author: ANDERSON, Presiding Judge.

text:
    Leslie J. DEFFENDOLL, Employee, Claimant-Appellant, v. STUPP BROTHERS BRIDGE & IRON COMPANY, Employer, and Employers Mutual Casualty Company, Insurer, Respondents.
    No. 32647.
    St. Louis Court of Appeals. Missouri.
    April 18, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 18, 1967.

      Douglas W. O’Neill, St. Louis, for claimant-appellant.
    Luke, Cunliff, Wilson, Herr & Chavaux, St. Louis, for respondents.
   ANDERSON, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, affirming the order of the Industrial Commission denying compensation to claimant, Leslie J. Deffendoll, on his claim for workmen’s compensation benefits against his employer, Stupp Brothers Bridge and Iron Company and its insurance carrier, Employers Mutual Casualty Company.

The claim was filed June 9, 1964. It was signed, “Leslie Deffendoll by Max M. Librach.” Milton R. Fox and Max M. Librach were designated in said claim as claimant’s attorneys. The claim alleged the date of the accident as April 25, 1964; that the part of the body injured was the “back and entire body;” and that the accident happened when claimant was employed as an iron worker’s helper and while so employed, claimant “slipped into track and tripped over against an iron rail.” The matter was heard before the Referee on a Second Amended Claim filed January 27, 1965. This claim was signed by claimant, and Douglas W. O’Neill was designated therein as his attorney. In said claim, the injury alleged was alleged to be, “low back strain and herniated discs.” Temporary disability to date was stated to be 30 weeks and the nature of permanent injury was alleged to be “low back strain and herniated disc of back, disabling pain in legs and low back;” and that the accident happened when “employee was riveting a railroad trestle floor, and as he reached down to pick up an air wrench he slipped on metal chips on a narrow gauge railroad track that ran through the factory, lost his balance and fell twisting and wrenching his back.”

The Employer and Insurer filed an answer which admitted that claimant was an employee of Stupp Brothers Bridge and Iron Company; and that the parties were operating under and subject to the provisions of the Missouri Workmen’s Compensation Law. These admissions were followed by a general denial of each and every other allegation contained in said Second Amended Claim.

The matter came on for hearing before a Referee of the Commission and on June 23, 1965, the Referee found in favor of the Employer and Insurer reciting that, “I find from all of the evidence that Leslie J. Def-fendoll, employee herein, did not sustain an accident on April 25, 1964, arising out of and in the course of his employment with Stupp Brothers Bridge and Iron Company. Compensation, therefore is denied.”

On June 24, 1965, claimant filed an application for review by the Industrial Commission. Thereafter, the Commission upon review, adopted the Referee’s findings of fact, his rulings and conclusions of law and affirmed said Referee. Claimant, in due time, appealed to the Circuit Court. The latter, as heretofore stated, affirmed, and from the judgment of affirmance the appeal to this court was taken.

Appellant contends that a statement obtained by respondents from claimant should not be considered upon review because it was improperly admitted in evidence, and that with its elimination from consideration the award was contrary to the overwhelming weight of the evidence.

At the hearing before the Referee it was admitted by the parties that on April 25, 1964, Stupp Brothers Bridge and Iron Company was an employer operating under the provisions of the Missouri Workmen’s Compensation Law; that any liability of Stupp Brothers under the law was fully insured by Employers Mutual Casualty Company; that on April 25, 1964, claimant was an employee of Stupp Brothers and was working under the provisions of the Missouri Workmen’s . Compensation Law; that a claim for compensation under said law was filed within the time prescribed by law; and that the employee’s average weekly wage was in excess of $71.25.

Claimant testified he went to work for Stupp Brothers on February 25, 1964, and on April 25, 1964, was working in the rivet shop. He further testified that, on the latter date, he used an air wrench to tighten bolts; that after he had tightened the bolts, he laid down the wrench and later picked it up; that while in the process of picking it up his foot slipped on metal chips on the floor and he fell; that he went down on his right knee and his left foot caught in one of the rails of a narrow gauge railroad track that ran through the shop preventing him from falling all the way; and that on the way down his body turned. He further stated that after the fall he could not stand erect; that two of his fellow employees assisted him to the plant dispensary; that the nurse there sat him on a chair and called Dr. Benjamin, the company doctor; that the nurse and two clerks from the company office took him to Dr. Benjamin’s office; that Dr. Benjamin took one x-ray and told claimant he had a ruptured disc; and that he was then that same day, taken by ambulance to Alexian Brothers Hospital; that he remained in the hospital until May 5, 1964, but re-entered the next day and stayed until May 10, 1964; that he was hospitalized at said hospital again from October 26, 1964 through November 11, 1964, and again from November 23, 1964 through December 3, 1964; that from April 25, 1964 to April 29, 1964, he was in traction; and on April 28, 1964, a myelo-gram was performed. Claimant further testified that on April 30, 1964 one of his doctors performed an operation. He did not reveal the nature of the operation. During his stay in the hospital which began October 26, his treatment consisted of back manipulation. During his stay in the hospital which began November 23, his doctors performed a laminectomy operation. Claimant did no work after the date of the alleged injury until August 18, 1964, when he went to work for Falstaff Brewing Company. He worked there until he went to the hospital on October 23, 1964. He returned to work at Falstaff on January 21, 1965.

Claimant further testified that Stupp Brothers terminated his employment in May, 1964, when he got out of the hospital. He claimed lost wages from April 25, 1964 to August 18, 1964 when he went to work for Falstaff, and from October 26, 1964 when he re-entered the hospital until January 21, 1965, the day he returned to work at Falstaff. Claimant testified that during all this time, he suffered severe pain in his back and right leg. He further testified that his back still bothered him; that he had to quit a night job at Complete Auto Transfer after working one night because his back hurt him so bad; that his lifting is limited as compared to his ability in that respect before the accident; and that if he walks too much he has to sit down because of pain in his back. Dr. William A. Stephens testified that he rated claimant’s disability as being 30% of a man as a whole, and in response to a hypothetical question stated that the accident described caused his present condition.

The statement which claimant contends was not admissible was taken April 29, 1964, while claimant was in the hospital. It was in question and answer form. The questions were asked by Adrian DeYong, Jr., a member of the bar who was at that time employed by the attorneys for the employer and insurer. The question and answers thereto were taken down in shorthand by Mr. Frederick W. Schaefer, a Court Reporter and later transcribed by him. The parts material to the issues are as follows: “Q. Let me ask you this, what happened? A. Well, I finished tightening bolts on the diaphram, and I reached down and I picked up this air wrench, it was maybe ten, fifteen pounds. I just reached down and picked it up. I have done that a hundred times, I guess, and when I picked it up I felt the sharp pain in my back and that was it. I straightened up once and it was so doggone painful I just had to naturally bend back over again, you know, and I told the guy I was working with about it. He told me to go over to the nurse, and then I found out I couldn’t put any weight on the side. Q. You picked up an air wrench of ten or fifteen pounds? A. Yes, sir. Q. Did you slip or fall? A. I never slipped. I don’t recall any slipping or anything. * * * A. * * * Heck, I do something like that a hundred times. I have lifted a lot of weight, but none of it ever did hit me like this did. I couldn’t tell you how it happened to save my life other than, you know, lifting up that wrench. Q. I believe you said there was no slip or fall or anything? A. I don’t think there was. Q. What were you standing on? * * * A. Concrete floor. Q. Was it wet or anything? A. No, see, we have got tracks that run in there. It all happened so fast I could have slipped on a track. I don’t know. I wouldn’t swear that I didn’t and I wouldn’t swear that I did. All I know I reached over to pick up that gun and when I did I got it right in the middle of my back. Q. Were you bent over when this happened or straight ? A. I think I was bending over, I’m not sure. Q. Had you started to straighten up? A. I was lifting it up when it happened. I am pretty sure I — sometimes it’s a little hard to remember, but I am sure I was bending over and I picked it up like that, and when I did I got it in the back. Q. Did you remain standing? A. Yes, not straight. Q. But, I mean, you remained on your feet ? A. I was leaned over, see, lean against this beam, and I started to straighten up, and I tried to straighten up, and I did, and it hurt too bad so I just leaned back over again. Q. But, I mean, you didn’t fall all the way down or anything like that ? A. No. * * * Q. Was this a straight lift or were you twisting as you came up? A. No, I think it was just an ordinary straight lift. I don’t know, it could have been twisted. See, it’s hard to remember something like that, you know. I don’t think I was twisted. * * * I could have been turned a little bit or something, I wouldn’t swear to it. Q. But you don’t know? A. I don’t know, this happened so quick. * * * Q. You were just lifting a ten to fifteen pound air wrench? A. Right. Q. No slip or fall? A. None that I know of. Q. Were there any wet places on the floor, for example? A. No. It’s like I say, the track could have been slippery, it’s steel. Q. Is that a raised track or is it flush in the concrete? A. Well, its about flush, I would call it. Q. But there was no accident that you can think of? A. None that I can think of.”

Appellant’s first point seems to be that the statement should not be considered on review because it was shown that at the time it was taken, claimant was in such pain and so far under the influence of drugs that his mind was confused to the extent it rendered said statement wholly unreliable and therefore inadmissible.

