author: STEINFELD, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Earl ROBBINS et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 1, 1967.

      Robert Matthews, Atty. Gen., H. C.' Smith, Asst. Atty. Gen., Dept, of Highways, Frankfort, Carl T. Miller, Jr., Jackson, for appellant.
    Hunter M. Shumate, Shumate & Flaherty, M. V. Mainous, Irvine, for appellees.
   STEINFELD, Judge.

This is an action to recover damages for wrongfully causing water to collect on ap-pellees’ land. From a judgment awarding the claimants $4,500.00 the Commonwealth, Department of Highways appeals. We affirm.

Earl and Nancy Robbins (whom we will refer to as Robbins) own a lot on Main Street in Irvine, Kentucky. Formerly it was 400 feet deep and 75 feet wide. In 1963 for the construction of a highway the Commonwealth, through its Department of Highways, condemned the rear 15 to 18 feet of that lot. An agreed order settled “the case for the sum of $600.00 paid as consideration for the property taken.”, and directed the master commissioner to execute a deed conveying the title to the Commonwealth in fee simple. A deed was prepared and approved by the attorneys for the litigants, which “deed recited the consideration to be $600.00 to the defendants for the land taken * * *, and for all other damages both present and prospective, * * * ”.

About two years later Robbins brought the present action against the Department of Highways in which they claimed that in constructing the highway “it wrongfully and contrary to law, through its drains caused an increase in the natural flow of water on their premises * * * ” to their damage “in the amount of $20,000.00”. They also contended that to the extent of the damage claimed “they have been deprived of their property without due process of law under the United States and Kentucky Constitutions.”

In addition to denying all allegations of the complaint, the Department’s answer stated that the complaint did not state a cause of action, that the Commissioner’s deed estopped the Robbins from proceeding, that the statute of limitations was a bar, and that if the property was damaged it was on account of an act of God, an unprecedented rain.

Before trial the Department moved for judgment on the pleadings (CR 12.03) which motion was overruled. With leave, Robbins filed an amended complaint in which they alleged that the Department had “carelessly and negligently constructed the highway * * * by gathering all of the water on an adjacent hillside for a distance of approximately 560 feet in conveying same to the premises of the plaintiffs by constructing a culvert on said highway * * *. The plans and specifications for construction of said highway were never exhibited to the plaintiffs and the plaintiffs had no knowledge of said plans and specifications.”

In moving for judgment on the pleadings the Department admitted (for the purpose of the motion) the truth of the allegations in the complaint and the amendment. Archer v. Citizens Fidelity Bank and Trust Co., Ky., 365 S.W.2d 727 (1963).

The first claim of error is that the motion for judgment on the pleadings should have been sustained. The Department says that “Appellees did not file a reply denying” the allegations of the answer which stated that Robbins “were estopped by deed from maintaining this action.” No reply was necessary. CR 7.01. The aver-ments of the answer stood denied. CR 8.04.

The Department argues that the agreed order and commissioner’s deed had been filed as exhibits and that these proved that Robbins were estopped. The Department relies on Meyer v. Jefferson County, Ky., 305 S.W.2d 536 (1957). There the claim was for closing the road and changing the grade but Meyer admitted that the plans and specifications were followed. Here Robbins testified that he had never seen the plans and specifications, and he sues for negligence and for a taking of his property (reverse condemnation). The Department argues that “as far back * * * Breathitt County v. Hudson, 265 Ky. 21, 95 S.W.2d 1132 (1936) * * * this Court has held that the grantor is not entitled to additional compensation for consequential injury to his property from the construction of a highway in accordance with the published plans.” Hudson forbids “recovery for consequential injury * * *, such as hindering ingress and egress because of the elevation or depression of the highway, or the loss of use of rents or profits of the land, or fencing, or any other damage arising from the proper, prudent and good-faith exercise of the right to put the land conveyed to the intended use.” The action before us is not of the type in Meyer or Hudson.

Other cases cited by the Department do not persuade us that this action is not governed by Commonwealth v. Litteral et al., Ky., 319 S.W.2d 458 (1959) wherein we said: “We think the element of reasonable anticipation or foreseeability must enter into the determination of what is ‘consequential injury’.” Counsel for the Department does not argue that Robbins should have foreseen that the taking of the strip off the rear of their lot for the construction of the highway would result in the constant inundation of the remainder of their land. Robbins gave no such authorization and the Commonwealth obtained no easement to use the remainder of their land for that purpose.

Commonwealth v. Davidson et al., Ky., 383 S.W.2d 346 (1964) relied on by the Commonwealth is not in point. In that case we said: “Thus, there has been no taking, destruction, or injury to the Davidsons’ property other than authorized by the deeds * * *.” Recovery for water damage has been allowed against the Commonwealth. Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695 (1951); Department of Highways v. Corey, Ky., 247 S.W.2d 389 (1952) ; Commonwealth v. Smith, Ky., 388 S.W.2d 362 (1965). The Department was not entitled to judgment on the pleadings. Spencer v. Woods, Ky., 282 S.W.2d 851 (1955), 7 Kentucky Practice, Clay 203.

The issues were tried and the jury reached a verdict that the claimants should recover $4,500.00. After overruling a motion for a new trial the court entered judgment in accordance with the verdict.

Robbins testified that the highway was constructed along a hillside down to and past Robbins’ property, that the only provision for water is a ditch that runs from the mountain along the highway to back of their property and turns into a culvert constructed when the highway was built, which culvert opens onto the Robbins’ property. He said the ditch catches all the water flowing off the mountain and all the property below for a distance of about 575 feet. The following is quoted from his testimony:

“Q. 16 Is the culvert on your property?
A. Yes, sir, it is on my property or it opens on to my property.
Q. 17 Where did this water go before this ditch was constructed there ?
A. The water was spreading evenly on the backs of all the property I named a while ago. It came off the hillside of the mountain and on to these people’s back yards and was distributed more evenly there.
Q. 19 Tell whether or not more water is dumped on your property there after the construction of this highway than there was before?
A. Yes, sir, and you don’t have to be an engineer to see that. Anyone can look and tell more water is being moved on me than there was before.
Q. 20 Does that water empty on to your property by a culvert constructed by the highway?
A. It does.
Q. 21 Then where does it run?
A. It runs in a ditch between my property and the Christian Church property, the parsonage, down to the rear of my house and it all drains down in my back yard.
Q. 22 State whether or not you had any trouble with the water before this highway was constructed ?
A. I never had no water problem at all before that I know of.
Q. 23 What was the condition of your basement there before this construction was done?
A. My basement was dry.
Q. 25 What had been the result of the water since the highway was built, in regard to your property?
A. Everytime I have a good rain the water stands in my back yard and mud settles under my house and in my yard and the underpinning is wet all the time and our lot is wet and there is no cure for it under the present circumstances. The property there stays wet and it was never wet before that I know of.”

Others testified that a little rain causes water to collect in the yard to a depth of 12 to 14 inches where it sometimes stands for weeks, which condition did not exist before the construction. Robbins admitted that his land is lower than surrounding land and that long before the highway was built a drain was installed to carry water away from his land.

At the close of all proof for Robbins the Department moved for a directed verdict (CR 50.01) “because Plaintiff has failed to show * * * that the * * * Department has caused damage by any qualified or expert witness; * * * (that) they haven’t shown this is not caused by the drains being stopped up or by an act of God or excessive rains; (that) the Department * * * is the cause of the water standing there. They haven’t produced any evidence of probative value that would support a verdict that the * * * Department * * * is responsible for the wetness there.”

The court overruled the motion. The Department relies on Louisville Hydro-Electric Company v. Coburn, 270 Ky. 624, 110 S.W.2d 445 (1937). There the claimant asserted that a river dam or embankment was neligently constructed in that culverts or openings should have been constructed through which water could have escaped. We held that this was “a technical engineering problem, and only one possessing expert knowledge of the subject could express an intelligent opinion as to the proper method of constructing the dam * * *

We have held that for a proper understanding of that which requires scientific or specialized knowledge and which cannot be determined intelligently from testimony on the basis of ordinary knowledge gained in the ordinary affairs of life, expert testimony is needed. Louisville & N. R. Co. v. Conn, 179 Ky. 478, 200 S.W. 952 (1918). However, “a party is not necessarily required to resort to expert opinion testimony merely because his case involves matters of science, special skill, special learning, knowledge, or experience which may be difficult of comprehension of jurors.” 31 Am.Jur.2d 514, Expert and Opinion Evidence, Sec. 19. In Salem v. United States Lines Co., 370 U.S. 31, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962) the rule was stated:

“This is not one of the rare causes of action in which the law predicates recovery upon expert testimony. See Wig-more, Evidence (3d ed. 1940), §§ 2090, 2090a. Rather, the general rule is as stated by Mr. Justice Van Devanter, when circuit judge, that expert testimony not only is unnecessary but indeed may properly be excluded in the discretion of the trial judge ‘if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation * * * ’ United States Smelting Co. v. Parry, 10 Cir., 166 F. 407, 411, 415. Furthermore, the trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous. Spring Co. v. Edgar, 99 U.S. 645, 658, 25 L.Ed. 487, [490].”

It is our opinion that the testimony of an “expert” was not essential. 32 C.J.S. Evidence § 569(1) e, p. 612.

There was sufficient evidence of probative value for the jury to find that the Department without right had created on Robbins’ land the condition of which they complained and that had not theretofore existed.

The Department also argues that in addition to there being no expert testimony there were “numerous admissions which were damaging to appellees’ case”. It argues that Robbins having admitted and others having stated that the back yard was lower than any of the surrounding property Robbins may not recover. This testimony had evidential value but was not conclusive. Bringardner v. Knuckles, 269 Ky. 567, 108 S.W.2d 511 (1937). It was for the jury to consider. Carroll v. Maywood, 331 F.2d 303, (CCA 6) (1964).

