text:
    Thomas Allen WILSON, Petitioner, v. JEFFERSON CIRCUIT COURT, Honorable Frank A. Ropke, Presiding Judge, Respondent.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.
    Thomas Allen Wilson, pro se.
    Carl C. Ousley, Jr., Asst. Commonwealth’s Atty., Louisville, for respondent.
   STEWART, Judge.

The petitioner filed an RCr 11.42 motion to vacate judgments involving three convictions. The motion is not in the record but from the response it would appear that it alleged two grounds:

(1) That he on his pleas of guilty to three separate indictments was sentenced to serve five years in the penitentiary on each indictment, the sentences to run consecutively, and no jury was empaneled to fix punishment.

(2) That he had “an agreement between himself and the Commonwealth’s Attorney” that in exchange for a plea of guilty he would receive a five year sentence on each of the three indictments and the sentences were to run concurrently.

The motion was overruled and it is not shown a formal hearing was had before such was done.

RCr 11.42 is intended to provide a post conviction review procedure in which, unless his motion is clearly insufficient on its face, the prisoner is entitled to four principal safeguards, (1) representation by adequate counsel, (2) a hearing, (3) a record of that hearing, and (4) an appeal.

Neither the petition for mandamus nor the response filed in this Court includes a copy of the petitioner’s RCr 11.42 motion filed in the circuit court. The petitioner’s failure to include it may be overlooked, since he is without counsel. Under the circumstances, this Court will not assume that its allegations were insufficient to entitle him to a hearing, which from the response it is clear that he did not have.

It is our opinion the RCr 11.42 proceeding should be reopened. If the petitioner’s motion shows on its face that the grounds for setting aside his sentences are insufficient, the final order should so find, and a copy thereof be promptly furnished to him. If the motion states grounds which, if sustained, might invalidate the judgments, he is entitled to counsel and a hearing, as above mentioned.

Wherefore, the writ is granted.

Writ granted.

      Writ granted.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Boyd P. PRATER et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Asst. Atty. Gen., Frankfort, Reed D. Anderson, Madisonville, for appellant.
    Ralph N. Walter, Nickell & Walter, West Liberty, for appellees.
   MONTGOMERY, Judge.

The Commonwealth of Kentucky, Department of Highways, appeals from a condemnation judgment in favor of Boyd P. Prater and his wife for $14,000 for land taken and $4,000 for damages to the remaining property. This case was tried pri- or to Commonwealth v. Sherrod, Ky., 367 S.W.2d 844. Appellant urges that the trial court erred in refusing to strike testimony because it was based on irrelevant factors and that part of the verdict is not supported by proof.

Appellees’ witness, Custer Jones, testified on cross-examination as follows:

“Q 12 Now what is your definition of market value?
“A What it costs?
“Q 13 What is your definition of market value?
“A Well an acre of land that will raise a thousand dollars worth of tobacco each year will be a basis to start on.
“Q 14 Then you are basing your opinion on what this land produces every year?
“A I base my opinion on what it will produce and an acre of ground that will produce a thousand dollars worth of tobacco each year is valuable land, and there is lots of it in Morgan County and that is some of it over there.
“Q 15 That is what you base your opinion on?
“A Yes, Sir.
“Q 16 And what is the basis of this $22,000. value?
“A Well that and the bottomland and the hill, all of it together, I base it on that and other connections with it.”

Appellant says that Jones’ testimony should be stricken because he based his evaluation on the productivity as tobacco-raising land. Evidence of productivity based on actual income, when produced by the landowner, has been condemned. Commonwealth v. Eubank, Ky., 369 S.W.2d 15.

In the Eubank case testimony by the landowner concerning the average annual farm income from tobacco, milk, and calves over a five-year period was condemned as a basis for the value to be placed on the farm. In that opinion so much of Kentucky Water Service Co. v. Bird, Ky., 239 S.W.2d 66, as was inconsistent was overruled.

On direct examination Jones had testified that he had lived in the county all of his 84% years; that he had been a “farmer, sawmill man, banker, merchant, most everything else”; that he had had 33 years’ banking experience, mostly as cashier and president of a bank located within four miles of the property taken; and that he owned land in every ASC District in the county. He further testified in detail concerning his knowledge of the Prater lands, including the types, the terrain, the improvements and their condition. He was then asked to and did fix values before and after the taking, based on his experience in buying and selling lands and on his knowledge of property values.

The testimony concerning the value of tobacco land was given in partial explanation of Jones’ understanding of the meaning of “market value.” A further reading of Jones’ testimony on cross-examination shows that while he considered the tobacco acreage evaluation, he also considered other relevant factors. His answer giving the basis of the $22,000 evaluation was “ * * * that (referring to the tobacco land) and the bottomland and the hill, all of it together, I base it on that and other connections with it.”

Actually the reference to $1,000 of tobacco per acre may have been conservative in the light of the then current generally increased monetary returns per acre due to higher tobacco prices, increased use of fertilizer, and better farming methods. The reference to the value of tobacco land productivity was erroneous, although an inadvertent one to a commonly accepted production standard of rural tobacco land. Under the circumstances it is not considered prejudicial.

So far as Jones’ understanding of the term “market value,” he probably could not have defined it. On the other hand, from his knowledge and experience of property and sales of property, the testimony leaves little doubt of his ability to determine and state the market value of farm land in Morgan County.

Further, there is no merit in the objection that there is no evidence to support the verdict of $4,000 as damages to the remaining land. James Henry Finch testified to an evaluation of $5,100, based on $3,600 for 60 landlocked acres with $1,500 added for an acre of level land. The award of $4,000 was within this evaluation.

Judgment affirmed.


author: PALMORE, Judge.

text:
    Tommy WELLS et al., d/b/a Wells & Wells Construction Company, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.
    William A. MacKenzie, Jones, Ewen & MacKenzie, Louisville, for appellants.
    L. A. Faurest, Jr., Elizabethtown, John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., James J. Shannon, Jr., Dept, of Highways, Frankfort, for appellee.
   PALMORE, Judge.

This is a suit against the Commonwealth for damages resulting from an alleged breach of contract. The appeal was briefed and submitted prior to Foley Construction Company v. Ward, Ky., 375 S.W. 2d 392 (1963), in which it was held that the doctrine of sovereign immunity prevents recovery in contract actions against the state. At the close of plaintiffs’ evidence the trial court dismissed the claim on the basis of the terms of the contract and the proof relevant to its alleged breach. The defense of sovereign immunity was not specially pleaded or relied upon. However, it is a constitutional protection that can be waived only by the General Assembly and applies regardless of any formal plea. Commonwealth, Dept. of Highways, v. Davidson, Ky., 383 S.W.2d 346 (decided October 16, 1964). In view of the Foley decision a review of the instant appeal on the merits would be fruitless.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    Walter “Sonny” GOSSETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.

      Fritz Krueger, Somerset, for appellant.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

This is an appeal from a judgment of the Pulaski Circuit Court by which the appellant, Gossett, was sentenced to confinement in the state penitentiary for a period of one year under a charge of false swearing. Appellant contends that about two years prior to the entry of the judgment he had been placed on probation for a period of one year and, at the time the probation was summarily revoked, the probationary period had been completed and the court had no right to enter judgment imposing sentence

KRS 439.270 (here involved) reads in part: “Upon completion of the probationary period the defendant shall be deemed finally discharged, provided, no warrant issued by the court is pending against him, and probation has not been revoked.”

At the 1962 February term of court, Gossett was indicted for the offense of false swearing. On March 13, 1962, his case came on to be tried and on the same day (the record contains an obvious typographical error as to the date) the court entered a judgment which stated that Gossett had waived arraignment and had entered a plea of guilty, that a jury had been impaneled, had heard evidence, and, under instructions of the court, had returned a verdict in which appellant was found guilty and his punishment fixed at one year in the state penitentiary. Appellant was returned to the custody of the jailer. It will be noted here that sentence was not imposed in the judgment.

On the same day and on the following page in the Criminal Order Book, this order was entered:

“This matter coming on before the Court on the defendant’s motion and grounds for a new trial and the Court takes time, it being agreed by the defendant and his counsel and counsel for the Commonwealth that the defendant, Walter ‘Sonny’ Gossett, will, within thirty days time after his release from the sentence he is now serving in the Pulaski County Jail, absent himself from Pulaski County, Kentucky, for a period of one year from that date and further he agrees as a condition of this Order that he will not violate the laws of this Commonwealth in any respect.
“In the event that the defendant shall fail to comply with any part of this Order, that is, by removing himself from Pulaski County for a period of one year or by violating any law prior to his removal from this County or if he should return to Pulaski County within a period of one year after having absented himself from this County, then the motion for a new trial will be overruled and the sentence of the Court will be immediately imposed upon this defendant. If, however, he shall comply with the terms of this Order, at the end of one year after his removal from this county, the motion for a new trial will be sustained and this indictment dismissed against him.”

No other order or judgment appears for a period of more than two years. On May 28, 1964, this order was entered:

“It is ordered by the Court that Motion and Grounds for New Trial be and the same are overruled as the court knows the defendant has not complied with the Order of the court entered as of March 13, 1962, and evidence has been submitted to the court that the defendant has not obeyed the law, and it is ordered by the court that a Bench Warrant issue for defendant.”