Claimant testified that on April 29, 1964, the date the statement was taken, he was given two “shots,” one early in the morning and one at 12:30 p. m., and that between “shots” he was given “pain pills.” The nurse’s notes of that day, which was a part of the hospital record, recite that at 12:30 the patient “complained of severe pain in lower back and thighs — RX given.” From this evidence, appellant in his brief states that claimant had been injected with 100 Miligrams of Demerol one half hour before his statement was taken, his testimony being that DeYong arrived at one o’clock p. m. with the Court reporter and began his interrogation immediately thereafter.

William Friedlin, Director of Nurses at the hospital, testified that the primary purpose of Demerol is to relieve pain, and that it will produce drowsiness.

Claimant testified that one of the men who called upon him to take his statement said they represented Employer’s Mutual Insurance Company; that he gave them some kind of a statement but that he was in such extreme pain and also under the effects of “that shot” that “I couldn’t know what I said.” He then testified that he was asked questions with regard to the injury sustained while at work. Later he gave the following testimony: “Q. Give us the best of your recollection what your discussion was with him on that day? A. Actually, all I remember is him asking me some questions and that’s about all. Q. What did the questions deal with ? A. That I don’t know altogether. Q. Do you remember what any of the questions dealt with? A. No. * * * You see at that time I was in such terrific pain that I couldn’t think very straight * * * everything was kind of confused a little bit.”

DeYong testified that before taking the statement he told claimant his name; that he represented Stupp Brothers in Compensation matters and wanted to ask him about the occurrence that had been reported to them. He said he arrived about 2:30 or 3:00 in the afternoon; that claimant was in bed at the time; that claimant did not at any time during the interview make any complaint of being in pain or complain about his physical condition during the time he was there; that there was nothing unusual in claimant’s appearance; that Mr. Deffendoll’s condition appeared at the time normal, that is, as normal as you could expect to find a patient in a hospital bed; that he was not overactive but did not give any indication of being tired or not desiring to talk; and that claimant responded to the questions asked in an alert and normal manner; and in fact volunteered considerable information. The witness further testified that claimant did not give the appearance of being under sedation.

Claimant admitted he had served five years in the penitentiary upon a conviction for armed robbery and had received a dishonorable discharge from the U. S. Army on June 23, 1954. He received psychiatric care in three different hospitals in 1965, and electroshock therapy at St. Mary’s Hospital the same year.

After considering the foregoing evidence concerning the circumstances under which the statement was taken, we are of the opinion there is no merit to the point urged. A statement containing admissions against interest, such as the one in question, is admissible unless it is shown that it was taken when the person giving it was under such a mental state that he was unable to narrate facts and events in a way to be relied on; and whether it should be excluded on that ground is a matter of discretion. Claimant testified that at the time he was questioned he was in such great pain and so far under the influence of drugs that he was confused and could not think straight; that he could not know what he said. On the other hand, DeYong testified that claimant made no complaint of being in pain and did not appear to be under medication. He further stated that claimant responded to the questions asked in an alert and normal manner.' It further appears that in response to Mr. DeYong’s questions, claimant gave a great deal of information about his personal history and background which claimant does not question. It thus appears there was an issue of credibility which the referee resolved in respondent’s favor by admitting the statement in evidence, and while his ruling is not binding on review it is entitled great weight where it is urged that the evidence should not be considered.

Appellant’s second point is that the statement was not admissible and should not be considered on review because the respondents failed to comply with the Section 287.215, RSMo. 1959, V.A.M.S. Said section provides that no statement given by an injured employee shall be admissible in evidence in any action for recovery of benefits under the Workmen’s Compensation Law unless a copy thereof is furnished the employee or his attorney within seven days after written request for same.

In support of this assignment, claimant identified a letter dated December 24, 1964, addressed to Stupp Brothers Bridge & Iron Company. Said letter reads as follows:

“Dec. 24, 1964
Stupp Bros. Bridge & Iron Co.
3800 Weber Rd.
Lemay, Missouri
Dear Sir
Please send me a copy of the statement I gave to your insurance company man about how I was hurt on the job in April, 1964. He took the statement about April 27,1964.
Thanks
Leslie Deffendoll
205 W. Loretta
St. Louis 25, Missouri”

Claimant testified he did not mail this letter but delivered it personally. He stated he received an answer by regular mail nine days later on January 2, 1965. On cross-examination, he testified that he delivered his letter to a receptionist at a desk at about ten o’clock a. m.; that he gave the copy of the statement he received in response to his letter to his attorney, Douglas O’Neill, but did not have the envelope in which the statement came. He identified a copy of the letter he received with the copy of the statement. This letter was dated December 29, 1964. It was addressed to claimant and recited: “In compliance with your request of December 24, 1964, we are enclosing copy of your statement.”

Albert Cunliff, attorney for respondents, testified he received the letter from claimant dated December 24, 1964. He stated that “we received Mr. Deffendoll’s letter by mail and we sent the reply by mail.” He further testified he did not know the date claimant’s letter was received, but that he replied to it December 29, 1964. He stated he had had offices in the downtown area since 1930, and it was his experience over the years that letters mailed in the downtown area before the six o’clock p. m. delivery will be delivered in the city and county area the next morning; and letters addressed to his office posted in St. Louis up until six p. m. will be delivered at his office in the early morning delivery. He further testified that the letter to claimant enclosing a copy of his statement was typed December 29, 1964, and that he personally took it to the mail chute and deposited it during the early part of the afternoon of that day; that in the normal course of events it would have been received by claimant on December 30.

Here again is presented an issue of credibility. It has been held time and again that the Commission does not have to accept the testimony of a claimant as true. This is especially true if there is a substantial basis from all the evidence for a finding that such testimony is untrue. Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136; Banks v. City of Hannibal, Mo.App., 283 S.W.2d 909, 1. c. 913; Miranda v. American Refrigerator Transit Co., Mo.App., 392 S.W.2d 413.

Although claimant in the case at bar, testified he delivered his letter dated December 24, 1964, in person on that date, there was substantial basis in the evidence for disbelieving this testimony. Mr. Cun-liff testified that the letter was received through the mail. Furthermore, it is unlikely that claimant would undertake to personally deliver the letter since there was no such urgency that would require such haste and the mails were readily available. The case was not at that time set for hearing. It was tried before the Referee on June 17 and 18, 1965. We do not believe claimant’s testimony, but are convinced he did send the letter through the mail as testified to by Mr. Cunliff. We also believe that since judicial notice will be taken of the usual course of business of the mails, 31 C.J.S. Evidence § 52, p. 1049, said letter could not have been received by the addressee before December 26, 1964, the day after Christmas. It is common knowledge that mail is not delivered on Christmas Day. There was therefore compliance with the seven day rule since claimant testified he received the statement on January 2, 1965, seven days after receipt of claimant’s demand.

It further appears from the evidence that on June 16, 1964, Max M. Librach, a member of the bar, wrote a letter to Mr. A. E. Cunliff requesting a copy of the statement in question. On June 17, Mr. Cunliff replied and attached to his reply was a copy of the statement. Mr. Librach, as heretofore stated, had prepared and filed claimant’s original claim on June 9, 1964, in which he and Mr. Fox were listed as claimant’s attorneys. Mr. Librach testified that Mr. Milton Fox was claimant’s original attorney and that Mr. Fox took him in as co-counsel to handle Mr. Def fendoll’s claim. On cross-examination, he testified that he had no retainer contract with claimant, but that claimant came to his office and that he advised him on several matters. He stated that on July 21, 1964, both he and Mr. Fox withdrew as attorneys for claimant. This was accomplished by a letter to the Commission of that date.

Claimant’s version of his relationship with Mr. Librach appears in his cross-examination and is as follows:

“Q. How long was Mr. Librach your attorney? A. Approximately thirty days. Q. * * * When did you discharge Mr. Librach? A. About thirty days after I had him. * * * I know he was in with Mr. Fox, but I don’t know how long Mr. Fox had brought him into the case or discharged him. Q. Well, there is a claim in the file of the Commission here in which we have a copy dated June 9, 1964, filed on your behalf by Mr. Milton R. Fox and Mr. Max M. Librach? A. Yes, sir. Q. Were they your attorneys as of June 9, 1964? A. I guess Mr. Librach was. I don’t know. * * * All I know is he filed the petition. Q. Filed the claim? A. Filed the claim, yes, sir. Q. And, then, how long after he filed the claim did you discharge Mr. Librach? A. It was sometime in June that I discharged him. Q. Now, I show you a sheet of paper that has been marked Employers and Insurer’s Exhibit 3 on the stationary of Max M. Librach, dated June 16, 1964, and ask you if Mr. Max M. Librach — was Max M. Librach your attorney at or about that time? A. Yes, sir.”

