.

Russell Anderson, an employee of the Kentucky Utilities Company, got to the fire very soon after it was discovered and cut the electric current from the building. He assisted the firemen to get inside. He found “right smart fire” in the general area of the foot of the stairway and the refrigerator motor. The chief of the fire department, Rhene Strange, testified to the same fact. He stated that the fire had burned from that point through the first floor and straight up through the roof of the building, and that was the only place that showed that type of burning. Chief Strange investigated the source of the fire that morning and later. From his observations, training and experience he expressed the view that the origin of the fire was in the area of the motor. On the day following there was an “uprising of fire” in the debris over the motor.

Other witnesses testified and some pictures showed that there was a hole burned in the ceiling just above the refrigerating equipment and none elsewhere.

As the point posed is the sufficiency of the plaintiff’s evidence to go to the jury, we deem it enough to say that no witness undertook to testify as a positive fact that he knew how the fire started; that the defendants’ employee testified positively that the trouble with the motor the week before was not sufficient to have caused the fire and that he remedied it; that an expert electrician had taken the motor apart after the fire and found no indication that it was in a defective condition and had testified and demonstrated to the jury that there were only two nonmetal components of the motor, i. e., insulation on the wire and a small amount of “wool wicking,” and that the former might smolder but would not produce a flame, and the latter, because of its highly combustible material, would have burned out quickly if there had been any heat applied. Some other conditions in the motor indicated, according to these witnesses, that it was not the origin of the fire. The jury might well have accepted all this evidence as overcoming or negating the plaintiff’s proof, but it chose to accept the plaintiff’s evidence as the truth of the matter.

Of course, in order to impose liability for loss or injury by fire it must have been proved to have resulted from the negligent or wrongful act complained of. And we have many times affirmed that a verdict founded wholly upon speculation and surmise cannot be sustained. But the line between what is speculative proof and what is circumstantial or inferential proof is sometimes dim and uncertain. The jury is instructed to reach its verdict “from the evidenceand if there was competent and relevant evidence affording a reasonable and logical inference or conclusion of a definite fact, this court will not invade the jury’s province to weigh conflicting evidence, judge the credibility of witnesses and draw the ultimate conclusion.

Upon the question of the cause of the fire, we' think that the evidence favorable to the plaintiff as above summarized was abundantly ample. Upon the question of negligence, we think the physical facts and persuasive circumstances were enough to afford a reasonable inference that the defendants’ employee, Henry, had not permanently remedied an admitted defective condition of the motor, although there had been no reoccurrence of its manifestation during the intervening week.

Often cases of this kind must be decided upon circumstantial evidence, for the actual beginning of a fire — particularly in the nighttime, as here — was not seen. Appellants cite several cases in support of their contentions and undertake to distinguish others which are adverse, apparently or actually. All cases differ as to the facts to which the established principles of law were or must be applied. In close application here are Kentucky Utilities Co. v. White Star Coal Co., 244 Ky. 759, 52 S.W.2d 705; Kentucky Utilities Co. v. Young, Ky., 247 S.W.2d 978; Kentucky Power Co. v. Kilbourn, Ky., 307 S.W.2d 9.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    CITY OF COVINGTON, Kentucky, et al., Appellants, v. BOARD OF COMMISSIONERS OF KENTON COUNTY WATER DISTRICT NO. 1, etc., Appellee.
    Court of Appeals of Kentucky.
    June 21, 1963.
    As Modified on Denial of Rehearing Oct. 4, 1963.

      Louis Cox, James Honaker, Frankfort, John B. Breckinridge, Atty. Gen., Frankfort, J. Gardner Ashcraft, Asst. Atty. Gen., Frankfort, for appellants.
    Grafton, Ferguson & Fleischer, Cornelius W. Grafton, Louisville, G. Wayne Bridges, Covington, for appellee.
   WADDILL, Commissioner.

This is an appeal from a judgment of the Franklin Circuit Court setting aside an order of the Public Service Commission (hereinafter called “Commission”) which dismissed an application filed by the Board of Commissioners of Kenton County Water District #1 (hereinafter referred to as the “Water District”) to obtain a certificate of public convenience and necessity.

During September, 1960, the Water District filed an application with the Commission setting forth its intention to expand its water plant and requesting either that the Commission rule a certificate of convenience and necessity is not required for this particular extension or that such a certificate be issued. The City of Covington filed a protest and was allowed to intervene in the proceeding. Following a hearing, the Commission made the following findings of fact:

“(1) That the present capacity of Kenton County Water District’s plant is three million gallons per day.
“(2) That three million gallons per day is not sufficient to meet the demands of the District.
“(3) That the estimated cost of the proposed construction is $348,000, and is to be financed by the issuance of $424,000 in revenue bonds.
“(4) That the present Covington plant is capable of producing in excess of twenty million gallons per day.
“(5) That the City of Covington has surplus water available in excess of seven million gallons per day.
“(6) That there exists a stand-by connection between the City of Coving-ton and the northern part of Kenton County Water District.
“(7) That by 1975-77 it is estimated that the Kenton County Water District No. 1, according- to the present rate of growth, will require approximately six million gallons per day for its peak daily demands, and that the City of Covington is presently capable of furnishing the District with the anticipated excess demand of three million gallons per day without operating the Covington plant at its capacity. Thus, approval of the Application would result in a wasteful duplication of facilities.”

After concluding that the proposed expansion was not an ordinary extension of an existing system and that a certificate of convenience and necessity was required, the Commission dismissed the application. In setting aside this order the trial judge determined that the Commission had no jurisdiction to grant or deny the application under KRS 278.020 and, even if it did, the duplication of facilities would not be wasteful since it would result in a substantial savings to the customers of the Water District.

Appellants contend that the trial judge erred in both conclusions and that the order of the Commission was neither unreasonable nor unlawful. Turning first to the question of jurisdiction, we observe that KRS 278.020 provides in pertinent part:

“(1) No person shall begin the construction of any plant, equipment, property or facility for furnishing to the public any of the services enumerated in KRS 278.010, except ordinary extensions of existing systems in the usual course of business, until such person has obtained from the Public Service Commission a certificate that public convenience and necessity require such construction. * *

In determining whether the proposed expansion is an ordinary extension of an existing system in the usual course of business we need only observe that the existing plant cost approximately $1,000,000 and that the proposed doubling of its capacity will necessitate an expenditure of an additional $424,000. In our opinion the magnitude of the proposed extension shows that it is not an “ordinary” one in the contemplation of KRS 278.020. Hence, the trial court erred in determining the Commission was without jurisdiction to decide the merits of the controversy.

We proceed now to the trial judge’s alternative ruling that the Commission’s order was unlawful and unreasonable in refusing to grant a certificate of convenience and necessity because the proposed expansion would be wasteful duplication of existing facilities of the City of Covington. As stated by the judge:

“When an administrative body such as the Public Service Commission hears evidence and makes ‘Findings of Fact,’' such Findings are entitled to be given great weight by the Courts and will ordinarily be sustained if they are supported by evidence of probative value,, even though the Courts may feel that the preponderance of the evidence was otherwise. Accordingly, this Court accepts the Public Service Commission’s ‘Findings of Fact’ which are set forth in the Order to which the Complaint is directed, except as to the last sentence of Finding (7), which reads: ‘Thus, approval of the Application would result in a wasteful duplication of facilities.’ It is argued on behalf of the City and the Public Service Commission that this is a ‘finding of ultimate fact,’ whereas it is argued on behalf of the District that it is a finding of fact as to duplication, coupled with a conclu- ■ sion of law that the duplication is-‘wasteful.’ ”
“Insofar as the quoted ‘Finding’ of' the Commission establishes that there-will be a duplication of facilities, it is-a finding of fact, supported- by evidence. Insofar as the quoted ‘Finding’of the Commission undertakes to characterize such duplication as 'wasteful’ it is unsupported by the evidence in the record and is a Conclusion of Law, and examination into its validity is a prerogative of this Court.”
“The record conclusively shows that the proposed duplication of facilities will enable the Water District to provide water service to its customers at rates lower than would be the case if the District should be required to purchase water from Covington at the only wholesale rate offered (its published rate). Under these circumstances, the proposed duplication cannot be called a ‘wasteful’ duplication. The fact that purchasing water from Covington might be beneficial to Covington’s water customers is beside the point. The Water District owes no duties to the customers of Covington, and may not be required to suffer for their benefit."

