author: STONE, Judge.

text:
    J. E. LANGE, Plaintiff-Respondent, v. Tom F. BAKER, Defendant-Appellant.
    No. 8239.
    Springfield Court of Appeals. Missouri.
    March 20, 1964.

      Briney & Welborn,' James E. Spain, Bloomfield, for defendant-appellant.
    No appearance on appeal, for plaintiff-respondent.
   STONE, Judge.

In this court-tried action at law, plaintiff J. E. Lange, an osteopathic physician, sought and obtained judgment in the principal sum of $1,710.50 against defendant Tom F. Baker for professional services alleged to have been rendered during 1956, at defendant’s special instance and request, to Mexican laborers (referred to as braceros) on Trailback Plantation near Essex in Stoddard County, Missouri. Defendant appeals.

At the trial, defendant described himself as “a farmer and a businessman and officer of several corporations.” Under his guiding hand, Trailback Plantation engaged extensively in “farming and cotton ginning.” In 1956 (as in previous years) Trailback contracted for braceros to work during the cotton picking season. See 7 U.S.C.A. §§ 1461-1468. The United States Department of Labor required that employers “furnish medical services to braceros” and carry insurance coverage for that purpose.

During the 1954 and 1955 cotton picking seasons, the medical services needed by the braceros then working for Trailback .had been furnished by plaintiff and his charges had been paid by Trailback’s then insurer. In August 1956 plaintiff called at the Trailback office and, as defendant stated, “wanted us to let him take care of our braceros again for that year.” Some oral agreement that plaintiff should do so undoubtedly was reached at that time. Admittedly, he rendered such medical care as was required by the 152 braceros who worked for Trailback during the 1956 cotton picking season, a period of “a little over two months.” But Trailback had changed insurers, and plaintiff’s charges for professional services during the 1956 season were not paid by the then, insurer. When defendant also refused to pay those charges, this suit followed. •

Upon trial, defendant raised issues (1) as to whether plaintiff’s oral agreement was with defendant individually or with Trailback Plantation, Inc., a Missouri corporation, (2) as to whether it had been agreed that plaintiff was to look only to Trailback’s insurer for compensation, (3) as to the reasonable value of plaintiff’s services, and (4) as to whether the failure of the insurer to pay plaintiff had been due to his tardy or inadequate completion and presentation of claim forms. On this appeal, only the first of the above-stated issues is preserved and presented, for the sole “point relied on” here is that the trial court erred in entering judgment against defendant Baker, an individual, because' “the evidence shows as a matter of law that [defendant] was at all times acting on behalf of Trailback Plantation, Inc. * * * and the evidence * * * was insufficient to justify the lifting of the corporate veil-so as to hold an individual [stockholder] liable.” (All emphasis herein is ours.) Accordingly, our further factual review properly may be limited to such evidence as is relevant to determination of that point. There was sharply-conflicting evidence upon each of the other three issues; and, with no specific findings of fact requested or made, those issues (as well as the first) were ruled against defendant by the general finding and judgment. Rule 73.01 (b); Section 510.310(2); Davis v. Broughton, Mo.App., 369 S.W.2d 857, 862(4); Rauth v. Dennison, Mo.App., 357 S.W.2d 201, 206(4). (All references to rules are to the Rules of Civil Procedure, V.A.M.R., and all statutory references are to RSMo 1959, V.A.M.S.)

Plaintiff and defendant were the only witnesses. Defendant’s evidence was to the effect that Trailback Plantation, Inc., contracted for the braceros, owned the land on which they worked, and “took out medical insurance” on them, and that, in making an oral agreement with plaintiff in August 1956, defendant was acting “as an officer of the corporation.” Counsel for defendant also point out that the single word “Trail-hack” was written at the top of each page of plaintiff’s Exhibit B, identified as “a record of the services” rendered by plaintiff to the braceros who worked on Trailback Plantation during 1956.

References in defendant’s brief to this and other exhibits move us to comment parenthetically that none of the twenty-two exhibits were included in the transcript or separately filed in this court. Rule 82.15. Although an appellate court has the discretionary right to direct the clerk of the trial court to send up original documents or exhibits [Rule 83.03; Donati v. Gualdoni, 358 Mo. 667, 671, 216 S.W.2d 519, 520(2) ; Lieffring v. Birt, 356 Mo. 1092, 1093, 204 S.W.2d 935, 936(1)], the court is under no obligation to do so. Brand v. Brand, Mo., 245 S.W.2d 94, 96(7); Hendershot v. Minich, Mo., 297 S.W.2d 403, 409 (11). Unless the questions on appeal are presented by a statement of the case approved by the trial court [Rule 82.13] or the parties agree in writing upon an abbreviated or partial transcript [Rule 82.12 (b) ; Sec. 512.110(2)], “[i]t is appellant’s responsibility to file a full transcript as required by the statute [Sec. 512.110] and the rules [Rules 82.12 and 82.14], Failure to do so may result in dismissal of the appeal.” Whealen v. St. Louis Soft Ball Ass’n., 356 Mo. 622, 625, 202 S.W.2d 891, 893. See Brand, supra, 245 S.W.2d loc. cit. 96(4); Bales v. Jefferson City Lines, Inc., 239 Mo.App. 264, 267, 192 S.W.2d 27, 28(2); State ex rel. Baumann v. Quinn, Mo., 337 S.W.2d 84, 86(1). And where, as here, exhibits are omitted from the transcript and are not filed with the appellate court [Rule 82.15], the intendment and content of such exhibits will be taken as favorable-to the trial court’s ruling and as unfavorable to appellant.

However, we need not and do not rest' resolution of this appeal upon any presumption as to the intendment and content of the missing exhibits. Plaintiff’s evidence was to the effect that his agreement was with defendant Baker individually: “Q. * * * In 1956 and prior to September, did you enter into an agreement with Tom F. Baker, the defendant in this case? * * * A. To take care of his braceros ? Q. Yes. A. Yes, I did.” The agreement was that: Mr. Baker was to send his braceros down to our office, and * * * we were to give them adequate service. The understanding was that Mr. Baker had insurance and in case the insurance failed he would pay the bill.” When pressed on cross-examination for an affirmative answer to the question, “you did this work for the Trailback Plantation [Inc.] and not for Tom Baker as an individual, is that right,” plaintiff responded “I did it for Tom Baker”; and, to the inquiry whether “Mr. Baker told you he would pay this amount if the insurance company did not,” plaintiff replied “that is right, sir.”

With reference to the single word “Trail-back” at the top of each page of plaintiff’s Exhibit B, plaintiff said that it was “just a form of identification * * * that those braceros came from the Trailback Plantation.” But, although plaintiff realized that the braceros worked on Trailback Plantation, he insisted that he had no knowledge prior to trial on December 11, 1962, that this enterprise had been incorporated. Witness his testimony: “Q. In all of your dealings with Mr. Baker [defendant], did you ever hear of a Trailback Plantation, Incorporated? A. The only time I knew Trailback Plantation was incorporated was this afternoon. Q. Did Mr. Baker ever tell you or did anyone ever tell you that Mr. Baker was president of such a corporation? A. No, sir.”

Defendant’s testimony tended to support and confirm, rather than to weaken or deny, the last-quoted testimony. He “assumed” that he had not told plaintiff that he (defendant) was president of Trailback Plantation, Inc. He conceded that there was nothing in his office to indicate that Trail-back Plantation had been incorporated. And, although (so he said) he then had letterheads of “Trailback Plantation, Inc.,” he “didn’t think” that he ever had written plaintiff on one of those letterheads. Even though (as we have noted) the exhibits have not been made available to us, it is apparent from the identifying testimony that at least nine of the exhibits were originals or carbon copies of letters written by defendant with respect to the matter in litigation, and it is plain from the transcript not only that there had been no reference to Trailback Plantation, Inc., in any of those letters but also that none of them had borne even the typewritten signature of Trailback Plantation, Inc., or of Trailback Plantation, or of defendant Baker as a corporate officer. Rather, the practice seems to have been for defendant to have signed (or for his name to have been signed by an authorized employee) immediately above the typewritten name, “Tom F. Baker.” When asked bluntly whether he expected plaintiff “to think that he was dealing with a corporation when he was talking to you,” defendant hedged and equivocated: “Well, I assumed that everybody that has been a corporation for seventeen years — I assumed that everybody in the neighborhood knew that.” Incidentally, the record affirmatively shows that plaintiff had been practicing “in the neighborhood” only a .little longer then three years. In this connection, we observe also that the incorporation of Trailback Plantation was not mentioned in defendant’s answer; and, when plaintiff (so he testified) first heard of the corporation on the date of trial, i. e., on December 11, 1962, the five-year statute of limitations [Sec. 516.120] already had run with respect to any claim against Trail-back Plantation, Inc., for medical services rendered in the Fall of 1956.

“The corporate papers” were among the exhibits not made available to us; but, for the purposes of this opinion, we may assume that Trailback Plantation, Inc., was a Missouri corporation in good standing at all times herein material, and we may accept defendant’s testimony concerning the corporation, its directors and shareholders, and the number of shares owned by each. At all times from and after 1951 when defendant acquired the stock of the only other major shareholder, he (defendant) was president of the corporation and owned 1290 of the 1300 issued and outstanding shares of capital stock. In 1956, his wife owned five shares, his father owned three shares, and his mother (who had died prior to the time of trial) owned two shares. After 1951, defendant’s wife had been secretary-treasurer of the corporation and his father had been vice-president. No one other than defendant and the named relatives had been a member of the board of directors. Defendant and his wife were the only officers or directors to whom salaries had been paid, and the corporation had never declared or paid a dividend on its stock.

This and other evidence concerning the corporation was offered, apparently on the theory that it was relevant and material under the legal doctrine (which, so counsel thought, might be applicable) that the fiction of the corporate entity may be disregarded when that becomes appropriate and necessary in order to defeat fraud, illegality or injustice. Plaintiff’s counsel alluded to that doctrine in the course of trial, and defendant’s counsel here allude to it in their sole point, i. e., that the trial court erred because “the evidence shows as a matter of law that [defendant] was at all times acting on behalf of Trailback Plantation, Inc. * * * and the evidence * * was insufficient to justify the lifting of the corporate veil so as to hold an individual liable.” However, it is clear that correct disposition of this case does not require any determination as to applicability of that doctrine. Cf. Carter v. Matthey Laundry & Dry Cleaning Co., Mo., 330 S.W.2d 771, 777. This is so for two reasons.