Sometime thereafter, claimant was recalled to the witness stand by his present counsel to testify further with respect to his representation by Mr. Librach. He stated he never retained Mr. Librach as his attorney; that Mr. Fox retained Mr. Librach which fact he did not know until after the first claim was filed; that he hired Mr. Fox to work on his case because he wanted Mr. Fox to work on it and not somebody else, and that was one of the reasons he discharged Mr. Fox; that he had never seen Mr. Librach but once and that was when Mr. Librach brought insurance papers from the Aetna Insurance Company to him on May 5, 1964 when he got out of the hospital; that he was in Mr. Librach’s office one time for about two minutes when Mr. Fox took him there to introduce him to Mr. Librach; that Mr. Librach did not say he was handling the case for Mr. Fox; and that about two weeks after May 5, 1964, he learned that Mr. Librach was associated with Mr. Fox in the case.

From the above testimony, it seems clear that Mr. Librach was one of claimant’s attorneys when he requested a copy of the statement on June 16, 1964. Claimant so testified on cross-examination. His subsequent testimony is far from convincing and did not destroy his previous positive testimony. We therefore hold that there is no merit to appellant’s contention that respondents failed to comply with the so-called seven day rule. His attorney received a copy of the statement on June 17, 1964, and claimant himself received a copy of same on January 2, 1965, seven days after respondents received claimant’s demand contained in his letter dated December 24, 1964. No error was committed in admitting it in evidence, and it was evidence to be considered on review. There was therefore substantial evidence from which the Commission could reasonably find that claimant did not sustain an accident, nor was the decision contrary to the overwhelming weight of the evidence. The finding is not only supported by the admissions contained in the statement, but by the fact that claimant when giving a history of the incident at the hospital made no mention of any slip or fall preceding his alleged injury.

The judgment of the Circuit Court is affirmed.

RUDDY, J., concurs.

WOLFE, J., not participating.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    Frank VOGLER, Individually, or d/b/a Ken-Apex Oil Company, etc., et al., Appellants, v. SALEM PRIMITIVE BAPTIST CHURCH et al., Appellees.
    Court of Appeals of Kentucky.
    May 12, 1967.

      W. D. Bratcher, Greenville, Benjamin C. Cubbage, Jr., Henderson, for appellants.
    Thomas B. Spain, Mills, Spain & Mitchell, Madisonville, for appellees.
   MONTGOMERY, Judge.

This controversy concerns the ownership of a cemetery and vacant church lot. It was sparked by the competing interests under two oil and gas leases. It is to be decided on the question of whether the founding congregation, originally known as the Regular Baptist Church “on/at Flat Creek,” believed in absolute predestination or limited predestination. The Chancellor found in favor of those believing in limited predestination.

The rule in such cases was stated in Fleming v. Rife, Ky., 328 S.W.2d 151:

“It is settled in this state that where there is a schism in a congregational church, the majority group are entitled to exclusive use of the church property, unless they have departed from the fundamental doctrines of the church as advocated and practiced at the time of its organization; and in the event they have so departed, then the group adhering to such doctrines is entitled to the premises. Parker v. Harper, 295 Ky. 686, 175 S.W.2d 361; Bunnell v. Creacy, Ky., 266 S.W.2d 98. In such cases the determining question is which faction of the church is adhering to its fundamental doctrines.”

See also Whitley City Church of Christ v. Whitley City Christian Church, Ky., 373 S.W.2d 423; Cantrell v. Anderson, Ky., 390 S.W.2d 176.

The Flat Creek Church was organized prior to 1824. It acquired title to the lands in question in 1824 and 1872. The church building “disappeared” about twenty years ago, but the cemetery has continued in use. The last services in the church were held between 1930 and 1940.

Appellee Salem Primitive Baptist Church claims title as the successor to the original church under a merger in 1957. C. B. Ames, d/b/a Ames Oil and Gas, claims under a lease from the Salem Church. Appellants claim under a lease executed by three trustees appointed by the Hopkins County Court “for the purpose of managing and caring for said Cemetery.” In the lower court Mona Florence McGregor and Paul C. Mc-Gregor intervened and claimed title as a member and a trustee, respectively, of the Regular Baptist Church of Flat Creek. The McGregors represented the “absolute or unlimited predestination” element of the church. They are not parties to this appeal. The contest now is essentially between ap-pellee Salem Church, found by the Chancellor to be the successor and representative of the “limited predestination” founding group, and the claimant under the lease granted by the trustees appointed by the county court.

The Chancellor found that the founders believed in “limited predestination” ; that a schism occurred in the church around the turn of the century; that the predecessors of the intervenors, who believed in “absolute or unlimited predestination,” expelled the predecessors of the group which merged with the Salem Church; and that the expelled members continued to hold separate services in the same church until they moved their meeting place to Morton’s Gap, about one and one-half miles away. It was found that the “Articles of Faith” of the old church, as originally founded, were continued as the “Articles of Faith” of the group merged into the Salem Church. Without detailing the evidence, it has been examined and is found to support the findings of the Chancellor. Minutes of the church records were placed in evidence.

As the matter now stands, appellants, claiming under the lease from the trustees appointed by the county court to manage and care for the cemetery, maintain that the evidence is insufficient to sustain the judgment; there was no proof of merger; ap-pellees are barred by laches, and were barred by the expulsion; the county court lease is valid; and the intervenors had acquired title by adverse possession.

Obviously the appellants do not claim title from the intervenors and, therefore, cannot assert title in the intervenors by adverse possession. The intervenors in the lower court denied appellants’ title and did not appeal from the court’s denial of their claim of title. Further, the contentions of adverse possession and laches are not based on any pleading. Such defenses are affirmative and must be set forth by pleading and in numbered paragraphs; otherwise, they are waived. CR 8.03, 10.02. Tornello v. Deligiannis Bros., 7 Cir., 180 F.2d 553. Appellants are in no position to assert either contention.

As to the failure to prove merger, a witness who was present at the meeting testified to it and offered to present the church record if requested. No such request was made. Appellants attacked this proof on the ground that the witness’ testimony was not the best evidence. Here, the witness was testifying concerning the proof of the fact of merger and not as to the contents of a writing. It was unnecessary to prove the record in view of the oral testimony. See Catlin v. Justice, 288 Ky. 270, 156 S.W.2d 107.

In contending that the evidence is insufficient to sustain the judgment, appellants rely on the line of cases holding that the burden is on the party seeking to have title quieted to establish ownership and possession by record title or adverse possession. While the rule may not have complete application here because of the peculiar facts, it affords guidance. None of the parties to this appeal asked specifically to have title quieted, but, in substance, each of them asserted title: appellees by their complaint and appellants by a counterclaim.

The rule in such case is that the plaintiff, appellees here, must succeed on the strength of his title. KRS 411.120. Letcher County Coal & Implement Company v. Marlowe, Ky., 398 S.W.2d 870; Aluminum Company of America v. Frazer, Ky., 328 S.W.2d 142. The Chancellor decided that by reason of the merger and by reason of the schism rule, as previously discussed, the Salem Church had title. It was unnecessary for appellees to prove possession where appellants by counterclaim asserted title, since in such case the requisite proof of possession is waived. Kephart v. Rucker, Ky., 379 S.W.2d 244. The rule also is that a defendant, such as appellants, in such an action is not entitled to affirmative relief under a counterclaim when he fails to show title in himself although the burden is on the plaintiff, appellees here, to establish his title as a condition precedent to recovery. Simpson v. Howard, 201 Ky. 153, 256 S.W. 21; Hunt v. Cassity, 297 Ky. 716, 181 S.W.2d 248. Appellants’ contention as to the insufficiency of the evidence fails.

Here, the only right claimed by appellants is by virtue of the lease executed by trustees appointed by the county court under authority of KRS 273.130. The statute is based on the premise that a religious society holding land has dissolved.

The Chancellor, in effect, found that the original religious society had not been dissolved but had continued and merged into the Salem Church; hence, the appointment of the trustees was not authorized and the lease executed by them was void.

Finally, appellants claim that the expulsion of the minority group from the church deprived them of-title. This contention is at odds with the rule already quoted and appears to rest on a misconstruction of it. The last portion of the quoted rule contains the key: which faction of a congregational church adheres to the original tenets upon which the church was organized? It matters not whether it is the majority or minority faction so long as it adheres to the original tenets. The rule is for the protection of those who so believe even though, as often happens, some stranger enters the church and persuades a majority of the congregation to believe other than the original tenets. This is the source of trouble in most of the church dispute cases. A careful reading of the many cases supports this view. In this instance the expelled members were the predecessors of the group which merged with the Salem Church, and under the rule retained title to the church property.

Judgment affirmed.

All concur.


author: MILLIKEN, Judge.

text:
    TOLL ROAD STONE COMPANY, Appellant, v. Phillip COX et al., Appellees.
    Court of Appeals of Kentucky.
    May 12, 1967.
    William Lehnig, Louisville, for appellant.
    Robert C. Carter, Glasgow, for appellees.
   MILLIKEN, Judge.

This is an appeal of a judgment affirming an award of the Workmen’s Compensation Board for a total permanent disability.

Phillip Cox, the appellee, was the operator of heavy road building equipment, was twenty-two years old in October, 1961, when his injury occurred, and had an average weekly wage of $170. The Full Board delayed its conclusion until an examination by a physician appointed by it and the receipt of his report, then awarded Cox $36 a week for 425 weeks after approving the finding of its referee that Cox was totally and permanently disabled from further performing the type of work required of an operator of heavy road building equipment and we think, as did the trial court, that there is sufficient evidence to sustain the Board’s award.

