text:
    KENTUCKY UTILITIES COMPANY, Appellant, v. Paul JETT and Amy Jett, His Wife, et al., Appellees.
    Court of Appeals of Kentucky.
    June 11, 1965.
    James Park, Jr., Stoll, Keenon & Park, Lexington, George T. Ross, Richmond, for appellant.
    G. Murray Smith, Jr., Richmond, for ap-pellees.
   CULLEN, Commissioner.

Kentucky Utilities Company appeals from a judgment awarding the appellee landowners $10,000 damages in the taking by eminent domain of easements for electric transmission lines.

The judgment must be reversed for ex-cessiveness of damages. This case was tried prior to the decision in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844, so there were separate awards of “taking” damages and “resulting” damages. We do not find exces-siveness in the former award, but we do in the latter.

The easements, 100 feet in width, extend a distance of 3055 feet over the appellees’ farm and embrace a total of seven acres. The farm is within the city limits of Richmond and admittedly is adaptable for subdivision purposes. Although the landowners gave obviously inflated estimates of the value of the land taken for the easements (from $15,200 to $16,800), and although the physical facts do not bear out their claim that the land taken for the easements is the most valuable in the entire farm, yet their evidence, with that of their expert witness, had sufficient probative value to support the award of $5,000 for the land taken. This award is only $1,000 more than the estimate given by one of the witnesses for the appellant. It amounts to only a little more than $700 per acre, which is not at all unreasonable under the evidence of comparable nearby sales.

As concerns the “resulting” damages, the highest estimate of such damages, other than by the landowners themselves, was “two or three thousand dollars” by the landowners’ expert witness. The landowners made estimates of $10,000 and $15,000, in support of which estimates they gave only vague generalities. The circumstances and conditions shown by the evidence do not indicate any particular basis of “resulting” damages, so on their face the landowners’ estimates are extravagant. In the absence of specific supporting facts the landowners’ estimates do not have sufficient probative value to sustain the award of $5,000 for “resulting” damages. Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472.

The appellant complains that it was improper to admit evidence of the prices received at sales of other tracts of land in the community ranging in size from 6 acres to 10 acres, because those tracts were not comparable in size to appellees’ 150-acre farm. The appellant maintains that the appellees improperly were endeavoring to separate for comparison purposes the seven acres being taken for the easements, and that the only valid comparison would be of land comparable to the entire farm. Since the evidence showed that the appellees’ farm was of best adaptability for subdivision purposes, which necessarily would contemplate some division of the farm into sections (to be subdivided), we think it was entirely proper to use for comparison purposes sales of other tracts fairly comparable to a section of the farm which reasonably might be expected to be sold for a subdivision development. (As a matter of fact, the appellees previously had sold from their farm tracts of 15, 12 and 19 acres.)

The appellant further complains of the court’s overruling of appellant’s motion to strike for cause two prospective jurors who had stated on voir dire examination that they thought a landowner should be awarded something extra by way of damages because his land was being taken against his wishes. One of the jurors later qualified his statement so as to indicate that he would abide by the instructions, and we think it was not error to refuse to strike him for cause. It is our opinion that it was error not to strike the other juror, who did not qualify his statement. However, it appears that this error was inadvertent, resulting from a misunderstanding of what the juror had said, and there is no reason to fear that the error will reoccur on another trial.

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


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    Katie BRUCE, Appellant, v. Alden ALLEY, d/b/a Alden Alley & Son, Appellees.
    Court of Appeals of Kentucky.
    June 11, 1965.

      James A. Crumlin, Louisville, Kenneth H. Goff, Leitchfield, John P. Sandidge, Louisville, for appellant.
    Delma L. Mauzey, Leitchfield, L. A. Faurest, Elizabethtown, for appellees.
   HILL, Judge.

On the trial of this case in circuit court a directed verdict for defendant was given at the conclusion of the plaintiff’s evidence. Plaintiff appeals.

The question presented is whether there was sufficient evidence of negligence and proximate cause to require submission of those issues to the jury.

December 7, 1957, appellee installed a gas floor furnace in Christ Temple Church, Leitchfield, Kentucky.

February 9, 1958, appellant came to church in the afternoon and shortly became ill and unconscious. She was taken to a hospital and remained there until the following Wednesday. Several other persons in this church were likewise stricken the same day, but not as severely as appellant. Appellant claims her condition resulted from inhaling carbon monoxide fumes from the improperly installed or improperly vented floor furnace. Dr. Nichols and Dr. O’Neil testified these stricken people suffered from symptoms of carbon monoxide poisoning. The former testified carbon monoxide is a by-product of gas combustion.

Some of the congregation entertained some question as to whether the furnace was operating properly and on February 8, 1958, the day before the injury and the planned all-day meeting, appellee was notified and requested to inspect the furnace and make any necessary corrections. Ap-pellee sent his employee, Bill Bevil, to investigate and correct any defect. Bevil made some minor adjustment in the gas and air mixture control system.

For the curious it may be explained that the long delay in the disposition of this case was caused by various circumstances, among which were a mistrial, death of a trial judge, and other circumstances about which no complaint is made here by either litigant.

Appellant contends there was sufficient evidence of negligence and proximate cause to require submission to the jury; that the vents only extended two feet above the ground while Kentucky Department of Safety regulations required them to extend above the roof; that the floor furnace was placed too near the ground without sufficient space to allow proper intake of air; that such vents as were used were improperly installed so as to permit condensation of water in the vent and such condensed water returned to the furnace preventing proper combustion. On the question of proximate cause, appellant virtually contends the rule “Res Ipsa Loquitur” should apply, especially in view of the dangerous substance in the furnace.

On behalf of appellee it is urged that appellant did not prove negligence in the installation of the furnace; that, on the other hand, he proved it was properly and customarily installed; that there was no evidence the carbon monoxide poisoning was caused by any defect in installation. Appellee stoutly contends he found a “rag” in the vent after the claimed injury. We shall thoroughly analyze this defense later.

KRS 13.081 authorizes the Kentucky Department of Safety to adopt reasonable rules and regulations pertaining to installation of gas furnaces such as we have in the present case.

Appellant’s witness, Southworth, a Deputy State Fire Marshal, testified that such a rule or regulation had been adopted, and Rule 5.53, page 47, provided that vents in the classification of those with which we are concerned here must extend above the top of flat roofs or two feet above the highr est part of a wall. He testified the vents in the Christ Temple Church were not installed according to such rules and regulations.

It was held in Andreoli v. Natural Gas Company, 57 N.J.Super. 356, 154 A.2d 726, that evidence was sufficient to require submission to the jury in a case of improper installation of gas fixtures in violation of the rules and regulations of the Natural Board of Fire Underwriters approved by the New Jersey State Police rules and regulations. In the Andreoli case, the court said:

“In the present case plaintiff established in the clearest way that defendants had not followed the safety standards of the industry, nor, indeed, conformed to the common standard used in • installing the type of equipment here involved. This showing was, at the very least, sufficient to have the jury pass on the question of negligence.”

So, in the present case we have a clear violation of a properly adopted safety regulation. In addition, natural gas is a dangerous substance requiring a high degree of care. Anderson v. Atlantic City, 145 A. 238, 7 N.J.Misc. 297; Washington Gas Light Company v. Biancaniello, 87 U.S.App.D.C. 164, 183 F.2d 982; Cleveland Gas Co. v. Wollen, 30 Tenn.App. 282, 205 S.W.2d 754; and Rowan v. Western Kentucky Gas Co., D.C., 82 F.Supp. 591, wherein it is said:

“Gas like electricity, is easily subject to control and of inestimable usefulness in the hands of those who know its propensities. To the great masses of people it is a deadly instrumentality incapable of perception of its presence until that presence is made known by calamity or tragedy from explosion or fire. Thus the law should and does place upon those who handle gas an obligation to handle it in such way that it is harnessed for benefit to the purchaser and profit to the seller. The ‘ordinary care’ required is not the care of an ordinary person for the average person knows nothing of how to handle gas. Ordinary care in this instance means ordinary care by people learned in the handling of gas.”

That carbon monoxide poisoning was the cause of appellant’s illness there can be little doubt. Appellee does not seriously contend that appellant’s illness was not caused by inhaling poisonous fumes. In fact, numerous persons in the church on the day in question became ill with similar symptoms.

This Court, like the authorities from other jurisdictions referred to above, has recognized the liability of persons handling natural gas, or gas fixtures, for damages resulting from improper handling or installations incident thereto. Louisville Gas Co. v. Gutenkentz, 82 Ky. 432, 6 Ky. Law Rep. 464; Kentucky-West Virginia Gas Company v. Slone, 238 S.W.2d 476. In the Slone case, this Court adopted the following quotation from a Florida case:

“Negligence may be inferred from circumstances properly adduced in evidence, provided those circumstances raise a fair presumption of negligence; and circumstantial evidence alone may authorize the finding of negligence.”

Also, in a later case of Louisville Gas & Electric Co. v. Sanders, 249 S.W.2d 747, a case involving escaping gas, this Court said:

“The doctrine of res ipsa loquitur applies here if the damage suffered by-appellee’s trees, shrubs and grass can he traced to gas escaping from an instrumentality controlled exclusively by appellant.”

Also, in the very recent case of Current v. Columbia Gas of Ky., 383 S.W.2d 139, this Court held a jury question was presented by a showing the defendant gas company negligently “cut in” the gas into an unvented space heater. Inasmuch as the Current opinion, supra, deals with proof requirements also, we quote the following from it:

“It is basic tliat a plaintiff is entitled to the most favorable inferences and construction attributable to the evidence, upon consideration of a motion for directed verdict against him; if such evidence, so regarded, substantially tends to support the cause of action, the verdict should not be directed against him. Johnson v. Vaughn, Ky., 370 S.W.2d 591; 18 Ky.Digest, Trials, In our view, the evidence we have discussed amply warrants a factual issue whether the alleged injuries of the appellants were proximately caused by negligence of appellee in cutting gas into an improperly vented space heater. Therefore, it was error to grant judgment as if the motion for directed verdict had been sustained.”