Here surface water is unreasonably diverted from its natural course of drainage, and is cast upon land on to which that surface water had not previously flowed, therefore, the person or persons causing the diversion are liable for resulting damage. Grinstead v. Sanders, 56 S.W. 665, 22 Ky. Law Rep. 51 (1900); Wharton v. Barber, 188 Ky. 57, 221 S.W. 499 (1920). In Pickerill v. City of Louisville, 125 Ky. 213, 100 S.W. 873, 30 Ky.Law Rep. 1239 (1907) we held that the owner of upper ground “cannot by making excavations or fills on his own land so obstruct the natural channels thereon as to discharge in unusual and hurtful quantities the surface water on the land of the adjoining proprietor.” In Rutherford v. L & N Railroad Company, Ky., 243 S.W.2d 1017 (1951) we said liability exists:

“ * * * if the latter unreasonably changes the natural course of the water or causes it to collect and be cast upon the lower estate in unnatural volume or in an unusual or swift stream, or if he diverts water from the ordinary channels and casts it upon a lower estate at a point which would not have been its natural destination; or if he collects in one channel waters usually flowing onto his neighbor’s land by several channels and thereby increases the flow on the lower ground. 56 Am.Jur., Waters, Section 71; Stone v. Ashurst, 285 Ky. 687, 149 S.W.2d 4; Gott v. Franklin, 307 Ky. 466, 211 S.W.2d 680.”

For other cases discussing these and similar principles see Louisville & N. R. Co. v. Stephens, 188 Ky. 1, 220 S.W. 746 (1920); Steinke v. North Vernon Lumber Co., 190 Ky. 231, 227 S.W. 274 (1921); Stone v. Ashurst, 285 Ky. 687, 149 S.W.2d 4 (1941); Gott v. Franklin, 307 Ky. 466, 211 S.W.2d 680 (1948); Wallace v. Schneider, 310 Ky. 17, 219 S.W.2d 977 (1949); Louisville & N. R. Co. v. Bush, Ky., 336 S.W.2d 578 (1960); Com., Dept. of Highways v. Roundtree, Ky., 372 S.W.2d 804 (1963) and Cissell v. Grimes Investments, Inc., Ky., 383 S.W.2d 128 (1964).

It is contended that the verdict of $4,500.00 is excessive. Robbins paid $9,000.00 for the property in 1963. A real estate broker stated that the value of property had gone up and that before the highway was constructed the Robbins’ property was worth $12,000.00 but that “with the water conditions that resulted from the construction of the highway” the value was reduced fifty percent, about $6,000.00. The Department presented a witness who had appraised the Robbins’ property before the suit was filed to acquire the strip off of the rear for construction of the highway. He said that the worth was then $10,500.00; that the construction of the highway had enhanced the value to $12,500.00 but he was not asked if there was water on the land when he saw it or if he had ever seen water there. The real estate is of substantial value. “The measure of damages is the same as in condemnation cases.” A. V. Witbeck v. Big River Rural Elec. Coop. Corp., Ky., 412 S.W.2d 265 (1967). We are unable to conclude at “first blush” that the verdict is excessive, and that is the test. Cole & Crane v. May, 185 Ky. 135, 214 S.W. 885 (1919); Consolidated Coach Corp. v. Hopkins, 228 Ky. 184, 14 S.W.2d 768 (1929); Dinsmore v. Baird, Ky., 325 S.W.2d 308 (1959).

In its reply brief, for the first time the Department argues that the action was not properly brought in the circuit court but should have been instituted before the Board of Claims. KRS 44.070. At no time in the trial court did the Department ever question the jurisdiction either by pleading or motion. Generally we will not consider matters not raised in the circuit court but we deem it appropriate to state that in Com., Dept. of Highways v. Gisborne, Ky., 391 S.W.2d 714 (1965) we said:

“Therefore, since we conclude this was a condemnation proceeding in essence, or the acts of the Department constituted what is sometimes called a condemnation in reverse, the proper forum for court action was in the county where the land lay, namely, in Hardin County. See KRS 177.082.”

The other defenses raised in the answer were not asserted in this court.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: MONTGOMERY, Judge. OSBORNE, Judge

license: Public Domain

text:
    Rosa GROSS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 1, 1967.
    J. B. Johnson, J. B. Johnson, Jr., Wil-liamsburg, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for appel-lee.
   MONTGOMERY, Judge.

Rosa Gross was convicted of failing to yield a telephone party line for an emergency call in violation of KRS 438.170. She was fined $100. Appellant contends that no offense was committed under the statute and that her motion for a directed verdict should have been sustained.

The prosecuting witness, Gus Alsip, and Rosa Gross, the appellant, live on the Bee Creek Road, sixteen to twenty miles from Corbin. They live about three miles apart. There are two telephone lines serving the community. Alsip and Boyd Littrell are users of one party line; Rosa Gross is a user of the other party line.

On June 26, 1966, the condition of Alsip’s wife, who had been suffering from a cancer, became critical. Alsip sought to use the telephone line to summon an ambulance. At the time appellant was making use of the party lines by talking to Boyd Littrell about fixing her plumbing.

Alsip’s version of what happened follows:

“I got on the telephone and I said, ‘Hang up, Boyd, this is an emergency.’ He said, ‘All right.’ Mrs. Gross continued to stay on the telephone for some ten minutes. I didn’t look to see what time it was— maybe it was a little more or a little less. Anyhow she commenced with a lot of fool questions, asking me what emergency it was and what authority I had to give her to hang her telephone up; she was twenty-one and a teacher. My daughter came to the phone and she said, ‘It’s my mother and she’s dying. Please hang up.’ I don’t know what Mrs. Gross said brck to her. Anyhow, I said, ‘Are you still on the phone?’ She said, ‘Yes, how does that grab you ?’ * * * When she wouldn’t give me the line, my daughter came to the telephone and told her who it was, what her mother’s name was, and she said, ‘Please give us the telephone, Mrs. Gross.’ Evidently she told her she would when she got ready because my daughter told her that wasn’t no way for her to act, holding the line and her mother dying. I got the phone and I said, ‘Are you still on there, Rosie?’ She said, ‘Yes, how does that grab you,’ and I hung the receiver up, and we were getting blankets to wrap her up to take her to the hospital in the car.”

Alsip’s testimony was corroborated by the testimony of his daughter and in part by the testimony of two of appellant’s witnesses.

Finally, Alsip was able to summon an ambulance, which arrived about the time his wife died.

Appellant testified that the conversation lasted about a minute. She also sought to excuse her conduct by showing that Alsip could have hung up the telephone which would have automatically disconnected appellant’s line in twenty seconds. There was no showing that Alsip knew of this method of obtaining the line, and it is immaterial since it is appellant’s conduct that is in question.

Appellant’s motion for a directed verdict made at the close of the testimony for the prosecution, and renewed at the close of all of the testimony, was denied. The basis of the motion was that her conduct did not constitute a violation of the statute.

In question is the construction of an Act entitled “An Act relating to emergency telephone communications.” It was passed in 1962 and is referred to as KRS 438.160-190. KRS 438.160 defines “party line” and “emergency” as follows:

“(1) ‘Party line’ means a subscriber’s line telephone circuit, consisting of two or more main telephone stations connected therewith, each station with a distinctive ring or telephone number.
“(2) ‘Emergency’ means a situation in which property or human life is in jeopardy and the prompt summoning of aid is essential.”

KRS 438.170, under which appellant was prosecuted, provides a penalty for “Any person who wilfully refuses to yield or surrender the use of a party line to another person for the purpose of permitting such other person to report a fire or summon police, medical or other aid in case of emergency, * * KRS 438.180 provides a penalty for anyone making a false representation of an emergency.

It is admitted that appellant and Alsip were using party lines. It is not considered material that they were on different party lines. When Alsip requested use of the party line to summon the ambulance, Littrell immediately yielded the line. Appellant refused to yield, and sought an explanation satisfactory to her that an emergency existed. It is evident from the statute that such conduct is expressly condemned. If the party using the line has to be convinced that there is an emergency, it may be too late by the time the party is convinced of the emergency. It is recalled that Alsip’s wife died before the ambulance arrived.

By providing a penalty for anyone making a false representation of an emergency, it is clear that the General Assembly intended that a line should be surrendered immediately upon statement of emergency without further ado. This is the only construction that gives the Act any meaning. Under the facts presented here, there is no problem in saying that the testimony for the prosecution was sufficient and that the motion for a directed verdict was correctly overruled.

Appellant also argues that the trial court erred in refusing to permit cross-examination of Alsip concerning his statements to the effect that he would sue appellant and concerning her ownership of two or three farms. The court admonished the jury that such statements were incompetent and could have been competent only to rebut or contradict statements made by Alsip. Appellant contends that such statements show the motive for the prosecution.

From reading the testimony, there seems to have been some question as to whether Alsip had said “that he was going to see what he could do about putting a $10,000.00 bond under Rosa Gross” or that he would sue her for $10,000. At any rate, Linda Young was permitted to testify that Alsip had said “that he was going to sue Mrs. Gross for $10,000.00.” Since appellant had benefit of this statement and Alsip had explained it, the error, if any, is considered harmless and is not reversible.

Judgment affirmed.

WILLIAMS, C. J., and HILL, MILLI-KEN, PALMORE and STEINFELD, JJ., concur.

OSBORNE, J., dissents.

OSBORNE, Judge

(dissenting).

I dissent from the majority opinion herein because I believe the statute KRS 438.160 only applies to persons on a common-party line, in situations where one party has it within his power to completely block an-others use of the line. In the present case, the Appellant could not block nor preclude Mr. Alsip’s use of the line as she was not on the same line with him. If he had hung up his phone momentarily a cut off built into the system would have switched her out of the line, thereby clearing his line for all other calls. So, what was actually preventing Mr. Alsip from making a call was not the appellant but Mr. Alsip’s ignorance of the system. To criminally punish one person for the ignorance of another hardly squares with the American concept of justice in my opinion.

For this reason, I dissent.


author: PER CURIAM.

text:
    KENTUCKY STATE BAR ASSOCIATION, Complainant, v. W. W. KELLY, Respondent.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.
    Paul E. Braden, Frankfort, for complainant.
    Joe E. Caylor, Somerset, for respondent.
   PER CURIAM.