In the first place, having in mind that it was for the trier of the facts to resolve any conflicts in the evidence “as to what occurred in and about the making of the contract” [Haskett v. Unsell, 181 Mo. App. 480, 485, 164 S.W. 651, 652], and showing proper respect for the plain admonition in Rule 73.01(d) [Sec. 510.310 (4)] that we should accord due deference to the superior opportunity of the trial court to judge of “the credibility and characteristics of the witnesses who testified before him” [Peine v. Sater, Mo., 289 S.W.2d 101, 102(1) ; Cull v. Pfeifer, Mo., 307 S.W.2d 424, 428(5) ; Spaeth v. Larkin, Mo., 325 S.W.2d 767, 771(3)], certainly we may not say as a matter of law, in the very teeth of plaintiff’s testimony hereinbefore detailed, that defendant “was at all times acting on behalf of Trailback Plantation, Inc.” Rather, we think that the evidence and the inferences fairly and reasonably deducible therefrom afford adequate support for the trial court’s finding, inherent in the general finding for plaintiff [Rule 73.01(b); Sec. 510.310(2)], that the oral agreement was with defendant individually. Rothweiler v. Callicott, Mo.App., 322 S.W.2d 151; Rankin v. Vest, Mo.App., 13 S.W.2d 1095. Unless the oral agreement -was with the corporation, i. e., Trailback Plantation, Inc., obviously there could be no occasion to consider whether the fiction of the corporate entity should be disregarded.

In the second place, the record persuasively demonstrates and satisfactorily establishes that, regardless of any undisclosed intention on the part of defendant to act for the corporation in making the oral agreement, plaintiff had no actual or constructive knowledge of defendant’s alleged status as an agent for Trailback Plantation, Inc. Rothweiler v. Callicott, supra; Rankin v. Vest, supra. In other words, if defendant was acting for the corporation, plaintiff was unaware of such agency. A. A. Electric Machinery Co. v. Block, Mo. App., 193 S.W.2d 631, 636. Thus, the instant case falls within the firmly-established doctrine that one who acts as agent for another in making a contract is liable individually if, at the time of making such contract, he fails to disclose his agency and the identity of his principal. If defendant had desired to avoid personal contractual liability on the ground that he acted only as agent for the corporation, it would have been his duty to have disclosed the identity of his principal at the time of the making of the oral agreement and plaintiff would not have been charged with the burden of seeking to discover such principal.

We are enjoined from setting aside the judgment nisi unless it is clearly erroneous. Rule 73.01(d); Sec. 510.310(4); Beckemeier v. Baessler, Mo., 270 S.W.2d 782, 783(1) ; Copher v. Barbee, Mo.App., 361 S.W.2d 137, 149(20). Surely we may not so conclude on the record here presented. Accordingly, the judgment for plaintiff is affirmed.

RUARK, P. J., and PIOGAN, J., concur.

      . Fuzzell v. Williams, Mo.App., 28S S.W.2d 372, 373(2) ; Cooper v. Massachusetts Bonding & Ins. Co., 239 Mo.App. 67, 71, 186 S.W.2d 549, 551-552(6) ; Smith v. Wilson, Mo.App., 296 S.W. 1036, 1039-1040(3). See James v. James, Mo., 248 S.W.2d 623, 027(G) ; Powell v. Binkley, Mo., 180 S.W.2d 745, 748(5) ; State ex rel. and to use of City of Maplewood v. Southern Surety Co., 323 Mo. 150, 157, 19 S.W.2d 691, 693(1) ; Estes v. Nell, 140 Mo. 639, 652, 41 S.W. 940, 942(3) ; Weintraub v. Abraham Lincoln Life Ins. Co., Mo.App., 99 S.W.2d 160, 164(9).

      . For factual situations invoking application of this doctrine, sec Durwood v. Dubinsky, Mo., 361 S.W.2d 779, 788(5) ; Schwartz Plumbing Co. v. Shelby Const. Co., Mo., 338 S.W.2d 781, 794(14) ; Ruekels v. Pryor, 351 Mo. 819, 174 S.W. 2d 185, 199(8) ; Osler v. Joplin Life Ins. Co., Mo., 164 S.W.2d 295, 29S(4) ; Fidelity & Casualty Co. of New York v. Glass, Mo.App., 327 S.W.2d 538, 541 (4) ; Public Service Com’n. v. Cirese, Mo.App., 240 S.W.2d 186; Panich v. Curtis, Owen, Fuller Corp., Mo.App., 124 S.W.2d 619(7) ; Kansas City Wholesale Grocery Co. v. H. T. Poindexter & Sons Merchandise Co., 232 Mo.App. 378, 107 S.W.2d 841.

      . Hartwig-Dischinger Realty Co. v. Unemployment Comp. Com’n., 350 Mo. 690, 168 S.W.2d 78, 81(7-9) ; Rankin v. Vest, Mo.App., 13 S.W.2d 1095; A. A. Electric Machinery Co. v. Block, Mo.App., 193 S.W.2d 631, 636(9, 10) ; Negbaur v. Fogel Const. Co., Mo.App., 58 S.W.2d 346, 351(4) ; 3 Am.Jur.2d, Agency, § 317, p. 674; 3 C.J.S., Agency, § 216a, p. 323: Restatement, Second, Agency § 322, p. 72. See also Porter v. Merrill, 138 Mo. 555, 39 S.W. 798(1) ; Bond Diamond Co. v. Wilson, Mo.App., 325 S.W.2d 63, 65(1) ; Cruse v. Eslinger, Mo.App., 235 S.W. 496, 498(3) ; Heller v. Ferguson, 189 Mo.App. 484, 176 S.W. 1126, 1128(6).

      . Porter v. Merrill, 138 Mo. 555, 558, 39 S.W. 798; A. A. Electric Machinery Co., supra, 193 S.W.2d loc. cit. 636(11) ; Rankin, supra, 13 S.W.2d loc. cit. 1097; Banjo v. Wacker, Mo.App., 251 S.W. 456, 457—458(2) ; Haskett v. Unsell, 181 Mo.App. 480, 485, 164 S.W. 651, 652(1) ; 3 Am.Jur.2d, Agency, § 320, loc. cit. 677; 3 C.J.S. Agency § 216b, p. 125.

      . Rankin, supra, 13 S.W.2d loc. cit. 1096 (1, 3) ; Banjo, supra, 251 S.W. loc. cit. 458; Negbaur, supra, 58 S.W.2d loc. cit. 351; A. A. Electric Machinery Co., supra, 193 S.W.2d loc. cit. 636(9) ; Hamlin v. Abell, 120 Mo. 188, 198, 25 S.W. 516, 518; 3 Am.Jur.2d, Agency, § 320, loc. cit. 677; 3 C.J.S. Agency § 216a, p. 123.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Cora SLONE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.
    Joe P. Tackett, Prestonsburg, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

The appellant Cora Slone was convicted of possession of alcoholic beverages in local option territory for the purpose of sale. Her punishment was fixed at a fine of $100.00 and confinement in the county jail for a period of 30 days. The evidence upon which she was convicted was obtained by a search of her premises under a search warrant issued by the trial commissioner of Floyd County. It is appellant’s contention that the search warrant is void because it was issued by the trial commissioner rather than the county judge.

The authority for appointing trial commissioners is found in KRS 25.280, which reads in part as follows:

“The judge of the county court, in each county of this Commonwealth wherein the fiscal court may authorize, is hereby authorized to appoint a trial commissioner or commissioners who shall hold office at the pleasure of the judge, and shall discharge such judicial duties as may be assigned to him by the judge. The commissioner shall report his actions to the judge for the approval or disapproval of the judge. * * *»

In Miller v. Commonwealth, 201 Ky. 423, 257 S.W. 3 (1923), and in Divine v. Commonwealth, 236 Ky. 579, 33 S.W.2d 627 (1930), we held that process issued as the result of judicial action and involving the exercise of judicial discretion must be signed by the judge in person. He may not authorize a person, not otherwise qualified, to sign a warrant for him. The establishment and general function of the trial commissioner sj'stem was approved by this Court in Brown v. Hoblitzell, Ky., 307 S.W.2d 739 (1957).

The order appointing the trial commissioner here reads as follows:

“By virtue of the authority vested in me as County Judge of Floyd County, State of Kentucky, and pursuant to an order entered by the Floyd County Fiscal Court, G. C. Burchett is hereby appointed trial commissioner for the County of Floyd, State of Kentucky, effective this date (March 1st, 1963), and to be paid $300.00 per month beginning on said date. This March 1, 1963.”

After the appointment was made the county judge orally authorized Burchett to issue search warrants, and he approved the action taken by Burchett after this search warrant was issued.

A county judge has many duties, one of which is the trial of civil and criminal cases. In his absence a county judge pro tem may perform any of his duties, but the same wide latitude is not given a trial commissioner. The judicial duties which a trial commissioner may discharge are limited to those necessary to the proper disposition of the cases he is assigned to try. He may rule on motions, issue subpoenas, and do the other acts necessary to the proper fulfillment of a trial, but beyond this he has no authority.

Judicial duties discharged by the trial commissioner must be reported to the county judge, who has the right to approve or disapprove them. In the event of approval they become as authentic as if done by the judge. But an act performed by a trial commissioner not within the scope of his authority may not be given life by approval of the judge.

A search warrant at the time of its issuance has no relation to and is not a part of the trial. The issuance of such warrants is a separate judicial function within the authority of a county judge but not subject to delegation to a trial commissioner. It follows that the search warrant issued by trial commissioner Burchett was unauthorized, and subsequent approval by the county judge did not validate it. Evidence obtained by virtue of the search warrant should not have been admitted.

The judgment is reversed.


author: PALMORE, Judge.

text:
    Beatrice S. GOLDSTEIN, Appellant, v. Jacob I. GOLDSTEIN, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.

      S. J. Stallings, Louisville, for appellant.
    Joseph J. Kaplan, Louisville, for appellee.
   PALMORE, Judge.

This is a divorce case in which the ap■peal is confined to the matter of property rights and alimony. The parties, Beatrice .and J. I. Goldstein, were married in 1942 .and have two daughters, now about 19 and 17 years old, whose custody remains with the mother, Beatrice. Under the terms of ■the judgment J. I. is to pay $125 per month -for the support of each of the children (totalling $250).