We conclude appellant offered sufficient evidence of negligence and proximate cause to require the issue determined by the jury. The trial court erred in directing a verdict for the appellee. Let us examine appel-lee’s contention that a rag he found in the vent caused the poisonous fumes and resulting injury. He testified that he and his employee, Bill Bevil, went to the church on the day of and after the injury, took flashlights and examined the entire gas system he had installed. He said he found a rag in the ventilator. He did not use Bill Bevil to corroborate his self-serving testimony. He also said that there were “two or three” other people about the church and when asked if he showed the rag to them or told them about it, he said “No.”

Genetta Coe, one of the trustees of the church, testified she was at the church that evening- and that appellee did not tell her anything about finding a rag.

Nether Davis, a member of the church and Master of Ceremonies on the tragic day, stated appellee did not .tell her anything about having found a rag in the vent.

Sherman Wilkerson, Chief of Police of Leitchfield, testified he talked with appellee and that the latter did not mention finding a rag.

Floyd Johnson testified he was at the church most of the evening and that ap-pellee did not mention a rag at all. He, as well as all the other witnesses, testified the first time they heard of the rag story was during the first trial in circuit' court.

Hon. James T. Bevil, Sr., three-term Mayor of Leitchfield, testified he went with appellee to the church about seven o’clock the evening of the alleged injury and that if appellee mentioned a “rag,” he didn’t remember it.

Katie Bruce was in the hospital unconscious. Numerous other people were sick. There was widespread distress in the little church. We may assume appellee heard about, or suspected gas fumes, otherwise he would not have come crawling under the floor with a flashlight that evening. It is putting it mildly to say he must have been concerned. He was looking for the cause of the trouble. He admittedly told no one until the day of the trial. It was for the jury to accept or reject this contention.

We have not discussed the numerous cases cited by appellee. Those cases have been considered, however, and we might say they point us to sound legal principles. The trouble is we do not find them to pertain to like or similar situations to those found in the present case. James v. England, Ky., 349 S.W.2d 359, appears to be nearest the present case, factually. However, in the James case plaintiff lost because of failure to show proximate cause. The Court pointed out in that case there were two other factors involved contributing to the proximate cause, and that “these three factors combined could have caused the lack of oxygen,” and the resulting death.

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


author: MONTGOMERY, Judge.

text:
    William E. MILLER, Appellant, v. Robert Howley QUAIFE et al., Appellees.
    Court of Appeals of Kentucky.
    June 11, 1965.

      Freeman B. Blackwell, William D. Grubbs, Louisville, for appellant.
    Kent McElwain, McElwain, Dinning, Clarke & Winstead, Louisville, for appel-lees.
   MONTGOMERY, Judge.

William E. Miller sought damages for injuries allegedly caused by the negligent operation by Robert Howley Quaife of a motor vehicle owned by his mother, Mary Ann Quaife. Damages to the Quaife car were asserted by counterclaim. The jury returned a verdict of concurrent negligence and denied both claims. Miller appeals from the judgment thereon. He contends that the court should have directed a verdict for him; the instructions were erroneous; and errors were made in the admission and rejection of testimony.

The collision occurred at about 3 p. m. on July 19, 1962, at the intersection of Chamberlain Lane and Wolf Pen Branch Road. At this point Wolf Pen Branch Road runs generally east and west to intersect Chamberlain Lane, which runs generally north and south, thus forming a “T” intersection. At the junction Wolf Pen Branch Road is rounded out to a width of 80 feet. From a point 600 feet south of the intersection the grade of Chamberlain is downward to the intersection. There is a stop sign on Wolf Pen requiring traffic traveling thereon to stop at the intersection before entering Chamberlain Lane. The stop sign is located about 34 feet from the west edge of Chamberlain.

Appellant said that he stopped at the sign on Wolf Pen, looked in both directions on Chamberlain Lane, saw no approaching vehicle, pulled forward into the intersection, looked again and saw no approaching vehicle, and completed the turn southward into Chamberlain Lane without crossing the center line before he saw the Quaife car come over the rise in the road about 600 feet away. He said that the Quaife car was then traveling at about 70 miles per hour and that it began skidding when it was about 100 feet from appellant’s car, and that the Quaife car continued to skid sideways until it collided with his car, which was in its proper traffic lane.

Travis Caudell, who was cutting grass in a nearby yard, substantiated the testimony of appellant. On cross-examination it was brought out that in a pretrial deposition Caudell had stated that “his left rear (Miller’s car) was just about on the line,” referring to the center line of the highway, at the time of the collision.

Quaife testified that he was driving his mother’s car about 45 to 50 miles per hour in a northward direction and in the east lane of Chamberlain Lane; that he saw the Miller car stopped at the intersection as he came over the rise; that he continued at the same speed until he saw the Miller car turn into Chamberlain Lane; and that at that time he applied his brakes and his car skidded at an angle until it collided with the Miller car in his (Quaife’s) traffic lane. Immediately following the collision Quaife said, “I was driving too fast and I panicked and lost control of my car and slammed into you.” He later explained that at the scene of the accident appellant, who was older, took charge and he (Quaife), being nervous and upset, went along with just about anything that appellant said and did.

Quaife’s testimony as to the accident was corroborated by Warner Maxwell and George Brown, passengers in his car. Quaife’s statement that he was at all times in his proper lane of traffic was further corroborated by the testimony of the investigating officer, who said that skid marks for a distance of 117 feet were in Quaife’s lane and led up to the place of collision on the Quaife side of the center line of the road.

In view of the conflict in the testimony as to the speed of the Quaife car, the positions of the two cars with reference to the center line of the road, the place of collision, and other factual issues, the trial court was correct in submitting the matter to the jury. Adams v. Parsons, Ky., 313 S.W.2d 426; Slusher v. Brown, Ky., 323 S.W.2d 870; Mahaffey v. Jones, Ky., 345 S.W.2d 379.

KRS 189.330(4), concerning the yielding of right of way at an intersection, has no application here since neither car had any occasion to yield the right of way if properly driven. Quaife should have been in the east lane and Miller should have been in the west lane. Under such circumstances the paths of their cars would not have crossed and there is no question of yielding the right of way.

Appellant, in support of his argument that he should have had a directed verdict, seeks to inject the contention that Quaife discovered his peril and failed to exercise a last clear chance to avoid the collision. So far as this record discloses the contention is made for the first time in appellant’s brief. There is no allegation, instruction, objection, or motion which indicates that the question of last clear chance was presented to the trial court in any form for consideration. Accordingly, the matter is not adequately presented for review and will not be considered. CR 51; Patton v. Lake, Ky., 294 S.W.2d 917; Ellis v. Knight, Ky., 382 S.W.2d 391; Lively v. Elkhorn Coal Co., 6 Cir., 206 F.2d 396.

Complaint is made that undue emphasis was given in outlining the duty of Miller to keep his car on the right of the center line of the highway. In Instruction 1 the court first set forth the general duties applicable to both drivers which included the duty “to operate their automobiles to their right of the center line of the highway.” The concluding portion of the instruction follows:

“* * * It was the further duty of William E. Miller to bring his automobile to a complete stop at Chamberlain Lane and to yield the right of way to traffic on Chamberlain Lane approaching so close as to constitute an immediate hazard; having so yielded, he might proceed, and the drivers of vehicles approaching on Chamberlain Lane should yield the right of way to the plaintiff Miller so proceeding into Chamberlain Lane; and in making a right turn from Wolf Pen Branch Road into Chamberlain Lane it was the duty of Miller to keep to his right of the center line of Chamberlain Road.”

Miller complains that the last clause of the instruction, together with the general instruction to keep to the right, constitutes undue emphasis of the duty of Miller to drive to the right of the center line. The quoted portion of the instruction is simply a specific application of the general duties of both parties to the factual situation in this case. While it referred to Miller’s duty to keep to the right, it also referred to the duty of approaching vehicles on Chamberlain Lane to yield the right of way.

First, it is not considered that there is any undue emphasis. The instruction submitted the issues in specific and concrete form. Second, appellant made no objection to the instruction given and further the instruction tendered by him does not point up the claimed error; thus, he is not in a position to complain now. CR 51; Tillman v. Heard, Ky., 302 S.W.2d 835; Blankenship v. Staton, Ky., 348 S.W.2d 925.

Appellant argues that certain photographs showing skid marks were admitted erroneously, in that there was no proof that the photographs were accurate and faithful representations. They were not introduced through the photographer. However, the testimony from the witness through whom the photographs were introduced shows that the witness identified various markings on the road and said that the pictures were accurate representations. Such constituted an authentication of the photographs and they were properly admitted. Square Deal Cartage Co. v. Smith’s Adm’r, 307 Ky. 135, 210 S.W.2d 340.

Complaint is also made concerning the rejection of certain proof of damages to appellant’s car. It is unnecessary to discuss this point.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    WABASH LIFE INSURANCE COMPANY, Appellant, v. Mary Frances KING, Executrix of the Estate of Lloyd E. King, Deceased, Appellee.
    Court of Appeals of Kentucky.
    June 11, 1965.
    Farland Robbins, Mayfield, for appellant.
    Seth T. Boaz, Jr., Mayfield, for appellee.
   DAVIS, Commissioner.

Pursuant to RCA 1.180 we granted appeal from the judgment whereby appellee recovered of appellant $2,386.50 on two insurance policies. KRS 21.080.

We have reviewed the entire record and conclude that there is no error in the proceedings warranting reversal. Inasmuch as the issues involved present no novel questions, we refrain from an extensive treatment of them and affirm the judgment on the basis that the motion for appeal was improvidently sustained.

The judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    Joe WRIGHT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 11, 1965.

      Joseph S. Freeland, Paducah, for appellant.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

Appellant, Joe Wright, was convicted in the Calloway Circuit Court upon a plea of guilty of the offense of stealing cattle which is denounced by KRS 433.250. He was sentenced to two years’ confinement in the state penitentiary, but the sentence was suspended and Wright was placed under probation for a period of three years, upon the usual conditions, by an order entered March 4, 1964.