That order was followed, a few days later, by this judgment:

“The defendant was this day brought into court and being informed of the nature of the indictment on the charge of False Swearing plea and verdict was asked if he had any legal cause to show why judgment should not now be pronounced against him and none being shown, it is adjudged that the defendant be taken by the Sheriff of Pulaski County to the State Reformatory and there confined at hard labor for a period of One year.”

As we have stated, appellant contends that the court had no power to enter the last quoted judgment because, under KRS 439.270, appellant’s probationary period was finally discharged. The statutes which deal with the postponement of a judgment and probation of a defendant (KRS 439.250 through 439.300) are few and without detail. Subsection (1) of KRS 439.260 permits a circuit court to “postpone the entering of a judgment and the imposing of a sentence and place the defendant on probation,” but no attempt is made to outline an exact method of procedure. It seems to anticipate that one judgment may be entered on the verdict and later a second judgment entered by which a sentence under the verdict may be imposed. Subsection (2) of the same statute provides that a judgment pursuant to the verdict of a jury shall be a final judgment from which an appeal may be prosecuted, but gives the-circuit court the additional right of withholding from the judgment a directive that the defendant be taken by an officer to the penitentiary. In light of that distinction,, subsection (1) may be interpreted to mean that in probationary cases a judgment on the verdict may be properly entered and a judgment imposing a sentence may be postponed.

The trial court apparently interpreted the statutes in such a manner. He accepted the motion for a new trial in connection with his first judgment entered on March 13, 1962, in which he detailed the occurrences during the trial, and the jury’s verdict. He returned appellant to the custody of the jailer without imposing the sentence authorized by the verdict. On the same day, under another order, he, in effect, postponed entering a judgment that would impose a sentence. He could have simply stated the fact of the postponement, followed the formal requisites of the statutes, such as directing that the appellant be placed under the supervision of the Division of Probation and Parole, and directed application of any of the sanctions enumerated under KRS 439.290; instead, he chose to tie in with the postponement of the judgment imposing a sentence, a covenant that if appellant would obey the law and absent himself from Pulaski County for the period of a year, the court, in turn, would sustain the motion for a new trial and dismiss the indictment against defendant.

Under the statutes, the postponement of a sentence in no way is tied in with the question of whether a new trial should be granted, nor is the court given the right to covenant that he will not pass upon the motion for a new trial for such a long period of time.’ The only fair interpretation which may be given this order, so far as the appellant is concerned, is that all it did was to postpone sentence.

The Commonwealth states that the trial court was completely in error in holding the motion for a new trial in suspension for two years and releasing the defendant ■during that period, and contends that the order was void and all that was left was the judgment of conviction sentencing appellant to one year in the penitentiary. We ■do not agree. No such judgment was entered until after a two-year period had expired. We have concluded, therefore, that although the court, under this incomplete and poorly drafted statute, used conditions in his order which were not acceptable, the only just interpretation of that instrument is that he, in fact, postponed sentencing for a period of one year.

It is plain from the record that during •the probationary period no warrant issued by the court was pending against appellant .and his probation had not been revoked. Therefore, under KRS 439.270, appellant was deemed finally discharged and was, by the force of the statute, discharged. If the court wishes to act, he must do it •during the limitations of the probation ■period.

The Commonwealth has relied upon Commonwealth, Dept. of Welfare, etc. v. Stevens, Ky., 378 S.W.2d 799, but that case •is readily distinguishable because, there, judgment was entered imposing confinement in the penitentiary for a period of two years. A motion for a new trial was overruled on the same day. About a week later, .an order was entered sustaining appellee’s motion to reconsider the motion for a new ■trial. The court entered an order which recited that the defendant had received a ■two-year sentence, and that the judgment was pending before the court for a new trial ■upon which the court took time. The order further set out provisions similar to the •ones we have here with the agreement that •if appellant and his family would leave the State of Kentucky for four years and fulfill other obligations, then the motion for a new trial would be sustained and the charges dismissed. However, the judgment imposing sentence was not set aside which fact makes the case quite different from the one we have at bar.

The judgment is reversed with directions that the defendant be discharged.

Judgment reversed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Dennis E. PICKERELL et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Harold Huddleston, Elizabethtown, and Thomas B. Givhan, Shepherdsville, for appellant

      Hobson L. James, J. Howard Holbert and ' Horace E. Tabb, Elizabethtown, for ap-pellees.
   PALMORE, Judge.

The Commonwealth appeals from a judgment of the Hardin Circuit Court on a jury verdict awarding the appellees Dennis Pickerell and wife $2,940 for reduction in market value of their house and lot by reason of the condemnation of a .13-acre strip for construction of a service road incident to the nearby construction of the West Kentucky Turnpike.

The argument of the Commonwealth is directed to the competence and probative weight of the valuation testimony given in behalf of the landowners. A review of the transcript leaves us with a distinct impression that the appeal must have been taken as a matter of routine policy. It does not have sufficient merit to justify an extended opinion. The witnesses were qualified and their testimony supports the verdict.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Anna Ruth NEWDIGATE, Appellant, v. Henry M. WALKER, Appellee.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.
    Charles J. Schear, Newport, for appellant.
    Robert G. Zweigart, Royse & Zweigart, Maysville, for appellee.
   WADDILL, Commissioner.

The appeal is from a judgment declaring appellee the owner of certain real estate and enjoining appellant from interfering with appellee’s use of it. For reversal it is contended that the court erred: In deciding that Mason Circuit Court Rule 606 is not inconsistent with but supplements our Civil Rules; in striking appellant’s motion to dismiss the complaint; and in granting appel-lee a default judgment.

On September 11, 1962, appellee filed a -complaint in the Mason Circuit Court asserting ownership of certain land and seeking an injunction to prevent appellant from interfering with his use of this property. On September 15, 1962, the regular judge of the Mason Circuit Court voluntarily disqualified himself and three days later this Court appointed a special judge to hear and determine the controversy.

Within 20 days after service of summons, •on September 29, 1962, appellant filed the following motion:

“Comes the defendant, Anna Ruth Newdigate, and moves the Court to dismiss the plaintiff’s complaint herein because same does not state a claim on which relief can be granted.”

On October 11, 1962, appellee moved the •court pursuant to CR 12.06 to strike appellant’s motion for the reason that it failed to state with particularity the grounds therefor as required by CR 7.02(1) and Mason Circuit Court Rule 606, and moved for a judgment by default under CR 55.01.

CR 7.02(1) states, in pertinent part, as follows:

“(1) An application to the court for an order shall be by motion which, * * * shall state with particularity the grounds therefor, * *

Mason Circuit Court Rule 606 (promulgated March 1, 1958, pursuant to CR 78(2) :and CR 83) reads:

“Failure to state with particularity the grounds for motions, and to include authorities, will be deemed dilatory filings, and will not toll time in which to .file responsive pleading.”

On January 11, 1963, the court sustained the motions made by appellee; struck appellant’s motion as being a nullity; declared the time for responsive pleadings had expired, and granted the appellee judgment by default.

The circuit judges may regulate the practice in their courts by adopting local rules which are not inconsistent with our Civil Rules. CR 83. In applying this standard to the Mason Circuit Court Rule 606, we observe that it is permissible under CR 78(2) to require a written statement of reasons in support of a motion, and this would reasonably include a list of authorities. Thus, to the extent the Circuit Court Rule requires the motion to state grounds with particularity and to include a statement of authorities, it is consistent with the provisions of CR 78 and is in harmony with the provisions of CR 7.02.

The provisions of CR 12.01 give a party twenty days after service of summons upon him within which to serve his answer. The service of any motion permitted by Rule 12 alters this period of time (unless the court fixes a different time). Appellant’s motion was filed pursuant to CR 12.02, therefore, CR 12.01 permitted appellant to file his answer within ten days after notice that the circuit court had ordered his motion stricken. Consequently, that portion of Mason Circuit Court Rule 606 providing that a motion which is deemed dilatory will not toll time for filing a responsive pleading is inconsistent with CR 12.01.

The views expressed herein necessitate a reversal of the judgment because the circuit court erred in depriving appellant of the time within which to file his answer as provided in CR 12.01 and in entering a default judgment.

The judgment is reversed with directions to set it aside and to grant a reasonable time within which appellant may serve an answer.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. George HOBSON et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.
    John B. Breckinridge, .Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, and Edmond H. Tackett, Pres-tonsburg, for appellant.
    Paul E. Hayes, Prestonsburg, for appel-lees.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, appeals from a judgment in a highway condemnation suit awarding the landowners $3,587.50 for the taking of two acres of bottom land and two acres of hillside in Floyd County.

The judgment must be reversed for error of the trial court in refusing to admit evidence offered by the Commonwealth of the prices paid in private sales of comparable property. See Commonwealth, Department of Highways v. Shackleford, Ky., 380 S.W.2d 77, and cases therein cited. The error was prejudicial because the prices-in the comparable sales (shown by avowal) would have supported the testimony of the Commonwealth’s appraisal witness that the land in question was worth only $1250. We do not accept the appellees’ argument that because the verdict is closer in amount to the Commonwealth’s value estimate than; to the landowners’ value estimates there-was no prejudice.