At the time of the marriage J. I. was in ;pharmacy school and Beatrice was employed. For several years following his graduation J. I. worked as a registered pharmacist and for a time conducted an unsuccessful business venture of his own. Late in 1951 he leased a building and, with the assistance of his wife, embarked upon what soon became a successful retail drug store business. Both of them worked long and hard in the development and operation of this enterprise and shared in the managerial duties on much the same as a partnership basis. Although the major portion of the original equity capital represented money inherited by J. I. from his father, the stock in the drug store corporation eventually was issued to the parties in equal shares.

At the conclusion of the testimony the chancellor made a factual finding, based on competent and sufficient evidence, that the net worth of the drug store business, as a going concern, was $45,000. The other principal asset in controversy is the residence of the parties, which at the time of trial had a reasonable market value of $37,500 and was subject to a mortgage debt of $21,186. J. I. had six life insurance policies against which he had borrowed the full cash surrender value. His personal debts amounted to $13,867 excluding the costs of this action.

Except for the original investment in the drug store, practically all of their accumulated estate is fairly attributable to the joint efforts of J. I. and Beatrice in the operation of the business.

Because the major substance of the original investment was provided by J. I. and was the main root from which grew the equities in both the drug store and the home, the chancellor apportioned the property rights 85% to J. I. and 15% to Beatrice. He then awarded to Beatrice as alimony the equivalent of 1% of J. I’s remaining net worth. The latter figure being roughly approximate to J. I.’s 85% of the equity in the home, it was decreed that she take his interest in the home in lieu of cash. Each party was given one of their two automobiles, and Beatrice was given the home furnishings. Omitting this miscellaneous personal property, the result on paper is as follows:

Beatrice Assets and Liabilities T-I-
Business $45,000 $38,250 O I>S
Residence (equity) 16,314 13,867 lx Tf
Insurance 4,272 4,272
9,197 Totals 65,586 56,389
Debts 13,985 13,985
Net estate 51,601 42,404
Alimony 13,867 13,867
Ultimate division 28,637 23,064

Beatrice’s contention is that she was en- . titled in her own right to 50% of the drug store stock and 50% of the equity in the home and should have been awarded alimony equivalent to 50% of J. I.’s net estate then remaining. Such a division would result about as follows:

When a divorce controversy involves a substantial amount of property, alimony cannot properly be determined without reference to the property settlement. This is made so by the statute, KRS 403.060(1), which allows alimony only if the wife does not have “sufficient estate” of her own, and limits the allowance to an “equitable” amount. In Heustis v. Heustis, Ky., 346 S.W.2d 778, 780 (1961), we said that a woman whose opportunity to earn an estate of her own has been sacrificed in favor of a career at home as a wife and mother ought to have alimony in an amount no less than one-third of the estate accumulated from the husband’s income during the marriage. That, however, was a case in which the wife had no legal interest or restorable rights in the property, and it is not a dispositive precedent in this proceeding.

Passing for a moment the question of what share of the property should or could', have been apportioned to Beatrice in recognition of her direct contribution to its .accumulation, the first concern is whether the over-all award in her favor was adequate.

Several decisions are cited in which this court has approved or directed equal divisions of property. In only .one of them, however, does it appear from the opinion that the aggregate amount awarded by way of alimony and property settlement exceeded 50% of what the parties had. That was Cotton v. Cotton, 306 Ky. 826, 209 S.W.2d 474 (1948), in which the estate to be divided w-as but $1200 and alimony was fixed at $10 per month. Tutt v. Tutt, 304 Ky. 480, 200 S.W.2d 924 (1947), and Powers v. Powers, 307 Ky. 475, 211 S.W.2d 687 (1948), dealt only with property divisions, without mention of alimony. In Shofner v. Shofner, 310 Ky. 869, 222 S.W.2d 933 (1949), the wife was allowed lump sum alimony equivalent to one-half the property, which was retained by the husband. Lock-ard v. Lockard, 305 Ky. 656, 205 S.W.2d 317 (1947), was similar in that the wife, while retaining her interest in property held jointly, was given alimony equal to half the value of property held in the husband’s name; hence the end result was an even split.

We do not mean to say that a wife can never be entitled to alimony in addition to an equal division of jointly accumulated property. There can be no immutable rule in that respect. But under the facts of this case, considering the nature and size of the estate to be divided — what Beatrice will have and what J. I. must have in order to keep his business alive and meet his obligations — we are of the opinion that equity does not require more than a 50% division unless Beatrice’s rightful interest in the property exceeds that amount.

The original investment of J. I. and Beatrice in the drug store was less than $25,000. The books kept by their accountant show that $19,900 of this equity capital was cash inherited by J. I. from his father. According to Beatrice, the correct figure for the inheritance was $14,000 and was depleted to $10,000 or $12,000 by withdrawals for living expenses during the early days of the business. There is no doubt, however, that $14,000 in cash was paid in from that source, and that of all the rest of the original capital contribution— an automobile, cash borrowed, and the proceeds of certain bonds — no more than $1,700 is directly and separately traceable to Beatrice in her individual right. It is true that on several occasions thereafter further money was borrowed on joint notes and advanced to the business, and that all such advances as well as the original investment have been “returned” by the corporation in the form of salaries and other withdrawals, but it cannot be said, as Beatrice’s argument suggests, that J. I.’s inheritance money has been repaid to him in the sense that the net worth today represents accumulated earnings to the .exclusion of original capital and surplus. In the absence of evidence to the contrary, it would ordinarily be presumed, we believe, that funds withdrawn by the members of a corporation are charged first to the earnings, next to the surplus and lastly to the capital stock, and that the original investment is intended to be left intact unless depicted by withdrawals declared in the form of dividends. Therefore, if in the ups and downs of business the equity capital becomes depleted, as it may have been from time to time in this case, subsequent earnings replace it without altering its original status.

Aside from the initial investment, J. I.’s contribution to the success of the drug store can hardly be said to have been less than Beatrice’s, despite the occasional loss of business in consequence of his personality problems and illnesses. We therefore hold that by reason of his greater contribution in the beginning, his was the greater intcr-est in the business when they came to a parting of the ways.

The chancellor fixed the interest of Beatrice at 15%. From the standpoint of restoration alone, it is our opinion that this was an excessive return to J. I. Nevertheless, the matter of ultimate importance is the over-all division, including both property settlement and alimony. When it is considered that Beatrice was given the home furnishings (which were not valued in the evidence but presumably are adequate and suitable to oufit a $37,500 home) her award approximates half the estate, and we cannot say that it was inadequate as to amount. We are, however, convinced that the manner in which the judgment directed the division to be accomplished was clearly unfair to her, and thus clearly erroneous.

Accepting the valuation of the drug store as a going business at $45,000, it is quite a different thing to say that a minority share of its capital stock has a proportionate value. A small business being very much like a cow, not divisible in kind, it was necessary to give control of the store to one or the other of the parties. The chancellor gave it to J. I., and in that we concur. But 15% of the stock in a business run by someone with whom the minority shareholder is incompatible and at odds is a thing of dubious value if indeed it has any value at all. It cannot be eaten and ordinarily it cannot be sold. Whether it bears dividends is largely subject to the will of the controlling party. We feel therefore that instead of leaving Beatrice an interest in the corporation the judgment should have directed the payment of its equivalent in money, either in a lump sum or installments secured by a pledge of J. I.’s stock.

According to our analysis, it was the chancellor’s intention to award Beatrice the equivalent of $23,064 out of the home and the drug store. His findings specifically recognized that she probably would not be able to maintain the home and should sell it. If in so doing she is required to pay a broker’s commission, the intended amount of her award will be reduced. Therefore,, upon remand of the case the judgment should be modified to provide that if the-house has been sold, or is sold within some specified reasonable time in the future, the-broker’s commission, if any, incurred by her in that connection be reimbursed by J. I. As in the case of the $6,750 payment in¡ lieu of stock, the time and terms of such' reimbursement shall be within the discretion of the chancellor.

The judgment is affirmed in part and reversed in part with directions that it be-modified in accordance with this opinion..

      . Adjusted to market value from a book value of about $13,000.

      . For several years be bad suffered a manic depressive disorder, requiring frequent and expensive hospitalization.

      . Deduction of the expenses of the litigation in arriving at the net estate to be divided would result indirectly in charging them partially to the wife.

      . A $1,000 mathematical error led the chancellor to a figure of $41,404.

      . Our analysis.

      . It appears, for example, that $3,000 of the $19,900 listed as having come from the father’s estate probably was money borrowed on J. I.’s life insurance.

      . And the accountant listed this item at $742.29. ,


text:
    BENGOLD PROPERTIES, INC., Appellant, v. Mattie Pearl CROOK, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.

      Charles W. Morris, Morris & Garlove, Louisville, for appellant. ’
    William A. Miller, Willie C. Fleming, Louisville, for appellee.
   PALMORE, Judge.

The appellee, Mattie Pearl Crook, recovered a judgment against the appellant, owner of an apartment building, for injuries received when she fell through a trap door in a hallway of the building. The trap door led to a basement and had been left open by a tenant 15 minutes or so before the accident. There was no evidence to suggest that the owner had notice of or should have .anticipated this negligent action of the tenant. The theory of liability was that the ■owner’s failure to have the hallway lighted was a concurring proximate cause of the mishap.

We find it unnecessary to discuss appellant’s contentions that appellee was a mere licensee to whom appellant owed no duty except to refrain from active negligence and that in any event she was contributorily negligent. Assuming arguendo that appel-lee was just as entitled to use the hallway as if she had been a tenant in the building, it is an unavoidable conclusion that the act of the other tenant in opening the trap door and leaving it open in the darkened hall was negligent and was the proximate cause of the accident. Granted that appellant may have been negligent in failing to keep the passageway lighted, the independent act of negligence by the tenant, without which the accident could not have occurred, was an act the appellant could not reasonably have been expected to foresee. Therefore, it was an intervening cause within the doctrine of Brown Hotel v. Levitt, 306 Ky. 804, 209 S.W.2d 70 (1948). Brown Hotel Co. v. Sizemore, 303 Ky. 431, 197 S.W.2d 911 (1946), is distinguishable because there the liability of the hotel company was predicated on constructive notice of the condition after the negligent act of the third party in displacing the coal hole cover. In this case there is no question of notice to the landlord after the trap door was opened.

