author: OSBORNE, Judge.

text:
    WABASH LIFE INSURANCE COMPANY, Appellant, v. Earl Payne COMER, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.
    Rehearing Denied May 3, 1968.

      Reginald L. Ayers, Bell, Orr & Reynolds, Bowling Green, for appellant.
    Paul Carter, Douglas Carter, Tomkins-ville, Whayne C. Priest, Jr., Charles E. English, Bowling Green, for appellee.
   OSBORNE, Judge.

This is an action by Earl Payne Comer, appellee, against the Wabash Life Insurance Company, appellant, for breach of contract.

In 1964, and for some time previous, ap-pellee had been an agent for the American Central Life and Disability Insurance Company under an agency agreement dated February 18, 1963, which agreement designated appellee as a “general agent” The agreement also designated him as a soliciting agent for a certain territory, allowed him to deal directly with the general office of the company, to have subagents and to receive commissions on the sales of sub-agents. In addition, he was also allowed vested commissions on certain renewal premiums.

On June 30, 1964, American Central merged with Wabash Life Insurance Company, the appellant herein. Under the merger agreement appellant, Wabash, assumed all agency contracts in force at that time. Appellee, as a general agent, was never notified of this provision in the merger agreement. As soon as appellee learned of the merger, he contacted Wabash relative to an agency agreement. They assured him that he would receive such an agreement. It is his contention that upon the basis of these assurances he kept his office open from June 30 to sometime in October awaiting an agency contract and was unable to do business. During this period of time, because of his inability to transact business, he lost a trained sub-agent and suffered damages to his reputation and good will in the community. Ap-pellee’s proof is calculated to show a loss in income for this period of time and for the time that will be required for him to develop his business back to the point where it was when appellant failed to meet these duties to him under the provision in the merger agreement. Appellee also claims that appellant is indebted to him for certain vested commissions on insurance sold prior to the merger. In October, appellee signed an agreement with another insurance com-any for whom he was authorized to write policies. Later in the month, he was tendered and accepted a contract with Wabash purportedly only because this permitted him to transfer certain risks formerly covered by American Central to Wabash without requiring a waiting period. This new contract provided, “all former contracts, agreements or understandings between the parties hereto relative to business covered herein, if any, are hereby cancelled.” The foregoing issues were tried before a jury which found for appellee in the amount of $15,000. Appellant Wabash prosecutes this appeal alleging many errors in the trial.

The first error claimed is that the court should have instructed the jury that the October contract cancelled all prior existing obligations under prior contracts as a matter of law. We believe this contention is in error for several reasons. The circumstances of the agreement coming after a long period of disagreement and after appellee had given up on Wabash and signed with another company show that appellee accepted it as a drowning man accepts a straw — only because his back was to the wall and he had been placed in a position where he could not bargain or negotiate for this contract to replace the one in existence at the time of the merger. To so hold we would have to find that this contract acted as a substitution or an accord and satisfaction. Corbin says of such situations, 6 Corbin, Contracts, § 1293, p. 197, “It is a question of interpretation how far the new agreement operates as a discharge and how many antecedent claims are included and discharged * * *. If there are claims * * * for damages for breaches committed, these will be discharged by the substitution of the new ex-ecutory agreement if such an intention is sufficiently expressed.” We do not believe the facts herein demonstrate that Comer accepted the new contract as a substitute for the old and any rights he had thereunder. It did not contain the provisions that he had in the old nor that he had sought during the negotiations. The new contract did not provide for subagents nor grant the same right for vested commissions and it would have not served as an adequate basis upon which to operate an insurance agency such as had been operated under the American Central contract. We believe that it was accepted as the best way out of a difficult situation but certainly with no intention that it would be substituted for the other contract. In any event this fact was submitted to the jury under proper instructions and determined by them. We believe properly so.

The next que.stion presented is whether appellee is precluded from recovering for loss of income during the period of time required to establish a new company in his agency. Appellant contends that recovery should not be allowed because the American Central contract was subject to termination at will by either party giving the other notice and even though Wabash never gave such notice they now contend that the fact that this could have been done at any time should preclude appellee from recovering damages for future loss of earnings. We have previously held where one party breaches a contract terminable at will damages are recoverable for the period of time the other party followed the contract. M. Livingston & Co. v. Congoleum-Nairn, Inc., 244 Ky. 533, 51 S.W.2d 678. Other jurisdictions have held where the company terminates without satisfying notice requirements the agent may recover for loss of income for future loss of earning. Bankers Service Life Ins. Co. v. Ray, 340 P.2d 255 (Okl.1959); Lone Star Life Insurance Co. v. Kunath, 322 S.W.2d 673 (Tex.Civ.App.1959). We believe the result reached in these cases is proper. Agency contracts normally continue until some misunderstanding or misconduct by one of the parties causes their termination. To allow the company here to defend upon the basis of what might have been, after the agency has expended money and time in building up the business on the assumption that the contract would not be arbitrarily terminated, seems unjust to us. Because the company could terminate the contract at will does not serve as a defense to an action for its breach.

Appellant next contends that ap-pellee should not be permitted to recover for the full amount of his office expenses during that period of time while awaiting a contract from Wabash because he was an agent for another company. This contention was refuted by other facts and was properly left to the jury. They further contend that to permit recovery for the loss of a subagent would be too speculative. We believe this was a proper item for damages, Phillips v. Mid-Continent Life Ins. Co., 130 So.2d 791 (La.App.1961). Had appellant notified appellee of the provision in the merger contract relative to agents certainly he would not have suffered these losses and the mere fact that a loss is difficult to prove or may not be proven with absolute certainty will not prevent recovery for it. They further contend that it was error to introduce evidence as to Comer’s costs in training a subagent. They did not object at the time, and the instructions to the jury did not allow this as an item of damages. We do not think this improper.

Appellant next contends that the loss of future income item was too speculative. They argue that Wabash was a new company and therefore Comer would not have been in any better position writing for them than he was with the company that he did select. However, there was testimony that Wabash had done business in the area for many years and enjoyed a good reputation therein and could have served as well for appellee as American Central. Especially would this be true after the merger. We believe this question was properly left for the jury to decide along with the contention that Comer could have done business with the group department. We find no merit with the contention that certain records concerning commissions earned while with American Central should not have been admitted. Since the merger, these records are now records of Wabash and as such properly a part of the evidence in this case. In any event they were only cumulative of other testimony.

Appellant next contends that the evidence of loss of good will and established reputation was not adequate to sustain an award of damages. We believe these are compensable items and we further believe that the evidence was sufficient to sustain them. However, in this connection it should be pointed out that the jury verdict was a general one and for considerable less than the amount claimed by appellee, therefore, it is impossible for us to determine exactly which damage items were included and which were excluded. Appellant made no motion in the trial court that the damages be separated.

Finally, Wabash argues that the court improperly instructed the jury that it could find unpaid commissions due Comer under American Central policies in the sum of $416.60. They claim the maximum shortage should be $130.49. This is simply an evidence question. Comer testified to an amount of $416.60 and Wabash’s witness to $130.49. Wabash argues that the contract makes their records final. However, they did not introduce their records and in lieu of such it was simply a question for the jury.

The judgment is affirmed.

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


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mrs. Allle B. SEARCY et al., Appellees.
    Court of Appeals of Kentucky.
    March 29, 1968.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Dept, of Highways, Frankfort, George F. Williamson, Clark, Manby & Williamson, LaGrange, for appellant.
    John Berry, Jr., Berry & Floyd, New Castle, for appellees.
   DAVIS, Commissioner.

In this condemnation suit, the jury’s verdict fixed the before value of appellees’ farm at $30,000 and the after value at $14,000, resulting in a verdict of $16,000. The Department of Highways appeals from the judgment entered on that verdict, asserting that the verdict is palpably excessive and not supported by evidence of sufficient probative value.

The land in question is comprised of a farm which contained one hundred acres before the taking, fronting on Dividing Ridge Road about ten miles from Carroll-ton. The right-of-way requirements for Interstate Highway 71 included a fee taking of a strip containing 15i4 acres plus a permanent easement of ½ acre for drainage purposes. After the taking there remains a tract of 26.2 acres, fronting on Dividing Ridge Road upon which are located the house, a barn, and some outbuildings. The taking effects a landlocking of a tract of 54.4 acres, to which no access is available. Within the land taken was a never-failing spring and a cistern and lake.

Witnesses for the Department expressed opinions of before value ranging from $19,000 to $20,000 and after value from $12,300 to $12,840, with resulting differences of $6,700 and $7,160. Three appraisal witnesses for appellees gave opinions of before value ranging from $38,000 to $40,000 with after value ranging from $12,000 to $14,000. Two of these witnesses expressed opinions that the difference in before and after value was $26,000, and one estimated $28,000 as the difference.