The Kentucky State Bar Association complains that W. W. Kelly, a layman who has never been admitted to the practice of law, has engaged in unauthorized practice of law by preparing a written contract to which he was not a party. KRS 30.170, RCA 3.020.

Pursuant to RCA 3.530, the complaint was referred to Honorable L. T. Grant, a regular judge of the Fayette Circuit Court, to sit as special commissioner to hear evidence in the premises and make recommendations to this court as to the disposition of the matter.

It was shown without contradiction that the respondent typed a contract relating to sale of property between two citizens of Somerset. The respondent was not a party to the contract. He was paid $2.00 by each of the parties for his work. The respondent insists that he acted merely as an amanuensis and in no sense did he prepare the contract between the parties.

One of the parties to the contract had subscribed a written affidavit asserting that the respondent did prepare the contract, but at the hearing, he recanted and claimed that he and the other contracting party dictated the contract to the respondent. The witness who gave this evidence admitted that he could neither read nor write. The special commissioner found incredible the evidence presented by the illiterate contracting party. Upon a review of the evidence we are not persuaded that the special commissioner’s findings are clearly erroneous, but on the contrary, we find them abundantly supported by the record. Carter v. Trevathen, Ky., 309 S.W.2d 746.

The special commissioner made recommendations that the respondent be found guilty of contempt of court for the unauthorized practice of law, that the respondent be enjoined from engaging in the practice of law in the future, that respondent be fined the sum of $50.00, and that he be required to pay the costs of this action.

The recommendations of the special commissioner are approved, and it is ordered that the respondent, W. W. Kelly, be, and he is found guilty of contempt of court for the unauthorized practice of law, is enjoined from engaging in the practice of law in the future, is fined the sum of $50.00, and shall pay the costs of this action.

All concur.


author: CULLEN, Commissioner. STEINFELD, Judge.

text:
    Elmer Leo SIDEBOTTOM et al., Appellants, v. Robert Edgar MITCHELL, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.
    Raymond C. Arny, Louisville, for appellants.
    Gordon B. Winburn, Louisville, for appel-lee.
   CULLEN, Commissioner.

Nora S. Sidebottom and her present husband, Elmer Leo Sidebottom, brought this common law action against Nora’s former husband, Robert Edgar Mitchell, seeking to recover $13,860 which Nora with some contribution from Elmer allegedly had expended during the period from March 15, 1954 to September 3, 1966, in supporting and maintaining Nora’s and Robert’s two minor children. After a trial the court entered judgment dismissing the complaint. Nora and Elmer have appealed.

Nora and Robert were married prior to 1947. Two children were born to them, one in 1947 and the other in 1952. On March 17, 1954, according to the undenied allegation of the complaint, Robert deserted Nora and the children. On May 3, 1962, Nora obtained a divorce from Robert, on constructive service. On July 13, 1963, Nora married Elmer Sidebottom. In January 1964 Nora and Elmer instituted proceedings in the juvenile court to compel Robert to contribute towards the support of his children, and an order was entered in that court directing Robert to pay $30 per week. According to the allegations of the complaint Robert paid a total of $1,265 under this order during 1964 but only paid $290 in 1965, and thereafter defaulted. The instant action was brought on September 8, 1966.

The divorce judgment in 1962, having been entered upon constructive service, made no provision for maintenance of the children, but recited that the question of maintenance was “reserved.” Nora and Elmer, in their pleadings and proof, asserted that Nora had supported the children from March 15, 1954 to the date of her remarriage in 1963, and thereafter Nora and Elmer jointly had supported them; that the cost of the support was $25 per week and that Robert had never contributed anything other than the payments he made under the juvenile court order.

Robert’s answer in this action consisted only of a general denial; he did not plead estoppel, res judicata, limitations, waiver, election of remedies, or any affirmative defense. On the trial he attempted to assert the defense that Nora, back in 1954, had agreed that she would support the children herself if he would not seek visitation privileges. However, the trial court ruled that this defense was not available because it had not been pleaded.

The trial court, in a written opinion, stated three reasons for dismissing the action. The first was that “Plaintiffs having elected to proceed through the Juvenile Court, they cannot now bring a new action in this Court for monies advanced by them for the maintenance of these children.” The second was that the plaintiffs were guilty of laches. The third was that relief should have been sought by amended complaint in the divorce action.

We are not convinced that any of the reasons relied on by the circuit court is wholly valid, but we believe that the right result was reached for the reasons hereinafter stated.

The rule in this jurisdiction, as set forth in Waters v. Waters, Ky., 251 S.W.2d 580, and in Parks v. Parks, 209 Ky. 127, 272 S.W. 419, appears to be that ordinarily, absent exceptional circumstances, when a couple with minor children are separated, either without a divorce or under a divorce judgment which has made no provision concerning child support, if the wife desires to compel the husband to carry his primary burden (as between them) of supporting the children, she must obtain a court order (ordinarily in the divorce court) directing what payments he shall make, and if she does not obtain such an order she cannot recover from him for expenditures made by her for the support of the children, except expenditures for such period of time during which an order could not have been obtained because the husband was beyond' reach of process. While this does not seem to be the prevailing rule in other jurisdictions, see Annotation, 69 A.L.R.2d 203, at 244, we are not convinced that we should, depart from it in this case.

The evidence in the instant case is that Robert, though a traveling entertainer, came back on frequent occasions into the county in which Nora lived, and could have been served with process soon after the separation in 1954. Therefore,, under the rule above stated, Nora is not entitled to recover from him now for the expenditures she made. We think also that Elmer is in no better position, absent any showing that the reason he made expenditures for the support of the children was that Nora was unable to. See Parks v. Parks, 209 Ky. 127, 272 S.W. 419.

The decision of the case does not rest on the invoking of an affirmative defense, but simply on failure of the plaintiffs to establish a valid claim to relief. Accordingly, it is not significant that the defendant did not plead any affirmative defenses. See CR 8.03.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY, PALMORE and STEINFELD, JJ., concur.

SEPARATE CONCURRING OPINION

STEINFELD, Judge.

I concur in the result but respectfully disagree with the statement in the opinion which is:

“We are not convinced that any of the reasons relied on by the circuit court is wholly valid * * *

One of the reasons was “that relief should have been sought by amended complaint in the divorce action”. My judgment is that this is a valid reason for dismissing the complaint (at least without prejudice) since the relief sought was to recover on a claim in the same court which previously had carefully reserved the adjudication of that claim.

I consider the circumstances here distinguishable from the complications involved in Martin et al. v. Turner, Ky., 115 S.W. 833 (1909).

Our policy is to avoid a multiplicity of actions. Roy v. Roy et al., 246 Ky. 36, 54 S.W.2d 362 (1932). We do not permit a claimant to split his cause of action. Cassidy v. Berkovitz, 169 Ky. 785, 185 S.W. 129 (1916); McDonald v. Equitable Life Assur. Soc., 269 Ky. 549, 108 S.W.2d 184 (1937) ; Nat’l Bond & Inv. Co. v. Withorn, 281 Ky. 318, 136 S.W.2d 40 (1940). We now encourage the, joinder of claims in one action CR 18.01. Leimer v. Woods, C.A.8, 196 F.2d 828 (1952). “There should be one action only to settle the rights of the parties, when all rights can be properly determined in a single action.” Colson v. Pelgram, 259 N.Y. 370, 182 N.E. 19 (1932).

I consider the new suit a vexatious type of litigation since it is a second action between the same parties based on the same cause. 1 C.J.S. Actions § 21, p. 1062. Dismissal for that reason was proper.


author: EDWARD P. HILL, Judge.

text:
    CARSON PARK RIDING CLUB et al., Appellants, v. The FRIENDLY HOME FOR CHILDREN, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.

      William B. Byrd, James G. Wheeler, James G. Apple, Wheeler, Marshall & Manchester, David R. Reed, Reed & Scent, Pa-ducah, for appellants.
    Richard C. Roberts, Waller, Threlkeld, & Whitlow, T. S. Waller, Paducah, for appel-lee.
   EDWARD P. HILL, Judge.

This is an appeal by plaintiffs and certain intervening plaintiffs from a judgment dismissing their complaints on the pleadings on defendant’s motion.

In 1937 a deed was delivered to and accepted by McCracken County for a 30-acre tract of land located in the city of Paducah. The purchase price of the tract was donated by Luther F. Carson and Lola B. Carson. The deed contained this provision:

“Said property is to be known as Luther Carson Park and is to be used for a Fair Grounds for holding County Fairs, exhibits of livestock, and farm products, and for the training, exercising, exhibiting and racing of the light breeds of horses and ponies, and for horse shows * * *. In the event that the property shall cease to be used for the purposes set out above or shall cease to be known as Luther Carson Park, and if said cessation of the use of the property and said dis-use of the name, Luther Carson Park, shall continue uninterruptedly for a period of two years, then title to said property will vest in and said property will become the property of the Friendly Home of Paducah, Kentucky.”

There is no contention on this appeal that there has been a cessation in the use of the property from the purposes for which it was dedicated, although in 1960 the county of McCracken leased the land to Ben Wood and Eugene Vasseur. Since that time, Wood and Vasseur have continued to operate the property according to the purposes for which it was dedicated.

In 1965 the board of trustees of the Friendly Home of Paducah either sold or announced an intention to sell such interest as it owned in the property to a Catholic hospital organization from the state of Ohio.

Early in 1966 the Carson Park Riding Club filed a complaint initiating this litigation in which it sought to represent all classes of persons entitled to the benefits of the park and the public generally. The complaint sought (a) a declaration of the rights of the parties in the land in question; (b) a judgment declaring “Friendly Home” has no interest in the land and had no right to hold, trade, or convey any interest therein, and (c) injunctive relief to prevent Friendly Home from conveying its interest.

Thereafter Wood and Vasseur, lessees, intervened alleging substantially the same grounds contained in the original complaint. Friendly Home filed what it designated an “answer and counterclaim” to the original complaint, in which it challenged the right of plaintiffs to maintain the action as a class action; and in the portion of its answer designated as “counterclaim,” it alleged the charitable purpose for which it was organized and that the hospital organization to which it planned to sell such interest as it had was also organized for a kindred purpose.