The value estimate of one of the landowners, based solely on an offer he had received for the property, was subject to-being stricken because it was based on am irrelevant factor. Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472. However, the Commonwealth did not move to strike the testimony but moved only to strike “the answer of this witness-as to what lie bases his figure on.” As-pointed out in Tyree, such a motion is futile.

The testimony of the appraisal witnesses for the landowners had some probative value. Since there will be a new trial at which the verdict may be different, we shall not pass on the question of whether their testimony had sufficient probative value to sustain the verdict, or on the related question of whether the damages are palpably excessive. However, we deem it appropriate to say that the verdict, which in effect placed a value of more than $1500 per acre on two acres of bottom land in a remote area accessible only by a dirt road, strikes us at the least as coming very close to the permissible limits of generosity.

The judgment is reversed for further proceedings in conformity with this opinion.


text:
    Murle D. GULLION et al., Appellants, v. Carl L. EWRY et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    John Lane Ackman, Williamstown, for appellants.
    William G. Reed, Alfred W. Minish, Car-rollton, L. T. Peniston, New Castle, for ap-pellees.
   MONTGOMERY, Judge.

Carl L. Ewry recovered judgment based on a verdict against Murle D. Gullion in the sum of $1,167 for damages arising from a collision between their automobiles. Ewry sued Gullion, who filed an answer and counterclaim. Barnie Arlene Gullion, Murle’s wife, also interpleaded and asserted a claim for personal injury. The Gullions appeal and contend that: (1) He was not guilty of any neglience; (2) Ewry was guilty of negligence as a matter of law; and (3) a summary judgment of dismissal should not have been rendered on their claim against United Electronics Institute.

The motion for summary judgment was supported by an affidavit. No counter-affidavit was filed and no response was made. The substance of the uncontradicted affidavit was such as to show United Electronics Institute to be free of liability. On this record the court had no alternative except to accept the facts stated in the affidavit and sustain the motion. Continental Casualty Company v. Belknap Hdwe. & Mfg. Co., Ky., 281 S.W.2d 914. The granting of the summary judgment was correct. The collision occurred near the summit of a hill and the intersection of U. S. 42 and a farm road at about 7 p. m. on December 23, 1961. The road was crooked and hilly. The weather was a mixture of rain and snow.

Ewry testified that his car was traveling eastwardly on U. S. 42; that when he was about 400 or 500 feet from the summit of the hill he noticed the glow of lights from an automobile approaching which he assumed was on the highway; that he continued to drive eastwardly in his proper lane at about 40 to 45 miles per hour; and that as he came within a few feet west of a roadside sign on the south shoulder of the highway and near the summit of the hill he saw an automobile between 120 and 150 feet away traveling slowly in a west-wardly direction with its headlights on. It was pulling from the south berm onto U. S. 42. He said that as best he could observe in the few seconds intervening the front wheels of that automobile were at least three feet on the highway and in his lane; that he saw an open space immediately south of that car and to his right; and that he pulled off the highway to his right onto the south berm, applying his brakes as he did so. At that time Gullion swerved to his left and the two vehicles collided on the south berm of the highway at a point three to six feet from the south edge of the traveled portion of the highway. Ewry’s car came to rest, headed east and parallel to the highway. Gullion’s car was headed west at a slight angle to the highway. The left front of the Ewry car and the right front of the Gullion car were damaged. Ewry admitted that he had had two drinks; that he had so advised the state trooper; and that he had requested a sobriety test. The trooper testified that he could not tell whether Ewry had been drinking.

The testimony for the Gullions was to the effect that they had been visiting a farm home situated east of the summit of the hill some 300 to 500 feet and on the south side of U. S. 42. Gullion said that he drove westwardly at a slow rate of speed on a farm road, which was parallel to and just south of U. S. 42, to a point where he could see westwardly preparatory to driving onto U. S. 42. He said that his car was “sitting still” just prior to and at the time it was struck by Ewry’s car. Gullion’s wife said that they were intending to go west on U. S. 42 and “were pulling out on the highway.”

It is immediately apparent that there is a conflict in the testimony as to whether the Gullion car was on or off the traveled portion of the highway just prior to the collision. Ewry’s theory of the case is that his driving to the right of the Gullion car was the better way to avoid a collision. Gul-lion’s theory is that Ewry’s driving to the left would have been better and that Ewry’s judgment was influenced by his indulgence in intoxicating liquor.

Under Ewry’s testimony Gullion was guilty of negligence in driving onto the traveled portion of the highway since he should have yielded the right of way to Ewry’s oncoming car. KRS 189.330(7)-.. Ewry’s testimony is corroborated by the statement of Gullion’s wife that the Gullion car was pulling onto the highway. Evidently the jury believed this version of the accident, which is supported by substantive probative evidence. Gullion’s testimony was in conflict.

There was no basis for granting a directed verdict for either party and the case was properly submitted to the jury. The verdict will not be disturbed. Stewart v. Sizemore, Ky., 306 S.W.2d 821; Fields v. Baker, Ky., 329 S.W.2d 376. The physical fact that the cars collided or came to rest on the berm of the highway is not sufficient to require a directed verdict in view of all of the testimony in the case. Ison v. Mullins, Ky., 336 S.W.2d 599.

Judgment affirmed.


author: CLAY, Commissioner.

text:
    David STEWART, Clerk, Hart County Court, et al., Appellants, v. Joe G. BURKS et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.

      Davis Williams, Munfordville, for appellants.
    Huddleston & Huddleston, Horse Cave, for appellees.
   CLAY, Commissioner.

This action was brought by three qualified electors of a school district division against the Hart County Clerk to enjoin the latter from placing a nominee’s name on the official school ballot for the election to be held November 3, 1964. The relief requested was granted by the circuit court and the judgment was affirmed by order of this Court dated October 15, 1964. We document the reasons for our decision.

We are first confronted with a procedural problem. The circuit court dismissed the proceeding initiated by the electors but permitted the intervention of an opposing candidate, appellee Branstetter. The latter adopted the original complaint and the judgment was entered on his motion. Appellants contend the court erred' in permitting the intervention. It is our opinion the trial court improperly dismissed! the complaint of the plaintiff electors, and even if the intervention of the opposing nominee had not been permitted, the requested relief should have been granted.

The trial court dismissed the complaint of the electors on the ground that they had no standing to prosecute a proceeding of this nature, relying upon authorities holding that primary election contesis can only be prosecuted by a candidate for the office and not by a citizen and voter. Those authorities are Rose v. Epperson, 272 Ky. 765, 115 S.W.2d 336; Davis v. Stahl, 287 Ky. 629, 154 S.W.2d 736; Brandenberg v. Hurst, 290 Ky. 592, 162 S.W.2d 223. We do not believe those cases pertinent because this is not a primary election contest.

There is no statutory provision authorizing any particular party to question by suit a nominating petition for the office of school board member. Consequently we resort to general principles in determining what parties may properly prosecute such an action.

Although there is a conflict of authority, “the preponderance of authority is that where the question is one of public right and the object of mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced * * 35 Am.Jur., Mandamus, section 320 (page 73).

Kentucky has generally adopted this view. Louisville Home Telephone Co. v. City of Louisville, 130 Ky. 611, 113 S.W. 855, 859; Gay v. Haggard, 133 Ky. 425, 118 S.W. 299, 301.

In Kentucky Utilities Co. v. Ginsberg, 255 Ky. 148, 72 S.W.2d 738, we quoted from the above authorities and allowed a suit for mandamus by citizens and taxpayers to enjoin the mayor and the board of commissioners of Middlesboro from executing a loan agreement with the United States. The claim was that the mayor and board failed to subject the ordinance to a referendum as required by statute. We held that a resident, voter, and citizen of a town had the right to bring mandamus against these city officials to require them to follow the requirements of the statute — to discharge their public duty for the benefit of the public.

In Utz v. City of Newport, Ky., 252 S.W.2d 434, though we decided that the plaintiff taxpayer did not have the legal capacity to maintain an action to compel an election, we proceeded to decide the case on its merits as if a proper judicial controversy had been initiated.

Upon reason and authority it seems that the matter, in the absence of a controlling statute, is one of sound judicial policy. In a proceeding such as the one before us, no statute specifies who may bring such a suit. We believe the public interest in the subject matter is such that any voter or citizen who would be affected, though not specially, has standing in court to question the sufficiency of the nominating petition involved in this case. It may be observed that if the right to bring the action was limited to another nominee, no remedy would exist if only one person sought the office. It is therefore our opinion that the original plaintiffs had the right to maintain the action.

No one would deny the right of another nominee for the same office to question a nominating petition. The court could properly, as was done here, allow him to intervene under CR 21 and 24.02. Appellants’ complaint is that the intervention was untimely because not permitted until the entry of judgment. We have recognized that intervention after judgment may properly be allowed. Monticello Electric Plant Board v. Board of Education, Ky., 310 S.W.2d 272. Since the intervenor was presenting no new claim, and was adopting the original complaint in which he had a real interest, the trial court did not commit error in permitting him to be made a party.

