author: BARRON, Justice.

text:
    TRANSPORT INSURANCE COMPANY, Appellant, v. Marlin WHEELER et al., Appellees.
    No. 22.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Oct. 18, 1967.
    Rehearing Denied Nov. 15, 1967.

      Butler, Binion, Rice, Cook & Knapp and Tom Alexander and Jonathan Day, Houston, for appellant.
    Brown, Kronzer, Abraham, Watkins & Steely and W. James Kronzer and Fulbright, Crooker, Freeman, Bates & Jaworski and Charles D. Boston, Houston, for appel-lee.
   BARRON, Justice.

Marlin Wheeler, plaintiff in the trial court, filed suit against defendant, Transcontinental Gas Pipeline Corporation, an alleged third-party tort-feasor, for personal injuries. Defendant filed an answer and Wheeler’s compensation carrier, Transport Insurance Company, intervened to recover its subrogation interest. Intervenor had paid workman’s compensation benefits to Wheeler. On December 12, 1966, the case was assigned for trial and the plaintiff failed to appear, either in person or by attorney. On the same date intervenor and defendant compromised intervenor’s alleged claim for subrogation arising as a result of Wheeler’s injuries for $1,500.-00, and the trial court announced a dismissal of the plaintiff’s lawsuit for want of prosecution. The court’s judgment recites that this action was taken on December 12, 1966, but the judgment was not signed and entered until January 10, 1967. This judgment was termed a “final judgment” and was signed and “approved and agreed to” by intervenor’s and defendant’s respective attorneys.

On- January 6, 1967, plaintiff filed a motion to reinstate his original cause of action against Transcontinental, and on January 10, the same day intervenor’s compromise judgment was signed, the trial court entered a separate order granting plaintiff’s motion for reinstatement of his third-party action. The trial court reinstated the cause only as to plaintiff, Wheeler.

On April 7, 1967, the trial court entered a “final judgment” whereby Wheeler’s cause of action against Transcontinental and one Hayes was compromised for the sum of $4,482.00. The prior settlement between intervenor and defendant was referred to in the judgment of April 7.

Intervenor apparently dissatisfied with the compromise judgment after reinstatement of Wheeler’s cause of action and eventual settlement of Wheeler’s claim with Transcontinental on April 7, 1967, filed a motion for new trial on April 26, 1967, claiming no notice of a setting of the case and entry of the judgment in favor of Wheeler. The trial court, considering the motion improper, refused to act on the motion and denied intervenor leave to file the same. Exception and. notice of appeal were made and entered of record to the trial court’s action on May 3, 1967. Notice of appeal was also filed on May 11, 1967. Petition for writ of error and writ of error bond were filed by intervenor on May 29, 1967.

At the outset we are faced with the problem of jurisdiction. There are, in effect, three parties to this action: The plaintiff, Wheeler; the defendant, Transcontinental Gas Pipeline Corporation; and the intervenor, Transport Insurance Company. On January 10, 1967, a judgment was entered and agreed upon by which intervenor was awarded $1,500.00 in settlement of its subrogation interests. This judgment was necessarily interlocutory, because Wheeler’s case was reinstated upon the docket of the court, leaving the controversy between Wheeler and Transcontinental undisposed of. No appeal could be had from the compromise judgment without a severance of that phase of the case ordered by the trial court. There was no severance sought by the parties or ordered by the trial court. In the absence of an order of severance, a party against whom such an interlocutory judgment has been rendered has his right of appeal when and not before the same is merged in a final judgment disposing of the whole case. In the judgment of April 7, 1967, the first judgment of settlement was fully referred to by recitation therein that the sum of $1,500.00 had been paid in settlement of the intervention to Transport Insurance Company, and “ * * * such total amount paid in full and final settlement of all claims, intervention, subrogation and causes of action herein.” We therefore hold that the judgment of January 10, 1967, was interlocutory, and did not become final for purposes of appeal until April 7, 1967, when all matters were disposed of. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959).

Intervenor’s right to appeal, therefore, did not become effective until all issues were disposed of on April 7, 1967.

While subdivision 5 of Rule 329b, Texas Rules of Civil Procedure makes an exception in a case of this type by permitting a motion for new trial to be filed and acted upon within the 30-day period a trial court continues to retain control of its judgments, appellant made no effort to perfect its appeal by filing an appeal bond. Instead, intervenor resorted to an application and bond for writ of error. The appellant (or petitioner for writ of error) had sufficient time and opportunity to perfect an appeal. It filed a motion for new trial 19 days after the entry of the final judgment setting out adequate grounds for the trial court, within its descretion, to grant the motion. On May 3, 1967, (still within time) intervenor obtained an order from the trial court refusing to proceed further. Notice of appeal was given from that order. But still no appeal was perfected. An appeal ordinarily will lie from an order refusing a motion for new trial of this type. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (Syl. 7), (1961). We must, therefore, dismiss the appeal. The writ of error bond is insufficient as an appeal bond. Yellow Cab Corporation of Dallas v. Hill, 111 S.W.2d 1193 (Tex.Civ.App.), no writ history.

Appellees, Wheeler and Transcontinental, contend that writ of error jurisdiction to this court is unavailable to Transport Insurance Company for the reason that Transport was not a “party” to this action on April 7, 1967. While Transport removed itself from the case by compromise judgment on January 10, 1967, for all practical purposes so far as this record reveals, such judgment was not final until April 7, 1967. Since that judgment was interlocutory until April 7, wq hold that Transport was a party of record to this action on the date of final judgment and was required to take notice of its entry and effect. J. M. West Lumber Co. v. Lyon, 53 Tex.Civ.App. 648, 116 S.W. 652, err. ref.; Banks v. Crawford, 330 S.W.2d 243, 246 (Tex.Civ.App.), err. ref., n.r.e.; Chapa v. Wirth, 343 S.W.2d 936 (Tex.Civ.App.), no writ history; 41 Tex.Jur.2d, p. 538, Sec. 19.

The motion to reinstate Wheeler’s action was filed on January 6, 1967, four days before the entry of Transport’s compromise judgment on January 10, and Transport was bound to take notice of such motion and was charged with knowledge of the action subsequently taken by the trial court. The record fails to show that appellant was misled by any affirmative act of Wheeler and Transcontinental, which might require actual notice. Cf. Box v. Associates Investment Co., 352 S.W.2d 315 (Tex.Civ.App.), no writ history.

While both judgments, the interlocutory judgment of January 10 and the final judgment of April 7, were compromise judgments and not the result of conventional trials, appellant, of course, did participate in the matters affecting its phase of the case by agreeing to the compromise, and signing and approving it and receiving the money. The judgment of April 7 did not, so far as this record reveals, affect the rights of appellant other than to render appellant’s judgment of January 10 final. The April 7 judgment was not rendered against or in favor of appellant, Transport. Article 2249a, governing review by writ of error, was intended to cut off the right of appeal by writ of error by those who participate in the hearing in open court in the trial that leads to final judgment, but the statute was not intended to cut off such rights of those who have no notice that a judgment has been rendered against them after the judgment has been rendered. No judgment was ever rendered against Transport in this case. Moreover, the legislative purpose was to take away the right of appeal by writ of error from those who should reasonably use the more speedy method of appeal. Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096 (1941). Here intervenor participated in the “trial” and chose the wrong remedy. It cannot appeal by writ of error under such circumstances. Art. 2249a, Vernon’s Ann.Civ.St.; Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.Sup.1965).

What we have said has no relation to the right of intervenor, Transport Insurance Company, to a proper attack upon the judgment in the trial court, by way of bill of review or other remedies to which it might be entitled in a proper proceeding where the issues may be effectively developed. See McEwen v. Harrison, supra; 4 McDonald, Texas Civil Practice, Sec. 18.24 et seq. This record, including the possible equities involved, is in no condition for appellate review by appeal or writ of error by intervenor.

The motions to dismiss are granted, and the appeal and application for writ of error are dismissed at intervenor’s cost.


source: Caselaw Access Project

author: SAM D. JOHNSON, Justice.

license: Public Domain

text:
    Bailey Allen SWENSON, Appellant, v. Kathryn Thomas SWENSON et al., Appellees.
    No. 33.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Oct. 25, 1967.
    Rehearing Denied Nov. 15, 1967.

      Bernard A. Golding, Houston, for appellant.
    Talley & Guest, Monroe R. Talley and William F. Guest; Hutcheson, Taliaferro & Hutcheson, Edward C. Hutcheson and John D. Roady, Houston, for appellee.
   SAM D. JOHNSON, Justice.

This action is predicated on an appellant’s bill of review which was filed in the original trial court to set aside a former judgment of divorce on the grounds of alleged misconduct and fraud on the part of the ap-pellee.

The initial divorce action was brought by appellee herein and was tried to a jury. After the jury’s verdict was returned, the court entered its judgment granting a divorce to the appellee, dividing the estates of the parties and awarding attorney’s fees. Motion for new trial was filed by the appellant, heard and overruled by the court, and an appeal from that judgment was taken. The appeal was heard by the 11th Court of Civil Appeals at Eastland which affirmed the trial court on August 12, 1966, and rehearing was denied September 2, 1966. That appeal, reported as Swenson v. Swenson, Tex.Civ.App., 406 S.W.2d 245, err. dism’d., was founded upon alleged errors of the trial court in dividing the estates of the parties and the award of attorney’s fees.

On September 6, 1966, four days after the Court of Civil Appeals had denied rehearing, appellant made what is styled as an application for writ of error coram nobis to the Eastland Court of Civil Appeals based on alleged misconduct and fraud on the part of appellee. This application, containing four affidavits supporting the allegations of misconduct and fraud, asked that the judgment of the trial court be set aside and that the cause be remanded for new trial. The application was overruled by the Eastland Court of Civil Appeals with the following order:

“This day came on to be heard appellant’s motion for permission to file writ of error coram nobis and the same, having been duly considered, is hereby overruled.”