There was also filed by Virginia Vaughn and Albert Childers, with permission of the court, an intervening complaint, in which they claimed the right to intervene as residents and taxpayers of McCracken County.

Friendly Home also filed an answer and what it designated as a counterclaim to the intervening complaint of Vaughn and Childers. For its “counterclaim” against Vaughn and Childers, it merely adopted the allegations contained in its answer to the original complaint. No reply was filed by Vaughn and Childers. It should be noted there was no counterclaim in the answer filed to the intervening complaint of Wood and Vasseur.

Appellee Friendly Home moved the trial court for a judgment on the pleadings. This motion was sustained, and judgment was entered dismissing the complaint and the two intervening complaints.

As grounds for reversing the judgment appellants state: (1) The court erred in sustaining defendant’s motion for judgment on the pleadings and dismissing plaintiff’s complaint because the pleadings were not closed; (2) the court erred in sustaining defendant’s motion for judgment on the pleadings and dismissing plaintiffs’ complaint because taking the allegations in the complaint as true and the allegations in defendant’s answer as false, defendant was not entitled to judgment as a matter of law; and (3) the court erred in sustaining defendant’s motion for judgment on the pleadings and dismissing plaintiffs’ complaint because there were substantial and relevant issues of fact and of law to be determined which were not disposed of by the court’s ruling.

It is the position of appellants in their first ground for reversal that inasmuch as no reply had been filed by Vaughn and Childers, the pleadings were not closed within the meaning of CR 12.03 at the time the court granted judgment for defendant on its motion for judgment on the pleadings. This is sound procedural law and it is well presented, but we have concluded there was no counterclaim at all although defendant Friendly Home designated a paragraph as a “counterclaim.”

We have indicated above the allegations contained in defendant’s “counterclaim,” let us next determine the essentials of a counterclaim. In Taylor v. Wilson, 182 Ky. 592, 206 S.W. 865, 866, it was written:

“An answer, to be sufficient as a counterclaim or set-off, must allege facts sufficient to constitute a good cause of action in favor of the defendant against the plaintiff, if the pleading was a petition instead of an answer, and the defendant was plaintiff, and the plaintiff a defendant.”

See also Walker v. Smyser’s Ex’rs, 80 Ky. 620, 4 Ky.Law Rep. 662, and Hatfield v. Richmond, 177 Ky. 183, 197 S.W. 654. Our recent liberal rules of civil procedure do not change the complexion of a counterclaim CR 8.01 provides:

“A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which he deems himself entitled.” (Emphasis added.)

The allegations of the so-called “counterclaim” in the present case merely stated, as above pointed out, the nature of the charitable purposes of Friendly Home and attempted to characterize the Ohio Catholic organization as being interested in a like endeavor. The allegations fall far short of stating a claim justifying relief. The mere fact that defendant undertook to designate his answer as “answer and counterclaim” when there was no counterclaim does not require a reply under CR 13.01. We find abundant authority for this position in CR 8.03, the last sentence of which we quote: “When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleadings as if there had been a proper designation.”

It is concluded there being no counterclaim, no reply was required. Accordingly defendant’s motion for judgment on the pleadings was not premature. The judgment was proper unless there remained disputed questions of fact raised by the pleadings. We now undertake to resolve this question.

Neither appellant alleges any interference with the present use and enjoyment of the land. They only fear the future.. Ap-pellee nowhere alleges cessation of the purposes for which the land was dedicated. Boiled down to essentials the pleadings for appellants contend only that appellee has no right to sell such interest, if any, it has in the land. Appellee’s pleadings say, yes, it does have such right. There is no disputed question of fact; only one' of law involving the interpretation of the deed.

Appellee has a contingent future interest denominated as an executory interest, or an estate upon a conditional limitation, the subject of a deed of conveyance or a quit claim deed. Cf. Slowley v. Jenkins, Ky., 408 S.W.2d 452, and 1 Simes and Smith, The Law of Future Interests, 2nd ed., § 221, p. 249. In the event appellee had no estate whatsoever, it has a right to execute a quit claim deed, which is substantially what it is attempting to do. Such action in law does not amount to irreparable injury or to any injury at all to appellants. It is possible that from a practical point of view, the ownership of an execu-tory interest in the land by a financially able, charitable institution intent upon building a hospital would exert some remote sentiment in the abandonment of a riding academy and its replacement by a great hospital. But this possibility is not a legal ground for relief. Such possibility depends upon the ratio of the number of persons wanting a hospital to the number wanting a horse.

We conclude in the language of the trial court that “[t]his interest in said property, whatever it might be, is not an interest which in any way is adverse to the interest of the class which the plaintiffs propose to represent. It is the opinion of this court that the defendant has the right to convey or contract to convey whatever interest it owns in said property, whether vested or contingent under the authority set forth * * * in Austin et al. v. Calvert et al., Ky., 262 S.W.2d 825.”

The judgment is affirmed.

All concur.


text:
    Carl BOEHM, Appellant, v. Rema HISHMEH, by Her Next Friend, John Hishmeh, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.

      Harry H. Wilson, Glay E. Maggard, Munfordville, Terry L. Hatchett, Glasgow, for appellant.
    Joseph R. Huddleston, Huddleston & Huddleston, Bowling Green, for appellee.
   EDWARD P. HILL, Judge.

Appellant’s attorneys appeal on his behalf from a $12,500 judgment of the Hart Circuit Court. Appellant Carl Boehm was not present at the circuit court trial, and his attorneys do not know how to locate him. They are appealing at their own expense because of errors which they believe are “abundantly apparent from a casual reading of the record.”

In June 1962, appellee Rema Hishmeh, then six years of age, lived with her parents who operated a motel in Hart County. Appellant Carl Boehm lived in a small house which was a short distance away from and plainly visible from the motel. He is accused of willfully and maliciously assaulting appellee and forcing her to enter into indecent acts on two separate occasions. To summarize the sequence of events, ap-pellee told her parents about the incidents the night after the second incident (the first incident occurred one week earlier) ; her parents did not believe her story at first and played cards with appellant that night as was their custom. They did not obtain a warrant of arrest for appellant until the next day.

The grand jury returned two indictments, one for each of the alleged incidents. At the trial of the first indictment, the court ruled that the girl was incompetent to testify because she did not know the meaning of an oath or what would be the result of perjury. Since the defendant had been placed in jeopardy, he was discharged.

The second indictment was later dismissed for lack of competent evidence.

In February 1964, eighteen months after the alleged incidents occurred, appellee by her next friend, her father, brought this action demanding “$50,000 in exemplary and punitive damages” and “$20,000 compensatory damages for the destruction of plaintiff’s reputation, the reputation of her family, disgrace suffered and great mental anguish.”

The case first came to trial in April 1965. During a recess, one of the jurors suffered a heart attack, and the jury was discharged and the case was continued.

Illness of the defendant prevented the case from coming to trial until April 1966. Before that time, however, he left town and all efforts to locate him have failed. Attorneys for appellant again moved for a continuance. The court overruled the motion saying: “It appears to this court that it has gotten to the point where the defendant does not show any interest in his own case and that his absence is inexcusable and the case ought to be tried.”

The case was tried, and the jury returned a verdict for $12,500 in compensatory damages. No exemplary or punitive damages were awarded. The attorneys for appellant then appealed in his behalf.

The first question raised by appellant is whether the defendant has a right to have the trial court determine the competency of an infant witness at the second trial of the case where the infant was questioned and found competent at the first trial of the case. To review the facts pertinent to this issue: Appellee was six years old when the incidents allegedly occurred; shortly thereafter at the trial on the first indictment she was found incompetent to testify. At the first civil trial, when she was nine, she was questioned by the judge and found to be competent to testify (this trial was stopped because of the death of one of the jurors); and at the second trial, when she was ten, the judge refused to question her as to her competence and allowed her to testify on the basis of his finding at the first trial that she was competent. Appellant contends that he had a right to have the infant’s competency determined at the second trial because competency at one trial does not determine competency at a later trial, and the competency of a witness is to be determined at the time the testimony is given. In support of his position appellant cites Whitehead v. Stith, 279 Ky. 556, 131 S.W.2d 455 (1939); Davenport v. Commonwealth, 285 Ky. 628, 148 S.W.2d 1054 (1941); and 97 C.J.S. Witnesses § 58, page 450, note 94.

While this authority supports appellant’s argument, it also points out that the question of competency of witnesses is primarily a question to be decided in the sound discretion of the court. The facts of the case at bar show that this same witness was questioned by this same judge at the first civil trial and she was found competent. He also heard her testify at the first trial. The only change which would affect her competency would be her age; and, because she is now older, any change would probably make her more competent and therefore better able to understand that she must tell the truth and the consequence of a lie. In the absence of any indication of other changes, we do not see how this can be an abuse of discretion requiring reversal. See York v. York, Ky., 280 S.W.2d 553 (1955), holding competency of the infant witness to be in the sound discretion of the court. Note also that the date of the competency of a child to testify is the time when he is offered as a witness, not the time of the alleged incidents. Davenport, supra.

Appellant’s second contention is that the court erred when it refused to allow appellant’s attorneys to read the discovery deposition of appellant, which was taken as if on cross-examination by appellee’s attorneys. Appellant relies on CR 26.04(3), which insofar as applicable provides:

“The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: The witness is * * * absent from the State; * * * or is of unsound mind, having been of sound mind when his deposition was taken; or is prevented from attending the trial by illness, infirmity, or imprisonment; * * * or that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due. regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.”

Appellant’s attorneys argue that because the defendant was apparently absent from the State and it was hinted that he was ill this case comes within the above rule. In any case, they deem the circumstances exceptional and therefore within the rule.