Since the jury found the after value as $14,000, it is apparent that the only point of departure in the appraisements made by the various witnesses is in their before values.

The Department relies heavily upon testimony concerning sales of nearby farms, with particular emphasis being placed on two sales of portions of the Albert Davis estate, adjoining the subject property. One of the Davis tracts which contained 17½ acres sold for $190 per acre; another, containing 132 acres, brought about $170 per acre. Both of these tracts were sold within a month of the date of taking in the present case. It is to be observed that the jury’s verdict ascribed before value to the Searcy farm of $300 per acre. The Department strongly urges that the sales of land adjoining the Searcy tract for substantially less per acre conclusively demonstrate the palpable excessiveness of the jury’s verdict.

The appellees counter this argument by pointing to evidence presented in their behalf tending to reflect a substantially higher value of the Searcy land over the Davis land. The witnesses for the appellees acknowledged the verity of the Davis sales, but insisted that by reason of topography, character of maintenance, and situation of drainage and water supply, the Searcy land was substantially more valuable than the Davis land. The witnesses for appellees evinced qualifications by reason of experience and observation enabling them to testify competently about the values at issue. Their explanations of the distinctions between the values of other lands and the Searcy land were reasonable and sufficient in probative value to support the jury’s verdict. In this state of case, we will not disturb the verdict even though it appears to be liberal. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472.

The judgment is affirmed.

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


author: CLAY, Commissioner. STEINFELD, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF CORRECTIONS, Appellant, v. Francis D. BURKE, Attorney for Walter Hammershoy, Appellee.
    Court of Appeals of Kentucky.
    March 29, 1968.

      Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellant.
    Francis D. Burke, Joseph W. Justice, Burke & Justice, Pikeville, for appellee.
   CLAY, Commissioner.

This is an appeal from a judgment allowing an attorney’s fee of $1500 to appellee for representing an indigent criminal defendant, to be paid by the Commissioner of Corrections out of an appropriation made by the 1966 General Assembly. The Department of Corrections acknowledges the reasonableness of the allowance and recognizes the fairness of an attorney’s claim for such representation. However, appellant contends there is no statutory or other authority for the allowance of attorneys’ fees in such cases.

We are cognizant of the increasing demand made upon the members of the legal profession to furnish constitutionally guaranteed counsel services to indigent persons charged with crimes. It is contended by appellee that since society is required to furnish these services, society should assume the responsibility of paying adequate compensation for them. We cannot refute this proposition. It is only fair and just. The difficulty is that there exists at the present time no authorized procedure for paying such claims nor a fund out of which they may be paid.

In 1966 the legislature in its budget appropriated $100,000 for “Public Defenders”. This appropriation appears as follows in H.B. 1:

“C. Public Defenders
1966-1967 $50,000
1967-1968 $50,000”

This bare appropriation obviously does not create a fund from which compensation properly could be paid to appointed lawyers representing indigent defendants. While such lawyers may in a realistic sense be “Public Defenders”, the term is generally understood to mean persons holding a governmental office with specified legal duties to perform. In any event, the purpose of this appropriation and the contemplated utilization of the fund cannot be known. It may be that the legislature intended this money be used to set up some sort of “public defender” system or to further research in connection therewith. But in the absence of some law so directing, there is simply nothing to guide us with respect to the manner in which this appropriation could be properly expended. Certainly the legislature has not authorized its disbursement for the purpose herein sought.

Appellee insists this vital matter of compensation involves the “administration of justice” and urges us to devise some system for the allowance of reasonable attorneys’ fees as necessary costs of administering the criminal laws of this Commonwealth. A present insurmountable obstacle is that no system we could devise would be workable since the judiciary has no funds available for this purpose. Although appellee argues to the contrary, we believe this subject is, and should be, a legislative matter. Only the legislature can provide sufficient funds to finance such a project, and of course the legislature must necessarily create the system under which these funds could be properly disbursed.

This very serious problem has been before us recently in Warner v. Commonwealth, Ky., 400 S.W.2d 209, and Jones v. Commonwealth, Ky., 411 S.W.2d 37. In both cases we expressed our intention to defer to legislative action. It is almost a matter of necessity that we do so.

We recognize the merit in appellee’s position and that of many other attorneys who are performing an absolutely essential and valuable public service. They are being compelled to perform work for the government without compensation. We cannot refrain from expressing the wish that other departments of government recognize this grave problem and take appropriate steps, as has been done in other states, to rectify the situation.

We acknowledge the laudable motives which impelled the circuit court to make this allowance to appellee, but such court lacked authority to require its payment by the Commissioner of Corrections from the appropriation above discussed.

The judgment is reversed.

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

SEPARATE OPINION OF THE COURT

STEINFELD, Judge.

I concur in so much of the opinion of the court which holds that the judgment against the Commonwealth of Kentucky, Department of Corrections should be reversed. See discussion this subject 7 Am. Jur.2d 167, Attorneys at Law, § 207. However, I respectfully disagree with that part of the opinion which holds that fixing the amount of compensation for the attorney was improper.

In Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 301 Ky. 405, 192 S.W.2d 185 (1946) is found the following statement:

“As said in 14 Am.Jur., Courts, § 22:
‘The power to appoint necessary attendants upon the court is inherent in the court in order to enable it to perform properly the duties delegated to it by the Constitution, and it cannot be doubted that judicial power includes the authority to select persons whose services may be required in judicial proceedings or who may be required to act as the assistants of the judges in the performance of their judicial functions, whether they are referees, receivers, attorneys, masters, commissioners, or judges and clerks of elections.’ ”

The law is now clear that all accused of crime are entitled to effective representation by counsel at all critical stages of the litigation. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R. 2d 733 (1963); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3rd 974 (1966) and Smith v. Commonwealth, Ky., 412 S.W.2d 256 (1967).

I deem it proper for the trial court in cases such as the one we have before us to determine the amount which that court considers reasonable compensation. “The trial court, where the services were performed in that court, has a large measure of discretion in fixing the reasonable value of legal services.” 7 Am.Jur.2d 183, Attorneys at Law, § 235. Roederer v. Schmitt, 258 Ky. 398, 80 S.W.2d 35 (1935) ; Dorman v. Baumlisberger, 271 Ky. 806, 113 S.W.2d 432 (1938). The judgment should not be reversed insofar as it fixes the amount of the attorneys fee. Attempts to collect from other sources are not now before us. I would affirm in part and reverse in part.

MONTGOMERY, J., concurs in this opinion.


author:
EDWARD P. HILL, Judge.
      OSBORNE, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Woodrow MORGAN et al., Appellees.
    Court of Appeals of Kentucky.
    March 29, 1968.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, John A Diskin, Newport, for appellant.
    Frank S. Connely, Warsaw, Joseph J. Leary, Frankfort, Ottis Lanter, Williams-town, for appellees.
   EDWARD P. HILL, Judge.

This is an appeal from a judgment awarding appellees $21,000 for 20.38 acres taken for use as right-of-way for Interstate 71. A permanent easement of .34 acre was also taken for construction purposes.

This appeal is based upon two arguments: (1) That the jury’s award is excessive and not supported by evidence of probative value; and (2) that the trial court erred in permitting appellees to introduce evidence of income from tobacco- crops, in permitting references to “profit” and in permitting conjectural, hearsay testimony.

The parties stipulated that the tract before the taking contained 90 acres; that 20.38 acres were taken within the right-of-way limits; that a .34-acre permanent easement was taken; that the highway severed the original tract into two tracts, one to the north of the highway containing 44.17 acres and which is landlocked, and one to the south containing 25.11 acres which has substantially all the farm’s improvements. The only improvements taken were a “fairly large pond and a small duck pond.” Eighteen hundred feet of frontage on Highway 16 were taken.

The commissioners appointed by the Gal-latin County Court awarded appellees $19,863. On appeal to the circuit court the jury awarded appellees $21,000.

The Commonwealth first contends that the jury’s verdict is excessive at first blush and is not supported by probative evidence.

The valuation testimony was:

FOR APPELLANT
Before After Difference
$31,500 $18,000 $13,500
30,600 19,500 11,100
33,000 21,500 11,500
FOR APPELLEES
Before After Difference
$47,500 $22,000 $25,500
44,000 20,000 24,000
45,000 20,000 25,000
The jury’s verdict was:
Before value $39,000
After value 18,000
Damage 21,000.

These figures show that there is no dispute about the after value of the property. The issue is the value of the property before the taking and whether the jury’s finding that the before value of the property was $39,000 is supported by ample evidence.

Each side produced three valuation witnesses. Each of these witnesses was experienced in the appraisal of farmland and relied upon comparable sales in the vicinity of the property in question. The difference between appellant’s witnesses and appellees’ witnesses is in what sales they considered to be comparable.