The principal controversy involves the question of whether the nominating petition of appellant Davis was signed by a sufficient number of qualified electors. The parties assumed the number required was twenty, under KRS 118.080(2). It was established that several electors had not only signed the nominating petition of appellant Davis but had also signed the petition of his opponent, appellee Branstetter. If the persons who signed both petitions can be counted for neither nominee, then the petition of appellant Davis had less than twenty qualified signers. On the other hand, if certain persons signing both peti-titions may be counted for the petition filed ■first, which was that of appellant Davis, then his petition met the legal requirements. The difficulty is caused by amendments to the governing statutes.

Prior to 1964, KRS 160.220 was the controlling statute governing the nomination of members of boards of education; and it provided (1) that fifty legal voters of the county school district division sign the petition for each candidate, and (2) that “no person shall sign more than one petition”. We construed this latter provision to mean that a signer of two petitions could not be counted on the second petition filed, but that his signature on the first petition would not be invalidated. Huff v. Black, 259 Ky. 550, 82 S.W.2d 473; Huie v. Jones, Ky., 362 S.W.2d 287.

In the Huff case it was pointed out that the language in KRS 118.080, which declared that the signer of more than one petition shall not be counted on either, was not applicable since KRS 160.220, not KRS 118.-080, was the governing statute.

In 1964 both KRS 160.220 and KRS 118.-080 were amended. The latter statute required the signatures of twenty qualified electors (whereas old 160.220 had required fifty), and it also provided: “If any person joins in nominating, by petition, more than one nominee for any office to be filled, he shall not be counted as a petitioner for either nomination”. If KRS 118.080 applies, then appellant Davis’ nominating petition lacks sufficient valid signatures because the names of those signing both petitions must be stricken from his.

It is appellant Davis’ contention that old KRS 160.220 (and the cases construing it)1 still applies to the extent that he does not lose the duplicate signers since his petition was filed first. The argument is based on the proposition that the amendment to KRS 160.220 in 1964 failed to incorporate the provisions of KRS 118.080 (even though appellants inconsistently take the position that KRS 118.080(2) must apply insofar as the number of signers is concerned).

KRS 160.220, in its entirety as amended in 1964, is as follows:

“All elections for members of boards of education shall be by secret ballot.. The ballot shall be on a separate sheet from all other ballots used in any election. The county clerk shall cause to' be printed on the ballot the names of legally eligible candidates who have filed with the clerk a petition as provided in KRS 118.OIOS (Our emphasis)

The reference to KIRS 118.010 is obviously a mistake. That section of the statutes is-solely introductory in nature, doing no more than defining “election” and providing for the application of Chapter 118. It has nothing to do with, and makes no reference to a nominating “petition”.

On the face of it, the intended reference must have been to KRS 118.080. That is-the section which sets forth the requirements for nominating petitions. Of significance is the fact that the 1964 amendments-to both KRS 160.220 and 118.080 were made in the same bill (H.B. 27). More significantly, the language in amended KRS 160.-220: “ * * * who have filed with the clerk a petition as provided in KRS 118.-010”, was the substitute for, and repealed, the prior provisions of KRS 160.220 relating to the number of legal voters required on a petition and the requisites of signing. Unless KRS 118.080 governs this phase of the procedure, there remains in our law no prescribed method by which a peí son may become a nominee for the office of member of the school board.

It therefore seems abundantly clear that the statutory reference was a numerical error, which this Court may take cognizance of and correct to carry out the purpose and intent of the legislature. 82 C.J.S. Statutes § 342; County Board of Education of Daviess County v. Fiscal Court, 221 Ky. 106, 298 S.W. 185; State Property & Buildings Commission v. Hays, Ky., 346 S.W.2d 3.

Since the invalidation of duplicate signatures on nominating petitions such as those involved in this case is now controlled by KRS 118.080, the trial court properly found that the petition of appellant Davis did not contain sufficient valid signatures.

As heretofore ordered, the judgment is affirmed.


text:
    EASTERN COAL CORPORATION, Appellant, v. Prosper MAYNARD et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    Baird & Hays, Pikeville, for appellant.
    Sanders & Redwine, Pikeville, J. W. Craft, Jr., Frankfort, for appellees.
   CLAY, Commissioner.

Having contracted the occupational disease of silicosis, appellee was awarded total and permanent workmen’s compensation disability benefits. This award was confirmed by the circuit court. Appellant maintains it was contrary to the evidence and not in conformity with the statutes.

It is admitted the employee was exposed to conditions which could cause silicosis while in appellant’s employ and that his functional impairment was proven to be at least fifteen or twenty percent. Four of the five doctors who examined the employee also found an arteriosclerotic or heart condition. Another doctor did not find this latter condition and was of the opinion that the employee was totally and permanently disabled, because of silicosis, from engaging in further mine work or other heavy manual labor.

While conceding partial disability arising from the occupational disease, appellant contends the Board has in effect determined that since the employee should not return to work in the mines, even though a noncompensable condition also contributes to his disability, the employee is totally and permanently disabled. We do not believe the Board went quite so far in this case. We may observe, however, that a substantial functional disability resulting from silicosis, even though not total, may actually foreclose to the employee the opportunity for employment in the only occupational field for which he is qualified. This, coupled with substantial incapacity to perform other kinds of work, may constitute total disability. Leep v. Kentucky State Police, Ky., 366 S.W.2d 729.

Here we have an expert medical opinion (of Dr. Hambley) that the silicotic condition totally disabled the employee “for further occupation in the mines, or other heavy manual labor”. The Board could accept this evidence even though other doctors attributed part of the employee’s impairment to another condition.

What we have said above answers appellant’s argument that the Board should have made an apportionment under KRS 342.316 (9). See Inland Steel Co. v. Mosby, Ky., 375 S.W.2d 268.

We believe that appellant’s argument concerning the uniqueness of the disease of silicosis and its disabling effects are matters for legislative rather than judicial consideration.

The judgment is affirmed.


text:
    George GRUBB et al., Appellants, v. WURTLAND WATER DISTRICT et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.

      A. W. Mann, Paul C. Hobbs, Ashland, for appellants.
    Lewis H. Nicholls, Greenup, for appel-lees.
   PALMORE, Judge.

This is an action brought in the Greenup Circuit Court to declare void a judgment of the Greenup County Court establishing a water district under KRS 74.010 and to enjoin its commissioners from exercising the functions of their office. The plaintiffs appeal from a judgment sustaining a motion to dismiss.

KIRS 74.010 authorizes the county court to establish a water district upon petition of 75 resident freeholders of the proposed district, followed by public notice and hearing. Pursuant to this procedure the Greenup County Court entered a judgment on June 6, 1960, establishing the Wurtland Water District. The judgment recited in detail all the steps and details requisite to compliance with the procedural requirements of the statute, including publication of notice in the Greenup News, a newspaper of general circulation in the county, on April 1, 8, and 15, 1960, and further recited that more than 30 days had elapsed since such publication and no objection, remonstrance or defense had been made. So, except for the particular irregularities that are made the basis of this lawsuit, it may be assumed that the requirements of the statute were carried out to the letter.

This action was filed on April 23, 1964, just as the water district was about to conclude arrangements to finance construction of a water and sewage disposal system at a cost of more than $500,000. The complaint alleges that the petition presented to the county court in 1960 bore 87 signatures, that 18 of the signers were not resident freeholders of the proposed district and that 34 of the signatures were taken, without consent of the parties signatory, from another and independent petition theretofore circulated for the purpose of supporting a voluntary fire district.

A judgment that is void can be collaterally attacked. The appellants claim the judgment of the Greenup County Court establishing the water district is void on either of two theories, (1) because the requirement of 75 resident freeholders is mandatory and jurisdictional and (2) because the judgment was obtained by fraud.

“In general * * * where the right of the court to assume jurisdiction of a cause and proceed to judgment depends upon the ascertainment of facts in pais and the court retains jurisdiction it thereby impliedly adjudges that the requisite jurisdictional facts exist and having found such facts in favor of jurisdiction, its decision in this respect, whether erroneous or not, cannot be questioned in a collateral proceeding. * * * It is undeniable that if a court of limited jurisdiction is charged with the ascertainment of jurisdictional facts, and its record and proceedings show such facts were ascertained, they cannot be collaterally impeached.” Freeman on Judgments § 350, pp. 719, 721.

Perhaps this is just a roundabout way of saying that in such a case the court really does have jurisdiction, because if it did not have it the judgment would be a nullity, open to attack anytime and any place. As we have had occasion to suggest before, the word “jurisdiction” often serves as a policy label, marking off the indispensable from the dispensable. And so it is in this type of case. Whether the requisite number of people live in an area, or have signed a petition, is a question that upon due advertisement is not likely to be overlooked by potential objectors; one reasonable opportunity to raise it is enough. Should we call it truly “jurisdictional” it might never be finally aired and settled. Just as a county court has the power to probate a will by determining that it if a will, even though it might not be, so does it have the power under KRS 74.010 to determine that the requisite number of qualified persons have signed the petition, and to act upon that petition.

