author: CROSS, Judge.

text:
    Josephine FONTANA, Appellant, v. Floyd Allen DAVIS, Respondent.
    No. 23962.
    Kansas City Court of Appeals. Missouri.
    Oct. 5, 1964.

      Knowlton & Drape, Kansas City, for appellant.
    Thomas A. Sweeny, Popham, Thompson, Popham, Trusty & Conway, Kansas City, for respondent.
   CROSS, Judge.

In this action plaintiff Josephine Fontana seeks to recover damages from defendant Floyd Allen Davis in the sum of $10,000.00 for personal injuries she claims to have suffered in an automobile collision. A jury trial resulted in a verdict and judgment in favor of defendant. Thereafter, the trial court overruled plaintiff’s motion for a new trial. Plaintiff appeals.

The facts here set out will be sufficient for our consideration of two assignments of error made by plaintiff. On August 30, 1961, at approximately 8:00 P.M., plaintiff was riding as a passenger in a Ford automobile being driven by her father, Angelo Licata, in an easterly direction along Highway No. 40 and toward intersection with a north and south street in Independence, Missouri, known as Sterling Avenue. Mr. Licata testified that it was his intention to make a left turn into Sterling Avenue, and that as he approached the intersection the traffic light was green for east and west travel, but that he couldn’t make the turn because of oncoming traffic, so he “just stopped and waited for the traffic” which he described as “heavy”. Licata stated that when the light turned yellow he saw defendant’s automobile a hundred yards or more away, but that he “figured” he could make his left hand turn on the yellow light because he thought defendant had “plenty of room to stop”. Accordingly, Licata then drove the Ford to the left into Sterling Avenue and undertook to cross the two westbound lanes of Highway 40. He cleared the inner lane and traveled about half way across the outer lane, where his vehicle was struck on the right rear by defendant’s automobile and “pushed * * about four or five feet over on Sterling”.

Defendant Davis testified that just before the collision he was traveling westbound on the northernmost lane of Highway No. 40 at a speed of 40 to 45 miles an hour, that when he was only two or three car lengths from the Sterling Avenue intersection the traffic light turned yellow, and that he then saw the Licata car pulling out from behind another westbound automobile which had stopped in the inside or south lane to make a left turn toward the south on Sterling Avenue. Davis said that he immediately applied his brakes as hard as he could when he saw the Licata car turning in front of him at the stated distance of two or three car lengths, that in so doing he laid down 60 feet of skid mark, but that he was unable to stop. After the defendant’s vehicle had been slowed to approximately 20 miles per hour, it collided with the Licata car in the northernmost lane for westbound travel. The front of the Davis car struck the right rear fender of the Licata car. At the scene of the accident, defendant inquired of Mr. Licata whether any one in his automobile was hurt. Licata stated that a child passenger had received a scratch on its hand, but that no one else in the car was injured.

At the time of the collision plaintiff was riding in the front set of the Ford car next to the right front door, but she docs not claim to have seen defendant’s car before the collision. She testified that “right at the time” (after the impact) she thought nothing had happened to her to cause injury, except that she “felt the jab of this arm-rest on the door”. When asked by a lady at the scene of the accident if she had been hurt, plaintiff state, “No, I don’t think so”. Later that evening plaintiff still didn’t think she was hurt and she “went right on to bed”. Next morning, according to her testimony, she was “just black and blue all over”. She consulted a physician, Dr. Downey, to whom she complained that she was “just sore and sick all over”. She claimed she was having “trouble” around her neck and shoulders, and all over her side, arm, and leg, and that “it was just quite a bit of all over my body”. Dr. Downey’s treatment of plaintiff on this occasion consisted of giving her some sleep inducing medicine. Plaintiff said she returned to the doctor at different intervals — about eight or nine times altogether — and that “about all he was giving me was these pills to put me to sleep and telling me to lie down, take it easy and rest, not do any housework or any pushing or lifting or anything of that sort”. During this period of time no X-ray examination of plaintiff was made. Plaintiff’s complaints as of the time of the trial were that she had pain in her neck, back and shoulders and that her stomach still “bothers” her. The transcript contains no medical testimony on behalf of either party.

It is further shown by plaintiff’s testimony that on May 19, 1962, almost nine months after the automobile collision, she slipped and fell on the floor at her home. At the direction of Dr. Downey, to whom she talked by telephone after sustaining lí er fall, she went to St. Mary’s Hospital for examination. According- to the hospital “Emergency Record” which plaintiff produced in evidence as “Plaintiff’s Exhibit I” she gave the following history of her fall: “Patient sat down forcibly on wet floor after slipping this A.M.” An X-ray picture of her back was interpreted by the hospital radiologist as follows: “Impression: Compression fracture superior margin of D.6”. Plaintiff was not admitted to the hospital as a patient but returned to her home after the examination.

Plaintiff’s case was submitted to the jury under her verdict directing instruction (Instruction No. 1) which reads as follows: “The Court instructs the jury that if you find and believe from the evidence that on or about August 30, 1961, in the vicinity of 40 Highway and Sterling Avenue, plaintiff was a guest passenger in an automobile being driven in an easterly direction on Highway 40 to a northerly direction on Sterling Avenue, and using ordinary care for her safety, and, at the same time an automobile driven by defendant, Floyd Davis, was being operated in a westerly direction on said Highway 40, and, if you find that defendant Davis, by keeping a constant lookout ahead and laterally, could have seen and observed the automobile in which plaintiff was a guest passenger, and that thereafter defendant Davis could have by the highest degree of care avoided colliding with the automobile in which plaintiff was a passenger, and that defendant Davis negligently failed to do so, and that in so doing defendant Davis failed to exercise the highest degree of care and was thereby negligent, and if you find that such negligence directly caused injuries to the person of the plaintiff, then your verdict should be in favor of plaintiff, Josephine Fontana, and against defendant Davis”.

Plaintiff’s first point is a contention that the trial court erred in giving defendant’s Instruction No. 8 “because it is an abstract statement of law inapplicable to the case, does not hypothesize any facts; if it is-a converse instruction, it is not an exact converse of plaintiff’s submission, or the converse of any one of the elements essential to plaintiff’s recovery and does not submit facts which disprove factual elements necessary to plaintiff”. Instruction No. 8 reads as follows: “The Court instructs the jury that if you find and believe from the evidence that on the occasion in question Mr. Davis was at all times exercising the highest degree of care to keep a lookout ahead and laterally for vehicles with which there was danger of collision, then your verdict must be in favor of Mr. Davis, the defendant, and against the plaintiff”.