The thrust of appellant’s contention is that there was not sufficient probative evidence to justify the extent of the award, and appellant points to the fact that Cox was inducted into the army after his injury and served in Europe until his discharge in April, 1965. Except for Cox’s operation of a jeep while in military service, there is no elaboration of the extent of his activities during his service. We are left with the usual question of whether the medical testimony was of sufficient probative value to sustain the award, an award which was rendered by the Full Board after Cox’s return from military service and after his examination by a Board-appointed orthopedist. All other salient facts were stipulated.

Two general practitioners, who had treated Cox after he had the hernia he received in the accident corrected by surgery, concluded that he was unable to do heavy work. One said that Cox had symptoms of in-tervertebral disc injury, for he complained of backache and pain down his leg and muscle spasms in the lower back were visible. This physician referred Cox to a Nashville neuro-surgeon for consultation who found no muscle spasm but tenderness over the lumbosacral joint space. The Nashville specialist recommended certain exercises to strengthen ligaments and muscles around the area of the lumbar spine to prevent or contain possible disc protrusion. This specialist thought Cox could operate heavy equipment so long as it involved no heavy lifting and he sat on a substantial cushion. The general practitioner found no improvement in Cox during the six months’ period in which he treated him.

Another physician who treated Cox in 1962 and 1963 X-rayed him and found no-bone injury, but did find tenderness over the lumbosacral region. When Cox showed no-improvement, the doctor concluded that Cox had suffered a sacroiliac joint injury and that he had in all probability a permanent injury to his hip joint. He said that Cox could not operate heavy road equipment.

Even one of the employer’s medical witnesses admitted he found tenderness in the lower back and minimal objective signs of nerveroot involvement in the lower spine, mild restriction of movement in the right sacral area, and impaired sensation in the right foot. X-ray photographs taken several months apart indicated minimal nerve involvement and no change of condition. He opined that Cox either had a mild disc lesion or maladjustment, or residual nerve-root involvement. He thought Cox’s condition needed further looking into.

The orthopedist appointed by the Board said his X-ray photographs revealed Cox had a moderately degenerative lumbosacral disc interspace which might or might not be related to the accident. He found indications of nerveroot irritation, but that his physical findings did not confirm disc trouble. He thought Cox could resume his work in all probability, for he thought that the mild narrowing of the interspace revealed by the X-rays was not necessarily of significance. He concluded that if Cox really had a disc injury he would not be able to handle heavy equipment.

We conclude that there was substantial evidence to sustain the award and, therefore, the judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    Alfred RAY, d/b/a Al’s Ambulance Service, Appellant, v. CITY OF OWENSBORO, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 12, 1967.
    John D. Miller, Owensboro, for appellant.
    William T. Carroll, Owensboro, for ap-pellee.
   OSBORNE, Judge.

Appellant, A1 Ray, doing business as Al’s Ambulance Service, instituted this proceeding in the Daviess Circuit Court seeking an injunction enjoining the City of Owensboro from enforcing an ordinance requiring a franchise for the operation of an ambulance service within the city. In January of 1964 the City adopted an ordinance, the pertinent parts of which read as follows:

“SECTION 1. From and after the effective date of this Ordinance it shall be unlawful for any person, partnership, corporation, firm or other legal entity to operate an ambulance service in the City of Owensboro, Kentucky, either as a single enterprise or in connection with the operation of another business without first obtaining a franchise from the City of Owensboro, Kentucky, to operate such ambulance service.
“SECTION 2. Any person, partnership, corporation, firm or other legal entity violating this ordinance shall be fined not less than TWENTY-FIVE DOLLARS ($25.00) nor more than FIFTY DOLLARS ($50.00), or be subject to imprisonment for not less than ten (10) days nor more than thirty (30) days, or to both such fine and imprisonment. Each day of. violation of this ordinance shall constitute a separate offense.”

Pursuant to this ordinance, the city granted the Community Ambulance Service, Inc., the “right and privilege to operate an ambulance service within the corporate limits of the city of Owensboro * * * for a period of ten years from the effective date thereof.

“The right herein granted expressly includes the right to operate ambulances on the streets, alleys and public ways of the city of Owensboro, said ambulances being declared to be ‘authorized emergency vehicles’ as defined by section 22-2(2) of the Code of Ordinances of the City of Owens-boro, Kentucky.

“The said Community Ambulance Service, Inc., shall at all times during the franchise period have a minimum of two ambulances available for service, together with the necessary qualified personnel to operate same. Reasonable charges only may be made for such ambulance service and no person shall be reasonably refused such service.”

The respondent city filed an answer admitting the enactment of the foregoing ordinance and admitting the awarding of the franchise. In the appellant’s complaint, he alleges that he is a citizen of Daviess County, Kentucky; alleges the enactment of the ordinance and the awarding of the franchise thereunder; states that he is the owner and operater of an ambulance service in Daviess County outside of the city limits of the City of Owensboro; that on September 29, 1964, he delivered an injured person to the Owensboro-Daviess County Hospital and that soon thereafter a warrant for his arrest for violation of the ordinance was issued. Appellant alleges that he was convicted and fined the sum of $25 in the Owensboro Police Court. He alleges that the franchise issued by the city is exclusive and that the city will not issue him a franchise to operate therein.

Appellant alleges that the ordinance is invalid because the city had no constitutional or legislative authority to enact it; that the ambulance business is not a proper subject for franchise by governmental authority; that the ordinance violates his rights guaranteed under section one, paragraph five of the Kentucky Constitution and section one of the fourteenth amendment to the United States Constitution.

We believe the only question to be answered is whether the city had constitutional or legislative authority to enact the ordinance and included in this question is the question of whether the operation of an ambulance service is a proper subject for franchise by governmental authority. If the city had authority to enact the ordinance, certainly appellant has not been denied “[t]he right of acquiring and protecting property” under section one, paragraph five of the Kentucky Constitution nor has he been deprived of his “property, without due process of law” nor denied “the equal protection of the laws” under section one of the fourteenth amendment to the United States Constitution.

The right of a city to grant a franchise is found in sections 163 and 164 of the Kentucky Constitution, which read as follows :

“Section 163. Public Utilities Must Obtain Franchise to Use Streets. No street railway, gas, water, steam heating, telephone, or electric light company, within a city or town, shall be permitted or authorized to construct its tracks, lay its pipes or mains, or erect its poles, posts or other apparatus along, over, under or across the streets, alleys or public grounds of a city or town, without the consent of the proper legislative bodies or boards of such city or town being first obtained; but when charters have been heretofore granted conferring such rights, and work has in good faith been begun thereunder, the provisions of this section shall not apply.
“Section 164. Term of Franchise Limited : Advertisement and Bids. No county, city, town, taxing district or other municipality shall be authorized or permitted to grant any franchise or privilege, or make any contract in reference thereto, for a term exceeding twenty years. Before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly, and award the same to the highest and best bidder; but it shall have the right to reject any or all bids. This section shall not apply to a trunk railway.”

It is apparent from the above that if the subject of the franchise is covered under section 163 and the ordinance meets the technical requirements of section 164, then it is valid. It will be noted that section 163 deals with certain specific subjects, to-wit, street railway, gas, water, steam heating, telephone or electric light companies within a city or town. We do not believe the right granted cities by this section is today limited to these specific utilities. The purpose of the section was to give the city control of the streets, alleys and public grounds and to make it possible for the city to provide the services of these utilities to its inhabitants. Therefore, the right granted is not and properly should not be restricted to those utilities enumerated, but applies to all utilities and services which might today be proper subjects for control, when the original intent and purpose of the act is considered. In People’s Transit Co. v. Louisville Railway, 220 Ky. 728, 295 S.W. 1055, we held that an automobile-bus line operating over the streets was a proper subject for franchise. We have held that garbage collection was a proper subject of franchise. See City of Bowling Green v. Davis, 313 Ky. 203, 230 S.W.2d 909. We have held the right to use a part of a river bed for the extraction of sand and gravel to be a proper subject for a franchise. See Willis v. Boyd, 224 Ky. 732, 7 S.W.2d 216. We have held that the right granted under these sections to the cities is absolute and can not be taken away by the legislature. This was done in an action requiring electric utilities to place their wires underground. See Benzinger, Police Judge v. Union Light, Heat & Power Co., 293 Ky. 747, 170 S.W.2d 38. In Irvine Toll Bridge Co. v. Estill Co., 210 Ky. 170, 275 S.W. 634 we held that a fiscal court had the right to grant a franchise to operate a toll bridge across a navigable stream and based the opinion upon the fact that section 164 was “self-operative” and the subject of the franchise was within the jurisdiction of the fiscal court. Here we pointed out the only limitations upon the power of the court were those contained in the Constitution. In Adams et al. v. Burke, 308 Ky. 722, 215 S.W.2d 531, we recognized that the operation of a taxi-cab service was a proper subject for a franchise. However, in the course of this opinion, we held that the Division of Motor Transportation, by virtue of KRS 286.020 had pre-empted this field. In this opinion, we said:

“At the outset it must be conceded that the utilization of streets in the transportation of persons for hire is not an ordinary use to which all members of the public have a common right, but is an extraordinary use subject to regulation by the controlling public authority. 25 Am. Jur., Highways, Section 193; Slusher v. Safety Coach Transit Company, 229 Ky. 731, 17 S.W.2d 1012, 66 A.L.R. 1378. In the Slusher case we recognized that the use of highways for private gain may be restrained, prohibited, or conditioned as the legislative power may prescribe.’ 229 Ky. page 733, 17 S.W.2d 1013, 66 A.L.R. 1378. See also note in 87 A.L.R. 721.”