Subsequently, on December 9, 1966, appellants filed this action for bill of review in the original trial court. Appellant’s application for bill of review contains affidavits alleging significant acts of misconduct and fraud on the part of the appellee and alleges that had such evidence been obtainable at the time of the trial that a different result would have been obtained. The essence of these same allegations, and others, were-contained in the appellant’s application for-writ of error coram nobis filed with the-Court of Civil Appeals at Eastland; one affidavit being identical. The alleged misconduct was the same, the parties before the-court were the same, and the prayer to set aside the original judgment of the trial court was the same.

On April 6, 1967, appellees filed motion-for summary judgment attaching thereto, certified copies of the coram nobis proceedings that were before the Eastland Court of Civil Appeals. See Boswell v. Handley, 397 S.W.2d 213 (Tex.Sup. 1965). The trial court, on April 24, 1967, granted appellee’s motion for summary judgment. This appeal comes from such action.

The substance of the motion for summary judgment was that appellant’s cause was res judicata by reason of the judgment of the Court of Civil Appeals at Eastland previously entered on September 16, 1966. It is well established that the plea of res judicata may be raised by motion for summary judgment. Hartely v. Langdon & Co. (1961 Tex.Civ.App.) 347 S.W.2d 749; Pridgen v. Denson (1957 Tex.Civ.App.) 298 S.W.2d 276, err. ref., n. r. e.; Couch v. Schley (1956 Tex.Civ.App.) 297 S.W.2d 228, err. dism’d.; Willoughby v. Jones (1952), 151 Tex. 435, 251 S.W.2d 508; McKay v. Dunlap (1951 Tex.Civ.App.) 244 S.W.2d 278, err. ref., n. r. e. It is likewise fundamental that for an order to be res ju-dicata, it must be rendered on the merits of the controversy. Cooper v. Cooper, Tex.Civ.App., 168 S.W.2d 686, no writ history. An order or judgment that is merely a ruling on a technical or procedural aspect of the case is not res judicata. Hartford Fire Ins. Co. v. King, 31 Tex.Civ.App. 636, 73 S.W. 71, no writ history.

The question before this court is whether or not the granting of appellee’s motion for summary judgment was proper in this instance. If the action of the Eastland Court of Civil Appeals was res judicata on this matter, the motion was correctly granted, as there was no genuine issue as to the material fact and the appellee was entitled to judgment as a matter of law.

It is clear from the court’s order that the permission to file the writ of error coram nobis was denied, therefore no determination could have been made on the merits of the application. That court possibly concluded that a writ of error coram nobis is a writ to be employed in the court that rendered the original judgment for the correction of errors of fact as distinguished from errors of law. The court possibly concluded that such a writ will not lie after af-firmance of the judgment on writ of error or appeal, or that a divorce decree cannot be reviewed by writ of error coram nobis. See 49 C.J.S. 562, 563.

For whatever reason the Eastland Court of Civil Appeals overruled appellant’s motion for permission to file the writ of error coram nobis, it is clear that the record of such action cannot avail appellees in the case at bar as the sole support for the motion for summary judgment. Summary judgment may be rendered only if the pleading and its exhibits show that there is no genuine issue as to any material fact. The movant has the burden to prove clearly his right to summary judgment, and that there is no issuable fact in the case for determination. Tigner v. First Nat. Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85.

“All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment; and the court accepts as true all evidence of the party opposing the motion which tends to support such party’s contention and gives him the benefit of every reasonable inference which properly can be drawn in favor of his position.” Smith

v. Ellis, Tex.Civ.App., 319 S.W.2d 745, no writ history; Flowers v. Central Power & Light Co., Tex.Civ.App., 314 S.W.2d 373 err. ref., n. r. e.

We do not pass upon the merits of appellant’s bill of review. We are compelled, however, giving “every reasonable inference” which properly can be drawn in favor of appellant’s position, to conclude that the motion for summary judgment under the state of the record before us, should not have been granted.

Reversed and remanded.


author: PALMORE, Judge. OSBORNE, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Creed Hasten ROWLAND et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.
    Concurring Opinion Nov. 17, 1967.
    Robert F. Matthews, Atty. Gen., H. C. Smith, Frankfort, Eugene H. Clark, Manchester, Ben Smith, Somerset, for appellánt.
    C. B. Upton, Williamsburg, for appellees.
   PALMORE, Judge.

This is a condemnation proceeding in which the state highway department in 1963 acquired for Interstate Highway 75 a 4.36-acre strip of land from a 36-acre tract owned by the appellees Rowland and wife and located near Williamsburg in Whitley County. The department appeals from an award of $15,000 ($30,000 before less $15,000 after the taking).

Prior to the condemnation the Rowland property fronted 175 feet on the west side of U.S. Highway 25 and extended back some distance in a westerly direction, the rear portion being considerably wider, than the front. It contained about 20 acres of tillable ground, the remainder being on a mountain slope at the back. The portion taken for 1-75 is a strip 380 feet wide running parallel with and approximately 120 feet west of U.S. 25. Hence the Rowlands now have two separated parcels, one being a lot 120 feet deep fronting 175 feet on U.S. 25 and the other a 31-acre tract on the far side of 1-75, which as it passes through the Rowland property is constructed on a 25-foot fill. In order to get from the front lot to the acreage on the other side it is necessary to travel through an interchange one-half mile away and then come back the same distance along a dead-end frontage or service road on the west side of the 1-75 embankment. A 2-story frame dwelling house, a 40' x 60' concrete block warehouse, and a smokehouse are located on the front lot. A frame garage, small tenant house, corn crib, large barn, a foundation to a burned-down warehouse, and an “all-season” spring lay within the area taken. The acreage to the rear has no buildings. The embankment is located 20 feet from the east right-of-way line of 1-75 and 60 feet from the back of the dwelling house.

Mr. Rowland is employed by a bakery company as a distributor of bread and pastries and lives in Williamsburg. He uses the above mentioned warehouse building to house his delivery trucks and carry on his office work.

Grounds on which reversal is sought are: (1)Improper questioning of witnesses and improper argument by counsel for the landowners; (2) Error in permitting one of the valuation witnesses for the landowners to testify concerning loss of access and circuity of travel; and (3) Excessiveness of the award.

On the first point, our discussion of the same question in Commonwealth, Dept. of Highways v. Hess, Ky., 420 S.W.2d 660 (decided October 20, 1967), is apposite here. In most instances objections were sustained and the jury duly admonished. There was no motion to discharge the jury, hence no error. In the few instances in which objections were overruled or not acted upon, the objectionable matter was not of sufficient consequence to warrant a reversal.

In cross-examining the department’s engineer, who had described the property and the portion taken, counsel for the owners was permitted over objection to bring out the fact that it is now necessary to travel a mile or so in order to reach one of the remainder parcels from the other. This cannot have been prejudicial since the jurors, when taken to view the premises, could not have failed to observe it themselves.

The witness Bennett, in testifying as a valuation witness for the owners, also mentioned this circumstance and acknowledged that he had taken it into consideration in arriving at his estimate of the after-value. Counsel for the department thereupon moved to strike the evidence, and the court promptly admonished the jury not to consider for any purpose Judge Bennett’s testimony with respect to the value of the property remaining after the taking. This, we think, was entirely appropriate and correct, and the department was given all the relief to which it was entitled in that respect.

The most serious question raised by the appeal is that which pertains to the amount of the verdict.

The department used one valuation witness, Robert Knight, an appraiser in its regular employment. He testified that the highest and best use of the property both before and after the taking was for residential, farming and commercial purposes, and that the frontage road now situated on the west side of 1-75 provides “some good home sites up there — good subdivision plots,” thus to some extent enhancing the value of that portion of the land. The portion adaptable to commercial use was not affected by the taking. In his opinion the market value of the property was $24,500 before the taking and $21,000 immediately thereafter, reflecting a difference of $3,500. He based his appraisal on the following two transactions as comparable sales:

1. 35 acres with a “huge frontage” on U.S. 25 sold early in 1963 by Lovitt to White for $25,500. This property was located at the intersection of U.S. 25 and Savoy Road, a blacktop road, and abutted the L. & N. Railroad on the back. It was in the same immediate vicinity as the Rowland property. The transaction was accomplished through the efforts of the Chamber of Commerce for purposes of industrial development.

2. Seven acres across the road from the Rowland property (but not fronting on the highway) sold in 1959 by Moore to Noe for $3,700. This parcel was cited as being comparable with the back portion of the Rowland Place.

Valuation evidence offered in behalf of the Rowlands was as follows:

1. Edward Moses, county welfare director, gave before and after values of $33,000 and $18,000 respectively, for a difference of $15,000.

2. Everett Rains, county court clerk and former sheriff, gave before and after values of $31,000 and $16,000, respectively, for a difference of $15,000.

3. Morton Bennett, county judge, who was raised on the farm of which the Rowland property was then a part, gave before and after values of “$32,000 or $33,000” and $15,000, for a difference of $17,000 to $18,000. He did not know “exactly” how many acres were taken and how many were left. As before mentioned, his estimate of the after-value was stricken. Judge Bennett conceded on cross-examination that he was a candidate for re-election.

4. Clarence Bryant, who is engaged in the building supply and hardware business and develops subdivisions in and about Williamsburg, gave before and after values of $32,000 and $16,000, respectively, for a difference of $16,000. He did not know the number of acres taken and the number remaining, though he had walked over the property and was familiar with the boundaries.

5. The appellee C. H. Rowland gave before and after values of $35,000 and $19,000, respectively, for a difference of $16,000. He stated that he had raised corn, chickens and hogs and kept a horse on the land until he learned it was going to be cut in two by the highway project; that he had limed and fertilized it for some time; that he had been forced to build his warehouse building on what he formerly used as a garden because the foundation left when his other warehouse burned was located within the 1-75 right-of-way; and that he had a good-sized gravel parking area, most of which was taken. On the portion taken, in addition to the structures heretofore enumerated, he had a year-round spring which was used for his chickens, hogs and horses. He has no water supply on the acreage left on the west side of the new highway. He admitted that a small portion of the acreage taken had been stripped for coal. Besides the land in question, he owns the property on which he lives in Williamsburg, and is acquainted with land values in the community.