In deciding whether Instruction No. 8 is erroneous or proper we first examine plaintiff’s verdict directing Instruction No. 1 for comprehension of its meaning and to ascertain the issues it defines and submits. In so doing we are mindful of all the basic and well established principles governing such inquiry, including the rules that instructions are to be read and construed in the light of the issues pleaded and presented upon trial and the evidence adduced, and, that the meaning of an instruction is to be determined from its entirety and not from isolated words or phrases. See State ex rel. Burcham et al. v. Drainage District No. 25, Mo.App., 280 S.W.2d 683, and cases cited. Plaintiff’s petition is materially significant to the question at hand, since instructions “should conform to the pleadings”, and, generally, “should not be broader than the issues made by the pleadings”. Raymond, Missouri Instructions, Vol. 1, Sec. 91, pp. 71-73.

In her petition plaintiff pleads five separate specifications of primary negligence on the part of defendant as grounds for recovery by alleging that he was careless and negligent in (a) “failing to keep a vigilant and proper lookout ahead and laterally for automobiles which might be on or at said intersection at the time and place in question, including the automobile in which plaintiff was a passenger”; (b) operating his automobile at a dangerous and excessive rate of speed; (c) failing to have his automobile under proper control; (d) failing to give any warning by horn or otherwise; and (e) failing to stop, swerve or slacken the speed of his automobile. It is clearly apparent from reading Instruction No. 1 that in submitting her case plaintiff abandoned all of the specific grounds of negligence she had pleaded in her petition except the first one — her complaint that defendant failed to keep “a vigilant and proper lookout ahead and laterally for automobiles which might be on or at said intersection * * * including the automobile in which plaintiff was a passenger”.

■ Although Instruction No. 1 is phrased in language broader than allegation (a) of her petition, and contains some nonessential elements which are not present in her pleading and to which we later refer, it is our opinion that the instruction amounts to what is generally referred to as a “lookout” instruction and that the only essential issue of negligence submitted by it was whether defendant had failed to keep a proper “lookout” as plaintiff had charged in her petition.

Such a submission is sufficient, and is consistently held to be a proper basis of recovery. Numerous cases so holding include Lincoln v. Railway Express Agency, Inc., Mo.Sup., 359 S.W.2d 759; Anderson v. Bell, Mo.Sup., 303 S.W.2d 93; Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14; Anthony v. Morrow, Mo.App., 306 S.W.2d 581; Jenkins v. Wabash Railroad Co., Mo.Sup., 322 S.W.2d 788. In Lincoln v. Railway Express Agency, supra, the Supreme Court stated that, “In a primary negligence case it is sufficient to submit failure to keep a lookout, together with a finding of causation, and it is ‘unnecessary to submit the further hypothesis that by keeping a proper lookout defendant could have seen plaintiff’ or could have averted the collision”. (Citing, Fortner v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 10, 14, 15 cited and quoted approve ingly in Thaller v. Skinner & Kennedy Co., Mo.Sup., 315 S.W.2d 124, 130).

In drafting plaintiff’s Instruction. No. 1, its author has seen fit to include re-, quired findings for which there is no basis, in the petition, which are not pleaded as grounds of negligence, and which are not. essential to recovery. We refer to those portions of the instruction which require the jury to find that by keeping a proper lookout defendant (1) could have seen the automobile in which plaintiff was a passenger, and (2) could have avoided the collision. In our opinion those hypotheses are only evidentiary circumstances which the jury might consider in determining whether plaintiff discharged his legal duty top keep a lookout. Clearly they are not essential elements of plaintiff’s case. See Horrell v. St. Louis Public Service Company, Mo.Sup., 277 S.W.2d 612. Of the instruction we finally say that in its simplest form, and in substance, it contains only three controverted essential elements: (1) the issue of plaintiff’s contributory negligence, (2) the issue of whether defendant negligently failed to keep a lookout, and (3) the issue of causation.

It is well established by the decisions of Missouri courts that any party who does not carry the burden of proof on an issue is entitled to an instruction submitting a simple negative converse, sometimes called a “true converse” of any one or more of the essential elements of his opponent’s theory of recovery or affirmative defense. Dell ’Aria v. Bonfa, Mo.Sup., 307 S.W.2d 479; Liebow v. Jones Store Co., Mo.Sup., 303 S.W.2d 660. Accordingly, a defendant may submit the exact converse of plaintiff’s verdict directing instruction, Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, or the converse of any essential element of such instruction, McCarty v. Milgram Food Stores, Inc., Mo.Sup., 252 S.W.2d 343. When either is done, the result is considered to be a “true converse instruction”. Such an instruction does not require affirmative testimony to support it and need not hypothesize facts. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461. A defendant may also submit facts in an instruction, the existence of which would disprove or controvert one or more of the essential factual elements of plaintiff's case. This latter type instruction is not considered a “true converse instruction” and requires factual support in the testimony. Liebow v. Jones Stores Company, Mo.Sup., 303 S.W.2d 660.

Our examination of defendant's challenged instruction in the light of the above rules leads to the conclusion that it is, in legal effect, an exact converse of an essential element of plaintiff’s verdict directing instruction, to-wit, that element which submits the sole issue of primary negligence on the part of defendant. Plaintiff’s instruction told the jury, in substance, to return a verdict in her favor if (among other findings) they found that defendant negligently failed to exercise the highest degree of care to keep a “constant lookout ahead and laterally”. Defendant’s instruction told the jury they must find in defendant’s favor if they found that defendant “was at all times exercising the highest degree of care to keep a lookout ahead and laterally for vehicles with which there was danger of collision”. Although, as a matter of form, defendant’s instruction is not phrased negatively in the identical, word for word language of plaintiff’s instruction, we consider its substance to be the legally exact converse of plaintiff’s primary negligence submission. “A true converse instruction may be drawn in general terms and need not negative the adversary’s instruction”. Raymond, Missouri Instructions, Vol. I, Sec. 40, 1963 Cumulative Pocket Part, Ch. 3, p. 22, citing Rhinelander v. St. Louis-San Francisco Ry. Co., Mo.Sup., 257 S.W.2d 655. And, as stated by Judge Hyde in Alberty v. Sunshine Biscuit Co., Inc., et al., Mo.Sup., 321 S.W.2d 418, “A short, clear converse instruction which makes plain to the jury a single essential fact issue, upon which their verdict must depend, is to be commended”.

We find no merit in the various points of argument plaintiff has directed against Instruction No. 8, and consequently rule that the trial court committed no error by giving it.