On July 22, 1964, after reciting facts concerning the conviction and sentencing of Wright, and the fact that the sentence was probated, the court entered an order which reads in part as follows:

“It now appears to the court that the defendant has failed to abide by the conditions of probation and has violated said conditions.
“Therefore, it is hereby ordered that said probation is revoked and the clerk of this court is ordered to forthwith issue a bench warrant for the arrest of the defendant Joe Wright.”

Two days later, on July 24, 1964, the following order was entered:

“The defendant was this day brought into Court, and being informed of the nature of the indictment, on the charge of cattle stealing, plea and verdict was asked if he had any legal cause to show why judgment should not now be pronounced against him; and none being shown, IT IS ADJUDGED that the defendant be taken by the Sheriff of Calloway County to the jail of Callo-way County and from there by the Sheriff of said County to the State Penitentiary' at Eddyville, Kentucky, and there confined at hard labor for a period of two years.
“This the 24th day of July, 1964.”

On August 17, 1964, appellant filed a motion under RCr 11.42 to vacate the order of July 22, 1964, on the ground that his probation was revoked without a hearing and in violation of the terms of KRS 439.300. The Commonwealth of Kentucky filed a response in which it stated that information had come to the law enforcement officers and to the probation officer for that judicial district that appellant had violated the terms under which his sentence of imprisonment was probated and that upon such information a bench warrant was issued and appellant was arrested pursuant to that warrant. It was further stated that on July 24, 1964, a hearing was held to determine whether appellant had in fact violated the conditions of his probation and as a result of said hearing the court determined that the appellant had violated those conditions and the probation was revoked.

KRS 439.300 provides that at any time during the probation the court may issue a warrant and cause the arrest of a probationer upon the violation of any conditions of the probation and after the arrest by warrant the court shall cause the defendant to be brought before it and may continue or revoke the probation and may cause the sentence which had been imposed to be executed.

Appellant bases his argument that he is being improperly detained upon the theory that the court in its order of July 22, 1964, when a bench warrant was issued, also ordered that the probation be revoked and therefore the revocation was had without a hearing on the issue of whether he had broken the conditions of the order of suspension of sentence. The use of this word “revoke” was not in its most widely accepted meaning, but, in fact, the probationer’s freedom does end upon arrest under the warrant. So, in effect, when the warrant issues the probation period is at an end. We agree that a revocation of probation should not be had without a hearing, and a hearing was had two days after the issuance of the warrant as shown by the order entered July 24, 1964, quoted above, and by the response filed by the Commonwealth. It was after this hearing that sentence was finally imposed and appellant was transferred to the state penitentiary — so the word “revoke” as used in the first order is not sustained by the facts of this case.

We have held that an accused who has been favored with probation is not entitled at a hearing concerning its revocation to have observed the formalities of an initial presentment and trial upon a criminal charge. He is entitled, however, to a fair hearing. Ridley v. Commonwealth, Ky., 287 S.W.2d 156.

The record indicates that there was a hearing on July 24, 1964, and in the absence of any showing to the contrary we must assume that it was a fair hearing. In any event we do not believe that the allegations of the motions under RCr 11.42 show a violation of a constitutional right or the violation of a statute of sufficient import to render the conviction void and subject to collateral attack. See Tipton v. Commonwealth, Ky., 376 S.W.2d 290. The order of July 24 which caused the judgment of conviction to be executed was a final order that could have been tested upon direct appeal which appellant failed to do. RCr 11.42 is therefore not available.

Judgment affirmed.


author: WILLIAMS, Judge.

text:
    George WADDLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 11, 1965.

      George Waddle, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.
   WILLIAMS, Judge.

Appellant filed a motion under RCr 11.42 in the Pulaski Circuit Court to vacate judgment on a conviction for grand larceny and being an habitual criminal. Hearing was had, the motion was overruled, and this appeal is taken from that ruling.

On June 6, 1963, appellant’s case was called for trial in the Pulaski Circuit Court and Fritz Krueger was appointed counsel. After consultation and with advice of counsel, appellant pleaded guilty and the jury returned a verdict of life imprisonment. Appellant filed motion for a new trial, whereupon the court suspended any action on the motion provided appellant should leave the state and not return. Apparently appellant left the state for some time but did return, whereupon the Pulaski Circuit Court overruled the motion for a new trial and entered judgment sentencing him to life imprisonment in the State Penitentiary.

At the outset we might say that an order banishing appellant from the state is void, but his conviction and the judgment sentencing him to the penitentiary are valid. Commonwealth, Department of Welfare Division of Corrections v. Stevens, Ky., 378 S.W.2d 799 (1964).

Appellant’s first contention is that the indictment under which he was convicted was invalid on the ground that it did not specify the nature of the previous convictions or the fact that they were committed one after another. This is a question which, if raised at all, should have been raised on direct appeal. Further, appellant did not make any objection to the indictment, nor did he appeal his conviction. Instead he entered a plea of guilty. We held in Nolan v. Thomas, Ky., 370 S.W.2d 825 (1963), that objection to an indictment charging three previous convictions, one of which it was contended was false, was waived where the defendant originally entered a plea of guilty. Although that was a habeas corpus case, the same would be true in a proceeding under RCr 11.42. King v. Commonwealth, Ky., 387 S.W.2d 582.

Appellant contends that he was without counsel on his former trials, and as a consequence they are void convictions and could not be used against him on the charge of being an habitual criminal. The order and judgment entered by the trial court states that the record shows affirmatively the appellant was represented by counsel on the previous convictions. Further, on his trial on the habitual criminal charge, he was admittedly represented by counsel and entered a plea of guilty. By so pleading he confessed the charges made in the indictment. McGrew v. Commonwealth, 308 Ky. 838, 215 S.W.2d 996 (1948); Nolan v. Thomas, supra.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    Everette SHEPHERD, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 11, 1965.
    Everette Shepherd, Jr., pro se.
    Robert Matthews, Atty. Gen., H. N. McTyeire, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

After a hearing for which counsel was provided, the circuit court overruled the motion of Everette Shepherd, Jr., to vacate the judgment of March 15, 1962, by which he was sentenced to life imprisonment for murder.

The grounds for relief asserted by Shepherd were (1) the indictment was defective, (2) irrelevant evidence was admitted, and (3) Shepherd was compelled, in violation of his right against’ self-incrimination, to admit that on a previous occasion he had threatened a person with a deadly weapon.

The first two grounds are not within the scope of RCr 11.42. See King v. Commonwealth, Ky., 387 S.W.2d 582.

There are a number of reasons why the third ground has no merit, the chief reason being that according to the transcript of evidence on the trial, which is in the record on this appeal, the fact alleged as the basis for the ground simply is not true.

The judgment is affirmed.


text:
    Walter BROCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 11, 1965.
    M. L. Perkinson, LaGrange, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

Appellant was convicted of knowingly receiving stolen property and given two years in the State Reformatory. His appeal relies on three alleged errors for a reversal. They are (1) failure of the trial court to sustain motion for continuance; (2) keeping him imprisoned 14 days before giving him an examining trial; and (3) admitting evidence of other criminal acts than those charged in the indictment, and failure of the trial court to admonish the jury on such evidence.

On June 7, 1963, the Grosscuth Distillery Company of Jefferson County was robbed of 235 cases of pint whiskey, 2 cases of fifths and 237 other cases. Appellant was indicted by the Jefferson County grand jury on December 3, 1963, on a charge of armed robbery of the distillery. His trial was set in the Jefferson Circuit Court on November 10, 1964.

Harry T. Morrissey, area supervisor of the U. S. Treasury, acting as undercover agent for the Alcohol Tax Division, contacted appellant on June 29, 1963, and again on July 31, 1963, and purchased from the appellant several cases of whiskey which were identified as having been a part of the whiskey stolen in Jefferson County on June 7th. Morrissey arranged another meeting in the home of the appellant for the purpose of buying more whiskey. On August 3, 1963, appellant was arrested at his home while in the act of selling more whiskey to Morrissey. He was placed in the LaGrange jail on August 3, 1963, under a warrant providing for $1,000 bail. He was not brought before the county judge until August 16, 1963, at which time he waived examining trial and his bail remained at $1,000, which he was apparently unable to execute until 10 days thereafter. Appellant was indicted by the Oldham grand jury on October 30, 1963, which was some 34 days before his indictment in Jefferson County. The charge in Oldham County was knowingly receiving stolen property.

It is contended by appellant that because of the assignment of his case for trial in the Jefferson Circuit Court on November 10th, it was an undue burden on him to force him into trial on October 28th in the Oldham Circuit Court. While it makes no difference which criminal proceeding was first commenced, yet, the Old-ham County indictment was returned and assigned for trial before the Jefferson County indictment was returned. The pendency of the indictment in the Jefferson Circuit Court, however, near the date of his trial in Oldham, was no grounds for continuing the Oldham trial. He may never have been tried in Jefferson. In fact, so far as we know, he has never been tried in that court. Appellant does not mention it in his brief. After all, it should be kept in mind that appellant was indicted at the October term, 1963, and tried October 28, 1964. We conclude there is no merit in appellant’s first contention.

The second question concerns the propriety of the order of the trial court 'overruling appellant’s motion to dismiss because he was kept in jail 13 or 14 days before his examining trial. This record is silent as to whether the arresting officers offered to take bond before appellant was imprisoned. In any event, the $1,000 was endorsed on the back of the warrant and we assume, in the absence of any showing to the contrary, that he was given an opportunity to execute bond before his imprisonment. The purpose of an examining trial is first to determine whether the evidence is sufficient to require bond to await the action of the grand jury and, if so, whether bailable, depending on the nature and seriousness of the crime. He had the right of habeas corpus. Also, he was unable to execute bond for a period of 10 days after his examining trial. Under the facts, we find that the appellant waived his right to execute bond before being imprisoned. Klotz v. Cook, 184 Ky. 735, 212 S.W. 917; Gray v. McAtee, 233 Ky. 97, 25 S.W.2d 65.

