text:
    Jessie Carroll RALSTON, Appellant, v. L. G. RALSTON, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.

      John W. Coomes, New Castle, for appellant.
    Julia M. Thomas, Thomas & Thomas, New Castle, William A. Carter, Bedford, for appellee.
   HILL, Judge.

The judgment appealed from granted plaintiff, now appellee, a divorce on the ground of cruel and inhuman treatment, although it found that both parties were at fault. It awarded the appellant-wife $150 monthly alimony and “her choice of furniture” for another home; allowed a $750 attorney fee for appellant’s attorney; and awarded the “joint and concurrent” custody of their twelve-year-old boy to the father and mother with an option to the boy to choose the parent with whom he desired to reside. The wife appeals from all parts of the judgment except that part granting divorce. Appellee, the husband, cross-appeals from the parts of the judgment awarding alimony and part-time child custody to the wife and allowing the wife to choose the household goods.

The parties were married May 4, 1935, in Madison, Indiana, and lived together until July 29, 1963. Two male children were born to their marriage. The oldest, age twenty-seven, emancipated and married, does some partnership farming with his father. The younger son was past eleven at the time the answer was filed in August 1963. By the time this opinion is handed down, he will be nearing his fourteenth birthday. This is pointed out in connection with the issue of custody of the young son, which we discuss later.

Appellant first complains she was entitled to a lump sum alimony in lieu of the $150 monthly alimony provided in the judgment. Appellee counters with the argument that appellant is not entitled to any alimony, lump sum or monthly, because he contends she has by her conduct forfeited any right she may have had to alimony.

The chancellor found, under his findings of fact, that appellee owned real estate valued at $60,000 and personal property worth $18,000 and owed $30,000 for a net worth of $48,000.

In resolving the question of alimony, we must keep in mind CR 52.01 which provides that findings of fact will not be set aside unless clearly erroneous. Without detailing the evidence, some of which would be uninteresting family history, we readily conclude that the finding that the wife is entitled to alimony is not clearly erroneous. In fact, it is abundantly supported by the evidence. Our question is whether the judgment is erroneous in not awarding lump sum alimony in lieu of a $150 monthly allowance. We think it is.

In Yung v. Yung, 294 Ky. 369, 171 S.W.2d 1017, 1019 (1943), this Court said: “As a general rule on decree for absolute divorce, alimony should be allowed to the wife in a lump sum if the character of the husband’s estate will permit it to be done.”

In the late case of Heustis v. Heustis, Ky., 346 S.W.2d 778, 779 (1961), the husband was granted a divorce on the grounds of cruel and inhuman treatment and directed to pay $125 monthly alimony. This Court in reversing the judgment and allowing the wife a lump sum of not less than one-third of the net estate said:

“Except in flagrant instances fault is not a very sound basis for determining alimony anyway, and in the case of Coleman v. Coleman, Ky., 1954, 269 S.W.2d 730, this court clearly and cleanly departed from the theory that it is.”
jJí jfc sje ¡¡s 3¡e ‡
“Lump sum settlements are favored where the husband has sufficient estate to insure payment.”

See also Porter v. Porter, Ky., 394 S.W.2d 456 (1965).

From a casual reflection upon the history of the rights of women in Kentucky, it is apparent the laws have been written by and for men. We have no statute providing for community property rights of man and wife. With the emancipation of women has come a gradual change in the law pertaining to alimony, so that recently equitable principles are favored. Of course, numerous factors are involved, including the value of the husband’s estate, his income, age, health, capacity and ability to labor, and the extent to which the wife has been instrumental in helping to accumulate his estate. The wife’s age, health, station in life, the time she has devoted to the marriage, having and caring for a child or children, and other circumstances must also be considered.

In the present case, the parties commenced their marriage with little of this world’s goods. While the husband has shown considerably more industry and thrift than the wife, it cannot be said she has not contributed substantially to the accumulation of a considerable estate. She is not required to work in the field. She produced two sons for the husband, kept his home fires burning, devoted over twenty-eight of the best years of her life to the marriage and in many ways carried the daily burdens of home life, which is essential to a successful and happy marriage. It is true the wife in this case was guilty of serious and undermining conduct the year or so previous to the separation. She contends, with some apparent justification, the husband contributed to her delinquency; that he placed accumulation of property above the happiness and welfare of their home life; that he made large quantities of moonshine whiskey and urged her, against her will, to sell it. As noted above, the chancellor found both at fault. We are not inclined to speculate on the degree of fault. That is to be determined in the next world. It is sufficient to say here that the misconduct of the wife is not sufficient to deprive her of the right to alimony, and that in a lump sum. We are mindful of the many elements the chancellor took into account in determining alimony and the manner of its payment, including the propensities of the parties for saving and the numerous other elements listed above. (Although the court is under no duty to prevent one from squandering his estate if he so desires.) However, there are others. Under the system of monthly alimony, the husband could conceivably dispose of his estate, become disabled or intentionally reduce his earning power, thereby totally defeating the right of the wife to alimony. The rights of the wife if not clearly forfeited by her conduct are too clear and absolute to be speculated with. There is no question as to the appellee’s ability to pay a lump sum alimony judgment.

We conclude the appellant is entitled to the allowance of lump sum alimony in an amount not less than one-third of the net estate of the husband. On a remand of this case the chancellor will either use the value of the estate found in his findings of fact, or in his discretion allow the parties to take further proof regarding the net value of the estate and enter judgment as indicated above. It goes without saying that the manner of paying such a lump sum amount must be left to the discretion of the chancellor. Appellee may be entitled to a reasonable time to pay.

Next, we consider the question of custody of the child now past thirteen years of age. As indicated above, the judgment gave “joint and concurrent” custody to the husband and wife, with option given the boy to make his own determination as to which parent he would live with. Under ordinary conditions we condemn such a provision for custody of any child. The evidence indicates that neither father nor mother have much control over this boy. It is shown he was brandishing a pistol which neither the father nor mother was able to get away from him. Joint custody is not likely to correct this lack of control. In view of the lapse of over a year since the judgment, we think the chancellor should re-examine the situation with respect to the custody of the boy and make such order as the circumstances justify.

The part of the judgment allowing the wife to “select furnishings for a home” should be set aside and a definite allowance made.

Finally, appellant contends that $750 attorney fee is unreasonably low and she is entitled to at least $1,500 for the benefit of her attorney. In view of our conclusions heretofore expressed, the chancellor will fix a reasonable fee for appellant’s attorney based on the usual rules for determining attorney fees.

The judgment is accordingly affirmed in part and reversed in part in conformity with this opinion.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    Bertha DUPRIEST et al., Appellants, v. TECON CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Dec. 3, 1965.

      Charles A. Williams, Paducah, for appellant Bertha Dupriest.
    Robert Matthews, Atty. Gen., Frankfort, for appellant Workmen’s Compensation Bd.
    David R. Reed, William E. Scent, Reed & Scent, Paducah, for appellee.
   CLAY, Commissioner.

In this workmen’s compensation case the Board awarded the widow of an employee maximum compensation. On appeal to the circuit court the award was set aside. The principal question on appeal is whether there was substantial evidence to support the finding of the Board.

The decedent, 49 years of age, collapsed while working and died as a result of heart failure. At the time he was assisting in the loading of steel piling on a truck, which was being done by means of a crane. It was a hot day and he was sweating (as we assume were his fellow employees).

Decedent’s health had been generally good, but in the month prior to his attack he had consulted a doctor on four occasions, complaining of ill health. The doctor’s diagnosis was not specific but he did find the decedent to be suffering from low blood pressure. On his next to last visit to the doctor, four days before his death, he complained of weakness and excessive sweating one day while at work.

Four doctors testified for the employer. They all agreed, generally, that decedent suffered from pre-existing coronary artery disease and that his death was attributable to either a coronary occlusion or thrombosis. They saw no causal relationship between his work and the attack. The doctor testifying for the claimant attributed the death to ventricular fibrillation. According to his theory the ventricular fibrillation could have been caused by an electrolyte imbalance, which in turn could have been caused by excessive sweating. Thus this doctor concluded that the death could have been work connected.

The Board, acting under KRS 342.121, submitted certain medical questions to an independently appointed doctor, Dr. Tufts. This doctor assumed that decedent died from the consequences of a coronary artery disease that was latent and nondisabling prior to the day of the attack. He found no prior permanent disability and concluded that the permanent disability was 100 percent the result of the attack.

The question to be answered is whether there was substantial evidence that the death was work connected. There does not appear to have been any specifically strenuous activity at the time of decedent’s collapse such as appeared in Terry v. Associated Stone Co., Ky., 334 S.W.2d 926, and Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47. In those cases the medical evidence was sufficiently substantial to indicate a reasonable probability that the work caused or contributed to the injury. We reached an opposite result in Kelly Contracting Company v. Robinson, Ky., 377 S.W.2d 892, where the strongest inference that could reasonably be drawn from the medical testimony was that the work was a possible cause.

The one item of evidence in this case favorable to the claimant (contrary to that of four other reputable physicians) is based on a different factor causing death, but this doctor could not with any degree of certainty trace it to the decedent1 s employment. The closest he came was when asked: “Doctor, would that be contributed to or precipitated by his work effort ?” Answer: “If the work effort was causing him to perspire heavily and so on, yes.” There was no evidence that the decedent was perspiring heavily and we do not know what the doctor had in mind by his expression “and so on”. This doctor’s testimony was speculative in character, and suggested a possibility rather than a probability. It was not of sufficient substance to permit a reasonable inference that the job activity made any substantial contribution to decedent’s death. There was nothing else to support the Board’s award.