Appellees’ witnesses relied upon one farm which had recently been sold twice; each time for about $550 per acre. Appellant contends that these sales were not comparable because they involved a farm of only 38 acres, while the subject property is 90 acres. This same argument was made in Commonwealth, Department of Highways v. Burton, Ky., 398 S.W.2d 689 (1966), where this court stated:

“We cannot say, as a matter of law, that the size of the tract is absolutely determinative. This, we believe, was a matter for the jury. * * * The amount of the verdict was well within the testimony, and we cannot say the amount thereof strikes the mind at first blush as having been arrived at by passion, prejudice, or partiality.”

In the case at bar, the jury had the opportunity to decide for itself whether the sales were comparable; and its verdict was well within the testimony. There was no error here.

A verdict, similar in amount to the case at bar, was upheld in Commonwealth, Department of Highways v. Hunt, Ky., 414 S.W.2d 897 (1967). There a farm was divided into two parts, leaving 41 unimproved acres on one side of the road and 103 acres with all the improvements on the other side. An award of $22,500 for the diminution in value resulting from taking 20 acres was held not to be excessive. The evidence being in conflict and the verdict having convincing evidence for its support, we cannot say at first blush that the amount is excessive.

Appellant’s second argument is that the trial court erred when it permitted appellees to introduce evidence of income from tobacco crops. The testimony in question arose in this manner:

“Q. Mr. Morgan, I take it that you could raise the 1.66. acres (of tobacco) and I am quite certain it is less than that now, on the 25.11 acres available to you?
“A. Well, I had a kind of hard time this year finding room enough for it. They went right square through where I have been growing it for years. This particular spot of ground where I was growing it last year alone give $3,200.” (Our emphasis.)

Appellant cites Commonwealth Department of Highways v. Prater, Ky., 384 S.W.2d 306 (1964), where this court said “the reference to the value of tobacco land productivity was erroneous.” In Prater, however, it was held not to be prejudicial because it was not the only relevant factor the witness used in making his valuation.

When Morgan said “This particular spot of ground where I was growing it (the tobacco) last year alone give $3,200,” he was only referring to the productivity or the quality of that particular part of the land condemned. His tobacco allotment could be raised on land not taken, which he implied was not as productive. But he did not say how much less tobacco, if any, he would raise on the new spot; so, his reference to the amount produced really amounts to nothing. We condemn any effort to place a price tag on any part of the land taken or what it would produce in dollars and cents. However, considered in context we do not think any prejudicial effects occurred from the introduction of the evidence in question.

Appellant also alleges error by the trial court when it admitted appellees’ testimony that he was told by several horse experts that the barn was too close to the new highway for raising Tennessee walking horses. While this has the tone of hearsay, it really was a revelation of a well-known and well-recognized fact that horses, unlike some people, do better under quiet and peaceful circumstances away from the noise and bustle of a super highway. He did not relate horse breeding to values or place a price tag thereon.

The judgment is affirmed.

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

OSBORNE and MONTGOMERY, JJ., dissent.

OSBORNE, Judge

(dissenting).

In Kentucky Water Service Company v. Bird, Ky., 239 S.W.2d 66, we held that it was proper in ascertaining the fair market value of land to consider its gross production in terms of income. In Commonwealth, Department of Highways v. Prater, Ky., 384 S.W.2d 306 (1964), and Commonwealth, Department of Highways v. Eubank, Ky., 369 S.W.2d 15, we condemn the land owner’s evidence of productivity and conclude that it was error to admit testimony concerning income from the sale of farm products overruling Kentucky Water Service Company v. Bird, supra. Now the majority of the court in this opinion holds that the introduction of such evidence is not prejudicial. I would like to agree with the majority if and when they decide what their position is, but I find myself unable to hold one way one week and another the next.

Therefore, I dissent.

MONTGOMERY, J., joins in this dissent.


author: STEINFELD, Judge.

text:
    KENTUCKY-VIRGINIA STONE COMPANY, Inc., Appellant, v. Verna Jo BALL, Individually, and as Co-Executrix of the Estate of Floyd Ball, Deceased, Appellee.
    Court of Appeals of Kentucky.
    March 29, 1968.
    Watson & Watson, Middlesboro, for appellant.
    A. E. Funk, Jr., Middlesboro, for ap-pellee.
   STEINFELD, Judge.

On May 31, 1947, Floyd Ball, now deceased, executed and delivered to Kentucky-Virginia Stone Company, Inc., his promissory note in the amount of $5,955.34 which amount he agreed to repay in monthly installments of $500.00 each, bearing interest at the rate of 5% per annum with the balance being due and payable 360 days after the date of the note. No payments were ever made and the note was not negotiated. Floyd Ball died testate on May 25, 1956, and on June 4, 1956, the co-executrixes of his estate were appointed. On August 15, 1956, the stone company filed a claim with those co-executrixes setting up the note and the fact that no payments had been made. Neither of the co-executrixes made payment on the note, or any promise or representation that the note would be paid.

On February 8, 1966, one of the co-executrixes filed a suit which she considered necessary in connection with the settlement of the estate and in order to obtain authority to sell the remaining real and personal property. She named the stone company as one of the many defendants. Among other things, she alleged that it had filed the claim and she demanded that the estate be settled; that the real estate he sold; “that all claims found by this court to be legal against the Estate of Floyd Ball be paid; and that the balance of the Estate be distributed * * The stone company answered that the note had been executed and delivered; that it was still unpaid and they further alleged that Floyd Ball “ * * * acknowledged that this note was a valid and subsisting obligation of his. Not only did he acknowledge without qualification that the obligation was a just one owing by him he unequivocally promised to pay it.” They also charged that such promises were made on numerous occasions and within about six months of the date of death of Floyd Ball.

The stone company filed a motion for a summary judgment to which the appellee filed a response which charged “that under the provisions of KRS 413.090 and KRS 413.180(3) the defendant’s claim was barred by the fifteen year statute of limitations and * * * as the defendant has produced no evidence and admitted that none is available to toll the running of the statute of limitations.” The response demanded that the stone company’s motion for summary judgment be denied and that the co-executrixes “be given a judgment holding that this defendant’s claim is barred by the statute of limitations.” The court made “findings of fact” among which were:

“5. On September 17, 1966, this Court' entered an order giving the claimant, Kentucky-Virginia Stone Company, until October 15, 1966, to submit proof, if any, that would toll the running of the statute of limitations. No proof was taken but by affidavit in support of the motion for summary judgment filed by Kentucky-Virginia Stone Company it was admitted that John B. Lewis, who was the principal participant in the affairs between Kentucky-Virginia Stone Company and Floyd Ball, is dead, and that the only other person involved in that transaction is W. B. Paynter, who is in bad health and has no recollection of the business dealings with Floyd Ball.”

The court held in its conclusions of law:

“1. The mere filing of a claim against the estate of a decedent does not toll the State, of Limitations.
2. The claim of Kentucky-Virginia Stone Company, being based upon a promissory note dated May 31, 1947, which became barred by the Statute of Limitations on May 31, 1963.
KRS 413.090.
KRS 413.180(3).”

Judgment was entered dismissing the claim of the stone company from which it now appeals.

KRS 413.090(2) (formerly Kentucky Statute 2514) limits the filing of an action upon a written contract to 15 years. See Radford’s Adm’r v. Harris, 144 Ky. 809, 139 S.W. 963 (1911). That statute lists certain specific exceptions, but none has application to the issues before us. KRS 413.180 (formerly Kentucky Statute 2528) provides that “If a person against whom any action mentioned in KRS 413.090 to 413.160 may be brought dies before the expiration of the time limited for its commencement and the cause of action survives, an action may be commenced against his personal representative, devisee, or heirs, or all, after the expiration of that time, and within one year after the qualification of his personal representative. If there is no personal representative, the action may be brought against his heirs or devisees, or both, after the expiration of the time limited for bringing it, and within two years after his death.” See Witherspoon v. Salm, Ky., 346 S.W.2d 48 (1961).

These statutes were discussed in Johnson v. Equitable Life Assurance Society, 137 Ky. 437, 125 S.W. 1074 (1910) and Johnson’s Adm’r v. Hogg, 165 Ky. 1, 176 S.W. 350 (1915). Hogg was a suit brought against Johnson’s administrator upon a note more than fifteen years after the last payment had been made. The administrator was appointed and qualified more than one year before the suit was started and more than one year before the fifteen year statute of limitation had run. In the case now before us the suit was brought more than fifteen years after the last payment was due on the Ball note, and more than one year after Ball’s co-executrixes were appointed. Hogg held that the suit was barred by the statute of limitations. Because of the many years that have passed since this issue has been presented to this court we deem it appropriate to repeat part of what was said in Hogg.