We concur with the conclusion of the trial judge that under this record the Water District is entitled to the certificate of convenience and necessity which is sought by its application. While he determined the apparent duplication of facilities could not properly be considered “wasteful,” it is our opinion that as a matter of law there was no cognizable duplication at all.

The word “duplication” carries a concept of exactness of kind and character. See definition in Websters New International Dictionary. One facility should constitute an adequate substitute for the other. See Kentucky Utilities Co. v. Public Service Commission, Ky., 252 S.W.2d 885, 890. It is evident there can be no duplication unless the existing facility is reasonably available for the present and future needs of those who will be served by it. The mere existence of a similar, physical plan is not enough.

There is no assurance that the Cov-ington water supply, assuming it to be available now, will continue to be available to the District. Nor does the Commission have authority to require the City of Cov-ington to furnish water. See McClellan v. Louisville Water Company, Ky., 351 S.W.2d 197. Thus Covington’s existing supply source is not in fact an adequate substitute for the proposed facility. Since the Commission’s order was based on a finding of a duplication of facilities which could not be comparably utilized, it was unreasonable.

The judgment is reversed insofar as it holds the Commission to be without jurisdiction to consider the application, and it is affirmed insofar as it adjudges the order of the Commission to be unlawful and unreasonable, and the circuit judge will remand the case to the Commission for the issuance of the requested certificate.


author: STEWART, Judge.

text:
    CITY OF MIDDLESBORO et al., Appellants, v. Howard BILLINGSLEY et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 27, 1963.

      Glenn W. Denham, Middlesboro, for appellants.
    Robert J. Watson, Middlesboro, for appel-lees.
   STEWART, Judge.

This action was brought by the City of Middlesboro and the members of the City Planning Commission to enjoin the use of business property allegedly in violation of a zoning ordinance, which property is owned by Howard and Josephine Billingsley. The chancellor found against the city and dismissed the complaint. This appeal followed.

In November, 1953, the City of Middles-boro adopted a comprehensive zoning ordinance. As a result, property located on the south side of Winchester Avenue between 21st and 22nd Streets was zoned for residential purposes. Located in that block when the zoning ordinance became effective were various residences and also a concrete-block business building owned by Howard and Josephine Billingsley, appellees herein. The relevant portion of the zoning ordinance reads:

“33.3 No nonconforming use may be reestablished after it has been discontinued for one year. Vacating of premises or building or non-operative status shall be evidence of a discontinued use.
“33.4 No nonconforming use may be changed to any other nonconforming use unless the Board of Zoning Adjustment shall find that the proposed nonconforming use is less detrimental to the district than the existing nonconforming use of the property. The Board of Zoning Adjustment may specify such appropriate conditions and! safeguards as may be required in connection with such change.”

It appears from the evidence introduced that the Billingsley structure was built sometime in the late 1940’s; that it. was utilized at first for the storage of construction equipment and supplies; and that a portion of it was rented to Tri-State Bus Company during the latter part of 1952, this company keeping three or four buses in the front of it but the lessors retaining possession of the back of it for- the purpose above mentioned. In 1955 Tri-State Bus Company moved out and until 1960 the building was used as storage for various items, including construction equipment and materials, a gasoline truck and a passenger automobile.

In 1960 the building was leased to Mid-dlesboro-LaFollette Bus Line, an appellee herein. When the latter took over the structure, it concreted the floor and put in a grease pit in order to service its buses on the inside. Mechanical equipment, such as air compressors, jacks and other devices necessary for such work, was installed, and the premises have since been employed as a garage where all of the major repairs are performed on the six buses owned by appel-lee bus line. Occasionally work has been done on the cars of the above appellee’s bus drivers. The noise of this activity is great and the volume is such that some buses are parked on the street while others are being reconditioned. A full-time mechanic is employed at the place and he puts in time each day from 8:00 or 8:30 a. m. to 4:00 or 5:00 p. m. The building is also utilized to store the buses.

The City of Middlesboro and the members of the City Planning Commission, appellants herein, brought this action against the Billingsleys, appellees herein, to enjoin the business conducted in the building, claiming a violation of the city's zoning ordinances because of a material change in the nonconforming use of the property. The trial court, by its findings of fact and conclusions of law, found that the nonconforming use of the building had been substantially the same from the time of its erection down to the present, and that such use had never been abandoned.

A reading of section 33.4 of the ordinance ■dealing with the subject matter before us clearly indicates that its intent is to hold nonconforming uses within strict limits; and that any change effected must be to another “nonconforming use that is less detrimental.” In Attorney General v. Johnson, Ky., 355 S.W.2d 305, this statement was made: “ * * * We have pointed out that an important consideration in a case of this character, where a shift in use is contemplated, is to be certain that the type of activity carried’on under the second use is merely incidental to the major activity allowed by the former nonconforming use. * *»

In the case of Feldman v. Hesch, Ky., 254 S.W.2d 914, a garage building owned by Feldman which had been used by a dairy business for storing and servicing delivery trucks, and for making repairs on them,, was employed by a later lessee to carry on the business of reconditioning automobiles in •order to place them on the market for sale. This Court pointed out that the reconditioning operation was the main business carried on under the second use, whereas storage was the primary utilization of the garage by the dairy business, the first user, and any repair work done on the latter’s truck was incidental to the storage use.

The opinion in that case, in deciding a new use had been initiated which violated the zoning regulation, stated: “We think that the burden- upon the residential district in which Feldman’s garage is located, arising from a storage of his trucks and incidental repair and maintenance work upon them, was substantially increased- when the use of the building was so changed that automobile repair and reconditioning work is carried on constantly.” (Emphasis added.)

In City of Bowling Green v. Miller, Ky., 335 S.W.2d 893, 87 A.L.R.2d 1, a building which had been used to display and store furnaces and parts was converted over to a sheet-metal business. This Court was of the opinion that the sheet-metal business “constitutes a shift from the passive use of the building for storage and sales purposes to a manufacturing enterprise,” and rej ected the contention that such was a continuance of the established nonconforming use.

The above two cases are controlling here. In Feldman v. Hesch it was held the conversion of a garage from a place of storage to one of making mechanical repairs on second-hand cars was a change in a nonconforming use contrary to the terms and conditions of a municipal zoning restriction. We have this identical pattern in the case before us because repairing activity is now principally carried on by appellee, whereas storage was the major business under the former use of the building. There has been, as was pointed out in City of Bowling Green v. Miller, a deviation from a passive use, namely general storage, to an active use, namely reconditioning buses and cars.

We conclude the determination made by the chancellor is not supported by any evidence of substance. See CR 52.01.

It is argued the complaint does not state a claim upon which relief may be granted. The complaint in our view alleges facts which tend to show a violation by ap-pellees of the terms of the zoning ordinance under consideration and asks that they be enjoined from making any use of their property other than for the purpose permitted by the restrictive provisions of that ordinance. We are of the opinion the requirements of CR 8.01 were met. This rule prescribes the essential elements a claim for relief must set forth.

Wherefore, the judgment is reversed for proceedings consistent with this opinion.


text:
    COMMONWEALTH of Kentucky on relation of H. W. BAKER et al., Appellants, v. WHAYNE SUPPLY COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 27, 1963.
    Jesse K. Lewis, Lexington, for appellants.
    Carl L. Wedekind, Jr., Stites, Peabody & Helm, S. M. Rosenstein, Louisville, Edward Jackson, Beattyville, Smith, Reed & Leary, Frankfort, for appellees.
   STANLEY, Commissioner.