The other question in the case involves the effect of Dr. Tufts’ report. The purpose of the physician’s report provided for by KRS 342.121 (3) is to apportion disability between a subsequent injury and a prior existing disability or latent, nondisabling disease. Dr. Tufts’ report recognized a latent, nondisabling, coronary artery disease, but did not apportion liability between this disease and the subsequent attack. It was really inconclusive, and contributed nothing on the issue of whether the death was work connected.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Lacy HELVEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 3, 1965.
    Francis Dale Burke, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Lacy Helvey was found guilty of illegally possessing alcoholic beverages in local option territory for the purpose of sale. His punishment was fixed at a $100 fine and 30 days in jail. KRS 242.230(1) and 242.-990(1). He moves for an appeal pursuant to KRS 21.140(2).

In his opening statement to the jury the attorney for the Commonwealth disclosed that the case for the prosecution would consist of proof that on January 10, 1964, a state ABC officer accompanied by a state trooper went to Helvey’s home in Pike County and bought some whiskey from him. Counsel for the defense moved that the statement be stricken and the jury discharged on the ground that illegal possession and illegal sale are separate offenses, neither of which may be used as evidence to prove the other.

Helvey denied having sold any liquor at all. He testified that on the next day after January 10, 1964, his home was searched pursuant to a warrant but that nothing was found. This is the event, he contends, on which he expected the prosecution to be founded. On the other hand, since the search had not resulted in any incriminating evidence it is difficult to believe that he actually thought the prosecution would be based on it.

It was held in Newton v. Commonwealth, 198 Ky. 707, 249 S.W. 1017 (1923), that selling and possession for sale are separate offenses if committed at different times, but that one cannot be convicted of both if the possession is only that which he had incident to and at the time of the sale. This, however, is quite a different matter from proof of a sale as evidence to sustain a charge of illegal possession. There is no rule against that. It may be that Helvey anticipated some other kind of evidence, but it can hardly be denied that none could have had more relevance and probative force than proof of an actual sale.

A second count of the indictment alleged that in 1960 Helvey had been convicted in a magistrate’s court of a similar offense. The attempt to prove this allegation failed because of the inadequacy of the magistrate’s records, hence the instructions given by the trial court did not authorize a second-offense conviction. Meanwhile the jurors heard the magistrate testify that Helvey had been convicted in his court on a guilty plea and had been fined, but there was no motion for a mistrial. Under the circumstances we cannot say the appellant was deprived of a fair trial.

The judgment is affirmed.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. H. R. SANDERS, and Ann Sanders, Appellees.
    Court of Appeals of Kentucky.
    Dec. 3, 1965.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Charles W. Huddleston, Bowling Green, Robert Lee Hall, Florence, for appellant.
    Roy L. Steers, Franklin, for appellees.
   HILL, Judge.

This is an appeal from a $5,500 verdict and judgment in a condemnation proceeding to take an irregular lot located on U. S. Highway 31-W four miles south of Franklin, Kentucky, for use in the construction of interstate highway 1-65. The lot fronts 206 feet on 31-W, runs back a distance of 160 feet, is 98 feet wide at the back, and contains 1.5 acres.

As grounds for reversal appellant contends that (1) H. R. Sanders did not properly qualify as a witness on values; (2) counsel for appellees was guilty of such misconduct as was calculated to prejudice the minds of the jury; and (3) the court erred in admitting evidence of sales made after it was generally known 1-65 was to be built but before the taking herein.

More serious than any of the above assigned errors was the testimony of appellee H. R. Sanders to the effect he purchased the land condemned herein in order to minimize his loss on a mortgage he “endorsed” for the owner. He filed the cancelled check showing that he paid $14,591.64 in payment of the balance due on the mortgage when he obtained title to the lot. When he became obligated on the mortgage there was a building on the lot, but it burned. The owner at the time of burning collected all the insurance and paid no part of it to Sanders. Under our rules, we do not consider this serious error because appellant did not object to this evidence or mention it in its brief. The court specifically asked counsel for appellant if he objected to this evidence, and he stated he did not but did object to the giving of any evidence by Sanders until such time as his qualification as a witness on values was established.

Appellee H. R. Sanders testified the value of the lot in controversy was $10,000 to $12,000 on March 16, 1964, the date of taking. He was a resident of Nashville, Tennessee. He testified he heard of two sales of property near bis lot, but he stated no fact or conclusion upon which the court or jury could conclude he was in any way qualified to testify on values in the vicinity of the subject property. He stated he purchased property on three streets and gave names of the streets, but he did not say in what city, state, or nation they were located. He was asked if he had recently “paid $175,000 for some property,” which was wholly incompetent questioning. He answered yes, although the court admonished the jury not to consider this evidence. He did not qualify. Commonwealth Department of Highways v. Fister, Ky., 373 S.W.2d 720 (1963).

Appellees introduced one other witness on the question of the value of the lot. He fixed the value at $10,000. However, the qualification of this witness is not brought into question. Notwithstanding this evidence, we conclude it was prejudicial error to allow appellee to testify on value without a semblance of showing that he was qualified to do so.

Appellant next assails the conduct of counsel for appellee in asking improper questions and in making prejudicial statements in the presence of the jury. Following is a fair example of the statements objected to:

“Now does the Commonwealth of Kentucky want to come down here and tell these people they don’t have sense enough to know fair value ?”
“We would not be here, Your Honor, if they wanted to compensate the man for his property.”
“(H)e comes here and takes this man’s property. * * * (A)nd he’s hauled into Court * * *. He is entitled to just compensation as though he were a willing seller, but he is not a willing seller.” “Alright (sic), I infer he is not a willing seller.”
Yes, sir, that’s the point I am making. He had to give up his property whether he wants to or not.”
“How much more honest can you be, work at it. Why, because we are in Court defending our rights. The right to own property is the most sacred right in the world. It is the one right that this government has not got hold of yet.”
“The thing is, you don’t have to do what the Commonwealth of Kentucky says you have to do. Now he has to give up his property, but you have the right to make them pay and they ought to, and why should they establish value. Why should you give more creditability (sic) to their witness than Jackson. Tell me one good reason why the State should put the value on this man’s property. Just give me one good reason. Would you want it to happen to you? That is exactly what happened to Mr. Sanders. He didn’t come here because he wanted to. He sure didn’t volunteer to come up here and get in this Courthouse.”

We could overlook an occasional act of misconduct on the part of an attorney, particularly so if a proper admonition is given by the court. However, the persistence of counsel for appellee to place his client in the class of the unwilling, downtrodden, and mistreated was calculated to have no other effect than to inflame and prejudice the minds of the jury or a part of the jury. The emphasis that appellee was not a “willing seller” is highly improper and below the belt. The right of eminent domain rests in the Commonwealth. It may be repugnant to some, but it is the law of the land, and a necessary one. Its unsalutary effect is offset by the public necessity and the plain and positive requirement that “just compensation” be given to the landowner. Whether the landowner is willing or unwilling has no bearing on the proceedings: Kentucky Wagon Mfg. Co. v. Duganics, Ky., 113 S.W. 128 (1908).

There remains the question of whether it was prejudicial in this case to admit evidence of claimed comparable sales made after it became generally known that 1 — 65 would be so located and before the date of the actual taking herein. The sales were to oil companies, and it is admitted they paid enormous prices for choice locations along the super highway. We hold in this particular case this evidence was incompetent and prejudicial to appellant. See Tharp v. Urban Renewal & Community Develop. Ag., Ky., 389 S.W.2d 453 (1965).

The judgment is reversed with directions to set it aside and grant appellant a new trial.


author: MOREMEN, Chief Justice.

text:
    Pearl VANHOOSE, Appellant, v. J. C. WILLIAMS et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 3, 1965.
    C. B. Creech, Ashland, for appellant.
    Eldon Webb, Ashland, Charles Daniels, Greenup, for appellees.
   MOREMEN, Chief Justice.

This is an appeal, granted after motion for an appeal, from a judgment of the Greenup Circuit Court which established a boundary line between two tracts of land, one owned by appellant and the other by appellees.

The boundary line between the two tracts was a county road, but the road had not been used for thirty to thirty-five years. There remained no physical vestiges by which the roadway could be established on the ground.

Appellant’s evidence is based on the testimony given by a civil engineer. The ap-pellees rely on the testimony of various persons who knew where the road had been located. The trial court on his own motion appointed an engineer to make a survey and his decision, to some extent, is based on that survey.

Appellant’s principal argument is based upon the contention that his witness, a registered and licensed civil engineer, spent seven days locating the line of the road, while appellees produced only lay witnesses who gave descriptions as to the general location of the road. Appellant has cited to us no cases which hold that the testimony of an expert is so sacrosanct that it may not be overcome by the testimony of competent lay witnesses, particularly in cases where they are testifying concerning physical objects located on the ground. In fact, it is a matter of common knowledge that in surveys, such as the one involved here, the surveyor must rely upon help given by local inhabitants for information such as the designation of a starting point, monuments, et cetera.