It was held in Mahon v. Beuchel Sewer Construction District #1, Ky., 355 S.W.2d 683 (1962), that the lack of enough qualified petitioners did not invalidate a judgment of the county court establishing a sewer construction district pursuant to KRS 76.-300 to 76.315. Reference was made to the cases of Vanover v. Dunlap, 172 Ky. 679, 189 S.W. 915 (1916), and Saylor v. Town of Wallins, 220 Ky. 651, 295 S.W. 993 (1927), both of which involved collateral attacks on judgments incorporating 6th class cities. In Vanover it was alleged that the territory incorporated did not contain the minimum number of inhabitants required by the statute. In Saylor it was claimed that the area was larger than the statute authorized. These were held not to have been jurisdictional defects. On the other hand, substantial compliance with statutory requirements for publication has generally been held indispensable, absent which a judgment in an annexation or incorporation proceeding will be void. Booth v. Copley, 283 Ky. 23, 140 S.W.2d 662 (1940); O’Hara v. City of South Fort Mitchell, Ky., 290 S.W.2d 455 (1956). The point of difference is that the one type of irregularity does not abridge the opportunity of affected parties to be heard, while the other (lack of notice) does.

Palmer v. Elizaville Graded Common School Dist., 235 Ky. 75, 29 S.W.2d 648 (1930), cited by appellants, was a case in which a school district annexed territory by proceeding in county court under a statute that had been repealed. A collateral attack six years later was sustained. The original proceeding having been entirely without color of authority it was, of course, nothing. The county court had no jurisdiction of the subject matter. But when, as in this instance, there is in full force and existence a statute empowering the county court to entertain a special type of proceeding, it has jurisdiction of that subject matter. Cf. Freeman on Judgments § 337, p. 675.

It is our conclusion that an insufficiency in the number of qualified petitioners required by KRS 74.010 is a nonjurisdic-tional, nonfatal defect.

Not every fraud will subject a judgment to collateral attack. Reams and volumes have been written on the terms “intrinsic” and “extrinsic” fraud. “But the invention of the formula or rule of extrinsic fraud has not solved the intrinsic difficulty of its application, and it will be seen from an examination of the authorities that it is not easy to determine what frauds may be regarded as extrinsic or collateral to the matter tried in the original action and what are intrinsic. In fact, it may be doubted whether in some cases it is possible to say whether the fraud is extrinsic or intrinsic.” Id., § 1233, p. 2570.

Again, as in the case of “jurisdiction,” the technical label sometimes tends to divert attention from the substance of the goods it was invented to identify. For our purposes here, we are disposed to accept the general proposition that the kind of fraud for which a judgment may be collaterally attacked is that which prevents the affected party or parties from appearing or presenting fully and fairly their sides of the case. Cf. Clay, Civil Rules, CR 60.02, Note 7; 30 Am.Jur. 628 (Judgments § 657); United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878). Such a situation is well illustrated by Houston’s Guardian v. Luker’s Former Guardian, 253 Ky. 602, 69 S.W.2d 1014 (1934), in which a guardian obtained a judgment authorizing the expenditure of his ward’s funds to buy a piece of land owned by the guardian but held in the name of another. In this case, however, the residents and freeholders of the proposed district, the real parties in interest, were given public notice of the filing of the petition and ample opportunity to be heard. If some of their names had been forged, lifted or transferred from another document, still there is nothing from which we can infer that it lulled, gulled or seduced them into inactivity. If there was a fraud, it was in the process of launching the project, when there was. still time and opportunity, with a modicum of diligence, to discover and present it. This being so, the defect is of the same proportion and falls under the same policy as the insufficiency in number of qualified signers, the first point above discussed.

We hold the alleged fraud insufficient to support a collateral attack.

The judgment is affirmed.

      . Cf. Commonwealth Dept. of Highways v. Berryman, Ky., 363 S.W.2d 525, 526 (1903).

      . Cf. Hensley v. O’Forest, 313 Ky. 789, 233 S.W.2d 996, 998 (1950).


author: STEWART, Judge.

text:
    Herbert ROSS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.

      T. D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellant.
    Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STEWART, Judge.

Herbert Ross, convicted of voluntary manslaughter under KRS 435.020 on March 4, 1964, was also found guilty and sentenced to life imprisonment under Instruction No. 3 for violation of KRS 431.190, the Habitual 'Criminal Act.

Appellant’s principal contention on appeal, and we are reversing for this reason, is that the evidence fails to sustain his conviction under KRS 431.190, since there is no proof that the second and third crimes and the one with which he is now charged were committed progressively after each conviction.

Our interpretation of the Habitual Criminal Act has consistently been that the previous crimes and the one with which the accused is presently charged must have been committed progressively after each conviction. As was pointed out in Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728, it is the commission of the second felony after his conviction of the first, and the commission of the third felony after his conviction of the second that is required to be established in order to make the Habitual Criminal Act applicable to a defendant. See White v. Commonwealth, Ky., 379 S.W.2d 448; Etherton v. Commonwealth, Ky., 335 S.W.2d 899.

The indictment, after alleging that on November 23, 1963, in Madison County, appellant murdered Joyce Warren by stabbing her, recited that he had been previously convicted: (a) In 1950 in the Madison Circuit Court of the crime of storehouse breaking, receiving a two-year sentence therefor; (b) in 1957 in the Harlan Circuit Court of the crime of carrying concealed a deadly weapon, receiving a two-year sentence therefor; and (c) in 1960 in the United States District Court, Eastern District of Kentucky, of the crime of violating the Marihuana Tax Act, receiving a five-year sentence therefor. It was further stated each of these offenses was a felony, appellant had not been pardoned or probated as to any conviction, and none of the convictions were set aside or modified.

The indictment, as indicated, does not charge and the evidence, as shown, does not establish when the claimed felonious offenses were committed upon which the 1950, the 1957 and the 1960 convictions were based. Stated differently, neither the indictment nor the evidence in this case undertakes to allege or prove that the second felony was committed after the conviction under the first indictment, and that the third felony was committed after the conviction under the second.

As there was a failure of proof in the manner indicated, the conviction under KRS 435.020 cannot be upheld.

The indictment which, as has been pointed out, docs not aver that each of the prior crimes was committed consecutively after each of the convictions, would be defective before the adoption of the new Rules of Criminal Procedure. See Harrod v. Whaley, Ky., 239 S.W.2d 480. However, it appears it is sufficient under RCr 6.10(2) which provides only that the indictment shall contain “a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged.”

Instruction No. 3, of which complaint is made, in our opinion clearly sets forth the requisites necessary to be found by the jury in order to determine appellant’s guilt under the Habitual Criminal Act. It substantially follows the language of a pattern set forth in Section 950, page 280, Vol. 3 of Stanley’s Instructions to Juries.

Other alleged errors are urged as grounds for reversal, but, as they concern procedural matters that will not recur in the event of another trial of this case, we deem it unnecessary to consider them.

Wherefore, the judgment is reversed for consistent proceedings.


text:
    Goldie Lou QUALLS, Appellant, v. Roger E. QUALLS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    William H. McCann, Brown, Sledd & McCann, Lexington, for appellant.
    Ora F. Duval, Olive Hill, for appellee.
   MONTGOMERY, Judge.

Goldie Lou Qualls appeals from a judgment by which Roger E. Qualls was granted a divorce. Appellant questions the sufficiency of the alimony allowance of $100 per month and urges that her attorneys are entitled to the allowance of a fee to be taxed as cost against the appellee.

Qualls sued on June 29, 1962, and sought a divorce on the ground of cruel and inhuman treatment. By counterclaim appellant sought a divorce on the same ground, lump sum alimony of $100,000, periodic allowance of $1,000 per month, and $300 per month for maintenance for their fourteen-year-old daughter. No question is raised concerning the allowance for the child.

The parties were married August 31,1940. Their other child is married. The wife says that the troubles stemmed from the husband’s romance with a young woman named Phyllis Howard, whom it appears he married shortly after the divorce. The husband says that the marital difficulties arose before his association with Phyllis Howard. He undertook to show misconduct on the wife’s part by her improper association with another man and excessive drinking. Appellant has no estate, employment, or income of her own and is undergoing treatment for cancer of the uterus.

The parties have lived in Olive Hill during most of their married life. Appellee is shown to have been engaged in many and varied business enterprises. The evidence indicates that he owns a one-fourth interest in the Carter County Stone Company, a stone quarry; has a Texaco gasoline distributorship in Carter and Elliott counties; owns a fleet of trucks used for hauling stone, a farm, and a number of pieces of rental property; and has served as a member of the House of Representatives. His adjusted gross income as shown by tax returns was $25,885.95 in 1959, $31,237.34 in 1960, and $43,791.08 in 1961. On March 31, 1961, in a financial statement made to the First National Bank of Grayson, he listed his net worth as $181,408 and his total assets as being worth $231,408.

The only real question is whether the alimony allowance is insufficient, which turns on the value of the husband’s estate and his income. By the testimony of one Jesse Harris, an accountant, appellee’s liabilities exceeded his assets by $8,730.05. Harris’ statement was based in part on information furnished by appellee and was in part unverified. One item of significance claimed as a liability is $49,571.78 for federal and state income taxes. This indicates that appellee’s income may have been larger than the amounts shown on his tax return.