The judgment is reversed with directions that appellant be given a judgment n. o. v.


author: DAVIS, Commissioner.

text:
    Marion I. VOORHES et al., Appellants, v. CITY OF LEXINGTON, a Municipal Corporation, Appellee.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.
    Rehearing Denied April 17, 1964.

      Frank S. Ginocchio, Wheeler B. Boone,. Lexington, for appellants.
    Stoll, Keenon & Park, Lexington, for appellee.
   DAVIS, Commissioner.

This is an appeal by the remonstrants, from a judgment of the Fayette Circuit Court which approved proposed annexation by the City of Lexington of an area of territory adjacent to the city.

Appellants assert five points for reversal t (1) the ordinance proposing the annexation is invalid and void; (2) improper admission of evidence to determine the number of freeholders in the territory sought to be annexed; (3) erroneous determination by the trial court that less than 50% of the freeholders had remonstrated, thereby improperly casting the burden on the remonstrants; (4) annexation was erroneously permitted because it will be adverse to the interest of the city and work manifest injury to the remonstrants; and (5) inadequacy of findings of fact and conclusions of law under CR 52.01.

Lexington is a second class city of the Commonwealth; its powers of annexation stem from the statutory enablements found in KRS 81.140. The procedure for annexation by second class cities is the same as prescribed for first class cities by KRS 81.100 and 81.110, with certain exceptions set forth in KRS 81.140.

The ordinance proposing annexation was adopted August 25, 1955, and is identified as Ordinance No. 3413. Within the thirty days permitted by statute the appellants, as resident freeholders of the area sought to be annexed, filed this remonstrance action in Fayette Circuit Court. The case was referred to then Master Commissioner Nolan Carter, who conducted extensive hearings. The Master Commissioner reported to the court pursuant to the hearings, and recommended that the proposed annexation be approved. Elaborate exceptions to the Commissioner’s report were ■overruled; the circuit court adjudged approval of the annexation.

The appellants first challenge the validity of Ordinance No. 3413. It is ■shown that the ordinance before us was one of eighteen ordinances simultaneously enacted on August 25, 1955. Each of the eighteen ordinances proposed annexation of separately described areas. Appellants charge that such a tactic by the city was a subterfuge based on the “divide and conquer” principle. This argument is predicated upon what appellants deem to be the converse principle deducible from the “unit” doctrine. They cite Masonic Widows and Orphans Home and Infirmary v. City of Louisville, 309 Ky. 532, 217 S.W.2d 815 and Lewis v. Town of Brandenburg, 105 Ky. 14, 47 S.W. 862. It is urged that since the residents of an area to be annexed may not split the area for the purpose of resisting annexation, the city should not be permitted to split the area to be annexed. But there is nothing in this record to reflect that Ordinance No. 3413 is splitting an area. It encompasses one unit area. We find no merit in the argument.

Next, the sufficiency of the metes and bounds description of the territory proposed to be annexed is attacked. The description was prepared by a civil engineer. It is quite lengthy, but engineers testified for the city that the description was readily susceptible to accurate identification. This factual issue was resolved against the contention of appellant; we find no error in this regard. Certainly the finding is not clearly erroneous within the purview of CR 52.01.

Appellants contend that Ordinance No. 3413 was repealed by implication when the city passed subsequent ordinances proposing annexation of parts of the same territory embraced in No. 3413. This contention was decided adversely to appellants’ position in Garner v. City of Lexington, Ky., 306 S.W.2d 305. There is no merit in the contention here.

The second point raised by appellants relates to the claimed improper admission of evidence in determination of the critical question as to whether 50% or more of the freeholders had joined the remonstrance. It is to be noted that KRS 81.140(4) provides:

“The number of freeholders whose remonstrance will control the question of annexation or reduction shall be fifty percent.”

The significance of the number of remonstrants is to be found in KRS 81.110. The statute provides that if it is determined that less than 50% have remonstrated, the annexation or reduction shall be adjudged if it is found to be “for the interest of the city, and will cause no manifest injury to the persons owning real estate in the territory sought to be annexed or stricken off * * *.” Conversely, if 50% or more of the resident freeholders of the territory sought to be annexed or stricken have remonstrated, the annexation or reduction shall not take place unless it is determined “that a failure to annex or strike off will materially retard the prosperity of the city, and of the owners and inhabitants of the territory sought to be annexed or stricken off, in which case the annexation or reduction shall take place notwithstanding the remonstrance.”

Appellants introduced 55 exhibits and 154 witnesses addressed to the issue of how many resident freeholders had remonstrated; this evidence showed 537 remonstrants. To prove the total number of freeholders in the area the appellants introduced the man who had collected the garbage there for more than ten years. According to that witness, the total number of resident freeholders in the area is 743. Patently, 537 remonstrants comprise more than 50% of 743 freeholders.

The city adduced evidence from a deputy county tax commissioner, supplemented by certain records of patrons of the Lexington Water Company. Based on the testimony of the deputy tax commissioner and the records of the water company, the trial court found that there are 1,599 resident freeholders in the area, thus concluding that less than 50% of the freeholders remonstrated.

Appellants earnestly argue that the evidence for the city on this issue was incompetent. We do not agree. In 32 C. J.S. Evidence § 638, pp. 499-500 it is said:

“Under the general rule * * * tax receipts and records are generally admissible as public documents, including books of assessors.
“ * * * Tax lists are admissible as circumstantial evidence that the person making the return at a particular time claimed or did not claim to own certain property, where the question of ownership thereof at such time is in issue.”

The same rule of evidence, as an exception to the hearsay rule, is announced', in 20 Am.Jur., Evidence, § 1023, pp. 861 et seq. To the same effect is Wigmore on Evidence, Vol. 5, § 1640, pp. 552 et. seq. The rationale of this rule is found, in the fact that such records are made by persons having no motive to suppress or distort the truth or to manufacture evidence, and, moreover, are made in the discharge of a public duty.

The principle just discussed was recognized by this court long ago. See Sutton v. Floyd, 46 Ky. 3, wherein the tax list of John Floyd, in the handwriting of the tax commissioner, was found admissible “without direct proof that it was given in or sworn to by John Floyd, or that he was ever actually apprised of its contents. The presumption is that both he and the officer performed the duties enjoined upon them respectively by law, and, therefore, that the list was the act of John Floyd. As such it furnished (with other testimony in the cause) ground for the inference that he did not regard those notes as a part of his estate or property, and was, therefore, material in the case.”

From what has been said it is apparent that the type of evidence here used was sufficient to raise a prima facie case based on circumstantial evidence. It could have been refuted, of course, by the introduction of rebutting evidence. However, we are not prepared to say that the testimony of the garbage man was of such high order as to require the utter disregard of the tax cards. The trial court resolved that preliminary fact against the appellants on the evidence produced; there was competent evidence to sustain the finding; we find no basis for reversible error in the court’s ruling on this phase of the litigation.

What we have said disposes of the third contention of appellants, since the evidence accepted reflects that less than 50% of the resident freeholders joined in the remonstrance suit. It follows, therefore, that the case proceeded properly as one in which less than 50% of the freeholders remonstrated.

We now consider whether the evidence warrants the trial court’s ruling on the merits of the case. We recall that KRS 81.110(2) directs that the proposed annexation shall he permitted if the annexation will be for the interest of the city, and will cause no manifest injury to the persons owning real estate in the territory sought to be annexed, since less than 50% of the resident freeholders have made remonstrance.

The city urges the following considerations as supporting the premise that the annexation “will be for the interest of the city”: (a) the city will expand its area to the extent of the size of the territory to be annexed; (b) there will be a net income increase to the city, after considering costs of servicing the area and loss of certain presently charged sewer rentals; (c) sociological, economic and geographic developments of the city will result from the annexation; (d) legal and political difference between the city and the area proposed for annexation will disappear, and unity will result; (e) the city will gain as citizens a great number of substantial citizens whose participation in city affairs will be of benefit to the city; (f) the general health, welfare and safety of the city will be promoted as the result of the city’s gaining jurisdiction of the area for police and fire protection, for traffic control and disposal of sewage.

To counter the foregoing assertions of results “for the interest of the city” the appellants offered testimony, primarily through Dr. James Clifton Eaves, to the effect that the proposed annexation would result in a financial loss to the city. Competent evidence on both sides of this issue was before the trial court. Necessarily,, much of the evidence on both sides of the question is based upon somewhat uncertain forecasts of coming events. It may not. be said that the evidence for either side of the proposition is so convincing as to-preclude another conclusion. In this state of case, we do not find that the decision of the trial court was clearly erroneous; indeed, we do not find it to be erroneous-at all. Thus, we hold that the evidence adequately supports the finding that the proposed annexation is “for the interest of the city.”

Appellants maintain that the annexation must fail because it will produce “manifest injury” to the resident freeholders of the area sought to be annexed. To support this proposition they point out that the residents-of the area already have natural gas, city water, electricity, telephone service, bus-service, daily mail service and taxi service. Moreover, the area is developed with well-paved streets, sidewalks, curbs and gutters. In short, it may be said that appellants-feel no need for anything the city professes to have to offer.

For appellants it is urged that the imposition of city taxes will reduce the value of the property, and, indeed, will cause some of the residents to lose their homes in mortgage foreclosures. This dire consequence is envisioned on the basis that many of the homeowners in the area obtained 100% financing through government lending available to war veterans. Whether the gloomy prospect of financial debacle will follow from bearing the added burden of city taxes may be doubted. However, there is no doubt that the necessity of paying city taxes is not the character of injury contemplated by the annexation statutes. Cf. City of Louisville v. Sullivan, 302 Ky. 86, 193 S.W.2d 1017; Masonic Widows and Orphans Home and Infirmary v. City of Louisville, 309 Ky. 532, 217 S.W.2d 815; and 37 Am.Jur., Municipal Corporations, § 29, pp. 646 et seq.