The proof in this case furnished the chancellor with a wealth of material upon which to base his finding and we cannot say that it is clearly erroneous. Further, he was assisted by an engineer who furnished additional evidence. We must remark parenthetically that on the motion for appeal, claim was made that no opportunity had been presented to cross-examine or otherwise to interrogate the surveyor. In the brief on this appeal, that ground has been abandoned and appellant no longer argues that the court abused its discretion by appointing a surveyor or in viewing the premises. It was this contention in the motion that was of influence in granting the appeal.

Appellant argues that under KRS 178.050 et sequitur the location of a county road is exclusively vested in the county court and therefore the circuit court has no jurisdiction to locate a county road even in a suit such as this one. The above mentioned statutes deal with the establishment, alteration, or discontinuance of a county road. The power to do these things is vested in the county court—but no attempt is made here to close, change or construct a county road. The purpose of the suit is to determine a property line between two tracts of land and is in the nature of a suit to quiet title Such action is within the jurisdiction of the circuit court. See Conner v. Matheney, 200 Ky. 86, 254 S.W. 433. To hold otherwise would be to say that the circuit court is without jurisdiction to quiet title when the boundary of a tract of land is marked by a public road.

Judgment affirmed.


text:
    John BROWN, Jr., Appellant, v. John WINGO, Warden, Kentucky State Penitentiary, Eddyville, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 3, 1965.

      John Brown, Jr., pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

John Brown, Jr., appeals from a judgment of the Lyon Circuit Court denying relief on his habeas corpus petition against the warden of the Kentucky State Penitentiary.

After his conviction and sentence of death on a charge of armed robbery had been reversed in Brown v. Commonwealth, Ky., 357 S.W.2d 681 (1962), the appellant was tried again and sentenced to life imprisonment. He contends the latter conviction (which appears not to have been appealed) is void because the trial court admitted evidence against him which had been obtained through an illegal search in violation of the 4th and 14th Amendments of the United States Constitution.

Recognizing our decisions to the effect that habeas corpus will not be granted if a direct attack under RCr 11.42 would provide an adequate review procedure, cf. Ayres v. Davis, Ky., 377 S.W.2d 154 (1964), Brown alleges that RCr 11.42 would be unavailing because we have held that an illegal search is not a ground for relief under that rule. See King v. Commonwealth, Ky., 387 S.W.2d 582 (1962).

The reason an illegal search cannot form the basis for a successful RCr 11.42 proceeding is that an error consisting of the admission of improper evidence, even though the evidence may have been obtained in violation of constitutional rights, does not invalidate the proceeding or the judgment of conviction. The point is fully discussed in Collier v. Commonwealth, Ky., 387 S.W.2d 858 (1965). In this state the exclusionary rule was in force long before Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Hence the error was and still is remediable by appeal. Habeas corpus cannot be used to undo an error that could have been corrected by a timely appeal. Pryor v. Thomas, Ky., 361 S.W.2d 279 (1962); Hamm v. Jones, Ky., 353 S.W.2d 544 (1962).

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Sanford REFFETT, et al., Administrator of the Estate of Mae Reed Reffett, Appellants, v. Siddie HUGHES et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.

      Joe Hobson, Cassie J. Allen, Prestons-burg, for appellants.
    Paul C. Combs, Prestonsburg, for Siddie Hughes, and others.
    Howard, Francis & Howard, Prestons-burg, for Travelers Ins. Co.

      J. K. Wells, Paintsville, for Fidelity & Guaranty Ins. Co., Home Ins. Co. and Albany Ins. Co., for appellee.
   DAVIS, Commissioner.

This is a will contest, in which appellees, as the heirs at law of Mae Reed Reffett, successfully challenged the purported last will of Mrs. Reffett on the ground that her signature to it was forged. Appellant, surviving husband and personal representative of Mrs. Reffett, seeks to overturn the judgment which vitiated the propounded will. As grounds for reversal appellant contends that a directed verdict upholding the will should have been given, incompetent evidence was admitted and competent evidence rejected.

Mrs. Mae Reed Reffett died August 8, 1962; she and appellant had been married for over twenty-six years; no child or issue survived her. It was shown that Mrs. Reffett had executed two wills before the date of the questioned document. By the terms of each of the earlier wills her entire estate was devised to appellant.

Appellees presented evidence reflecting that in the spring of 1962 Mrs. Reffett took a will (drawn in 1960 by Honorable Joe Hobson, a reputable attorney of Prestons-burg) to the Floyd County Attorney’s office. She expressed desire to consult the county attorney as to the effect of the will; when she learned that the lawyer was not in his office she exhibited the will to the attorney’s secretary and asked her view of the will’s effect. The secretary advised her that so far as she could tell, the provisions of the will made Sanford Reffett, appellant, its sole beneficiary. Then, the secretary testified, Mrs. Reffett tore up the will and threw the scraps in the wastebasket. Mrs. Reffett said that the will did not express her true wishes, and that she wanted her nephews and nieces to receive some of her property. Mrs. Reffett was assisted into the office at that time, and “seemed sick”, according to the county attorney’s secretary.

The record discloses that the 1960 will had been kept in a lock box in a bank at Martin; the lock box was appellant’s; Mrs. Reffett did not have a key to the lock box. The record is silent as to what happened to the will which antedated the 1960 will. It would have been revoked by the 1960 will anyway.

On the morning of August 8, 1962 (date of Mrs. Reffett’s death), three of the ap-pellees, sisters of Mrs. Reffett, first learned that Mrs. Reffett had been taken to the hospital in the early morning hours. Banner Mann, husband of appellee Gladys Mann (sister of decedent), testified that he saw and talked with appellant near the hospital about eight o’clock that morning. According to this witness, appellant expressed concern over his failure to locate Mrs. Reffett’s will in the bank lock box; at the time of this conversation Mrs. Reffett was still living, although she died sometime in the mid-afternoon. Mann said that appellant used the expression “I’m ruined” — and asked whether Cora (i. e. Cora Reed, sister of Mrs. Reffett, and an appellee) had obtained the lock box kejr and taken the will out. Mann recalled, in part: “ * * * and I hesitated just a minute because I hated to say that I had heard it, I didn’t know, and I said: ‘You ask Gladys’ * * * The impact of this testimony left the impression that appellant first expressed his anxiety about the whereabouts of the will, and then informed his brother-in-law that Mrs. Ref-fett was ill in the hospital.

Other appellees testified that appellant gave them to understand that he had not been able to locate any will of Mrs. Ref-fett’s shortly after her death. In fact, they asserted that appellant never did inform them of his finding of the purported will under attack in this suit.

Appellant testified that he had not known that his wife had destroyed the I960 will, nor could he explain how anyone obtained his lock box key to withdraw the will. His evidence seems to imply that one of the appellees purloined the key for the sinister purpose of destroying the 1960 will, although no blunt statement to that effect is made. At any rate, appellant said that he found the questioned will, a paper bearing date July 25, 1962, in a “traveling bag” in his residence. The bag is here as an exhibit, and contains miscellaneous papers as if used as a repository for such items. Appellant explained that he happened to run across the challenged will when he was searching through the hag for his car title papers. He made this discovery some ten days to two weeks after Mrs. Reffett’s death. It is observed that the certification on the purported will reflects that it was admitted to probate on September 24, 1962, more than a month after Mrs. Ref-fett’s death; nobody makes any point of this, however.

The purported will is a typewritten instrument in words and figures as follows:

“I, Mae Reed Reffett, of Hueysville, Floyd County, Kentucky, do make, publish and declare this to be my last will and testament, and I hereby revoke all other wills by me heretofore made.
First: I direct that all my debts and funeral expenses be paid and that a monument be bought for my grave.
Second: I will and give to my husband, Sanford Reffett, of Hueysville, Kentucky, absolutely, all my property of every kind and nature. If I have a bank account at the time of my death it is to be his.
Third: I want Sanford Reffett to be appointed administrator of my estate and executor of my will and he is not to be required to fill any bonds of any kind.
In testimony whereof, I have signed my name at Hueysville, Kentucky, this the 25th day of July, 1962., in the presence of the persons who signed as witnesses, at my request in my presence and in the presence of each other.
/s/ Mae R. Reffett
WITNESSES:
/s/ Chester Neeley
/s/ Frank Chaffins”

It will be observed that except for the somewhat unusual feature of the attestation clause’s being in the body of the instrument, the purported will suggests that its draftsman had more than a fleeting acquaintance with the business of drawing a simple will. Appellant was at complete loss to explain the origin of the 1962 challenged will; neither could he account for its being in the traveling bag. His wife had never told him about it. The two attesting witnesses were “sometime” employees of appellant, but apparently neither of them had ever hinted to him that they had served as testamentary witnesses for Mrs. Reffett.

Appellees presented two witnesses who deposed that the signature on the purported will was forged. One of these was a bookkeeper at the bank where Mrs. Reffett kept her checking account. The other was Maxwell Allen who gave evidence as being a qualified examiner of questioned documents. The latter prepared a photographic exhibit of the questioned signature and certain admittedly genuine signatures. KRS 422.120 was followed in obtaining the genuine signatures. Each of the handwriting witnesses pointed to various dissimilarities between the questioned and admitted signatures. Mr. Allen laid heavy stress on what he termed the “rhythm,” by which we understand him to have meant the beginning and closing flourishes, coupled with the apparently uninterrupted inscribing of the body of the genuine signatures, as opposed to the studied, belabored, and uneven pattern in the questioned signature. Microscopic examination of the questioned and genuine signatures was made by the jury, with the aid of Mr. Allen’s microscope.