Finally, appellant vigorously assails the extensive and detailed evidence of the sale of some of the whiskey to the undercover agents. The federal agents very elaborately planned the details of the purchase of part of this whiskey and even went so far as to record the serial numbers of the money paid the appellant for the whiskey, about all of which they testified on appellant’s trial. It was also shown that the serial numbers on the cases of whiskey purchased from appellant were identical to those on the liquor stolen from Jefferson County. Appellant contends all this evidence was evidence of “other crimes” and that such evidence was improper and prejudicial in the first place; and in the second place it is urged that admitting it was competent for a limited purpose to show identity, motive, intent, guilty knowledge or a scheme of perpetrating crimes, yet, it was the duty of the trial court to admonish the jury that such evidence could be used only for one or more of those limited purposes. A general objection was made by the appellant to some of this testimony. This was not sufficient. In the first place, we think this testimony was competent to show possession of the stolen property as well as to show guilty knowledge of its contraband quality to say nothing of its competency for the purpose of identifying it as the same whiskey that had been theretofore stolen in Jefferson County. We think most of this testimony was competent to prove the crime without any admonition. Furthermore, there was no specific motion or request by appellant or his counsel for an admonition. He, therefore, waived it. Harvey v. Commonwealth, 287 Ky. 92, 152 S.W.2d 282 (1941); Goehring v. Commonwealth, Ky., 370 S.W.2d 822 (1963); and Quarles v. Commonwealth, Ky., 245 S.W.2d 947 (1952). In the Quarles case, it is said:

“We have consistently held that the defendant, by such inaction, waives his right to have the jury admonished.”

We conclude the appellant was afforded a fair and impartial trial and that his substantial rights have not been prejudiced.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. W. T. BOND, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    June 11, 1965.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Thomas J. Sabetta, Owensboro, George P. Stavros, Frankfort, for appellant.

      Delma L. Mauzey, Leitchfield, Thacker, Sweeney & Kramer, Owensboro, for appel-lees.
   HILL, Judge.

Appellant seeks to reverse a judgment for $7884.60 for land taken from the appel-lees in a condemnation proceeding.

Appellees’ farm contained 90 acres before the taking. Appellant took 11.68 acres, with no improvements thereon, for use in the construction of the Western Kentucky Parkway, and .04 of an acre for permanent easement, leaving 11.42 acres landlocked on the south side of the new toll road and 66.9 acres lying on the north of said road. No improvements were on or affected by the landlocked tract. Access to the northern tract was not affected by the taking. Appellant contends (1) the trial court erred in refusing to strike the testimony offered by appellees; and (2) that the verdict is excessive and unsupported by sufficient evidence of probative value.

First, should the trial court have stricken certain testimony objected to by appellant?

Appellee, W. T. Bond, Jr., testified he considered two sales in the community from hearsay. He implied they were comparable sales although he did not point out factual elements of similarity. He admitted a material dissimilarity, in that, one of the contended comparable sales was of property on a federal highway, whereas the property condemned is on a Kentucky rural road. Not only did he fail to state facts showing comparables but the conclusions he reached were based on hearsay. He was not a professional real estate appraiser or dealer.

The witness, Hassie Anderson, was allowed to testify the amount awarded by the commissioners in county court, he being one of them. This was improper but no objection was made to this evidence. On another trial such evidence should not be admitted. This witness referred to and admitted he based his valuations on other sales, some he learned of by hearsay. His evidence that other sales were comparable, like the Bond testimony discussed earlier, failed to show factual similarities to the property here condemned. The trial court erred in overruling appellant’s motion to strike the testimony.

Appellees’ witness, Dolan Pryor, also relied on hearsay as to other sales he considered. This hearsay evidence of the Hopper sale was contradicted by the stamps on the original deed. His testimony was incompetent and prejudicial and should have been stricken.

In practically all of the appellees’ voluminous evidence there is the absence of any reasonable showing of comparability.

A 15-acre tract on a federal highway and with a “good little house” and “good pond” is not prima facie comparable with a 90-acre place on a secondary road and with a house in an obviously poor state of repair as shown by the photographic exhibits of this place.

Otis Bryant, another of appellees’ witnesses, relied on hearsay evidence of comparable sales without showing facts constituting comparability. His testimony on such sales should have been stricken.

Chester Brown, who based his estimate of value entirely on his own farm two miles away, without any factual evidence of similarity, was allowed to testify. The trial court erred in overruling appellant’s motion to strike his testimony.

In addition to the foregoing, none of the witnesses gave any substantial reason why the 69.9 acres left on the north side of the parkway would not still be as valuable as before. And if it is, it should be worth around $275 per acre, or $19,250, whereas the jury found this plus the landlocked 11.42 acres south of the road to have an “after” value of only $16,250. After all, the whole place was in the soil bank ten years, seven of which have still to run.

The second ground relied on for reversal insists the amount of the verdict and judgment is excessive. With this contention we also agree.

Wherefore, the judgment is reversed with directions to grant the appellant a new trial.


author: CLAY, Commissioner.

text:
    Milton Z. RUSSMAN et al., Appellants, v. James B. LUCKETT et al., Appellees.
    Court of Appeals of Kentucky.
    June 8, 1965.

      Rucker Todd, Louisville, Donald H. Wol-lett, New York City, for appellants; Brown, Ardery, Todd & Dudley, Louisville, Kaye, Scholer, Fierman, Hays & Handler, New York City, of counsel.
    William S. Riley, Larry A. Carver, Cyril E. Shadowen, Dept, of Revenue, Frankfort, Ky., for appellees.
    Hogan, Taylor, Denzer & Bennett, Louisville, for Board of Education, amicus curiae; E. P. Sawyer, Jefferson County Atty., Louisville, James O. Overby, Callo-way County Atty., Murray, Sam F. Kibbey, Carter County Atty., Grayson, William A. Young, Franklin County Atty., Frankfort, of counsel.
    Lucian L. Johnson, Louisville, amicus curiae for Kentucky Education Ass’n and Board of Education of Jefferson County, Ky.
    Morton Holbrook, Owensboro, amicus curiae for Kentucky School Boards Ass’n; Sandidge, Holbrook, Craig & Hager, Owensboro, of counsel.
   CLAY, Commissioner.

This suit, along with two others which have been considered together on this appeal, assails and seeks to rectify a tax assessment condition which has existed in Kentucky for many years by reason of the flagrant violation of section 172 of our Constitution and statutes implementing it. That section, and KRS 132.450(1) and KRS 133.150, require the assessment for taxation of all property (not exempted by the Constitution) at “its fair cash value”. It is not only admitted but has become a matter of common knowledge that real estate and tangible personal property in Kentucky are assessed for tax purposes at varying percentages substantially less than 100 percent of fair cash value. The record indicates that in different taxing districts such property is assessed at percentages ranging from 33 to 12½ percent of such value. The statewide median real estate assessment ratio is approximately 27 percent.

It is perhaps unnecessary to detail the many serious problems that have arisen and will continue to arise by reason of the disparity in the tax burden upon taxpayers in different counties and taxing districts, and the extreme difficulties encountered by certain taxing authorities whose maximum rates are limited by the Constitution or statutes. It is apparent the situation is bad from almost any standpoint, is becoming worse, is unfair, is administratively inefficient, and gives tax Commissioners an unwarranted and arbitrary control of the tax base. More significant than all of these considerations, however, is the fact that the current method of assessment is in direct violation of clearly written mandatory laws. The perennial questions are raised in this case: Who can challenge the status quo, and what should and can he done about it?

This suit was brought in the Franklin Circuit Court against the Commissioner and the Department of Revenue by residents of Louisville and Jefferson County who are respectively taxpayers, parents of school children, and students who attend school, for a declaration of rights and in-junctive relief in the nature of mandamus.

McDevitt v. Luckett, Ky., 391 S.W.2d 700, was brought in the Franklin Circuit Court by taxpaying owners of intangible property against the Commissioner of Revenue and the tax commissioners of six counties, seeking a declaration of rights and raising the question of equal protection of law. In that action and the present one the trial court dismissed the complaints on the grounds that the plaintiffs could not maintain the actions because no justiciable controversy was presented, or other remedies were available, or the court should not interfere with the discretion of a member of the executive department of government.

The third suit, Miller v. Layne, Ky., 391 S.W.2d 701, was brought in the Jefferson Circuit Court by a resident property owner and taxpayer of Jefferson County against the tax commissioner of Jefferson County to have the latter removed from office under the provisions of KRS 132.370(3). The trial court dismissed that complaint on the ground the tax commissioner had not violated the law.

Many procedural questions are raised in this suit and the McDevitt case. We have carefully considered them all but do not consider it necessary to detail the arguments. Suffice it to say that in our considered judgment a justiciable controversy is presented. There are no other adequate remedies which may be invoked by these plaintiffs and they have a right to bring these two actions and to obtain a declaration of rights. On the right to bring this suit, we refer the reader to the following authorities: Gay v. Haggard, 133 Ky. 425, 118 S.W. 299; Elam v. Salisbury, 180 Ky. 142, 202 S.W. 56; State Text-Book Commission v. Weathers, 184 Ky. 748, 213 S.W. 207.

Let us turn to the merits of the controversy. Section 172 of the Kentucky Constitution, in its entirety, provides:

“All property, not exempted from taxation by this Constitution, shall be assessed for taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale; and any officer, or other person authorized to assess values for taxation, who shall commit any willful error in the performance of his duty, shall be deemed guilty of misfeasance, and upon conviction thereof shall forfeit his office, and be otherwise punished as may be provided by law.”

KRS 132.440 requires the county tax commissioner to administer an oath to every person listing property in which the taxpayer certifies that “a fair cash value has been placed on all such property required to be valued”.

KRS 132.450(1) provides in part: “Each county tax commissioner shall assess at its fair cash value all property which it is his duty to assess”. (The remaining part of this subsection provides a method by which this shall be done.)