The Chancellor’s findings of fact did not contain specific findings as to the properties comprising the estate of appellee, their values, his indebtedness, or his income and expenses. These are the essential and indispensable findings upon which a proper conclusion could have been reached as to the amount of alimony allowable. The evidence was in conflict on various points and unsatisfactory on other points. Without such findings, no satisfactory basis is afforded on which to determine the propriety of the alimony allowance. Clay, CR 52.01, Comments 3, 4, and 10; Hatfield v. Derossett, Ky., 325 S.W.2d 84; Paramount Pest Control Service v. Brewer, C.A.9, 177 F.2d 564. The Chancellor should make such findings, and if the record is insufficient or unsatisfactory for this purpose, further testimony should be heard.

Appellee’s contention that property inherited or received by gift from parents should not be considered in his estate for alimony purposes is without merit. Hall v. Hall, Ky., 380 S.W.2d231.

It is unnecessary to discuss the living expenses of appellant as a factor to be considered or the allowance of an attorney fee inasmuch as both will have to be determined in the light of the findings concerning appellee’s financial condition and ability to pay. As to attorney fee, see KRS 453.120; Patterson v. Patterson, Ky., 323 S.W.2d 862.

Judgment vacated as to alimony and case remanded with directions that the Chancel-' lor make the necessary findings of fact and,if necessary, permit the taking of further testimony, allow alimony based thereon, and allow an attorney fee for appellant’s counsel.


text:
    Evelyn Rees CURTIS, Guardian, etc., Appellant and Cross-Appellee, v. CITIZENS BANK & TRUST COMPANY, Appellee and Cross-Appellant, and Clem F. Kelly, Appellee.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    Ephraim K. Lawrence, Jr., Lawrence & Duvall, Louisville, for appellant and cross-appellee.
    Clem F. Kelly, Lexington, for appellees and cross-appellant.
   WADDILL, Commissioner.

Appellant and cross-appellee Evelyn Rees Curtis, as guardian of her four children, appeals from those portions of a judgment of the Fayette Circuit Court that award appellee and cross-appellant, Citizens Bank and Trust Company, a fee of $9,674.15 for its services as trustee and award appel-lee, Clem F. Kelly, certain fees for legal services. The bank appeals from the denial to it of a fee for extraordinary services.

The events giving rise to this action may he traced to the will of Frank K. Rees. The bank acted as executor of his estate and as testamentary trustee for his children. However, the trust established by his will was declared invalid by this Court in Curtis v. Citizens Bank and Trust Co., Ky., 318 S.W.2d 33. Upon remand of this case the circuit court ordered that the residue of the trust be turned over to the children’s guardian after payment, among other things, of all proper costs and expenses of administration.

Relying on Anspacher v. Utterback’s Adm’r., 252 Ky. 666, 68 S.W.2d 15, the guardian contends that the bank has waived its claim to any fee as trustee by its misconduct. In the cited case we held an executor, by his delay and laches in administering and distributing an estate, had forfeited his right to a commission. In the instant case there was some delay in making a distribution but in refusing to issue an order of mandamus to the circuit court requiring immediate distribution, we observed “the responses filed herein show bona fide reasons why it may not be advisable or convenient for the court to enforce a piecemeal settlement of the estate * * Curtis v. Bradley, Ky., 333 S.W.2d 944. In view of the circumstances presented we conclude the bank did not forfeit its right to collect a fee for its services as trustee.

The appellant next contends that even if a fee is authorized an amount equal to 5% of the value of the proceeds to be distributed is grossly excessive. The applicable portion of KRS 386.180(1) provides:

“ * * * They shall also receive an annual commission of one fifth of one percent of the fair value of the real and personal estate in the care of the fiduciary, or, at the option of the fiduciary and in lieu of the annual commission on principal, a commission which shall not exceed five percent of the fair value of the principal distributed, payable at the time the principal is distributed.”

The bank elected to take the lump sum compensation. It is apparent that the officers testifying for the bank, as well as the circuit court, assumed that having thus elected the bank was entitled to the full 5% of the value of the principal to be distributed. However, for this method of compensation the statute only establishes a maximum of 5%. Thus the amount awarded must be a reasonable fee under the facts of each particular case. See Baker’s Heirs v. Dixon Bank & Trust Co., 292 Ky. 701, 168 S.W.2d 24. In the instant case we observe that the bank served as trustee about one year before we held the trust to be invalid. In its itemization of estimated costs, the bank, as trustee, valued its services applicable to the principal at $5,352.04. Under the record we conclude that this sum is a reasonable commission and that the circuit court erred in- granting a sum in excess thereof. .

The guardian next contends that Mr. Kelly is not entitled to certain fees allowed him for his legal services in representing the bank. We are cited to no evidence to indicate that these fees were other than reasonable compensation for services required by the bank in the performance of its fiduciary obligations in respect to this property.

On its cross-appeal the bank alleges that the circuit court erred in denying it an award for performing duties in the administration of the Rees’ estate which it denominates as “extraordinary.” Both KRS 386.180 and 395.150 provide that upon proof of the rendering of unusual or extraordinary services not normally incident to the care and management of an estate, the court may allow additional compensation. In refusing to award a fee for such services, the court necessarily found that the bank’s services were not of an extraordinary character. We find no reason to disturb this finding:.

The judgment is reversed insofar as it awards the bank $9,674.15 for its services as trustee with directions to enter a new one awarding it the sum of $5,352.04; in all other respects the judgment is affirmed bn appeal and on cross-appeal.


author: WILLIAMS, Judge.

text:
    W. R. CARDWELL et al., Appellants, v. NASHVILLE COAL, INC., Appellee.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    Laurence T. Gordon, Madisonville, for appellants.
    James F. Gordon, Gordon & Gordon, Madisonville, for appellee.
   WILLIAMS, Judge.

In 1951, the appellants, Mr. and Mrs. Cardwell, gave a lease to the predecessor in title of appellee, Nashville Coal, Inc., granting the right to mine coal underlying a 10-acre tract of land owned by the Card-wells. The coal was mined in 1953, and a building on the land was damaged by subsidence in 1959. In a suit to recover for damage to the building each side filed a motion for summary judgment. The Hopkins Circuit Court sustained the appellee’s motion and dismissed the complaint. This appeal results.

The pertinent paragraphs of the lease under consideration are:

“2. The Lessee hereby is granted the right to take, mine, remove and market the No. 11 coal hereinabove demised, but in recovering said coal the Lessee shall leave unmined a block of coal under each of the buildings now located on the above described property, and any other buildings that may be constructed thereon before the coal is extracted.”
“4. The Lessors hereby do waive any damage to the surface of the described premises resulting from subsidence thereof caused by the removal of the demised coal, and hereby do release the Lessee therefrom. In the event Lessee fails to leave blocks of coal under buildings as provided in 2 above, and said buildings are damaged by subsidence resulting from removal of coal, the Lessee shall be liable for such damage.”

The appellants contend it was the duty of the appellee to leave a sufficient block of coal under the land where their residence was located to protect the building from subsidence and, since there was a subsidence to the land and damage to the residence, the appellee is responsible.

The appellee contends that, having left a block of coal under the building, it is not liable for damage caused by subsidence in the absence of a showing of malicious, wanton, or arbitrary exercise of its mining rights.

The trial court found that the provisions of the lease are plain and unambiguous; that a solid mass of coal left unmined under the building satisfied the lease conditions; that the lease could have been written to require that a sufficient amount of coal be left unmined to assure no damage to a building on the property; and that the solid mass of coal left unmined under the building extended many feet beyond in all directions.

As heretofore stated, the case was decided on summary judgment. Summary. judgment will not lie if a genuine issue of material fact exists. Ingram v. Ingram, Ky., 283 S.W.2d 210. Although it is not patent on the face of the lease, and although the trial court found no ambiguity, nevertheless we are of the opinion that the lease provisions are in fact ambiguous.

The appellee admits that a block of coal as big as a “thumbnail” does not constitute compliance with the intent and purpose of the lease, but contends that a block of coal larger than the building does constitute compliance. On the other hand, the appellants contend that the block of coal which was left unmined must have been of sufficient size to guarantee that the building would not be damaged from subsidence in order to comply with the intent and purpose of the lease. In the trial court’s order it was pointed out that the block of coal left unmined extended many feet beyond the building in all directions. It is apparent the size of the block of coal left unmined was considered an important factor.

It seems clear to us that the size of the block of coal left unmined is the controlling fact which governs the interpretation of the lease. Since the lease does not specify the size, it necessarily means that size which is customarily deemed sufficient in prudent mining operations. Whether the block left was of sufficient size to meet that test is a question of fact which should be resolved by a jury.

Since a genuine issue of material fact remains undecided, summary judgment should not have been granted. The lease is ambiguous; thus oral evidence should be admitted to prove its intent and purpose. Blevins v. Riedling, 289 Ky. 335, 158 S.W.2d 646.

The judgment is reversed for proceedings consistent "with this opinion.


author: PATMORE, Judge.

text:
    William E. SIPPLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    William E. Sipple, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
   PATMORE, Judge.

