author: DAVIS, Commissioner.

text:
    KALM, INC., Appellant, v. Thomas William HAWLEY, Appellee.
    Court of Appeals of Kentucky.
    May 6, 1966.
    As Modified on Denial of Rehearings Oct. 14, 1966.
    Oldham Clarke, James M. Cuneo, McEl-wain, Dinning, Clarke & Winstead, Winfrey P. Blackburn, Jr., Louisville, for appellant.
    James W. Hendricks, Marshall, Cochran, Heyburn & Wells, Thomas W. Speck-man, Louisville, Louis Cox, Hazelrigg & Cox, Frankfort, for appellee.
   DAVIS, Commissioner.

The appellee, Thomas William Hawley, suffered severe personal injury when he struck his head on the bottom of a swimming pool maintained at a Holiday Inn Motel in Louisville. The appellant corporation, owner and operator of the motel, appeals from a judgment awarding appellee $150,000 for personal injuries and incidental expenses, pursuant to a jury’s verdict. Four basic contentions for reversal are advanced by appellant: (1) There was no evidence of negligence by appellant; (2) the appellee was guilty of contributory negligence as a matter of law; (3) the instructions were erroneous, and (4) the verdict is excessive. Appellee prosecuted a cross-appeal asserting entitlement to interest at 6% rather than 3%. The conclusion reached by the court obviates the need to advert to any of the points except the question of contributory negligence.

Appellee was a registered patron of the motel when the accident occurred on July 6, 1962. He had been so registered at the motel, with his wife and three children, since July 2. He had stayed there also during the period from June 19 through June 24 of the same year. Appellee had used the swimming pool “three or four times” during his stay at the motel in June, but had done no diving from the point where he made the dive which resulted in his injury. On the day of the accident he had dived twice from the diving hoard, but not from the side of the pool.

It appears that during the afternoon of July 6, appellee’s eleven-year-old daughter, Denise, had received some diving instructions from Mrs. Lorene Thornton, the lifeguard at the pool. Appellee had observed Mrs. Thornton as she instructed Denise about diving; he testified that Mrs. Thornton dived from the side of the pool, not from the spring board. At about 8:30 or 9:00 p. m., Denise asked appellee to show her how to dive into the pool, and requested that he instruct her in the same diving technique which Mrs. Thornton had used. Thereupon appellee dived into the pool from the east side and sustained the injuries which constitute the basis of this litigation. The dive which appellee made is described in the evidence as a “pike dive”— one in which the diver enters the water head first, with arms and hands extended above the head, in as nearly vertical position as possible. It is a “deep” dive as contrasted with a “shallow” dive which may be accomplished by diving on a plane more nearly horizontal with the water’s surface.

The swimming pool is irregular in shape. One of the witnesses compared it to a “squared” lion’s head, with the mouth of the lion being where the diving board is situated, and the deep portion of the pool extending away from the “mouth” into the site of the “mane,” which is the shallower part of the pool. Another witness' suggested that the pool was somewhat “dog-leg” in contour. At any rate, the deepest portion of the pool is at its northern end; the northern wall is about twenty feet across, and has the diving board located approximately in the center. The shape of the pool is such that as the side walls extend southwardly from the diving board the east wall is longer than the west wall, as the pool turns to the west. Provision was made for a rope or “life-line” separating the shallow and deep portions of the pool (although the line was not in place on the night of the accident). The course of the line was an oblique one. Along the sides of the pool were nine separate markings, indicating depth of the water. Within the deep portion of the pool (i. e. the portion north of the “lifeline”) were two markers indicating a depth of eight feet. One of these markers was just under a ladder, on the west wall, across the pool from the point where appellee made the dive resulting in his injury. It is to be noted, however, that the marker on the west wall was not directly opposite appellee as he dived, but was several feet nearer to the diving board wall. The only other depth markers were in the shallower portion of the pool, south of the rope line. These markers reflected depths of five, four and three feet at various points in the pool. Appellee was standing approximately midway between a five-foot marker to his left and an eight-foot marker to his right when he made the dive.

The actual depth of the pool at the point of the dive was six feet, three inches. It was shown that the floor of the pool was constructed in such manner that there was a slope in the elevation of the pool’s floor from the shallower portion to the deeper portion. Appellee admitted that he knew that the pool’s floor sloped — as opposed to the idea that the variations in depths were accomplished by abrupt step-offs.

Witnesses for both sides, skilled and trained in diving, agreed that it is possible to dive safely in water having depth of less than six feet, but for appellee it was testified that eight feet is a minimum depth for a “deep” or “pike” dive. All of the expert witnesses agreed that no prudent person should dive into water without knowing its depth, but for appellee it was testified that a diver could prudently rely upon the depth markers on a pool. It was opined by expert witnesses for appellee that since the only depth markers in the “deep” end of the pool were the two which showed eight feet, a prudent person could assume that all of the water in the deep end of the pool had at least that much depth.

In a carefully prepared and well considered opinion, the trial judge treated the contributory negligence issue, in part, as follows:

“The law did not require the plaintiff to make a critical examination that the depth was sufficient to make the dive. In Boll v. Spring Lake Park, Inc., Mo., 358 S.W.2d 859, the Court said:
‘He is not required to make a critical inspection to assure himself that it is safe.’
“Defendant relies on the case of Pinehurst Co. v. Phelps [163], Md. [68], 160 A. 736 and Richardson v. Ritter, 197 N.C. 108, 147 S.E. 676. These cases give support to the defendant’s contention that plaintiff was negligent as a matter of law and that his negligence contributed as a proximate cause to his injuries. If the Kentucky cases were not at variance with these foreign cases relied upon by the defendant, the Court would have to sustain the contention of the defendant that a directed verdict for the defendant should have been given on the ground that plaintiff was contributorily negligent as a matter of law.
“However, the Kentucky cases of Louisville Water Co. v. Bowers, 251 Ky. 71, 64 S.W.2d 444 and Waddel’s Adm’r v. Brashear, 257 Ky. 390, 78 S.W.2d 31 [98 A.L.R. 553], are at variance with the foreign cases relied upon by the defendant. * * *
“There is great similarity between the Bowers case and the case at bar and, therefore, I must follow the law as set forth in the Bowers case and hold that it was a question for the jury to determine as to whether or not plaintiff herein was guilty of contributory negligence.”

As noted, the trial judge deemed himself bound under the doctrine of stare decisis to follow the Bowers opinion. Fairly read, the trial judge’s opinion leaves the inference that but for his being “bound” by Bowers, an opposite result would have been reached. We look to the Bowers opinion:

In Bowers the Louisville Water Company was in the process of filling the Crescent Hill swimming pool when plaintiff appeared there to swim. Plaintiff walked alongside the pool to the deep portion where he climbed into the pool on a ladder. He swam across the pool and emerged upon a ladder on the opposite side, from where he walked toward the shallow part of the pool. He came to a point opposite which was a five-foot depth mark; he dived in the water head first and struck his head against the bottom of the pool — which had an actual depth of less than two feet at the time of the accident.

Bowers testified that he was unaware that the pool was being filled, and supposed that it was at normal depth. He could not ascertain the depth of the water because the color of the water (green) was the same as the color of the pool bottom. The defendant showed that there were some women and children in the pool at the point where Bowers dived, and the depth of the water could have been gauged by observing the water level on their bodies.

In holding that Bowers was not as a matter of law guilty of assumption of risk, the court said:

“Clearly in a case like this the doctrine of assumed risk should go no further than to preclude a recovery where the patron voluntarily subjects himself to a peril that is known to him, or plainly observable by a person of ordinary prudence in his situation. Though it is true that appellant’s witnesses testified in substance that the depth of the water was plainly discernible, and was also shown by the presence of bathers and by markers on the side of the pool, it must not be overlooked that appellee testified that he looked at the water, that the bottom was green, and the water of the same color, and that he could tell nothing about its depth. In view of the conflict in the evidence, and of the rule that a patron of a place of public amusement for hire is not obliged to make a critical examination of the premises to determine whether they are safe, but has a right to assume that those in charge have provided a safe place and taken the proper precautions for his safety, (citing cases) it cannot be said as a matter of law that appellee in diving into the pool subjected himself to a known, or obvious, peril, and therefore assumed the risk. It follows that the motion for a peremptory instruction was properly overruled.” Id., Ky., 64 S.W.2d at 446.