It is true that the appellants already enjoy many of the benefits associated with urban living. None of these is to be taken away. The evidence for the city reflects these benefits for the residents of the area to be annexed: substantial saving in annual insurance premiums, improvement in fire protection service, better police protection, free garbage collection service, better sewage disposal, abrogation of health hazards incident to septic tank sewage disposal, installation'of street lights, better street maintenance, and the prospect of increased property values resulting from these cumulative benefits.

The appellants cite as a burden indicating manifest injury the thrusting upon them of the responsibilities as citizens of the city. In City of Cold Spring v. Laycock, Ky., 312 S.W.2d 882, it was said:

“We think a consideration often overlooked is the burden of responsibility for the proper conduct of city affairs which is placed upon freeholders who are involuntarily made city voters.”

It should be observed that the cited portion of that opinion regards the involuntary responsibility of city citizenship as “a consideration.” It is a burden; it should be taken into account, but it is not a decisive thing. If it were, there. could be no annexation. On this entire record we find that consideration of the responsibility of citizenship does not tip the scale to such extent that the overall burdens constitute “manifest injury” within the meaning of the statute.

Finally, the appellants challenge the sufficiency of the findings of fact and conclusions of law. CR 52.01. We have reviewed the findings of fact and conclusions of law as contained in the report of the Master Commissioner. The trial court adopted the Master’s findings. Those findings, composed in opinion form, do contain the factual findings of the Master Commissioner as well as his legal conclusions therefrom. They comprise seven pages in the record and evince a thorough and careful consideration of the voluminous record. CR 52.01 specifically provides:

“ * * * The findings of a commissioner, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein, * * * *>

, Therefore, we find no merit in the contention of the appellants as to the inadequacy of findings of fact and conclusions of law.

The judgment is affirmed.

      . KRS 81.110 relates to first class cities, but is made applicable to second class cities by incorporation by reference in KRS 81.140. In first class cities, the controlling number of remonstrants is 75%, but in second class cities the number is 50%.


author: CLAY, Commissioner.

text:
    William H. MARCUM et al., Appellants, v. Chloey MARCUM, Individually, etc., Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.

      Herman E. Leick, Corbin, for appellants.
    Robert H. Helton, Jr., Brown, Tooms & Helton, London, for appellee.
   CLAY, Commissioner.

In this declaratory judgment action the ownership of certain government bonds is in issue. The trial court, on the authority of Henderson's Adm’r v. Bewley, Ky., 264 S.W.2d 680, 51 A.L.R.2d 159, adjudged the bonds passed as intestate property of the deceased co-owner who had purchased them.

Wyatt Marcum, over a period of years, bought a number of Series E, United States Savings Bonds. Those in controversy were issued in the joint names of “Wyatt Mar-cum or William Marcum”, and “Wyatt Marcum or Hugh Marcum”. One was issued in the sole name of Hugh Marcum. (William and Hugh were the sons of Wyatt.) These bonds were purchased with Wyatt’s own funds. They were kept in his lock box in a bank until the date of his death.

The bonds were issued pursuant to 31 U. S.C.A. § 757c. Section 315.61 of United States Treasury Department Regulations, which constitutes a part of the government contract, provides in part as follows:

“If either co-owner dies without the bond having been presented and surrendered for payment or authorized reissue, the survivor will be recognized as the sole and absolute owner.”

Since William and Hugh were named co-owners in the respective bonds (except the one bond in which Hugh was named the sole owner), and since they survived the other co-owner, it would seem beyond question that under the terms of the bond contract their original joint interests matured into sole ownership. This has been recognized in a vast number of cases from other jurisdictions, collected in 168 A.L.R. 241; 173 A.L.R. 550; 37 A.L.R.2d 1221; and 40 A.L.R.2d 788.

Henderson’s Adm’r v. Bewley, Ky., 264 S.W.2d 680, 51 A.L.R.2d 159, apparently adopted a contrary view. In that case it was held that because there had not been an actual delivery of the bonds by the purchaser to the named co-owner, there had been no gift to the latter and he acquired no interest in them. We can only explain this holding as the result of a misconception arising out of a complex factual situation. The opinion itself discloses a gross inconsistency because after recognizing that such a bond cannot be the subject of an inter vivos gift, it was declared this gift failed because there was no delivery.

The distortion of the problem involved is traceable to the concept that ownership is dependent on physical possession of the bonds, whereas, ownership is fixed by the terms of the bond contract. Questions involving gifts of bonds usually arise only when the purchaser of the bond, who by its terms is designated the sole owner, undertakes to transfer his ownership by manual delivery. (Which, as pointed out in the Bewley case, cannot be done.)

The issue we have here is not one of gift but of contract. See cases cited in 37 A.L.R.2d 1221, 1226, and 40 A.L.R.2d 788, 789. The ownership interests in the obligations represented by these bonds .(the bonds are evidence of an indebtedness) were created at the time Wyat.t Marcum purchased them. Even if we labelled this act as a gift of the ownership interest, it was completed by the designation of his sons as co-owners in the contract obligation. In re Haas’ Estate, 10 N.J.Super. 581, 77 A.2d 523. The written instrument, which consummated the transaction, would make unnecessary the “delivery” of some token.

As pointed out above, our problem does not involve the creation of rights by the transfer or failure to transfer physical possession of the bonds. It is simply a matter of determining the rights of a third party beneficiary under a contract. See Conrad v. Conrad, 66 Cal.App.2d 280, 152 P.2d 221; In re Reiner’s Estate, Ohio Prob., 106 N.E.2d 94. The law of gifts has no application.

In Moore’s Adm’r v. Marshall, 302 Ky. 729, 196 S.W.2d 369, 168 L.R.A. 241, we recognized that a United States Savings Bond is a valid and binding con-tract which is determinative of the rights of the parties named therein; that the Treasury regulations must be read into that contract; and that ownership is to be governed by its terms. According to the terms of the bonds in controversy William and Hugh have been joint co-owners of these governmental obligations since the day they were issued, and also according to those terms, upon the death of their father their ownership became sole and absolute. (The bond issued in the sole name of Hugh has • always been, and still is his.)

So much of the decision in Henderson’s Adm’r v. Bewley, Ky., 264 S.W.2d 680, 51 A.L.R.2d 159, as is in conflict with this opinion is overruled. Not only was it inconsistent with basic general principles, but it was contrary to the federal law which governs the rights of parties under United States Savings Bonds. Our state law must yield to the federal law. Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180. See also numerous cases from other states cited in 37 A.L.R.2d 1221, 1229.

Appellee in her brief raises some question of constructive fraud and constructive trust. These contentions were not presented to the trial court, and even if they had been, they are totally lacking in merit.

The judgment is reversed with directions to enter judgment for William and Hugh Marcum consistent with this opinion.

      . C.F.R. Title 30-31.

      . It should be noted that the necessity for delivery is basically an evidentiary requirement to avoid mistake, imposition and perjury. See 24 Am.Jur., Gifts, section 24 (page 743).

      . Even considered as gifts, ownership of corporate stock may be transferred by appropriate notations on the corporate books without delivery of the stock. Kosciuszko Building & Loan Ass’n v. Kanzan, 29 Del.Ch. 385, 50 A.2d 786; Lynch v. Lynch, 124 Cal.App. 454, 12 P.2d 741.

      .It was in this case we held that the ownership interests in the bonds could not be transferred by their manual delivery.


author: CULLEN, Commissioner.

text:
    Wade CLARK, Jr., et al., Appellants, v. Vernon RUCKER, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.

      John M. Berry, Berry & Floyd, New Castle, for appellants.
    John W. Coomes, New Castle, for appellee.
   CULLEN, Commissioner.

Vernon Rucker recovered judgment of. $3,994.65. on a jury verdict against James Fannon and the latter’s employers, Clark and Sharp, as damages for personal injuries arising out of an accident involving Ruck-er’s pick-up truck and a- tractor-trailer truck operated by Fannon. The defendants have, appealed.

The appellants’ first contention is that Rucker should have been held contributorily negligent as a matter of law.

The Rucker truck, being driven by Mrs. Rucker and with Mr. Rucker as a passenger, was going north on U. S. Highway 421. The Fannon truck was approaching from the opposite direction. The testimony of the Ruckers was that a. car pulled out of a driveway and headed south in front of the .Fannon truck; that the truck .was going so fast. it. could not stop and Fannon turned into the left lane to pass the car; that this happened within a distance of 150 feet from the Rucker truck; that Mrs. Rucker had no choice but to take the ditch and she applied her brakes and headed for the ditch, where she came to a stop against a stone fence.

Fannon’s testimony was that a car came out of a side road into his path some 1,500 feet from the point where the Rucker truck eventually went into the ditch; that Fannon was unable to slow down sufficiently to stay behind the car so hp pulled to the left to pass it; that the car speeded up somewhat and the two vehicles went down the road side by side for a distance of some 1,000 feet before Fannon’s truck eventually was able to pass the car;. that he succeeded in passing the car and getting back on his own side of the road when the Rucker truck still was some distance away; that the Rucker truck skidded off into the ditch and that Fannon brought his truck to a stop, on his own side of the road, some 70 feet north of the point where the Rucker truck came to rest. In substance, Fannon attributed the accident to Mrs. Rucker’s loss of control of her'truck.

The appellants base their argument, that Rucker should have been held con-tributorily negligent as a matter of law, solely on the evidence that the Rucker truck skidded 68 feet before going into the ditch. They rely on cases holding that unexplained skidding may raise an. inference of negligence. We believe it is unnecessary. for us to get into a discussion of whether such an inference could ever rise to the force of a presumption so as. to constitute the basis for a directed verdict. We think it is enough to say that here the skidding was explained sufficiently to make the question of negligence one for the jury. It is obvious that the truck skidded because the brakes were applied. Mrs. Rucker said she applied the brakes and headed for the ditch because the Fannon truck was bearing down on her in the wrong lane. This was an acceptable explanation of the reason for the skidding.

The fact that the vehicle skidded for 68 feet certainly cannot be considered conclusive evidence of excessive speed, because there is nothing in the record, or in common knowledge,''to furnish the basis for a conclusion that a vehicle does not skid for 68 feet unless operated at a speed in excess of a lawful open highway rate.

It is our opinion that the trial court properly ruled that the plaintiff was not as a matter of law contributorily -negligent.