KRS 133.150 (as amended in 1964) contains the following provisions: “The Department of Revenue shall equalize each year the assessments of properties among the counties. * * * The Department of Revenue shall fix the assessment of all property at its fair cash value. When the property in any county, or any class of property in any county, is not assessed at its fair cash value, such assessment shall be increased or decreased to its fair cash value by fixing the percentage of increase or decrease necessary to effect the equalization.”

KRS 131.020(1) designates the Commissioner of Revenue as head of the Department of Revenue and as its executive officer who shall have sole charge of the administration of the Department and shall perform all its functions.

Obviously the constitutional provision and the cited statutes exhibit a very specific purpose and a practical plan by which all property in the Commonwealth (not exempted by the Constitution) shall be assessed for taxing purposes at its fair cash value. Nothing in this record suggests any uncertainty, impracticability or inequity in either the purpose or the plan. We will consider briefly the three principal arguments made on behalf of the defendant, the Commissioner of Revenue.

It is said that the constitutional provision and the statutes (KRS 132.440, 132.-450 and 133.150) no longer have any legal effect because abrogated by a contrary custom or public policy of 75 years standing. That their mandatory directions have been flagrantly violated for a long time is unquestionable. In 1917 the United States Supreme Court in Louisville & Nashville Railroad Co. v. Greene, 244 U.S. 522, 37 S.Ct. 683, 61 L.Ed. 1291, recognized that for several years prior to 1913 the Kentucky assessing authorities had “intentionally, systematically and notoriously” assessed property far below its actual cash value. In recent years surveys have been made and the record shows that these violations have been continued and aggravated.

Our attention is called to no authority which would recognize an implied repeal of a constitutional provision because of its continued violation by public officials. The suggestion is appalling. Defendants cite Hill v. Smith, Iowa, 1 Morris 95 (1840), wherein the opinion states that it was contrary to Anglo-Saxon liberty “to revive, without notice, an obsolete statute” where there was long disuse and a contrary policy. The soundness of such a theory may well be questioned. In District of Columbia v. John R. Thompson Co., 346 U.S. 100, 113, 73 S.Ct. 1007, 97 L.Ed. 1480, the United States Supreme Court held that failure of the executive branch to enforce a law does not result in its modification or repeal, even though there has been long continued disregard of a statute.

Defendants cite Adams v. Norris, 64 U.S. 353, 23 How. 353, 16 L.Ed. 539, and Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989, but they do not support the proposition contended for.

In any event, we are dealing with our fundamental law. It is not outdated, or obsolete, or contrary to any policy we know of. The public has acquiesced in its nonobservance simply because private rights were not adversely affected and citizens heretofore have not been inclined to take the initiative to compel executive compliance. This law today is just as vital and enforceable as it was the day it was written into the Constitution.

Defendants next contend this Court has in effect nullified section 172 and the implementing statutes by substituting the test of “uniformity” in place of “fair cash value”.

After the decision in Greene v. Louisville and Interurban Railroad Company, 244 U.S. 499, 37 S.Ct. 673, 61 L.Ed. 1280, this Court found itself in a dilemma. A taxpayer complained that his property was assessed at 100 percent while other taxpayers in the same taxing district were assessed at a lesser percentage. Under the first amendment to the Federal Constitution, which provided for equal protection of the law, it was obvious the taxpayer was unjustly discriminated against. There were only two ways to equalize the assessments. Either the assessments of other property owners must be raised to 100 percent or the complaining taxpayer’s assessment lowered to the prevailing percentage. The court allowed the latter relief. This was done in Eminence Distillery Co. v. Henry County Board, 178 Ky. 811, 200 S.W. 347; McCracken Fiscal Court v. McFadden, 275 Ky. 819, 122 S.W.2d 761; Prestonsburg Water Co. v. Prestonsburg Board, 279 Ky. 551, 131 S.W.2d 451; City of Louisville v. Martin, 284 Ky. 490, 144 S.W.2d 1034; City of Lexington v. Cooke, 309 Ky. 518, 218 S.W.2d 58; Luckett v. Tennessee Gas Transmission Company, Ky., 331 S.W.2d 879.

In the Eminence Distillery Company case it was pointed out that in that particular proceeding the courts trying the case lacked the necessary powers to remedy the inequality by increasing the assessment of other taxpayers, and in any event that would give the complaining taxpayer no relief at all. It was said that the “practical remedy” was to reduce the plaintiff’s assessment. The recognition that the reduction in assessment was the only practical remedy was further explained in the Luckett case (last above cited). It was noted that the court’s duty was to dispense justice in the individual case and that the only effective way to achieve equality for that particular plaintiff was to reduce his assessment to the general level. It is thus apparent that this Court has in no sense nullified section 172 of the Constitution or the implementing statutes. As a matter of fact, it has consistently recognized what the Constitution and the statutes require but until now has never had presented to it the kind of proceeding in which those provisions appropriately could be enforced.

Defendants rely particularly on Kentucky Finance Company v. McCord, Ky., 290 S.W.2d 481. The taxpayer complained that his intangible personal property was assessed at 100 percent of fair cash value whereas the real estate in the county was assessed at approximately 30 percent. This Court refused to direct the reduction in assessment of the intangible personal property on the ground that the 1915 amendment to section 171 of the Kentucky Constitution, permitting classification of property for the purpose of tax rates (and exemptions), was a recognition that equality in tax “burden” was no longer required and effectively removed the requirement of equality of assessment. This was not an approval of the real property assessment but simply a determination that the taxpayer could not invoke the equality principle with respect to a different class of property. So this Court has not in any sense judicially construed section 172 or the implementing statutes out of existence.

Defendants finally contend that, assuming this intolerable situation should somehow be rectified, this is not a proper-case for the remedy of mandamus. It is said that this is a discretionary matter with the Commissioner of Revenue and courts will not undertake to control discretion. KRS 132.420(1) provides that county tax commissioners shall make assessments of all property in their counties, subject to the direction, instruction and supervision of the Department of Revenue. KRS 132.450 (1) provides this assessment shall be at “fair cash value”. KRS 133.150 (as amended in 1964) provides in part:

“The Department of Revenue shall fix the assessment of all property at its fair cash value. When the property in any county, or any class of property in any county, is not assessed at its fair cash value, such assessment shall be increased or decreased to its fair cash value by fixing the percentage of increase or decrease necessary to effect the equalization.”

KRS 131.020(1) (as amended in 1964) provides that the Department of Revenue shall be headed by the Commissioner of Revenue who shall be the executive officer and have sole charge of the administration of the Department. It is obvious the Constitution and the above statutes impose very specific duties upon county tax commissioners and the Commissioner of Revenue with respect to the assessment of all property at its fair cash value. There is nothing discretionary about these basic duties. While there may be optional methods of performance, it is absurd to suggest that the county tax commissioners or the Commissioner of Revenue may comply with the law or ignore it in their discretion.

Not only is the relief demanded appropriate, but we know of no other remedy which would accomplish the purpose sought. See Gay v. Haggard, 133 Ky. 425, 118 S.W. 299; Elam v. Salisbury, 180 Ky. 142, 202 S.W. 56; State Text-Book Commission v. Weathers, 184 Ky. 748, 213 S.W. 207.

Other state courts have been confronted with a similar problem and have not hesitated to require public officials to comply with the law fixing the basis of tax assessments. Village of Ridgefield Park v. Bergen County Board of Taxation, 31 N.J. 420, 157 A.2d 829 (1960); Bettigole v. Assessors of Springfield, 343 Mass. 223, 178 N.E.2d 10 (1961); McNayr v. State, Fla., 166 So.2d 142 (1964); State ex rel. Park Investment Co. v. Board of Tax Appeals, 175 Ohio St. 410, 195 N.E.2d 908 (1964); Pierce v. Green, 229 Iowa 22, 294 N.W. 237, 131 A.L.R. 335 (1940).

We conclude the plaintiffs not only have a right to prosecute this action but they, and those they represent, and the public, are entitled to relief. Perhaps the most difficult problem presented is the nature of that relief. We are aware of, and the record amply discloses, the far-reaching patterns affecting the whole field of taxation, and particularly tax rates, which have developed under the long continued illegal system. Readjusting them will present many problems and difficulties which cannot be solved overnight.

Immediate compliance with section 172 of the Constitution and the implementing statutes is an impossibility. Also it would be unjust, impractical, and perhaps ineffective from the standpoint of public interest, to permit or direct immediate action to be taken against the county tax commissioners to remove them from office, under the provisions of section 172 of the Kentucky Constitution or KRS 132.370(3),. for misfeasance. The practical correction of an unusual and intolerable situation is more important than the imposition of penalties upon those who were caught in the toils of accepted though illegal practice.

An attempt to have all property reassessed retroactively poses insurmountable obstacles and would work injustice in many respects. Assessed valuations heretofore made must stand.

In view of the multifarious readjustments that must be made with respect to tax rates, budget estimates and other matters, a reasonable time must be allowed within which not only the Commissioner of Revenue and the county tax commissioners may act, but within which taxing authorities, and perhaps the legislature, may prepare themselves, with due consideration for the taxpayers, for this significant revaluation of taxable property.

We observe from the record that the Department of Revenue, and other bodies, have already done commendable work which should greatly simplify the task of reassessing property throughout the Commonwealth. Apparently reliable statistics are available which will enable county tax commissioners to perform their task without the necessity of new and independent appraisals of each item of taxable property. In this connection we are aware that 100 percent perfection cannot be achieved. This was recognized in Fayette County Board v. O’Rear, Ky., 275 S.W.2d 577, in which it was held a differential of five percent in the assessment of the plaintiff’s property and other properties in adjacent counties was not sufficiently substantial to violate the principle of equality. However, we repeat that the Constitution and statutory law demand assessment of property at its fair cash value, and the people of this Commonwealth and this Court will no longer tolerate any substantial retreat from this standard.