In her second point plaintiff contends that the trial court erred by admitting into evidence defendant’s Exhibit 1, a single sheet printed form entitled “ACCIDENT REPORT”, partially filled in by typewriting, which on its face purports to be a report by St. Mary’s Hospital, as an insured under a liability policy, to its insurer, Maryland Casualty Company, of an accident occurring to plaintiff on the hospital premises on May 19, 1962. The exhibit represents that there was an accident in that the “patient sat down forcibly on wet floor”, that the nature and extent of her injuries was a “mild fracture of the body of the sixth dorsal vertebra”, and that the physician who examined her was “Dr. Woods”. The paper contains no other information except that “injured” was “taken home”. It bears the date of June 11, 1962, and is unsigned. In support of the instant assignment, plaintiff argues that the exhibit was not properly qualified as a business record and was hearsay evidence as to her. Plaintiff further insists that the error was to her prejudice.

Defendant’s Exhibit No. 1 was produced by Louise Santee, custodian of the hospital’s medical records, pursuant to defendant’s subpoena. She testified that the exhibit was a business office record in the nature of “an accident report record” which she had brought to the court from the business office at the request of “the Sister” who was the hospital’s business manager. She admitted that the exhibit was not a record kept in the “Medical Record Department”, that it was not in her care, custody or control, that she knew nothing at all about the “circumstances”, that the “report” was an unsigned carbon copy, and that she didn’t know under what circumstances “the hospital filed this accident report”. There is no testimony from the custodian of the record offered, or from any other qualified witness, “as to its identity and the mode of its preparation” or that “it was made in the regular course of business, at or near the time of the act, condition or event”. Therefore, the document was not established as competent evidence under the provisions of Section 490.680 V.A.M.S., and its reception by the trial court was error.

Plaintiff’s argument that the erroneous admission of the exhibit was to her prejudice, is in full test, as follows: “By the introduction of the accident report, defendant’s exhibit, the defendant has told the jury that the plaintiff was injured, not in the accident which is the subject of this suit but at St. Mary’s Hospital. Since this goes to the very heart of this case, the admission of this exhibit is prejudicial and plaintiff should be granted a new trial”.

We are not persuaded by the foregoing that the admission of the accident report had any adverse effect on the jury’s verdict. The fact that plaintiff suffered a fall nine months after the automobile collision, and was thereafter diagnosed by X-ray as having a compression fracture of a vertebra, was first established by plaintiff’s own testimony and by her Exhibit No. 1 — the hospital emergency record. The only difference between plaintiff’s evidence and defendant’s Exhibit No. 1 is that the former shows that plaintiff sustained her fall at her home, and the latter represents the place of plaintiff’s fall as the hospital. We think the salient and material circumstance that might have influenced the jury’s verdict is the admitted fact that plaintiff had a fall subsequent to the accident to which she attributed her claimed injuries, and that X-ray examination conducted after her fall disclosed she had a fractured vertebra. On the contrary, we believe the jury attached no significance to the question whether plaintiff’s fall on May 19, 1962 occurred at her home or at the hospital. The real question for their decision was whether her injuries resulted from the collision or from her later fall. Insofar as their deliberations on this issue were concerned, we think it was of no consequence to them whether she fell at one place or the other. We rule that the trial court’s error complained of did not materially affect the merits of this action, and constitutes no cause to disturb the judgment. Civil Rule 83.13(b), V.A.M.R.

Finding no reversible error in the record, it is our opinion that the judgment should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: A. J. BRATCHER, Special Commissioner.

license: Public Domain

text:
    Carl JONES, Appellant, v. Faye J. JONES, Appellee.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.
    James E. Clay, B. G. Brammell, More-head, for appellant.
    ' Lewis A. White, Mt. Sterling, for appel-lee.
   A. J. BRATCHER, Special Commissioner.

The only question involved • is whether the alimony awarded is excessive. Appel-lee was awarded alimony in the sum of $3,000, payable in thirty monthly installments.

Appellee alleged that she and appellant were married on August 18, 1940, and lived together until January 1963. Appellant denied this and contended that they had lived together as man and wife for over 20 years, legalizing their relationship in 1952. They each had a son by former marriages whom they mutually reared together as brothers. The cause of divorce is not material, except to say that the evidence amply supported the judgment of divorce granted the wife.

In Heustis v. Heustis, Ky., 346 S.W.2d 778, this Court said:

“Except in flagrant instances fault is not a very sound basis for determining alimony anyway, and in the case of Coleman v. Coleman, Ky.1954, 269 S.W.2d 730, this court clearly and cleanly departed from the theory that it is.”
* * * * * *
“ * * * the approximate equivalent of one-third of the husband’s estate is a reasonable basic measure.”
* * * * * *
“Lump sum settlements are favored where the husband has sufEcient estate to insure payment.”

Appellant then argues that since fault is not to be used and he has no estate, the one-third rule could not have applied for the reason that appellant would have to have had an estate of $9,000 to justify the award of $3,000 made.

This Court has not set a hard fast rule in awarding alimony, except that in determining the amount of alimony each case must rest on its particular facts. McCoulf v. McCoulf, 307 Ky. 682, 212 S.W.2d 284; Alexander v. Alexander, Ky., 317 S.W.2d 494. The controlling facts encompass the husband’s estate, his age, and ability to earn money. Young v. Young, Ky., 340 S.W.2d 253. In this case it is undenied that the appellant is 49 years of age, a former sheriff of Rowan County, a former county judge, and at the time of the rendition of the alimony award was an employee of the State Highway Department at a salary of $440 per month, with a take-home pay of approximately $300. This would fairly disclose that he is a man of considerable ability, far above average. The appellee is also 49 years of age and has been a housekeeper all of her life, untrained and unskilled for gainful employment.

In Dalton v. Dalton, 304 Ky. 223, 200 S.W.2d 469, the Court said:

“In allowing alimony there is no fixed standard. The matter is within the sound discretion of the chancellor and is to be regulated by a number of circumstances that properly enter into the consideration, such as the size of the husband’s estate, its productiveness, his income and earning capacity, his age, health and ability to labor, the age, health and ability of the wife to earn something and the particular cause for which the divorce was granted the wife.”

See cases cited therein and Gann v. Gann, Ky., 347 S.W.2d 540.

The Chancellor, in providing that' the alimony be paid in monthly installments, recognized that appellant had no property but had an earning capacity enabling him to pay $100 per month for support of his divorced wife. In all probability he had in mind the one-third rule in determining the amount and method of payment. The award of $3,000, payable $100 per month for thirty months is not excessive. The Chancellor did not abuse a sound discretion. The award is amply supported by the record- :

The Chancellor’s decision will not be dis-1 turbed unless clearly erroneous. Petrie v. Petrie, Ky., 262 S.W.2d 182.

It is our opinion that the judgment should be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


author: PALMORE, Judge. STEWART, Judge

text:
    Gary K. COLEMAN, Infant, by his father and next friend, George W. Coleman, Appellant, v. John BAKER, d/b/a Baker Electric Company, Appellee.
    Court of Appeals of Kentucky.
    June 5, 1964.
    Rehearing Denied Nov. 6, 1964.