The appellants make a further contention that the testimony of the Ruckers established that Fannon was confronted by an emergency, by reason of the car’s suddenly coming out in front of his truck, and therefore there should have been a directed verdict for the defendants on the ground that as a matter of law Fannon was not negligent. There are two answers to this: First, the testimony of the Ruckers did not exclude the possibility that Fannon saw or should have seen the car approaching the highway in sufficient time to slow down. Second, Fannon’s own testimony indicated that he drove on the left side of the road a distance of 1,000 feet in attempting to pass the car. His testimony eliminated any basis for saying that as a matter of law he should be exonerated by reason of emergency.

Complaint is made of the admission ■of an estimate by Rucker of the speed of the Fannon truck. Rucker said that he was leaning over, tying his shoes, when his wife screamed; he looked up and saw the Fannon truck approaching; he estimated its speed at 60 miles per hour. The appellants argue that this estimate, based on a fleeting glance, was without evidentiary value. Assuming for the purpose of discussion that the estimate should not have been admitted, we believe its admission could not have had any material effect in the reaching of the verdict. There was only one real issue in the case, that being whether the Fannon truck got back on its own side of the road soon enough so that there was no justification for Mrs. Rucker to take the ditch. Whether the speed of the Fannon truck was 45 m. p. h. as Fannon testified, ■or 60, was not important in determining that issue and we do not believe the jury reasonably could have given it any importance.

The appellants maintain that because of a certain lack of grammatical perfection in the allegations of the complaint, the plaintiff was not entitled to an instruction on pain and suffering. The point does not have sufficient merit to warrant discussion.

Finally, it is contended that the damages are excessive. The total award was $3,994.65, of which $394.65 was for medical and hospital expenses. Rucker claimed a whiplash injury. He saw one doctor eight times. He went to another doctor who put him in the hospital for examination for two days. Then he went to a neuro-surgeon who put him in another hospital, in traction, for seven days. Subsequently he was treated by a chiropractor 10 or 15 times. He complained of constant pains in his neck and left arm and at the time of the trial, three years after the accident, he said he was still suffering pain. The doctors testified that he had a cervical nerve root or vertebrae injury, that there were objective indications of pain, and that his complaints were not mainly subjective. Under this evidence the verdict does not strike us as being excessive.

The judgment is affirmed.


author: CHESLEY A. LYCAN, Special Commissioner.

text:
    Jasper WHITAKER et al., Appellants, v. Tisha FIELDS et al., Appellees.
    Court of Appeals of Kentucky.
    March 20, 1964.

      D. G. Boleyn, Hazard, for appellants.
    Don A. Ward, Hazard, for appellees.
   CHESLEY A. LYCAN, Special Commissioner.

This appeal is premature and therefore dismissed and the case remanded to the Perry County Court for further proceedings there for the reason that there has been no judgment in the Perry County Court as required by CR 54.01. See also Brumley v. Lewis, Ky., 340 S.W.2d 599, wherein the test of appealability was said to be “whether the order grants or denies the ultimate relief sought in the action or requires further steps to be taken in order that the parties’ rights may be finally determined.”

This is an action started in the Perry County Court to partition real estate. KRS 381.135(1), (12). An order was entered finding that the land could be partitioned in kind.

Three commissioners were appointed but they failed to act and three others were appointed and one of those failed to act and another was appointed. The last three partitioned the land and filed a report and map which was excepted to and the County Judge hearing the evidence on exceptions sustained the exceptions and set aside the commissioners’ report. The attempted appeal is from the order setting aside the commissioners’ report. Clearly this is not a “final order adjudicating all the rights of all the parties” as required by CR 54.01. It is possible to partition land in many different ways, but in this case no partition has yet been made or denied, except the particular partition appellants favor has been denied.

We recommend that the appeal be dismissed and the cause remanded to the Perry County Court for further proceedings.

The opinion is approved by the court. The appeal is dismissed and the cause remanded to the Perry County Court.


text:
    George G. GREEN et al., Appellants, v. ASHER COAL MINING COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.

      William A. Watson, Middlesboro, for appellants.
    E. B. Wilson, Pineville, for appellee.
   CLAY, Commissioner.

This controversy involves the liability of the owner of land leased for strip mining: purposes to a lower riparian owner allegedly" damaged by debris produced in the strip mining operation. The trial court dismissed' appellant plaintiffs’ complaint on the ground it failed to state a claim.

The complaint alleges in substance the following facts. Appellee defendant is engaged in the business of purchasing, leasing and developing lands for the purpose of carrying on mining operations. It leased some of its land to be mined for coal and the lessee adopted the method of strip mining. Defendant “was fully cognizant and aware of the nature of the mining operation thus to be conducted”. The mining operation resulted in the displacement of top soil, rock, shale and other types of strata. After the cessation of the strip mining operation the defendant did not restore the land to prevent soil erosion or excessive drainage along natural water courses. As a result of the condition created, following a heavy rainfall vast quantities of loose rock, dirt and coal were washed down the mountainside, obstructing natural water courses, causing the flooding of plaintiffs’ premises, and depositing debris thereon, thereby injuring plaintiffs’ land.

It is alleged defendant failed to exercise ordinary care in the use of its property and was guilty of wanton, reckless and wilful conduct. Punitive as well as compensatory damages were demanded.

The complaint (which we commend as a model pleading) very thoroughly states a basic cause of action. The important, difficult and narrow question is whether it states a claim against the defendant landowner. It is the position of the defendant that the wrongful acts complained of were committed by its lessee and it is not liable therefor. It cannot be disputed that as a general rule the landlord is not liable for the negligent acts of his tenant. 32 Am. Jut., Landlord and Tenant, sections 161, 817; Farmer v. Modern Motors Co., 235 Ky. 483, 31 S.W.2d 716; Pinnell v. Woods, 275 Ky. 290, 121 S.W.2d 679; Cole v. Back, 305 Ky. 668, 205 S.W.2d 303.

As with all general rules there are exceptions. They stem from other general rules. Every owner must use his own property with due regard to the rights of other owners. Crabtree Coal Min. Co. v. Hamby’s Adm’r, 28 Ky.Law Rep. 687, 90 S.W. 226. If a landowner uses his property in a negligent or unskillful manner or creates conditions thereon which are unusual, unreasonable or unnatural, thereby causing damage to adjoining landowners, he may be held liable. Chesapeake & O. R. Co. v. Weddington, 231 Ky. 745, 22 S.W.2d 131., The landowner may be liable for acts which cause flooding of his neighbor’s land. Chesapeake & O. R. Co. v. Saulsberry, 262 Ky. 31, 88 S.W.2d 949. The landowner may be liable to lower riparian owners if he places deleterious substances on his land which ordinarily would carry to other lands. Nebo Consol. Coal & Coking Co. v. Lynch, 141 Ky. 711, 133 S.W. 763.

The exceptions to the rule of immunity ■arise in those cases where the condition or use of the premises is so potentially harmful that the courts will not permit the ■owner to hide behind a lease. For example, we have the “sidewalk” cases. In Mitchell’s Adm’r v. Brady, 124 Ky. 411, 99 S.W. 266, 13 L.R.A., N.S., 751, a pipe attached to a rented building fell upon a pedestrian. Even though the lessee was ■obligated under the lease to keep the building in repair and not to permit it to become unsafe, this Court held the lessor liable and stated (page 267 of 99 S.W.) :

“The owner of a building erected over the sidewalk is not absolved from liability to a person injured by the fall of a part of the building on the sidewalk, by reason of the fact that he has leased the property to another and the tenant has obligated himself to keep the property in repair. Both the 'tenant and the owner in such a state .of case are responsible. It is encumbent upon the owner to keep his premises safe, and he cannot relieve himself of this liability by contract with his tenant.”

To the same effect was Goldberg v. Wunderlich, 248 Ky. 798, 59 S.W.2d 1018 (involving a defect in a cellar door which developed after the tenancy began). These cases disclose a policy followed under certain circumstances when the nature of the injury is such as to be directly traceable to a potentially dangerous condition which the lessor should anticipate and guard against, even though he does not have actual control of .the premises.

Another exception has been recognized where land is leased for a purpose involving the admission of the general public. Examples are amusement parks, theatres, beaches, motels and baseball grandstands. See Pros-ser on Torts, 2d Ed., section 80 (page 469). Prosser comments that this rule is an arbitrary one. simply recognizing a greater responsibility of the lessor when the use involves a danger to the public. As before suggested, the matter is one of policy in the light of unusual conditions.

Another exception is where the lessee creates and maintains a nuisance on the premises. As said in Harper and James, The Law of Torts, Vol. 2, section 27.20 (page 1527) :

“Liability of the landlord for the activities of the tenant may however be based on an express authorization of the very conduct or condition that is the source of injury, or on the unreasonably great likelihood, at the time of the letting, that the tenant will create such a nuisance. Such a likelihood will be found where injury results from the normal, expectable use by the tenant of the leased premises and appliances in the condition they were in at the time of the letting.”

The use of the word “nuisance” in this connection is simply a convenient method of describing a condition which causes injury to another. See definition of “nuisance” in Words and Phrases, Permanent Edition, Vol. 28A. In many cases we have examined, the imposition of liability upon the lessor rests upon the peculiar nature of the condition. If potential harm is sufficiently substantial and predictable, it is the duty of the lessor to abate the nuisance created by his lessee. See Swift & Co. v. Peoples Coal & Oil Co., 121 Conn. 579, 186 A. 629.

Blasting cases furnish another example. In Board of Chosen Freeholders of Hudson County v. Woodcliffe Land Imp. Co., 74 N.J.L. 355,, 65 A. 844, the defendant had leased his land for the purpose of removing earth and rock and by reason of excavation and blasting the adjoining property owner was injured. The court said (page 846 of 65 A.):

“We can see no distinction in principle between the liability of the lessor who demises premises with an already existing nuisance, and the liability of a lessor who demises premises for a purpose the necessary result of which is a nuisance, and the case is much stronger against a lessor who demises premises for the very purpose of creating a nuisance either by authorizing it or by making the act of. the tenant his own. It would be manifestly wrong to allow the lessor to escape liability merely by demising the premises in order that the nuisance might be the original act of the lessee only.”

Similar decisions were reached in Benton v. Kernan, 127 N.J.Eq. 434, 13 A.2d 825, and Fagan v. Silver, 57 Mont. 427, 188 P. 900. Apparently to the contrary is Tennessee Coal Iron & R. Co. v. Hartline, 244 Ala. 116, 11 So.2d 833.