“We had before us in Johnson v. Equitable Life Assurance Society, 137 Ky. 437, 125 S.W. 1074, a question precisely like the one here involved, except that in that case the limitation of 5 years provided in section 2515 of the Kentucky Statutes was relied on, while here the limitation of 15 years provided in section 2514 is relied on. This difference, however, is entirely immaterial, as the principle announced in the Johnson Case is equally as applicable to section 2514 as to section 2515. In that case it was distinctly held that, where the debtor dies more than one year before the time limited for the commencement of the action, and an administrator is appointed more than one year before the time limited for the commencement of the action, the time in which the action may be brought is limited to the time prescribed in section 2515 or 2514, whichever may be applicable, and that the 6 months’ impediment to the bringing of a suit provided in section 3847 did not prevent the statute from running during that 6 months. In the course of the opinion the court further said that section 2528, reading in part, Tf a person against whom any action mentioned in the third article of this chapter may be brought, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his personal representative, devisee, or heirs, or all, after the expiration of that time, and within one year after the qualification of his personal representative,’ applied only ‘to that class of cases where the debtor died and the administrator was appointed one year or less before the expiration of the time limit within which suit might be brought’ the court further said:
‘Considering sections 2515, 2528, and 3847 together, we conclude that in all causes of action falling under section 2515, where the right of action accrues during the life of the debtor, and the debtor dies, and an administrator is appointed for his estate more than one year before the expiration of the time limit within which an action might be brought, section 2528 has no application, and does not stop the running of the statute during the first six months after the administrator is appointed, for the evident reason that, as the creditor still has at least six months in which to sue before the expiration of the time limit, the necessity for the passage of any remedial statute or enabling act was wanting. On the other hand, if the debtor dies, and administration is granted on his estate less than one year before the expiration of the time limit within which the suit must be brought, section 2528 applies, provided the suit is commenced within one year after administration is granted.’ ”

Appellant argues that the filing of a claim with the co-executrixes amounts to the institution of an action so as to suspend the running of the statute of limitation against the claimant. We are referred to 24 C.J., Executors and Administrators, section 1078 and 34 C.J.S. Executors and Administrators § 421 p. 210 and the cases appearing in the notes thereto. In 34 C.J.S. Executors and Administrators, § 421 p. 210, appears the statement “Proof of a claim while the estate is in the hands of an administrator will operate to suspend the running of the statute of limitation against the claim.” The statement is supported by In re Garnett’s Estate, 126 Cal.App. 334, 14 P.2d 572 (1932); Home Insurance Company of New York v. Wickham, Mo.App., 196 S.W. 385 (1917) and Pennington’s Estate, Pa., 54 York Leg.Rec. 166. Those cases and the others which appellant cites in support of this argument are based on the interpretation of statutes of those jurisdictions or the procedure followed in those states.

We are unable to find, and the parties have not referred us to any provision in our law that the filing of a claim with a personal representative tolls the running of the statute. We consider that act as notice to the personal representative. KRS 396.010; 34 C.J.S. Executors and Administrators § 421, p. 210. It is not the institution of an action. KRS 396.020. An “ ‘action’ includes all proceedings in any court of this state.” KRS 446.010(1). However, the statute of limitations with which we are confronted contemplates a civil suit for the collection of the debt. In the chapter dealing with limitation of actions found in the Kentucky Statute, and as KRS 413.250 it is said:

“An action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action.”

In CR 3 it is provided that:

“A civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.”

A comment made in 6 Kentucky Practice, Clay 14 with respect to CR 3 reads: “* * * an action should be deemed commenced or brought within the meaning of the statute of limitations when a complaint is filed”.

We are cognizant of KRS 395.270 which says that “five months must run after the date of the qualification of the first personal representative of a decedent’s estate before an action shall be commenced against any executor or administrator thereof except against an executor de son tort. Any action brought in violation of this section shall be dismissed with costs.” To take care of the situation that limitation might run during that period it was provided that an action could be brought within one year of the appointment of the personal representative. KRS 413.180(3). The action now before us was filed almost ten years after the co-executrixes were appointed, and almost eighteen years after the date on which the last payment fell due under the note. It was barred by limitations.

The judgment is affirmed.

All concur.

      . No claim is made that this renewed the debt or extended the Statute of Limitations.

      . In Tapp v. Reynolds, Ky., 383 S.W.2d 334 (1964) we held that filing a claim with the administrator was not a prerequisite to bringing an equitable action on the claim.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Claude NOE et al., Appellees.
    Court of Appeals of Kentucky.
    March 29, 1968.
    Robert Matthews, Atty. Gen., Frankfort, H. C. Smith, Asst. Atty. Gen., Frankfort, Eugene H. Clark, Dist. Atty., Robert E. Cato, Dept, of Highways, Manchester, for appellant.
    Joseph K. Beasley, Harlan, for appellees.
   STEINFELD, Judge.

Appellees, Claude Noe, and Margaret Noe, his wife, were the owners of a tract of land which contained 2.04 acres located about 6½ miles north of Harlan in Harlan County, Kentucky. The property fronted on old U. S. Highway 119 for approximately 360 feet and had an average depth of 250 feet. It was fairly level and generally four feet below the grade of the road. The improvements consisted of five residences, several out buildings and a one story frame building 24x47 feet which housed a grocery. In front of the grocery store were two gas pumps.

For the relocation of U. S. Highway 119 the Commonwealth of Kentucky, through the Department of Highways, condemned approximately 0.16 acre of the northwest corner of the Noe tract. On the part taken was the grocery store building and an outside toilet. A temporary easement to expire at the end of the construction period and covering approximately 1,400 square feet also was taken. The relocation of the highway caused the old road to dead end a short distance from the Noe property. To reach the new highway required a journey of approximately one quarter mile although there was little change in access to the old road.

The commissioners appointed in the county court reported that the owners were entitled to $6,500.00. Judgment was entered accordingly from which both parties appealed. In the circuit court the jury was instructed according to the law announced in Com., Dept, of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963) and found that the value of the entire tract before the taking was $40,000.00; that the value of the remainder after the taking was $32,000.00 and that the owner was entitled to $8,000.00 including the value, if any, of the temporary easement.

Judgment pursuant to that verdict was entered from which the Commonwealth appealed. We affirm.

The parties and witnesses testified to values as follows:

"FOR APPELLANT
Difference Witness Before After
Tom Turner Arthur Green $40,900 39,800 $36,300 36,000 o o o o VO 00 co 60*
FOR APPELLEES
Claude Noe $43,000- $23,000- $20,000 45,000 25,000
Charlie Saylor 38,000 - 20,000 - 18,000 40,000 22,000
John Keller 45,000 22,500 22,500
Mr. Browning 40,000- 20,000 20,000-45,000 25,000
Mary Elizabeth Saylor 38,000- 22,000- 16,000-40,000 25,000 15,000
Mr. Manning None Given
JURY VERDICT $40,000 $32,000 $ 8,000”

To obtain a reversal, among other contentions urged in this appeal, the Commonwealth says that the court erred in overruling its motion to strike the testimony of several witnesses when that testimony was based upon a number of improper factors. It insists that in fixing after taking values the landowners’ witnesses relied on loss of access, circuity of travel, loss of business, inconvenience, relocating and dead ending of the old road. To support this argument we are referred to City of Louisville v. Kerr, Ky., 403 S.W.2d 30 (1966); Com., Dept, of Highways v. Jackson, Ky., 302 S.W.2d 373 (1957); Com., Dept. of Highways v. Raybourne, Ky., 364 S.W.2d 814 (1963); Com., Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851 (1963); Com., Dept. of Highways v. Herndon, Ky., 378 S.W.2d 620 (1964); Com., Dept. of Highways v. Fancher, Ky., 390 S.W.2d 164 (1965) and Com., Dept. of Highways v. Gardner, Ky., 413 S.W.2d 80 (1967).

The Commonwealth objected to the testimony which it considered improper and moved “the court to strike the evidence of each witness, or in the alternative to require him to reevaluate his estimates of value, and remove the improper factors * * This is the appropriate procedure. Com., Dept, of Highways v. Shaw, Ky., 390 S.W. 2d 161 (1965); Com., Dept, of Highways v. Cammack, Ky., 408 S.W.2d 615 (1966); Com., Dept, of Highways v. Woolum, Ky., 415 S.W.2d 83 (1967) and Com., Dept, of Highways v. Rosenblatt, Ky., 416 S.W.2d 754 (1967). The court overruled each objection.

Of course complete loss of access is a compensable factor. Com., Dept. of Highways v. Denny, Ky., 385 S.W.2d 776 (1964); Com., Dept. of Highways v. Dotson, Ky., 405 S.W.2d 30 (1966) and Com., Dept. of Highways v. Claypool, Ky., 405 S.W.2d 674 (1966). The plans for the highway showed clearly that access to the old road was not lost and reasonable access to the new highway was provided.