      Charles E. Lowe, Jack T. Page, Pikeville, for appellant.
    F. M. Burke, J. A. Runyon, Pikeville, for appellee.
   PALMORE, Judge.

The appellant, Gary Coleman, a 16-year old boy, was run over and injured by a 3000-lb. battery-powered mine motor while he was in a building used for the manufacture and assembly of such motors. He brought this suit for damages against the appellee, John Baker d/b/a Baker Electric Company, on the theory that the premises and manufacturing operation were under the management and control of Baker and that the accident resulted from the negligence of his employes. Appeal is taken from a judgment entered on a verdict directed in favor of defendant at the close of plaintiff’s evidence.

The issues to be decided are:

1. Was there enough evidence of a master-servant relationship between Baker and the workmen on the premises to raise a jury question?

2. Was there enough evidence of negligence to raise a jury question?

3. Was Gary Coleman contributorily negligent (or, to put it another way, did he assume the risk) as a matter of law?

The evidence pertinent to the first question was substantially as follows:

The building in which the accident occurred was constructed by Baker in 1954 or 1955 on property owned by his father-in-law. Since that time it has been used by Baker as a machine shop to build mine motors and chargers, and the witnesses referred to it as the “Baker Electric Shop.” Baker admitted that he had conducted the operation until 1960, but said that he put “some” of his men on an independent contractor basis on January 1, 1960, and the rest of them on June 1, 1960. The date of the accident was June 29, 1960, at which time he had subsisting contracts with at least two workmen, one of which, he said, had been reduced to writing and the other of which he was unable to get signed until July (though it was dated June 1). These two agreements, both dated June 1, one with Travis Coleman and the other with Junior Thacker, were introduced in evidence. The only other person he identified as having had such a contract, allegedly dated Janu-uary 1, 1960, was the witness Columbus Hall, who had quit working for him prior to the accident. The Hall contract was not produced in evidence.

Under the terms of the form agreement Baker rented unspecified space in the shop to the individual workman for $1 per month. Baker was to furnish all parts necessary to the manufacture of mine motors and the workman was to build them and to pay all bills for electricity, acetylene and oxygen. For each completed unit Baker agreed to pay the workman $150 plus $25 as reimbursement for electricity expense. It was further provided that the workman would “be responsible for any damages caused by his workers and for any accidents they may have or that outside persons may have on or about the premises.”

Baker testified that both he and the individual workmen procured and accepted orders for construction of the motors. He said that he visited the shop about once a week to see if they needed any parts. His home (and apparently his principal place of business) was in Grundy, Virginia, whereas the shop in which the accident took place was located in Pike County, Kentucky. The trial court erroneously sustained objection to a question as to whether he had any similar shops elsewhere, but no avowal was made, so we do not know the scope of Baker’s operations or what arrangements he had with other persons, if any, performing similar work for him.

Testimony that Baker made no social security or withholding tax deductions from payments made to the workmen was not contradicted. A series of checks from Baker to Junior Thacker showed dates and amounts as follows-:

June 10 — $80.90
June 18 — 45.90(with notation, $20.-00 advance on mo-' tor”)
June 25 — 60.90
July 2 — 45.90
July 16 — 50.00

It will be noted that no combination of these figures hears any apparent relationship to $175, the “contract” price for each unit. Baker explained that he would advance each man about $50 per week and pay the balance due on completion of the motor then in process of manufacture. Travis Coleman, one of the men, attempted to explain that payments did not come out to an even $175 because they sometimes did “extra work.” However, he admitted that this extra work was done on their own for persons other than Baker and. that the money for it did not pass through Baker’s hands. He admitted also that he" did not pay any bills for electricity or acetylene, but that these expenses were paid by' Baker and deducted from the contract payments.

Both Baker and Travis Coleman were confused with respect to the contents of the contract until a copy was produced for inspection. Baker at first said the rental amount was $1 yer year, and then said that $12 was paid in advance, whereas the agreement recites that only $1 was paid. Travis Coleman testified that the rental was $125 per year.

At the time of the accident a 15-year old' boy named Gary Thacker was working on' the premises in question, digging a ditch. He said he had also worked within the shop building cleaning up trash. He had been hired by Baker.

Under this evidence we are unable to say that the written contract introduced in evidence reflected the actual arrangement between Baker and the workmen or, if so, that it was conclusive of the question whether they were servants or independent contractors. The building was owned by Baker and the business was conducted under the name of Baker Electric Company. Until very shortly before the accident, unquestionably it was operated on a master-servant basis. That the method of payment was changed from salary to job rate (if, indeed, it was really changed) is not of dis-positive significance. The ultimate test is the control reserved or exercised by the employer, and even if there is a written contract, actual practice under it may outweigh its provisions. Cf. 53 A.L.R.2d 183, 185. If different inferences -may reasonably by drawn with respect to the true relationship of the parties, a jury question is presented. 1 Restatement of Agency 2d § 220, comment c.; ,56 C.J.S. Master and Servant § 13, p. 92; 35 Am.Jur. 1040 (Master and Servant, § 600)... It is our opinion that it would not be unreasonable for a jury to conclude, on these facts, that there had been no real change in the relationship between Baker.and the workmen prior to the accident. Hence the first question must be answered in the affirmative.

We. turn now to the circumstances bear-' ing on the issues of causation, negligence, and contributory negligence or assumed risk.

As may be gathered from what has been said thus far, the work at Baker Electric Shop was not a large operation. On the afternoon of the accident the only workmen present were Travis Coleman, who was doing some welding in the building, and Gary Thacker, the boy digging a ditch on the outside. Gary Thacker’s younger brother Larry, 13 years of age, also was present. The appellant, Gary Coleman, and a companion, Dean Coleman, also 16 years old, went to the shop for the purpose of riding the motors. They and other young boys in the neighborhood had theretofore been allowed to do this almost at will, both in and out of the building. Appellant testified that on at least one of the numerous occasions when he had been inside the shop (at which time, however, he was not on one of the machines) Baker was present and did not ■tell him to stay out. On the occasion of the accident Travis Coleman, the only grown man on the scene, says he told the boys that if they didn’t stay off the machine in question they would get killed. Appellant denied this, but in any event it is clear that Travis Coleman went on about his work and made no attempt to prevent the operation of the machine. Appellant, who by reason of his previous experiences of the same nature in the same place had attained a proficiency in the handling of these motors, got on one of them and drove it in reverse to the end of the building, a distance of some 50 feet, and then forward to its starting position, where he stopped it. His description of the ensuing mishap is as follows:

A. “Well, I was driving this motor —I had backed up and then pulled it back up and stopped it and I was just sitting on it and it started out and when it went forward, I fell off — it started out real fast and I fell off backwards and it hit the concrete floor and knocked it in reverse and it come back over top of me before I could get out of the way.”
Q. “You were sitting on the back before you was knocked off it?”
A.' “Yes, sir.”
Q. “Who started the motor going • forward?”
A. “I think it was Larry Thacker. He was standing there beside of it.”
Q. “Larry Thacker was the closest one to it?”
A. “Yes.”
Q. “How old is -Larry Thacker?”
A. “Thirteen.”
Q. “Now, what kind of motor run over you, was it the four wheel or the three wheel ?”
A. “Three wheel.”
Q. “Whereabouts did it run over you or by you?”
A. “The back wheel crossed over my hips.”
* * * * * . *
Q. “Now, you were sitting on it immediately before you were hurt?”
A. “Yes.”
Q. “And it started in motion with such force or speed that it threw you off?”
A. “Yes.”