We have carefully considered the Bowers opinion, and are impelled to the view that it is unsound. We feel that the case at bar has some distinguishing characteristics, but must concede that if Bowers were sound it would be dispositive of the issue at hand. We are unable to agree with the reasoning advanced in Bowers as applied to the factual background of that case. We have no quarrel with the legal principle expressed which limits the assumption of risk doctrine to instances in which a plaintiff voluntarily subjects himself to “ * * * a peril that is known to him, or plainly observable by a person of ordinary prudence in his situation.” Our difficulty is in perceiving any manner in which Bowers could have exercised even the slightest care for his own safety without his being made acutely aware of the obvious danger.

In the instant case, appellee knew that the bottom of the pool sloped from a five-foot depth to an eight-foot depth as it ranged from the five-foot marker to the eight-foot marker. He knew that he was about half way between the two markers. If the slope was fairly constant, it would mean that the depth at the point of the dive would have been six feet, six inches; it was six feet, three inches. So, appellee cannot be heard to say that he relied on the eight-foot marker which was across the pool from him, and substantially closer to the diving board than was the point from which he dived.

Although the expert divers for appellee said that a “pike” dive could be done safely in eight feet of water, but not in six feet, three inches, there was no showing that appellee had any such nice appreciation of the distinction. A sharp question arises whether the appellant could be charged with the responsibility of providing a diving area so far from the diving board. At least, when a deep or vertical dive is employed, we think the diver must do more than appellee did in order to assure himself that the water’s depth will accommodate the dive. Particularly is this true in the case at bar, because the appellee knew that the depth of the pool decreased as it left the diving board area. During the course of his testimony the appellee responded to an inquiry from the trial judge:

“THE COURT: From your experience in swimming pools and diving, as you leave the point where the diving board is and go towards the shallow end, does or not the water gradually get to less depth ?
THE PLAINTIFF: Yes, sir.”

In these circumstances we conclude that the appellee was as a matter of law guilty of such negligence as to preclude his recovery. To the extent that Louisville Water Company v. Bowers, 251 Ky. 71, 64 S.W.2d 444, may be in conflict with the views expressed herein, it is overruled.

Although we have premised this decision on appellee’s contributory negligence, there is much to be said for the proposition that appellee assumed the risk of injuring himself by making a deep dive at a point substantially removed from the diving board. Conversely, it may be doubted that appellant should have foreseen that appellee would make this type dive where he did; thus, grave doubt exists whether appellant was proven negligent anyway. To put it another way, it does not seem unreasonable to say that when the proprietor has provided special facilities for diving, consisting of a diving board, there is no invitation for its patrons to dive elsewhere except at their own risk.

The judgment is reversed on the original appeal with directions to enter judgment n. o. v. in behalf of the appellant; the judgment is affirmed on the cross-appeal.

      . Appellee disclaimed understanding of a “pike” dive, but said that he dived “straight down."


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    Britton PRESTON and Melvin Caldwell, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 10, 1966.
    As Modified on Denial of Rehearing Oct. 7, 1966.

      Joe P. Tackett, Prestonsburg, for appellants.
    Robert Matthews, Atty. Gen., Robert D. Preston, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Britton Preston and Melvin Caldwell were jointly indicted, tried and convicted of armed robbery and sentenced to life imprisonment. KRS 433.140. They appeal.

According to the evidence presented in support of the indictment, one George B. Blanton and two friends, William C. Powers and Smith Kelly, Jr., were drinking beer in the kitchen of Blanton’s home in the Green Rock neighborhood of Johnson County, Kentucky, during the late hours of Saturday night, June 6, 1964, and until shortly after midnight, when someone knocked at the front door, which was located in an adjoining room. Kelly went to the door and in a moment returned and said to Powers, “Let’s get out of here.” As Powers made his way to the front door he met and passed a man coming in. At the trial he expressed the belief that this man was the appellant Caldwell, though he would not positively swear to it. Powers got into his automobile with Kelly and undertook to leave the premises, but in backing out he accidentally “let the wheel drop back over the hill.” When this happened he said to Kelly, “Get the jack and jack the car up,” to which Kelly replied, “Let’s get out of here, they are robbing George B.” Powers then said, “Well, give me the gun out of the glove compartment,” but at that point a man standing at the corner of Blanton’s house, whom Powers could not identify, said, “Buddy, you stay out of it,” and fired a shot, whereupon Powers “fell over the fence and laid in the creek until they brought George B. out of the back of the house, and was pushing him up the road and telling him to run,” etc. The two robbers then got into their car and drove away.

Blanton testified that the first man to enter the house walked into the kitchen and struck him over the head with a pistol, got him down on the floor and took some $500 in money out of his pockets, after which he forced him to go into the other room and lie down on a bed, face down, threw a quilt over his head and told him if he moved he would be killed. Then the second man entered, and Blanton, who says he “could see out from under the cover,” recognized him at once as the appellant Melvin Caldwell, whom he had known “ever since he was a baby.” The two intruders proceeded to ransack the house and at length got Blanton up, took him out the back door, and at gun point forced him to walk about 100 yards up the road. According to Blanton, the two men returned to the inside of the house before leaving, though Powers says they drove away without again entering the house. Blanton then came back, ran down the road to his son’s home a mile or so away, and telephoned the police.

Blanton said he never had seen or known the appellant Preston before the robbery, but that when he returned to the house immediately after his assailants had driven away, and before he ran on to his son’s home, Kelly and Powers told him who he was. At the trial Blanton positively identified Britton Preston as the man who had struck him in the head with a pistol.

Smith Kelly, Jr., did not appear to testify at the trial. His identification of Preston right after the commission of the robbery was related to the jury only through Blan-ton’s testimony, which we have already recited. The first question to arise is whether Blanton should have been permitted to relate what was told him by either Kelly or Powers. The answer is not entirely easy, as the facts make this a close case. It therefore may be well to approach it from the fundamentals.

According to Wigmore, and it is demonstrably so, courts in general have reduced the term “res gestae” to a useless and misleading shibboleth by embracing within it two separate and distinct categories of verbal statements, one of which is truly an exception to the hearsay rule and the other of which is not, the two being admissible in evidence under different principles. Wig-more on Evidence, § 1767 (Vol. VI, p. 182). When the utterance of certain words constitutes or is part of the details of an act, occurrence or transaction which in itself is relevant and provable, the utterance may be proved as a verbal act, just as may be a visual observation of an event. This is not hearsay evidence; it is not admitted for the purpose of proving the truth of what was said, but for the purpose of describing the relevant details of what took place. One of the several qualifications for admissibility of this type of statement is that “the words must be contemporaneous with the conduct, or, in the usual phrase, must accompany the act.” Id., § 1776 (Vol. VI, p. 197).

The character of utterance that is admissible as a genuine exception to the hearsay rule, also under the customary label of “res gestae,” is a spontaneous exclamation, which may or may not be exactly contemporaneous with the provable act or event. Id., § 174S et seq. (Vol. VI, pp. 131 et seq.). See Norton’s Adm’r v. Winstead, 218 Ky. 488, 291 S.W. 723 (1927). See also note, Res Gestae in Kentucky, by H. E. Edmonds, 39 Ky.L.J. 200 (1950-51). “The typical case presented is a statement or exclamation, by a participant, immediately after an injury, declaring the circumstances of the injury, or by a person present at an affray, a railroad collision, or other exciting occasion, asserting the circumstances of it as observed by him.” Wigmore on Evidence, § 1746 (Vol. VI. p. 134). This type of statement is received in a testimonial capacity, as evidence of the truth of the fact asserted. Ibid.

“It will be seen that these two classes of statements or exclamations are based on very different principles, and that the question of their admissibility must be determined by the principles applicable to the class within which they fall. * * * The true test in spontaneous exclamations is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue, or whether that nervous excitement has died away,” etc. Keefe v. State, 50 Ariz. 293, 72 P.2d 425, 427 (1937).

“This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of un-trustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.” Wigmore on Evidence, § Í747 (Vol. VI, p. 135).