Circuity of travel may not be considered in the type of case we have before us. Com., Dept. of Highways v. Rosenblatt, Ky., 416 S.W.2d 754 (1967).

There was no testimony concerning loss of business. The witness considered the loss of the business location as it affected the remainder of the land. The inconvenience referred to was that which will be encountered by tenants and the effect it will have on the rentability of the residences.

Discussing these factors is unnecessary, for whether they were improper or not the jury verdict which was so modest, compared to the differences in values expressed by appellees’ witnesses, convinces us that the jury discounted the improper factors, therefore, the Commonwealth was not prejudiced. Com., Dept, of Highways v. Heath, Ky., 354 S.W.2d 752 (1962) and Com., Dept. of Highways v. Wilder, Ky., 412 S.W.2d 255 (1967).

The other contention is that the verdict was excessive. We do not find it so.

The judgment is affirmed.

All concur.


author: OSBORNE, Judge. MONTGOMERY, Judge

text:
    COMMONWEALTH of Kentucky ex rel. Robert MATTHEWS, Attorney General of Kentucky, Appellant, v. Dacker COMBS, Appellee.
    Court of Appeals of Kentucky.
    March 29, 1968.

      Fred B. Redwine, Sanders & Redwine, Pikeville, for appellant.
    Hoover, Haynes, Craft & Haynes, Hazard, for appellee.
   OSBORNE, Judge.

This is an action brought pursuant to KRS 415.030 upon the authority of Robert Matthews, Attorney General, to oust Dacker Combs from his office as a member of the Perry County Board of Education for an alleged violation of KRS 160.180(4). It is alleged that he voted to employ a first cousin as a school bus driver. After the appellant had presented his proof, Combs moved to dismiss on the grounds that appellant failed to prove his case. The trial court dismissed the action. Appellant claims this was erroneous.

The facts can be briefly stated. The minutes of the December meeting of the Perry County School Board show that a motion was made to employ several bus drivers, including Combs’ first cousin, Fernando Roark, Jr. Combs seconded this motion. The minutes as originally prepared by the Secretary of the Board, Dennis Wooton, who was also school superintendent, show that all voted yes. However, testimony reveals that when the minutes were read at the January meeting there was some discussion about this, with Combs saying that he did not vote for his cousin. At that time Wooton added in pencil “except Dacker Combs who voted no.” No motion to change the record was formally made at that time, or at least no motion appears in the January minutes. After the meeting Wooton erased his penciled addition. At the February meeting this came to Combs’ attention and he examined the December minutes himself. At that time he made a motion to “amend or correct” the minutes to show he voted no. This motion passed and was recorded in the February minutes.

Combs testified that he “passed” when the Vote on his cousin came up. Wooton testified that his memory was that Combs voted yes. However, his testimony was rather equivocal.

Several questions are raised on this appeal. The first is who has the burden of proof. The trial court held that the burden rested on the plaintiff-appellant. The appellant objected, but proceeded to present his evidence anyway. Appellant now alleges that it was error to place the burden of proof on him. Ouster proceedings brought on authority from the Attorney General differ from ordinary actions in that the burden is on the defendant to show by what authority he holds the office. Commonwealth ex rel. Meredith v. Bogie, 287 Ky. 103, 152 S.W.2d 286; McClendon v. Hamilton, 277 Ky. 734, 127 S.W.2d 605, and Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122. This undoubtedly means that the defendant must show that he was duly elected, and in the area of educational qualifications it has been interpreted to mean that he must show that he meets the minimum standards required by the statute. Commonwealth ex rel. Buckman v. Preece, Ky., 257 S.W.2d 51; Commonwealth by Funk, Attorney General v. Clark, 311 Ky. 710, 225 S.W.2d 118; Chadwell v. Commonwealth by Meredith, 288 Ky. 644, 157 S.W.2d 280; Commonwealth ex rel. Meredith v. Bogie, supra. However, where the challenge is based on alleged misconduct by the officeholder, the burden is on the plaintiff to show that such misconduct occurred. Richardson v. Commonwealth by Meredith, Attorney General, 275 Ky. 486, 122 S.W.2d 156. In this action the appellant alleged in its complaint that Combs had been duly elected and sworn in. Under these circumstances there was no issue as to the authority by which Combs held the office and the burden was on the plaintiff to show the claimed misconduct.

Appellant’s next contention is that the minutes could not be amended and, therefore, the record conclusively shows that Combs voted for his cousin. It is clear that a municipal board can amend the minutes of a meeting to reflect what actually happened. 5 McQuillin, Municipal Corporations, § 14.10, pp. 30-34; Ward v. Lester, 235 Ky. 595, 31 S.W.2d 924; Janutola & Comadori Construction Co. v. Taulbee, 229 Ky. 213, 16 S.W.2d 1026. The fact that one member of the board was new, and Combs was on a new term is irrelevant since a majority of those who were on the board in December voted to make the correction. To hold otherwise would mean that any errors in the minutes of the last meeting before the expiration of the term of any member could never be corrected, and under the rule that a board speaks only through its records, (Lewis v. Board of Education of Johnson County, Ky., 348 S.W.2d 921), an error could never be changed. Such result would be untenable, especially where as here the board heard the minutes for the first time at the next meeting.

Appellant’s third contention is that Combs should be ousted for seconding the motion to hire the various bus drivers, including his cousin. The statute forbids voting, not seconding a motion.

Appellant’s final contention is that the judge’s finding of fact was clearly erroneous. A reading of the record does not lead to that result at all, especially since the amended minutes show that Combs did not vote to employ his cousin. The only evidence that he did is an equivocable statement by the prosecuting witness that he did, and this is clearly refuted by Combs’ testimony as well as by the record.

The judgment is affirmed.

MONTGOMERY, Judge

(dissenting).

I respectfully dissent because I do not feel that the law should be circumvented by the obvious device used here. The purpose of KRS 160.180(4) is to prevent the nepotism which was practiced here. Hall v. Boyd County Board of Education, 265 Ky. 500, 97 S.W.2d 38. The salutary purpose of the statute is discussed in Letcher v. Commonwealth ex rel. Matthews, Ky., 414 S.W.2d 402, and the cases cited therein. In Letcher and in its companion case, Commonwealth ex rel. Matthews v. Coatney, Ky., 396 S.W. 2d 72, three county school board members were ousted for violations of the statute. The conflict of interests presented by violations of the statute strikes at the heart of our educational system. The statute should be strictly enforced.

The key to what was going on in the present case is shown by the minutes of the December meeting at which Dacker Combs seconded the motion to employ his first cousin. Before the minutes of the December meeting were changed by the amendment made at the February meeting, the minutes showed that Combs seconded the motion to employ his cousin and voted in favor of the motion. No correction of this minute was made at the January meeting although there is an attempt to show otherwise. As I understand the record, the December minutes still show that Combs seconded the motion to employ his cousin.

It is realized that an occasion may arise which necessitates a correction in a school board’s minutes, but the record in this case shows plainly that Dacker Combs violated KRS 160.180(4) and that the maneuvers at the January and February meetings were an effort to extricate him from his predicament and to avoid his ouster. The majority opinion places an approval on conduct that will not bear close scrutiny. I feel that Dacker Combs violated the statute and should be ousted.


author: MILLIKEN, Judge.

text:
    RICKY COAL COMPANY, Appellant, v. Willis ADAMS, Special Fund and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    March 29, 1968.
    Richard D. Cooper, Hazard, for appellant.
    F. Byrd Hogg, John Cornett, Whitesburg, Thomas R. Emerson, Dept, of Labor, J. Keller Whitaker, Workmen’s Compensation Bd., Frankfort, for appellees.
   MILLIKEN, Judge.

The sole issue on this appeal is whether part of the award by the Workmen’s Compensation Board should be apportioned to the Special Fund.

This is an appeal by Ricky Coal Company from the judgment of the Letcher Circuit Court, which affirmed an award of the Workmen’s Compensation Board that the appellee, Willis Adams, is totally disabled as the result of a traumatic injury sustained on January 3, 1966, the duration of which cannot now be determined. Ricky asks that the award to Adams be apportioned in part to the Special Fund which had been made a respondent before the Board.

Adams’ January 3, 1966, injury occurred when he came in contact with a header on a coal buggy. He was struck across his lower back in the accident and subsequently hospitalized at the Harlan Appalachian Regional Hospital, Harlan, where he received treatment. He complained then, as now, of pain in the lower back and numbness from the waist down.

Prior to the January 3, 1966, injury Adams had sustained five separate injuries from working in the mines for four different employers. Each injury was reported to the Workmen’s Compensation Board by the respective employer and compensation was probably awarded in each instance although the 'record does not say so.