The two attesting witnesses related that Mrs. Reffett had caused them to sign the will at a filling station across from her home. There was some discrepancy in the details of their evidence; they were shown to have been long-time acquaintances and sometime employees of appellant. Some evidence was presented attacking the credibility of one of them. One of the attesting witnesses did not recall seeing Mrs. Reffett sign the paper.

Appellant strongly urges that under the factual situation at bar the trial court should have directed a verdict upholding the will. Reliance is had upon Pioneer Coal Co. v. Polly, 208 Ky. 548, 271 S.W. 592; Polley v. Cline’s Ex’r., 263 Ky. 659, 93 S.W.2d 363; Roberts v. McCown, 288 Ky. 543, 156 S.W.2d 840; Martin v. Webb, 300 Ky. 11, 187 S.W.2d 828, and Cline v. Wenger, Ky., 263 S.W.2d 91. Authorities are cited from other jurisdictions as well. We have no question concerning the soundness of the cases cited; our difficulty is that under the circumstances of the case at hand those cases are not apposite. In none of them was there any set of circumstances sufficient to cast an aura of suspicion about the will’s validity. There was simply the opinion testimony of handwriting experts opposing the unrefuted, unchallenged, positive evidence of eyewitnesses who saw the execution of the will. In such circumstances we have held, as the cited authorities reflect, that opinion evidence is insufficient to sustain a verdict against the will.

In McKinney v. Chastain, 298 Ky. 833, 184 S.W.2d 240, this court recognized the obviously sound principle that handwriting opinion evidence, when supported by proof of circumstances casting suspicion upon the verity of the testimony concerning execution of the will, is sufficient to require submission of the issue to the jury. The cited case relied on Hendricks v. Johnson, 297 Ky. 643, 180 S.W.2d 868. Of like import is Ellis v. Moss, 257 Ky. 168, 77 S.W.2d 377. We are persuaded that the circumstances shown in this case clearly bring the lawsuit within the purview of the just cited precedents. Indeed, until this good day the unknown draftsman of the document has not seen fit to come forward. This circumstance alone shrouds the transaction with suspicion. Therefore, we conclude that the trial court properly submitted the issue to the jury.

Appellant points to various instances in which he asserts the trial court erroneously admitted incompetent evidence. We shall deal with them in the order presented in brief:

First, it is said that error was committed by requiring appellant to admit that his wife had been ill “off and on” for nearly twenty-six years. We are unable to find any prejudice against appellant in this respect. It is observed that the county attorney’s secretary testified, without objection, that Mrs. Reffett appeared ill when she tore up the 1960 will. Moreover, testimony was presented for appellant that Mrs. Reffett was unable to go to Mr. Hobson’s office when she signed the 1960 will.

The next attack on the evidence relates to testimony by appellee, Gladys Mann, in which she was permitted to say that appellant did not come to her home during the night to notify her of the serious illness of her sister. In light of the situation at bar, we think it was proper for evidence to be received which tends to shed light on the entire circumstances of the case. It was the contention of appellees that appellant’s prime concern was the property of his wife, rather than her health. The challenged testimony was relevant as to that issue.

The same may be said of the testimony from Mrs. Mann in which she related that appellant told her he would give her the personal property of Mrs. Reffett after appellant remarried. It is asserted that it was highly prejudicial to appellant to inject into the case the fact that he had remarried. We are not able to accept this argument. The fact that appellant had remarried at the time of the trial was nothing more than the usual background identification material respecting any litigant.' What we have said respecting the challenged evidence from Mrs. Mann is equally applicable to the claimed error as to the same type evidence from Mrs. Reed, another appellee.

It is claimed that the trial court erroneously permitted Mrs. Reed to say that Mrs. Reffett had told her that she wanted her sisters to have her property. However, the court admonished the jury not to consider the evidence; appellant sought no other curative action from the trial court, and may not now be heard to complain.

Finally, it is said that it was prejudicial error for the court to permit Banner Mann to testify that appellant said, “I am ruined.” This evidence was competent; it too tended to support appellees’ theory that appellant’s fundamental interest was in the estate of his wife.

Appellant contends that the trial court should have permitted him to show that he had paid for the real estate which was deeded to his wife. Such evidence, coming from the appellant, was properly rejected. Clearly it would have contravened KRS 421.210 to have permitted appellant to testify in his own behalf as to these transactions with the decedent.

Neither was it error for the trial court to deny appellants’ effort to have the expert witness, Allen, disclose the amount of compensation to be paid him for his services in the case. The court did permit a showing that the witness was being paid, but denied the effort to show the amount of payment. This was proper. See Current v. Columbia Gas of Kentucky, Ky., 383 S.W.2d 139, 143, 144.

The judgment is affirmed.

HILL, J., not sitting.


author: MONTGOMERY, Judge.

text:
    M. J. HALL, Appellant, v. Bertha TURNER et al., Appellees. M. J. HALL, Appellant, v. Birdie HALL et al., Appellees. M. J. HALL, Appellant, v. Nannie B. HALL et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.

      J. L. Richardson, Jr., Louisville, for appellant.
    George I. Cline, Morehead, Lloyd McDonald, William T. Walton, Flemingsburg, Thomas R. Burns, Morehead, for appellees.
   MONTGOMERY, Judge.

Appeals have been perfected from a judgment entered in three actions which were tried together and involved an auto collision. Bertha Turner, Birdie Hall, and Nannie B. Hall, passengers in M. J. Hall’s car, sued M. J. Hall, James Purnell, driver of the other car involved, and Jack Winters, owner of the other car. There were cross-claims by M. J. Hall against Purnell and Winters and by Purnell and Winters against M. J. Hall.

The jury found Hall, Purnell, and Winters liable and assessed 25% of the damages against Hall and 75% of the damages against Purnell and Winters. The separate recoveries were as follows: Bertha Turner, $11,501.79; Birdie Hall, $22,484.-87; and Nannie B. Hall, $22,510.18. M. J. Hall’s 25% liability was $14,124.22. He appeals.

Appellant contends that: (1) Pretrial statements of Bertha Turner and Nannie Hall should have been admitted in evidence; (2) he was not guilty of any negligence; and (3) the court erred in its instructions.

The collision occurred on August 16, 1959, on Kentucky Highway 173. The road surface, weather, and visibility conditions were favorable. Appellant was driving his car, with his wife, Birdie Hall, riding on the front seat. Nannie Hall and Bertha Turner were riding on the rear seat of the Hall car on the left and right sides, respectively. Bertha and Birdie are twins. Nannie is their sister-in-law.

According to the testimony for appellant, the Hall car was traveling north in its right-hand lane around a curve to the right. Bertha Turner was the first to see the Purnell car approaching from the opposite direction when it was some three hundred feet away. She testified that it was zigzagging and traveling “pretty fast.” .She screamed, as did the other women.

Appellant saw the approaching car and took his foot off the accelerator but did not apply his brakes or sound his horn. He slowed his car to look for a place to pull off the road on the right side but there was an embankment. Hall said he could not see how far over to get because some bushes had grown up. The right wheels of his car were just off the pavement when the left rear of the Purnell car struck the front of the Hall car and knocked it over the embankment. All of the occupants of the Hall car sustained injuries when it went over the embankment.

Nannie (Mrs. E. V.) Hall and Bertha Turner less than thirty days after the collision and while they were in the hospital made statements in question and answer form. In substance, Nannie Hall and Bertha Turner said in the statements that appellant had done everything possible to avoid the collision and was not at fault. In Schaible v. Uhl, Ky., 343 S.W.2d 578, a pretrial statement made by one of two passengers was held to be admissible as an admission against interest by a party and as such, admissible as substantive evidence in a joint action against the car driver. Under the rule in Schaible v. Uhl, the pretrial statements of Nannie Hall and Bertha Turner should have been admitted, and it was reversible error to exclude them. Whether Nannie Hall and Bertha Turner, or either of them, was under the influence of narcotics at the time the statements were made was a factual issue affecting their credibility and was for the jury to determine.

Next, appellant claims that under the evidence he was not guilty of negligence and was entitled to a directed verdict. He insists that his motion for judgment n. o. v. should have been sustained. This question depends on the location of the two cars involved with reference to the center line of the road. Questions raised concerning lookout, use of brakes, and sounding of horn are not determinative and are meritless. Under the circumstances of this case, if Hall’s car was in its proper traffic lane his keeping a lookout, using his brakes, or sounding his horn would not have kept Purnell’s car from colliding with the Hall car, which was in Purnell’s view.

The evidence introduced in behalf of the plaintiffs, Bertha Turner, Birdie Hall, and Nannie Hall; shows that appellant was not in fault. Birdie Hall and Nannie Hall on the trial said they remembered nothing that happened. Bertha Turner said the Purnell car, after zigzagging three or four times, came sideways and struck the Hall car on the Hall side of the road and that she could not complain of the appellant’s driving. Clyde Johns, a state trooper who investigated the collision, said that dirt was in Hall’s lane, the left tire marks of Purnell’s car were eight inches to one foot over the center line in Hall’s lane, and Purnell had told him that he did not know what happened.