The appellant, William E. Sipple, a prisoner at the Kentucky State Reformatory, filed in the Kenton Circuit Court an RCr 11.42 motion to vacate the judgments pursuant to which he was committed. He appeals from an order overruling the motion on the record and without a hearing.

The first two paragraphs of the motion allege matters relating to several previous convictions on which the appellant’s sentences have been completed. The apparent purpose of attacking the executed sentences is to clear his record as a prospective parolee. However, RCr 11.42 does, not provide, expressly or by implication, for the review of any judgment other than the one or ones pursuant to which the movant is being held in custody.

The third paragraph of the motion states that the movant is now serving on sentences totalling six years imposed pursuant to two felony convictions; that in response to each of the two indictments he appeared without counsel and was financially unable to employ counsel; that the trial court did not appoint counsel for him; and that in ignorance of his rights he pleaded guilty.

The Commonwealth’s response* was to the effect, that by reason of the guilty pleas “there was no necessity for the appointment of counsel to represent the interests of the defendant.” That proposition is not correct. He was entitled to counsel, and unless he was advised or knew of that right and voluntarily waived it the convictions were void. Cf. Moore v. Commonwealth, Ky., 380 S.W.2d 76 (1964).

The third paragraph of the motion stated grounds for relief entitling appellant to counsel and a hearing.

The cause is reversed for further proceedings consistent with this opinion.

      . Whether, as a practical matter, such a result would be accomplished seems questionable. Invalidation of the former eon-victions would, of course, open the charges for new trial.


text:
    Harry C. TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    Lowell W. Lundy, Pineville, for appellant.
    Robert F. Matthews, Atty. Gen., J. T. Frankenberger, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

Appellant was indicted for, and convicted of, obtaining property under false pretenses, an offense under KRS 434.050. He was given a two-year sentence.

The first ground of appeal is that the offense proved against him constituted forgery and that he should have been prosecuted under KRS 434.130. There is no doubt the facts did establish the latter offense. However, they also established all of the elements of the crime under KRS 434.050 which are specified in Rowland v. Commonwealth, Ky., 355 S.W.2d 292, 294.

Inducing another to part with money or property by delivery of a forged instrument may constitute the offense condemned by KRS 434.050. Day v. Commonwealth, 110 S.W. 417, 33 Ky.Law Rep. 560. We know of no reason or authority which would require the Commonwealth to prosecute appellant for another offense which developed on proof of the charged crime. (It may be noted that appellant was prosecuted for the lesser crime.) If the same act may constitute either of two offenses, or if a single act is common to two offenses, the grand jury may elect to indict on either. Commonwealth v. Tobin, 140 Ky. 261, 130 S.W. 1116; Newton v. Commonwealth, 198 Ky. 707, 249 S.W. 1017.

Appellant contends the proper venue of the action was not proven. KRS 452.650 provides:

“The venue of the prosecution may be waived by the defendant and the failure to make a timely motion to transfer the prosecution to the proper county shall be deemed a waiver of the venue of the prosecution.”

Appellant not only failed to raise this question by “timely motion”, but he did not raise it at any time in the trial court. He must be deemed to have waived this point.

The judgment is affirmed.


author: CULVER, Justice. STEAKLEY, Justice

text:
    Charles N. HOKE, Petitioner, v. Tom F. POSER, Respondent.
    No. A-10160.
    Supreme Court of Texas.
    Nov. 25, 1964.
    O. Joseph Damiani, Houston, Long, Aronson & Coleman, Austin, for petitioner.
    Tynes & Turk, Raymond L. McDermott, Houston, for respondent.
   CULVER, Justice.

The respondent, Poser, filed the statement of facts in the Court of Civil Appeals on July 12, 1963, and the Court set the case for submission on February 6, 1964. Thereafter, on December 27, 1963, he filed his brief in the Court of Civil Appeals. At no time prior to the filing of the brief did Poser request an extension of time, nor has he ever alleged or attempted to show any good cause whatsoever for this substantial delay.

The petitioner, Hoke, asserts that the Court of Civil Appeals erred in overruling his motion to strike the brief and to dismiss the appeal: In support of this contention he cites Rules of Civil Procedure, 414 and 415. Impliedly Rule 414 standing alone would hardly vest in the Court of Civil Appeals any discretion to allow the filing of the appellant’s brief more than thirty days after the filing of the statement of facts except upon a showing of good cause. But the two rules must be read together. Rule 415 authorizes the Court of Civil Appeals to dismiss the appeal for want of prosecution when appellant has failed to file his brief in the time prescribed in Rule 414, unless good cause to excuse that failure is shown and the opposing party has not suffered material injury thereby. However the last sentence in Rule 415, by its very clear and unambiguous terms, confers a broad discretion upon the Court to decline to dismiss the appeal in any event. The rule .as written probably allows more discretion than the rule makers intended and probably should be amended. It permits quite a variance between the custom and practice of the different Courts of Civil Appeals. For instance, it appears that the Houston Court, due to the large volume of business and the delay thereby incurred in the setting of cases for submission, has, some years since adopted the practice of. permitting the appellant, without motion, to file his brief within forty days prior to the date on which the case is set for submission, following which the appellee may file his brief at any time prior to 15 days before submission. While this practice may be very convenient for those lawyers in that Supreme Judicial District, nevertheless it may make for confusion and possibly penalize the unwary whose appeals might be transferred to other jurisdictions. It is to be remembered that a large percentage of cases appealed to the Houston Court are transferred to other courts for decision, where the appeal may be dismissed for failure to file within the time required in Rule 414. So pending any amendment, conformity to the rule as written is to be desired. At any rate the bench and bar are entitled to rely on the clear-cut wording of the rule and accordingly the Houston Court was not required, as a matter of law, to dismiss the appeal for want of prosecution. The point is overruled.

This suit grows out of an automobile collision which happened on July 6, 1960. Poser brought suit against Gene Mohr Chevrolet Company and its salesman, Charles Hoke, and recovered a judgment against Hoke in the sum of $467.50 for personal injuries and doctors and medical and hospital expenses, the company having been exonerated as a result of a jury verdict.

On appeal by Poser, the Court of Civil'. Appeals reversed the judgment rendered against Hoke, affirmed the judgment that Poser take nothing against the Chevrolet Company or its receiver, Phillips, and remanded the cause against Hoke for a new trial solely because of error in the Court’s charge. On an examination of the record we are of the opinion that the attack on the Court’s charge is not justified and the judgment of the Court of Civil Appeals should he reversed and that of the trial .court affirmed.

As a result of the collision Poser claims that his head hit the top of the steering wheel, his left elbow hit the window and he felt a sharp pain in his back a little below the line of the seat belt which was fastened at the time. He was taken to the hospital in an ambulance and an orthopedic specialist examined him. Only his arm was X’rayed, though he complained to the doctor at the time that his back was giving him some pain. He was released from the hospital that day and went home. On July 11th he gave a statement in writing about the accident to the effect that his left arm was injured, his neck also hurt but as far as he knew he was not injured in any other way. He explained that he did not mention his back because the doctor said he could resume his work and had nothing to worry about. He testified that up to July 14th he worked in the office but did not do any lifting because of the pain he was suffering. On that day he went to the field station and helped one of his associates lift an instrument which weighed about 100 pounds. After it was set down he bent over to place some screws in the instrument and that was when he said “I really got hurt,” and the pain got worse after July 14th.

Poser pleaded that as a result of this collision he sustained injury to his left elbow, a whiplash injury to his neck; suffered from headaches, and in all probability sustained a protrusion of a lumbar disc. He further pleaded:

“ * * * In the event it be shown that your plaintiff had any pre-existing condition, your plaintiff would respectfully show unto the Court and Jury that such pre-existing condition, if any, was neither painful nor disabling, but was aggravated and caused to flare up and become both painful and disabling as a result of the occurrence made the basis of this suit. * *

The defendant, Hoke, pleaded in reply in part as follows:

“For further answer herein, this Defendant would further show the Court and Jury that the Plaintiff returned to his regular employment after the accident made the basis of his suit and thereafter, on the 14th day of July, 1960, he received an accidental injury and/or aggravation of his pre-existing back condition while on the job and while acting in the course and scope of his employment for Transcontinental Gas Pipe Line Corporation, which said accidental injury or aggravation of 14th July, 1960, was the cause of any and all medical expenses incurred by him on or after that date and was the direct and proximate cause of any subsequent operation, lost time, impairment of earning capacity, if any, and of all pain and suffering sustained by the Plaintiff from and after the 14th day of July, 1960.”

The only medical testimony in the case was given by Dr. Robert C. L. Robertson, a neurosurgeon called by Poser. Dr. Robertson first saw Poser on July 26th. He said that Poser told him that on July 6th he had been involved in an auto collision which caused pain in his back and that the pain continued until July 14th when he picked up the heavy instrument. Dr. Robertson found on examination that Poser had spon-dylolysis, a congenital condition which would cause pain in his lower back when certain motions occurred. He recommended surgery and performed that operation on August 2nd. The doctor also testified that probably the shaking up' received in the collision was what necessitated the operation; that it was reasonably probable that the collision aggravated the condition of spondylolysis and that since Poser had his seat belt fastened the collision would cause a sudden flection of the low back and is of the type of movement that is likely to produce a rupture to the intervertebral disc. As a result of the collision Poser might have medical expense even to the point of further surgery for fusion. He also testified that it was reasonably probable that Poser’s future medical expense as a result of the collision would be about $150.00 a year for the rest of his life and that it would be reasonable to consider his permanent partial disability as being in the order of twenty to twenty-five per cent.