Neither Larry Thacker nor Dean Coleman testified. Travis Coleman and Gary Thacker, the only others present besides the appellant, did not see the accident. Hence the only evidence conducing to show the cause was appellant’s statement that he thinks Larry Thacker started the motor, because he was the closest person and was standing next to it. This evidence is thin, yet we think it is enough to justify an inference that the appellant himself did not start the machine and that Larry Thacker probably did.

Reasonable probability is all that • is required of evidence in order to support a factual conclusion.. 20 Am.Jur. .1099, 1101 (Evidence, §§ 1248, 1250). “Evidence reasonably tending to prove the essential facts, either directly or indirectly, or by permissible inference, is sufficient to sustain a judgment. * * * And essential facts may be proved by circumstantial evidence in which event it is not necessary that proof rise to a degree of certainty which will exclude every other reasonable conclusion than the one reached by the jury.” Cities Service Gas Company v. Eggers, 186 Okl. 466, 98 P.2d 1114, 126 A.L.R. 1278, 1281 (1940). Though a verdict may not be predicated on “mere conjecture or speculation,” and when two opposite conclusions appear equally probable from all of the evidence neither of them can be said to have been proved, the fact that both theories are consistent with the evidentiary facts does not necessarily mean that they are equally probable. If it fairly appears that one is more probable than the other a jury may so conclude. Ogilvie v. Aetna L. Ins. Co., 189 Cal. 406, 209 P. 26, 26 A.L.R. 116, 120 (1922).

Though wé might be inclined to suspect that the appellant himself started the motor, the jury was entitled to believe his testimony that he did not. Certainly Travis Coleman, the only person over 16 years old on the premises, did not do it, nor did Gary Thacker, who was working outside the building. Therefore, by process of elimination it had to be Larry Thacker or Dean Coleman, and which particular one of them it was makes no difference. The evidence was sufficient to support a finding that the accident was caused by one of the youthful interlopers.

There is no question but that the appellant was a “gratuitous licensee” on the premises as defined in § 331, Restatement of Torts. It was held in Kentucky & West Virginia Power Co. v. Stacy, 291 Ky. 325, 164 S.W.2d 537, 539, 170 A.L.R. 1 (1942), that to such a licensee the person in control of property owes “the duty of refraining from willfully or wantonly causing him injury or from committing active negligence resulting in his injury, and, if the harm caused to the gratuitous licensee is the result of a natural or artificial condition of the property, known to the possessor of the property and which he should realize involves an unreasonable risk to the licensee and has reason to believe that the licensee will not discover the condition or realize the risk, the.possessor owes the licensee the duty to make the condition reasonably safe or to warn him of the condition and the risk involved therein.” (Emphasis added.)

It is our opinion that the unsupervised presence of adolescent boys in a machine shop, especially boys known to be or likely to be experimenting or playing with machinery capable of inflicting injury, is equivalent to a dangerous condition and that with respect to a gratuitous licensee the person in control of the premises is negligent as a matter of law in permitting it if he has reason to believe the licensee “will not discover the condition or realize the risk.” Cf. Restatement of Torts, § 342. If the 16-year old appellant had been a mature person we would have no hesitation in holding that Travis Coleman, the person in charge, had no reason to believe that he would not realize and appreciate the risk of injury from the negligence or horseplay of the other boys with the machinery. Certainly the appellant and Travis Coleman were equally cognizant of the condition, but the law does not presume that an immature person has the same capacity as an adult to appreciate the danger of a known condition. The jury has the right to judge the child’s conduct by a lesser standard of care, i. e., “that which is usually exercised by persons of the same age, experience and intelligence under like or similar circumstances.” Jones v. Kentucky Utilities Company, Ky., 334 S.W.2d 263, 265 (1960); Blue Diamond Coal Company v. Bush, Ky., 342 S.W.2d 694 (1961). See also annotations, “Contributory Negligence of Children,” 107 A.L.R. 4, 174 A.L.R. 1080, 1154, 77 A.L.R.2d 917. It is for that reason that we cannot say that the appellant was contributorily negligent or assumed the risk as a matter of law, or that Travis Coleman was non-negligent as a matter of law. It is our conclusion that it was for the jury to say whether a 16-year old boy who had been in the shop and done the same things without incident on numerous previous occasions should have appreciated the risk of injury from the misdoings of the other boys, and whether Travis Coleman had reason to believe that he would not appreciate it.

In a case of this nature it is not inappropriate to suggest that the policy of the law must be to discourage the unsupervised presence of irresponsible children and adolescents in premises where the risk of injury is unreasonable in comparison with the ease of opportunity on the part of the possessor to prevent it.

We hold that at the close of plaintiff’s testimony there was sufficient evidence of negligence for submission of the case to the jury and that under this evidence it could not be said as a matter of law that appellant was contributorily negligent or had assumed the risk.

The judgment is reversed for a new trial.

MONTGOMERY and STEWART, JJ., dissenting.

STEWART, Judge

(dissenting).

I dissent from the majority opinion upon the basis that the trial court was correct in holding as a matter of law: (a) Travis Coleman’s status was that of independent contractor at the time of Gary Coleman’s injury;' and (b) the latter assumed the risk that resulted in his injury.

John Baker testified Travis Coleman and David Thacker, both former employees of his at the electric shop, signed contracts to do independent contractor work for him, before the time of the accident. Coleman testified that, as an employee of Baker, he had welded transformers and built charges; but it was only after he became an independent contractor that he began to construct motors.

The contract was made up in duplicate, with Baker signing and retaining one copy and Coleman signing and retaining the other. The contract provided for $1.00 per month rent; for parts to be furnished by Baker; for electricity, acetylene and oxygen to be furnished by Coleman. The payment for finished motors was to be $150 each, plus a rebate of $25 for electricity. The contract states:

“The party of the second part (Coleman) will furnish all labor needed in the manufacture and will also be responsible for any damages caused by his workers and for any accidents they may have or that outside persons may have on or about the premises.”