None of the Rowland witnesses was asked to comment on the comparables offered by the department’s. witness Knight, nor did any of them cite any other comparable sales except that Mr. Rowland himself mentioned the Lovitt-to-White sale. Cross-examination of all the Rowland witnesses, except for that which elicited from Judge Bennett the fact that he had considered circuity of travel, was cursory and sparse.

It is unfortunate that no witness on either side was asked to express an opinion as to the market value of the two remainder tracts if sold separately. Though we said in Commonwealth, Dept. of Highways v. Sea, Ky., 402 S.W.2d 842, 843 (1966), that in the absence of evidence to the contrary it may he assumed that the highest and best use of a farm cut in two by a condemnation remains the same after the taking as before, and that its highest value is still as a single unit, this case is different. Even before the taking the front portion of the Rowland property was being used in part for commercial purposes. After the taking it is obvious that its highest and best use, and the purposes for which it would bring the highest price, were different from those applicable to the acreage left on the other side. The case presents a classic instance in which the remainder tracts should have been evaluated separately.

Of course $3,440 per acre for 4.36 acres, as such, seems high. But that is not the manner in which value is to be judged in a partial-taking case. It must be judged on the basis of what was there before and what is left afterward. Cf. Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, 856-857 (1963). Therefore, it cannot be reasoned from the per-acre price that the award was flagrantly excessive. We can look only to the testimony pointing to the before and after values.

The testimony regarding after-values being unsatisfactory for the reason just stated, the area of comparison shrinks to the before-values alone. Here there is but one circumstance in the record to support an acceptance of the Knight opinion over the other witnesses, and that is his use of the Chamber of Commerce sale as a comparable. Perhaps the jurors should have accepted it, but they did not. On this appellate review, the question is whether that is a sufficient basis on which we can say the verdict is so flagrantly excessive at first blush that it strikes reasonable minds as having been given under the influence of passion or prejudice. Surely the answer is “no.” Thus in order to find it so excessive we are forced outside the record, and must say that the award was of such exaggerated proportions that any reasonable man would immediately recognize it as excessive. We find ourselves unable to do so.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN and STEINFELD, JJ., concur.

OSBORNE, Judge

(concurring).

I concur in the results reached herein for the reasons stated in Commonwealth of Kentucky, Department of Highways v. Hess, Ky., 420 S.W.2d 660.

      . There was no testimony as to whether the two parcels have less or greater value separately than as a whole. Cf. Commonwealth, Dept. of Highways v. Sea, Ky., 402 S.W.2d 842 (1966).

      . Both were used by the same witness in the trial of Commonwealth, Dept. of Highways v. Hess, Ky., 420 S.W.2d 660 (1967), mentioned supra.

      . For a summary of the qualifications of Mr. Moses and the witnesses Rains and Bennett, see Commonwealth, Dept. of Highways v. Hess, Ky., 420 S.W.2d 660 (1967).

      . In which event the stricken testimony of Judge Bennett would, of course, have been competent.


author: PALMORE, Judge. OSBORNE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Genevia HESS, and Bank of Williamsburg, Appellees.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.
    Concurring Opinion Nov. 17, 1967.

      Robert F. Matthews, Atty. Gen., H. C. Smith, (Dept, of Highways) Frankfort, Ben D. Smith, Smith & Blackburn, Somerset, for appellant.
    C. B. Upton, Williamsburg, for appellees.
   PALMORE, Judge.

Incident to the construction of Interstate Highway 75 the appellant highway department in this proceeding condemned 3.2 acres of the appellee Genevia Hess’ 84-acre farm located on U. S. Highway 25 near Wil-liamsburg, in Whitley County. The department appeals from a judgment entered pursuant to a verdict awarding the landowner $6,000, based on a before-value of $15,500 and an after-value of $9,500.

Grounds on which it is contended the judgment should be reversed are: (1) The award was excessive and not supported by sufficiently probative evidence; (2) Improper questioning by counsel for the landowner prejudiced the jury; and (3) The court erred in permitting the county judge and county court clerk to testify as valuation witnesses for the landowner. We shall discuss them in reverse order.

On the last point the arguments are that county judges and county court clerks are officers of the Commonwealth and should not be allowed to appear as witnesses against it; and that the county judge, in whose court the proceeding originated and who appointed commissioners and entered a judgment reflecting their award of $3100, should be estopped to testify contrary to the judgment of his own court.

No authority is cited for the proposition that an officer of the public cannot testify against it. Barring those situations in which privileged communications may not be divulged, our view is that any person whose testimony is otherwise relevant and competent and may assist in arriving at the truth can testify for or against any party.

If the county judge were required to perform a fact-finding function in determining the amount of compensation to be awarded in the county court, there might be good reason for a policy that would forbid his impeaching his own verdict, but that is not the case. Under KRS 177.083 and 177.086 he merely appoints three disinterested housekeepers for that purpose and is limited to finding that their report conforms to the statute. He has no discretion to modify or reject their award because the amount does not accord with his opinion. His duties in this respect are purely mechanical. Though we do not encourage the practice, we perceive no reason why he should be disqualified as a valuation witness when the litigation proceeds to a trial in the circuit court.

With respect to the interrogation of certain of the Commonwealth’s witnesses by counsel for Mrs. Hess, it does appear that many of the questions were more testimonial than inquisitive, and more argumentative than appropriate. Whether prejudice resulted from it is doubtful, as it would seem more likely that the average juror’s sympathy under such circumstances would favor the unfortunate witness. Be that as it may, the record reflects that in most of the cited instances the trial court sustained objections and admonished the jury in the customary manner. If counsel for the Commonwealth felt that opposing counsel’s persistent transgressions in this regard reached the point at which the jury was likely to be prejudicially affected, the proper avenue of relief was a motion to discharge the jury. No such motion was made.

In both Byrd v. Commonwealth, Ky., 283 S.W.2d 191, 194 (1955), and Thomas v. Commonwealth, 196 Ky. 539, 245 S.W. 164, 166 (1922), the defendant objected to improper argument by opposing counsel and the court duly admonished the jury to disregard the argument, but the defendant did not move to discharge the jury, and it was held that the court had done all it had been asked to do, and that a failure to discharge the jury when there is no motion for such action is not an error. These were criminal cases, but the reason for the rule applies equally, if not more strongly, in a civil trial. Cf. Lawler v. Copelin, Ky., 258 S.W.2d 913, 915 (1953); Moore v. Lyons, Ky., 386 S.W.2d 717, 719 (1965); Standard Sanitary Mfg. Co. v. Brian’s Adm’r, 224 Ky. 419, 6 S.W.2d 491, 493 (1928).

1-75 is a limited access highway. In Whitley County it follows generally the same path as U. S. Highway 25. Before the taking Mrs. Hess’ property fronted 255 feet on U. S. 25. As best we can tell from the record, which contains the wrong map, for all practical purposes her frontage on U. S. 25 has been eliminated, and the driveway from a dwelling house located on the remainder tract to a new access road is less advantageously situated than was the original driveway leading directly to U. S. 25.

Robert Knight, a real estate appraiser employed by the department, testified that the highest and best use of the property before the taking was for farming and that it contained about 10 acres of tillable land with a frame dwelling and several outbuildings. No buildings were taken. In his opinion the market value was $15,500 before the taking and $14,500 afterward. He cited as comparable a 1958 transaction in which Mrs. Hess had sold 7.5 acres off the rear of the property to a lumber company for $1,000, a 1959 sale of seven acres nearby (but not fronting on the highway) at $3,700 for strip-mining purposes, and a 1963 sale of 35 acres “across the road” 'at $25,000 for industrial purposes. It was brought out on cross-examination that several commercial properties were situated in the near vicinity.

Ray Wells, a district right-of way agent for the department, using the same comparable sales, testified to a before-value of $15,500 and an after-value of $14,200. His evidence was much the same as the witness Knight’s except that he was of the opinion that with some filling and grading the front part of the property would have been adaptable to use for a residence or small business.

Valuation testimony given in behalf of the landowner was as follows:

Edward Moses, county welfare director, who buys and sells real estate and makes appraisals for a local bank, insurance agencies, loan companies and other individuals and agencies, and who owns seven parcels of real estate in Whitley County, was of the opinion that the Hess property was worth $15,000 before and $6,500 after the taking. He said that vacant property in Williams-burg is scarce and that the outlying area to the south of the city, where the tract in question is located, has been increasing in demand and value since 1958. In his opinion the sale made by Mrs. Hess in 1958 was not comparable because that property was several hundred feet back from the highway. He thought also for the same reason that the 1959 sale of 7 acres for $3,700 was not comparable.

Everett Rains, county court clerk and former sheriff, is a farmer and trader by profession, lives in the neighborhood and has been familiar with the property in question all his life. He has had experience in buying and selling land and observes the prices at which real estate in Whitley County is bought and sold. It was his opinion that the Hess tract was worth $15,200 before and $8,250 after the taking, and that the 1958 and 1959 transactions cited by the department’s witnesses were not comparable.

William Morton Bennett, the county judge, grew up on a farm adjoining the Hess place and has been well acquainted with it all of his life. He has had extensive experience in the purchase and sale of real estate and now owns 23 dwellings and a store building in the county. He testified that the value of property in the area in question had been on the increase, to the extent of four or five times its former value, prior to the taking, by reason of increasing population. His opinion was that the Hess place was worth $16,-000 before and $9,000 after the taking. He said the most valuable part was taken, but was not able to give any specific case in which property located in the same vicinity along U. S. 25 had brought $2,000 per acre.

It will be noted that the principal differences between the testimony of the department’s appraisers and the witnesses for the owner lay in their opinions as to the value of the remainder left after the taking and in the fact that the former relied on comparable sales whereas the latter did not.