In the light of what has just been said, we have concluded that the January 1, 1966, assessment date is the most appropriate beginning point from which to require positive compliance with section 172 of the Constitution and any inplementing statutory law. The county tax commissioners, the Commissioner of Revenue, and other public officials will be held strictly accountable for the performance of their constitutional and statutory duties with respect to the assessment of property for tax purposes on and after that date. Such advance preparation as is necessary and proper to make the transition from customary methods will of course be required. Misfeasance or malfeasance in this connection on or after the above designated date would certainly be willful.

Perhaps this opinion appears overly long in the light of the clarity and simplicity of the basic question involved. However, we deemed a thorough discussion necessary for the benefit of those who realize the intricacy and complexity of legal problems. Constitutional interpretation is always fraught with difficulty because of possible inaccuracies in the use of words and the shifting concepts of their meaning.

As far as the general public is concerned, it should be enough to know, and upon the slightest fair consideration of the question the people of Kentucky must realize, that public officials, including the Commissioner of Revenue, the county tax commissioners, and this Court, are bound to perform their duties exactly as the Constitution and the statutory laws of this Commonwealth require when the command is clear. In the performance of our duty we are not, by this decision, in any sense changing the law of taxation, or the tax structure, or increasing the tax burden. We are simply declaring and enforcing the law, and the law is made by the people.

The judgment is reversed and the cause remanded to the Franklin Circuit Court with directions to that court to enter a judgment:

(1)Declaring that section 172 of the Kentucky Constitution and the statutory law implementing that section require all property in Kentucky (not exempted by the Constitution) to be assessed for tax purposes at its fair cash value and that this section of the Constitution and the statutory law implementing it are valid, subsisting and binding upon all public officials;

(2) directing the defendant Commissioner of Revenue to advise and instruct all county tax commissioners of their assessment duties under the Constitution and the statutes of this Commonwealth;

(3) directing defendant Commissioner of Revenue to inform and advise all county tax commissioners of the substance and effect of this opinion, and their duties thereunder;

(4) directing the defendant Commissioner of Revenue to take appropriate steps to comply with his duties under KRS 133.-150 and other applicable statutes affecting property assessment;

(5) retaining this case on the docket for the entry of such further orders as may be necessary and proper.

      . The use of the term “powers” seems inappropriate.


text:
    Mrs. Coleman J. McDEVITT et al., Appellants, v. James E. LUCKETT et al., Appellees.
    Court of Appeals of Kentucky.
    June 8, 1965.

      William Friedlander, James N. Webb, Louisville, for appellants.
    William S. Riley, Larry A. Carver, Cyril E. Shadowen, Frankfort, E. P. Sawyer, Jefferson County Atty., Louisville, James O. Overby, Calloway County Atty., Murray, Sam F. Kibbey, Carter County Atty., Gray-son, William A. Young, Franklin County Atty., Frankfort, of counsel, for appellees.
   CLAY, Commissioner.

This action was brought by citizens and taxpayers owning intangible personal property and real estate against the Commissioner of Revenue, .members of the Kentucky Board of Tax Appeals, and certain county tax commissioners for a declaration of rights. The issue was raised as to the necessity for compliance by public officials with section 172, Kentucky Constitution, and implementing statutes which relate to the assessment of property in Kentucky at its fair cash value. The plaintiffs sued as representatives of a class and requested that the defendants represent the class to which they belong. This procedural aspect of the case does not appear significant.

The circuit court dismissed the original and amended complaints on the grounds that no justiciable controversy was presented, the plaintiffs had no standing to maintain the action because adequate administrative remedies were available, and the court would not undertake to control the discretion of public officials.

This appeal was considered with appeals in the cases of Russman et al. v. Luckett et al., Ky., 391 S.W.2d 694, and Miller v. Layne, Ky., 391 S.W.2d 701. The opinion handed down this day in Russman et al. v. Luckett et al. disposes of all of the questions raised in this case, and that opinion is incorporated herein by reference.

The judgment is reversed and the cause remanded to the Franklin Circuit Court with directions to the court to enter a judgment declaring the law as set forth in item (1) of the judgment directed to be entered in the case of Russman et al. v. Luckett et al.; and further declaring that the failure of public officials to assess all classes of property as required by section 172, Kentucky Constitution, and implementing statutes, constitutes a denial of the equal protection of the law.


text:
    Richard L. MILLER, Appellant, v. Lawrence P. LAYNE, Appellee.
    Court of Appeals of Kentucky.
    June 8, 1965.

      William Friedlander, James N. Webb, Louisville, for appellant.
    E. P. Sayer, Jefferson County Atty., by Charles Speed Gray, Asst. County Atty., Louisville, for appellee.
   CLAY, Commissioner.

This suit was brought by plaintiff, a resident, property owner and taxpayer of Jefferson County, against defendant Tax Commissioner of Jefferson County to have the defendant removed from office for misfeasance under the provisions of KRS 132.370 (3). A motion to dismiss the complaint was sustained on the ground that defendant in assessing property in Jefferson County was not acting in an unlawful manner.

This appeal was heard with the appeals in Russman et al. v. Luckett et al., Ky., 391 S.W.2d 694, and McDevitt et al. v. Luckett et al., Ky., 694 S.W.2d 700. We have this day handed down an opinion in Russ-man et al. v. Luckett et al., which disposes of the basic question here involved and that opinion is incorporated herein by reference.

As pointed out in that opinion, the defendant and other public officials have violated the law but the extreme circumstances are such that the defendant should not be penalized at this time for acts which conformed to a long prevailing, though illegal custom. As of January 1, 1966, strict compliance with the law will be required.

Though the trial court rendered its decision on an erroneous ground, for the reasons stated in Russman et al. v. Luckett et al., the complaint was properly dismissed. It may be observed that this dismissal does not foreclose the plaintiff’s right to initiate a similar proceeding after January 1, 1966.

The judgment is affirmed.'


text:
    Joe JACKSON et al., Appellants, v. Millard STEPHENS et al., Appellees.
    Court of Appeals of Kentucky.
    June 11, 1965.

      Joe S. Feather, G. G. Teague, Jr., Wil-liamsburg, for appellants.
    Grant Knuckles, James S. Wilson, Pine-ville, for appellees.
   HILL, Judge.

The question on this appeal is whether or not the trade name of the appellees taken from a geographical location has been violated.

In 1955, appellees, Millard Stephens and his brother, Morris Stephens, began the construction of a motel in the vicinity of Cumberland Falls State Park. They named the business FALLS MOTEL & RESTAURANT, but did not register the name in the office of the county court clerk until May 9, 1962. The original construction included fifteen motel units and a restaurant on Highway 90 in McCreary County about two miles west of Cumberland Falls. A neon sign bearing the name of FALLS MOTEL was erected in front of this business; and in 1960 thirty more units were added, the restaurant enlarged and a swimming pool constructed at an additional cost of about $125,000. Early in 1963, appellees started the construction of twenty more units, cottage stye, which were completed in 1963, all at a total cost of approximately $300,000. Considerable advertising of their business was done by the appellees by postcard and by large highway billboards, as well as other means of advertising, at a cost of $5,000.

Appellants, Mr. and Mrs. Joe Jackson, in the spring of 1962, commenced the construction of another motel on land which overlooks the historical Cumberland Falls. Appellants contend they plan to have a trail leading to the point where the falls of the Cumberland River can be viewed by their patrons. They named their place FALLS VIEW MOTEL.

On June 8, 1962, appellees brought this action seeking to enjoin the appellants from using the word FALLS in connection with their intended business which was more than two months before the appellants opened their place of business. By amended pleadings, after the issues were first completed, appellants sought to change the name of their business to FALLS VIEW MOTEL LODGE. This effort was also questioned by the appellees. An order was entered on July 17, 1963, by the trial court in which it concluded that by the use of the name FALLS MOTEL & RESTAURANT, the words had acquired a secondary meaning, but stated that the evidence of confusion and deception between the two names was not sufficient at that time to justify injunctive relief but retained the case on the docket for further proof by the appellees on this question. Thereafter appellees offered further proof and on June 29, 1963, the trial court found, as a matter of fact, confusion and deception resulted from the similarity of names and enjoined the appellants from the use of the words FALLS MOTEL in their trade name. It also found that by the use of the name FALLS MOTEL by the appellees over a period of time the words have acquired a secondary meaning; and that the use of those words by appellants constituted an unfair business competition against the appel-lees. The order permanently enjoined the appellants from using the name FALLS VIEW MOTEL LODGE. From that judgment this appeal is prosecuted.

Appellants contend that the use of the word FALLS is merely indicative of a geographical location and such a name is common property of all the people, the exclusive right of none, and cannot be exclusively appropriated by anyone; that any other conclusion would amount to encouragement of monopoly. In support of this theory, appellants cite Newport Sand Bank Co. v. Monarch Sand Mining Company, 144 Ky. 7, 137 S.W. 784, 34 L.R.A.,N.S., 1040; 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 109, p. 376; 52 Am.Jur. 548; Burnside Veneer Corp. v. New Burnside Veneer Company, Ky., 247 S.W.2d 524.

Appellants assert that Wyatt, et al. v. Mammoth Cave Development Company, 6 Cir., 26 F.2d 322 is so decisive of the questions involved in this case that they are willing to base their rights thereon on this appeal.

Conversely, it is equally well argued by appellees that by long use and establishment in a trade name, words having a geographical significance may acquire a “secondary meaning” and become the subject of equitable protection under rules against unfair competition. This theory is founded on the reasoning that it is unfair competition and unjust to allow one person to “pass off” goods or service as being the goods or services of another.