In connection with his most recent injury, Adams was examined by six doctors: three orthopedic surgeons, a neurosurgeon and two psychiatrists. The first orthopedic specialist who treated Adams, Dr. Loyall K. Wilson of Harlan, made a myelogram which he interpreted as revealing a small, centrally located, herniated nucleus pulposis at the level of L 4 — 5 and edema of the nerve root on the left side. While this condition might have existed then, it apparently subsided soon thereafter because no one else who examined Adams in connection with his present injury was able to find anything physically wrong with him or any physical causation for the pain he claimed was there. Dr. Wilson admitted that sometimes a herniated disc goes into remission or subsides and apparently that is what happened here because Dr. Vinke, Dr. Thompson and Dr. Augelucci found nothing. However, the symptoms of disc injury remained and the doctors concluded that the cause was psychogenic rather than organic. All of them recommended a psychiatric examination for Adams.

The two psychiatrists who examined him were Dr. Carl Wiesel of Lexington and Dr. Frederich Ehrman of Louisville. Both concluded that Adams suffered from conversion hysteria and that it was a dormant disabling condition brought alive by the traumatic injury of January 3, 1966. Dr. Ehr-man leaned towards the position that Adams’ problem was part of his personality makeup and he was reluctant to term the condition a disease. However, as mentioned before he did leave the impression that Adams’ condition was pre-existing and disease-like if not actually so.

Dr. Ehrman merely observed Adams and conducted no physical examination or tests on him. Dr. Wiesel, however, ran experiments on Adams and was able to relieve his pain temporarily with injections of sterile water. Dr. Wiesel concluded that Adams was suffering from conversion hysteria which he explained was an accumulation of nervous symptoms that develop following a trauma of some sort, either physical or emotional, and which reveal themselves in complaints of physical disability. He testified that Adams was disabled because of his psychiatric condition; his emotional state exaggerated whatever physical disability he had to begin with and was thus disabling in its own right. Dr. Wiesel’s answer on the “pre-existing” issue was as follows:

“Q. Now, Doctor, would you explain how you were able to establish that this conversion hysteria is a pre-existing disease condition?
“A. As I already mentioned, the man is rather limited intellectually and it is quite common in that type person to exaggerate any physical complaints; a person who is intellectually mentally defective is quite apt to over-react to injuries or other emotional trauma. In this particular person I had access to the report of his injury in December 1958, at which time there were no clinical findings to account for his symptoms, and in addition according to the history he was paralyzed immediately after the injury for a week or so, and then it cleared up spontaneously. Now in my mind there isn’t any doubt but that this paralysis was a conversion hysteria also. And in 1965 he was hospitalized briefly for complaints of smothering-. This was probably another emotional response on the patient’s part. But these things make me feel this has pre-ex-isted.”

The Board refused to apportion any of the award in this case to the Special Fund and concluded Ricky is responsible for all of it. The psychiatric evidence in the case and Adams’ reaction to his previous injuries make clear, it seems to us, that the traumatic injury of January 3, 1966, aroused a dormant psychiatric condition which had disabled Willis Adams on other occasions too.

There is some dispute over whether it is proper to call this mental condition a “disease”, but it is certainly a contributory cause of Adams’ disability. The appellant cites KRS 342.005 (2) in support of this:

“The board shall apportion the aggregate extent and duration of disability among the contributory causes including, but not limited to, the following:
(A) Traumatic injury by accident,
(B) Pre-existing disease previously disabling,
(C) Pre-existing disease not previously disabling but aroused into disabling reality by the injury or occupational disease.”

The Special Fund relies on Cabe v. Olin Mathieson Chemical Corporation, Ky., 412 S.W.2d 250 (1967), in which we reversed the judgment of the circuit court directing the Workmen’s Compensation Board to hold the Special Fund liable and we believe our ruling was correct on the medical testimony produced. In that case, Roberts, the injured employee, had endured certain experiences in World War II which, along with his having been run over by a drunken driver, had resulted in what Dr. Ehrman described as affecting “his basic personality and makeup”, but the doctor refused to term it a neurosis or a disease although he admitted that Roberts’ industrial injury had aggravated his personality aberration. Dr. Ehrman was the only psychiatrist who testified.

In the case at bar we have a pattern, a series of abnormal reactions to injuries on the part of the claimant, and the testimony of Dr. Wiesel, who examined and tested Adams, that Adams suffered from conversion hysteria. We think the linkage of his previous reactions to his present reactions from his present injury is so marked that there is little doubt that Adams suffered from a pre-existing non-disabling mental condition, whatever it is called, which was lighted up by his latest accident. As early as 1927 in Ashland Limestone Company v. Wright, 219 Ky. 691, 294 S.W. 159, we recognized that a neurosis of traumatic origin is a compensable disability. And in Old King Mining Company v. Mullins, et al., Ky., 252 S.W.2d 871 (1952) we held that a pre-existing neurosis is compensable to the extent it is aggravated by injury. To the same general effect are: High Splint Coal Company v. Jones, Ky., 338 S.W.2d 208 (1960); American Compressed Steel Corporation v. Blanton, Ky., 357 S.W.2d 888 (1962) ; Holland v. Childers Coal Company, Ky., 384 S.W.2d 293 (1964); E. I. DuPont De Nemours and Company v. Whitson, Ky., 399 S.W.2d 734 (1966).

Larson on Workmen’s Compensation, Section 42.22 comments:

“There is almost no limit to the variety of disabling ‘psychic’ conditions that have already been recognized as legitimately compensable — conditions which not many years ago would have received little understanding or recognition on the part of courts * * * Those cases denying compensation will usually be found to have done so not on the theory that traumatic neurosis is not compensable as such, but on the ground either that the evidence failed to establish a causal connection between the injury and the neurosis, or that there was no disabling neurosis at all.”

We conclude that the evidence is so clear in the case at bar that Adams had a pre-existing condition or disease which was not disabling until aroused into disabling reality by his injury, that the Board should have apportioned part of the liability to the Special Fund as the employer contends. The appeal by the employer to the circuit court was in time.

The judgment is reversed and the case remanded to the Workmen’s Compensation Board for it to apportion part of the liability to the Special Fund.

All concur.


author: CULLEN, Commissioner.

text:
    James Boyd Doodle WALKER and Curtis Pulliam, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 16, 1968.

      Carter & Alexander, H. Jefferson Herbert, Wilson, Baker, Herbert & Garmon, Glasgow, for appellants.
    Robert Matthews, Atty. Gen., George Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CULLEN, Commissioner.

James Walker, Curtis Pulliam, Danny Pedigo and Bobby Kinslow were tried together on a charge of burglarizing a safe in a store in Burkesville, Kentucky. Kinslow was acquitted but the other three were convicted. Walker and Pedigo received 20-year sentences and Pulliam received a 2-year sentence. Pedigo appealed separately and his conviction was affirmed in Pedigo v. Commonwealth, Ky., 416 S.W. 2d 751. We now have before us the appeals of Walker and Pulliam (each represented by different counsel).

We shall first consider Walker’s appeal. His first contention relates to an alleged error in denial of a continuance.

On the trial Walker, Pedigo and Kinslow all were represented by Attorney Robert M. Alexander (who represents Walker on this appeal). The trial began on March 29, 1966. On that day, before the trial commenced, Walker and Pedigo filed a written motion asking for a continuance to the next term of court, on the ground that they had hired Attorney Robert C. Carter, Alexander’s partner, to represent them; Carter was physically disabled by a heart attack; and more time would be required to enable Alexander to take over the defense of the cases. The motion was supported by a doctor’s certificate that Carter had suffered a heart attack on February 15, 1966, and had been totally disabled since that date. Also there was Alexander’s affidavit that he would require additional time to prepare the defense for Walker and Pedigo.

The written motion for a continuance to the next term was overruled. Walker and Pedigo then made an oral motion for a one-day continuance, which also was overruled. The trial then proceeded with Alexander representing Walker, Pedigo and Kinslow.

Walker contends that the overruling of the motions for continuance constituted prejudicial error, under the holding in Stumph v. Commonwealth, Ky., 408 S.W.2d 618.

Several significant facts distinguish this case from Stumph, where appointed counsel had their first connection with the case only two days before the trial. Here, Alexander all along was representing Kinslow, so he was familiar with the case. Also, he had appeared for Walker and Pedigo in all proceedings preliminary to trial. And most significant, he and the accused obviously had known since February 15 that Carter was disabled and that someone would have to take over the cases. Walker and Pedigo had ample notice at least a month before the trial that they would have to obtain counsel other than Carter. Under these circumstances their plea for more time, asserted on the day of the trial, did not have the ring of sincerity. It is our opinion that the trial court did not err in overruling the motions for a continuance.