The contract was for a term of two years and provided for renewals or termination upon 30 days’ notice by either party.

In actual practice, Baker would advance money to Coleman and Thacker, (who also operated as an independent contractor, although he did not sign a contract until July, 1960) in the form of cash and payment of electricity and acetylene bills. The parties would make a final settlement when a machine was completed. Baker had no deduction for social security or income tax when he paid Coleman and Thacker.

Baker owned the building but did not own the lathes or other heavy machinery in the building.

Travis Coleman testified he was self-employed and had been since April, 1960. While he built motors for Baker, he also did work for other people and kept the money for himself. Coleman stated that he, and no one else, determined how many hours per day he worked. Baker testified he came to the shop on an average of one day per week for a 10-minute visit, to tell the men when he had work for them and to see if they needed parts.

In Turner v. Lewis, Ky., 282 S.W.2d 624, this Court held that the right of control of work and the methods of its performance are determinative on the question of whether one is a servant or an independent contractor. Here Coleman absolutely controlled the work and the method of its performance. See also Marcum v. United States, 6 Cir., 324 F.2d 787, wherein it was said that, under Kentucky law, the test for determination of whether the alleged servant was an independent contractor rather than a servant in connection with the occurrence in issue is whether the master had the right to control the details of the work. The evidence shows that Baker was’ interested only in the results of the work, i. e. motors, not the details involving their fabrication.

In 27 Am.Jur., Independent Contractors, sec. 2, p. 481, an independent contractor is defined as “ * * * one who, in exercising an independent employment, contracts to do certain work according to his own methods, and without being subject to the control of his employer, except as to the product or result of his work.”

From any point of view, when the foregoing principles of law are applied to the evidence, in my opinion the trial judge had no alternative but to find that Coleman was an independent contractor.

It is also my view Gary Coleman, who was 16 and had finished the second year in high school, at the time he was'injured should be held to the same standard of care as an adult, and that, taking all the factors into consideration in this case, he was properly found by the trial court to be guilty of contributory negligence as a matter of law.

In Wright v. O’Neal, Ky., 320 S.W.2d 606, a 14-year-old farm boy, who was experienced in driving tractors and had been specifically instructed by his employer as to the safe operation of such equipment while mowing on a hill, was killed when the tractor turned over on a hillside. This Court held the boy was contributorily negligent as a matter of law because he had failed to follow the instructions his employer had given him.

A 15-year-old high school student was determined contributorily negligent as a matter of law when he climbed up on the top of one of the sides of a bridge and came into contact with “live” electric wires suspended above him. This Court said in that case, Jones v. Kentucky Utilities Company, Ky., 334 S.W.2d 263: “The youth, James Lynn Jones, who was a high school student, will be deemed to have had sufficient knowledge and appreciation of the danger to himself in climbing and walking upon the top of the high superstructure of the bridge, sixty feet above the river, and to be chargeable with an awareness of danger from the close electric wires.”

In NACCA Law Journal, Vol. 30, p. 62, it is stated: “The favorable mutant laid down in Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859, holding infant drivers to an adult standard of conduct continues to grow in strength and compel adherence. See, e. g., Harrelson v. Whitehead, [236] Ark. [325], 365 S.W.2d 868; Allen v. Ellis, [191] Kans. [311], 380 P.2d 408; Nielson [Nielsen] v. Brown, [232] Ore. [426] 374 P.2d 896.”

Gary Coleman testified in great detail about mine motors, their size, weight, method of operation, type of material, number of gears, etc. On the day of the accident, he. went to the shop for the purpose of driving the motors. He had been doing this for three months, about three times a week. -He operated the motors in the shop, on the road, or on a school yard near the shop.

On the day of the accident he drove the machine inside the shop for his own pleasure. He knew'the machine was 10 feet long, five or more feet wide and weighed several tons. He knew how to stop and start it and how to regulate its speed and change gears. He knew that (as he stated) “ * * * if it got in motion it was subject to run over somebody unless it was being controlled.”

Travis Coleman testified thus about the boy: “I told him if he didn’t stay off it— I told the whole crowd, if the boys don’t stay off-n it — you will get killed.” He stated he gave this warning on the afternoon of the day the accident occurred.

Under the evidence, it is difficult for me to distinguish the case at bar, on the question of whether Gary Coleman could be held contributorily negligent, from the Wright and the Jones cases. Certainly, under the evidence introduced, he had “sufficient knowledge and appreciation of danger to himself” of driving the motor.

I would affirm the judgment.

I am authorized to state that MONTGOMERY, J., joins me in this dissent.

      . In this particular case the contract itself sheds very little light on the question of control. Hence even if its provisions had been rigidly followed, it could not, of itself, be determinative of the relationship as a matter of law.

      . We do not equate the obviousness of the danger in this case with that in the Jones case.


author: CULLEN, Commissioner.

text:
    Geneva L. SCHWARTZ, Appellant, v. George C. SCHWARTZ, Jr., Appellee.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.

      Jack M. Lowery, Jr., Louisville, for appellant.
    G. Phillip Deeb, Sr., Louisville, for appel-lee.
   CULLEN, Commissioner.

Geneva Schwartz was granted a divorce from her husband, George, in November 1958. The judgment incorporated an agreement giving the wife custody of their three children, aged 15, 10 and 8, subject to the husband’s right of “reasonable” visitation. In February 1963 an order was entered modifying the judgment so as to permit the husband to take the children from the wife’s home only for a few hours each weekend, “provided that the children should at all times * * * be accompanied by a discreet adult supervisor — not defendant’s present wife.” In April 1964 a further order of modification was entered, deleting the requirement for a supervisor. The wife has appealed from the latter order.

The appellant contends there was no showing of a change of conditions subsequent to the entry of the order of February 1963 and therefore the court had no authority to modify that order. It appears that the requirement in the February 1963 order for a supervisor had been made on the basis of evidence presented by the wife to the effect that the chidren could not safely be entrusted to the unsupervised custody of the husband because he was emotionally unstable and had a violent and uncontrollable temper. There was evidence at the hearing in April 1964, as to the actual experience during the period of supervised custody, warranting the conclusion that supervision was unnecessary and was simply a source of aggravation. In substance, the court, found that the danger thought to exist in February 1963 .did no longer exist, which we think falls in the category of a change of conditions.