We are of the opinion that sufficient authority exists in the constitution of this state to support the ordinance, however, even without this authority a municipality under its police powers may provide for the health, safety and welfare of its inhabitants and under these powers would have sufficient authority to limit or regulate the use of emergency vehicles including ambulances upon its public streets. As we view the law, the city has the right to provide emergency ambulance service to its inhabitants, and if the use of a franchise can be an effective instrument or tool in the providing of a more effective service, then certainly it is justified. By the use of a franchise the city can guarantee that the service will always be available; that it will be efficient and adequate; and that the operators will be qualified to act under emergency conditions.

Appellant makes a strong argument that the franchise prohibits competition and this is bad under our free enterprise system. We agree that only where the public interest demands should competition be restrained or limited. However, many times excessive competition results in poor service and even no service. When, in the opinion of the legislative body, this state of facts exists then they have it within their power to take such measures as are necessary under the Constitution and laws to make service available.

Of course the legislative body is restricted by the terms of section 164 of the Constitution in that the franchise can not be for a term exceeding twenty years; that before it may be awarded it must first be advertised publicly and it must be awarded upon receipt of bids to the highest bidder. There is nothing in this record which indicates that the franchise under question was not so awarded nor does appellant contend that it was improperly advertised or awarded without bids.

The judgment is affirmed.

All concur.

      . In response to this latter allegation, the city states that he has made no application for franchise.

      . The trial court entered judgment denying the relief sought.

      . Which has since been repealed.


author: PALMORE, Judge.

text:
    Clem LOVELL and Cash Lovell, Appellants, v. R. H. HAMMOND et al., Appellees.
    Court of Appeals of Kentucky.
    May 12, 1967.

      Cole & Cole, Barbourville, for appellants.
    Don B. Mills, Barbourville, for appellees.
   PALMORE, Judge.

The only question in this case is whether the evidence was sufficient to support a judgment awarding the appellees, R. H. Hammond and wife, partners doing business as R. H. Hammond Company, recovery of an automobile and various sums of money against the appellants, Clem Lovell and Cash Lovell.

In 1961 Hammond, a resident of Florida, bought a farm in Knox County, Kentucky. For some years he had engaged in the show horse business, though not as a breeder. At the suggestion of his trainer, Clem Lovell, he purchased a number of horses and, together with Clem and his brother Cash Lovell, thereafter operated a training farm on the property. Clem and Cash drew salaries of $100 and $90 per week, respectively, and were to receive 60% of all profits realized from the sale of horses. The venture came to an end in November of 1963, and this lawsuit mainly represents the unraveled portion of it.

The chancellor found on the basis of substantial evidence that there were no profits. That finding is not now contested. He found also that there was no settlement of accounts, as claimed by the Lovells, under which Hammond agreed to let them have the automobile in question and a certain brown mare. The unassailability of that finding also is conceded. He further found that there was no agreement that stud fees and boarding fees were to be divided equally between the Lovells and the Hammonds, or that a horse or horses belonging to Cash were to be boarded free of charge, and in these respects the arguments are now directed to the figures as distinguished from the existence or non-existence of the agreements.

All of the expenses of the operation were paid by the Hammonds and, according to Hammond, all receipts were to be remitted to him regularly at his home in Florida. The largest item in controversy on this appeal is the amount of $3765 adjudged against the Lovell brothers jointly for boarding fees and stud fees. By Clem’s admission the only money ever turned over to Hammond out of boarding fees received was one remittance of $1050, so the problem here boils down to finding evidentiary substantiation for the receipt of $4815 by the Lovells for boarding and stud fees.

Clem testified during the trial that in 1963 they boarded nine horses — two for eight months, two for seven months, two for three and a half months, two for one month, and one for four months; and that they charged $100 per month for the two horses that stayed seven months, $100 per month for the one that stayed four months, and $125 per month for the rest. As we, compute the total boarding charges from his testimony, they were as follows:

2 x 8 x $125 - $2000
2 x 7 x $100 - 1400
.2 x 3i/2 x $125 — 875
2 x 1 x $125 - 250
1 x 4 x $100 - 400
Total $4925

During the course of the trial the chancellor questioned Clem Lovell as follows:

Q- “This board bill. I’d like to ask Mr. Clem Lovell this one question. The board bill for these horses, is any of it outstanding at this time ?”
A- “Yes, one of them is.”
Q- “How much?”
A- “Three hundred dollars.”

Clem also had testified to the receipt of $290 in stud fees that had not been remitted to Hammond.

Recapitulating to this point, it seems utterly clear to us that the evidence supports a finding that the Lovells actually received $4625 in boarding fees ($4925 less $300) and $290 in stud fees, totalling $4915, out of which Hammond was paid only $1050, leaving a balance of $3865. Hence the award of $3765 reflects a mathematical error of $100 in favor of the Lovells.

The remaining amounts awarded were as follows:

(1) $420 against Cash for feeding his own horses (one for seven months and another for 14 months).
(2) $200 against Clem in payment of a loan.
(3) $735 against Clem in payment for household items purchased for him by Hammond as a loan.

As to the first of these latter three items, Hammond testified that “Cash brought in a horse — bought a horse in ’62 and kept it there about seven months * * * and didn’t * * * pay any feed bill or pay any labor on it,” etc. The only other evidence of the length of time Cash kept a horse of his own on the place was the testimony of Cash himself, as follows: “I had a horse when I first hired out to Mr. Hammond * * * and I brought it with me, and then I sold the horse and purchased another one several months later.” “How many months all together did you have one or the other of the horses there on the farm?” “I came to work for Mr. Hammond in September and the horse came with me, and I sold him in November. Then I bought the other horse the following August, I believe. Then I had the mare approximately seven months, I think, and sold her.”

The testimony of Cash in this respect is consistent with that of Hammond, but we do not perceive any basis for the finding that one of the horses was kept for 14 months. The horse or mare bought in August after the first horse had been sold the previous November is bound to have been purchased in 1962, as Hammond said, in order to have been kept on the place for seven months, because the venture ended in November of 1963. Thus the first horse must have been sold in November-of 1961 after having been boarded on the farm for only two months. So we have one animal for two months and another for seven, totalling nine. At the rate allowed by the chancellor, $20 per month (supported by Hammond’s testimony that “feed should have run around $30 a month), recovery against Cash individually should have been fixed at $180 rather than $420.

The remaining two items are clearly supported by the evidence. Actually they are not related to the partnership operation, but were pleaded as separate claims in an amended complaint. In February of 1960 the Hammonds gave Clem Lovell’s landlord a $200 check marked “Rent for Clem Lovell to Api. 1/60.” Hammond testified it was a loan made at Clem’s request. Clem denied it. That is all there is to it. The $735 allowance was for kitchen equipment purchased by Hammond for a house then occupied by Clem. Hammond said Clem promised to repay him when he sold a car. Clem admitted the expenditure and receipt of the goods so purchased, but denied any promise to reimburse Hammond. Again, this is but one man’s word against another’s, and it borders on the frivolous to insist that there is no substantial evidence in support of the chancellor’s finding.

All of the facts mentioned in this opinion were derived from the transcript of evidence heard by the chancellor and the advisory jury, without reference to the pretrial depositions filed but not read to the jury. It is therefore unnecessary to discuss whether the depositions are properly a part of the record under review.

The judgment should be modified to increase the award against Clem and Cash Lovell by $100 and to reduce the award against Cash Lovell individually to $180. As so modified, it is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Frank WOOLUM et al., Appellees.
    Court of Appeals of Kentucky.
    May 12, 1967.

      Robert F. Matthews Atty. Gen., Frankfort, H. C. Smith, Dept, of Highways, Frankfort, Eugene H. Clark, Paul L. Madden, Dept, of Highways, Manchester, for appellant.
    C. B. Upton, W. M. Cox, Jr., Williams-burg, for appellees.
   STEINFELD, Judge.

This is a condemnation action to obtain additional right of way for the widening of Main Street in the City of Williamsburg.

The appellees owned a lot 50 feet in width and 150 feet in depth at the corner of Main and 15th Streets from which a strip of land 50 feet long and 32 feet wide was taken from the front yard of the home of appellees, Frank and Docie Woolum. Commissioners appointed by the Whitley County Court awarded appellees $10,500.00 and from that award both parties appealed. Upon a jury verdict in the Whitley Circuit Court of $5,000.00 the Commonwealth has appealed.