The theory that the lessor is liable when his property is leased for a use which involves the likelihood of harm to others is the same as that applied when a landowner-claims immunity because of a wrong com--mitted on his property by an independent■ contractor. With respect to the owner-independent contractor relationship, it is.; stated by Prosser :

“But liability has been extended beyond this, to work which, in its nature, will create a risk of harm to others unless some particular precautions are taken — as, for example, excavations in ór near a public highway, or construction or repair work on buildings adjoining it and similar activities likely to endanger passers-by; the clearing of land by fire, the spraying of poison, tearing down high wálls or chimneys, the construction of a dam, and many other kinds of work. So far as the cases indicate, the principle seems to be limited to work in which there is a high degree of risk in relation to the particular surroundings, or some rather specific danger to those in the vicinity, recognizable in advance as calling for definite precautions.”

In a blasting case heretofore cited, the court considered the question of whether the party creating the condition' which caused the injury was a lessee or an independent contractor, but decided the landowner was liable in either event.

The authorities heretofore discussed recognize that the owner of land may be held liable for the acts of his lessee under the following conditions: the particular use or exploitation of the land must be such that harm to others is likely to ensue unless precautions are taken; the owner must consent to, authorize or be cognizant of this'use; and the injury must be such as can reasonably be anticipated from such use.

The case most similar to the one before us is Campbell v. Louisville Coal Mining Co., 39 Colo. 379, 89 P. 767, 10 L.R.A.,N.S., 822. In that case the plaintiff owned the surface of a tract of land and the defendant owned a coal vein under it. The defendant leased the coal vein (in return for a royalty) and the lessee negligently mined all of the coal, leaving no support for the surface, which subsided. The court reversed a directed verdict for the defendant lessor and adjudged him liable for the damages. In the opinion the court stated (pages 768-769 of 89 P.) :

“It has been held that whoever, for his own advantage, authorizes his property to be used by another in such manner as to unnecessarily endanger and injure the property of others is answerable for the consequences. Such liability has been based upon the law of nuisance, but it follows when predicated upon negligence the same as when grounded upon an intentional wrong.”
******
“The failure of its lessee to leave or provide these supports was negligence, which the defendant sanctioned or consented to, or took no steps to prevent, and of which it has had the benefit, and hence its liability is the same as though it had committed the negligent acts which resulted in the damage to plaintiffs.”
******
“It could vest no greater right in its lessee than it could itself exercise, and when it did lease the right to remove the coal it was bound to exercise at least a reasonable degree of care to prevent its lessee from so mining as to injure the property of plaintiffs.”

In a sense the leasing of land for exploitation is a method of use of it by the owner. He may not utilize it so as to cause injury to others. Therefore, if the expected operations under the lease result in such injury as may be reasonably anticipated, the owner has been a party to the wrong and cannot disclaim liability because he did not personally create the condition or commit the wrongful act. The significant considerations are the cognizable potentialities of danger and the reasonable predictability of injury.

Applying the law to the facts stated in the complaint, we find a sustainable legal theory of liability. The defendant was in the mining business. The leasing of this land was for the purpose of carrying out mining operations through a third party. Strip mining by the lessee was authorized. The topography of the land involved was such that debris from this operation would likely be cast or eroded into mountain streams, as a result of which damage to lower riparian owners could be reasonably anticipated.

Here we have a potentially harmful activity, conducted on the owner’s land for his profit. The only difference between this case and the blasting cases is that the potentiality of harm is more immediate in the latter. That substantial time lapses between the initial activity on the land and the resulting injury to others does not affect the question of liability.

We are of the opinion the plaintiffs state a claim against the defendant for injury arising out of the acts of its lessee. The question is not before us as to whether this is a primary or secondary liability, or whether the defendant is entitled to indemnity from its lessee.

There is an additional legal theory under which the defendant would be liable to the plaintiffs. The complaint alleges that after the “cessation of operations” the defendant maintained the conditions which eventually caused plaintiffs damage. It is not stated, that the lease had expired. However, under the allegations of the complaint, the plaintiffs could prove that the defendant had assumed or had the right to assume actual control of its land. In such an event the defendant would be in the position of a landowner continuing to maintain a nuisance created by his lessee and of course this could be a wrong committed directly by the owner. See Swift & Co. v. Peoples Coal & Oil Co., 121 Conn. 579, 186 A. 629.

We are limiting our decision to the particular facts alleged in plaintiffs’ complaint. We are not deciding that a landowner is necessarily liable for the acts of the lessee who engages in strip mining. However, we cannot close our eyes to the •faciTthat an operation of this nature is obviously disruptive and destructive of substantial surface areas. While the landowner may consent to having his own land practically destroyed, he may not knowingly expose neighboring lands to injury likely to ensue therefrom and claim immunity from wrongdoing by virtue of a lease. He must act with reasonable prudence, and proof relating to the nature of the operation, the topography of the land, and the likelihood of injury may support a finding of liability. We are of the opinion the complaint states a claim upon which relief could be granted against the defendant.

The judgment is reversed for proceedings consistent with this opinion.

MONTGOMERY, J., dissenting.

      . Prosser on Torts, 2d Ed., section 64 (page 360).

      . Fagan v. Silver, 57 Mont. 427, 188 P. 900.


text:
    G. C. WEAVER, Jr., Appellant, v. NATIONAL FIDELITY INSURANCE COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    June 21, 1963.
    Rehearing Denied April 17, 1964.

      John G. Prather, Fritz Krueger, Somerset, for appellant.
    Ben D. Smith, Smith & Blackburn, M. D. Harris, Somerset, for appellees.
   CHARLES M. ALLEN, Special Com.missioner.

This is an appeal from the judgment of "the Pulaski Circuit Court entered on July 7, 1961, awarding to the appellee, National .Fidelity Insurance Company, $4,974.69 on 'its counterclaim and dismissing the com-jilaint of the appellant, G. C. Weaver, Jr.

Appellee issued on January 5, 1959, an insurance policy including collision cover-'' age for the actual cash value of a Mack diesel truck and a Diamond T truck owned by the appellant subject to a $250 loss deductible clause. On May 11, 1959, the Mack truck was damaged beyond repair in a collision near Celina, Ohio, a point more than 150 miles from Burnside; Kentucky, the principal place of garaging of the truck and ■at a time when the' truck was -en route to Ft. Wayne, Indiana, some 325 miles from Burnside.

The insurance policy had attached an endorsement which provided as follows:

“In consideration of the premium at which the Policy designated above is issued, it is warranted by the insured that no regular or frequent trips of commercial vehicles described in such Policy are Or will be made during the policy, period to any location beyond a 150 mile radius from the limits of the city •or town of principal garaging of such vehicles.”

The policy also contains a loss payable •clause in favor of parties who had financed the vehicle, the principal due at the time of the collision to the- mortgagees being $4,-*974.69. This sum was duly, paid to the mortgagee, Mack Truck Company.

Upon the refusal of the insurance company to pay appellant’s claim on account of the alleged breach of the above-quoted clause, appellant instituted the instant action. The proof which was taken on depositions shows that the appellant operated his two trucks a total of 105 times between January 5, 1959, and May 11, 1959, and of these 105 trips 82 were within the 150 mile radius. The proof showed that 23 of the trips during this period were for distances over 150 miles; 4 being made to Pittsburg, 5 to Detroit, 5 to Muncie, Indiana, 1 to Waverly, Ohio, 1 to Dayton, Ohio, 5 to Ft. Wayne, Indiana, and 1 to Franklin, Ohio. Pittsburg and Detroit are approximately 425 miles from Burnside, Ft. Wayne is 325 miles, and the other cities are more than 150 miles but less than 325 miles. Appellant was unable to state how these trips were distributed between the two trucks.

The decisive question before this Court is whether or not the lower court erred in holding that the 23 trips made over the 150 mile limit constituted “regular” or “frequent” trips within the meaning of the policy.

The trial court in rendering its decision evidently relied upon the case of Indiana Rolling Mill Baling Corporation v. National Automobile & Casualty Insurance Company, D.C., 141 F.Supp. 831, affirmed 7 Cir., 240 F.2d 74 and Kindred v. Pacific Automobile Insurance Company, 10 Cal.2d 463, 75 P.2d 69. The Indiana Rolling Mill case, supra, involved the use of a truck in the Cincinnati, metropolitan area for a period of 18 days when this area was more than 50 miles from Ft. Wayne, Indiana, the place of principal garaging of the truck. These trips occurred several times a day and were held to violate the terms, of the policy which contained a restriction on the regular or frequent use of the truck beyond a 50 miles.radius. The Kindred case, supra, is substantially similar to the Indiana Rolling Mill case.

The appellant relies upon McCoy v. Elliott, D.C., 72 F.Supp. 790, affirmed Pennsylvania Casualty Co. v. McCoy, 5 Cir., 167 F. 2d 132. There the insurance policy contained an endorsement which provided that the regular and frequent use of the truck was to be confined to the territory within a 500 mile radius of the limits of the city or town of principal garaging. The truck was garaged at Laurel, Delaware. It was involved in a collision in Florida, more than 500 miles from Laurel. The truck had made two trips to Florida within the preceding six weeks and was on its last trip for that season when the accident occurred. The court held that this was a limited use beyond the 500 mile radius and did not void the policy.

In the case of Bruins v. Anderson, 73 S.D. 620, 47 N.W.2d 493, the Supreme Court of South Dakota held that where the truck in question was engaged in trips over the mileage limit specified in the insurance policy for about 10% of its total trips this was not enough to constitute a frequent use so as to relieve the insurer from liability.

Our decision turns on the meaning of the word “frequent” as it is apparent that the use by the appellant of his truck beyond the 150 mile radius does not come within the meaning of the word “regular.” In making our decision we have in mind the fact that, although the trucks were only used 22% of the time between the issuance of the policy and the date of the accident on trips over the 150 mile limit, the frequency of the trips was increasing with each month and in the month during which the accident occurred amounted to almost 42% of the total.

Webster’s New International Dictionary, second edition, gives the following definition of the word “frequent”:' “Often to be met with, happening at short intervals, often repeated or occurring ‘as frequent visits.’ ” It appears to us that 23 trips occurring within a period of 4 months and 10 days constitute happenings at short intervals. Certainly 5 trips within 12 days would come within this definition.