For appellant the substance of his testimony has been related. Two young men, Glenn Whitt and Glenn Cothern, were following in a car about 300 feet behind the Hall car. They were the first to arrive at the scene after the accident. They did not see the accident because of the curve, but Cothern heard the cars collide and saw the Hall car as it started over the embankment. Sharon Krauss, Olin Perry, Jim Elam, and Kersy Alderman arrived at the scene of the accident in the next three or four cars. They testified, in substance, the same as did Whitt and Cothern to the effect that the tire marks of Purnell’s car were in Hall’s traffic lane and that Hall’s tire marks were in his lane and on his right shoulder of the road. They also testified to dirt and debris in the Hall lane in corroboration of appellant’s testimony. Each of these witnesses was disinterested and unrelated to the parties involved.

Purnell said, “I saw this car coming, and to my ability he was on my side of the road, as far as I know; and I twisted toward the ditch trying to get out of the way and that’s when the accident appeared, took place.” In his best judgment his car was on its proper side. He said Hall’s car “wasn’t going too fast either I would say and he didn’t look like he had, he hadn’t lost control of his car as far as that goes, but it just happened.”

Purnell further said that his car was about 100 feet from the Hall car when he first saw it and it was then “around the center line.” He described the approach to the Hall car by saying that he (Purnell) was driving completely on his side of the road at 20 miles per hour, with his foot on the brake preparatory to turning into Poplar Grove Road, that he shot the gas to it, and twisted to avoid the Hall car which, as he said, had come over the center line before the collision. He admitted that he had told Jim Elam at the time of the accident that he did not know what happened. In a pretrial statement Purnell said he saw no dirt.

Purnell’s father, brother, and two other witnesses testified in his behalf. Their testimony was remote in time after many people and cars had stopped and traffic had been passing. Elmo Stigall saw a little dirt on both sides of the center line. The brother said there was too much dust and saw no skid marks. He “never paid too close attention.” The father saw some dust on both sides and some skid marks on the upper side which were not identified with or related to either car. Ray Royce saw some dust on both sides of the center line and no marks except where the car went over the embankment. In a pretrial statement he said he saw one skid mark on Hall’s side and saw no dirt or debris.

The evidence here conclusively establishes that appellant’s car was on its proper side of the center line of the road and that appellant was not negligent. The testimony of Purnell and his witnesses is confusing, vague, remote, and in part unrelated. It was weakened by Purnell’s admission that he did not know what happened and by contradictory pretrial statements. There was nothing in the testimony offered in behalf of the plaintiffs to. attach any liability to appellant. Where the evidence conclusively establishes that appellant’s car was on the right side of the road and such evidence destroys the evidentiary value of the weak testimony offered in behalf of the appellee appellant’s motion for a judgment n. o. v. should be sustained. Thornberry v. Smith, Ky., 346 S.W.2d 727. The factual situation in the above case is similar. Appellant’s motion for judgment n. o. v. should have been sustained.

It is unnecessary to discuss other contentions made.

Judgment reversed with directions to enter judgment in favor of appellant on the claims of appellees Bertha Turner, Birdie Hall, and Nannie Hall; to enter judgment in favor of appellant on his cross-claim against appellees Purnell and Winters on the issue of liability; and for a trial on the issue of damages suffered by appellant at the hands of appellees Purnell and Winters.

HILL, J., not sitting.


author: MILLIKEN, Judge.

text:
    John J. BLACK, Appellant, v. John A. TICHENOR, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.

      William O. Guethlein, A. J. Deindoerfer, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellant.
    Farnsley, Hottell & Carey, James T. Carey, Louisville, for appellee.
   MILLIKEN, Judge.

In Miller v. Scott (1960), Ky., 339 S.W.2d 941, we held that acceptance of the Workmen’s Compensation Act precludes suits by an employee against a fellow employee for injuries arising out of and in the course of their employment. The issue here is whether the appellee’s injuries arose out of and in the course of his employment. We conclude that they did, and that the $3,275.93 judgment in a tort action which he has obtained against the appellant, his fellow employee, must be reversed.

The appellee, John A. Tichenor, apparently filed no claim for compensation with the Workmen’s Compensation Board after his employer’s insurance carrier indicated that it would not recognize his claim on the theory that his injuries occurred on his way to work — not while he was at work —and consequently came within the so-called “going and coming rule” which rests on the conclusion that the Workmen’s Compensation Act was not intended to protect an employee against all the perils of going to and from his regular place of employment. Larson’s Workmen’s Compensation Law, Vol. 1, Sec. 15.11, page 195; Ky. Digest, Workmen’s Compensation, @^>719 et seq.

“Under the law of Kentucky (Miller v. Scott, Ky., 339 S.W.2d 941) one cannot maintain a common law negligence action against his fellow servant for injuries sustained in the course of or arising out of his employment. The only remedy for such an injury is under the Workmen’s Compensation Act.”

Accordingly, the sole question is whether or not the appellee, Tichenor, was in the course of his employment when injured in an automobile accident on his way to work. Curiously, here is a situation where the injured employee is claiming he was not on the job when he was injured in order to pursue his common law rights, his statutory Workmen’s Compensation claim having been denied by his employer’s carrier.

We thus have the anomalous situation where an employee who did not pursue his claim for injuries before the Workmen’s Compensation Board because he assumed that the claim was not compensable under the Workmen’s Compensation Act, now finds his common law judgment against his fellow employee for negligence being appealed on the ground that his claim was compensable exclusively under the Workmen’s Compensation Act and that his tort action against his fellow employee would not lie under the doctrine of Miller v. Scott, above.

The appellant, John J. Black, and the ap-pellee, John A. Tichenor, were both employed by the firm of Eskew & Gresham, Louisville, Kentucky. Black invited Tiche-nor to accompany him in Black’s automobile on a trip to Middlesboro, Kentucky, where they were to perform an audit of the Kentucky-Virginia Stone Company. The audit was to commence on Monday, January 15, 1962. For many years Black had made this audit, sometimes leaving during weekday working hours and sometimes on Sunday. However, for convenience, Black arranged with Tichenor for them to leave on Sunday evening, January 14, 1962, drive to the job site, spend the night, and commence work the following day.

On the way to Middlesboro that Sunday night about 9:30 p. m., Black struck head-on a vehicle coming in the opposite direction on Kentucky Highway 229 about 3.8 miles north of Barbourville, Kentucky. As a result of Black’s negligence, Tichenor sustained multiple injuries, the most serious of which was a dislocated hip.

The normal working hours for the accountants of the firm were 8:30 a. m. to 5:30 p. m. The firm did not furnish an automobile to its employees, but had a policy of reimbursing them for out of pocket expenses incurred for certain out of town travel expenses.

On the trip in question, Tichenor and Black, as well as their employer, Gresham, testified Tichenor could have elected to travel separately from Black and on Monday during regular working hours instead of Sunday evening. Also, there is no dispute about the fact that Tichenor’s actual work would not have commenced until he entered the premises of the client, the Kentucky-Virginia Stone Company.

It is true that Tichenor could have driven his own car, could have traveled by public transportation, and could have started early Monday morning instead of riding Sunday night with his fellow employee, Black, but we do not consider the freedom of choosing his mode of transportation or the method in which his salary was computed as controlling factors in determining whether he was within the protection of the Workmen’s Compensation Act when his injuries occurred. It is conceded that the men wished to start their audit when the Stone Company’s office opened for business Monday morning, and it also is conceded that a portion of the work of both men normally was conducted away from their employer’s headquarters in Louisville, and that that fact was made clear to them by their employer when they were hired. It is quite a different thing to go to and from a work site away from the regular place of employment, than it is to go to and from one’s home to one’s usual place of employment; it is the latter which generally comes within the so-called “going and coming rule” absolving employers from Workmen’s Compensation liability. The former comes within the principle stated in Larson, Workmen’s Compensation Law, Vol. 1, Sec. 25.00: “Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.” Turner Day & Woolworth Handle Company v. Pennington, 250 Ky. 433, 63 S.W.2d 490; Standard Oil Company v. Witt, 283 Ky. 327, 141 S.W.2d 271.

Although traffic perils are ones to which all travelers are exposed, the particular exposure of Tichenor in the case at bar was caused by the requirements of his employment and was implicit in the understanding his employer had with him at the time he was hired. Palmer v. Main, 209 Ky. 226, 272 S.W. 736; Hinkle v. Allen Codell Company, 298 Ky. 102, 182 S.W.2d 20. In the recent case of Corken v. Corken Steel Products, Inc. (1964), Ky., 385 S.W.2d 949, where a traveling salesman was killed on a public street by a demented stranger, we approved an award of compensation, and said:

“We accept the view that causal connection is sufficient if the exposure results from the employment. * * * Corken’s employment was the reason for his presence at what turned out to be a place of danger, and except for his presence there he would not have been killed.”

We conclude that the injuries here were incurred in the course of Tichenor’s employment and arose out of it, and were exclusively compensable under the Workmen’s Compensation Act. KRS 342.015(1); Miller v. Scott, above. For a discussion of whether an employee may sue a fellow employee for injuries caused by the latter’s negligence during the employment, see Marquez v. Rapid Harvest Company (1965), Ariz., 405 P.2d 814, where the majority opinion held that such a suit would lie at common law in Arizona.

Whether the apparent harshness of the result as to Tichenor in the case at bar may be averted under the provisions of KRS 413.270 is not before us.

The judgment is reversed.

Judge MONTGOMERY dissents for the reasons stated in his dissenting opinion in Corken v. Corken, above.


author: WADDILL, Commissioner.

text:
    Mark Henry MASON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    Stuart L. Lyon, David Kaplan, Louisville, for appellant.

      Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WADDILL, Commissioner.