Appellees’ home is a one and one-half story frame house with aluminum siding. There are five rooms, a utility room and bathroom on the main floor level and a large single room on the second floor. Prior to the taking the house was located approximately 53 feet from the highway right of way and after the taking was located about 21 feet away. The new roadway is about 61 feet from the house.

By virtue of the construction it was necessary that the appellant increase the fill along the right of way. Before the land was taken the appellees’ property was about one foot below the grade of the highway. After the widening of the road the Woolums’ property was one and one-half feet below the grade at the west property line, two feet below the grade at the center of their lot and two and one-half feet below the grade at the east property line.

Two witnesses testified for the Commonwealth. One of them stated that the value before the taking was $13,550.00. The amount fixed by them as the “after taking value” was $13,000.00. The difference before and after the taking, according to these two witnesses was a maximum of $550.00.

The highest evaluation of the property before the taking was $22,000.00 asserted by appellee, Frank Woolum. The after taking values ranged from a low of $9,500.-00 estimated by Frank Woolum to a high of $13,000.00 according to the testimony of a witness for appellant. The difference in value estimated by appellees’ witnesses was a maximum of $12,500.00.

Appellant contends that statements made by counsel for appellees evincing appellees’ unwillingness to sell the property and other similar statements were prejudicial. Although the statements were improper (Commonwealth of Kentucky, Department of Highways v. Sanders, Ky., 396 S.W.2d 781) timely objection was not made, and there was no request that the court admonish the jury to disregard these statements. Appellant insists that we should follow CR 61.02 and consider the statements of counsel even though no objection was made. We find no justifiable reason to do so. Hainline v. Hukill, Ky., 383 S.W.2d 353.

The verdict of the jury does not appear to us to be so excessive, if it is excessive, as to warrant reversal on that claim. Commonwealth of Kentucky, Department of Highways v. Muir, Ky., 412 S.W.2d 231.

Appellant argues that the testimony of appellees’ witnesses should have been stricken because it lacked probative value for the following reasons: (1) One witness did not give any reason for the difference in before and after value, nor did he consider any sales of comparable property. (2) The only factor appellee, Frank Woolum, took into consideration in arriving at the before value of the property was the $16,000.00 he had put into the property since he had purchased it. (3) The other witness considered the interference with the use and enjoyment of the property by reason of interference during construction; the noise that would be caused by the traffic on Interstate 75 though there was no property taken from appellees for the interstate highway or showing that any noise could be heard; and he did not know where the existing right of way line of Main Street was located or exactly how many feet the new right of way line would be from the house.

It does not appear from the evidence that appellee, Frank Woolum, relied solely on an improper factor in arriving at his evaluation or that he neglected to take into consideration the fact that since he had expended the $16,000.00 the property had depreciated. The correct procedure where an improper factor can be eliminated from a witness’ calculations and the estimate revised accordingly is to request the court to admonish the jury not to consider the improper factor and require the witness to revise his figures and give an opinion on the correct basis. Commonwealth of Kentucky, Department of Highways v. Shaw, Ky., 390 S.W.2d 161. No such request was made.

Another witness for Woolum had been acquainted with the values of land in Williamsburg and Whitley County for ten or fifteen years and owned about eight parcels in Whitley County. He had bought and sold about 25 parcels within the past ten years and had appraised for banks, insurance companies, loan companies, individuals, public and private corporations for the last five years. He was familiar with the property involved and had been on the land many times and had viewed it for purposes of appraising the value before and after the taking. He based his opinion on his experience in dealing with property generally. The nearness of the new right of way to the improvements was a dominant factor used by him in fixing the after value. Although he did not cite any sales of comparable property, it was not absolutely necessary for him to do so. Commonwealth of Kentucky, Department of Highways v. Tyree, Ky., 365 S.W.2d 472; Commonwealth of Kentucky, Department of Highways v. Brubaker, Ky., 375 S.W.2d 404; Commonwealth of Kentucky, Department of Highways v. Reed, et al., Ky., 414 S.W.2d 904. (decided May 5, 1967).

The third witness for the condemnee qualified himself to testify as to values. He used sales which he considered comparable to support his estimates.

We find no substantial errors in these proceedings which warrant a reversal.

The judgment is affirmed.

All concur.


author: HILL, Judge.

text:
    FARMERS RURAL ELECTRIC COOPERATIVE CORPORATION, Appellant, v. CITY OF GLASGOW, etc., Appellees.
    Court of Appeals of Kentucky.
    March 31, 1967.
    As Modified on Denial of Rehearing June 16, 1967.

      Carroll M. Redford, Jr., Redford & Redford, Glasgow, for appellant.
    H. Jefferson Herbert, Jr., Wilson, Baker, Herbert & Garmon, Glasgow, for ap-pellees.
   HILL, Judge.

This is an appeal from a summary judgment for plaintiffs, now appellees, finding that the Electric Plant Board of the city of Glasgow (a third-class city) is “entitled” to furnish electric power to operate a water treatment and pumping station for the city to be located on the Barren Reservoir, ten miles from the city of Glasgow.

The Electric Plant Board of the city of Glasgow (hereafter referred to as EPB) was created by authority of KRS 96.550 to KRS 96.900. It purchases its power from the Tennessee Valley Authority under Title 16, U.S.C. sec. 831n-4.

Appellant, defendant in the trial court, purchases its electric power from East Kentucky Rural Electric Co-operative Corporation. It contends it has served the territory in which the water system is located for a quarter of a century.

The suit for declaratory judgment was filed on behalf of the city of Glasgow, Glasgow Water & Sewer Commission, and the Electric Plant Board seeking affirmative legal approval for the EPB to supply electric energy to the water plant, which was not under construction at the time suit was filed.

Appellant first contends the suit was not authorized by proper resolution or ordinance of the common council of the city. KRS 85.010 and 85.120 are cited in support of this contention.

The resolution provides:

“ * * * (T)he Water and Sewer Commission is hereby authorized to take any and all steps necessary, for and on behalf of the commission and the City, to contract with and secure the electric power from the Electric Plant Board of the City of Glasgow for the operation of the water system located on Barren Reservoir.”

It is concluded the resolution was sufficiently broad to authorize the suit. In fact, EPB had a right to maintain the suit without joining the city and its water and sewer commission. EPB is vested with broad powers, including the right to sue, under KRS 96.570. See Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248 (1960).

Appellant’s second point, that the complaint did not state a cause of action, is based on five grounds. We discuss them in the order presented.

In the first ground appellant presents its big gun, which is that under both KRS 96.010 and 96.188 and the ‘“Little TVA Act,’ KRS 96.550 to 96.900” appellant’s territory is protected from invasion-by a “municipality or board operating an electric plant.” True KRS 96.890 provides that:

“No municipality or board operating an electric plant under the provisions of this Act [KRS 96.550 to 96.900] shall enter into competition with, or construct, maintain, or operate any facilities or service in competition with any rural electric cooperative corporation * * * in any territory being served by any such rural electric cooperative corporation.” (Emphasis ours.)

The question revolves on the interpretation of “competition” as it is used in the statute.

The real question is whether or not the proposed extension of its lines to the water plant ten miles away from the city to serve its own facility amounts to “competition” with the services of appellant. It is not shown that the city intends to serve any customers along the line. In fact, it disavows any such intention. This situation, where its only act is failing to buy electric power from appellant, does not amount to the “competition” contemplated by the statute. It may, and often does, become necessary for cities to go great distances at enormous expense to supply city residents with water. Whether it is economically feasible is not for this court to decide. Whether the rate advantage with TVA over that of appellant justifies the city fathers in building its own line to its facility is for them to decide.

Appellees are merely attempting to make available for their own use electric power previously contracted for with another. By so doing, they are not in competition with appellant.

Appellant cites Warren Rural Electric Cooperative Corporation v. Electric Plant Board of the City of Bowling Green, Ky., 331 S.W.2d 117 (1960), in support of its position. In Warren, the city was permitted to serve an area forming a peninsula into the territory of Rural at the expense of $10,000 to the city, while the service lines of Rural were nearer the territory in dispute. We cannot extract from the Warren case any rule or comment favorable to appellant.

Appellant’s second ground supporting its “motion to dismiss the complaint and motion for summary judgment” is virtually the same as the first ground. Appellant anticipates appellees’ argument that the city “proposes * * * to use its own electric energy to operate facilities also owned by it.” (Quoted from the trial court’s findings of fact and conclusions of law.) Appellant cites the same statute it cited in the first ground and Porto Rico Ry., Light & Power Co. v. Colom, 106 F.2d 345 (1 Cir., 1939). Like the Warren case, we find nothing in Porto Rico favorable to the position of appellant. On the contrary it is said in Porto Rico:

“Furnishing services to oneself does not constitute competition, as that term is generally accepted, and furnishing power as contemplated for the insular government and the municipal purposes, is in effect a case of the insular government supplying itself.”