Since the witnesses substantially agreed on the before-value, the alleged comparable sales can have no decisive significance except as to the after-value. The 1959 purchase for strip-mining purposes simply is not comparable without a showing that the Hess property can be strip-mined. Certainly the highway frontage tract sold in 1963 for industrial purposes cannot be equated with the Hess property as it was left after the taking. If the 1958 sale by Mrs. Hess be given the probative weight claimed by the witnesses who cited it as comparable, the value ascribed by the jury to the property remaining after the taking may be somewhat low, but it is not so grossly out of line that a court would be justified in repudiating the verdict.

In conclusion, we are unable to say that the amount of the award appears excessive at first blush.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, EDWARD P. HILL and STEINFELD, JJ., concur.

CONCURRING OPINION

OSBORNE, Judge.

This case and Commonwealth, Department of Highways v. Rowland, et al., Ky. 420 S.W.2d 657 were stated and voted on as companion cases. In my opinion they share a common fault which this court should immediately proceed to correct. In both cases the properties involved were situated upon U.S. Highway 25 near Williamsburg in Whitley County. The properties were basically one-family mountain farms of modest value. However, in recent years, being located upon a major highway with unrestricted access to the highway and near a residential community they have taken on added value. This value results from the fact that the property is adjacent to Highway 25 and enjoys unlimited access to that highway making the property desirable for both residential and business purposes. The value of the property being greatly enhanced as a result of this adjacency it was therefore greatly diminished when 1-75 was built where it cut' off much of the property from free access to U.S. 25, leaving it with only limited access to 1-75. We have held that one can not recover for loss of access where the property is reduced from a status of unlimited access to one of limited access, if the owner still has “reasonable” access. Rowland v. Commonwealth, Department of Highways, Ky., 414 S.W.2d 880 and Commonwealth, Department of Highways v. Smith, Ky., 413 S.W.2d 72. I can see no real distinction between this case and those above cited. In both instances the question is whether or not to compensate the owner for diminution in value resulting from loss of adjacency to a free access road. Whenever property derives a portion of its value from the fact that it is adjacent to a free access road it does not seem reasonable to deny recovery for diminution in value occasioned by altering the highway (either widening or raising) thereby limiting its access and allow recovery such as we are doing here where the free access to the old highway ⅛ abolished and replaced by limited access to a new highway. The owner of property either has a compensable interest in its adjacency to a highway or he does not. If he does, then any act that diminished his access should be compensa-ble. If he does not, then the state should be permitted to remove the highway without paying compensation. If loss of access is not a compensable item then the award in this case should be set aside. It is a matter of common knowledge that mountain farmland is not worth $2000 per acre, therefore it becomes obvious that we are compensating the owners for their loss of adjacency to an open access highway.

I concur in the action of the majority affirming the judgments in these cases because I believe the owners have a property interest in the adjacency of their land to an open access highway and, therefore, I would compensate them for any loss of value suffered as a result of curtailing or limiting such access. I would overrule those cases holding otherwise. As the matter now stands, we are compensating some and denying others for identically the same loss. The rule denying recovery for access has its genesis in the decisions of this court. See Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117, wherein a county sought to close a rural road. Flood claimed he was damaged by the closing and insisted he was entitled to compensation under sections 13 and 242 of the Constitution. This court held:

“A careful reading of the evidence convinces us that there was no special damage to appellee’s property differing in kind and not merely in degree from that which might have been sustained by the general public when this section of the road was discontinued. That part of the road contiguous to appellee’s property which connects his private entrance with the Cropper-Cull road which in turn connects with all of the principal public roads in the vicinity was not discontinued * * *.
“ ‘ * * * the general weight of authority in requiring compensation to an owner of private property for a taking or damage under similar constitutional provisions is that the damage suffered must be to contiguous property and the direct and immediate consequence of the act complained of. Recovery cannot be had for remote or contingent injury.’ ”

It will be noted that the specific holding is to deny recovery because damage suffered was not to “contiguous” property. There, seems to be little doubt but what damages would have been allowed had the property been contiguous. The question was next before this court in Ex parte Commonwealth of Kentucky, Ky., 291 S.W.2d 814. This case like the Flood case was an action to close a rural road. On the question of damages this court said:

“This brings us to the question of liability for damages. We think it is fairly well established that a property owner on a road proposed to be closed is entitled to damages (for depreciation in the value of his property) only when the closing of the road will deprive him of his sole or principal means of ingress and egress. Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117; Standiford Civic Club v. Commonwealth, Ky., 289 S.W.2d 498.”

The holding here is that a property owner has no compensable property right in the road to be closed even though his property be contiguous to the road, if he has another means of ingress and egress. It is interesting to note that the court cites the Flood case as authority for its holding, when the Flood case actually stands for the opposite. Here we have witnessed the disappearance of the constitutional right of the citizen to be compensated for property taken for public use. The right seems to have vanished like the rabbit from the magician’s hat, now you see it, now you don’t. As if to further allay any doubt as to whether the right had been completely annihilated, the court again wrote in Department of Highways v. Jackson, Ky., 302 S.W.2d 373:

“It is argued by amicus curiae that if a landowner suffers a depreciation in the value of his land as a result of the closing of a road, he necessarily has sustained a property damage, which is damage differing in kind from that suffered by the public generally, and for which he should be compensated, regardless of whether he continues to have a reasonable way of ingress and egress. The simple answer to this is that the enhancement in value of land attributable to the mere convenience of the routes of travel which it enjoys (whether such convenience is from the extent to which the surface of the road is improved or from the geographical location) is something which does not inure to the landowner as property.”

The rule has been reaffirmed and repeated many times since and today remains as finalized in this case, to wit, a contiguous property holder has no financial interest in the adjacency of his property to the highway and can not recover from its alteration, abandonment or closing so long as he is left “reasonable” access to the road system generally. Commonwealth, Department of Highways v. Rowland, Ky., 414 S.W.2d 880; Commonwealth, Department of Highways v. Smith, Ky., 413 S.W.2d 72; Commonwealth, Department of Highways v. Cleveland, Ky., 407 S.W.2d 417; Sloan v. Commonwealth, Department of Highways, Ky., 405 S.W.2d 294; Commonwealth, Department of Highways v. Lawton, Ky., 386 S.W.2d 466; Commonwealth, Department of Highways v. Merrill, Ky., 383 S.W.2d 327; Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844; Commonwealth, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104; Department of Highways v. Jackson, Ky., 302 S.W.2d 373 and Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117.

In the case now before us we are tacitly permitting recovery for loss of access or adjacency whichever you choose to call it. Otherwise there would be no justification for the size of the verdict. What we have said could not be done by direct means, we now permit to be done by indirect means. Our very actions amount to a confession that the rule announced in Ex parte Commonwealth, supra, is wrong. Therefore, that case and those following should be overruled. A property owner has a pecuniary interest in the adjacency of his property to a public highway for which he should be allowed to recover. The rule is stated in 26 Am.Jur.2d 929, § 241 as follows:

“The general rule is that persons specially injured by the vacation of a street or highway are entitled to recover such damages as they may sustain, even in the absence of a statute providing therefor. The discontinuance of a public street upon which a parcel of land abuts, if such street constitutes the only means of access to the parcel in question, would in legal effect be the same as the construction of an impassable barrier around such land, and discontinuance in such a case is generally held to constitute a taking of the property so cut off, inasmuch as total deprivation of access is equivalent to a taking, especially when the easement of access to the street is recognized by the substantive law of the state.”

For the foregoing reasons I concur in the results reached by the majority opinion but not for the reasons stated therein.

      . As a matter of fact, even the commissioners are allowed to testify. Cf. Commonwealth, Dept. of Highways v. Evans, Ky., 361 S.W.2d 766, 770 (1962).


author: EDWARD P. HILL, Judge.

text:
    Lillian BRYANT, Executrix of the Estate of William J. Bryant d/b/a William J. Bryant Sawmill, Appellant, v. Homer CONRAD, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.

      Damon A. Vaughn, Madisonville, Tommy W. Chandler, Providence, for appellant.
    Thomas B. Spain, Mills, Spain & Mitchell, Madisonville, Warren B. Miller, Dixon, for appellee.
   EDWARD P. HILL, Judge.

This is an appeal by the defendant from a judgment for $15,459.05, entered pursuant to a verdict by the jury in appellee’s action to recover for personal injuries received by him when logs rolled off appellee’s truck onto him.

Appellant contends that the evidence for the appellee was insufficient to support the verdict; that no acts of the appellant or his employee were the proximate cause of ap-pellee’s injuries; that he was entitled to a directed verdict; that the court erred in its instructions to the jury; and that prejudicial remarks were made by counsel for the appellee.

Before proceeding to the questions presented on this appeal, we briefly review the facts. At the time of his injuries, appellee Homer Conrad, a 30-year-old logger with a third-grade education, was an independent contractor of appellant William J. Bryant, d/b/a William J. Bryant Sawmill, engaged in hauling sawlogs to the latter’s sawmill. On February 14, 1963, Conrad drove his 1949 Ford truck loaded with logs onto the sawmill site of appellant. Due to the congestion caused by the loading of another vehicle with lumber, he was required to wait for a time. When the congestion was removed, appellee released the front binding chain from his load of logs and removed a block held with a metal pin. As soon as this was done, he was required to go to the front of his truck for a purpose not important here. While he was at the front of his truck, Dallas Pryor, an employee of appellant who had been operating a mechanical lift, parked his lift some distance away from appellee’s truck, went to the side of appel-lee’s truck and removed the rear block and the metal pin that secured it. He threw the block to the ground in the direction of the cab. Whether Pryor also removed the rear chain also holding the logs is not clear from this record, and it is unimportant for the simple reason that if the block had not been removed the logs would not have rolled off and produced the injuries to appellee.

Returning from the front of his truck, ap-pellee walked along the driver’s side near the rear wheels intending to remove the chain and block. The front and rear chains were tightened by a device called a “boomer,” and the logs were also secured by two “chock blocks,” each of which was wedge shaped and secured by a metal pin. About the time appellee reached the rear wheels of his truck, some of the logs rolled off and caught his arm and leg, resulting in serious, painful, and disabling injuries. It was necessary to amputate his arm between the elbow and the shoulder. He has considerable permanent disability. The evidence is not clear as to what appellee did to the chain or whether he did anything at all to it. He could not remember, which is understandable in view of the extent of his injuries. This one fact is clearly established and is undisputed: Dallas Pryor, without the knowledge of appellee, removed the metal pin and rear block before appellee came around to release the chain. Apparently Conrad did not notice that the block had been removed when he came around to release the chain.