This action was instituted by H. W. Baker and three other taxpayers of Owsley County, as relators of the Commonwealth, for the use and benefit of themselves and other taxpayers against the members of the fiscal court, several present and former county officials and the sureties on their respective bonds to recover alleged unauthorized and illegal expenditures of the county’s funds. Included as defendants were Whayne Supply Company and Bran-déis Machinery and Supply Company, both corporations with their principal offices in Louisville. It was charged that these defendants had been paid certain sums of money for road machinery sold under contracts with the county, which contracts, it was alleged, were illegal and void because of the failure to receive competitive bids, and the payments were made in excess of the county budgets, and other grounds. Similar claims were asserted against other companies and individuals.

The Whayne and Brandéis companies, respectively, filed motions to dismiss the action for failure of the complaint to state a claim against them upon which relief could be granted. It was stated that the complaint affirmatively showed that the plaintiffs “lack the legal capacity to institute and maintain the action.” One of the several bases for this allegation was that the plaintiffs had not first made demand on the county or its fiscal court to sue the defendants on the claims or alleged that such demand would have been useless. The motions to dismiss also pleaded the absence of venue because each corporation was domiciled in Jefferson County and had been served with summons in that county. There were other grounds for the motion.

The circuit court sustained the motions and dismissed the actions against these defendants on the ground of improper venue. The plaintiffs then moved for a reconsideration and filed amended complaint, which substantially charged that the contracts and purchase agreements with the defendants had been made and executed in Owsley County. Another order was entered dismissing the complaint as against these two defendants on the same ground of improper venue, and this judgment was stated to be final and that there was no just reason for delaying an appeal. CR 54.02.

We have some doubt as to the correctness of dismissing the complaint on the ground of improper venue. We think, however, that the dismissal was proper on the ground that the pleading did not show the requisite condition that the plaintiffs were entitled to relief which the court •could properly grant, namely, judgment in behalf of the county and its taxpayers. CR •8.01.

It has long been held that the fiscal court of a county and not a taxpayer is vested with the primary duty to •institute suits for the recovery of money for the county, and that a taxpayer is not •permitted to bring suit in matters concerning public funds until he has first requested the fiscal court to do so and that official body has refused to comply. This well ■established rule, however, is qualified. A taxpayer does have the right to institute tsuch a suit where it appears that demand of the fiscal court would have been futile. Land v. Lewis, 291 Ky. 800, 165 S.W.2d 553; Upton v. Whitley County, 310 Ky. 174, 220 S.W.2d 375. We have recognized that this requisite condition for maintaining the action, i. e., a demand or its futility, must be alleged. Pike County v. Young, 266 Ky. 588, 99 S.W.2d 749; Upton v. Whitley County, supra; Howard v. Ader, 314 Ky. 213, 234 S.W.2d 733. We conclude, therefore, that the dismissal of the complaint was proper.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky et al., Appellants, v. HENDERSON COUNTY, Kentucky, et al., Appellees. OHIO RIVER OIL COMPANY, Inc., Appellant, v. HENDERSON COUNTY, Kentucky, et al., Appellees. Henry B. WALKER et al., Appellants, v. HENDERSON COUNTY, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    March 22, 1963.
    Rehearing Denied Oct. 25, 1963.

      John B. Breckinridge, Atty. Gen., Troy D'. Savage, H. N. McTyeire, Asst. Atty. Gen.,. Frankfort, for the Commonwealth and others.
    Funk, Chancellor & Marshall, Chat Chancellor, Frankfort, for Ohio River Oil Co., Inc.
    L. Allen Rhoads, Henderson County Atty., Henderson, ,and Byron, Sandidge, Holbrook & Craig and Morton Holbrook, Owensboro, for Henderson County..

      B. M. Westberry, Crittenden County Atty., Marion, for Crittenden County.
    J. D. Ruark Union County Atty., Morgan-field, for Union County.
    Shelby Denton, Daviess County Atty., Owensboro, for Daviess County.
    H. G. Black, Hancock County Atty., Hawesville, for Hancock County.
    S. H. Monarch Breckinridge County Atty., Hardinsburg, for Breckinridge County.
    Walker & Walker and Henry B. Walker, Jr., Evansville, Ind., Palmore & Mitchell, Henderson, and Dailey & Fowler, Frankfort, for Henry B. Walker and others.
    John K. Knodell, Jr., Mattoon, Ill., for Humble Oil & Refining Co.
    Alfred A. Kiltz, Mt. Vernon, Ind., pro se and for Ray Ryan and others.
    William T. Carroll, Owensboro, for Farm Bureau Oil Co., Inc.
   MILLIKEN, Judge.

The discovery of oil and gas about ten years ago under the bed of the Ohio River between the thread of the stream and the Indiana shore lured the usual developers whose rights are at stake in this litigation. Essentially there are three classes of parties: (1) the counties bordering the area and their lessees; (2) those claiming under patents of the river bed north of the thread of the stream; and (3) the Commonwealth claimants under a lease executed by the State Property & Building Commission. The trial court judgment sustained the claims of the counties and their lessees, found the patents void, and concluded that the State Property & Building Commission had no legal authority over the land in question. It is conceded that the sovereign jurisdiction of Kentucky covers the area and that the determination of the issues presented turns on the interpretation and applicability of certain Kentucky Statutes.

This litigation began eight years ago in the United States District Court for the Western District of Kentucky where that Court construed the principal Kentucky Statutes involved in a way directly opposite to the State Court construction in the presently appealed, later judgment. Walker v. Felmont, 136 F.Supp. 584 (W.D.Ky., 1955). The United States District Court judgment was reversed by the United States Court of Appeals for the Sixth Circuit, not on its merits, but upon the ground that the Federal Courts should decline to pass judgment on the important statutory questions presented until the courts of the State had an opportunity to pass upon them which, in a sense, involve the public policy of the State. Walker v. Felmont, 240 F.2d 912 (Sixth Circuit, 1957). After a denial of certiorari by the United States Supreme Court in 1959, Walker, Trustee v. Felmont Oil Company, 361 U.S. 840, 80 S.Ct. 61, 4 L.Ed.2d 78, the United States District Court issued its final order dismissing the action which eventuated in the present action in the Henderson Circuit Court whose judgment is here appealed.

The historical incidents underlying the establishment of the north or northwest low watermark of the Ohio River as to the boundary of Kentucky are set out in great detail in two decisions of the United States Supreme Court. Handly’s Lessee v. Anthony, 5 Wheat. 374, 18 U.S. 374, 5 L.Ed. 113, decided at the February term, 1820, with opinion by Chief Justice Marshall, and State of Indiana v. State of Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329, decided at the October term, 1889, with opinion by Mr. Justice Field. It is pointed out in those cases that even prior to the adoption of the United States Constitution, the Virginia Legislature authorized its congressional delegation to cede to the central government what was then referred to as the Northwest Territory and that such a cession was actually made by formal deed of March 1, 1784. It is further shown by those decisions that the cession of the Northwest Territory to the central government left all of the Ohio River to its northern or northwestern low watermark within the territorial confines of that part of Virginia which later became Kentucky through the admission of this Commonwealth into the Union in 1792.