Walker next contends that the circumstantial evidence upon which he was convicted was not sufficient to sustain a conviction. Our answer is that the evidence against Walker was the same as that against Pedigo, which we said on Pedigo’s appeal was “overwhelming” evidence of guilt. Pedigo v. Commonwealth, Ky., 416 S.W.2d 751 at 752.

Another contention by Walker is that his arrest was illegal; the taking by the officers of certain tools from the possession of Walker and Pedigo at the time of the arrest constituted an illegal search and seizure; and the tools therefore should not have been admitted in evidence. It should be a sufficient answer to this contention to point out that no objection was made on the trial, to the admission of the tools, on the ground of illegal arrest or illegal search and seizure. And even if proper objection had been made the contention could not prevail. Walker and Pedigo, in the presence of police officers but not then under arrest or detention, removed from an automobile, of which they had been in possession, a bag with tools protruding from it, of the nature of burglary tools. The officers, observing the tools, arrested Walker and Pedigo for possession of burglary tools and seized the tools. We think clearly there was probable cause for the arrest. This being so, the seizure of the tools incident to the arrest was proper. There was no search involved in the observation and seizing of the tools.

Walker maintains that evidence by a police officer, that a broken piece of metal found in the burglarized safe fitted perfectly on the broken end of a punch found in the bag of tools taken by the officers from Walker and Pedigo, should not have been admitted because the matching or fitting was not proved by laboratory tests. No reason why a laboratory test should have been required is given, and we do not conceive of any. Furthermore, no objection to the evidence was made on the trial.

Finally, Walker argues that the evidence as to the arrest of Walker and Pedigo in Glasgow, Barren County, and the seizure of the tools from them, was too remote in the prosecution for a burglary committed in Burkesville, Cumberland County. There is no merit in this argument. The fact alone that a burglary tool found in their possession when they were arrested, the same night that the burglary was committed, matched a piece of metal found in the safe, furnished all of the continuity and connection that was necessary. The evidence being pertinent and relevant to the issue of guilt of the crime being tried, the fact that the evidence showed guilt of another subsequent crime did not render it inadmissible. Cole v. Commonwealth, Ky., 381 S.W.2d 318; Smith v. Commonwealth, Ky., 366 S.W.2d 902; Shepperd v. Commonwealth, Ky., 322 S.W.2d 115.

We turn now to the Pulliam appeal.

Pulliam’s first contention is that the trial court erred in overruling his motion for a separate trial. The only prejudice claimed to have been sustainable from the joint trial was such as would arise from the fact that certain evidence not admissible against Pulliam could be introduced because it was admissible as to Walker and Pedigo. Under Hoskins v. Commonwealth, Ky., 374 S.W.2d 839, this was not such prejudice as to require the granting of a separate trial.

Pulliam next argues that the trial court erred in not admonishing the jury that certain evidence with respect to Walker and Pedigo could not be considered as evidence against him. Specifically, he refers to the evidence of the burglary tools and evidence that at 8:00 p. m. on the night of the burglary two persons, not identified, were segn in Burkesville near the burglarized store with the automobile from which the burglary tools later were removed by Walker and Pedigo. Since there was evidence, hereinafter summarized, placing Pulliam with Walker and Pedigo in the store in Burkesville on the afternoon of the day of the burglary, and otherwise indicating that he was an associate with Walker and Pedigo in the burglary, we think the evidence complained of was admissible as against Pulliam, and he was not entitled to an admonition. See Strunk v. Commonwealth, 285 Ky. 783, 149 S.W.2d 528, as to admissibility of evidence that a codefendant was in possession of the fruits of the crime.

Pulliam’s final contention is that the evidence was insufficient to sustain his conviction. We shall summarize the evidence.

There was testimony that Pulliam was with Walker, Pedigo and Kinslow in the store in Burkesville around 3:30 p. m. on the day of the robbery. The boys acted suspiciously and aroused the attention of the manager by their unusual actions, which included the purchase of some items not usually shopped for by men. One of the boys, identified as Pulliam, purchased some pillow cases. Around 5 :00 p. m. a witness saw several boys going up and down the alley behind the store in a white Pontiac with a red stripe on it and bearing a Barren County license. Around 8:00 p. m. the same witness saw the same automobile parked near the end of the alley, and saw two boys going down the alley, one with a woman’s purse and the other with a sack; the two boys got in the Pontiac, which already had “somebody” in it. At 9:00 p. m. that night a white Pontiac with a red stripe on it was found by police officers in Glasgow at a place where it had rolled down a hill into a building. Walker and Pedigo appeared and claimed it was a car they had been trying out as prospective buyers. The police had the car towed to a garage and Walker and Pedigo followed in a taxi. At the garage Walker and Pedigo removed several things from the Pontiac and put them in the taxi. Continuing to remove things they brought out the tool bag, whereupon they were arrested. Among the tools was a new tire iron identical with one which Pulliam was shown to have purchased the previous day. The officers picked up the things which Walker and Pedigo had put in the taxi and among them was a paper sack containing the pillow slips purchased by Pulliam from the Burkesville store, with a sales slip from the store.

We think the evidence was ample to sustain the conviction of Pulliam. The evidence clearly points to the fact that Walker and Pedigo, residents of Glasgow, were in Burkesville from 3:30 p. m. to at least 8:00 p. m., with the white Pontiac car. Since Pulliam and Kinslow, who also lived in Glasgow, were seen with them in the store at 3:30 p. m., and since more than two boys were in or around the car when it was seen at 5:00 p. m. and 8:00 p. m., the conclusion is warranted that the four boys remained together. This is supported by the fact that the pillow slips purchased by Pulliam were in the Pontiac later that night in Glasgow. There is the further fact that Pulliam recently had purchased a tire iron identical with that found in the tool bag. The evidence is fairly indicative of Pul-liam’s participation.

The judgment is affirmed.

All concur.


author: CLAY, Commissioner.

text:
    Oliver T. MINCH, Appellant, v. J. W. WINGO, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    March 29, 1968.

      Oliver T. Minch, pro se.
    Allen Prewitt, Jr., Frankfort, for appellant.
    Robert Matthews, Atty. Gen., George T. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAY, Commissioner.

This is an appeal from a judgment dismissing appellant’s petition for a writ of habeas corpus.

While appellant was on parole from a prison sentence in Kentucky he was arrested in Indiana on a charge of breach of peace. A parole violation warrant was delivered to the Indiana authorities and he was held there awaiting transfer to Kentucky. He attempted to escape from jail and the Kentucky parole violation warrant was “released” so that he could be tried in Indiana on the attempted jail breaking charge. He was convicted and served a sentence in Indiana. Upon his return to Kentucky he was sent to the penitentiary for violating his parole.

It is appellant’s contention that when Kentucky “released” him to the Indiana authorities it thereby waived its right to recommit him for violation of his parole, relying on Thomas v. Schumaker, Ky., 360 S.W.2d 215, and cases cited therein. His argument is answered in Chick v. Commonwealth, Ky., 405 S.W.2d 14. The principle upon which he relies may be invoked only when a person found in this state is in its legal custody. At the time of the proceedings here pertinent appellant was not in Kentucky but was in Indiana. Kentucky did not have him in custody and therefore waived none of its rights to proceed further against him.

The judgment is affirmed.

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

OSBORNE, J., concurs in the result on the ground that Thomas v. Schumaker, Ky., 360 S.W.2d 215, should be overruled.


text:
    Verna L. BLACKARD, Appellant, v. Matt T. BLACKARD, Appellee.
    Court of Appeals of Kentucky.
    March 29, 1968.

      H. K. Northcutt, Carrollton, for appellant.
    Thomas E. O’Shaughnessy, Versailles, for appellee.
   CULLEN, Commissioner.

Pursuant to the provisions of a 1959 divorce judgment which' incorporated the terms of a separation agreement, Matt T. Blackard was paying $125 per month for the support of an adopted son whose custody had been awarded to the divorced wife. On March 15, 1967, the son reached age 18, and shortly thereafter Matt moved for an order terminating as of the aforesaid date his obligation for support. Such an order was entered and the former wife has appealed from it.

The issue in this case arises out of the fact that in 1964 the Kentucky legislature reduced the age of majority from 21 to 18. See KRS 2.015. The question is whether the age limit at the time the separation agreement was made and the divorce judgment was entered controls the father’s obligation to support, or whether the legislative change in the limit can operate to shorten the period of the obligation.

The same basic question was involved in Wilcox v. Wilcox, Ky., 406 S.W.2d 152, Young v. Young, Ky., 413 S.W.2d 887, and Collins v. Collins, Ky., 418 S.W.2d 739. In Wilcox and in Collins this court held that the father’s obligation continued to age 21 because the separation agreements of the parties, incorporated into the divorce judgments, specifically provided for payment of support until the child “reached the age of majority.” The court treated it as a matter of contractual intent. In Young, on the other hand, where there was no contract, this court held that the obligation ended when the child reached 18.