Appellant was convicted of armed robbery and his punishment fixed at life imprisonment. (KRS 433.140). On this appeal he contends that the trial court erred in failing to submit to the jury whether a pocket knife is a deadly weapon within the meaning of the above statute which reads as follows:

“Any person who commits robbery or burglary or any act penalized by KRS 433.130, and in committing the act uses or displays any pistol, gun or other firearm or deadly weapon shall be punished by confinement in the penitentiary for life, or by death.”

Since the only weapon displayed in the commission of the crime was a pocket knife having a three inch blade, the question narrows to whether the trial court correctly determined that this knife was a deadly weapon per se.

Appellant frankly concedes that we have previously decided the identical question adversely to his contention in Montgomery v. Commonwealth, Ky., 346 S.W.2d 479. However, he requests us to overrule this case and to permit a jury to determine, under a proper instruction, whether the knife was used as a deadly weapon.

After a careful reconsideration of this question we have no doubt as to the soundness of our previous conclusions, such as stated in Williams v. Commonwealth, 304 Ky. 359, 200 S.W.2d 926, to the effect that a knife is ordinarily a deadly weapon since it may produce death even though the stab or thrust does not reach a vital organ of the human body. Where, as here, the weapon used in the commission of the offense is of such size and character as to permit but one reasonable conclusion, i. e., that it is a deadly weapon, the court need not let the jury debate its deadly character. Hence, we adhere to the conclusion reached in Montgomery v. Commonwealth, supra.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Nancy Yocum WYNN and Husband V. O. Wynn, Appellees.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., H. C. Smith, Dept, of Highways, Frankfort, John E. Smith and Deddo G. Lynn, Dept, of Highways, Lexington, for appellant.
    Frank G. Gilliam and William S. Black, Lexington, for appellees.
   CULLEN, Commissioner.

The appellees, Nancy Wynn and husband, own a piece of land in Lexington which extends from South Limestone Street to Rose Street a short distance from the point where the two streets j oin at an acute angle. There are business structures on the land facing each of the streets. A state highway improvement project required a widening of the pavement of both streets, wherefore the Commonwealth of Kentucky, Department of Highways, brought a condemnation proceeding against the Wynns. The Commonwealth maintained that it was required to condemn only a narrow strip of the Wynns’ land along Rose Street, and that the land in front of the Wynns’ land on Limestone, between the sidewalk and the existing street, which was proposed to be used in widening the pavement, already had been dedicated to the public for street purposes by reason of having been paved and used for public parking, and therefore did not need to be condemned. However, it was adjudged by the circuit court in the condemnation action that the strip on Limestone had not been dedicated and that the landowners were entitled to compensation for it as well as for the strip on Rose Street. The verdict awarded a total of $10,750 in damages. The Commonwealth has appealed from the judgment entered on the verdict.

The judgment must be reversed because the verdict did not conform to the law and the evidence. In accordance with the rule set forth in Commonwealth, Dept, of Highways v. Priest, Ky., 387 S.W.2d 302, the jury was instructed to find the “before” value, the “after” value, and the difference. The verdict was as follows:

“Before Value ..$40,000
After Value .$29,250
Difference .$10,750”

The trouble is that the lowest estimate by any witness of the “after” value was $4,400 more than that found by the verdict. The only assumption we can make is that the jury chose to put its own values on the property, ignoring the evidence.

This defect in the verdict requires reversal of the judgment. See Commonwealth, Dept. of Highways v. Priest, Ky., 387 S.W.2d 302; Commonwealth, Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249; Pierson v. Commonwealth, Dept. of Highways, Ky., 350 S.W.2d 487.

It is necessary to discuss two other questions.

The trial court ruled as a matter of law that the parking area in front of the ap-pellees’ property on Limestone had not been dedicated for public use and therefore the owners were entitled to compensation for its taking. The appellant maintains that the issue of dedication should have been submitted to the jury under appropriate instructions.

The situation with respect to the parking area, at the time of the condemnation, was that the curb line of Limestone, coming from the south, made a right-angle jog at the south property line of the Wynn lot, clear to the sidewalk, and then followed the sidewalk edge north past the north property line of the Wynns and across an adjoining lot occupied by a Kroger store. The offset area thus created was paved substantially level with the street pavement. The offset in front of the Wynns’ property was created in 1952 and it appears that the one in front of the adjoining Kroger property had existed for a number of years before that.

The city traffic engineer testified that the general public used the parking space without restrictions.

Both the intention of the owner to dedicate and the acceptance by the public may be inferred from use by the public for a substantial number of years. Freeman v. Dugger, Ky., 286 S.W.2d 894; Graves County ex rel. Robbins v. City of Mayfield, 305 Ky. 374, 204 S.W.2d 369; 16 Am.Jur., Dedication, sec. 35, p. 383. The question of the sufficiency of the use to show dedication or acceptance usually is for the jury. 16 Am.Jur., Dedication, sec. 88, p. 424. It is our opinion that the evidence in the instant case was sufficient to create a jury issue of dedication and acceptance.

The appellant sought to introduce in evidence copies of correspondence carried on in 1952 between the attorney for the then owner of the Wynn property (a man named Cowden) and the city manager. The trial court, for reasons which the record leaves obscure, refused to permit this evidence to be introduced. The substance of the correspondence was that Cowden asked permission of the city to “widen the street and set the curb line back” in front of his property, and the city refused to grant the request unless Cowden would grant an easement to the city for street purposes. While this evidence might possibly show an intent by Cowden to dedicate informally, at the same time it would show a refusal by the city to accept an informal dedication. So no effective, accepted dedication could be established by the correspondence. Proof of user had to be resorted to. The letters were of no value on the question of dedication and acceptance by long continued public use. We conclude that the correspondence properly was excluded.

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


text:
    Orlan BINGHAM, Petitioner, v. Hon. B. Robert STIVERS, Judge, Laurel Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.

      Orlan Bingham, pro se.
    B. Robert Stivers, pro se.
   DAVIS, Commissioner.

Orlan Bingham invokes the original jurisdiction of this Court pursuant to Section 110, Kentucky Constitution. He asserts that the respondent circuit judge has denied him a record of proceedings had pursuant to the petitioner’s motion to vacate judgment (RCr 11.42). According to the petition, Bingham has requested a transcript of the record on the motion to vacate for purposes of an appeal to this Court. Petitioner claimed to be a pauper and thus entitled to have the record furnished to him without payment by him of the customary clerk’s fees. This Court has sustained petitioner’s motion to proceed here as a pauper.

In a response filed by the trial judge there is no denial that Bingham is a pauper. Under such circumstances the trial court has no recourse except to provide a record for use on appeal. The judge’s response here states that Bingham had a fair trial and that there was no merit whatever in Bingham’s motion to vacate under RCr 11.42. This may be correct, but we are not able to so adjudicate without the RCr 11.42 record before us. Wilson v. Jefferson Circuit Court, Ky., 384 S.W.2d 305.

Accordingly, it is ordered that the respondent cause to be furnished to the petitioner a transcript of the proceedings on the petitioner’s motion to vacate so that an appeal may be prosecuted to this Court by petitioner if he so desires.


author: WILLIAMS, Judge.

text:
    CITY UTILITY COMMISSION OF the CITY OF OWENSBORO, Kentucky, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF OWENSBORO, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.

      John S. Hager, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellant.
    William T. Carroll, Gant & Carroll, Joseph H. McKinley, Wilson & Wilson, Owensboro, for appellee.
   WILLIAMS, Judge.

This action has been submitted on an agreed statement of facts pursuant to KRS 418.020. The issue is whether a person appointed to a classified position under the Civil Service Ordinance of the City of Owensboro, pursuant to KRS 90.350(6), should have been qualified as to age, residence and voter requirements, under the provisions of KRS 90.330.

Appellant manages and operates the waterworks system and electric power generating and distribution facilities for Owensboro, a city of the second class. On May 21, 1956, appellant appointed Shirley Brown as mechanical engineer at the Owensboro Municipal Utilities, and he has served continuously from that date in a good and workmanlike manner. This position is in the classified civil service of the City of Owensboro.

In 1956, KRS 90.330 read as follows:

“{1) The civil service commission shall examine all applicants as to their physical and mental qualification for the particular classification wherein they seek employment. To be eligible for examination a person must not be less than twenty-one nor more than forty-five years of age, a law-abiding citizen of sobriety and integrity and a registered voter within the city, and must be able to read and write and understand the English language. (1946 c. 50, sec. 3. Eff. June 19, 1946.)
“(2) To be eligible for examination in cities of the second class, a person must have been a registered voter within the city for more than one year, in addition to the requirements of subsection (1) of this section.”

Section (2) was amended in 1962, which was subsequent to the hiring of Brown in 1956.

At the time of his employment Mr. Brown was over 45 years of age, and he was not a registered voter in the City of Owens-boro. To be eligible for examination the applicant must meet these requirements.

Mr. Brown was appointed pursuant to a provision in KRS 90.350(6), which reads in part as follows:

“ * * * Provided that, in case of' a vacancy in the classified service, where peculiar and exceptional qualifications of a particular professional or educational character are required, upon satisfactory evidence that for reason stated in writing by the appointing authority, competitive examination in such case is impracticable; the commission may suspend the provisions requiring competitive examination under civil service. (1946 c. 50, sec. 5. Eff. June 19, 1946.)”