A great deal of appellant’s first argument questions the sufficiency of the evidence to support the verdict and contends that he was entitled to a directed verdict. He contends that the burden of proof was upon appellee and that he failed to prove acts constituting negligence on the part of Dallas Pryor. Most of the argument related to the indefinite nature of Conrad’s evidence as indicated above. It is true Conrad’s evidence indicated that he really didn’t know what occurred, but one thing is certain, and he so testified, and that is that if it had not been for the removal of the block regardless of what occurred in connection with the chain (that is, whether it was removed by Pryor or interfered with by appel-lee) the logs would not have rolled off the truck. This was sufficient evidence of negligence to support the verdict. Cf. James v. England, Ky., 349 S.W.2d 359 (1961).

Appellant mingles in his argument the proposition that appellee was guilty of contributory negligence and that appellee assumed the risk when he went to the rear of his truck, a place of danger. Contributory negligence and the assumption of risk, usually one and the same thing, are ordinarily questions for the jury. To find contributory negligence or assumption of risk as a matter of law there must be no substantial contrariety and the facts must show that the plaintiff was guilty of such negligence that the injuries would not have occurred otherwise. There must be but one conclusion that fair-minded men can draw. McCarter v. Louisville & Nashville Railroad Co., 314 Ky. 697, 236 S.W.2d 933 (1951).

The main thrust of appellant’s argument regarding the question of contributory negligence on the part of appellee is pointed toward the failure of Conrad to observe the removal by Pryor of the block. Appellant has cited cases involving railroad accidents, wherein it is said that the failure of a person approaching a railroad crossing to observe an approaching train constituted contributory negligence where the train was approaching even though the injured person says he looked but did not see the oncoming train. We think such cases are distinguishable from the facts in the present case. Conrad had no occasion to know that Pryor had removed the block, Pryor never having done so on his previous trips. Conrad had a right to assume that it was still there since he was at the front of his truck for only a short time; yet, had he observed he could have readily noticed that the block had been removed. But the process in which he was engaged, that of removing the chain, was somewhat mechanical from habit, and it is understandable that he could have overlooked the fact that the block had been removed. Nevertheless, the question of his contributory negligence from his failure to observe that Pryor had removed the block was one for the jury to determine, and the jury found under proper instruction that Conrad was not guilty of contributory negligence. We are unable to say as a matter of law that the jury was in error.

Appellant’s next contention is that the trial court erred in refusing to instruct the jury under the doctrine of assumption of risk. The court gave a contributory negligence instruction. We have indicated above that contributory negligence and assumption of risk are one and the same. Cf. Porter v. Cornett, 306 Ky. 25, 206 S.W.2d 83, 85 (1947), wherein it was written:

“The doctrine of “assumption of risk” historically arose under the general law of master and servant, and has for the most part been deemed a matter of contract. In negligence cases the same concept has been generally accepted as contributory negligence. In their legal effect, the two doctrines are identical.”

See also the recent case of Parker v. Redden and Melton, Ky., 421 S.W.2d 586 decided June 23, 1967, in which it is stated:

“* * * [T]he pure assumption of risk doctrine, under which the plaintiff is barred even though he acted reasonably, should no longer be recognized or applied, because reasonableness of conduct should be the basic consideration in all negligence cases. So we think that in the instant case Redden’s admitted awareness of the risk does not ipso facto bar his recovery; the controlling question is whether he acted reasonably.”

The facts of the present case do not show that Conrad acted unreasonably. It is concluded that the trial court committed no error in refusing to give the offered instruction on the assumption of risk.

Neither do we think the trial court was in error in refusing to give an instruction offered by appellant declaring that the accident was unavoidable. “[I]f the accident producing the injury could have been prevented by either person by means suggested by common prudence it is not deemed unavoidable.” Stein v. Louisville Water Co., Ky., 249 S.W.2d 750, 753 (1952); 65 C.J.S. Negligence § 21. The evidence of Pryor’s negligence was too potent to justify an instruction on unavoidable accident.

Appellant’s final contention is that the trial court erred in not declaring a mistrial and in not sustaining his motion to dismiss the jury for misconduct on the part of attorney for appellee. This statement was made to the jury by Conrad’s attorney: “ * * * [Y]ou return a verdict for the plaintiff, let us worry about collection of the money, let us do the worrying about that.” Appellant does not contend that there was or was not any provocation for this remark by counsel for appellee. The matter of collecting a judgment based upon the verdict of the jury has nothing whatsoever to do with the trial of the case by the jury. Such remark was impertinent and out of place, but we are unable to say that it was prejudicial. Cf. Droppelman v. Willingham, 293 Ky. 614, 169 S.W.2d 811 (1943), and Ideal Pure Milk Co. v. Whitaker, Ky., 243 S.W.2d 479 (1951).

The judgment is affirmed.

All concur.


author: MONTGOMERY, Judge.

text:
    B. E. MOORE, Appellant, v. The CITIZENS BANK OF PIKEVILLE, Administrator of the Estate of Essie Carrie Moore, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.

      Fred B. Redwine, J. Ervin Sanders, Sanders & Redwine, Pikeville, for appellant.
    Hobart Clay Johnson, Stratton & Johnson, Pikeville, for appellee.
   MONTGOMERY, Judge.

B. E. Moore appeals from a judgment in favor of the Citizens Bank of Pikeville as the administrator of the estate of Essie Carrie Moore, deceased, in the sum of $20,000 for her wrongful death. The decedent was the wife of the appellant at her death. Appellant contends that he would be the sole beneficiary of any recovery and, therefore, such an action cannot be maintained against him. A related question is whether under KRS 381.280 it is necessary for a husband to be convicted of the murder of his wife in order to bar the action for wrongful death under KRS 411.130.

Essie Carrie Moore died of a wound, or wounds, inflicted under circumstances from which the jury was justified in believing that B. E. Moore, had wrongfully caused her death. The sufficiency of the evidence is not in question. No testimony was offered by appellant. Insanity and self-defense had been pleaded as defenses.

Appellant argues that under KRS 411.130 he is the sole beneficiary of the estate of the decedent. They had no children. Ap-pellee alleged that the deceased was survived by her father and mother. Appellant relies on Dishon’s Adm’r v. Dishon’s Adm’r, 187 Ky. 497, 219 S.W. 794, 13 A.L.R. 625, and Hale v. Hale, 312 Ky. 867, 230 S.W.2d 610. He further contends that until he is convicted of a felony for such killing he has not forfeited his right to inherit from her and, therefore, it is pointless to permit any action against him when he would be entitled to the recovery.

At common law no action would lie to-recover damages for the wrongful death of a person. Eden v. Lexington & Frankfort Railroad Company, 53 Ky. (14 B. Mon.) 204. Lord Campbell’s Act, 9 and 10, Viet., Chapter 93, enacted in 1846, was the first to authorize such a recovery. One of the first of such statutes was adopted in this state in 1851. Revised Statutes, Chapter 31, Section 1. It provided for a recovery in favor of a widow and minor child of a person killed in a duel and against “the surviving principal, the seconds, and all others aiding or promoting the duel.” In addition to reparation for the injury, provision was made for the giving of “vindictive damages” “for the suppression of the practice of dueling.” The statute has been broadened into its present form, KRS 411.130, and has constitutional basis. Kentucky Constitution Section 241.

The application of the the statutory and constitutional provision is fully discussed by Clarke, J., in the Dishon case. See also Jordan’s Adm’r v. Cincinnati, N.O. & T.P. Ry. Co., 89 Ky. 40, 11 S.W. 1013. The same factual situation prevailed in Dishon as here. There is no material difference between KRS 411.130 and Carroll’s Kentucky Statutes, Section 6, which was construed in Dishon. It was there held that under Kentucky Constitution Section 241 and its statutory counterpart an administrator of a childless wife wrongfully killed by her husband cannot recover damages from the husband for the wrongful death since there could be no real plaintiff, the husband being, in effect, both plaintiff and defendant. It was pointed out that under the statute the husband as the beneficiary was the real party in interest and that the wrongdoer was both the defendant and the real plaintiff.

In Robinson’s Adm’r v. Robinson, 188 Ky. 49, 220 S.W. 1074, Clarke, J., writing again said:

“It was evidently the purpose of this section of the Constitution to provide for a recovery in every case where death resulted from negligence or wrongful act, and the only reason for such a provision in the Constitution is found in the fact that theretofore, under the common law as amended by statutes in this state, there were still some conditions under which a recovery could not be had for such a death.”

This was another action against a husband for wrongfully killing his wife.

In Bays v. Cox’ Adm’r, 312 Ky. 827, 229 S.W.2d 737, the right of the wife’s administrator to sue the husband for negligently killing her was upheld. Dishon and Robinson were cited with approval. In Bays and Robinson, it was held that the children of the deceased were entitled to one-half of a “full recovery.” In Bays, the following language of Robinson was quoted with approval:

“ ‘Nor can the fact that the defendant is entitled to one-half of the recovery defeat the right of the plaintiff to maintain the action on behalf of his decedent’s children, entitled to the other half of any sum that might be recovered. * * * > »

See also Hale v. Hale, 312 Ky. 867, 230 S.W.2d 610, and McCallum v. Harris, Ky., 379 S.W.2d 438.

The construction heretofore made of the statute and constitutional provision precludes any recovery for the ultimate benefit of the husband in an action by the personal representative of a childless wife against her husband for her wrongful death.