Under the genuine “verbal act” doctrine the conduct and the verbal utterances must be by the same person, but under the spontaneous exclamation exception to the hearsay rule, “that nervous excitement which renders an utterance admissible may exist equally for a mere bystander as well as for the injured or injuring person, and therefore the utterances of either, concerning what they observed, are equally admissible.” Id., § 1755 (Vol. VI, pp. 159-160), citing Kentucky decisions at footnote 2. The admissibility of what Powers and Kelly, or either of them, said to Blanton immediately following the robbery must, of course, be determined under the spontaneous exclamation exception to the hearsay rule. Thus it is unnecessary to consider whether they were participants or bystanders. See, however, Hemphill v. Commonwealth, Ky., 379 S.W.2d 223, 228 (1964).

The facts are not far different from those in Daws v. Commonwealth, 314 Ky. 265, 234 S.W.2d 953 (1950), in which the defendant was on trial for shooting at one Daulton with intent to kill. The incident occurred at a place 100 to 125 yards from a church. Daulton drove his truck on to the church and told several persons the defendant had shot at him. According to the opinion reversing a judgment of conviction, Daulton’s statement was made “after he had driven slowly in his truck 100 to 125 yards from the place of the shooting to the Church and after he had been at the church for three minutes(Emphasis added.) Hence it was held inadmissible, being neither spontaneous nor contemporaneous with the shooting. The case was distinguished from Norton’s Adm’r v. Winstead, 218 Ky. 488, 291 S.W. 723 (1927), which involved about the same time lapse, on the ground that in the latter case the statement was made at the place of the shooting. On that basis, this case is more like the Norton case, in that the statement or statements identifying the appellants were made at the scene of the crime.

In Barton v. Commonwealth, 238 Ky. 356, 38 S.W.2d 218 (1913), on which the court relied in the Daws opinion, a statement made by the victim of an assault within three minutes after he had been beaten, and only 39 steps away from the place where the offense had been committed, was held inadmissible. As in Daws, the statement was not made right at the scene of the crime, but the court today is unwilling to draw such a tenuous distinction. Actually the Norton and Barton opinions appear to be in substantial conflict, Daws notwithstanding. And see Louisville & N. R. Co. v. Molloy’s Adm’x, 122 Ky. 219, 91 S.W. 685, 688, 28 Ky.Law Rep. 1113 (1906), which also appears inconsistent with Barton.

The length of time between the event and the statement, and the distance between the scene of the event and the place where the statement was uttered, can have significance only insofar as they bear on the question of spontaneity. It is our conclusion that although the Daws opinion may have been justified on the theory that Daulton’s statement was not spontaneous (because it was not made immediately upon his arrival at the church), the Barton decision was too restrictive and is unsound. Accordingly, we are of the view in the case now before us that whatever statements Powers or Kelly made to Blanton when he returned to the house following the departure of his assailants came so closely after the event that the possibility of their being fabrications, and not genuine observations, is most unlikely. The evidence does not disclose precisely how many minutes or seconds elapsed, but that kind of an estimate often is inaccurate anyway. He did rqturn immediately, and as soon as the coast was clear. It could not have been many minutes. We hold the evidence admissible.

Appellants contend also that Powers should not have been allowed to relate (a) what was said to him by Kelly when they came out of the house and got in the car and (b) what was said and done by the unidentified man standing at the corner of the house. The first of these items of evidence clearly was admissible under the principles we have already discussed, and just as obviously the second was admissible as being merely descriptive of a part of the main event itself, the robbery (the man at the corner of the house being one of the participating actors).

Blanton’s son was permitted to testify, but without disclosing the names mentioned, that his father, Powers and Kelly all three told him at the time who had committed the robbery. The state trooper who responded to Blanton’s telephone call also was permitted to give similar testimony, during which he mentioned the appellant Caldwell as one of those identified. With respect to Blanton and Powers, who had appeared as witnesses, we are of the opinion that this evidence was competent on the following theory:

“Ordinarily, when a witness is asked to identify the assailant, or thief, or other person who is the subject of his testimony, the witness’ act of pointing out the accused (or other person), then and there in the court-room, is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the person’s identity. The failure to recognize would tell for the accused; but the affirmative recognition might mean little against him.
“The psychology of the situation is practically the same as when Recent Contrivance is alleged. To corroborate the witness, therefore, it is entirely proper * * * to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness’ mind, he recognized and declared the present accused to be the person. * * * This is a simple dictate of common sense, and was never doubted in orthodox practice. That some modern courts are on record for rejecting such evidence is a telling illustration of the power of a technical rule of thumb to paralyze the judicial nerves of natural reasoning.” Wigmore on Evidence, § 1130, (Vol. IV, pp. 208-210).

The cases decided by this court prior to Colbert v. Commonwealth, Ky., 306 S.W.2d 825, 71 A.L.R.2d 442 (1957), appear uniformly to have taken the view that unless they fell within the “res gestae,” and with certain other special exceptions, extrajudicial identifying statements were not admissible in evidence. See, for example, Edwards v. Commonwealth, 145 Ky. 560, 140 S.W. 1046 (1911); Gilbert v. Commonwealth, 221 Ky. 692, 299 S.W. 569 (1927); Griffith v. Commonwealth, 250 Ky. 506, 63 S.W.2d 594 (1933); Kesterson v. Commonwealth, 254 Ky. 287, 71 S.W.2d 622 (1934); Keene v. Commonwealth, 307 Ky. 308, 210 S.W.2d 926 (1948); and Daniels v. Commonwealth, Ky., 269 S.W.2d 705 (1954). The types of evidence held inadmissible included (1) testimony of the witness himself that he had made the identifying statement, (2) testimony of the persons to whom the witness had made the statement, or who heard him make it, and (3) testimony to the effect that some person not a witness at the trial had made such a statement. Overruling previous decisions to the contrary, the Colbert opinion held “that evidence by a witness of his own previous identification of the defendant in a criminal case, under circumstances reasonably free of improper influence, is competent,” but that the testimony of another person to the effect that he (the previous witness) had done so is “plain hearsay” and is not competent.

Upon further consideration of the subject, we have come to the conclusion that the distinction drawn in the Colbert case, to the effect that a witness may say he made an identifying statement, but another witness who was there when he did it cannot say so, is not tenable. As pointed out by Professor Morgan (Edmund M. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 196, Dec.1948), if the person who made the identifying statement appears as a witness and testifies that the statement was true, “then the only debatable question is whether he made the statement; and as to that the trier has all the witnesses before him, and has also the benefit of thorough cross-examination as to the facts which are the subject matter of the statement.” Once a witness is allowed to testify that he made an identifying statement, further proof by other witnesses that he did in fact make it is just as relevant and competent as would be defensive proof to the effect that he did not make it. To the extent, therefore, that it holds such corroborative proof by other witnesses inadmissible, Colbert v. Commonwealth, Ky., 306 S.W.2d 825, 71 A.L.R.2d 442, 448 (1957), is overruled.

In this case the question of identity was vital. As it developed, the defense was based to a great extent on the theory of a frame-up designed and contrived by Blanton after he had been beaten up, not by either of the appellants, but by Ronnie Preston, brother of the appellant Britton Preston. That those present at the scene of the crime made prompt identifications had important corroborative value, and was admissible. With respect to Kelly, who had not testified and thus was not subject to cross-examination, it was incompetent, and particularly so in that the trooper said Kelly was the one who identified Caldwell. Nevertheless, since both Blanton and Powers had named Caldwell anyway, and since Kelly’s spontaneous identification of Preston had already been introduced through Blan-ton, we do not believe this testimony, though technically inadmissible, could have had any further prejudicial effect against the appellants.

The trooper also was allowed to testify that a warrant for the arrest of the appellants was sworn out by Blanton, and that he (the trooper) relayed this information to other officers in Magoffin County for the purpose of effecting arrests. The other officers then testified that, having been so advised, they saw the appellants come through Salyersville and gave chase, though unsuccessfully. One of these officers testified that on the same night a taxi driver named Slusher made a complaint, and Slusher then followed with testimony that on the night he made his complaint (he could not give the date) he had encountered the appellants in the vicinity of Blanton’s home and they apparently had tried to rob him.