Furthermore, it has been established that an individual Kentucky landowner whose lands border on the Ohio River owns ■only to the thread of the river, while the •ownership of the Commonwealth of Kentucky in its sovereign capacity extends to the low watermark on the northern or northwestern side of the river. Berry v. Snyder, 66 Ky. 266; Miller v. Hepburn, 71 Ky. 326; Louisville Bridge Company v. City of Louisville, 81 Ky. 189; Ware v. Hager, 126 Ky. 324, 103 S.W. 283; Bedford-Nugent Company v. Herndon, 196 Ky. 477, 244 S.W. 908; McGill v. Thrasher, 221 Ky. 789, 299 S.W. 955; City of Covington v. State Tax Commission, 231 Ky. 606, 21 S.W.2d 1010; Louisville Sand & Gravel Company v. Ralston, Ky., 266 S.W.2d 119; Handly’s Lessee v. Anthony, 5 Wheat. 374, 18 U.S. 374, 5 L.Ed. 113; State of Indiana v. State of Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329.

The decision of this case turns on the •construction and application of three statutes: KRS 56.190 and 56.320, which we shall refer to as the Patent Statutes; KRS 56.220, which we shall call the County Leasing Statute; and KRS 56.463, the Building Commission Statute. Regardless of their respective origins, each was re-enacted in 1942 when the Kentucky Revised Statutes were adopted, and each is currently effective unless we find that a repeal or modification by implication has occurred.

In summary, the Patent Statutes (KRS 56.190-56.320) prescribe that the patenting •of any “vacant and unappropriated” land may be had by applying to the county court of the county where the land lies and paying the price fixed therefor “into the county treasury.” The Building Commission Statute (KRS 56.463) authorizes the Commission :

“(1) To determine the comparative needs and demands of the various state agencies * * *.
“(2) To purchase, lease or rent such real estate as the department (Commission) may find to he necessary for use by the state or any state agency * *.
“(3) To sell and convey any real estate owned by the state or by any state agency, found by the department (Commission) not to be needed for public use or to have become unsuitable for such use. * * *
“(6) To lease any real estate or any part thereof, now owned or hereafter acquired by the state or by any state agency, * * * when the department (Commission) finds as a matter of fact that the real estate or any part thereof is not needed for state purposes * *.”

The only statute dealing specifically with land in the Ohio River north of the thread of the stream is the County Leasing Statute (KRS 56.220) which declares in toto:

“All that portion of the bed of the Ohio River, lying north of the thread of the stream, except accretions to islands privately owned, is declared to be vacant and unappropriated land, and the county court of each county bordering on the Ohio River may use or lease the river bed for county purposes, upon such terms and conditions as to it seem beneficial to the county. Any contract of leasing made by any such county court of such river bed for any sand and gravel rights for or on behalf of the county, conveys full right and title to the lessee to the exclusive use of all sand and gravel deposits in the river bed to the extent embraced in the lease.”

We shall refer to the three categories of claimants as the (1) patentees, (2) the Commission, and (3) the counties.

I. The Patentees

Both the United States District Court and the Henderson Circuit Court concluded that the patentees’ claims had to he denied, the latter court adopting the detailed opinion of the Federal Court on this issue, a course which we too shall follow in part. In its detailed opinion (Walker v. Felmont, 136 F.Supp. 584), the Federal Court declared:

“In their complaint the Patentees allege complete compliance with the laws of Kentucky providing for the appropriation of vacant and unappropriated lands and assert the validity of certain patents issued in 1938 to portions of the Ohio River bed north of the thread of the stream. These patents, signed by the Governor and Secretary of State and bearing the Seal of the Commonwealth of Kentucky, are filed with the record. The attack on the validity of these patents centers on the contention that the patent statutes as construed by the Court of Appeals of Kentucky apply only to uplands and do not permit the acquisition of the northern half of the bed of the Ohio River by patent proceedings.
“The question of whether or not the northern bed of the Ohio River is subject to patent was directly considered by the Court of Appeals of Kentucky in 1907 in the case of Ware v. Hager, 126 Ky. 324, [326] 103 S.W. 283. Chapter 136 of the Act of 1893 of the Kentucky Legislature, being Sections 4702-4705 of the Kentucky Statutes, Carroll’s First Edition, 1903, was the law then in effect dealing with vacant and unappropriated land. The court construed this Act of 1893 as not authorizing the acquisition of the northern bed of the river by patent. In so holding the court said:
“ ‘While the state owns the land to the northern shore of the river, we do not think it has ever provided for the taking up of the river bed between the thread of the stream and the northern shore as vacant land. The proceeding in question was instituted under chapter 127, Ky.St.1903. Section 4702, which is the first section of that chapter, provides that each county in the state shall have the right to dispose of the unappropriated lands lying therein not otherwise provided for in the manner thereinafter directed. Section 4703 provides that an actual settler on any vacant or unappropriated land shall have a pre-emption right to any number of acres, not exceeding 100. It also provides that any person who wishes tó appropriate any vacant or unappropriated land may obtain an order of court authorizing him to enter and survey any number of acres, not more than 200. Section 4704 provides that the surveyor shall survey the entries in the order of time in which they are made, bounding the same by plainly marked trees, stones, or stakes, and noting where they bind on a water course or a marked line of another survey. In enacting these provisions, we cannot believe that the Legislature had in mind the taking up of the bed of the Ohio river between the thread of the stream and the northern shore. Such a survey could not be marked by stones or stakes or plainly marked trees. There could be no actual settlers on such land. While we do not doubt the power of the Legislature to provide for the issuing of patents for the bed of the Ohio river north of the thread of the stream, so-that the sand or minerals which may be on or under this land may be appropriated, we do not think it has yet done-so’.
“This opinion has not been overruled' or modified, but in 1926 the patent statutes interpreted by it were amended. However, the 1926 Amendment did not. disturb Sections 4703 and 4704 which were the basis of the court’s decision. Section 4703 providing that an actual settler on vacant and unappropriated land shall have a pre-emption right to-100 acres and that any person may enter and survey up to 200 acres of vacant land was re-enacted. Section 4704 providing the survey shall be marked ‘by plainly marked trees, stones or stakes, noting where it binds on a watercourse, or the marked line of another survey, giving names’, was also reenacted. The re-enactment by a legislature of a statute interpreted by the highest court of the State constitutes an adoption of the statute as construed. Chatterson v. City of Louisville, 145 Ky. 485, 140 S.W. 647; Rose v. Turner, 301 Ky. 272, 191 S.W.2d 397; Button v. Hikes, 296 Ky. 163, 176 S.W.2d 112, 150 A.L.R. 779.
“The Patentees advance the further argument that Section I, Sec. 4702, of the 1926 Amendment repudiates the Ware case by declaring for the first time that the bed of'the river north of the thread of the stream was ‘vacant and unappropriated property’, and that because of this declaration this property became subject to patent. * * * In Willis v. Boyd, 224 Ky. 732, 7 S.W.2d 216 (1928), a case involving a sand and gravel lease of the north bed of the Ohio River, the 1926 Amendment was considered, and the court stated :
“ ‘Assuming the act to be valid, it will be observed that Section 4702 does not give the counties unlimited disposition of vacant lands. But such right is to be exercised “in a manner hereinafter directed,” and while the mainland may be patented and sold in “the manner provided,” therefor and made applicable thereto, the power of the disposition of the river bed was restricted to the letting or leasing for county purposes upon such terms and conditions as to it may appear beneficial to said county.’
“Also see Board of Councilmen of City of Frankfort v. Pattie, 227 Ky. 343, 12 S.W.2d 1108.
“The Patentees also contend that every grant or patent of land is presumed to be valid and to have issued regularly and is prima facie evidence of title. For their authority they rely on Wallace v. Maxwell, 24 Ky. 447, and Popular Mountain Coal Co. v. Dick, 7 Ky. Op. 420. But a study of these cases discloses that the presumption that exists is only that the officers charged with issuing a patent properly perform their duties. As stated in Wallace v. Maxwell (supra), ‘It is admitted that the legal presumption is, that the surveyor, register, Governor and Secretary of State, have done their duty, in regard to the several Acts necessary to be performed by them, in granting lands; and therefore surveys and patents should always be received as prima facie evidence of correctness, but further we cannot go.’ The patents disclose on their face that they cover part of the bed of the Ohio River, and it follows that the physical procedural steps required by the Statutes could not have been taken. The State cannot be bound by the unauthorized acts of its officers in issuing patents to land in disregard of the law declared in Ware v. Hager, supra. ‘The Commonwealth is never bound by the act of any of its officers beyond the scope of their authority’. Allin v. County Board of Education, 148 Ky. 746, 147 S.W. 920, 922; United States Fidelity & Guaranty Co. v. Commonwealth, 104 S.W. 1029, 31 Ky.Law Rep. 1179; Leslie County v. Keith, 227 Ky. 663, 13 S.W.2d 1012; Juett v. Town of Williamstown, 248 Ky. 235, 58 S.W.2d 411.
“On the basis of the holding in Ware v. Hager which has not been overruled or modified and which has been given legislative sanction by the re-enactment of the sections of the law upon which the decision rests, and for the other reasons given herein, the patents involved in this action are invalid.”