The appellant complains of the refusal of the chancellor to admit evidence, on the hearing in April 1964, of a criminal record of the husband, and two adjudications of his insanity, long predating the divorce. We think the evidence properly was rejected. Since, at the time of the divorce, when an agreed judgment was entered concerning custody, the previous conduct and mental condition of the husband were not considered such as to prevent him from having the right of reasonable, unsupervised visitation, that conduct and condition could have no relevancy as to whether, six years after the divorce, it was necessary that his visitations be under supervision. The only issue on the April 1964 hearing was whether circumstances since the February 1963 order were such as to show that supervision was unnecessary. •

A third contention of the appellant’s, that the chancellor erred in regard to the giving of testimony by the children, must be sustained.

At a pre-trial conference the chancellor entered an order requiring each party to furnish to the other, and to the court, one week before the hearing, a list of his “witnesses”. The order recited that anyone whose name was not on a list would not be permitted to “testify in chief”. Both parties submitted lists but the children were not named on either list.

At the hearing the appellant offered the children as witnesses, but the chancellor refused to permit them to testify formally because their names had not been listed. He further refused to permit the appellant to take the testimony of the children either by way of avowal or as rebuttal evidence. Stating it to be his preference, he interviewed the children in chambers, overruling the appellant’s request that the reporter be present. Upon inquiry by the appellant as to the setting of a future date at which the children’s testimony could be taken formally, the chancellor announced that the earliest possible date would be some six months off.

Without regard to the question o£ whether the court had authority on its own motion to require the parties to list their witnesses in advance of the hearing, and the question of whether the parties reasonably would have understood that the children were embraced by the term “witnesses” in the pre-trial order, and the question of whether any end of justice was served by refusing to permit the children to testify formally, it is our opinion that when the chancellor elected to interview the children in chambers, without permitting the interview to be reported, and presumably based his decision at least in part on that interview, he committed a material procedural error.

The primary issue on the hearing related to the appellee’s conduct and attitude when the children were with him. The children were of such age that their testimony would be capable of value on that issue. It must be assumed that the chancellor did accord some weight to what the chidren told him in chambers.

We have held (in a divorce action) that when a child has been determined to be a qualified witness his testimony should be given in the presence of the parties or their counsel if it is to be made a basis of the court’s decision. York v. York, Ky., 280 S.W.2d 553. Here, although the appellee states in his brief that counsel were present and were offered the opportunity to question the children during the interview in chambers, the record recites only: “(At this time the Judge sees the Schwartz children in his chambers.)”

A further right of the parties, we believe, is to have the testimony of the children, where it may be used as a basis for the court’s decision, reported so that it may be preserved for appellate review. This right was denied here.

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


author: CLAY, Commissioner.

text:
    Mary B. JONES et al., Appellants, v. Mary CARR et al., Appellees.
    Court of Appeals of Kentucky.
    May 1, 1964.
    As Modified on Denial of Rehearing Oct. 30, 1964.

      Kenneth N. Ragland, Calhoun, John D. Miller, Owensboro, for Mary B. Jones.
    William L. Wilson, Wilson & Wilson, Owensboro, for Mary Carr.
    Wells T. Lovett, Lovett, Howard & Moreman, Owensboro, for Colonial Baking Co.
   CLAY, Commissioner.

Appellant plaintiff Mary Jones, a passenger in an automobile driven by appellee defendant Mary Carr, was injured when, the Carr automobile, skidding on an icy highway, collided with a truck. The trial court directed a verdict for all of the defendants at the conclusion of the plaintiff’s evidence. The correctness of this, ruling is the question before us.

The accident happened at approximately 5:30 A.M. before daylight on a wintry morning. The highway was covered with ice and snow, making driving conditions, extremely hazardous. The plaintiff was; riding on the back seat of the automobile operated by defendant Carr. As this automobile reached the crest of a hill it began skidding. Approximately halfway down the hill it swerved to the left hand side of the highway and there struck an oncoming truck.

The Carr automobile had skidded twice on the highway prior to the time' of the accident. At the crest of the hill defendant shifted gears from high to second. She was then proceeding at a speed estimated at 20 to 25 miles an hour. Plaintiff testified the automobile “gave a jerk when she changed gears, either that or she throwed her foot on the brakes”. Plaintiff also testified that the car speeded up and the driver “either hit the accelerator or the brake one”.

A police officer testified that a proper method of stopping a motor vehicle on a slick road is to “gear down” and use the brake “very lightly”.

With respect to defendant Carr, we are confronted with the troublesome issue of negligence when the operator of an automobile, knowing the hazardous condition, loses control of it by skidding on a highway made slippery by natural accumulations of ice, snow or water. Our cases exhibit some degree of inconsistency attributable principally to emphasis laid upon particular factors involved.

One of the earlier cases which has been ■cited innumerable times is Tente v. Jaglowicz (1931), 241 Ky. 720, 44 S.W.2d 845. In that case an automobile traveling 20 ■or 30 miles an hour skidded on an icy street .and struck another automobile in which the plaintiff was a guest. The liability of the operator of the skidding vehicle was submitted to a jury, which found for him. The contention on appeal was that the plaintiff was entitled to a directed verdict. The decision on this point appears in the following language (page 848 of 44 S.W.2d) :

“But it cannot be held as a matter of law that the operator of a car is necessarily negligent when it skids err slides on'ah icy street. The proper inferences from that fact are to be drawn by the jury. * * * In this case the sliding of the car was explained by the slippery condition of the street, and it was for the jury to say whether it was superinduced or accelerated by the negligence of the driver.” (Our emphasis) ■

That decision was and still is eminently sound. The principles therein enunciated were followed in Hunt v. Whitlock’s Adm’r, (1935) 259 Ky. 286, 82 S.W.2d 364; O’Neil & Hearne v. Bray’s Adm’x, (1936) 262 Ky. 377, 90 S.W.2d 353; Gilreath v. Blue & Gray Transportation Company, (1937) 269 Ky. 787, 108 S.W.2d 1002; Geller v. Geller, (1950) 314 Ky. 291, 234 S.W.2d 974; and Whitt v. Farley, (1955) Ky., 275 S.W.2d 906, 50 A.L.R.2d 990. In all of these cases the issue of negligence was submitted to the jury.

Some rather unfortunate language crept into the opinion in the Gilreath case (above cited), which was:

“It is a matter of common knowledge that an automobile may skid on a slippery road without negligence in its operation.”

While our cases recognize, as a legal matter, that a jury may find the operator of a motor vehicle free of negligence when it skids on a slippery street or highway, it may be questioned that non-negligent skidding is a matter of common knowledge. The conclusion can only be reached under a specific fact situation. The implication of the statement is that skidding ordinarily occurs without negligence, whereas common experience suggests the opposite conclusion. This language stressed the probability of non-negligence, when the probabilities are the other way.