The trial judge refused to let the deposi-' tion be read apparently on the ground that it would be a “manifest injustice” to allow a party to absent himself from the trial without an excuse in order that his deposition rather than his oral testimony be heard by the jury. At the trial, appellee also pointed out that the questions asked on discovery are not always the same as the questions asked at trial or in a deposition taken to be read at trial. Some questions will be held back as a matter of tactics. For these reasons, a party should not be allowed, in effect, to exercise an option between a deposition and oral testimony by either attending or not attending his trial. Federal Rule 26(d), from which CR 26.04 was taken, has an express provision denying the use of the deposition of a witness where the witness’ absence was procured by the party offering the deposition. The use of the rule was demonstrated in Velvelstad v. Flynn, 230 F.2d 695, 16 Alaska 83 (1956). Kentucky does not have this provision, but the reasons for the rule are sound.

It should be remembered that CR 26.04(3) allows the reading of deposition "if the court finds” any of the conditions listed therein exist. In the present case, there was no such finding by the trial court.

Appellant’s next contention is that the court erred when it sustained appellee’s motion for a directed verdict because plaintiff’s testimony was not corroborated; there were conflicts in plaintiff’s testimony; there was a total lack of evidence of mental suffering; and the question of the child’s credibility was for the jury. Appellee argues that the child presented a prima facie case which was unrebutted and that appellant’s failure to appear raised an inference that his testimony would have exposed facts unfavorable to him.

The fact that plaintiff’s testimony was uncorroborated makes no difference by itself. Appellant cites no authority for the proposition. Also the conflicts in appellee’s testimony were not material to the issue of whether appellant committed the acts of which he was accused. On that point her testimony was positive. Appellee did state that she was embarrassed by the incidents, and the several different trials show that they came to the public’s attention. The evidence is uncontradicted that the incidents occurred and some mental anguish and humiliation must accompany such an assault.

The real issue in this argument seems to be whether the jury should have been permitted to consider the question of the child’s credibility. If so, then a directed verdict was improper. In Roberts v. Respass, 131 Ky. 10, 114 S.W. 341, 342 (1908), this court said:

“It may he conceded that where the testimony is all one way, and there are no facts or circumstances or other testimony tending to contradict the testimony of plaintiff, it is proper for the trial court to give a peremptory instruction in favor of the plaintiff.”

See also Blackburn v. Kentucky & West Virginia Power Co., Ky., 243 S.W.2d 995 (1951). Appellant is the one person who could have contradicted her testimony, and he did not attend the trial. It therefore appears that the trial court properly directed the verdict for plaintiff.

Appellant next argues that even if a directed verdict was proper, the instruction on mental anguish and humiliation should not have been given because there was not any real evidence to support it. All that appellee said on this matter in response to her attorney’s question of whether she was embarrassed by what had happened was: “Yes.” There was no indication that the incidents were ever mentioned to her except in preparation for trial. It is appellant’s contention that the instruction should have included the phrase “if any there was” with reference to mental anguish or humiliation. Appellee argues, correctly we think, that this objection to the instruction is too late, that is, specific objections to instructions should be made before the instruction is given. Young v. De Bord, Ky., 351 S.W.2d 502, 503 (1961), is in point. There, appellant first objected to certain instructions because “there is no evidence in the record” on which to base them. On appeal, specific defects in the instructions were raised for the first time. This court said:

“Appellants in the trial court protested the submission of the instructions on a general ground. On this appeal they have changed their approach and now undertake to pinpoint certain alleged errors. Obviously, CR 51 condemns such a practice and, in consequence, we must hold they cannot now be heard on these matters. See the recent case of Chaney v. Slone, Ky., 345 S.W.2d 484.”

Appellant’s final argument is that the jury’s award is at first blush excessive. In Koch v. Stone, Ky., 332 S.W.2d 529, 532 (1960), this court said:

“The adequacy and inadequacy of damages cannot be measured properly from adjudicated cases, nor can any general rule on the subject be laid down. The facts of each case must determine the amount of the verdict. Roland v. Murray, Ky., 239 S.W.2d 967; Louisville Taxicab & Transfer Company v. Langley, Ky., 265 S.W.2d 931.”

Under the facts of the case at bar it cannot be said that at first blush the damages are excessive.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. J. W. HESTER et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Dept, of Highways, Frankfort, C. V. Sanders, Shepherdsville, Mark Anderson, Middlesboro, for appellant.
    Thomas B. Givhan, Shepherdsville, for appellees.
   DAVIS, Commissioner.

In this condemnation suit right-of-way for the relocation of Kentucky Highway 61 south of Shepherdsville is being acquired. The new route supplants a low, one-lane railroad underpass which had been subject to flooding. The jury awarded a total of $24,500 to the appellees for the difference in before and after values and $300 for four temporary easements used during construction. The Department appeals asserting that the verdict is not supported by the evidence, inadmissible evidence was admitted, that the verdict is excessive, and that evidence for appellees lacked sufficient probative value to support the verdict.

Prior to the taking, the property contained about 115 acres and was used for farming purposes. It is situated about a mile south of Shepherdsville and has frontage of about 875 feet along existing Ken-tacky Highway 61. That frontage will not be disturbed by the taking. The tract lies somewhat in the shape of a boot, with the toe fronting on existing Highway 61 and the foot extending westwardly to the existing right-of-way of the L & N Railroad tracks. On the west side of the railroad, the heel of the boot lies in the southwest corner of the tract with the leg of the boot extending northwardly along the railroad right-of-way. The tract situated east of the railroad and fronting on the old highway contained 26.9 acres and had on it the residence and other farm improvements, which are not disturbed. The larger tract west of the railroad contained 87.6 acres and was unimproved. The right-of-way being acquired embraces a total of 8.64 acres, is 2900 feet long, and ranges in width from 100 to 200 feet according to the height of the fill. The new road will enter the property at the northern boundary of the 87.6-acre tract and extend down the leg of the boot in a southerly direction upon a curve bearing to the east until it crosses the railroad and traverses the southwest quadrant of the 26.9-acre tract for a short distance. Since the new highway will pass over the railroad, a fill is required in its construction. At the point of entry on the north side of the property, the fill will be about five feet and it will range to about thirty-two feet where the bridge over the railroad will be. The fill gradually descends as the right-of-way leads south-eastwardly but will be about twenty feet as it leaves the south property line of the 26.9-acre tract.

The Department introduced two appraisal witnesses who expressed the view that the highest and best use of the Hester property was agricultural before and after the taking. According to these two witnesses, the before value ranged from $57,500 to $60,000 and the after value from $47,460 to $49,500, making respective differences of $10,040 and $10,500. One of these witnesses assigned $8 as the value of the temporary easements. For the landowners the witnesses presented two sets of before and after values, one based on agricultural usage and the other upon development for subdivision or commercial purposes.

As to the farm values; the witnesses for the landowners expressed before value opinions ranging from $45,000 to $50,000 and after value opinions from $20,000 to $14,-000, reflecting differences ranging from $25,000 to $36,000 plus an estimate of $40 for the temporary easements.

In assigning values based upon subdivision or commercial use, the landowner and his witnesses expressed before value opinions extending from $104,800 to $114,-000 and after values of $45,000 to $60,000, for differences between $54,000 and $64,000.

In its verdict the jury fixed the before value at $55,000, the after value at $30,500, for a difference of $24,500 and allowed $300 for the temporary easements comprising its verdict of $24,800.

The first point advanced by the appellant pertains to the $300 awarded for the temporary easements. It is pointed out that no evidence from either side supported that portion of the verdict. This is conceded by the appellees who urge that if any reversal is granted it be merely for the purpose of retrial of the amount to be awarded for the temporary easements. The view we have of the case makes it unnecessary to discuss this point further.

The Department attacks the trial court’s rulings in admitting evidence relating to the potential use of the property for subdivision purposes and pitches its argument on the premise that there was no evidence that the land was being used as a subdivision and no evidence of any existing plan to subdivide it or that the owners expected to subdivide it. In support of its position, the Department cites Com., Dept. of Highways v. Riley, Ky., 388 S.W.2d 128; Com., Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922; Com., Dept. of Highways v. Creason, Ky., 402 S.W.2d 426; and Sloan v. Com., Dept. of Highways, Ky., 405 S.W.2d 294. The cases relied on do not sustain the position advanced by the Department. There was evidence that the property was suitable and adaptable for subdivision along with testimony tending to reflect a market potential in the area for such development. See Com., Dept. of Highways v. Rollyson, Ky., 415 S.W.2d 838, and the cases therein discussed pointing out “ * * * that the potential for commercial or residential development may be significant even though the landowner had never thought of subdividing his property.” Id. 415 S.W.2d 839. In this connection it should be observed that the property owners presented an overlay type map reflecting subdivision of a portion of the property into building lots. This was proper inasmuch as the jury understood that this was merely an example of a possible subdivision and not evidence of an actual one. See Com., Dept. of Highways v. Rhea, Ky., 386 S.W.2d 443.

The final assault on the judgment relates to claimed excessiveness and lack of probative value in appellees’ evidence in support of the verdict. The comparable sales presented in evidence by the witnesses for both sides tend to discredit the values found by the jury. It will be recalled that 8.64 acres were taken and that the verdict for this (excluding the easements) is $24,-500. This amounts to more than $2,800 per acre for the land taken. We recognize that the verdict does not and should not undertake to fix a per acre value of the land taken, but some significance may be found in contrasting the before and after values in light of such a computation. According to the landowner himself, the 115 acres had before value as a farm of $45,-000, slightly more than $391 per acre, whereas the remaining 106 acres were valued by the owner at slightly more than $188 per acre. Thus, according to the witness the farm was reduced more than 50% by the taking of less than 8% of the entire tract. The jury’s verdict which fixed the before value at $55,000 reflects a per acre value slightly in excess of $478, whereas its after value is a little more than $287 per acre. Thus, it will be seen that the jury concluded that the farm’s value had been diminished by just under 45% due to the acquisition of the right-of-way of just under 8% of the total acreage. In all this, it must be remembered that none of the improvements was taken. Although the new construction will divide the land so as to make accessibility to and from the front and back somewhat inconvenient, that situation already existed by reason of the railroad tracks bisecting the farm. Conceding that the jury properly found a difference in the before and after values of the farm, we are unable to fathom from the record any substantive basis for the enormity of that reduced value. Although the verdict is within the scope of before and after values referred to by witnesses, it strikes the court at first blush as being excessive and as appearing to have been given under the influence of passion or prejudice. We are unable to distinguish the case at bar from Com., Dept. of Highways v. Gibson, Ky., 401 S.W.2d 71; Com., Dept. of Highways v. King, Ky., 400 S.W.2d 517; Com., Dept. of Highways v. George, Ky., 387 S.W.2d 580; and the cases which are therein cited and discussed.