The Legislature could not have contemplated the patenting of the river bed for the river bed had no value except for the extraction of minerals or sand and gravel.

The development of the County Leasing Statute supports the Federal Court’s opinion and the rule of Ware v. Hager. The statute originated in 1926 (Chapter 184, Acts of 1926) and was much more detailed than the present version (KRS 56.220) which is the product of the general statutory revision of 1942. The first section of the 1926 Act declared that “[e]ach county * * * shall have the right to dispose of the unappropriated lands lying therein * * *. And all that portion of the bed of the Ohio River, lying north of the thread of the stream, except such portions as may be accretions to islands privately owned, is hereby declared to be vacant and unappropriated property; and same may be held, leased and used for county purposes, as herein provided.” After detailing the manner of patenting the vacant and unappropriated mainland within the counties, Section 2 of the Act authorized the “use, let or lease (of) said river bed for county purposes, upon such terms and conditions as to it (the county courts) may appear to be beneficial to said county” and then went on to validate “any contract of leasing that has been made, or that may hereafter be made” for sand and gravel rights, and validated the right and title of the lessee to the sand and gravel extracted.

In condensing the 1926 Act in the 1942 Revision, the probable explanation of the reference to the sand and gravel leases was removed from the statute when the words validating prior such leases were omitted, and, in addition, the aforequoted first sentence in the 1926 Act giving the counties “the right to dispose of the unappropriated lands lying therein” were omitted. The 1942 Revision also condensed the 1926 rather lengthy phraseology relative to the river bed into the brief reference to it in KRS 56.220 heretofore quoted in full. This background is pertinent to our discussion of the rights of the counties in the latter part of this opinion.

We cannot escape the conclusion that the 1926 General Assembly meant to fill the gap in our statutory law which was made apparent by Ware v. Hager, supra, by giving the counties the right to dispose of the unappropriated lands lying therein and declaring the Ohio River bed north of the thread of the stream to be vacant and “unappropriated land.” In thus following the theory of Ware v. Hager, supra, the Legislature conceded the nonpatentability of the Ohio River bed north of the thread of the stream, and provided for its disposition by empowering the counties to use or lease it.

II. The Commission

The Federal District Court and the Henderson Circuit Court reached opposite conclusions about the scope of the statutory authority of the Commission, the Federal Court concluding that the Commission alone had the authority to dispose of the land in the river bed. The Henderson Circuit Court subsequently concluded that the State Property & Building Commission Act was not intended to cover “vacant and unappropriated” lands which historically were disposed of by the county courts of the counties in which the lands lay. Unless the view of the Henderson Circuit Court is adopted, we must conclude that KRS 56.-220 (the statute authorizing the counties to use or lease the lands north of the thread of the stream of the Ohio River) has been repealed by implication and so have the general statutes governing the patenting of “vacant and unappropriated” land. It is axiomatic that repeal by implication is not favored.

The position of those claiming under the leases granted by the Commission is based upon the premise that the river bed north of the thread of the stream is owned by the State, has no public use to which it can be devoted by the State, and that, consequently, the Commission has the legal power to dispose of it.

Conceding that sovereign title to the land is in the State, it does not necessarily follow that the Commission is the agency of the State which has the power to dispose of it. We concur in the succinct opinion of the trial court which said if it is held that the Commission has the power to dispose of “vacant and unappropriated” land in the counties and in the Ohio River bed:

“ * * * then the Legislature has by inference repealed Section 56.190 of K.R.S. and this Court does not believe that the Legislature intended any such thing by the enactment of K.R.S. 56.440 to K.R.S. 56.550. If it had intended to repeal such an historic section of the law as this, it would have done so expressly.
“As pointed out by the County, the State Property and Buildings Commission would have jurisdiction over the vacant and unappropriated uplands, and vacant and unappropriated lands in all other river beds in Kentucky, and therefore would have the right to lease the bed of the Ohio River for the removal of sand and gravel and there is no claim by anyone that it has this power. It can readily be seen from the history of the State Property and Buildings Commission Act and from the opinion of the Court of Appeals that this law was enacted in order to have one central agency of the State Government to have control of all buildings necessary for State use and to insure proper and systematic planning of the building program. Governor Clements, in his address to the General Assembly, in urging re-enactment of the State Property and Buildings Commission Act to cure any possible defects in the title, said:
“ ‘Kentucky has suffered by lack of continuity of planning in the construction of new buildings and it was and is the purpose of the Buildings Commission Bill to provide an agency which would supply the continuity of planning.’
“Certainly nothing is contained in this language to give even a hint that by the passage of this Act it was intended to repeal K.R.S. 56.220, and the Court of Appeals said, in construing the Building Commission Act, in Preston v. Clements, 313 Ky. 479, 232 S.W.2d 85: ‘Actually, there are involved only ministerial responsibilities, first, to ascertain the building and housing needs of the State and then make application of the Legislative mandate.’ In considering the Legislative history of the two Acts, it can be seen that they are not in conflict and that K.R.S. 56.220 was not repealed by the enactment of the Buildings Commission Act, and this question must be answered in the negative.”

III. The Counties

It is conceded that the counties’ right to lease the river bed lands must stand or fall on KRS 56.220, heretofore quoted in full. The Federal District Court found although the first sentence in the County Leasing Statute (KRS 56.220) gave “a seemingly unrestricted grant of power to lease * * yet the second sentence gave rise to a serious doubt as to the general scope and meaning of the statute, and resolved its doubt by concluding that the county was limited to sand and gravel leases if it had any statutory authority at all. On the other hand, the Henderson Circuit Court decided that the reference to sand and gravel did not limit the plenary power to lease which the Federal Court conceded was granted by the first sentence. The enactment of the statute (KRS 56.220, now) in 1926 undoubtedly had its origin in the desire to clear up any doubts about the power of the counties to exercise dominion over the “vacant and unappropriated” land in the Ohio River bed north of the thread of the stream, doubts which naturally followed this Court’s ruling in Ware v. Hager, supra, declaring that land unpatentable under the general patent statute because the inundated land could not be suitably marked. The motivating cause in 1926 of the enactment of what is now KRS 56.220 was the uncertainty as to whether any unit of government had the legal power to execute leases or grant rights for the extraction of sand and gravel in that portion of the Ohio River bed, and hence the uncertainty as to whether any such leases theretofore executed were valid. The intention of the Legislature in its 1926 enactment (now KRS 56.220) is indicated by the title of the act itself (Ch. 184, Acts of 1926) which declared, “An Act to amend an Act entitled, ‘An act concerning vacant and unappropriated lands,’ approved February 2, 1893 * * It is obvious that by declaring the river bed land north of the thread of the stream to be “vacant and unappropriated” land and giving the counties control thereof and permitting them to keep the proceeds from the disposal thereof as allowed in the disposition of upland “vacant and unappropriated” land, the General Assembly was filling the gap in the general patenting statutes caused by this Court’s ruling in Ware v. Hager, supra, and was completing the legal machinery for the disposition of the north portion of the Ohio River bed. In such circumstances, plenary power to use or dispose of that portion of the river bed undoubtedly was intended by the Legislature, the same degree of power of disposition as was permitted in the case of upland “vacant and unappropriated” land, except that the “vacant and unappropriated” land in the river bed could not be sold in fee simple because of its nature (Ware v. Hager), but could be used or leased “for county purposes, upon such terms and conditions as to it (the county court) seem beneficial to the county.” The public purpose or policy behind all the statutes governing the disposition of “vacant and unappropriated” land is to encourage its development, War Fork Land Company v. Llewellyn (1923), 199 Ky. 607, 251 S.W. 663, and that being so, a narrow. construction of KRS 56.220 which limits it to the granting of leases for the extraction of sand and gravel alone would militate against that policy. Our sketch of the history of the statute in Part I of this opinion (The Patentees) supports our conclusion that the General Assembly intended to give the counties the power over “all that portion of the Ohio River, lying north of the thread of the stream, except accretions to islands privately owned * * * [to] use or lease the river bed for county purposes * * as fully as it might otherwise deal with “vacant and unappropriated” land. The right to execute depletion leases is clearly implied in the circumstances. What else would be the purpose of leasing the river bed ?