Blanton having testified that he did swear out the warrant against the appellants, we can see nothing improper in the trooper’s explaining how the officers in Salyersville happened to be on the lookout for them. The existence of a warrant necessarily implies that someone had made an accusation. In this particular connection, none of the officers undertook to recite any details of what they heard from others except for the fact that there was a warrant, taken out by Blanton, for the arrest of the appellants, which warrant they sought to and ultimately did execute. We find no error in that respect.

That Slusher could not give the date of the incident about which he testified was not fatal, because the time had been established by one of the officers present when he reported it. Cf. Hoskins v. Commonwealth, Ky., 374 S.W.2d 839, 843 (1964).

The one incident during the trial that has given us the most difficulty in this review occurred during Slusher’s appearance on the witness stand, when the appellant Britton Preston interrupted as follows: “How much did Blanton pay you to say this?” Without calling a recess and taking the matter up in chambers, as would have been the better practice, the court at once announced, “You are fined $30.00 and 24 hours in jail for your outburst. Go ahead.”

It was emphasized in Merritt v. Commonwealth, Ky., 386 S.W.2d 727, 730-731 (1965), that a judge must not do or say anything to suggest his personal attitudes relative to the parties, the attorneys, or the case being tried. We realize that some courts might feel disposed to treat a .contempt ruling in the presence of the jury as presumptively falling in this proscribed category, but we do not believe it is necessarily so. The judge has both the right and duty to preserve decorum, and to do it promptly and publicly when it appears reasonably necessary or appropriate. He must have a wide discretion in this regard, and he is in the best position to determine what course of action is indicated by the attendant circumstances. Respect for the court depends to a great extent on what the public, as, well as the participants, is able to see and hear during the course of a trial. We take judicial notice that the progress of law and order over violence and vendetta has been a long and uphill fight in some parts of the country, including the general area in which this case finds its setting. This was a bitterly-fought controversy with obvious undertones of eruptive hostility. On a review of the whole proceeding we are not persuaded that the action of the trial court was improper. Nor, for that matter, do we find it prejudicial either. The judge did not indicate any feeling toward Preston or the merits of the case, and the record does not disclose any discernible basis on which a reasonably intelligent jury could have inferred that he did.

“A trial court may punish for contempt of court if necessary, even in the presence of the jury. * * * Not every utterance of doubtful propriety made by the court during the course of the trial results in prejudice, and whether the defendant’s rights were violated must be determined from the whole record.” State v. Ross, Mo., 371 S.W.2d 224, 228 (1963).

The rest of the criticisms sown broadcast across the pages of appellants’ brief are of less substance than those we have thus far discussed. It is true that many of the trial court’s rulings on objections were so laconic as to be unintelligible or at least inconclusive. However, in most instances the evidence was admissible anyway, and the objections were not well taken. Some of the questions asked by the Commonwealth’s Attorney were improper (so were many of those asked by the defense), but in each of the instances cited in the brief the objections were sustained and the questions went unanswered. The various comments made by the court, such as “This is prejudicial testimony” (in sustaining an objection to evidence offered by the defense), “I will permit that, but it is a little off, and I can’t see how it has much bearing” (in overruling an objection to defense testimony), and “So is Johnson County; supposed to be” (remarked when appellants’ attorney, objecting to interrogation of one of the defense witnesses as to why he had to come over to Johnson County from Magoffin County to buy whiskey, said, “Objection to that. Magof-fin County is dry. We object to that”) may have been unnecessary, but neither singly nor as a whole do they suggest any real prejudice to the appellants’ case.

The one comment made by the trial court which comes nearest to being improper occurred during the questioning of Ronnie Preston, who claimed that it was he who had the encounter with Blanton on the night in question. His story was that he had bought some moonshine whiskey from Blan-ton and that Blanton could not or would not give him change for a $20 bill. This is what happened at the trial:

Q — “Did an argument ensue between you and him then about the change?”
A — “That’s right.”
Q — “What was the result of it ?”
A — “I just beat the living hell out of him.”
BY MR. TACKETT: “Now, don’t talk that way on the witness stand.”
BY THE COURT: “I will put you everyone in jail if I have to, that type of talk will be hushed here; you can talk like a gentleman, if you know how to talk like one.”

Again, however, our reaction is that in the interest of maintaining order in his court the trial judge was within his rights in giving the foregoing admonition.

In conclusion, we find in this record no errors affecting the substantial rights of either of the appellants.

The judgment is affirmed.


text:
    Alvin COMBS, Appellant, v. G. B. SMITH and Workmen’s Compensation Board et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 23, 1966.
    Harold Garland Wells, Hazard, for appellant.
    J. W. Craft, Jr., Hazard, for appellees.
   DAVIS, Commissioner.

Appellant seeks to reverse a judgment of the circuit court which sustained an award made to appellant by the Workmen’s Compensation Board. The Board awarded appellant $38.00 per week for 17 days of temporary total disability and $1.25 per week so long as he remains temporarily partially disabled but not to exceed a period of 400 weeks. Appellant contends that (1) he is totally disabled and will remain so for an indefinite time, or (2) even if the Board’s finding of 50% disability is upheld, it should be adjudged that such 50% disability is permanent rather than temporary, and (3) in any event, the Board and circuit court incorrectly computed the weekly benefit due to appellant even for temporary partial disability of 50%.

On June 26, 1964, appellant fell from a truck while performing normal duties for his employer. Incident to this accident he sustained an injury to the coccyx; medical evidence for appellant reflects that he had developed coccygodynia, a condition which is accompanied by pain in the coccyx area. His suffering was sufficiently acute as to require his being absent from work for 16 or 17 days.

At the end of that time appellant resumed his duties with appellee, his employer. However, he found that the discomfort incident to operating a coal truck (his normal duties for some nine years) precluded his continuing in that work. On or about September 1, 1964, (erroneously stated as 1965 in the Board’s opinion) appellant ceased working for appellee and entered on duty with an appliance and furniture store. In the latter employment appellant is not required to perform duties as strenuous as those required in his work as a coal-truck driver, although he does some truck driving on occasions.

The Board found from competent evidence that appellant had earned $62.50 per week of five working days in his employment by appellee, and that his weekly wage in his new job equals $60.00 for six working days. As noted, the Board also found that appellant is temporarily 50% disabled. Relying on KRS 342.100, the Board undertook to award 65% of the difference between appellant’s average weekly earnings before and after the injury.

We find no merit in appellant’s claim that appellant is totally disabled for an indefinite time from his usual occupation as a truck driver. Appellant relies on Sullivan v. Foster & Creighton Company, Ky., 394 S.W.2d 917 and Leep v. Kentucky State Police, Ky., 366 S.W.2d 729. In each of those cases there was a valid finding that the employee was totally and permanently disabled from performing the duties of his former occupational classification and his capacity to perform other kinds of work was impaired. Cf. E. & L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240, 241, 84 A.L.R.2d 1102. In the present case none of the medical evidence attributed permanence as a prospect for appellant’s disability, nor did any of the medical evidence characterize the disability as total. In fact, there was competent medical evidence that appellant had no disability of any kind. The Board was not required to be persuaded (indeed had no basis to be persuaded) that appellant’s disability is total or permanent. Lee v. International Harvester Company, Ky., 373 S.W.2d 418.

What we have just said disposes of appellant’s claim that the disability should be adjudged to be permanent, even if it is considered to be 50% partial rather than total. The medical evidence amply justified the Board’s finding that the disability was temporary, not permanent.

We agree that there has been an erroneous computation of the weekly sum to be paid during the period of temporary partial disability. The governing statute is KRS 342.100, which, in pertinent part provides:

“In case of an injury * * * resulting in temporary partial disability, the employe shall receive during such disability * * * sixty-five percent of the difference between his average weekly earnings before the injury * * * and the average weekly earnings that he earns, or is able to earn, in some suitable employment during such disability * *

It will be observed that the quoted statute makes no provision for applying the percentage of disability to the difference between the before and after injury earnings; it merely provides for the 65% factor.