We are mindful of the rule that where there, is any doubt or ambiguity in the meaning of an insurance policy, it should be liberally construed in favor of the insured and any doubt then resolved against the insurer. As a corollary to that rule, however, the courts cannot make a different insurance contract for the parties by enlarging the risks contrary to the natural and obvious meaning of the existing contract. We do not believe that the parties to this contract intended that the insured should be making frequent trips of more than twice the radius covered by the contract.

We come now to the appellant’s second contention which is to the effect that even if the policy did not cover the loss in question the insurance company is estopped, to rely upon the 150 mile clause contained', in the endorsement because of the fact that. its insurance agents, Mr. Sams and Mr. Hughes, had knowledge of the operations of. the appellant.

The proof falls far short of showing that'* Mr. Sams, the agent who issued the policy-for the appellees, knew the exact operations: of the appellant. All that he knew was that: occasionally appellant would go beyond the 150 mile radius of operation. Such knowledge is not sufficient to bring him within the principle of law that an insurance company accepting an insured’s payment of premium and knowing facts rendering the policy void is estopped to say that the policy is-not operative. See Glens Falls Insurance-Company v. Elliott, 223 Ky. 205, 3 S.W.2d 219.

As far as Mr. Hughes is concerned, he-was not an agent for the appellee insurance company and had no authority to waive any provisions of the policy on its behalf.. Moreover, the most that can be said for his-testimony is that he knew that there was-an occasional trip by the appellant beyond’ the 150 mile radius.

It is our opinion that the judgment should be affirmed.

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


author: MOREMEN, Judge.

text:
    Winfred Eugene LAMBERT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.
    Rehearing Denied April 17, 1964.
    E. Lawson King, Lexington, for appel-lánt.
    John B. Breckinridge, Atty. Gen., David Murrell, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

Appellant, Eugene Lambert, was indicted for murder, found guilty of voluntary manslaughter, and sentenced to twenty-one years’ imprisonment. Instructions were given on murder, voluntary manslaughter, self-defense, reasonable doubt as to guilt, and reasonable doubt as to the degree of the offense.

Appellant contends that the trial court committed reversible error by failing to submit to the jury an instruction on involuntary manslaughter under KRS 435.022 which became effective a few days before the alleged offense occurred.

The propriety of the instructions can be tested only by the evidence adduced below which is substantially as follows. About three.o’clock in the afternoon Lambert was arrested, for the offense of being dr.unk in a public place and-was taken to the Lexington city jail. He was placed in a cell block. It appears that the doors to the various cells were open and the prisoners were free to move about in the entire area. Also incarcerated was Andrew Smith. In about two hours after Lambert was put in jail, he became involved in a fracas with Smith over cigarettes, but the first threat of violence seems to have come from Smith when he threatened to cut off appellant’s head. According to appellant’s version of the encounter he made every effort to avoid the controversy and walked away from Smith to the other end of the cell block, but when he arrived there he found that Smith had followed him and continued his threats to cut him. He stated that he begged others to help and that things quieted down for a few minutes. He retreated even further to the shower room, but Smith followed and again repeated his threats. Then Smith approached the appellant and cut him with a knife. The cut seems to have been severe. It extended from a point below his ear to the edge of his lips. He bled copiously. He said he became dizzy and felt as though he were about to "pass out” and that he had to grab the bars to hold himself up. He •started to the front of the jail in order to ■get help from the guard. Although he had to pass Smith’s cell to get there, he believed that Smith was not going to bother him anymore because "he had already done his job.” When he went past Smith’s cell, Smith came out and said he was going to finish cutting his head off and started toward him. As to what then occurred, Lambert stated:

“He started towards me and whenever he got close enough I remember hitting him, and I hit him, I think he hit the bars here or something, and I •did kick him. I remember that much of it. From that point on I don’t remember anything until I was at the hospital getting sewed up. I turned my head around like that, and there was a nurse turned my head around, said ‘we have just got about three more stitches to put in, turn your head around,”’

The Commonwealth produced, among other witnesses, Arthur Begley who had been in the city jail at the time of the encounter and who witnessed the original scuffle between the two men. He was not sure who was the aggressor at that time, but he did say that Smith cut appellant with a knife. He stated that afterwards they were all walking back and forth along the walkway and Smith was standing in the doorway of the cell when Lambert walked by. He does not know who started the second argument, but he saw this:

“Well, Mr. Lambert knocked this Smith down and he fell, and he kicked him, his head hit the bars and I don’t know whether it knocked him out right then or not, but he kicked him several times and he was knocked out.”

On further examination the witness stated that Lambert for a time kicked and “stomped” Smith.

A police officer testified that he saw Lambert kick Smith. There was also testimony that he kicked Smith again when the police were loading him into the ambulance outside the jail.

Prior to the enactment of KRS 435.022, which became effective June 14, 1962, this state did not have a statute that defined the crime of involuntary manslaughter, and neither did it have a specific statute that fixed the punishment for the offense. The general statute (KRS 431.075), which provided penalties for common law offenses not otherwise provided by statute, applied. Therefore, for the common law offense of involuntary manslaughter a person could be imprisoned in the county jail for a term not exceeding twelve months or fined a sum not exceeding five thousand dollars or both; in short, involuntary manslaughter was a misdemeanor. The question as to when an involuntary manslaughter instruction should be given has caused considerable discussion in the opinions. Generally the conclusion has been that each case must be judged upon its individual facts. In Maulding v. Commonwealth; 172 Ky. 370, 189 S. W. 251, where the facts were such that there was little doubt that the accused intended to kill his victim, this was said:

“In this case there is no question made that Maulding did not kill Nickols, and the undisputed facts show that he beat and bruised and mashed his head and face in such a brutal and horrible manner as to leave no room to doubt that he did intend to kill him. Under these circumstances it would be travesty on justice for this court to say that an instruction should have been given, telling the jury that they might punish Maulding by a mere fine and imprisonment if they believed he did not intend to kill Nickols.
“We can, of course, well understand how a case might arise in which an instruction on the subject of involuntary manslaughter should be given. We can easily suppose a case in which a man might, in a fit of anger, strike another with his fist, or kick him without any intention of killing him, although the man struck or kicked might die from the effects of the blow. In such a state of case, if the facts and surrounding circumstances reasonably showed a lack of intention to kill, an instruction on the subject of involuntary manslaughter would be proper. * * * But where the killing is done in such manner and under such circumstances as to exclude the idea that it was not intended to kill, the crime falls under the definition of murder or of voluntary manslaughter, as the case may be, and no instruction on the subject of involuntary manslaughter should be given.”

Under the circumstances of this case — where, according to appellant’s theory of the case, there was extreme aggravation, where appellant was suffering from the effects of alcohol, where he was cut and bleeding and in a state of shock— we are of opinion that an instruction on involuntary manslaughter, even under the law as it existed before the new statute, was necessary. The new statute, which for the first time divides involuntary manslaughter into two degrees of the crime and makes-the first degree a felony, requires some-comment. The statute (KRS 435.022) provides :

“(1) Any person who causes the death of a human being by an act creating such extreme risk of death or great bodily injury as to manifest a wanton indifference to the value of human life according to the standard of conduct of a reasonable man under the circumstances shall be guilty of involuntary manslaughter in the first degree and shall be confined in the penitentiary for not less than one nor more-than fifteen years.
“(2) Any person who causes the death of a human being by reckless conduct according to the standard of conduct of a reasonable man under the circumstances shall be guilty of involuntary manslaughter in the second degree and shall be imprisoned in the county jail for a term not exceeding twelve months or fined a sum not exceeding five thousand dollars or both.”

Formerly, in connection with “negligent”' manslaughter where the action of the accused was such that his conduct might properly be designated as being wanton or reckless, it has been held that such conduct was sufficient to require an instruction on voluntary manslaughter. From the very nature of the act was presumed the intent to kill. The intent to kill was the gravamen of the offense which could be deduced from the acts of the accused or founded upon his reckless or wanton disregard for the safety of human life. Kearns v. Commonwealth, 243 Ky. 745, 49 S.W.2d 1009.

As we have said, the words “wanton” and “reckless” have been used to define conduct which could result in a conviction of voluntary manslaughter. This new statute now uses these same words to define involuntary manslaughter.

This seemingly hopeless contradiction is explicable. The words “wanton” and “reckless” were used in connection with a narrow line of voluntary manslaughter cases — those in which an element of negligence was present. An example is Marye v. Commonwealth, Ky., 240 S.W.2d 852. In that case the general statement was made

“It is our view that instructions in voluntary manslaughter cases should require a finding of reckless and wanton conduct, and instructions in involuntary manslaughter cases should require a finding of gross negligence in order to authorize a conviction.”

That statement was not true as a general rule. It was applicable only to the “negligent voluntary .manslaughter,” a crime which Professor Roy Moreland has long .attacked as “impossible” because of its contradiction in terms.

Doubtless the intention of the draft•ers of the new involuntary manslaughter statute was to abolish this “impossible” crime and to replace it" with the crime of first degree involuntary " manslaughter. Therefore, there is no longer any need to use the words “reckless” and “wanton” to describe the crime of voluntary manslaughter and they shall be used exclusively in defining involuntary manslaughter.

The words do not have a generally accepted and clear-cut meaning. Some indication of their vagueness may be found in the fact that in “Words and Phrases,” about seventy-two pages are necessary to summarize the cases dealing with, the definitions of “wanton”; “reckless? consumes about forty-six pages. It is plain from the wording of KRS 435.022 that the .legislature had in mind .two degrees of. punishment for separate , and distinct acts: one was made felony, and the ■other misdemeanor. We are required, •therefore, to give definitions for two words .as used in this statute. A wanton act is a -wrongful act done on purpose in complete disregard of the rights of others. The actor must have conscious knowledge of the probable consequences and a complete disregard for them. Reckless conduct displays an indifference to the rights of others and an indifference as to whether wrong or injury will result from the act done. Recklessness involves thoughtlessness while wanton conduct involves actual knowledge of the probable result and complete disregard for those results.

Under the evidence and appellant’s theory of defense, he was entitled to instructions on both phases of involuntary manslaughter.

Judgment reversed.