In the instant case the separation agreement, as it related to support payments, provided simply that the payments would be made “until further orders of the Court.” From this we can find no evidence of intent that the payments would continue to the then fixed age of majority. The agreement contained a further provision, under which the father agreed to convey to the mother a valuable dwelling property, to provide a home for the mother and son “until he reaches the age of 21 at which time the trust will terminate and title to the corpus will vest absolutely and fee simple in him.” The appellant mother argues that this provision, specifically referring to age 21, indicates the intent of the parties that the support payments should continue to age 21. We are not so persuaded. The fact that the parties chose to be specific concerning age with regard to the use and ownership of the house, but cnose to leave to “further orders of the Court” the matter of the amount and duration of support payments, indicates to us that they had no specific intent concerning the age to which support payments should continue.

Since we do not find any contractual intent that payments continue to age 21, the situation here is comparable to that in Young, where there was no contract, and the holding in Young is controlling.

The judgment is affirmed.

All concur, except STEINFELD, J., who did not sit.


text:
    SALMON CORP. d/b/a Mereworth Farm, Appellant, v. KENTUCKY BOARD OF TAX APPEALS et al., Appellees.
    Court of Appeals of Kentucky.
    March 29, 1968.
    Frank F. Wilson, II, Gess, Mattingly, Saunier & Atchison, Lexington, for appellant.
    Robert Matthews, Atty. Gen., John R. Livingston, Dept, of Revenue, Frankfort, for appellees.
   MILLIKEN, Judge.

This appeal is from a judgment of the Woodford Circuit Court which dismissed the complaint of the Salmon Corporation on an appeal from a decision of the Kentucky Board of Tax Appeals.

The judgment was entered on the motion of the appellee, Department of Revenue, to dismiss the complaint for failure to join the Tax Commissioner of Woodford County, the Woodford County Fiscal Court, and the Superintendent of Schools of Wood-ford County as parties defendant, on the ground that they were indispensable parties to the action in the Woodford Circuit Court. Appellant named only the Kentucky Board of Tax Appeals and the Department of Revenue in appealing the decision of the Board.

The appeal to the circuit court was from a determination of the Board of Tax Appeals with respect to the ad valorem assessment of the real property of the Corporation by the Woodford County authorities for 1966 tax purposes.

In early 1966, the Salmon Corporation listed the real property it owned in Wood-ford County with the County Tax Commissioner and gave the total valuation as $453,470.00. The Commissioner responded in April of 1966 with a notice that the assessment of appellant’s property for the year 1966 would be $731,800.00. This understandably provoked an appeal by the Corporation to the Woodford County Board of Tax Supervisors, who determined that the Commissioner’s assessment was, in fact, too low and should be increased by $182,175.00.

Undaunted, the Corporation appealed the assessment (which had by now grown from $453,470.00 to $913,975.00) to the Kentucky Board of Tax Appeals, and named as ap-pellees: the Tax Commissioner of Wood-ford County; the Woodford County Fiscal Court, as agent for Woodford County; the Superintendent of Schools of Woodford County; the Woodford County Board of Tax Supervisors, and the Department of Revenue. A hearing was held in August of 1966 and an order came down October 6 which affirmed the assessment of the Woodford County authorities. The appeal to the Woodford Circuit Court followed.

As mentioned above, the complaint filed in the circuit court named the Kentucky Board of Tax Appeals and the Department of Revenue as appellees. The Department moved to dismiss the complaint for failure to join, as indispensable parties appellee, the Tax Commissioner of Woodford County, the Woodford County Fiscal Court as agent for Woodford County, and the Superintendent of Schools of Woodford County. The motion was heard by the judge on November 28, 1966, and was sustained. At the court hearing, the Corporation moved orally that, if the court should determine that the parties named in the motion were indispensable or necessary parties, that it be given leave to amend its complaint to join such parties. This was denied, apparently because the statute under which the complaint was filed — KRS 131.370 — allows an appeal within thirty days from the date of an order or determination of the Board and the thirty-day period had expired.

The procedural difficulty here is caused by KRS 131.370 which fails to provide any concrete guidance on the problem of who the indispensable parties to an appeal from a decision of the Board should be. Paragraph (1) of the statute comes the closest to saying anything on the subj ect.

“(1) Any party aggrieved by any final order, decision, or determination of the Kentucky Board of Tax Appeals, except on appeals from a county board of supervisors, may within thirty days after such order, decision, or determination becomes final file a petition of appeal on any question of law to the Franklin Circuit Court or to the circuit court of the county in which the party aggrieved resides or conducts his place of business. Any such final orders entered on the rulings of a county board of supervisors may be appealed in like manner to the circuit court of the county in which the appeal originated. A copy of the petition of appeal shall be filed with the board and all other parties against whom the appeal is prosecuted.” (1964 c. 141, § 12, Eff. 7-1-64)

Only two cases have heretofore been decided which directly pertain to KRS 131.-370: Department of Revenue v. Bederman, Ky., 408 S.W.2d 613 (1966), and Com., Department of Revenue v. Schmid, Ky., 404 S.W.2d 458 (1966).

In Schmid the Department of Revenue sought an order prohibiting Judge Schmid of the Jefferson Circuit Court from hearing an appeal from an order of the Kentucky Board of Tax Appeals. The Department argued that the circuit court had no jurisdiction of the appeal because the Department, an indispensable party, was not named as a party to the appeal. In appealing to the Board, the taxpayer had named the Department as appellee, but in the appeal to the circuit court, after the adverse ruling by the Board, only the Board and the Attorney General were named as appel-lees and the Department was not mentioned. We held that the Department was an indispensable party, but that no harm had been done because the Department was aware of the proceedings all the while and “will not suffer any detriment from not formally having been made a party.”' Factors which caused the court to take a liberal view in this case were said to be the newness of the statute and its ambiguousness, but the court pointed out that in the future the statute “will be construed as requiring the naming of the particular department or agency whose order or ruling is in issue.”

In the later Bederman case, the Department of Revenue sought to appeal to the Franklin Circuit Court from an order of the Kentucky Board of Tax Appeals, and that court dismissed the appeal primarily because the Board was not made a party to the appeal and we affirmed that ruling, saying:

“The governing rule, in an administrative proceeding where the right of appeal is conferred by statute, is that strict compliance with its provisions is required. Roberts v. Watts, Ky., 258 S. W.2d 513.
“The department contends the statute does not require the board be made a party. We cannot agree. KRS 131.-370(1) directs that a copy of the petition shall be filed ‘with the board and all other parties against whom the appeal is prosecuted’ * * *.”

The Department and the Board argue that the language “and all other parties against whom the appeal is prosecuted” includes the Woodford County Tax Commissioner, etc., and makes mandatory their inclusion as parties in the case at bar.

The Corporation uses the Schmid case to support the contention that the statute is vague and ambiguous, offers little guidance on the issue before the court, and thus should be liberally construed. To further support its argument, the Corporation asserts that no parties other than the Board and the Department of Revenue were ever really needed anyway; it contends that the Revenue Department sufficiently represent the interests of the people of Woodford County because of its primary position in matters involving taxation, and that adding the Woodford County authorities, who are really Revenue’s agents, would be, in effect, superfluous.

The State (the Department of Revenue and the Board of Tax Appeals), of course takes another view of all this and attacks the Corporation’s position with a dissertation on the virtues of the indispensable party doctrine. In short, the State’s argument is that Woodford County authorities have a substantive right to be a party to a proceeding such as the one at bar since the whole matter involves local revenue and is of great importance to the interests of Woodford County almost exclusively. It is pointed out that the powers of the Department of Revenue in this tax area are largely supervisory and no principal-agent relationship exists between the Department and the Woodford County tax authorities. However, this court decided in Jefferson County Fiscal Court v. Tragor, 302 Ky. 361, 194 S.W.2d 851 (1946) that a county tax assessor “* * * whose duties must be performed under the direct supervision and regulation of a centralized administrative department of the state * * * is a divisional official of the department itself, and, consequently, a state officer. The mere fact that his work inures to the benefit of a municipality does not change the character of his office.”

Many cases are cited by the State to support its position on indispensable parties, but the following quote from Clay’s Kentucky Practice, CR 19.01, comment 2, page 317, seems to help as much as anything :

“* * * Indispensable parties are those so necessary in the action that in their absence there can be no proper final adjudication of the controversy.”

We conclude that the interests of the Woodford County tax authorities are merged, so to speak, in the rulings of the Department of Revenue and the Board of Tax Appeals, and that the latter two agencies of government are the only indispensable defendants to this action.

The judgment is reversed.

All concur.