The appellee, Civil Service Commission, pursuant to the above statute, suspended the provisions requiring competitive examination, but refused to certify Mr. Brown for coverage under civil service. The lower court held that, although appellee could suspend the competitive examination, it could not fail to conduct a non-competitive examination which would require the appointee to meet the qualifications of KRS 90.33Q. From a judgment to that effect this appeal is prosecuted.

It is clear from the full context of the statute that the Legislature meant to set up requirements which must be met before a person can become eligible to take a competitive examination, even though the word examination is not qualified by the adjective non-competitive or competitive. Therefore, when the competitive examination is suspended under KRS 90.350(6), the requirements to take the examination are likewise suspended. The statute provides no procedure for a non-competitive examination. Moreover, there were no eligibility requirements for appointment without an examination until the statute was amended in 1962 to read as follows:

KRS 90.330(2). “No person shall be appointed to a position under civil service until that person is a resident of that city.”

The amendment points up the fact that the Legislature did not intend the eligibility requirements of KRS 90.330 to apply to a person who was appointed under the exception of KRS 90.350(6).

Further it is apparent that the Legislature’s purpose in providing an exception was to enable cities to fill important positions of a peculiar character that cannot be filled by the regular examination procedures or because of the strict age and voting requirements of KRS 90.330. A construction of KRS 90.350(6) to the effect that it waives a competitive examination but not the eligibility requirements to take an examination would thwart the whole purpose of the exception and produce potentially absurd results for the city.

We conclude the construction placed on the statute by the lower court, although expertly reasoned, nonetheless erroneously interprets the legislative intent.

The judgment is reversed.


text:
    Ira KILBURN, Appellant, v. C. C. COLWELL, City Manager et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    Dan Jack Combs, Pikeville, for appellant.

      Richard D. Cooper, Hazard, for appel-lees.
   PALMORE, Judge.

The appellant, Ira Kilburn, a lieutenant in the police department of Hazard, a city of the third class, was dismissed from the force by the board of commissioners of the city following a hearing of six charges preferred against him by the chief of police. KRS 95.450. On his appeal to the Perry Circuit Court the case was tried de novo, two of the charges were sustained, and the dismissal was affirmed. KRS 95.460. Kil-burn appeals, contending that (1) the evidence was not enough to support the findings and (2) even if he was guilty of technical violations, discharge from the service was an excessive punishment under the circumstances.

In City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517, 519 (1955), it was held that in a de novo hearing under KRS 95.460 the question to be determined by the circuit court is not whether there is substantial evidence to support the action of the city legislative body, but whether the evidence preponderates against it. The practical effect of that test is to shift the burden of proof to the appealing party, which means that the review is something less than purely de novo.

Upon the evidence produced in circuit court the trial judge found as a fact that Kilburn, while a member of the police department, solicited a contribution for the political campaign of a candidate for mayor. Though he denied it, the person from whom he was alleged to have sought the contribution testified that he did so. The court also found as a fact that over a substantial period of time while Kilburn was on the force he accepted frequent gifts of whiskey from Dill Nucci, the operator of a liquor store in Hazard. Nucci testified that he gave him five or six pints of whiskey per month for about two years. Kilburn’s explanation, corroborated by Nucci, was that he always offered to pay for the whiskey but that sometimes Nucci would not take the money.

Most of the other accusations specified acts of insubordination, and as usual in this type of case the record discloses numerous charges and counter-charges and reflects a state of bad feeling between various individuals in the police department, particularly Kilburn and the chief of police. Even though the trial court found the evidence of insubordination to be inconclusive, it seems obvious that for the good of the department one of these two men had to go. We fully concur in the trial court’s conclusion that the evidence does not preponderate against the decision of the board of commissioners.

We do not agree that the two offenses .of which Kilburn was found guilty are merely technical and not of sufficient gravity to justify his dismissal. KRS 95.-470 prohibits political activities by police and firemen of second and third class cities. A regulatory ordinance of the City of Hazard provides that members of the police department shall not accept gifts. Certainly as a police officer Kilburn should have known, too, that by giving him whiskey Nucci was committing a criminal offense. See KRS 244.050, 244.990(1). But even if the two charges had been of less serious import, we could not say the punishment was too severe, because it is common knowledge that personnel troubles, like marital difficulties, are similar to an iceberg in that there is generally more beneath the surface than appears to the naked eye. As remarked in Harrell v. City of Middlesboro, Ky., 287 S.W.2d 614, 616 (1956), “the relationship of employer and employee existing between a municipality and its peace officers is no different from any general employment where often the final straw ‘breaks the camel’s back,’ and results in dismissal.”

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Winthrop H. HOPSON, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Richard H. Peek, Dept, of Highways, Pa-ducah, for appellant.
    Ben B. Wright, Cadiz, for appellees.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, condemned a strip of land across the farm of Winthrop Hopson and wife, between the dwelling and the barn, for an ««limited access highway. The result of the condemnation proceedings was a circuit court judgment awarding damages of $14,000, from which judgment the Commonwealth has appealed.

Over repeated objections the trial court permitted each of the witnesses for the landowners, on direct examination, after stating his estimates of “before” and “after” values, to itemize in detail the “damages” to the farm, putting a price on each item. We have kept saying that this is improper. See Commonwealth, Dept. of Highways v. Stamper, Ky., 345 S.W.2d 640; Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472; Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844; Commonwealth, Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249.

We are reversing the judgment because of the error in permitting the witnesses, on direct examination, to put prices on “damage” factors.

For guidance upon another trial we shall comment briefly on three other questions raised on the appeal.

The landowner should not be permitted to testify as to market values unless he qualifies in accordance with the holding in Commonwealth, Dept. of Highways v. Fister, Ky., 373 S.W.2d 720.

The matter of damages attributable to severance of the farm should be handled as set forth in Commonwealth, Dept. of Highways v. Burns, Ky., 394 S.W.2d 923 (decided July 2, 1965).

In our opinion the impropriety of putting a special value on the “corner lot” at the intersection of Ky. 1254 with old U.S. 68 was not that there was a duplication of damages, but rather that the loss of the corner lot was due to relocation of the highway (a noncompensable factor). Furthermore, it appears that the landowners will have new corner lots where new U.S. 68 intersects Ky. 1254.

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


text:
    Orville Clifton LONG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    David Kaplan, Stuart Lyon, Louisville, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

The appellant, Orville Clifton Long, was indicted for the crime of storehouse breaking and was found guilty by a jury in Jefferson County. From a judgment sentencing him to two years in the State Penitentiary he has prosecuted this appeal.

On the 17th day of December, 1964, there was a break-in at the Fulton Fish Market, in Louisville. A Sonic Guard system detected the break-in and the police were alerted. Upon arrival at the Fulton Fish Market one of the police officers saw appellant climbing over a high fence on the premises. Appellant fled, was pursued by the police officers, and captured.

Appellant alleges the evidence was insufficient to sustain a conviction for storehouse breaking because it failed to show a break-in. But he was seen inside the fence and was apprehended while attempting an escape. A window had been broken, a safe had been moved into the middle of the floor, and burglar tools were found on the premises. That evidence was so unequivocal as to exclude every reasonable hypothesis of innocence. Circumstantial evidence alone is sufficient to sustain a conviction. Turner v. Commonwealth, Ky., 328 S.W.2d 536 (1959).

No objection was made to the instructions given by the court, nor was an objection raised concerning the instructions in appellant’s motion for a new trial. So being, he cannot now complain of an alleged error in the instructions. Hartsock v. Commonwealth, Ky., 382 S.W.2d 861 (1964).

We find no error in the case.

The judgment is affirmed.


text:
    Ray Dean DOSS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

After a hearing in open court the trial court entered an order overruling the motion of Ray Dean Doss, under RCr 11.42, to vacate a judgment of November 1964 by which, upon his plea of guilty, Doss was sentenced to 21 years’ imprisonment for voluntary manslaughter. Doss appeals from the order.

The ground on which Doss had sought relief from the judgment was that at the time he pleaded guilty he was inadequately represented by a court-appointed attorney who had conflicting interests by reason of being master commissioner. This ground collapsed when Doss admitted on the hearing of his motion that at the time he pleaded guilty he was represented by employed counsel (not the master commissioner) whom he had hired some two months previously.

The order is affirmed.


text:
    John D. NOE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    Eugene Goss, Charles W. Berger, Harlan, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Daniel Boone Smith, Harlan, for appellee.
   PALMORE, Judge.

Appellant, John D. Noe, was indicted for murder, found guilty of voluntary manslaughter, and sentenced to 21 years’ imprisonment. On this appeal he contends that (1) the right of confrontation guaranteed him by the state and federal constitutions was violated through the admission in evidence of depositions for the Commonwealth and (2) the giving of an instruction on voluntary manslaughter was erroneous and prejudicial.

The prosecution arose out of the shooting and killing of one Skelt Smith near a place called Three Point in Harlan County on December 22, 1963. The indictment was returned in March of 1964 and trial set for September 18, 1964. On the latter date Lester Osborne and his brother Jerome Osborne, material witnesses, were present for the purpose of testifying, but in response to a motion by the Commonwealth the trial was continued and all of the witnesses present were recognized to appear on November 17, 1964. The Osbornes, however, were residents of Indianapolis, Indiana, and in anticipation of their not returning for the trial the parties agreed to the taking of their depositions, which was accomplished on September 18, 1964, in the offices of appellant’s counsel at Harlan. Appellant was present and his counsel cross-examined the witnesses exhaustively.