Since the before-injury earnings of $62.-50 per week resulted from a five-day working week, and the after-injury earnings of $60.00 per week require a six-day week, we conclude that the proper basis for computing the “difference” in the before and after earnings is to calculate each work period on a five-day work week basis. The five-day work week at $62.50 per week is equivalent to an hourly payment of $1.5625. The hourly rate required to produce $60.00 in a six-day week of eight hours per day is $1.25; thus there is an hourly “difference” of $0.3125. When this “difference” is multiplied by forty working hours it produces a result of $12.50. Of course, the same result is reached by merely multiplying 40 hours by the after-injury rate of $1.25, giving a total of $50.00 per week after injury, as opposed to $62.50 per week before the injury. When the statutory 65% is applied to the difference of $12.50, the result is $8.12% per week, which should be rounded to $8.13 per week.

The judgment is reversed, with directions to enter a new judgment awarding appellant $8.13 per week, beginning as of September 1, 1964, and continuing during the period of appellant’s partial disability, but not exceeding 400 weeks from June 29, 1964.


author: NOLAN CARTER, Special Commissioner.

text:
    Donald WILLIAMS, Appellant, v. Edward J. NOWAK, Appellee.
    Court of Appeals of Kentucky.
    Sept. 23, 1966.
    Charles M. Gabhart, Manny H. Frockt, Louisville, for appellant.
    J. L. Richardson, Jr., Louisville, for ap-pellee.
   NOLAN CARTER, Special Commissioner.

This is a common law action in tort by an employee against his coemployee, for alleged injuries resulting from a deliberate act of the latter.

Appellant and plaintiff in the court below was an employee of the General Electric Company at its plant in Louisville. Both appellant and the General Electric Company had elected to accept the provisions of the Kentucky Workmen’s Compensation Act, KRS Chapter 342.

Appellee and defendant, Edward J. Nowak, was also employed by General Electric Company as a supervisor, appellant being one of the employees under his supervision.

On the morning of October 8, 1963, appellant was directed by appellee to assist another employee by the name of Bogard to perform certain work. Bogard had a “work break” at 9:30 a. m. Appellant’s work break ordinarily came at about 10 a. m. But on this occasion, when Bogard took his work break, appellant accompanied him to a room where several other employees were taking their break. Among these latter was an employee by the name of Pulliam, who had lost a friendly bet to appellant for a shoeshine. Appellant seated himself upon a repair stand, and Pulliam was shining his shoes when ap-pellee entered the room and kicked the stand. Appellant testifies that he fell from the stand to the floor, thereby receiving injuries for which he seeks redress in this lawsuit.

Appellee admits that he kicked the stand lightly, but denies that appellant fell or was injured. Thereafter, appellant instituted this action. By amended answer, among other defenses, appellee pleaded the acceptance by the employer and by appellant of the provisions of the Kentucky Workmen’s Compensation Act, as a complete defense.

Subsequently, appellee moved the trial court for summary judgment or to dismiss the action. On February 23, 1965, after oral argument, an order was entered dismissing the action. From this order, appellant prosecutes this appeal.

In the opinion of Miller v. Scott, Ky., 339 S.W.2d 941, this court said:

“The Act provides for actions at law in only three cases of accidents. KRS 342.015(2) provides for an action at law when an employee is injured through the deliberate intention of the employer. KRS 342.170 provides for like action in some accidents where minors are injured. KRS 342.055 deals with accidents caused by third parties and for which they are legally liable.” (Emphasis added.)

Appellant is not a minor. Though counsel for appellant argued before the trial court that appellant sustained injuries through the deliberate intention of his employer, there is no evidence whatsoever to sustain this contention. We conclude, therefore, that the trial judge correctly! decided this contention adversely to appellant.

As for the action mentioned in KRS 342.055, that is an action arising from, an accident caused by third parties and for which they are liable. In Miller v. Scott, supra, it was said that the “some other person” contemplated by this section of the statutes refers to a third person having no connection with the general work being performed and whose act of negligence was wholly disconnected with that work; and that a fellow employee could not qualify under this rule as the “some other person.”

In the more recent decision of Black v. Tichenor, Ky., 396 S.W.2d 794, the court said:

“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. * * * ”

That the alleged injuries to appellant arose out of and in the course of his employment seems manifest. In argument before the trial court, counsel for appellant conceded this fact. But aside from this concession, the evidence establishes that in his capacity as supervisor, appellee was concerned to see that the men kept at work, and that the reason for his act was that he thought appellant was “goofing off” on his job. There is no dispute in the evidence as to any material fact upon this issue. This being true, the question of whether the occurrence was “work connected” is a matter of law for the court’s determination. January-Wood Co. v. Schumacher, 231 Ky. 70S, 22 S.W.2d 117. The trial judge correctly determined that the occurrence was one arising out of and in the course of appellant’s employment.

It is argued for appellant that an intentional act of violence toward, or an assault upon, an employee is not an “accident” within the meaning of KRS 342.015 (1). But in a number of decisions, this court has decided that an assault by one employee upon another is an “accident” within the contemplation of this statute, and, if work-connected or arising out of and in the course of employment, falls within the purview of the Workmen’s Compensation statute. See Henry Vogt Machine Co. v. Chamberlain, Ky., 279 S.W.2d 224; York v. City of Hazard, 301 Ky. 306, 191 S.W.2d 239; and Kentucky Fluorspar Co. v. Wolford, 263 Ky. 471, 92 S.W.2d 753.

We conclude that the facts out of which this lawsuit arises do not bring it within any of the three exceptions mentioned in Miller v. Scott, supra, wherein common law actions are permitted, where the aggrieved party has accepted the provisions of the Workmen’s Compensation Act; and that the amended answer pleading such acceptance is a complete defense to this action. The trial court properly dismissed appellant’s complaint.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Ethel Haggard AVERITT et al., Appellants, v. Cecil C. BELLAMY et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 23, 1966.

      R. Russell Grant, Rodney J. Thompson, Winchester, for appellants.
    Alton S. Payne, Winchester, for ap-pellees.
   CLAY, Commissioner.

This is a suit to set aside a deed to real estate and a written instrument transferring personal property, on the grounds of mental incompetency, fraud, undue influence, lack of consideration and nonacceptance. The case was tried before a jury and at the conclusion of all the evidence, on motions for directed verdicts by the adversary parties, the trial court dismissed the plaintiffs’ complaint. They appeal.

The principal plaintiffs are two children of a deceased woman who conveyed her property to the defendants (unrelated) in consideration of the latter’s agreement to care for her as long as she should live. At the time these instruments were executed, on May 8, 1963, the mother was 75 years of age. On May 20 the defendants moved into her home and began performance of their agreement. On June 3 the mother was stricken, and on June 14 she died. The principal ground of attack upon these instruments is the alleged mental incompetency of the decedent.

Because it involves an important procedural aspect of the case, we will first consider plaintiffs’ contention that the Chancellor erred in directing a verdict for defendants, which technically he did not exactly do. Defendants demanded a jury in their Answer and the case was assigned for trial in that manner and was so tried. At the conclusion of the evidence the trial court (without specifically sustaining a motion for a directed verdict or directing a verdict) took the case from the jury. The procedure was rather unique in several respects.

A suit to set aside the transfer of real or personal property is peculiarly one of equitable cognizance. Regardless of demand, no party has a right to a jury trial (CR 38.01). Ford v. Ellis, Ky., 56 S.W. 512; Sellers v. Sellers, 162 Ky. 9, 171 S.W. 449; Louisville & N. R. Co. v. Tuttle, 180 Ky. 558, 203 S.W. 308; Snyder v. General Conference Board of Education, Etc., 205 Ky. 812, 266 S.W. 661; Owings v. Webb’s Ex’r, 304 Ky. 748, 202 S.W.2d 410; Alt v. Burt, Ky., 242 S.W.2d 974; Sanders v. Needy, Ky., 363 S.W.2d 114.

Under CR 39.03 the Chancellor may (upon motion or upon his own initiative) try any fact issue with an advisory jury. The jury trial of a legal issue is another matter. See Brock v. Farmer, Ky., 291 S.W.2d 531, and Barrier v. Brewster, Ky., 349 S.W.2d 823.

The use of an advisory jury in an equitable proceeding is entirely discretionary with the court and the Chancellor is not bound by its conclusions. See cases heretofore cited, and particularly Sanders v. Needy, Ky., 363 S.W.2d 114.