We are bolstered in our view that the verdict is excessive in considering the fact that the present landowners purchased the entire tract about ten years before the taking for $26,400. No material improvement has been made of the property since that time. It is apparent that the market value has substantially increased since that purchase, as is reflected by the Department’s own witnesses as well as by the witnesses for the landowners, but it is incredible that the taking of so small a portion of the land could now warrant the recovery of a sum nearly equal to the original purchase price while leaving nearly all of the property purchased.

We are not to be understood as approving the somewhat anomalous use of two sets of values by the appellees. It would appear that land could have only one highest and best use, or that it may lend itself to two or more combinations of uses so as to produce the one highest market price — or two types of uses might be possible, either of which would realize the same highest price. In the final analysis there can be only one market value. But it seems impossible to credit testimony from the same witness who expresses “highest and best use” as a farm worth $45,000 and “highest and best use” as a subdivision worth $114,000. It is noteworthy that one of the owners testified that the “after value” (for subdivision) is $60,000 — a sum greater than the jury found as the “before value” and about twice as much as the jury found as “after value.” The appellant did not address any objection to permitting the witnesses to use a double standard, as such, although we feel that the confusion thereby occasioned is reflected in the high verdict. Cf. Com., Dept. of Highways v. Doolin, Ky., 411 S.W.2d 44.

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

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY, and STEIN-FELD, JJ., concur.


author: MILLIKEN, Judge.

text:
    Donald WIGGINS, Appellant, v. CITY OF WINCHESTER, Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    Charles T. Walters, Winchester, for appellant.
    Alton Payne, Marshall McCann, Jr., Winchester, for appellees.
   MILLIKEN, Judge.

This is an appeal from a judgment refusing to direct the City Commissioners of Winchester to submit a question to a vote of the people.

On March 10, 1964, the city of Winchester, Kentucky, adopted Resolution No. 241 creating and establishing an Urban Renewal and Community Development Agency. A year and a half later, on October 26, 1965, the appellant, in conjunction with other voters of the city, presented a petition to the City Commission of Winchester asking the Commission to place on the ballot in the general election which was to be held November 2, 1965, the question of whether or not the voters would like to have Urban Renewal. The main part of the petition read as follows:

For the general election to be held on November 2, 1965, the following question:

“Shall the city of Winchester, Kentucky, have an Urban Renewal program ?” In the event1 that the aforesaid cannot be granted them the said petitioners request that a special election be held at the earliest possible time wherein the aforesaid question shall be the issue. Petitioners further ask that the city of Winchester, through its City Commission, without delay, stay and enjoin the agency known as the Redevelopment Commission of Winchester, Kentucky, from any further operation or action, of whatsoever kind or nature, until such time as the above mentioned requests and petitions shall be decided by the voters as aforesaid.

Two days later, on October 28, 1965, the appellant filed an amended petition the important part of which said:

“Whereas, the' City Commission of Winchester, Kentucky, finds and declares (1) That on March 10, 1964, it passed Resolution No. 241 wherein it established a Redevelopment Commission pursuant to KRS 99.000 et seq. [99.010 et seq.] (2) That the aforesaid Resolution has been found to be undesirable in that it will not serve the best interests of this community, (3) That certain citizens of Winchester, Kentucky, all residing and voting in said city, have duly, lawfully, and in proper form, petitioned the City Commission to pass the act herein, NOW THEREFORE, BE IT RESOLVED BY THE CITY OF WINCHESTER, KENTUCKY:
1. That the Resolution No. 241, above noted, is hereby revoked and cancelled;
2. That the Redevelopment Commission Agency which was established by the aforesaid Resolution is now ordered to disband and discontinue its operation according to lawful means.”

The City Commission did not act on the petition in time for the November, 1965, election, but got around to acting on it on March 8, 1966, and refused to submit the question to a public referendum.

On March 10, 1966, appellant Wiggins filed this mandamus action in the Clark Circuit Court requesting that the court order the City Commission to submit the proposed question: “Shall the proposed Ordinance — that Resolution No. 241 shall be revoked and cancelled, and that the Redevelopment Commission Agency shall disband and be discontinued — be passed?”, to the voters of the city of Winchester, at the next general election. The court ruled against Wiggins, and stated three reasons: (1) Wiggins did not specifically state, as required by KRS 89.250, that 25% of the voters in the last mayor’s election in the city of Winchester had signed his petition and also Wiggins had failed to specifically plead the total number of voters who had voted in the last mayor’s race; (2) Since the City Commission had acted on Wiggins’ petition, refusing to grant its request, the mandamus action was not the proper remedy, and that (3) Wiggins had an adequate remedy at law.

The facts behind the court’s first reason are that when Wiggins submitted his petition to the City Commission it contained 218 signatures, but none of those signing had stated his individual address or residence as required by KRS 89.250. The only language in the petition which linked the signers with the city of Winchester residentially was found in a clause which stated that all signers were residents and qualified voters of the city.

Winchester is a city of approximately 11,000 people, and consequently it would be difficult to check the authenticity of signatures to the petition unless specific addresses of the signers were furnished. In addition to the address problem, there are the questions concerning the petition’s failure to allege that 25% of the voters in the last mayor’s election in Winchester had signed the petition and its failure to specifically plead the total number of voters who had voted in the last mayor’s race.

Where a public vote is sought on a question such as the one presented here, the least the petitioners should do is to pattern their petition on the requirements of the statute, for the governing authorities of the city should not have to consider every putative plea of the kind as a justification for submitting a question to public vote. The very purpose of the governing statute was to require a substantial showing of a public demand before any such question could be referred to a public vote.

We think the petition here was wholly inadequate to justify the submission of the question to the voters.

The judgment is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Robert JOHNS et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Tildón H. McMasters, Mark Anderson, Dept, of Highways, Elizabethtown, for appellant.
    Davis Williams, Munfordville, for appel-lees.
   WADDILL, Commissioner.

The Commonwealth appeals from a judgment awarding $17,300 as damages for the condemnation of 21.5 acres of land owned by appellees, Robert Johns and his wife. It is contended that the jury was permitted to consider incompetent evidence and that the verdict is excessive.

Prior to the initiation of this proceeding appellees owned and operated a 345-acre farm in Hart County. The land condemned was for the construction of a nonaccess highway which severs appellees’ farm into two tracts. One tract contains about 230 acres on which are located two houses, two barns and other improvements while the other tract contains about 94 acres devoid of structural improvements. It was estimated that 6 acres of the land taken are in pasture, 7 acres are timberland and the remainder is tillable.

The Commonwealth first contends that the trial court erred in refusing to strike estimates of value by three witnesses for the landowners because they were based on improper factors.

On cross-examination the attorney for the Commonwealth asked one of the landowners’ expert appraisal witnesses whether it was inconvenient to operate the two tracts together after they were severed by the condemnation. He replied: “That is right, to operate them together is highly inconvenient.” The Commonwealth promptly moved to require this witness to subtract from his estimate of damage the value he had ascribed to inconvenience. The motion was overruled. Another of the landowners’ witnesses was asked on cross-examination whether he considered it less convenient to operate the farm now. After he answered affirmatively he was asked whether this was one of the factors he considered in arriving at his damage figure. He answered: “That is part of it, yes, sir.” A motion to require him to refigure his estimate was overruled.

Inconvenience due to dividing a farm into two units is ordinarily a non-compensable factor. Commonwealth, Department of Highways v. Roberts, Ky., 390 S.W.2d 155; Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844. However, the fact that there has been a disjunction of the land is a proper consideration insofar as it affects the market value of the remaining tracts. Commonwealth, Department of Highways v. Sea, Ky., 402 S.W.2d 842; Commonwealth, Department of Highways v. Brown, Ky., 392 S.W.2d 50. In the instant case the witnesses did not place a pecuniary value on the separation of the farm nor did the Commonwealth show this fact by avowal. In this state of the record we are unwilling to say that it was error to overrule the motions.

In cross-examining the landowner the attorney for the Commonwealth asked if he allowed anything for possible flooding. He stated: “I took that into consideration.” The Commonwealth then moved to require him to remove any damage he allowed for this factor. This motion was overruled. While a witness must be properly qualified to testify concerning water damage (Commonwealth, Department of Highways v. Martin, Ky., 392 S.W.2d 64) it was not shown that the landowner ascribed any specific monetary damage to the possibility of his remaining land being flooded. The court properly overruled the motion.

Finally it is contended the verdict is excessive and is not supported by adequate evidence. The landowner, two experienced realtors and four other witnesses testified as to the before and after value of appellees’ farm. The qualifications of these seven witnesses were not and could not have been successfully challenged by the Commonwealth. These witnesses were intelligent and well informed as to land values in the county and their estimates of damage ranged as high as $23,832. We hold that the award is amply supported by adequate evidence and is not excessive.

The judgment is affirmed.

All concur.


text:
    Winifred W. HARRIS, Petitioner, v. Honorable Thomas A. BALLANTINE, Jr., Judge, Jefferson Circuit Court, etc., Respondent.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.
    Gilbert A. Brutscher, Louisville, for appellant.
    Thomas A. Ballantine, Jr., pro se, for appellee.
   WADDILL, Commissioner.

Petitioner, in effect, seeks an order from this court preventing the collection of a judgment entered against her upon a super-sedeas bond she had executed as surety on the attempted appeal of an order entered in the case of Edward J. Miller & Son, Inc. v. George K. Harris, pending in the Jefferson Circuit Court. We conclude that the judgment should not have been entered against her since it is based upon a clerical misprision appearing in the mandate issued by this court dismissing the abortive appeal of the order entered in Miller v. Harris.