The judgment is affirmed.

MONTGOMERY and WILLIAMS, JJ., dissenting.

PALMORE, J., not sitting.


author: JOHN B. RODES, Special Commissioner.

text:
    THE TRAVELERS, Appellant, v. HUMMING BIRD COAL COMPANY, Appellee.
    Court of Appeals of Kentucky.
    April 26, 1963.
    Rehearing Denied Nov. 1, 1963.

      Maxwell P. Barret, Hazard, for appellant.
    A. E. Cornett, Hyden, Eugene Clark, Manchester, for appellee.
   JOHN B. RODES, Special Commissioner.

This is a suit by Humming Bird Coal Company (owned by Charles Lewis and Ed Stansbury) engaged in the strip and auger mining of coal near Hyden, Kentucky, against The Travelers to recover under two policies of insurance, the first issued February 6, 1956 and covering the period from February 24, 1956 to February 24, 1957, and a renewal issued July 8, 1957 and covering the period from September 10, 1957 to September 10, 1958. Both policies describe the operation of the insured as that of surface mining and contain the same conditions and provisions. In consideration of a premium and in reliance on the statements, conditions and exclusions of the policy, the defendant Travelers agrees in both contracts under coverage B to:

“Pay to the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of hazards hereinafter defined.”

Under Division I the hazard referred to is “the ownership, maintenance or use of premises and all operations.” The amount recoverable in both policies to lessee for any single accident is $5,000.00.

The facts are simple enough. In October 1956 the Company began surface or strip mining on a mountain side near Hyden, Kentucky in Leslie County. The process was to bulldoze the surface until a bench or shelf was established 30 or 40 feet wide and about 600 feet above the highway at the base of the steep mountain slope. A large amount of earth and debris was removed and pushed over upon the slope of the mountain, with a depth of about 10 feet and with a width of 30 or 40 feet. With an auger the plaintiff Coal Company began to mine coal and continued until December 1956 and all machinery was moved away by March 1957. Prior to December 1956 the earth mass on the slope began to move or slip, not all at once but gradually and slowly until it reached the border line of the Melton farm below, overrunning Melton’s water supply and damaging him seriously. The exact time this earth mass passed over the boundary of the Melton land is not known or at least not shown and the process may have taken weeks and even months, but it had its beginning before December 1956 and before the actual mining ceased on the hill. When Melton asserted a claim against the plaintiff Company, oral notice thereof was given to a Mr. Young, owner of an insurance agency in Manchester, who had originally issued the policies, and Mr. Young advised it would be taken care of and investigated.

On September 26, 1958 Melton filed suit against the plaintiff and its representative immediately notified Young, who in turn promptly notified the adjuster of the Travelers at Corbin, Kentucky. The latter investigated the loss and denied liability upon the grounds set out in the defendant’s answer in this case and hereinafter referred to. As the Travelers refused to defend the case, the plaintiff upon the day the case was set for trial, settled it by paying to Melton the sum of $5,500.00. The settlement price was reasonable considering the nature and extent of the injury. Thereupon this suit was filed on September 26, 1958 and plaintiff was given judgment for $5,000.00 against defendant Travelers.

Several grounds of reversal are relied on. The first is the lower court failed to comply with Civil Rule 52.01 because the findings of fact were not sufficiently specific. In Clay’s Kentucky Civil Rules, page 464, it is stated that the failure to make proper and sufficient findings is not jurisdictional and the Court of Appeals may consider the appeal in their absence. However they are sufficient “if they indicate the factual basis for the ultimate conclusions”. (Page 465) While we do not approve the form of the findings of fact in this case, they support the conclusions of law and present no ground of reversible error.

The leading defense of defendant Travelers is that the injury to the Melton property was not an accident within the meaning of the policy. Here lies a misconception. The accident mentioned in the policy need not be a blow but may be a process. It is not required that the injury be the result of some contact with the bulldozer or the shelf or a rock hurled over from the shelf. It is not required to be sudden like an Alpine avalanche that upon a shout roars down with an overwhelming rapidity. A glacier moves slowly but inevitably. Where the accident is a process, how long is then not significant whether it takes three hours, three weeks or months.

It was unforeseen that the earth removed from the shelf would not secure a firm foothold. Heavy rock and earth do not flow like water. To remove this earth and rock from the shelf was a natural operation of strip or surface mining. It is true if the earth continued to move, it would inevitably reach the Melton farm. But a foothold might be regained, particularly at the beginning of the process. The fact that the possibility of injury is foreseeable is not pertinent for that possibility is always present during the operation of heavy machinery and is indeed the reason for the issuance of the policy.

This policy should not be interpreted so narrowly or rigidly as to destroy a recovery for a loss clearly traceable to the operation of plaintiff’s Coal Company’s business. Such contracts must be construed liberally. In the case of American Accident Co. v. Reigart, 94 Ky. 547, 23 S.W. 191, 21 L.R.A. 651, Judge Pryor quoted from May on Insurance with approval that:

“No rule, in the interpretation of a policy, is more fully established, or more imperative and controlling, than that which declares, in all cases, it must be liberally construed in favor of the insured, so as not to defeat without a plain necessity his claim to indemnity, which, in making the insurance, it was his object to secure.”

Cases might be multiplied setting out the same rule. See Ky. Digest, Insurance, 146(3). In Donohue v. Washington Nat. Ins. Co., 259 Ky. 611, 82 S.W.2d 780, are found many definitions of what constitutes an accident, but the many factors mentioned must be related to the facts of the particular case. As related to the present case we deduce the principle that any happening resulting in injury, arising out of the operation of the insured’s business, which is undesigned and unintended and not foreseeable as the natural and probable consequence of the initiating act, may be regarded as an accident within the meaning of the policy.

As the earth movements in this case began during the period covered by the first policy and continued probably for several months, the finding of the lower court that the accident in question occurred while both policies were in effect could not constitute prejudicial error since recovery was limited to the face amount of $5,000.00 fixed in both policies.

The Travelers cannot rely upon Divisions I and IV providing that the accident must be the result of premises operations and that if it occurred after the completion or abandonment of the work, the insurer was not liable. It is true the exact moment the mass of earth uncovered by the bulldozer passed over the Melton boundary line is unknown or at least not shown, but in the fall of 1956 while the work was in progress on the premises the earth mass began to move. Since we have determined the accident may be a process and is not confined to an immediate act or blow, this defense is not well taken for undoubtedly and proximately the mass of earth and debris moved slowly but inevitably towards the Melton boundary line until it was crossed and the Melton farm overwhelmed. The lower court so found and we can not say in this respect its finding was clearly erroneous.