Under CR 39.03 it is provided that, with the consent of all parties, the court may order a trial by a jury whose verdict shall have the same effect as if the parties had a right to a jury trial. It has been held that in an action initially triable as a matter of right before a jury, where the parties waive such right and the case is nevertheless tried by a jury without objection, the parties will be deemed to have consented to that method of trial and are bound by the verdict. Williams v. Whitaker, Ky., 293 S.W.2d 627, 64 A.L.R.2d 504.

We do not believe this implied consent should be invoked in a proceeding of peculiarly equitable cognizance, and it must be assumed in this case that the issues of fact were submitted to the jury only in its advisory capacity. Consequently, the action of the Chancellor in taking the case from the jury at the conclusion of all the evidence could not, in itself, have been reversible error. This answers the argument of plaintiffs that the trial court committed error in directing a verdict for the defendants. The action taken by the Chancellor in reality constituted a ruling that the plaintiffs had failed to prove their case and even a favorable finding for them by the advisory jury would not be acceptable.

Plaintiffs contend that such a ruling was erroneous because a confidential relationship existed between the decedent and defendants, thereby casting on the latter the burden of proof. The burden of proof did not shift to the defendants because it is clear that the requisite confidential relationship did not exist at the time the transfers were made.

The next contention is that the Chancellor erred in refusing to permit five lay witnesses for the plaintiffs to express their opinions with respect to the competency of the decedent. Actually all of these witnesses testified at length to facts which indicated her lack of mental capacity. Objections were sustained to such questions as whether in the opinion of the witnesses the decedent was "mentally competent”, or “would know the legal consequences of business transactions”, or her “mind was not right”. Under the cases of Jefferson Standard Life Ins. Co. v. Cheek’s Adm’r, 258 Ky. 621, 80 S.W.2d 518; Hutchins v. Foley, 271 Ky. 104, 111 S.W.2d 586, and Emerine v. Ford, Ky., 254 S.W.2d 938, it would appear the trial court erroneously sustained objections to these questions calling for the ultimate conclusions of the witnesses. This error, if any, could not have been prejudicial in the instant case because their opinions were implicit in their testimony concerning the conduct of the decedent. To have stated these opinions in the precise words above quoted would have added nothing of substance to their testimony. We do not find this reversible error.

The final contention is that defendants did not accept the deed to the home place and consequently the conveyance was ineffective. The consideration was the defendants’ agreement to take care of the decedent as long as she lived. The deed was executed on May 8, and was manually delivered to defendants on that date. Three or four days later they took the deed to an attorney to have the title checked. On May 16 they requested a doctor to examine the decedent for mental competence. On May 20 they moved into the home and began to care for the decedent. On June 3 decedent had a cerebral hemorrhage. On that day defendants recorded the deed.

It is plaintiffs’ contention that under these facts there never was a time when it could be said the delivery and acceptance of this deed was consummated. It seems to us that the manual delivery of the deed on May 8 consummated the transaction. Certainly the decedent parted with her title and at least the defendants conditionally accepted the conveyance on that day.

We cannot see how the subsequent precautionary acts of the grantees can be held to have evidenced nonacceptance. They were simply making sure this was a valid conveyance. If their acceptance may be said to have been conditional, it became final when the conditions were satisfied. In any event, acceptance was complete when they started performance of their obligations or when they recorded the deed.

The judgment is affirmed.


text:
    VALLEY POULTRY FARMS, INC., a Corporation, Appellant, v. Calip PREECE et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 23, 1966.

      H. David Hermansdorfer, Diederich & Hermansdorfer, Ashland, for appellant.
    Jack Q. Heath, Louisville, for Ky. Farm Bureau Federation, amicus curiae.
    Kelley Asbury, Catlettsburg, for appellees.
   WOODWARD C. TIPTON, Special Commissioner.

This is an action for permanent damages because of a private nuisance.

It appears that appellant bought its land about 1961 and constructed four chicken houses for laying hens. The land is located in a rural part of Boyd County on the Durbin road, with one of the chicken houses being alongside the Durbin road. The ap-pellees acquired their land about 1936 and the main residence of the appellees is located about 250 to 300 feet from the chicken houses and the rental house of appellees is located about 150 feet from the nearest chicken house. The generally prevailing wind is from the chicken houses toward the residences.

The appellees complained of the chicken houses because of the noise, odor, insects and dust therefrom. The noise begins about 4:00 A.M., when it awakens appellees in their home preventing sleeping thereafter. The odors are so bad that the windows in the home have to be kept closed in the summer time, forbidding the use of fans. Ap-pellees said no meal was fit to eat because of the odor and the dust caused by the hens flying and hitting the ceilings in the chicken houses. Dust therefrom settles on the ap-pellees’ property. Because of the chicken manure there are many flies so that clothes cannot be hung out to dry without the clothes being flecked by the flies.

The appellant admitted there had been a temporary condition from the odor of wet chicken manure and an overflow from an artesian well under a chicken house over onto appellees’ property, polluting the cattle watering hole of appellees; that an injustice had been done and they did what they could to correct it. For appellant it was shown that after correction there was no adverse finding by the county and state health departments; that the chicken houses were built and maintained according to the highest standards and that they used due care and were not guilty of negligence and that the business was a lawful business.

The jury found that the operation of the chicken houses was a permanent nuisance and awarded a verdict of $5,000.00 to ap-pellees. The appellant does not complain of the instructions, nor does appellant complain of an excessive verdict.

The appellant raises three questions on appeal as follows:

1. That the evidence does not support the jury finding that the commercial poultry operation, operated with due care in a rural area and of the smallest size to be economically feasible, is a permanent nuisance;
2. Where the evidence shows that an alleged nuisance arose after commencement of a commercial poultry operation, it is error to prove damage by considering value “without” the poultry houses;
3. The jury verdict must be set aside on the law and evidence in this case.

The three questions will be considered by the court in the order raised.

The jury found in answer to an interrogatory that appellant did operate its poultry houses with due care and there was no evidence but what they were located in a rural area and were of the smallest size to be economically feasible. The only thing to be considered is whether although the chicken houses were operated with due care, they are still a permanent nuisance. There was evidence by the appellant that there had been a temporary situation of which appellees might complain, but there was evidence by appellees and their witnesses that the odors, noises, dust and insects were continuing matters and one witness testified as to insects up until about a month before the trial. This court finds that there was probative evidence of value upon which the jury could and obviously did find that there was a permanent nuisance.

“If the structure is in character relatively enduring and not likely to be abated, either voluntarily or by an order of court, it is generally held that the nuisance is a permanent one.” Searcy v. Kentucky Utilities Co. (1954) Ky., 267 S.W.2d 71.

Even when the business is lawful in itself and is being operated with due care, yet a use of the property that is otherwise reasonable (in the sense of non-negligent) may be rendered unreasonable by the gravity of its effect upon the use and enjoyment of other property and therefore it can be a nuisance. Associated Contractors Stone Co. v. Pewee Valley Sanitarium, etc. (1964) Ky., 376 S.W.2d 316.

The evidence supports the jury finding although there was some conflicting testimony. In such case the verdict may not be deemed unsupported by the evidence. Runner v. Hudson (1952) Ky., 247 S.W.2d 522.

The appellant complains that the measure of damages as testified to by the expert witness produced by the appellees does not meet the requirements as set forth in Searcy v. Kentucky Utilities Co. (1954) Ky., 267 S.W.2d 71. This contention is based on the questions propounded to the expert witness which were:

Q. What would be the market value without the chicken houses?
A. $19,500.00 in my opinion.
Q. Do you have an opinion as to what it would be worth with the chicken houses there?
A. I would say $13,000.00.

Standing alone, and without further explanation and testimony, this would be objectionable as it could include damages just from the fact that the chicken houses were there and this would not be compensa-ble. However, the expert witness had previously testified to the objectionable factors he had noticed in August, 1964, (and prior thereto), namely, a great quantity of gnats on the property, on the rental house lawn and on the road, and also the odor, and some residue in a little stream in a drainage area from the chicken houses and that this affected the market value. On cross-examination the appellant brought out from the expert witness that if there were no odors, if there were no overflow, if there were no insects, if there were no noise, then the damage would not be there, that is, the chicken houses alone would not damage. In fact, appellant proved by its own expert witness that the mere presence of a chicken house next to the land of Calip Preece would not have any effect on the value of the Preece land. The jury hearing this testimony knew that the mere fact that the chicken houses were there did not lower the value of the property; that it was the noise, odor, dust, and insects that affected the value and therefore the jury was not deceived and we cannot see how the substantial rights of the appellant were prejudiced thereby. All during the trial it had been emphasized that there was no complaint as to the chicken houses themselves. There is no complaint on appeal that the verdict is excessive and this objection could only affect the amount of the verdict, if at all. There is no complaint as to the instructions on the correct measure of damages.