Appellant contends that KRS 381.-280 does not work a forfeiture of the husband’s right to a recovery since appellant has not been convicted of a felony. Ap-pellee contends that the perpetrator by his-act forfeits any right to inherit from the deceased wife, citing Wilson v. Bates, 313 Ky. 333, 231 S.W.2d 39, and Bates v. Wilson, 313 Ky. 572, 232 S.W.2d 837. Neither argument is pertinent here; nor is KRS-381.280. This statute creates a forfeiture of a right to inherit property by one who-is convicted of a felony for killing the decedent and expressly provides that “the property interest so forfeited descends to the decedent’s other heirs-at-law,” etc. Pierce v. Pierce, 309 Ky. 77, 216 S.W.2d 408; Cowan v. Pleasant, Ky., 263 S.W.2d 494. KRS 381.280 deals specifically with property rights.

The forfeiture under KRS 381.280 is in the nature of a statutory exception to the statute of descent and distribution. In Ryburn v. First National Bank of Mayfield, Ky., 399 S.W.2d 313, it was held that before anyone claiming as an heir can take under the statute of descent and distribution which is embodied in KRS 411.130, they would have to show that the decedent died without children and without a husband.

KRS 411.130 creates a cause of action for wrongful death. This is a statutory right of action which did not exist prior to the wrongful death but arises by reason thereof. It has been pointed out that the wrongful death action is not derivative. It is brought to compensate survivors for loss occasioned by the death and not to recover for injuries to the decedent. The cause is distinct from any that the deceased may have had if he had survived. The damage caused by the wrongful death begins with, and flows from, the death. 22 Am.Jur.2d, Death, Section 13, Page 617. The persons entitled to benefits under KRS 411.130 are to be determined at the time of death of the person wrongfully killed. Sharp’s Adm’r v. Sharp’s Adm’r, Ky., 284 S.W.2d 673. The recovery is not made available to the decedent’s creditors except under KRS 411.130 (2) (e). Emmerke’s Adm’r v. Denunzio, 302 Ky. 832, 196 S.W.2d 599. The recovery is not for the benefit of the estate, but is for the next of kin as determined under the statute. Vaughn’s Adm’r v. Louisville & N. R. Co., 297 Ky. 309, 179 S.W.2d 441, 152 A.L.R. 1060; Square Deal Cartage Co. v. Smith’s Adm’r, 307 Ky. 135, 210 S.W.2d 340. KRS 381.-280 has no application in an action for wrongful death under KRS 411.130.

Appellee argues that Dishon was overruled by Brown v. Gosser, Ky., 262 S.W.2d 480, 43 A.L.R.2d 626, which upheld the right of a wife to sue her husband for tort under the Married Woman’s Act, KRS 404.020. Reference was made in that opinion to the discussion in Dishon concerning the absence at common law of the right of a wife to sue the husband. There is nothing in the Brown case to indicate any intention to overrule Dishon so far as the right to sue for wrongful death is concerned.

KRS 411.130 (2) indicates that the wife’s funeral expenses are payable out of the amount recovered. The recovery of cost of administration including attorney fees was denied in Dishon, to which reference is made for the discussion thereon. The question of recovery for funeral expenses was not specifically discussed. A husband is liable for a wife’s funeral expenses. Palmer v. Turner, 241 Ky. 322, 43 S.W.2d 1017; Colovos’ Adm’r v. Gouvas, 269 Ky. 752, 108 S.W.2d 820, 113 A.L.R. 871. Therefore, there is no reason to permit recovery of the funeral expenses of a childless wife in a wrongful death action against a husband. This is the reasoning in the Dishon case.

Judgment reversed.

All concur.


author: DAVIS, Commissioner.

text:
    Irvin STICE, Appellant, v. Howard LEONARD et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.

      William J. Parker, Bowling Green, for appellant.
    Douglas E. Robertson, Charles W. Huddleston, Bowling Green, Robert Matthews and H. C. Smith, Frankfort, for appellees.
   DAVIS, Commissioner.

Irvin Stice, defendant in the trial court in a suit brought against him by Howard Leonard, has undertaken an appeal from an order permitting the plaintiff Leonard to dismiss his action without prejudice. To focus upon the issues at bar, we relate the events which occurred in the trial court.

The plaintiff was an employee of the Department of Highways, and while engaged in the performance of his duties on Highway No. 259, he was struck by an automobile operated by the defendant Stice. The plaintiff instituted this action seeking recovery of $100,000.00 damages for personal injuries and incidental expenses. The defendant filed his answer denying liability and pleading contributory negligence. Defendant subsequently filed a counterclaim seeking $500.00 as property damage to his automobile and with the court’s permission filed a third-party complaint against the Department of Highways, Commonwealth of Kentucky, asserting entitlement to indemnity or contribution for any sum which might be recovered of him by the plaintiff. The Department of Highways filed its answer to the third-party complaint interposing the defense of sovereign immunity and denying liability on the merits. The Department also sought recovery of such sums as it had expended in payment of workmen’s compensation benefits in behalf of its employee Leonard.

When the case came on for trial, the plaintiff’s counsel moved for a continuance based upon his affidavit that the plaintiff was ill and unable to attend trial. It was shown in the affidavit that the plaintiff was at Cleveland, Tennessee, and that the counsel was then ■ unable to present an affidavit of the attending physician although assurance was given the court that such a certificate could and would be obtained forthwith. The motion for continuance was denied, and the case proceeded to trial.

After all the evidence had been heard in behalf of the plaintiff and the defendant Stice, motions for peremptory instructions were made in behalf of the plaintiff and the defendant. During the course of discussion of these motions, the trial judge indicated to the plaintiff’s attorney that unless the plaintiff dismissed the action without prejudice a peremptory instruction for the defendant would be given. Accordingly, the plaintiff moved that the complaint be dismissed without prejudice to which objection was made by the defendant Stice and the third-party defendant, Department of Highways. Over those objections the court entered its order dismissing the complaint without prejudice, and this appeal in behalf of the defendant Stice resulted.

The defendant (appellant) contends: (1) that the order dismissing the complaint without prejudice is an appealable order within the meaning of CR 73.01, and (2) that the plaintiff (appellee) was guilty of contributory negligence as a matter of law. The appellees, Leonard and the Department of Highways, urge that the present appeal is not tenable in light of CR 54.02. We agree.

It is at once apparent that the action involved multiple claims within the purview of CR 54.02. The order from which this appeal was taken did not determine all of the claims at issue, nor did it recite that it was a final order and that no just reason for delay appeared. We will not entertain the appeal from that interlocutory order. First Nat. Bank of Mayfield v. Gardner, Ky., 330 S.W.2d 409.

The trial court did not rule on the question of plaintiff’s contributory negligence, so there is no trial ruling at issue on appeal relating to contributory negligence. Our province is to serve as a court of review of alleged errors in the trial courts. KRS 21.060; Kentucky Constitution, Section 110.

We need not, and do not, determine whether a voluntary dismissal as prescribed by CR 41.01(2) may be an appealable order within the contemplation of CR 54.01.

The appeal' is dismissed.

WILLIAMS, C. J., and EDWARD P. HILL, MILLIKEN, MONTGOMERY, PALMORE, and STEINFELD, JJ., concur.

OSBORNE, J., not sitting.

      . The order of dismissal made no reference to the counterclaim or the third-party claim by the Department of Highways.


text:
    IRV’S TRUCK LINE, INC., Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.

      James F. Clay, Danville, for appellant.
    Robert Matthews, H. C. Smith, Frankfort, Phillip K. Wicker, Somerset, for ap-pellee.
   DAVIS, Commissioner.

On August 12, 1963, a tractor-trailer rig owned by appellant was damaged when it fell through a bridge over Hanging Fork Creek on Highway 1194 in Lincoln County. Appellant made claim against the Department of Highways before the Board of Claims; the Board denied recovery. Upon appeal to the circuit court, the Board’s action was affirmed, and this appeal followed.

The material facts are substantially undisputed and may be thus summarized: The gross weight of appellant’s tractor-trailer unit was 34,750 pounds. The load limit for the highway was 30,000 pounds. Appellant had no permit to operate the overweight vehicle on the road in question. In fact, appellant’s driver had lost his way and took the route over Highway 1194 in an effort to regain the planned route. The bridge which collapsed had been designated for a load limit of only 10,000 pounds. There was evidence that the bridge had been struck and damaged from six months to a year before the accident and that it was unsafe even for 10,000 pounds, and shook when a dog trotted over it. No sign reflecting the load limit of the bridge was visible at the time of the accident, which occurred about 3 A.M. Investigation conducted when daylight arrived disclosed two highway signs containing notice of the five-ton weight limit. These signs were off the road and substantially covered over by vegetation and undergrowth. It was not shown when the signs had been displaced, although some evidence suggested that the signs had not been in place for “a year or longer.” Photographs in the record reveal that the bridge was a one-lane, wooden-floored bridge without superstructure, located at a curve and on a slight downgrade in the direction being traveled by appellant’s tractor-trailer. The driver of appellant’s outfit testified that he had slowed the vehicle by dropping to a low gear and was proceeding at a speed not over twenty miles per hour as he entered the bridge. The driver said that the trailer did not touch the bridge and that only the tractor had reached the span when it fell. It was shown that the empty weight of the tractor was 10,000 pounds and that the empty trailer weighed 8,500 pounds and had cargo weighing 16,250 pounds. Appellant’s estimate of damage to his equipment was in excess of $9,000.00.

We quote the statement of question presented as contained in appellant’s brief:

“Where Department of Highways negligently failed to give warning of unsafe bridge which it negligently maintained,, was violation of weight limit for class B highway a sufficient contributing cause of damage resulting when bridge collapsed to bar recovery ? ”

The appellant relies on Com., Department of Highways v. Begley, Ky., 376 S.W.2d 295, and Com., Department of Highways v. Higdon, Ky., 383 S.W.2d 331, to support its contention that the appellee had a duty to keep the highway and bridge in a reasonably safe condition for public travel and owed a duty to guard against foreseeable danger from the use of an unsafe bridge. Emphasis is placed upon the following language found in Com., Department of Highways v. Begley, supra: “The negligence of the Commonwealth rests not in the creation of the hazardous condition, but in permitting the situation to continue without attempting to remedy, warn, or guard against the danger.” Id. 376 S.W.2d at 297.