It is further claimed the Travelers was deceived and misled because the address of the insured was mentioned as being in Clay County instead of Leslie County and therefore the operation was not covered by the policy. In our opinion there is no merit in this claim and we find the agent or agents of the Travelers were not deceived or misled but knew of the location of the Coal Company’s operations in Leslie County. Besides under Division VI, — Definition of Hazards, it is only provided the accident must occur during the policy period and within the United States of America.

There is greater substance in the contention of the Travelers that no written notice was given as required by Condition 9 of the policy. It is true that there was no written notice given of the accident and this is a valid provision and its violation will unless waived prevent a recovery upon the policy. The Chancellor below found the Travelers had waived Condition 9 of the policies relative to giving written notice of the accident and his conclusion is supported by substantial evidence. As soon as practical plaintiff’s representative gave notice to agent Young of the claim of Melton for damages and Young replied that it would be taken care of and investigated. In our judgment this constitutes a waiver on the part of the insurer of the above requirement of the policy. Where an oral notice has been given to an agent of the company who has replied that the claim would be taken care of, it amounts to a waiver of this provision of the policy. It was said in Continental Casualty Co. v. Linn, 226 Ky. 328, 10 S.W.2d 1079-1082, that such statements and assurances on the part of an agent of the company “are held to have been an acceptance by him of a verbal notice as sufficient compliance with the terms of the contract.” To the same effect are Provident Life & Accident Ins. Co. of Chattanooga, Tenn. v. Bailey, 263 Ky. 163, 92 S.W.2d 84, and Federal Surety Company v. Guerrant, 238 Ky. 562, 38 S.W.2d 425.

As we find no error in the findings of the lower court either of fact or of law we must approve the same and recommend that the judgment of the lower court be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


text:
    David L. TRODGLEN, Petitioner, v. JUDGE, DAVIESS CIRCUIT COURT, Respondent.
    Court of Appeals of Kentucky.
    Sept. 27, 1963.
    David L. Trodglen, pro se.
   CULLEN, Commissioner.

David L. Trodglen, a prisoner in the state penitentiary under sentence from the Daviess Circuit Court, has filed in this Court a petition, naming as respondent “Judge, Daviess Circuit Court,” seeking an order of mandamus to compel the respondent to furnish the petitioner, as a pauper, a record of the trial at which he was convicted, in order that he may prosecute an appeal he has taken from the judgment of conviction. The petition alleges that the respondent denied his application, accompanied by a pauper’s affidavit, to be furnished the record.

An original proceeding in this Court seeking an order to control the action of a trial court is in the nature of a personal action against the judge of the trial court, and the judge against whom the order is sought must be sued by name, and properly served with notice of the petition. Commonwealth Dept. of Highways v. Circuit Court, Ky., 365 S.W.2d 106; James v. Judge of Jefferson Circuit Court, 265 Ky. 595, 97 S.W.2d 544. There is particular reason for this rule where, as in the case here, the trial court has more than one judge.

The petition here fails for lack of a proper respondent.

The petition is dismissed.


author: ANDERSON, Judge.

text:
    STATE of Missouri, (Plaintiff) Respondent, v. James NORMAN, (Defendant) Appellant.
    No. 31444.
    St. Louis Court of Appeals. Missouri.
    Oct. 15, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 28, 1963.
    William B. Spaun, Hannibal, for appellant.
    John E. Mills, Pros. Atty., Ralls County, New London, for respondent.
   ANDERSON, Judge.

This is an appeal from an order of the Circuit Court of Ralls County overruling defendant’s motion to retax costs in a misdemeanor case.

The action originated July 20, 1961, in the Magistrate Court of Ralls County, by the filing of an information therein by the prosecuting attorney of said county. The information was in two counts. Count One alleged that “upon the 14th day of July, 1961, at the Township of Salt River in said County of Ralls, and the State of Missouri, the defendant did then and there wilfully, unlawfully drive and operate a certain Plymouth motor vehicle in a Careless and Imprudent manner so as to obstruct and hinder traffic on State Highway #154.” Count Two alleged that defendant “did then and there wilfully and unlawfully, knowingly obstruct, resist or oppose a police officer in the service or in the attempt to serve a summons, or in the discharge of said officer’s duty in a case other than a felony * *

To the charges in the above information defendant, on July 20, 1961, entered a plea of not guilty. Thereafter on August 16, 1961, defendant filed an application for a change of venue, which was sustained, and the venue changed to the circuit court of Ralls County. On October 20, 1961, the cause came on for trial before the court and jury. After the jury was selected and sworn, defendant withdrew his former plea of not guilty, and entered a plea of nolo contendere. Upon this plea defendant was sentenced to pay a fine of $50.00 on each count of the information, and the costs of the action. Thereafter, and on December 1, 1961, the clerk of said court issued an amended bill for costs, which included the sum of $132.00 as jury fees, and mileage of jurors in the sum of $41.30. On December 9, 1961, defendant filed a motion to retax the costs, the prayer of which was to vacate and set aside the entries taxing the costs of the jury and the mileage of the jurors allowed in said tax bill. This motion was overruled and defendant appealed to the Supreme Court. The appeal was from the order overruling defendant’s motion to retax the costs. The Supreme Court transferred the case to this court on the ground that the appellate jurisdiction was in this court.

In this court respondent contends there is no final judgment in this case from which an appeal will lie, for the reason that the judgment was based on a plea of nolo contendere, which plea is not recognized under our code of criminal procedure. The case before us is not an appeal from the judgment of conviction, but from the order overruling defendant’s motion to retax the costs. Such an appeal is authorized under § 512.020 RSMo 1959, V.A.M.S. as a special order after final judgment. See Herson v. Chicago & Alton Railroad Company, 18 Mo.App. 439. We will not look behind the judgment. It has been held, however, that a plea of nolo contendere amounts to an implied confession of guilt and equivalent to a plea of guilty. Neibling et al. v. Terry, 352 Mo. 396, 177 S.W.2d 502, 152 A.L.R. 249. No doubt, it was so considered by ihe trial court and the parties to this action.

Appellant contends that the court erred in overruling the motion to retax the costs for the reason that there is no statutory authority for taxing as costs, jurors’ fees, and mileage in criminal cases.

The subject of costs in criminal cases is covered by Chapter 550 RSMo 1959, V.A.M.S. By § 550.280 it is provided :

“All fees due witnesses before the grand jury, and all fees due jurors in any criminal case, and all fees accruing in any inquest case where the verdict of the jury is that the deceased came to death by other than unavoidable accident or natural causes, shall be deemed criminal costs, and shall be paid in like manner and shall be subject to all the offsets herein provided for.”

§ 550.280 was § 3 of an Act passed by the general assembly in 1899, (Laws of Missouri, 1899, p. 219) entitled, “AN ACT in relation to the payment of criminal costs and for other purposes relating thereto, with emergency clause.” Except for revisions, not here material, §§ 550.260; 550.-270; 550.280; 550.290; 550.300 are a part of said act, and have provisions relating to the payment of criminal costs. Because §§ 550.260 and 550.270 relate to the payment by the state and county of criminal cost bills, appellant argues that § 550.280 RSMo 1959, V.A.M.S. was enacted merely for the purpose of enabling counties to collect the costs therein mentioned from the state, and should not be construed as authorizing the taxing of them as costs in any particular criminal case where a defendant is convicted. We cannot agree with this construction. We believe it was the intent of the legislature to make jury costs taxable, as costs, in any case in which the jury served. The statute refers to “all fees due jurors in any criminal case * * * shall he deemed criminal costs, * * If the legislature intended to limit same to those cases where the state was liable for costs it would have so provided. Jurors’ fees are fixed by § 494.100 at six dollars a day plus seven cents a mile necessarily traveled from his place of residence to the courthouse and returning to his home.