On cross-examination the doctor testified that he could not be sure that the pain Poser suffered resulted from the occurrence on July 6th or July 14th, but in his opinion both the occurrences of July 6th and July 14th aggravated the condition and the automobile collision is the more logical thing that began this train of events. Under this state of the medical testimony the jury could have believed that the operation and the subsequent disability all proximately resulted from the collision of July 6th and it seems but speculation to believe that even if the lifting aggravated Poser’s condition it resulted in subsequent aggravation for which the defendant would be liable. It is to be remembered that the testimony showed that Poser suffered from spondylo-lysis, an incomplete formation of bone that has existed since birth, a record of brutal treatment by his captors during World War II, having been beaten on numerous occasions in the lower part of the back with a rifle butt, and a history of back trouble for a number of years.

The trial court carefully and fully charged the jury to find what sum of money would fairly and reasonably compensate Poser for such reasonably necessary medical and hospital expenses as were incurred by’him from July 6, 1960, to the date of this trial or in reasonable probability might be incurred in the future as a direct and proximate result of the injuries sustained by the collision in question. Likewise, the Court gave similar instructions covering compensation for injuries and damages, physical pain, mental anguish and loss of earnings. In addition the Court also gave the following instructions:

“You will not consider as an element of damage, nor allow anything for, physical pain or mental suffering, if any, or lost earnings or loss of earning capacity, if any, or medical expenses, if any, because of any condition or disability to Tom E. Poser which may have existed before July 6, 1960, except in so far as such condition or disability may have been aggravated by the collision in question.
“You are further instructed in connection with such Special Issues that you will not consider as an element of damage, nor allow anything for, any physical pain or mental suffering, if any, or loss of earnings or loss of earning capacity, if any, or medical expenses, if any, because of any condition or disability which may have occurred after July 6, 1960, and which was not proximately caused by the collision in question.”

Poser objected on the ground that the instruction does not go far enough and advise the jury that they might allow damages for a condition or disability occurring after July 6th (the day of the automobile collision). He says, in other words, the instruction leaves out the element of aggravation and fails to advise the jury that the accidental injury of July 6th may have made worse, aggravated or flared up some condition or disability suffered by the plaintiff after July 6th, and fails to advise the jury that a subsequent condition or disability may be aggravated by the injury made the basis of the suit. In that connection Poser requested that the following be added to the said instruction: “Except in so far as such condition or disability may have been or may in the future in reasonable probability be aggravated by the collision in question.”

The Court of Civil Appeals reversed and remanded the cause for a new trial holding that the charge of the trial court prevented the jury from considering the fact that the subsequent incident of July 14th may have aggravated the injuries received in the July 6th accident since under the evidence the jury might have concluded “that the accident of July 6th aggravated the conditions existing at the time and created a worse condition upon which the innocent act of July 14th operated, thereby aggravating the injury of July 6th.”

In other words the Court’s charge was correct. It just did not specifically call the jury’s attention to the matter of subsequent aggravation, which had not been pleaded.

The contention is made that unless subsequent aggravation is specially pleaded the party relying thereon is not entitled to an affirmative submission, nevertheless where the Court assumes to submit it affirmatively there must be a correct submission and that the charge in that respect is incorrect. We do not agree with this proposition. The aggravation spoken in the charge was that of the pre-existing condition caused by the automobile collision. There was no reference in the charge to any subsequent aggravation. The charge allowed recovery for any damages directly and proximately caused by the collision in the past or in the future and points out that there may be more than one proximate cause. The jury, under the evidence, had the right to conclude that the operation and medical expense incurred by Poser were all proximately caused by the collision.

The respondent, Poser, urges that the matter of subsequent aggravation does not have to be pleaded and for that proposition cites the cases of Galveston, H. & S. A. R. Co. v. Coker, 135 S.W. 179, Tex.Civ.App., 1911, wr. ref., and Gulf, C. & S. F. R. Co. v. Brown, 16 Tex.Civ.App. 93, 40 S.W. 608, wr. dism., both of which deal only with the aggravation of a prior condition caused by the accident in question. In our opinion the analogy is not sound. The subsequent aggravation, if any, is brought about by an intervening cause. It may be the act of the plaintiff himself or of some third person.

In City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480, the only case discussed by the Court of Civil Appeals as dealing with the question of subsequent aggravation, approves the principle of law governing the matter as stated in 15 Am. Jur., Damages, § 83. In that case the later innocent act of the minor, for whose benefit the suit was brought, combined with the injury sustained in the previous automobile collision, concurred in bringing about the loss of the eye for all of which recovery was allowed on the ground of subsequent aggravation. But in that case the matter was not only pleaded but submitted to the jury affirmatively. No cases involving an alleged subsequent aggravation have come to our attention where the intervening cause was not pleaded. On the other hand we have found no authorities which hold that the pleading is necessary. Rules 277 and 279 both provide that when the Court submits a case to the jury on special issues he shall submit the controlling issues made by the written pleadings and the evidence.

We point out that even on the necessity of pleading to support aggravation of a pre-existing condition the state jurisdictions are rather closely divided.

Liability for aggravation brought about by an independent act does not arise as a matter of course. The foregoing •cited section from American Jurisprudence points up the applicable rule as follows: “The original wrongful act is deemed the proximate cause of the entire injury (including subsequent aggravations) provided the act of the injured person which aggravates the injury is within the course of ■conduct of a reasonably prudent person under all the circumstances.” Likewise, where the intervening act is that of a third party, plaintiff may recover for aggravation of his injuries brought about by improper medical treatment unless he was negligent in selecting his medical advisor. Galveston, H. & S. A. R. Co. v. Miller, 191 S.W. 374, Tex.Civ.App., er. ref.; Hicks Rubber Co. v. Harper, 131 S.W.2d 749, Tex.Civ.App., er. dism., 134 Tex. 89, 132 S.W.2d 579.

We believe that the charge followed the pleadings and the evidence in this case and allowed the plaintiff to recover fully for the disc operation, disability and pain and suffering that followed the July 6th collision, if the jury believed that they were proximately caused by that accident.

We therefore hold (1) that the Court of ■Civil Appeals did not err in overruling petitioner, Hoke’s, motion to strike respondent’s brief, and for dismissal of respondent’s appeal for the reason that the matter lay within that court’s discretion; (2) that a claim of subsequent aggravation dependent upon an intervening cause and brought about by the plaintiff or some third person should be pleaded in order to authorize the trial court to instruct the jury on that matter; (3) that the Court of Civil Appeals erred in its reversal of the case on the ground that the charge given by the trial ■court was erroneous.

The Court of Civil Appeals’ judgment reversing the cause for a new trial is reversed and the judgment of the trial court is affirmed.

STEAKLEY, Justice

(dissenting).

I agree with the analysis by the Court •of Civil Appeals of the charge of the trial court, and of its holdings, with respect to the element of subsequent aggravation. The Court of Civil Appeals correctly recognized that the jury could and would reasonably conclude from the charge that aggravation by the subsequent injury could not be considered. In my opinion, such was subject to consideration by the jury where submitted affirmatively, as here, without objection from the opposing party, and where the incorrect manner of submission was sufficiently pointed out by the other party. I would therefore affirm the judgment of the Court of Civil Appeals.

CALVERT, C. J., joins in this opinion.

      . Rule 414. “Briefs of each party shall be subscribed by at least one of his attor-enys, shall give- the post-office address of each attorney whose name is signed thereto, and shall state that a copy of such brief has been delivered or mailed ' to each group of opposing parties or ■ counsel thereof. . Appellant shall file three copies of his brief in the Court of Civil Appeals within thirty days after the filing therein of the transcript and statement of facts, if any, having theretofore delivered or . mailed an additional copy to opposing parties of their counsel. Appellee shall file three copies of his brief in said court within twenty-five days after the filing of appellant’s brief and at the same time deliver or mail an additional copy to each group of opposing parties or counsel thereof. ' Any Court of Civil Appeals may by rule permit the filing therein of a less number of briefs. Upon good cause shown, the Court of Civil Appeals may grant either or both parties further time for filing their respective briefs, and may exr tend the time for submission of the case.
      The court may also shorten the time for filing bi’iefs and the submission of the cause in ease of emergency, where in its opinion the needs of justice require it.”
      Rule 415. “When the appellant has failed to file his brief in the time prescribed, the appellate court may dismiss, the appeal for want of prosecution, unless good cause is shown for such failure and that appellee has not suffered material injury thereby. The court, may, however, decline to dismiss the appeal,, whereupon it shall give such direction to-the cause as it may deem proper.”

      . Poser v. Gone Mohr Chevrolet Co., 377 S.W.2d 732.

      . See Varley v. Motyl, 139 Conn. 128, 90 A.2d 869, and annotation following, 32 A.L.R.2d 1439.