First, we should examine Wyatt v. Mammoth Cave Development Company, supra, since appellants are admittedly willing to rely solely on the authority of that case. The Wyatt case involved an effort of the owners of the original Mammoth Cave properties to enjoin the owners of adjoining lands from opening, using and advertising their property as a part of the “Mammoth Cave” system of caves. It was proven in that case that the designation “Mammoth Cave” included a vast territory far outside the surface rights of the original owner; that for nearly a century “Mammoth Cave” was world famous as a term to designate this vast cavernous area, some of which was historically admitted by the owner to extend beyond his boundaries. The court decided in Wyatt that the name “Mammoth Cave” was the property of all persons owning a part of this cavernous area. Even so, the court recognized the property rights in the trade name of the original owner of the first discovered entrance by “enjoining the defendants, their officers and agents, from any verbal description or oral solicitation of trade or business, or exhibiting, circulating, distributing circulars, folders, signboards, handbills, etc., or other printed, written or descriptive matter wherein 'Mammoth Cave’ is used, except that, wherever the phrase ‘Mammoth Cave’ or 'New Entrance to Mammoth Cave’ occurs there shall be placed in immediate juxtaposition to these words in type or lettering of the same size, style, and legibility, and equally prominent, or in case of verbal or oral description or solicitation, a full verbal explanation to the same effect, the phrase ‘We do not show any part of the cave which prior to 1907 was generally known to the public as Mammoth Cave; that portion of the cave can be seen only through the old entrance.’ The court further ordered that all existing signboards should be removed or changed to conform with the above requirement, and that in all oral solicitations the defendants should fully and fairly explain that the parts of the cave shown through the new entrance did not include the parts of the cave being shown through the old entrance.

Thus, it is clear in the Wyatt case that while the federal court recognized the common property right in the geographic name “Mammoth Cave,” it nevertheless found the original owner entitled to “reasonable protection” as to the features lying within his boundary, both on the idea the long use of the name by the original owner had resulted in its acquiring a secondary meaning and because of bad faith, unfair competition and objectionable methods by the owners of the newly opened cave.

The Wyatt case differs from the case at bar, in that, the name sought to be used in the Wyatt case was in the name of the property itself, like the name of a coal seam such as the Elkhorn seam, or seams. All persons owning a part of that seam have a right to use its name. The seam is pretty well uniform in chemical composition and suitability for various uses and the persons owning a part of it have an inherent right to so designate their product.

Wyatt owned a part of the Mammoth Cave system itself. In the present case, appellants owned no part of “Cumberland Falls” itself. The trade name was selected because of its association with and proximity to the famous “Falls.” In this respect, the rule should be the same as in the case of any other trade name. First come, first served.

It will aid us in considering this case further to point out here that the trial court found, as a matter of fact, that serious deception and confusion resulted from the use of the name adopted by appellants. The record fully supports this finding.

Equity should and will protect the owner of an established business from unfair competition by a newcomer’s use of a business name so deceptively similar as to infringe upon the good will and reputation of his business even though such name includes a geographic term. In 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 90, page 319, it is said:

“Words or names which have a primary meaning of their own, such as words descriptive of the goods, or the place where they are made, or the name of the maker, and which are not capable of exclusive appropriation as a trade-mark, may nevertheless by long use in connection with the goods or business of a particular trader come to be understood by the public as designating the goods or business of that particular trader. Such words have both a primary and a secondary meaning. In their primary descriptive sense, they are publici juris, and all the world may use them, but they must be used in such a way as not falsely to convey the secondary meaning, since this would constitute unfair competition as tending directly to pass off the goods or business of one man as and for that of another.”

Also in 87 C.J.S. under Trade-Marks, Trade-Names, and Unfair Competition § 105 page 357, this statement of law is announced :

“Where geographical names have acquired a secondary meaning, a deceptive use of such names by others in connection with similar goods or business constitutes unfair competition, and will be enjoined. * * * ”

See also American Products Co. v. American Products Co., (D.C.Mich.) 42 F.2d 488; U-Drive-It Co. v. Wright & Taylor, 270 Ky. 610, 110 S.W.2d 449, 454; Indian Territory Oil & Gas Co. v. Indian Territory Illuminating Oil Co., (CCA 10) 95 F.2d 711.

This court, in Newport Sand Bank Co. v. Monarch Sand Mining Company, supra, said:

“ * * * the use of descriptive terms and generic names is limited to a truthful use, and, where such names or terms have become identified in the minds of the public with one’s business, the use of such terms and words by another in a manner calculated to deceive the public by passing off his goods as and for the goods of another, cannot be justified. This rule has been extended to the extent that one may not even use his own name in connection with or as a part of a business or trade name so as to pirate upon the good will or reputation of a business rival by inducing the public to believe that his goods are those of his rival.”

The term “unfair competition,” when used in connection with a trade name or trademark, means simply “passing off or attempting to pass off upon the public the goods or business of one man as being the goods or business of another.” This Court, as early as 1887, in Metcalfe v. Brand, 86 Ky. 331, 5 S.W. 773, made the following able and bullseye comment:

* * * and where the manufacturer has given it a geographic name, which he was the first to use in connection with the article, it seems to us that it may from long use in such connection acquire a secondary meaning^ and, instead of designating the place where the article is made, indicate its origin, or that it is the product of a particular manufacturer or made according to his method. When this is the case it becomes, in our opinion, a valid trademark. It then designates the particular goods of this one man. The public so understand it, and this is the aim and end of a trade-mark. The name is no longer used to indicate the place where they are made, but becomes the name of his goods. It gives notice that he is the maker. It, by reason of first and continued use and association with the name of the article made or sold by him, acquires an understood reference to him. It is the trade denomination of his [particular] article. It acquired a secondary meaning in connection with a particular manufacturer.” (Our emphasis).

This Court has continued to follow this rule in Acy v. Whaley, 281 Ky. 400, 136 S.W.2d 575; Kay Jewelry Co. v. Gay’s Jewelry, Inc., Ky., 277 S.W.2d 30; and many other cases. In Grocers Baking Co. v. Stigler, 6 Cir., 132 F.2d 498, it was said:

“Under Kentucky law a trade name does not have to be identical with another in order to justify a court in enjoining its use. It is sufficient if it is so similar to the earlier adopted trademark as to make it likely that unsuspecting persons would be led to believe that it was the same.”

Places of business, such as those of the parties in this case, depend to a large extent on advertising along the highways. The traveling public, usually traveling at top speed, seldom stops to read a billboard; it just takes a glance at the name and, if possible, the mileage thereto. Little similarity of billboards may result in confusion and deception. Under such circumstances, no newcomer should be allowed to “pirate” the name, good will, business or services of another often acquired through pioneering, privation and hardship. Courts should be alert and unhesitating in preventing such piracy.

We think the rights of appellees in their trade name have been violated, and that the trial court correctly so determined.

The judgment appealed from is, therefore, affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Carl BACK et al., Appellees.
    Court of Appeals of Kentucky.
    June 11, 1965.
    John B. Breckinridge, Atty. Gen., Frankfort, William A. Lamkin, Asst. Atty. Gen., Reed D. Anderson, Jackson, for appellant.
    J. Douglas Graham, Campton, Charles; Landrum, Jr., Lexington, O. J. Cockrell,, Jackson, for appellees.
   DAVIS, Commissioner.

This action originated as a property damage suit and has now assumed the characteristics of a “reverse condemnation.” The-litigation began when Carl and Ethel Back,, husband and wife, sued C. D. Juett Construction Company, asserting that Juett had caused substantial damage to their residence by reason of excessive blasting incident to the relocation of a public highway. After the suit had progressed awhile the defendant (to whom we shall refer as Juett) brought the Commonwealth of Kentucky, Department of Highways, into the action as a third party defendant. CR 14.01. The tenor of the third-party complaint was that Juett had prudently carried out its contract with the Department of Highways, had not used excessive explosives, and that the true cause of whatever damage, if any, the Backs had sustained was the improper design of the relocation of the highway. The prayer of the third-party complaint was for complete indemnity, or alternatively for contribution. At this point the Backs did not assert any claim against the Department of Highways (to which we shall hereinafter refer as the Department). Issue was joined when the Department answered the third-party complaint, and the controversy proceeded to trial.

The jury returned a verdict awarding Mrs. Back (her husband had died pending the action) $4,750 against Juett and $3,750 against the Department. Shortly thereafter Juett paid $4,750 into the hands of the circuit clerk and an order of satisfaction was entered as to the judgment for Mrs. Back against Juett. CR 79.02. Following the verdict and judgment on November 30, 1962, Mrs. Back obtained permission to and did file an amended complaint on April 1, 1963, wherein she reiterated the allegations of the original complaint and alleged further that the damage to her property was caused by the Department’s removing the lateral support thereof during the highway construction. The amended complaint assigned the removal of the lateral support as a cause of damage “in addition to the negligence of— Juett — .” The amended complaint was filed in purported compliance with CR 15.02.

The Department bases its attack of the judgment on these grounds: (1) Improper remarks of the trial judge; (2) failure to strike “expert” testimony from a “non-expert” witness; (3) erroneous instructions; (4) the trial court had no jurisdiction of the Department.

We need not recount the evidence in detail. It suffices to note that Mrs. Back adduced evidence of damage to her residence, an adjacent well, and other improvements on her land. All of the testimony in her behalf was addressed to the claim that the damage had been caused by the negligent excessive use of explosives by Juett. When Mrs. Back’s evidence was all in Juett proceeded with proof. The main Juett witness was Neal Hammon, a licensed architect and an active partner in a firm of “vibration and damage specialists.” Mr. Hammon had had experience in this field since 1951. He positively testified that the blasting could not have caused the damages to Mrs. Back’s property. In over-simplified terms, it is fair to say that Mr. Hammon expressed the definite opinion that the damage was caused by reason of removal of the lateral support to the Back property. It was the witness’s opinion that when the toe of the slope was removed in relocation of the highway the lateral support became inadequate, and the consequent “creep” or slide was precipitated.

Counsel for Mrs. Back developed on cross-examination that Mr. Hammon holds no college degree in geology. However, the witness asserted that he had had numerous college courses in the subject, and that his studies plus his experience qualified him in the subject matter of his evidence. Counsel for Mrs. Back and for the Department moved to exclude his evidence relating to the “creep” or slide on the basis that he had not been shown to be properly qualified as an expert; the motions were overruled. It was at the very close of cross-examination of Mr. Hammon that the following occurred, which gives rise to the first point argued for reversal:

“Q. 19 (propounded by counsel for Mrs. Back) You don’t know whether you have a major or minor or whether you have either, in the field of vibration, in your college degree. Is that right ?
“Mr. Landrum: (Counsel for Juett) Object. He has already said he did.
“COURT: He may step aside. I think the witness has handled himself capably.”