Originally this litigation was instituted by Edward J. Miller & Son, Inc., hereinafter called Miller, against George Harris for money allegedly due it and Harris filed a counterclaim. After all the evidence for Miller and some for Harris had been presented on Miller’s claim, the respondent, Thomas A. Ballantine, Judge of the Jefferson Circuit Court, entered an order awarding Miller $9,238.43, and stated that he would hear the evidence of Harris at a later date. Harris attempted to appeal from this order and petitioner signed a super-sedeas bond as surety for him.

Inasmuch as there, had been no disposition of Harris’ counterclaim nor a recitation of finality under CR 54.02, this court held that the order awarding Miller damages was interlocutory and dismissed the attempted appeal for lack of jurisdiction. Steely v. Hancock, Ky., 317 S.W.2d 171. Subsequently the clerk of this court issued a mandate which improperly awarded Miller 10% damages on the supersedeas bond. Respondent thereupon entered a judgment authorizing Miller to collect $9,238.43 from Harris and the petitioner as well as 10% damages on the supersedeas bond. However, Harris was granted additional time to present evidence on his counterclaim.

Although KRS 21.130 grants 10% damages on the affirmance or dismissal of an appeal, we have held that a supersedeas bond posted on an attempted appeal of an interlocutory order is void because this court has no jurisdiction of the attempted appeal. Crook v. Schumann, 292 Ky. 750, 167 S.W.2d 836. Hence, the bond executed by Harris and which petitioner signed as surety is void and the mandate of this court should not have granted damages upon it. Therefore, we are recalling the mandate so it may be corrected to merely dismiss the attempted appeal. R.C.A-1.340.

Since we are correcting the mandate the respondent will correct the circuit court judgment so that no liability will be imposed upon petitioner as surety on the void supersedeas bond.

Although petitioner has labeled her proceeding in this court as one seeking relief by prohibition, we are granting her relief by an order of mandamus since it is the appropriate remedy to rectify the errors which appear in this case.

Wherefore the clerk of this court is directed to recall the mandate issued in the case of Harris v. Miller (our docket #F 43-65) and issue a new one in accordance with the directions in this opinion; respondent is directed to enter an order relieving petitioner of liability on the supersedeas bond she signed as surety.

All concur.


author: DAVIS, Commissioner. PALMORE, Judge

text:
    Johnny MILLER et al., Appellants, v. John W. POOLE et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.

      J. L. Richardson, Jr., J. L. Richardson, III, Richardson & Richardson, Louisville, for appellants.
    James G. Bowman, Hogan, Taylor, Den-zer & Bennett, Louisville, for appellees.
   DAVIS, Commissioner.

Johnny Miller and Paul Miller, his younger brother, were injured when they were struck by an automobile operated by Stanley Poole along Greenwood Road in Jefferson County in the early evening hours of November 24, 1963. The Miller boys were on a bicycle at the time of the accident. A jury returned its verdict for the appellees, Stanley Poole and his father, and judgment was entered dismissing the complaint. The appellants attack the judgment, asserting: (1) that the evidence of Stanley Poole established his negligence as a matter of law, and (2) that the lower court erred in refusing a last clear chance instruction.

The record presents a somewhat unusual situation in that the version of the accident as related by the Miller boys is so utterly at variance with the account given by Stanley Poole. According to the evidence of the Miller brothers, they were not on the street at the time of the accident but were situated four to five feet off the surface of the highway, with Johnny Miller straddling the bicycle with both feet on the ground and Paul Miller straddling the front tire of the bicycle facing toward Johnny. According to the version of the Millers, the bicycle was not in motion and not on the traveled portion of the street at all.

On the other hand, Poole testified that he was driving eastwardly along Greenwood Road with his headlights on when he observed the Miller brothers on a bicycle about 70 or 80 feet ahead of him, traveling in the same direction he was going. At that time, Poole said, he was traveling at about 20-25 miles per hour, Johnny Miller was pedaling the bicycle, and Paul was riding on the handlebars. Poole admitted that he did not sound his horn and did not slacken his speed as he continued to overtake the bicycle, but explained that he drove the car to the left of the center of the highway so that the left wheels were about two feet to the left of the center line in the direction in which Poole was going. Poole said that just as his car came within ten or fifteen feet of the Millers, the bicycle swerved suddenly some 3½ to 4 feet to its left, and the collision occurred so suddenly that he was unable to avoid it.

Poole admitted that he noticed a rural type mailbox situated on the south side of the road and that he realized that the bicycle would have to veer to its left in order to clear and pass the mailbox. Poole said that there was no traffic meeting him which would have precluded his getting farther over into the left lane as he undertook to pass the bicycle. It was shown that Poole had stated to an officer at the scene of the accident that he had not seen the boys at all prior to the collision, but his testimony at the trial was to the contrary.

In giving his testimony, Poole said that he was quite familiar with Greenwood Road and that he was aware that children frequently played on and about the road. He said that he recognized that the occupants of the bicycle were children (Johnny Miller was about 15¾> and Paul was about 9) and anticipated that they might turn out in front of him.

In urging that Poole was negligent as a matter of law, based upon his own testimony, the appellants call attention to Mackey v. Spradlin, Ky., 397 S.W.2d 33; Rabold v. Gonyer, 285 Ky. 618, 148 S.W.2d 728; Bybee Bros. v. Imes, 288 Ky. 1, 155 S.W.2d 492; Kentucky Power Co. v. Thompson, Ky., 335 S.W.2d 915; and Strode v. Campbell, 311 Ky. 525, 224 S.W.2d 673. In addition to the authorities just cited, the appellants rely on Johnson v. Shattuck, 125 Conn. 60, 3 A.2d 229; and Avery v. Collins, 171 Miss. 636, 157 So. 695, 158 So. 552. Appellants call attention to text authorities including Prosser, Torts, Page 138 (2d Ed. 1955) for the proposition, “there are many situations in which the hypothetical, reasonable man would be expected to anticipate and guard against the conduct of others.”

We deem it unnecessary to attempt a detailed analysis of each of the authorities relied upon by appellants as we conclude that the rationale of Lareau v. Trader, Ky., 403 S.W.2d 265, forecloses the argument that Stanley Poole was guilty of negligence as a matter of law. In Lareau, we specifically refused to apply the principle of awareness of the propensity of very young children to come suddenly into positions of peril to a bicycle rider aged 13 years, 8 months. It seems to us that a jury issue was presented from Poole’s evidence as to whether he exercised ordinary care in the circumstances confronting him as he saw and undertook to pass the boys on the bicycle. It is significant that in the Lareau case the automobile driver had pulled over so that her left wheels were on or around the center line of the highway, whereas Poole’s evidence indicates that his car was two feet to the left of the center line. In Lareau, the motorist had not slackened her speed nor given a warning, and the entire left lane was open to her; yet we held that she was not, as a matter of law, negligent.

It was contended in Lareau v. Trader, Ky., 403 S.W.2d 265, that a last clear chance instruction should have been given in behalf of the bicycle rider. We held there that the trial court properly refused a last clear chance instruction. The facts in the case at bar do not present as strong a basis for a last clear chance instruction as did the facts in Lareau v. Trader, supra, and we are unable to perceive any basis here for giving such an instruction. It must be remembered that the trial court submitted the case to the jury by instructions incorporating the separate, factual theories adduced by the Miller brothers and Stanley Poole. In the theory relied on by the Miller brothers, there was no presentation of a last clear chance situation, and the account given by Poole did not reflect that he had a last clear chance to avoid the accident, inasmuch as he testified that the bicycle swerved 3½ to 4 feet when he was within ten to fifteen feet of it and when he could take no other step to avoid the accident.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY, OSBORNE, and STEINFELD, JJ., concur.

PALMORE, J., dissents.

PALMORE, Judge

(dissenting).

I dissent for the same reasons stated in my dissenting opinion in Jewell v. Oglesby, Ky., 402 S.W.2d 439, 440 (1966).


author: WILLIAMS, Chief Justice.

text:
    Ella STEPHENS et al., Appellants, v. Alonzo BRUCE et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.
    G. W. Stephens, Whitley City, for appellants.
    R. Lee Brown, Williamsburg, Ruben G. Hicks, Whitley City, for appellees.
   WILLIAMS, Chief Justice.

This is an appeal from a judgment of the McCreary Circuit Court directing that a portion of a tract of land be partitioned to one set of heirs and the remaining land be sold and the proceeds divided among the other heirs according to their respective interests.

The parties hereto are heirs of W. H. Gilreath and Ella Gilreath, both of whom died intestate sometime prior to October 14, 1947, leaving the 24-acre tract of land under consideration. On the above date most of the heirs executed a deed to the property in favor of a sister, Anna Ivey, for the consideration that Anna keep and maintain two incompetent brothers for the rest of their lives.

Anna lived on the property and kept the brothers until the old home place burned in 1952. Being unable to rebuild, she put her charges in the care of her sister, Sula Bruce. Later that year Anna executed a deed purporting to convey a fee simple title to Sula and Alonzo Bruce. No provision for the care of the incompetent brothers existed in that deed. The Bruces, also Gil-reath heirs, built a new home on the land and cared for the charges until 1957, at which time they claimed the charges became unmanageable, necessitating turning them over to the county authorities.

Appellants filed an action in the Mc-Creary Circuit Court alleging the land could not be divided without materially impairing its value, and seeking a sale and distribution of the proceeds. Appellees countered by alleging they were the owners of the land by virtue of the 1952 deed from Anna Ivey, or in the alternative that the land was divisible and that portion on which they erected improvements should be partitioned to them. The circuit court found that, because of the partial failure of consideration in the deed from the Gilreath heirs to Anna Ivey, the effect of Anna’s 1952 deed to Alonzo and Sula Bruce was a conveyance of her undivided interest only; that the parties to the suit were co-owners, and the appellees in good faith erected the improvements on the property. It was further found that the property could not be divided without materially impairing its value; that appellees should have partitioned to them the land upon which the improvements were erected and one acre around the improvements; and that the remaining 23 acres be sold and the proceeds divided among the other heirs.