The third ground advanced by appellant is that to allow EPB to go “outside the area wherein TVA or its distributors were” operating on July 1, 1957, violates 16 U.S.C. section 831n-4, from which we quote:

“Unless otherwise specifically authorized by Act of Congress the Corporation (TVA) shall make no contracts for the sale or delivery of power which would have the effect of making the corporation or its distributors, directly or indirectly, a source of power supply outside the area for which the Corporation or its distributors were the primary source of power on July 1, 1957: And such additional area extending not more than five miles around the periphery of such area as may he necessary to care for the growth of the corporation and its distributors within said area: * * *.
⅜ ‡ ⅝ ⅝ ⅜ #
“Nothing in this subsection shall prevent the corporation, when economically feasible, * * * from continuing to supply power to * * * Glasgow.’' (Emphasis ours.)

The uncontradicted affidavit of Edwin. Parrish establishes that the water station is “within five miles” of the area TVA was serving on July 1, 1957.

We conclude there was no violation of 16 U.S.C. section 831n-4.

For the fourth ground for relief appellant relies on a contract entered into in 1963 between it and the city “swapping” certain customers and establishing their areas of service. At that time, the city water plant was located outside and north of the city limits on Beaver Creek. Barren Reservoir was not in existence.

This contract pertained to “customers.’' It specifically authorized the city to serve its water plant located two miles outside the city. The purpose of the contract, as recited therein, was to “avoid wasteful duplication of facilities and uneconomic service to ultimate consumers” and to “establish clearly defined arrangements and procedures which will permit continued service to their respective present consumers and the future expansion of municipality’s * * (Emphasis ours.)

It is next insisted by appellant that the trial court “was premature in rendering summary judgment to appellees, without hearing evidence on the economic feasibility and the requirement of public convenience and necessity of the project,” We think this is without merit.

Finally appellant charges that “no actual controversy existed upon which a declaration of rights could properly be given.”

The city has plans for the water plant. It has adopted a proper resolution to initiate the project. Appellant has threatened to enjoin the construction of the plant. It appears to us that there exists “quite" a controversy justifying the declaration of the rights of the parties.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY, PALM ORE and STEINFELD, JT., concur.


author: LYNDON R. SCHMID, Special Commissioner.

text:
    Reba CREASON et al., Appellants, v. Marvin C. PRINCE, Individually etc., Appellee.
    Court of Appeals of Kentucky.
    Jan. 20, 1967.
    As Modified on Rehearing June 2, 1967.

      James G. Apple, Wheeler, Marshall & Manchester, Paducah, for appellants.
    Boyce G. Clayton, Prince & Clayton, Benton, for appellee.
   LYNDON R. SCHMID, Special Commissioner.

On November 2, 1962, Mayme C. Prince conveyed to Early Cross, her brother, by deed of trust certain real property which she had received under the will of her late husband Walter L. Prince.

Mayme C. Prince executed a will on December 18, 1963, and died on December 24, 1964.

Under the trust deed the trustee was required to perform certain duties, and at the death of Mayme C. Prince the cestui que trust the remainder in the trust estate was to be divided equally between Mary Brooks Cross, a sister-in-law, Reba Creason, a sister, Early Cross, a brother, and Marvin C. Prince, the plaintiff in the trial court and appellee here and the sole beneficiary under the will of Mayme C. Prince.

The trial court sustained a motion of the plaintiff for a summary judgment which had the effect of setting aside the trust deed and awarding to the plaintiff the fee simple title to the real property involved.

Therefore, on this appeal we have the sole question as to whether or not Mayme C. Prince had the right and power under the will of her husband, Walter L. Prince, to dispose of certain real property which passed under the will of Walter L. Prince by a deed of trust executed and delivered by her to the grantee during her lifetime.

For the sake of convenience we will reproduce here the pertinent parts of the will of Walter L. Prince:

“Item II. All the property, real and personal of every kind and description, and wherever situated which I may own or have the right to dispose of at the time of my decease, I give, bequeath and devise to my wife, Mayme Prince, absolutely and in fee simple, except as hereinafter provided.
“Item III. If Marvin Coleman Prince becomes a practicing attorney within the Commonwealth of Kentucky, then, in that event, I give, bequeath and devise to him all of my law library and all of my office equipment, including desks, chairs, typewriter and such other equipment, as is now located in my law office. If he does not become a practicing attorney in the Commonwealth of Kentucky, then, all my office equipment, law library, etc., shall become, under this will, the property of my wife, as aforesaid.
“Item IV. I make, nominate and appoint my wife, Mayme Prince, of Benton, Kentucky, to be the Executrix of this my last Will and Testament, with full power and authority, in order to pay all debts and all legacies heretofore given, and in order to carry into effect all provisions and purposes of this Will, to sell and dispose of any or all of my estate, real or personal, or both, for such prices and upon such terms of credit, or otherwise, and in such manner as my said executrix may deem best, and to execute and deliver to the purchaser, or purchasers, all necessary or proper deeds and other instruments of conveyance and transfer thereof. In order (sic) words, she is to have full right and full control to dispose of any property of any kind whatsoever, that I may own at the time of my death, as she sees fit and as she thinks will best serve her interest and comfort.
“She is not, however, as hereinabove stated, to sell my law library, office equipment, etc., if Marvin Coleman Prince is practicing law in the Commonwealth of Kentucky at the time of my death, but she is to turn it over to him, as hereinabove willed. But if he is not practicing law in the Commonwealth of Kentucky at the time of my death, she will then sell and dispose of the law library, office equipment, etc., and use the proceeds thereof for her own use and comfort.
“Item V. If at the death of my wife, Mayme Prince, there is any of my estate left, then it is my will and desire and I give, bequeath and devise any residue thereof, to Marvin Coleman Prince, absolutely and in fee simple. This provision of this Will is not to, in any way, be construed so as to hamper my said wife, Mayme Prince, from using and disposing of, in any manner she may choose, any property of any kind whatsoever, with which I die seized.”

Item II specifically gives to Mayme Prince, his wife, all of his property absolutely and in fee simple except as thereafter provided in the will.

The only exception which the will carries to a fee simple title to any property is contained in Item III of the will and is concerned only with the library, furnishings and equipment in the law office of the testator.

The disposition of this property is not in question in this law suit.

Item IV of the will appoints Mayme Prince as the executrix of the will and is specific in the powers granted her. The last sentence of the first paragraph of Item IV even goes so far as to reiterate and re-emphasize the fact that she is to have full right and full control to dispose of any of the property, regardless of its kind that the testator may own at the time of his death, as she saw fit and as she thought would best serve her interest and comfort.

The literal reproduction of the first phrase of the last sentence of the first paragraph of Item IV, which is “in order words,” of course is to be properly interpreted as “in other words.” The word “order” undoubtedly being a typographical error.

Item V of the will of Walter L. Prince provides that at the death of his wife, Mayme Prince, if there be any of his estate left then it was his will and desire and he gave, bequeathed, and devised any residue thereof to Marvin Coleman Prince, absolutely and in fee simple.

However, there is immediately following and contained in the last sentence of this Item the following language: “(T)his provision of this Will is not to, in any way, be construed so as to hamper my said wife, Mayme Prince, from using and disposing of, in any manner she may choose, any property of any kind whatsoever, with which I die seized.”

We doubt seriously if the testator could have expressed his will in any clearer or more forceful language.

We have examined the cases cited by appellee and appellants and believe the case of Swango v. Swango’s Adm’r, 313 Ky. 495, 232 S.W.2d 347, comes closest to the facts shown in this case.

In fact, the only difference in the relevant facts of the two cases is that in the Swango case the court said that the words “wished,” “request,” “recommend,” and “desire,” are not deemed mandatory unless it appears a legal or enforceable obligation was intended to be created. In other words, those words were merely precatory.

In the case at bar we have the testator saying in Item V of his will: “(I) f at the death of my wife, Mayme Prince, there is any of my estate left, then it is my will and desire and I give, bequeath and devise any residue thereof, to Marvin Coleman Prince, absolutely and in fee simple.”

Then the testator goes on in the very same Item and specifically removes any doubt as to any restriction on his wife from using, disposing of in any manner she may choose any property of any kind whatsoever which the testator had at the time of his death.

The testator was a lawyer of long standing and much experience. He was undoubtedly acquainted with the disposition of property by trust deeds and by wills. If he had intended to preclude the transfer of this property by his wife by either will or by trust deed he would have plainly said so.

We are further of the opinion that numbered paragraph four of the Swango opinion is controlling in the instant case. For convenience we cite the paragraph as follows:

“Reading the entire will, it is clear to us that the testator intended no legal or enforceable limitation on the estate left to his wife, except possibly in the event she died without having disposed of a portion of it. Since she had, by use and by will, appropriated it all, there was no remaining estate in which appellants could share.”

We are of the opinion that Mayme C. Prince had every right and power under the will of Walter L. Prince to dispose of the property inherited from him by her in any manner she chose or saw fit, and this included transferring it by a trust deed.

The trial court did' not reach the other issues presented by the complaint, such as the question of undue influence, incompetence, failure of consideration, and waiver; hence, they are not involved in the appeal.

The judgment is reversed for further proceedings 'Consistent with this opinion.

OSBORNE, J., not sitting.


author: PER CURIAM.

text:
    Paul KIPER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Rehearing Denied June 16, 1967.