Appellant complains that the jury ignored the instructions, but no complaint is made of the instructions and a verdict is “contrary to law” only when it is contrary to instructions. Brumley v. Mary Gail Coal Co. (1952) Ky., 246 S.W.2d 148. Since the evidence supports the verdict and the instructions, no new trial may be properly granted.

The Kentucky Farm Bureau Federation filed a brief as amicus curiae in behalf of the appellant and stresses the importance of the poultry industry to Kentucky, the low margin of profit, and the use of the best designed chicken houses. It is contended that to hold against appellant would be to hold that poultry raising is a nuisance per se and that this business cannot be conducted in the Commonwealth of Kentucky.

The lower court was very careful to instruct the jury ajid among other things instructed the jury to consider the lawful nature of the chicken industry, the importance of its business and its influence on the growth and prosperity of the community. The lower court did not instruct that poultry raising was a nuisance per se.

It appears that the appellees were there first and appellant in the exercise of its business judgment erected a chicken house alongside a road and about ISO feet from a rental house and about 300 feet from the home of Calip Preece and his wife. Surely, appellant or its officers and manager knew from their past experience that a chicken house will cause odors, noise, dust and insects and that there is no way to- control same or else surely they would have done something to eliminate the same. The counsel for appellant knew that the jury might be sent to inspect the premises and this court can only conclude that they were as clean as they could be made at the time the jury inspected, and the jury gave a unanimous verdict.

The keeping of poultry has been a source of much litigation in other jurisdictions and it has frequently been recognized that the keeping of chickens is not a nuisance per se but may become a nuisance because of the circumstances or manner in which the business is operated. Nuisance-Keeping Poultry (1965) 2 A.L.R.3d 966-978.

We do not hold that chicken houses are a nuisance per se, but that the location of the chicken houses in this action in such close proximity to appellees’ property, together with the noise, dust, odors and insects arising therefrom constitute a permanent, private nuisance to appellees.

Wherefore, the judgment of the lower court is affirmed.


author: HILL, Judge.

text:
    Taylor FULLER and Teamsters Local 779 et al., Appellants, v. The PEPSI-COLA BOTTLING COMPANY OF LEXINGTON, KENTUCKY, INC., Appellee.
    Court of Appeals of Kentucky.
    Sept. 23, 1966.

      John C. Anggelis, Anggelis & Collis, Lexington, for appellants.
    Robert F. Houlihan, Stoll, Keenon & Park, Lexington, Hulse Hays, Jr., William K. Engeman, Taft, Stettinius & Hollister, Cincinnati, Ohio, for appellee.
   HILL, Judge.

Appellants, plaintiffs in the trial court, undertake by this appeal to reverse the judgment of the trial court dismissing the complaint in which they prayed for the enforcement of an ex parte arbitration award by a union arbitrator not participated in by the arbitrator appointed by the appellee-de-fendant company.

Appellant Taylor Fuller was a route salesman in the vicinity of Lexington, Kentucky, for appellee Pepsi-Cola Bottling Company. Teamsters Local 779 was the collective bargaining agent for Fuller.

Appellant Taylor Fuller was discharged by the appellee on October 16, 1963. Previously, and on August 7, 1962, the union and company entered into a written collective bargaining agreement. The interpretation of this agreement must determine this litigation. So far as is material here, Article V provides:

“Any complaint of the violation or infraction of any section of this agreement shall first be submitted by the aggrieved employee to the Union who shall immediately notify the plant manager and endeavor within one week to settle the matter satisfactorily to both parties. Should the employee and Union representative, however, be unable to settle same with the plant manager within said period of time, then the complaint shall be specifically reduced to writing and presented to the Company. Within seven days thereafter, the Union shall name an arbitrator and the Company shall name an arbitrator and these two arbitrators will endeavor to resolve said difficulty. If said two arbitrators are not able to do so within a period of ten days, then they shall immediately attempt to select a third arbitrator. If they fail to agree on the selection of said third arbitrator for a period of ten days, either arbitrator may apply to and request the Federal Mediation and Conciliation Service to submit a panel of five persons, one of whom shall serve as such third arbitrator. The party requesting arbitration shall strike one of the nominees and the other party shall strike one of the nominees until there remains only one nominee who shall serve as a third arbitrator.
“The third arbitrator shall meet with the other two arbitrators within ten days after his appointment. The matter or matters in dispute shall then be decided by-a majority of said arbitrators. They shall promptly notify the Company and Union, in writing, of their decision and the parties hereto shall be bound thereby.”

On October 18, 1963, two days after Fuller’s discharge, a record of grievance required by the bargaining agreement was submitted by the union to the company. On October 21, 1963, at a meeting of representatives of the union and the company, the latter declined to reinstate Fuller. On October 28, 1963, John C. Anggelis was appointed by the union as its arbitrator. The company having failed to designate its arbitrator, the union arbitrator proceeded to make an ex parte award reinstating Fuller, notice of which was given the company on November 18, 1963.

On December 13, 1963, the company appointed Hulse Hays as its arbitrator. The union took the position the company had forfeited its right to arbitrate by reason of its failure to designate an arbitrator within the time provided in the contract and filed this action January 7, 1964, seeking the enforcement of the ex parte award made by Anggelis.

It is conceded by all that in labor disputes of the nature involved here federal law shall govern. Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972.

Both federal and state courts have jurisdiction of actions to enforce labor agreements. Cf. Harbison-Walker Refractories Co. v. United Brick & Clay Workers of America, AFL-CIO Local No. 702, Ky., 339 S.W.2d 933.

It may be said as a general proposition, “the settlement of disputes between labor and management by fair and intelligent arbitration is favored by the courts.” 31 Am.Jur., Jury, Section 371. Also Norwalk Teachers’ Association v. Board of Education of Norwalk, 138 Conn. 269, 83 A.2d 482, 31 A.L.R.2d 1133.

It is elementary contract law that the courts will undertake to enforce the contract according to its terms. In the present case, appellant union contends the failure of the company to appoint its arbitrator within the time provided by the contract authorized it (the union) to proceed with a unilateral or ex parte determination of the dispute and cited Harbison-Walker Refractories Co. v. United Brick & Clay Workers of America, AFL-CIO Local No. 702, supra, as justification for that position. Harbison-Walker is distinguishable from the facts of the present case in that in the former the contract specifically provided that in event the company failed to designate an arbitrator the union had a right under the contract to “[request] appointment of an arbitrator by the American Arbitration Association,” which was clearly an alternative plan of arbitration. In the present case no alternative plan is provided. The contract is silent as to the procedure to be followed in event either party failed to appoint its arbitrator. In such a situation, the remedy of the party not in default was a suit to enforce arbitration, not a suit to enforce a unilateral arbitration award not provided for in the contract. Cf. Food Handlers Local 425, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO v. Pluss Poultry, 8 Cir., 260 F.2d 835.

It is concluded the rule applied in Pluss Poultry, supra, must govern the rights of the parties in the present case. In Pluss Poultry, the contract did not provide for an ex parte award in event one party refused to appoint an arbitrator. The contract in the present case is very similar to that in the Pluss Poultry case. The two contracts are identical in that they do not provide for ex parte award. It was concluded in Pluss Poultry that:

“The District Court found no authority to support the ex parte award made by Mr. Barnhart in any precedents or in the statutes and we find none. The award was therefore void and unenforceable and the judgment of dismissal of the action must be affirmed.”