The circuit court apparently employed the most equitable solution available under the circumstances. The parties could not have been restored to their former positions; hence the court properly refused to cancel the deed. Sanders v. Needy, Ky., 363 S.W.2d 114 (1962). The finding that the Bruces as co-owners with the other heirs did in good faith erect the improvements was amply supported by the record. The other owners sat by and made no objection to the improvements placed on the property and they are now estopped from making any complaint. Stepp v. Leslie, Ky., 263 S.W.2d 122 (1953).

In Newsome v. Johnson, Ky., 255 S.W.2d 33 (1953), we said:

“ * * * Since Conner v. Cox, 22 S.W. 605, 15 Ky.Law Rep. 140, down through Corbin v. Corbin, 296 Ky. 276, 176 S.W.2d 691, we have held that where one joint owner’s interest could be allotted to him without impairing the value of other joint interests, partition should be made to him and the remainder sold for division of proceeds among numerous joint owners with small interests. * * * ”

The judgment of the circuit court conforms precisely with this principle and is proper.

The judgment is affirmed.

All concur.


text:
    NON-MARINE UNDERWRITERS AT LLOYD’S LONDON, Appellant, v. CARRS FORK COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.

      Armer H. Mahan, Louisville, for appellant.
    H. Garland Wells, H. Hoover Haynes, Hazard, for appellees.
   MILLIKEN, Judge.

Appellants were sureties on self-insurer’s bonds of a Kentucky employer, Carrs Fork Coal Company. The employer was placed in receivership and at that time there were outstanding obligations of the employer to some of its employees and dependents of deceased employees for benefits under the Workmen’s Compensation Act. In discharge of their legal obligations, as sureties on the self-insurer’s bonds of the insolvent employer, the appellants paid the compensation claims.

In the trial court, entitlement to any priority status has been denied the sureties, that court holding, in effect, that the sureties were entitled to reimbursement from the general assets of the Carrs Fork Coal Company as indemnitees only and on a level with common creditors, rather than as preferred creditors as subrogees of the compensation claims paid as surety for the employer.

Both from the standpoint of the common law and the statutes, a surety has a right to indemnity from a principal. KRS 412.080 provides:

“If a surety pays any part of a debt or liability for which he is bound as surety,. he may recover the amount * * * from the principal.”

Consequently the question is not whether the surety can recover at all, but whether he can do so by being subrogated to the claim right of a compensation creditor of the principal after the surety has satisfied, on behalf of the principal, the compensation claim of the creditor. In an early case, Lewis’ Administrator v. United States Fidelity and Guaranty Company, 144 Ky. 425, 138 S.W. 305, at p. 306 (1911) the court stated:

“At common law, it is well settled that one who is compelled to pay the debt of another is entitled to be substituted to the rights of the creditor. * * *
The general rule is that a surety who pays the debt of his principal will be subrogated to all the securities, liens and equities, rights, remedies and priorities held by the creditor against the principal. and entitled to enforce them against the latter in a court of equity or of equitable jurisdiction.”

A more recent case, Payne v. Standard Accident Insurance Company, Ky., 259 S.W.2d 491 (1952) states as dictum that:

“It is recognized that the payment of an obligation by a surety ordinarily entitles him to suborgation to all of the rights, remedies and equities of the ob-ligee.”

Language to this effect is also found in National Surety Corporation v. First National Bank, 278 Ky. 273, 128 S.W.2d 766, p. 769 (1939).

The trial court held that KRS 342.180 barred Non-Marine from succeeding to any of the priority rights the workmen’s compensation claimants might have had against the Carrs Fork Coal Company by virtue of KRS 342.175 which gives them preferred claims.

KRS 342.175 states that:

“All rights of compensation granted by this chapter shall have the same preference or priority for the whole thereof against the assets of the employer as is allowed by law for any unpaid wages for labor.” (KRS 376.170, priority for wages.)

KRS 342.180 reads:

“No claim for compensation under this chapter shall be assignable; and all compensation and claims therefor shall be exempt from all claims of creditors.”

Counsel for Non-Marine argues that the purpose of KRS 342.180 was “to protect the claimant from his own improvidence”, thereby further insuring the effectiveness of workmen’s compensation as social legislation, and he points to the fact that the statute exempts all compensation and claims from claimant’s creditors. He contends that where the claimant has been paid his claim in full, the provision against assignability has no application. We think counsel is correct in his contention.

We conclude, therefore, that appellants are subrogees of claims which “have the same preference or priority * * * as is allowed by law for any unpaid wages for labor”. The losing party here would have been in the same position if the wage claims had been paid directly from the assets of the company in the first place.

The judgment is reversed.

All concur.


author: CLAY, Commissioner.

text:
    The KENTUCKY TRUST COMPANY, Executor, etc., Appellant, v. DEPARTMENT OF REVENUE, Commonwealth of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.

      William B. Peden, Jones, Ewen, Mac-Kenzie & Peden, Louisville, for appellant.
    Robert Matthews, Atty. Gen., William S. Riley, Asst. Atty. Gen., Cyril E. Shad-owen, Frankfort, for appellee.
   CLAY, Commissioner.

This is an appeal from a judgment affirming an order of the Kentucky Tax Commission imposing an inheritance tax on the proceeds of a life insurance policy held in trust subject to a power of appointment.

Frank Brandon, prior to his death in 1960, had entered into a life insurance trust agreement with appellant as trustee. It provided that the insurance proceeds should be divided into Trust A and Trust B. His widow was the income beneficiary of both trusts for life, with power in the trustee to encroach on the principal for her benefit, first from Trust A and then Trust B. Upon her death the corpus of Trust B should pass to her children, and the Department of Revenue concedes the insurance proceeds allocated to this trust were exempt from taxation, for reasons which will appear. However, because the widow, by the trust agreement, was given power to appoint by will the corpus of Trust A remaining at her death, the Department contends the insurance proceeds in Trust A were taxable.

KRS 140.010 imposes an inheritance tax on all property “belonging to” inhabitants of this state “which shall pass” by will, or by the laws regulating intestate succession, or by deed, grant, bargain, sale or .gift, made in contemplation of, or to take effect on death. It is arguable that this statute does not encompass life insurance proceeds, on the ground that such proceeds neither “belonged to” the deceased, nor did they “pass” from the deceased to the beneficiary by the described methods of transfer. See cases cited in 73 A.L.R.2d 171. However, we need not resolve that question.

KRS 140.030(2) deals specifically with proceeds payable under life insurance policies. It first provides that such proceeds “payable to the assured or his estate, shall be taxable * * To make it clear that proceeds otherwise payable are not taxable, this statute declares:

“The proceeds of an insurance policy payable to a designated beneficiary other than the assured or his estate or a trustee of a designated beneficiary other than the assured or his estate shall he tax-free (Our emphasis)

In Luckett v. First National Lincoln Bank of Louisville, Ky., 409 S.W.2d 518, we examined the reasons why this language, seemingly superfluous, was incorporated in the statute.

It is not questioned that the insurance proceeds here involved were payable to -a “trustee of a designated beneficiary other than the assured or his estate * * * That should end the matter. This kind of property, by specific legislative direction, is not subject to the Kentucky inheritance tax.

The Commonwealth, however, will not give up so easily. It is contended that a species of property, other than insurance proceeds, passed to the widow under the trust agreement. What was this other property? Allegedly the power of appointment.

KRS 140.040(2) provides for the valuation of property which passes at the death of the donor under a power of appointment. Clearly this relates to taxable property. Insurance proceeds are not taxable under the specific provisions of KRS 140.030(2). To segregate the power of appointment from the property to which it relates seems to us an impossible task. Such power is simply one of the incidents of a beneficial right in the proceeds.

If these insurance proceeds had been payable to the widow outright, they would not be taxable. It would take rather clear statutory language to evince a legislative intent to tax those proceeds simply because she acquired a lesser beneficial interest. Regardless of the nature of the interest, the statute, KRS 140.030(2), provides that the proceeds shall be tax-free. As we said in Luckett v. First National Lincoln Bank of Louisville, Ky., 409 S.W.2d 518, 520:

“The purpose of the statute we are considering was to tax life insurance proceeds which actually pass through the assured’s estate by reason of his death or by reason of his testamentary disposition. If some beneficial interest therein had been created in another, or others, prior to his death, the proceeds were not taxable.” (Our emphasis)

The Department takes the position that since KRS 140.010 imposes a tax on “all” property, and KRS 140.040 governs “every transfer of property by means of a power of appointment”, the general provisions take precedence over the specific. Of course, as a matter of statutory construction, it is the other way around. Morton v. Auburndale Realty Company, Ky., 340 S.W.2d 445.

The Tax Commission in its order concluded that the tax was on an “entity” other than the “proceeds”. The Chancellor in his memorandum opinion expressed the view that the transfer of the power of appointment passed to the beneficiary a portion of the trustor’s estate other than the insurance proceeds. These concepts overlook the fact that the power granted is simply a beneficial interest in the proceeds. It is not carved out of the estate of the deceased and has no significance or value apart from the property to which it attaches. The statute declares the insurance proceeds tax-free. We must accept this plain direction.

The argument is made by the Department that this interpretation of the law would exempt two successive estates, since the residue of the property which would pass, if the power was exercised, would not be taxable. That question is not here involved and is not decided.

It is unnecessary for us to consider the additional contention of the taxpayer that KRS 140.030 (which declares insurance proceeds nontaxable) should prevail over KRS 140.040 (relating to powers of appointment) because the former was a later statute. Nor is it necessary to construe the term “exemption” in KRS 140.040(2), or to seek an interpretation most favorable to the taxpayer. We simply cannot hurdle the statutory language declaring tax-free the insurance proceeds payable to the trustee and allocable to Trust A.

The judgment is reversed.

All concur.

      . A commonly used provision to qualify for the “marital deduction” under the federal estate tax law.