      Kenneth H. Goff, Richard E. Moorman, Leitchfield, for appellant.
    Robert Matthews, Atty. Gen., Darryl T. Owens, Asst. Atty. Gen., Frankfort, for appellee.
   PER CURIAM.

A motion was filed under RCr 11.42 whereby Paul Kiper seeks to vacate his conviction for wilful murder and to gain a new trial. He was found guilty on April 23, 1942. The motion was overruled.

On March 1, 1942, the Sheriff of Grayson County was severely injured when struck by a rock. He died from those injuries on March 4, 1942. According to the evidence, the rock was thrown by Kiper during an altercation with some other men, which fight the Sheriff was trying to prevent. A warrant was issued on March 2, 1942, and on that same day Kiper and others were arrested in Louisville, Kentucky. They were returned to Leitchfield, Kentucky the following day.

About April 1, 1942, the court appointed Carl H. Boone and Roy Graves, practicing attorneys, to represent Kiper at his trial. On April 7, 1942, the grand jury of Gray-son County indicted Kiper and others for murder. On that same day Kiper was represented by these two lawyers when they waived formal arraignment and entered a plea of not guilty. On a motion for bail made by counsel for Kiper the court set a hearing for April 15, 1942. Two days before that hearing one of his attorneys filed a petition for a change of venue and filed affidavits of witnesses in support of that motion. The court passed consideration of that motion to April 15, 1942, on which day the Commonwealth filed a response. After hearing argument of counsel for the Commonwealth and Kiper the court overruled both motions and the case was assigned to April 22, 1942, for trial. On the trial date counsel for Kiper and the other defendants moved for a separate trial which motion was sustained. They then announced that they were not ready and moved the court for continuance, which motion was accompanied by two supporting affidavits. The Commonwealth filed counter-affidavits. Witnesses were sworn and after hearing the motion was overruled and defendant excepted to the ruling.

Counsel for Kiper then participated in the selection of a jury which took the entire day of April 22, 1942.

The next day the trial continued, but not until J. H. Goranflo was sworn as “Special stenographic reporter to take stenographic notes of the evidence and proceedings upon the trial.” It is appropriate, we believe, to note at this time that Mr. Goranflo was a respected court reporter with extensive experience in reporting criminal cases. The trial continued throughout all of that day and the next day. Among the many principal witnesses for the Commonwealth were Preston Cannon, the new Sheriff and his deputy, Corbit Givens. During each adjournment the jury was properly admonished and without objection it was placed in charge of Sheriff Cannon and his deputies who were sworn as required by law.

The jury found Kiper guilty of wilful murder and fixed his punishment at confinement in the state penitentiary for life. No motion for a new trial was made and no appeal was filed.

After serving eight years of the sentence Kiper was paroled. In 1961 on a different offense he was charged with manslaughter, pled guilty and was given a sentence of five years at the LaGrange Reformatory. He served 45 months, after which his parole on the 1942 conviction for wilful murder was revoked and he was returned to the state penitentiary at Eddyville, Kentucky where he is now confined.

In November 1965, he filed in the Gray-son Circuit Court a motion under RCr 11.42 to vacate the 1942 judgment. He alleged that the trial court was in error in refusing to grant the motion for a change of venue; that the indictment was defective; that he did not have effective assistance of counsel, before, at and immediately after the preliminary hearing; that the trial court was in error in denying the motion for continuance; that he was denied representation of counsel at the time the jury rendered its verdict and that the instructions were inadequate.

The trial court appointed counsel for Kiper to assist him in presenting his claims under RCr 11.42 and after an extensive hearing, including testimony of several witnesses, the motion to vacate the judgment was overruled.

Kiper has appealed from that decision and bases his appeal on three issues, namely:

“I. Whether or not Appellant was denied counsel.
II. Whether or not failure to change venue was denial of due process.
III. Whether or not custody of the jury during trial by the Sheriff who testified against Appellant on behalf of Appellee was a denial of due process.”

This motion to vacate the judgment must be tested under the rules announced in Tipton v. Commonwealth, Ky., 376 S.W.2d 290 and repeated in Warner v. Commonwealth, Ky., 385 S.W.2d 62.

The movant here must show:

(a) there was a violation of a constitutional right, or
(b) a lack of jurisdiction, or
(c) such a violation of a statute as to make the judgment void and subject to collateral attack.

We held in Wahl v. Commonwealth of Kentucky, Ky., 396 S.W.2d 774, Cert. den. 384 U.S. 976, 86 S.Ct. 1869, 16 L.Ed. 2d 686, that RCr 12.52 provides a remedy to correct certain errors by direct appeal; that the motion under RCr 11.42 is not a substitute for appeal, and that “it does not permit a review of all the alleged errors surrounding the trial; * * Also see Kinmon v. Commonwealth, Ky., 396 S.W.2d 331.

We reiterate here the law which we announced in Wahl “that the moving party on a motion under RCr 11.42 undertakes a heavy burden to overcome the regularity of the conviction.” There we pointed out and we now repeat that RCr 11.42 “is applicable only in cases where the judgment is so manifestly wrong as to be void or is otherwise subject to collateral attack.”

From the statement of facts herein-above set forth it is apparent that there is no merit whatsoever in the claim that appellant was denied counsel. Williams v. Commonwealth, Ky., 405 S.W.2d 17. It is refuted by the record. Ray, Jr. v. Commonwealth, Ky., 398 S.W.2d 504.

We next come to the second claim that the refusal to change venue was a denial of due process. We have pointed out that no appeal was taken from the judgment and that this issue is raised for the first time in this proceeding. Since the error claimed was not so substantial as to make the judgment void, it is now too late. Lee v. Commonwealth, Ky., 389 S.W.2d 241. Furthermore, the question of whether or not the venue should be changed addresses itself to the sound discretion of the trial court. Tarrence v. Commonwealth, Ky., 265 S.W.2d 40.

We find nothing in the record before us which convinces us that the judgment was “manifestly wrong”. Kiper has not fulfilled the obligation to “overcome the regularity” of the trial in this respect or to overcome the presumption that the proceedings were correct. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248.

The third complaint is that the jury was placed in the custody of the Sheriff and his deputies who were material witnesses for the Commonwealth. This occurred on several occasions during the trial and Kiper’s counsel had many opportunities to object but failed to do so. No wrongdoing is claimed on the part of the Sheriff, his deputies or any juror.

In Carson v. Commonwealth, Ky., 382 S.W.2d 85 we held that it was not error to put a sheriff who was a witness in charge of a jury. However, in the circumstances of the case we are considering the jury should not have been placed in the custody of the Sheriff or his deputies who were material witnesses. We believe that if objections had been made, the very fine trial judge, now deceased, would have sustained the objections. Kiper cannot now complain, certainly in the absence of any claim or proof that there was misbehavior on the part of the Sheriff, his deputies or a juror. King v. Commonwealth, Ky., 387 S.W.2d 582. Also see Baldwin v. Commonwealth, Ky., 406 S.W.2d 860.

We find nothing in the record before us which convinces us that the judgment was so manifestly wrong as to be void. The trial court was correct in overruling the motion.

The order is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    Carl CABE, Commissioner, Department of Labor, Appellant, v. Harold KITCHEN et al., d/b/a Western Hills Restaurant, Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.
    Rehearing Denied June 16, 1967.
    Martin Glazer, Department of Labor, Frankfort, for appellant.
    Charles E. English, Harlin, Parker, Ricketts, Lucas & English, Bowling Green, for appellees.
   WADDILL, Commissioner.

The Commissioner of the Kentucky Department of Labor appeals from a judgment holding that he is not entitled to inspect certain records of the appellees, Harold Kitchen and Garland Reeves, and refusing to require obedience to a subpoena theretofore issued under KRS 336.060.

The appellees own and operate the Western Hills Restaurant in Bowling Green. On February 24, 1966, the commissioner, who is required by KRS 336.050 to “investigate and ascertain the wages of all women and minors employed in this state,” subpoenaed appellees’ payroll records for their business operations from August 1, 1962 to February 24, 1966. The appellees produced for inspection their records for one year preceding the issuance of the supoena but refused to produce records for any prior period of time. The basis of their refusal was that KRS 337.320 only requires employment records for women or minors to “be kept on file for at least one year after entry.” The trial judge specifically held that this retention requirement is a time limitation on the commissioner’s right to inspect these records.

It is contended on behalf of the commissioner that the phrase “at least one year” is not a limitation upon the voluntary retention of these records and, therefore, could not be a limitation upon his right of inspection. With this argument we agree. The phrase “at least” is frequently and commonly used to introduce a minimum standard. As used in KRS 337.320(2) the phrase “at least one year” obviously means-(records must be kept) not less than one year; however, it does not prohibit their retention for more than one year. As observed by the trial court appellees have remained silent as to whether they have retained any records older than one year.

The provisions of KRS 336.060 and 337.320 afford wide latitude in making investigations under KRS 336.050 and require only that the records to be inspected be competent and relevant to the matter under investigation. On the record presented we conclude that the commissioner is entitled to inspect all payroll records from August 1, 1962 to February 24, 1966, which are in appellees’ possession.

The judgment is reversed with directions to enter a new one consistent with this opinion.

All concur.