Appellant relies on Kentucky River Mills v. Jackson, 6 Cir., 206 F.2d 111, 47 A.L.R.2d 1331, but Jackson is distinguishable for the good reason that the arbitration agreement therein provided: “If either party fails to appoint an arbitrator within seven (7) days after receiving the other party’s nomination of an arbitrator, the one arbitrator nominated may act as sole arbitrator.” (Emphasis ours)

It is concluded the judgment appealed from fairly interpreted the arbitration agreement as it was written and should be and is affirmed.


author: WALKER, Justice.

text:
    Guanadine Bates HUTCHINGS et vir, Petitioners, v. Geraldine BATES, Respondent.
    No. A-11049.
    Supreme Court of Texas.
    July 13, 1966.
    Dillingham & Schleider, Houston, for petitioners.
    Barrow, Bland, Rehmet & Singleton, R. F. Wheless, Jr., with above firm, Houston, for respondent.
   WALKER, Justice.

The question to be decided here is whether a divorce decree and the property settlement agreement upon which it rests created an obligation which binds the husband’s estate to make child support payments accruing after his death.

Geraldine Bates, plaintiff, obtained a divorce from her husband, Warren David. Bates, in 1949. They had been married, some five years, and two children were born to their marriage. One of the children was born in 1945 and the other in 1947. After the divorce action was filed and prior to the entry of judgment therein, plaintiff and Bates executed a property settlement agreement which was subsequently approved by the court and incorporated in the divorce decree. Under the terms of this contract plaintiff was given the care and custody of the two children, and Bates agreed to pay her $150.00 per month for their maintenance and support “until the older of said two minor children shall have reached the age of 18 years; at which time said amount is to be reduced from $150.00 per month to $100.00 per month with deposits * * * to be made * * until the younger of said two minor children shall have reached the age of 18 years.” He further agreed “to assume and to pay all reasonable doctor, medical, dental and hospital expenses incurred for or in behalf of said two minor children until the younger of said children shall have reached the age of 18 years.” Substantially the same language was used in the divorce judgment, which directed Bates to make support payments as provided in the contract.

Bates remarried after his divorce from plaintiff, but no children were born to his second marriage. He died in 1960 at the age of 38, leaving a written will which devised and bequeathed all of his estate to his second wife, now Guanadine Bates Hutchings, who is defendant in the present suit. She was also named in the will as independant executrix without bond, and the instrument further directed that none of the testator’s property should go to the plaintiff. The will has been admitted to probate, and defendant is the duly appointed and acting independent executrix of the estate.

All child support payments accruing prior to the testator’s death were paid by him. The present suit was instituted by plaintiff, individually and as next friend for her two children, against defendant, individually and as independent executrix, to recover medical expenses incurred and monthly child support payments accruing after the testator’s death. Plaintiff’s motion for summary judgment was granted by the trial court, and the Court of Civil Appeals affirmed. 393 S.W.2d 338. We affirm the judgment of the Court of Civil Appeals.

The parties recognize that the common law obligation of a father to support his infant children terminates with his death. See 39 Am.Jur. Parent and Child, § 40, 67 C.J.S. Parent and Child § 15. It is also well settled that an obligation to make periodic support payments, when created by a divorce decree based entirely upon the power conferred by Article 4639a, Vernon’s Ann.Tex.Civ.Stat., is not a debt and may be enforced only by contempt proceedings. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119; Ex Parte Birkhead, 127 Tex. 556, 95 S.W.2d 953. In a case like the present, however, where the duty to make support payments arises from an agreement of the parties, their rights and obligations in that respect are governed largely by the rules relating to contracts. See Ex Parte Jones, 163 Tex. 513, 358 S.W.2d 370; Mobley v. Mobley, Tex.Civ.App., 221 S.W.2d 565 (no writ); Hyman v. Brady, Tex.Civ.App., 230 S.W.2d 345 (no writ). Here the judgment simply recited and directed the father to comply with the terms of his agreement, and the case turns upon the intention of the parties as disclosed by such provisions and the surrounding circumstances.

The parties did not state that the contract would bind, and the divorce judgment does not purport to bind, their heirs and personal representatives. It was agreed that the payments should continue until the younger child" reached the age of 18 years, but there is no other provision suggesting that the father’s estate would be responsible for payments accruing after his death. The effect of such an agreement and judgment as they bear on the question now before us has not been decided in Texas, and the courts of other jurisdictions have expressed divergent views as to the proper rule for construing same. See Annotation, 18 A.L.R.2d 1126.

Some courts hold that the father’s estate is not responsible for payments accruing after his death unless it affirmatively appears that the obligation was not to be affected by death. A stipulation that the payments would be made during minority or until a certain event occurs is not regarded as sufficient to show an intention that the payments should continue after the obligor’s death. In support of this conclusion, it has been pointed out that the agreement is in settlement of litigation in which the court could not have required payment of child support after the father’s death. The courts have also observed that a contrary holding would often delay the closing of estates and restrict the right of an individual to make disposition of his property by will. See Lewis v. Lewis, 239 Miss. 728, 125 So.2d 286; Mahaffey v. First National Bank, 231 Miss. 798, 97 So.2d 756; Gordon v. Gordon, 90 U.S.App.D.C. 280, 195 F.2d 779; Desjardins v. Desjardins, D.C.Ky., 193 F.Supp. 210.

Other courts regard a promise to make periodic payments “during minority” or “until further order of the court” as a clear expression of an intention that the payments shall continue after the obligor’s death. They accordingly hold that an obligation expressed in these terms is binding upon the estate of the parent unless it appears from other provisions or the surrounding circumstances that the duty to pay was purely personal. Ramsay v. Sims, 209 Ga. 228, 71 S.E.2d 639; Taylor v. George, 34 Cal.2d 552, 212 P.2d 505; In re Fessman’s Estate, 386 Pa. 447, 126 A.2d 676; Smith v. Funk, 141 Okl. 188, 284 P. 638. In rejecting the contrary view, the Supreme Court of California reasoned that it is the solemn duty of every father to support his children during their minority, “and if he fails to do so, every principle of justice demands that they be thus supported out of his estate.” It also expressed the opinion that the welfare of the child is at least as important as the father’s power of testamentary disposition, and that the child might become a public charge if the father’s estate were not held liable for the support payments accruing after death. Newman v. Burwell, 216 Cal. 608, 15 P.2d 511.

There is something to be said for each of these approaches. We recognize that each may work a hardship in individual cases, one upon the children of the broken marriage and the other upon the widow and children of a subsequent marriage. Neither rule will be entirely satisfactory in every instance, but it seems to us that our courts are more likely to carry out the intention of the parties and achieve just results if they adhere to basic principles of contract law. We hold, therefore, that where the contract and judgment provide for periodic support payments to be made until the occurrence of a specified event the obligor’s estate is responsible for installments accruing after his death unless it fairly appears from other stipulations or the surrounding circumstances that it was intended for the obligation to terminate upon death.

The contract and judgment in this case make no mention of heirs and personal representatives. Defendant also points out that the testator agreed to keep two annuity insurance policies in force for the benefit of the children, but on the present record these circumstances are not sufficient in themselves to show that the parties intended for the support payments to be made only during the obligor’s lifetime. The testator bound himself to make payments in a definite amount for a definite period of time. This promise was part of a settlement agreement in which he was recognized to own as his separate property an undivided one-third interest in eleven parcels of real estate. The contract further discloses that his income from rents and royalties was approximately $200.00 per month, and there is nothing to suggest that the parties expected the payments to be made entirely out of his personal earnings. It does not appear that they were simply agreeing upon a figure which might be fixed for the time being by the court in the divorce decree, and the testator obligated himself to continue the payments for two years longer than could otherwise have been ordered by the court. From a consideration of all the provisions of the contract and the circumstances surrounding its execution, it is our opinion that the estate is responsible for support payments accruing after the testator’s death.

The judgment of the Court of Civil Appeals is accordingly affirmed.

      . Plaintiff also sought and has been granted a recovery for certain monthly installments the testator promised to pay in consideration of her relinquishing all homestead and property rights in an apartment building which they had occupied as a home prior to the divorce. No question regarding this portion of the trial court’s judgment was brought forward in the application for writ of error.

      . Summary judgment was rendered on the issues of liability only, and evidence bearing on the reasonableness of the medical expense was submitted to the court as the trier of fact. One final judgment was then rendered on the entire case.

      . Article 4639a as it existed in 1949 empowered the court to order periodic support payments until the child reached the age of 16 years.