Proceeding from the premise that the ap-pellee was negligent, the appellant asserts that the excess weight of its tractor and loaded trailer was not the proximate cause of the accident. Appellant contends that the accident would have occurred if its rig had weighed 30,000 pounds or less, since the bridge was unsafe for 10,000 pounds of traffic. It is reasoned by the appellant that since only the tractor reached the bridge it is apparent that less than the 30,000 pounds prescribed for the roadway was applied to the bridge before the collapse, so that exceeding the highway load limit was neither a proximate or remote cause of the accident.

Appellee concedes in its brief that “ * * most assuredly was a duty owed by appellee to warn of the condition of the bridge, * * * ” but contends that this duty was owed only to persons lawfully using the highway and that no duty was owed to the appellant since its equipment was illegally upon the road. Appellee suggests that the appellant’s status on the road was comparable to that of a trespasser.

We do not consider it necessary to premise our decision upon the theory of ap-pellee as just stated. The Board of Claims in its opinion denying the relief sought by appellant said in part:

“However, even should we conclude that the defendant was negligent in failing to maintain this bridge properly and to warn the general public of its dangerous propensities — and that the duty extended to this plaintiff — it is apparent that the plaintiff was nevertheless guilty of contributory negligence in attempting to proceed across this one-way bridge, which was obviously inadequate, knowing of his weight load and the hazard involved.
“We conceive that recovery must therefore be denied plaintiff on either count.”

It is our view that the Board of Claims had before it sufficient evidence to justify its finding that the appellant’s contributory negligence barred recovery. The physical appearance of the bridge, as reflected from the photographs, furnished some warning to appellant’s driver of the hazard in undertaking to cross it while proceeding downgrade with his loaded equipment. The Board was not required to believe that only the tractor had reached the bridge floor when the collapse occurred; but in any event, the Board was justified in concluding that more than five tons of thrust was applied to the bridge by reason of the physical situation involved. We are not able to say that the probative quality of the evidence for the appellant was so conclusive as to impel the Board, as a fact finder, to render an award for the appellant. In this state of case we may not upset the Board’s conclusion. KRS 44.150; Pemberton v. Com., Department of Mental Health, Ky., 398 S.W.2d 487; Lee v. International Harvester Co., Ky., 373 S.W.2d 418.

The judgment is affirmed.

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

OSBORNE, J., not sitting.


text:
    Bob CANTRELL, d/b/a Bob Cantrell Coal Company, Appellant, v. Gordon Ray STAMBAUGH et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.
    David O. Welch, Dysard, Johnson & Welch, Ashland, J. K. Wells, Paintsville, for appellant.
    G. C. Perry, III, Paintsville, Robert Matthews, Atty. Gen., Frankfort, for ap-pellees.
   DAVIS, Commissioner.

The narrow question presented in this workmen’s compensation proceeding is whether the correct formula has been applied in determining the average weekly wage of the injured employee. The Workmen’s Compensation Board found that the average weekly wage of appellee Stam-baugh was $50.00. The circuit court concluded that the average weekly wage was more than $50.00 and sufficient to entitle Stambaugh to maximum benefits prescribed in KRS Chapter 342. We granted appeal pursuant to proper motion. RCA 1.180.

The injury upon which the award of compensation is based occurred on February 28, 1964. At that time KRS 342.140 (1) provided as follows:

“Compensation shall be computed at the average weekly wage earned by the employee at the time of injury reckoning wages as earned while working at full time. ‘At full time’ as used herein means a full working day for five days in every week of the year regardless of whether the injured employee actually worked all or part of the time. If the employee shall not have been employed a sufficient length of time to establish an average weekly wage then compensation shall be based upon the average weekly wage as herein defined of these employees of the same employer in the same or most similar type of employment.”

It was shown that Stambaugh actually worked for a wage of $10.00 per day with time and a half allowed for work in excess of five days per week. It is the contention of Stambaugh that his average weekly wage was $65.00, not $50.00, and that the circuit court was correct in remanding the matter to the Board for appropriate upward amendment of the award.

The parties have cited cases determined by this court prior to any statutory definition of “full time” in an interesting recital of the development of the law touching the point at issue. See Beaver Dam Coal Co. v. Hocker, 202 Ky. 398, 259 S.W. 1010; Chatfield v. Jellico Coal Mining Co., 205 Ky. 415, 265 S.W. 943; American Tobacco Co. v. Grider, 243 Ky. 87, 47 S.W.2d 735; Lexington Mining Co. v. Richardson, 286 Ky. 418, 150 S.W.2d 889; Chickasaw Wood Products Co. v. Babbs, 298 Ky. 409, 182 S.W.2d 953. An examination of those authorities discloses that the average daily wage of an injured employee was determined from the best evidence available, and the basic weekly wage was computed by multiplying the average daily wage by six. In 1946 KRS 342.140 was amended, and by the amendment “at full time” was specifically defined as meaning a “full working day for five days in every week of the year regardless of whether the injured employee actually worked all or part of the time.” Following that enactment we have adhered to the statutory mandate and applied the rule therein enunciated. Green Val. Coal Co. v. Carpenter, Ky., 397 S.W.2d 134; Clay Coal Corp. v. Abner, Ky., 401 S.W.2d 56. As we read KRS 342.140(1) as it existed in 1964, it fixed the average weekly wage as if the employee had been working five full working days per week without regard to whether the employee actually had so worked. This was the same principle which had been recognized in decisions prior to 1946. See Lexington Mining Co. v. Richardson, 286 Ky. 418, 150 S.W.2d 889. The interpretation of the statute before and after 1946 gave the “break” to the employee who had not worked full time but placed a ceiling on the average weekly wage, which was unaffected in instances where the employee worked more than full time as defined in the'cases and later by statute. Simply put, we regard KRS 342.-140(1) as an effective, maximum limit in computing applicable awards under KRS Chapter 342.

Appellee Stambaugh urges that we should regard KRS 342.140 as procedural rather than substantive. In this connection it is noted that the statute was substantially amended in 1964, the amendment taking effect August 1, 1964, and after the date of the injury involved in this case. It should be observed that KRS 342.143 also came into force August 1, 1964, and appears to inject elements of flexibility and uniformity not heretofore contained in KRS Chapter 342. The appellee Stambaugh does not quarrel with the proposition that the maximum award base is a matter of substance and not one of procedure, and thus governed by the statutes in effect at the time of the accident. Cf. Collier v. Hope Coal Co., Ky., 269 S.W.2d 278; Beth-Elkhorn Corp. v. Thomas, Ky., 404 S.W.2d 16. However, he takes the view that nothing could be more procedural than the method of computing the average weekly wage. No authority for that proposition is furnished to us, nor have we discovered any. We believe that the fixing of the maximum award pursuant to a statutorily defined, average weekly wage is a matter of substance and not one of procedure. Beth-Elkhorn Corp. v. Thomas, supra. We express no view as to what effect existing KRS 342.140 and 342.143 would have if the injury in this case had occurred after August 1, 1964, since that is not the factual situation before us.

The judgment is reversed with directions to enter a new judgment affirming the award as fixed by the Workmen’s Compensation Board.

WILLIAMS, C. J., and EDWARD P. HILL, MILLIKEN, MONTGOMERY, PALMORE, and STEINFELD, JJ., concur.

OSBORNE, J., not sitting.


author: WADDILL, Commissioner.

text:
    Tommie Lou MOSLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.
    James R. Odell, Joseph D. Harkins, III, Lexington, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant was convicted of the crime of rape and sentenced to ten years’ servitude in the state penitentiary. The sole ground for reversal of the conviction is that the trial court erred in excluding the testimony of James Gay, a psychologist, concerning the mental condition of the prosecuting witness at the time of the alleged rape.

The record reflects that for several months prior to May 11, 1966, the date of the alleged offense, Geraldine Eden, the prosecuting witness, had been staying in the home of Elihu Asher where she was employed as a full-time baby-sitter. Geraldine, who is 27 years of age, testified that during the evening of May 11, 1966, the Ashers had left their residence to go bowling. Appellant, an acquaintance of Geraldine and a relative of Asher entered the Asher home for the purpose of staying overnight. Geraldine stated that after the Asher children went to bed, appellant tried to make love to her and when she resisted his amorous advances he forcibly tied her hands behind her back, pushed her down on a couch, removed her underclothing and raped her.

Appellant, age 54, testified that upon his arrival at the Asher residence Geraldine informed him that she wanted to talk with him before he retired. He had waited only a short time when Geraldine came over and sat beside him on a couch where they immediately began making love and Geraldine voluntarily submitted to sexual intercourse with him as she had on several previous occasions. He stated that following the intercoürse they went to the kitchen and Geraldine prepared a snack for them. When they were later questioned that night as to their conduct, appellant stated that much to his surprise Geraldine claimed he had raped her.

Appellant urges that the court erred in refusing to permit the jury to consider, for the purpose of impeaching Geraldine’s credibility, the testimony of Doctor Gay concerning Geraldine’s mental condition. Doctor Gay has obtained a Ph D degree in psychology and has been licensed by the state of Kentucky as a clinical psychologist. (KRS 319.010 defines the practice of clinical psychology to include the administration of tests for the purpose of psychological diagnosis, classification and evaluation and recognizes services involving the reeducation, guidance or readjustment of the patient.) He is a member of the American and Kentucky Psychological Associations and is presently the psychologist in charge of the Fayette County Program, a special program at Eastern State Hospital for outpatient treatment.

Doctor Gay, who is in charge of the treatment of Geraldine’s mental disorder, testified, by way of avowal out of the presence of the jury, that Geraldine had entered a state hospital for mental treatment during October 1961. At that time she was complaining that her father and brothers had molested her sexually during her adolescence. She was discharged from the hospital in January 1962 and readmitted for treatment on a voluntary basis during 1964. She has been treated by Doctor Gay since September 1965.