A subpoena was issued for several of the Commonwealth’s witnesses, including the Osbornes, on October 12, 1964. It was returned by the sheriff on November 11, 1964, endorsed “gone” as to each of the Osbornes. When the case was called for trial the Os-bornes did not appear, and over appellant’s objection the Commonwealth was permitted to read their depositions in evidence.

Under the circumstances therein prescribed, RCr 7.10, 7.12 and 7.20 authorize the taking and use of depositions in behalf of the Commonwealth in a criminal proceeding.

Section 11 of the Constitution of Kentucky provides that in all criminal prosecutions “the accused has the right * * * to meet the witnesses face to face * * The identical guarantee was a part of the bill of rights in each of the previous three constitutions of this state.

The Sixth Amendment of the U. S. Constitution provides that in all criminal prosecutions “the accused shall enjoy the right * * * to be confronted with the witnesses against him * * This fundamental right “is made obligatory on the States by the Fourteenth Amendment.” Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).

Authority for the Commonwealth to take a deposition is conditioned expressly on full protection of “the rights of personal confrontation and cross-examination of the witness by defendant.” RCr. 7.12(1). In this case the depositions were taken in the presence of appellant and his counsel with unrestricted opportunity of cross-examination. The only thing missing in the confrontation was that it did not take place during the trial and in the presence of the court and jury.

According to Wigmore, there never was at common law any recognized right to an indispensable thing called confrontation as distinguished from cross-examination. Wigmore on Evidence, § 1397 (Vol. V. p. 128). “In dealing with depositions and formed testimony of deceased or .absent witnesses, our Courts have almost unanimously received them, when offered against the accused in criminal prosecutions, as not being obnoxious to the constitutional provision, if the right of cross-examination had been satisfied.” Id., § 1398 (Vol. V. p. 136).

In State ex rel. Drew v. Shaughnessy, 212 Wis. 322, 249 N.W. 522, 524, 525, 90 A.L.R. 368, 372, 374 (1923), the Wisconsin Supreme Court, construing a constitutional provision almost identical to ours, commented as follows:

“That section does not expressly prescribe that the requirement as to such confrontation can be satisfied only by confrontation on the trial in court; and it does not require the witnesses to face either the judge or the jurors. * * * the rule as to confrontation by witnesses is sufficiently complied with under the Constitution, as well as at common law, if the accused met the witnesses face to face, at the time that they were testifying, and if he then had the opportunity of cross-examining them. That is the primary purpose, and, when complied with, fully satisfies the rule as to confrontation. The personal appearance of the witnesses before the judge and the jury, on the trial, is of advantage also. However, that is but a secondary purpose, and that is not a right secured to an accused at common law, or under the Constitution.”

In Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895), holding that the transcript of testimony given by two witnesses at a former trial -of the same case could be read in evidence for the prosecution without a violation of the Sixth Amendment, the Supreme Court pointed out that many provisions of the bill of rights are subject to exceptions “recognized long before the adoption of the constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried further than is necessary to the just protection of the accused, and further than the safety of the public will warrant. For instance, there could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations. They are rarely made in the presence of the accused; they are made without any opportunity for examination or cross-examination, nor is the witness brought face to face with the jury; yet from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question their admissibility. They are admitted, not in conformity with any general rule regarding the admission of testimony, but as an exception to such rules, simply from the necessities of the case, and to prevent a manifest failure of justice.”

In its second preliminary draft of proposed amendments to the federal rules of criminal procedure, issued in March of 1964, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, proposing that Rule 15 be amended to permit depositions for the government, commented as follows:

“There would seem to be no reason why the government should not have the deposition available to it on the same basis as the defendant, so long as the defendant’s rights of confrontation and cross-examination are safeguarded. There may even be cases where taking a deposition may discourage attempts to intimidate or harm a government witness.
“Some twenty-two .jurisdictions permit depositions to be taken by the prosecution, some with limitations as to classes of cases or a requirement of consent by the defendant * * *. Wigmore cites numerous decisions upholding the constitutionality of such provisions.”

At common law the right to read a deposition against the defendant in a criminal trial may have been confined to instances in which the witness was at the time of the trial “dead, insane, too ill ever to be expected to attend the trial, or kept away by the connivance of the defendant,” but in West v. State of Louisiana, 194 U.S. 258, 24 S.Ct. 650, 652, 48 L.Ed. 965 (1904), the Supreme Court held that even so, an extension of the right to cases of “nonresidence, permanent absence, and inability to procure the evidence of the witness upon the trial” would not be so fundamental a deviation as to deprive the accused of due process under the Fourteenth Amendment.

In the recent case of Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), to which we have referred, the Supreme Court held that the reading of testimony given by a prosecuting witness at a preliminary hearing, or “examining trial” as it is called here and in Texas, the defendant having been present but without counsel to assist him, was a violation of the right of confrontation because the statement of the witness “had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine” the witness. In so concluding, the majority opinion expressed this qualification: “The case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” (85 S.Ct. at p. 1069).

We confess a certain sense of uneasiness at the foregoing reference to a “full-fledged hearing,” especially in sequence with an earlier quotation from Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965), as follows:

“In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.”

If the court meant to suggest that only testimony elicited at a public hearing conducted in a courtroom in the presence of a judge will satisfy the right of confrontation, then depositions as customarily taken in this state are out. We doubt, however, that it so intended. The common sense of the matter is that unless it be shown that the defendant’s right of confrontation and cross-examination actually was curtailed or abridged, it can make no real difference that the examination of the witness was not conducted in a public arena under the watchful eye of a magistrate.

In Kaelin v. Commonwealth, 84 Ky. 354, 1 S.W. 594, 599 (1886), holding that the defendant was not entitled to a continuance in order to take a deposition in Switzerland, a passing remark was made to the effect that although a defendant may be authorized to take and use depositions, the state may not. Considering the authorities we have cited and quoted, we are of the opinion that the comment was unfounded and incorrect, and the same is true with respect to similar dictum in Fuqua v. Commonwealth, 119 Ky. 578, 81 S.W. 923, 925 (1904).

Appellant contends that even if it be held that depositions may be used by the Commonwealth, yet the rules do not prescribe sufficient safeguards for the defendant's protection and, further, that in this instance the depositions ought not to have been admitted without a better showing that the witnesses were indeed unavailable. Without here quoting the rules, suffice it to say that in our opinion they are adequate to the purpose. As suggested above, if the defendant’s rights of confrontation and cross-examination actually are or have been impaired, he can have the deposition quashed or excluded upon a timely application and showing of the prejudicial circumstances.

In Phelps Roofing Company v. Johnson, Ky., 368 S.W.2d 320, 324 (1963), a civil case, we held that the trial court must be allowed a reasonable discretion in determining whether the procedural conditions precedent to the use of a particular witness’s deposition have been satisfied. We think the same rule must apply in criminal proceedings, regardless of which side proposes to use the testimony. One of the alternative conditions imposed by RCr 7.20 is “that the party offering the deposition had been unable to procure the attendance of the witness by subpoena.” In this case the Commonwealth, probably out of an abundance of precaution, had a subpoena issued for the Osbornes, although they- had been theretofore recognized to appear. It was shown on the face of the depositions that both witnesses were residents of Indianapolis and had lived there for some time. Obviously the depositions were taken in recognition of the distinct possibility or even likelihood that they would not be available later. We think the trial court exercised a proper discretion in admitting their transcribed testimony.

It is our further conclusion that the admission of the depositions did not violate any of the rights vouchsafed to the appellant by Section 11 of our constitution or by the Sixth and Fourteenth Amendments of the federal constitution.

The remaining point to be considered is whether it was error to instruct on voluntary manslaughter.

The evidence showed that a few minutes before the killing when appellant and the decedent, Smith, had suddenly encountered each other, appellant drew a pistol, said to Smith, “Damn you, you whipped my boy one time,” and fired a shot into the ground near Smith, whereupon Smith pinned appellant’s arms to his sides until he was persuaded to return the gun to his pocket. Smith then departed, but returned presently, at which reappearance the appellant again advanced on him with the pistol in his hand and “they locked up.” At this point the others present departed the scene. When they came back a short time later, Smith was dead on the ground with a bullet hole through his heart.

In neither Daggit v. Commonwealth, 314 Ky. 721, 237 S.W.2d 49 (1951), nor Johnston v. Commonwealth, 170 Ky. 766, 186 S.W. 655 (1916), the two cases cited by appellant in support of his position here, was there any evidence from which a jury could reasonably have drawn an inference that the fatal act was done in sudden heat of passion or in a sudden affray. In this case the evidence was abundantly sufficient to sustain a verdict of manslaughter. Compare, for example, Harris v. Commonwealth, Ky., 389 S.W.2d 907 (1965).

The judgment is affirmed.

      . Effective January 1, 1965, RCr 7.22 was amended to provide that “a duly authenticated transcript of testimony given by a witness in a previous trial of the same defendant on the same charge in the same court shall be the equivalent of a deposition.” This being clearly procedural, to the extent of inconsistency between RCr 7.22 and KRS 422.150 the rule prevails. At the same time the defendant’s right of discovery and inspection was amplified considerably by new RCr 7.24 and 7.26.

      . Turner did not involye the right of confrontation as such.

      . In which the testimony of a prosecution witness, since deceased, given at a previous trial of the same ease was held admissible. Accord: See Delph v. Commonwealth, 255 Ky. 259, 72 S.W.2d 1027 (1934).