It is further argued that since the general assembly has provided by § 494.160 RSMo 1959, V.A.M.S. for the taxing as costs, against the losing party, in civil cases, jury fees in the sum of $12.00, and in Magistrate Courts by § 499.140 RSMo 1959, V.A.M.S. the sum of one dollar for each juror who sits in a case, its failure to specifically provide for the taxing of the costs of a jury in a criminal case evidences an intention on its part that such costs should not be assessed. This perhaps would be a valid argument were it not for § 550.280 RSMo 1959, V.A.M.S., which, in our opinion, authorizes the taxing of the costs of the jury in criminal cases.

§ 550.010 RSMo 1959, V.A.M.S., provides :

“Whenever any person shall be convicted of any crime or misdemeanor he shall be adjudged to pay the costs, and no costs incurred on his part, except fees for board, shall be paid by the state or county.”

It does not appear from the record that defendant comes within the exception provided for by § 550.030 RSMo 1959, V.A. M.S. In our opinion, the order and judgment of the trial court should be affirmed. It is so ordered.

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


author: PER CURIAM.

text:
    HICKS BUILDING AND EQUIPMENT COMPANY, Inc., et al., Petitioners, v. Alton P. BUICE, Respondent.
    No. A-9801.
    Supreme Court of Texas.
    Oct. 2, 1963.
    Rehearing Denied Oct. 30, 1963.
    Louis S. Muldrow, Waco, of Ñaman, Howell, Smith & Chase, for petitioners.
    Edwards & Faulkner, Waco, for respondent.
   PER CURIAM.

The opinion of the Court of Civil Appeals is reported in 369 S.W.2d 624.

Respondent, Buice, sued petitioner, Hicks, and the driver of Hicks’ pickup, Fritzie, for damages resulting from an automobile collision at a street intersection. The jury exonerated both parties to the collision of negligent acts and conduct proximately causing the collision, and found that the collision was the result of an unavoidable accident. A trial court judgment that the plaintiff take nothing was entered on the verdict.

In answer to special issue No. 3 the jury found that the defendant, Fritzie, did not fail to stop at a stop sign before entering the intersection. The Court of Civil Appeals set that finding aside as being against the great weight and preponderance of the evidence.

In connection with the damage issue the jury was expressly instructed that they could award only those damages “directly and proximately caused by the negligence, if any, of the defendants.” The jury answered the issue “None.” The Court of Civil Appeals set that answer aside as being against the great weight and preponderance of the evidence because, in the words of the court, “The record reflects that plaintiff incurred several hundred dollars in medical bills and lost time as a result of the accident.”

On the foregoing holdings the Court of Civil Appeals reversed the judgment of the trial court and remanded the case to the trial court for retrial.

The Court of Civil Appeals did not set aside the jury finding that the collision was the result of an unavoidable accident. Neither did the court hold that the evidence establishes as a matter of law that Fritzie failed to stop at the stop sign, and that as a matter of law such failure was negligence and a proximate cause of the collision. Nor did the court hold that the plaintiff’s damages were proximately caused by negligent conduct of Fritzie; or even that the jury finding that none of the plaintiff's damages were proximately caused by the negligence of Fritsie is against the great weight and preponderance of the evidence.

The opinion of the Court of Civil Appeals thus on its face raises a serious question of whether the mere setting aside of the jury’s answer to special issue No. 3 and the setting aside of the answer to the damage issue for an unsound reason, while at the same time permitting the finding of unavoidable accident to stand, authorized, in law, a reversal of the trial court’s judgment. However, the question is not raised in this court and no opinion is expressed with reference to it. It is pointed out only for the purpose of emphasizing that our refusal of writ of error is not to be considered as approving the action of the Court of Civil Appeals.

Petitioner presents only one point of error in this court.. It has no relationship to the matters discussed above and does not present any basis for reversing the judgment of the Court of Civil Appeals. Accordingly, the application is “Refused. No Reversible Error.” Rule 483.


author: McDonald, judge.

text:
    Judy Mae CONNELL, Appellant, v. The STATE of Texas, Appellee.
    No. 35993.
    Court of Criminal Appeals of Texas.
    Oct. 9, 1963.
    John A. Erhard, Robert C. Cox, Alfred L. Ruebel, Dallas, for appellant.
    Henry Wade, Dist. Atty., Harryette Bercu and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted of violating Section 8-28 of the Code of Civil and Criminal Ordinances of the City of Dallas, which makes it unlawful for a member of one sex to massage the person of the other sex. Punishment was assessed at a fine of $105.00.

Officer W. E. Perry, of the Special Service Bureau of the Dallas Police Department was the sole witness called by the State. He testified in substance that he went to the Slimette Massage Parlor in the city of Dallas, where the appellant, a female, agreed to give him an alcohol massage for $10.00. He was told to disrobe, which he did, and she began to give him a massage. The officer further testified that to his knowledge the appellant was not a chiropractor ; a registered physical therapist; or a registered nurse.

Appellant presents four grounds, which she contends, require a reversal of this case. The first three attack the constitutionality of the ordinance (1) as a denial of equal rights under Art. 1, Sec. 3, of our State Constitution, Vernon’s Ann.St.; (2) as a denial of due process of law under Art. 1, Sec. 19 of our State Constitution; and (3) as a denial of equal protection and due process of law under the fourteenth amendment of the Federal Constitution.

The State, in answer to these contentions, points to the opinions in Patterson v. City of Dallas, 1962, Tex.Civ.App., error refused, n. r. e., 355 S.W.2d 838, cert. denied, 372 U.S. 251, 83 S.Ct. 873, 9 L.Ed.2d 732, and City of Houston v. Shober, 1962, Tex.Civ.App., error refused, n. r. e., 362 S.W.2d 886. These two cases, one involving the same ordinance as here before us, reviewed the same contentions as presented here, and held the ordinances constitutional. While not bound by their holdings, we find them of persuasive force. In support of their conclusions, and the authorities they cite, we need add only some general citations: 12 Am.Jur., Constitutional Law, Sections 574 and 575; 16A C.J.S. Constitutional Law § 569(5) ; Interpretive Commentary, Art. 1, Sec. 3, Vernon’s Annotated Texas Constitution, Vol. 1, p. 218; Interpretive Commentary, Art. 1, Sec. 19, Vernon s Annotated Texas Constitution, Vol. 1, p. 446; and see Anno. 17 A.L.R.2d 1183.

Appellant’s next contention is that the complaint did not allege that the defendant was not a duly licensed physician, nor that she was not massaging the face as practiced by duly licensed beauty parlors or barber shops, both of these being specifically excepted from the ordinance by the definition of massage found in Section 8-12 of the Code of Civil and Criminal Ordinances of the City of Dallas. No complaint, in any form, was made of this point in the court below. It cannot be made now. Hill v. State, 169 Tex.Cr.R. 104, 332 S.W.2d 579; 5 Tex.Jur.2d, Appeal and Error—Criminal, Sec. 29.

Finding the evidence sufficient, and no reversible error appearing, the judgment is affirmed.


author: MORRISON, Judge.

text:
    Myrtle Lee TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 35907.
    Court of Criminal Appeals of Texas.
    Oct. 9, 1963.

      No attorney for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is shoplifting, as denounced by Article 1436e, Vernon’s Ann.P.C.; the punishment, 90 days in jail.

No statement of facts accompanies the record.

The sole question presented is the alleged failure of the court to instruct the jury that the State had “the burden of proof as to the defendant’s intent to commit the crime of theft.” Elsewhere in the charge, the court properly instructed the jury that the burden of proof was upon the State and further instructed them that they must find beyond a reasonable doubt that appellant removed certain property (therein described) from where it was displayed in the store “with the intent to fraudulently take said property and deprive” the owner of the value thereof.

This we have concluded amply charged the jury on the question of appellant’s intent.

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