Appellant insists that the remark of the judge was so prejudicial as to require reversal of the case. We do not think so. We agree that the remark was unfortunate and improper, but since it does not purport to relate to the subject matter of the evidence, but merely to the manner in which the witness had “handled himself,” we cannot conclude that the remark was prejudicially erroneous. We think this instance is readily distinguishable on its facts from the authorities relied on by appellant. See Collins v. Sparks, Ky., 310 S.W.2d 45; City of Prestonsburg v. Mellon, 220 Ky. 808, 295 S.W. 1064; Rose v. Vasseur, Ky., 358 S.W.2d 540; Com., Dept. of Highways v. Eubank, Ky., 369 S.W.2d 15.

Neither do we feel that the evidence of Mr. Hammon should have been stricken. Based upon his education and experience the witness qualified- as one able to offer expert testimony on the subject at hand. He had viewed the premises and made measurements. He was well versed in vibrations caused by explosives and was quite positive that the damages he saw in Mrs. Back’s property could not have resulted from blasting. He supported his own opinion by text authority on the subject. He was qualified to express the opinions he offered.

The Department’s attack upon the instructions is without merit. In the record it is observed that the Department did object to permitting the jury to award separate amounts against Juett and the Department. However, this objection was asserted, to use the language of it, because “the proper instruction to be given to the jury is to find for the plaintiff only against the * * * [Department], wholly or to find for the plaintiff wholly against * * * [Juett] if the jury believe the damage was caused by extensive use of dynamite.” The evidence for Mrs. Back undertook to posit the damage on the blasting; for Juett the evidence would exculpate the blaster and charge the damage to a slide occasioned by the Department’s requirement that the toe be removed; the Department undertook to show that the removal of the toe did not cause the trouble. Under these conditions there was ample evidence to support the proposition that each of the activities— blasting and toe removal — played its joint part in the damage. In such circumstances it was proper for the jury to be instructed that it could make separate awards. Elpers v. Kimbel, Ky., 366 S.W.2d 157, 161.

The final basis for reversal advanced by appellant stems from the fact that no affirmative relief was sought against the Department by Mrs. Back until after the trial and judgment. It is reasoned that-since no liability against the Department may arise except under the “reverse condemnation” theory, the claim for contribution or indemnity by Juett against the Department was illegal, thus the Department had “no business” in the trial in the first place. CR 15.02 provides in part: “When issues'not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Examination of the record reflects that this case was tried as if the issue had been raised by Mrs. Back to impose liability on the appellant Department. In his opening statement to the jury counsel for the Department informed the jury that the Department’s evidence would show that the damage to Mrs. Back’s property was the result of Juett’s blasting, not the result of removal of lateral support. As just noted, when the Department made objection to the instruction, the basis of it was that the Department should be required to pay it all or none. In these circumstances, it is our view that CR 15.02 is applicable, and the Department may not now complain that the complaint of Mrs. Back was not amended as to it until after the trial.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Angelina MASCOLINO, Appellant, v. NOLAND & COWDEN ENTERPRISES, INC., Appellee.
    Court of Appeals of Kentucky.
    June 11, 1965.
    Frank S. Ginocchio, Lexington, for appellant.
    Brock & Brock, Lexington, for appellee.
   PALMORE, Judge.

Appellant owns and resides on Lot 39 of Ransom Subdivision in the City of Lexington. She appeals from a summary judgment dismissing her complaint for injunc-tive relief against appellee’s use of neighboring Lots 37 and 38 as a parking area for a new office building.

Ransom Subdivision is bounded on the east by Main Street and on the west by High Street. One street, Ransom Avenue, runs through it from Main to High. At the east and west ends of the subdivision the lots face on Main and High Streets, respectively. Those located on Ransom Avenue between the rear lines of the lots fronting Main and High face on Ransom Avenue.

The defendant company owns Lots 32, 33, 34, 35, 37 and 38. Lots 32 to 35, inclusive, face the east side of High Street at the southeast corner of High and Ransom. Lots 37, 38 and 39, in that order, are located on the south side of Ransom immediately to the east or rear of Lots 32 to 35. In other words, Lots 37 and 38, which are those immediately in issue, lie between the lots facing High and Mrs. Mascolino’s Lot 39 which faces Ransom.

The subdivision plat was recorded in 1889. No restrictions were indicated on or filed with it. Evidently no effort was made to market the lots until 1919, when the subdivider’s executor had them sold at public auction. Lots 37, 38 and 39 originally were conveyed to separate purchasers, and each of the three deeds contained the following restrictions (emphasis added):

“It is hereby covenanted and agreed between the parties hereto and their heirs and assigns that the residence erected on said lot shall front on Ransom Avenue, and the front of said residence shall be set back a distance of not less than 25 feet from Ransom Avenue and that the first story of any residence erected thereon shall be constructed of brick, stone, concrete or stucco, and that said building shall cost not less than $3,000.00.
“It is further covenanted and agreed between the parties hereto, their heirs, successors and assigns, that said residence shall not he placed nearer than 3 feet to the line of said lot and that no front fence shall be built on said lot and no fence to run nearer the street than to the front end of the house and that no stable or garage shall be erected within 75 feet of Ransom Avenue * * * and that the party of the second part agrees to insert all of the restrictions and covenants contained in this deed in any deed or deeds that they may make to said property.”

There were no restrictions on Lots 32, 33, 34 and 35, facing High Street.

Since the sale in 1919 some 30 or more dwellings have been constructed on Ransom Avenue and are still being used as such, though defendant company has now razed the houses on Lots 37 and 38. Also since 1919 a north-south street formerly called Vine Street but now known as Central Avenue has been extended across Ransom Avenue (at a point nearer to Main than to High), and in the case of Goodwin Bros. v. Combs Lumber Co., 275 Ky. 114, 120 S.W.2d 1024 (1938), this court held that even if the aforementioned restrictions were construed as prohibiting use of the restricted lots for business purposes, nevertheless the character of the area between Main and Central had so changed that the restrictions were no longer applicable in that particular segment or block of Ransom Avenue.

The chancellor granted a summary judgment in the instant case following the reception of affidavits and considerable evidence in connection with plaintiff’s motion for a temporary injunction. It was his conclusion “that the character of the block in question is so changed by the influx of business and commercial enterprises that it has lost its character as a residential neighborhood and is now essentially a commercial territory,” and that under the same theory as the Goodwin Bros, opinion the restrictions are not enforceable.

Defendant company has constructed a two-story office building facing High Street and has prepared the remainder of its property as parking space to accommodate some 100 vehicles. It is alleged that the building is partially on Lot 37, hut appellant does not now contend that this particular circumstance affords a ground for relief, nor does she contend that the property cannot be used for business purposes. Her case is pitched on the proposition that the construction of a parking lot within three feet of her property line and within 75 feet of Ransom Avenue violates the italicized portions of the restrictive provisions as above quoted in this opinion.

Rhodes v. A. Moll Grocer Co., 231 Mo.App. 751, 95 S.W.2d 837 (1936), is cited in support of the argument that a parking lot is a “garage.” That was a nuisance case in which the complaint described the lot as an “open-air garage” and the defendant evidently undertook to maintain that the evidence failed to support that allegation. Quoting a dictionary definition of a garage as “a place for housing automobiles,” the court held that “whether the roof was a man-made one, or the canopy of heaven,” was immaterial. Within the context of that particular litigation we are not disposed to criticise this conclusion. The case was focused on the existence of conditions amounting to a nuisance rather than the intended meaning of a word or words used in a deed. But in this case we are concerned with what a subdivider meant by providing that no “garage” be erected within 75 feet of the street and that no “residence” be placed nearer than three feet to the lot line.

“We must seek the intention of the grantor from the language used, considered in light of such factors as the general scheme of the subdivision. We may not substitute what the grantor may have intended to say for the plain import of what he said.” McMahan v. Hunsinger, Ky., 375 S.W.2d 820, 822 (1964).

It is beyond doubt that when the lots were sold in 1919 it was contemplated that the ones facing Ransom Avenue would be used for the construction of homes. Within that scheme of things it is our opinion that the words “garage” and “residence” must be given their usual and customary meaning.

“The general term ‘garage,’ which is appropriated from the French language and means ‘keeping under cover’ or ‘a place for keeping’ of wagons as well as automobiles, is employed in English to mean ‘a place where a motor vehicle is housed and cared for.’ ” 24 Am.Jur. 481 (Garages, Parking Stations, and Liveries, § 2). Our conclusion is that the term “garage” when used with reference to residential property means a covered structure and does not include an unenclosed and uncovered parking area. Were it otherwise, the many driveways we know to exist on residential lots that do not have garages, and which are customarily used for off-street parking, would be “garages.”

We are of the further opinion that the word “residence” as used in these deeds was intended to mean a dwelling house. The provision that “said residence shall not be placed nearer than three feet to the line of said lot” (emphasis added) obviously refers to the “residence” mentioned in the preceding paragraph, where it also is called “said building.” By no feat of semantics can this be taken to embrace a mere parking area.

It is stated in the findings of the trial court that “plaintiff waived that part of the complaint which asked that defendant be enjoined from erecting any building which did not face on Ransom Avenue and that part of the complaint which sought to enjoin defendant from using Lots 37 and 38 for business purposes.” It is therefore unnecessary for us to determine whether the restrictions impliedly exclude a business use, and unnecessary also to reach the question of whether the character of the area has changed from residential to commercial. The basis on which our decision rests is that the construction of an open parking lot does not violate the set-back and side-line restrictions on which the plaintiff relies in this appeal. There being no material issue of fact in that respect, the summary judgment was proper and correct.

The judgment is affirmed.