While Doctor Gay believed that Geraldine was in a state of remission at the time of the alleged rape, it was his opinion that she is schizophrenic and is an immature individual. She could not tolerate frustration, was easily disturbed and had a guilt complex. Doctor Gay stated that schizophrenia is a complex phenomenon, that it is a disturbance of behavorial effect and thinking which has not been found to be caused or related to any physical or organic condition, but it has a psychiatric origin, i. e. an emotional basis. He further stated that one of the manifestations of schizophrenic reaction is fantasies and when asked whether Geraldine’s fantasies extend to the area of sex, he answered, “In this particular case I think it does.”

Since the Commonwealth relied upon the uncorroborated testimony of Geraldine to establish its case against appellant, the principal question at issue had reference to the credit to be given to the testimony of Geraldine. Therefore, Doctor Gay’s testimony may have had an important impact on the jury as it tended to impeach Geraldine’s credibility.

It is our opinion that the proffered testimony of Doctor Gay was relevant and competent and should have been received, not in extenuation of rape, but for its bearing upon the question of the weight to be accorded Geraldine’s testimony. For this reason the court should admonish the jury that the expert testimony should be considered by it only for the purpose of affecting the credibility of this witness, if it does so.

Generally a witness may be impeached only as specified in our Rules of Civil Procedure (CR 43.07). However, the modern trend is to permit the jury to consider expert testimony in the field of mental disorders and relax the rule in sex offense cases. Ballard v. Superior Court of San Diego County, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838; People v. Neely, 39 Cal.Rptr. 251. McCormick in his treatise on Evidence, Section 45 at page 99, observes:

“ * * * Naturally, the use of psychiatric testimony as to mental disorders and defects suggests itself as a potential aid in determining the credibility of crucial witnesses in any kind of litigation. In one type of case, namely that of sex offenses, the indispensible value of this kind of testimony has been urged by Wigmore, and other commentators, and such testimony has been widely received by the courts. * * *

Also see III Wigmore, Evidence, 3rd Ed. 1940, Sections 924a, 931, 932, 935, 997b, 998b, which includes a thorough compendium supporting the view of admitting in evidence expert testimony.

In State v. Armstrong, 232 N.C. 727, 62 S.E.2d 50, the importance of permitting an accused to impeach a witness for the state was pointed out as follows:

“ * * * It is always open to a defendant to challenge the credibility of the witnesses offered by the prosecution who testify against him. * * *.
“What could be more effective for the purpose than to impeach the mentality or the intellectual grasp of the witness? If his interest, bias, indelicate way of life, insobriety and general bad reputation in the community may be shown as bearing upon his unworthiness of belief, why not his imbecility, want of understanding, or moronic comprehension, which go more directly to the point? * * * ft

A similar conclusion was reached by the United States District Court in United States v. Hiss, 88 F.Supp. 559, wherein it was observed:

“The existence of insanity or mental derangement is admissible for the purpose of discrediting a witness. Evidence of insanity is not merely for the judge on the preliminary question of competency, but does to the jury to affect credibility. * * *

Also see Giles v. State of Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737, which concerns itself with the prosecution’s suppression of evidence relating to the credibility of the prosecution’s witnesses.

We conclude that the jury was entitled to hear and consider the testimony of Doctor Gay and that its exclusion constituted prejudicial error in the case.

The judgment is reversed with directions to grant appellant a new trial.

WILLIAMS, C. J., and EDWARD P. HILL, MILLIKEN, STEINFELD, PAL-MORE and OSBORNE, JJ., concur.


author: MILLIKEN, Judge.

text:
    Grace Crase PFAFF, Appellant, v. Herman PFAFF, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.

      S. H. Rice, Irvine, for appellant.
    M. V. Mainous Irvine, for appellee.
   MILLIKEN, Judge.

This appeal is from a judgment awarding a divorce to both husband and wife, and the wife, the defendant below, appeals because no alimony was awarded her and because she feels the allowance of fifty dollars a month for the support of their thirteen year daughter is insufficient.

The only proof before the chancellor was the testimony of the husband and the wife. The parties had been married for twenty-eight years and live in Irvine. They have two daughters, ages twenty and thirteen. The older girl is a senior in college and the younger is at home and in high school. The charges of both parties are based on cruelty and it was within the discretion of the chancellor to enter judgment granting an absolute divorce to either, for the evidence of each party, if believed, was sufficient to sustain it.

During the pendency of the suit, the parties sold their home and divided the equity between them which was about $1,500.00 to each after the payment of the mortgage upon it. The furniture and belongings, valued at about $2,000.00, were given to the wife, and the automobile with its substantial mortgage to the husband. He also assumed the two outstanding store accounts. No formal property agreement was entered into.

The husband earns about $7,000.00 a year and the wife slightly over $2,000.00. In addition, the husband receives a veteran’s disability allowance of $74.50 a month which satisfies the monthly mortgage payments on his car. The chancellor awarded no alimony to the wife and we believe this was error in the circumstances of this case. She has been guilty of no immoral conduct which would justify denying her alimony. In fact, we are impressed by the apparent honesty of the testimony of both parties, yet it reflects a mutual irritability. She is three years older than he and after twenty-eight years of marriage and the rearing of two daughters, we believe that she is entitled to alimony and an additional monthly allowance for the support of the younger daughter. We have held that when a wife has not been guilty of immorality and the husband has not been entirely free of fault, the wife may be entitled to alimony even though the husband was granted the divorce. Coleman v. Coleman, Ky., 269 S.W.2d 730; Conlan v. Conlan, Ky., 293 S.W.2d 710; and Bailey v. Bailey, Ky., 294 S.W.2d 942. In the case at bar the wife is in her early fifties, has not misbehaved and we think is entitled to alimony. The couple did not accumulate so much during their marriage that the property settlement effected between them is tantamount to a lump-sum payment of alimony.

The judgment denying alimony is reversed with directions to award the wife alimony until and unless she remarries, and to reconsider the amount allowed for maintenance of the daughter in light of the present circumstances of the parties.

WILLIAMS, C. J., and HILL, PAL-MORE and STEINFELD, JJ., concur.

MONTGOMERY, J., dissenting.

OSBORNE, J., not sitting.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Daniel D. BALL et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Edmond H. Tackett, Pikeville, for appellant.
    Eldred E. Adams, Daniel D. Ball, Louisa, for appellees.
   CLAY, Commissioner.

In this condemnation proceeding the jury awarded appellees $20,000 for the taking of something over three acres from a 30-acre tract located on U.S. 23 about a mile south of Louisa. The Commonwealth contends certain evidence was incompetent and the verdict was excessive.

Appellees’ property was hillside land, fronting about one-half mile on the highway, and sloping rather steeply to the top of a ridge. It was used as a pasture at the time of the taking, with no improvements except a barn (not taken). The Commonwealth took a strip across the frontage 93 feet in depth at its widest point and tapering to 24 feet.

This land was purchased in 1958 for $7,000. The jury found its before value to be $36,000 and its after value to be $16,000, thus the award of $20,000.

Appellant objected to the introduction of a color photograph which was taken after construction had started on the condemned property. We have in certain cases held such evidence incompetent where the picture portrays an abnormal condition the jury would likely and improperly consider. in awarding damages. See Commonwealth, Dept. of Highways v. Fister, Ky., 373 S.W.2d 720, and Commonwealth, Dept. of Highways v. Quisenberry, Ky., 402 S.W.2d 427, 428.

While the picture in controversy shows some grading work had been started, it fairly represents the contour of the land, a matter of most importance in this case. It has been very helpful to us. It exhibits nothing the jury should not have properly considered. It was admissible.

Appellees’ expert witnesses testified the land had value for building lots. On direct examination they simply stated before and after values without elaboration. On cross-examination it developed that one of the witnesses had made a speculative division of the frontage into 29 building lots, 100 x 200 feet, and after placing a value (up to $2,000) on each lot, had added his lot figures in reaching his before value estimate. Another witness had used a similar method, and after totaling the projected value of the lots, had subtracted this figure from his before value figure and thereby reached his after value appraisal.

Valuation evidence of this kind was condemned in Commonwealth, Dept. of Highways v. Evans, Ky., 361 S.W.2d 766, and United Fuel Gas Company v. Clarke, Ky., 387 S.W.2d 844, because it does not fairly represent the market value of the unimproved tract as a whole.

Of course the adaptability of the land. for such use could be shown, and its overall value based on such utilization is a significant factor. However, in this case, even if the witnesses had not projected specific individual lot values, their method of appraisal lacked probative value. In the first place, it rests on the false assumption that the Commonwealth is condemning a strip 200 feet wide, which it is not. Secondly, it assumes the Commonwealth is taking all of the landowners’ frontage, when in fact the remaining land has an almost identical frontage area. Finally, it completely ignores the fact that the land remaining after the taking has substantially the same potential building lot value as it had before the taking.

The effect of the taking in this case was to widen a highway without appreciably changing the grade. Appellees’ potential building lots were simply moved back a distance of 24 to 93 feet. Since they were wholly imaginary to begin with, this shift of location did no direct physical damage.

What we have just said of course would not be true if appellees’ outer property line limited the usable depth of the newly projected frontage lots. (It did not.) Also, if the steepness of the slope increases as the land recedes from the highway (which to a certain degree is a topographical fact in this case), the remaining area would have a lesser building lot value. However, the landowners’ own evidence makes it clear that if the land before the taking had a building lot value, the remaining land must likewise have such a value. The damage appraisal method used by ap-pellees’ witnesses clearly distorted the picture by overemphasis upon lots taken without giving due regard to lots left. Other things being equal, when the remaining tract is converted to frontage, it should be valued on the same basis the original frontage was valued.

We do not intimate that the land remaining after the taking in the present case had precisely the same adaptability as that of the land condemned. However, its building lot potential was completely ignored by appellees’ witnesses. The measure of damage is the difference between the value of the whole tract before the taking and the value of the whole tract remaining after the taking. If frontage is a significant value factor before, it is a significant factor after, if length, depth and adaptability are substantially the same.

The opinion evidence based upon aggregated fictitious individual lot values was incompetent and should have been stricken. Its consideration by the jury resulted in a verdict which exceeds the bounds of just compensation.

The judgment is reversed for a new trial.

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

OSBORNE, J., not sitting.