We believe this is demonstrable. Every year millions of motorists drive millions of automobiles over millions of miles of streets and highways made slippery by the natural accumulation of snow, ice and water without becoming involved in serious skidding accidents. It is apparent that reasonably prudent drivers are able successfully to negotiate highways under these known conditions. The failure to do so would allow a fair and permissible inference of improper driving. This was specifically decided in Geller v. Geller, (1950) 314 Ky. 291, 234 S.W.2d 974.

The above quoted language played its part in the decision in Risen v. Consolidated Coach Corporation, (1938) 274 Ky. 342, 118 S.W.2d 712. It was there held that the operator of a motor vehicle which commenced to skid while traveling at a speed of “less than 20 miles per hour” as a matter of law was not negligent. The opinion carries an undercurrent of thought that since the driver was not necessarily negligent when his motor vehicle skidded, the skid-der was exempted from liability unless the plaintiff proved some additional specific act of negligence which superinduced the loss of control.

The reasoning of the Risen case was repudiated (though the case was not referred to in the opinion) in Head v. Lucas, (1950) 313 Ky. 356, 231 S.W.2d 81. In that case it was held a motorist proceeding at 20 miles an hour on an icy street zvas negligent as a matter of law.

Following the Risen case (prior to the Head case last above cited) and injecting a new and questionable legal theory, we find the case of Atlantic Greyhound Corporation v. Franklin, (1946) 301 Ky. 867, 192 S.W.2d 753. There it was held as a matter of law the driver of a bus which skidded on an icy street while traveling at about 10 miles an hour was not negligent. The following statement was made in the opinion (page 755 of 192 S.W.2d):

“The evidence is uncontradicted that there was no negligence on the part of the driver of the Greyhound and that the sole cause of its skidding into the Valley bus was the icy condition of the street.” (Our emphasis)

This italicized statement cannot bear careful analysis. In extending the concept of the Risen case it approaches declaring not only the condition but the event as an act of God. With respect to causation, two factors must always be present when a driven automobile skids on an icy roadway. Inexorably and inevitably the cause of this maneuver must be a combination of (1) the hazardous condition, and (2) the operation of the motor vehicle. It is the manner of manipulation by the driver that releases the latent impelling force which results in a slide. A slippery condition cannot independently cause the driver’s loss of control of a motor vehicle. Clearly the handling of its operative mechanisms plays an essential part in the chain of causation of a skidding accident.

The question in these cases .is not whether the condition constituted the sole force causing the injury, but whether the driver was exercising due care in the operation of his vehicle when this force was activated. Thus we find that the rationale of the decision in the Atlantic Greyhound case does not furnish an adequate or acceptable rule by which to determine whether the issue of liability should be submitted to the jury.

An attempt to extract from the Risen and Atlantic Greyhound cases a controlling principle was • sought in Thurmond v. Chumbler’s Administratrix, (1956) Ky., 287 S.W.2d 908. The defendant had skidded on an icy highway while traveling at a speed of about 25 miles an hour. It was held that without other evidence of negligence the plaintiff was entitled to go to the jury. The opinion notes that in the Risen case the rate of speed had been less than 20 miles an hour, and in the Atlantic Greyhound case the speed had been 10 to 12 miles an hour. We held that there was no hard and fast rule fixing the speed at which an icy road becomes ■ dangerous to travel.

It would therefore appear the specific speed of a vehicle does not always furnish a controlling criterion in determining whether an issue of negligence for submission to the jury has been raised in a case of this kind. Assuming that speed is one of the most important considerations on this question, we cannot put a court made rule of law on a miles per hour base. To intiinate, as we did in the Risen case, that as a matter of law a motorist driving at less than 20 miles an hour on an icy highway cannot he negligent in so doing is not consonant with reality. Depending upon the particular circumstances, 15 or even 10 miles an hour may he too fast for the motorist to retain reasonable control of his vehicle. On the other hand, a speed of 25 or 30 miles an hour might not constitute negligent driving, as juries decided in the Jaglowicz and Thurmond cases.

It is true that speed may be the determining factor on the issue of negligence. The question in these cases, however, is not limited to how fast the motor vehicle was being driven. Other factors, such as locking the brakes, or sudden changes of speed or direction, may initiate the skid. There are so many delicate and almost imperceptible manipulations available to the motorist that, as a practical matter, it may he impossible to determine with certainty what particular act initiated the loss of control. Usually it is a combination of several factors.

For this reason, and the further reason that skidding is not a normal method of operating a motor vehicle, we have recently reasserted what was inherent in some of the decisions heretofore cited: that the act of skidding itself under known natural hazardous conditions (which results in injury to others) constitutes circumstantial evidence of negligence. We said in T. C. Young Construction Company v. Brown, (1963) Ky., 372 S.W.2d 670, page 672:

“Ordinarily, however, where a driver who is aware of the treacherous condition of the highway loses control of his vehicle there is at the very least a permissible inference of negligence sufficient to sustain a verdict to that effect.”

The basis for this conclusion is not hard to find. As we have heretofore observed, innumerable motorists successfully drive endless miles on slippery streets and highways without skidding into other vehicles. Thus common experience demonstrates that due care usually will enable a motorist to overcome such known hazard. Since so many are able to negotiate slippery highways without serious accident, the failure to do so fairly suggests negligence. Under the conditions we are considering, the fact of skidding itself raises this issue, and the real problem in these cases is whether other circumstances permit the issue to be resolved as a matter of law. If not, the issue is one for the jury.

In this type of case the application of the res ipsa loquitur doctrine has been asserted, denied or dodged. Our latest opinions directly on the point held that the doctrine did apply. Geller v. Geller, (1950) 314 Ky. 291, 234 S.W.2d 974; Whitt v. Farley, (1955) Ky., 275 S.W.2d 906, 50 A.L.R.2d 990. Our recent experiences with this terminology have impelled the conclusion that it often creates more problems than it resolves. See Bell & Koch v. Stanley, (1964) Ky., 375 S.W.2d 696. In a case of this kind we need only recognize that the nature of the occurrence constitutes circumstantial evidence from which an inference of negligence fairly may or may not be drawn. The issue of negligence is then in the case and remains in the case until properly decided by the court or the jury. It must be resolved by the jury unless other circumstances (and fair inferences to be drawn from them) so clearly support or overcome the inference of negligence that reasonable minds could not differ about the ultimate conclusion.

We now return to the facts of this case. Plaintiff urges that she was entitled to go to the jury because she had made a prima facie case of negligence when it was established defendant Carr was on the wrong side of the road at the time of the collision, citing Hunt v. Whitlock’s Adm’r, 259 Ky. 286, 82 S.W.2d 364; Stark’s Adm’x v. Herndon’s Adm’r, 292 Ky. 469, 166 S.W.2d 828; and Ellington v. Strader, Ky., 285 S.W.2d 497. Defendant Carr maintains that since the basic cause of the accident was the skidding of her automobile, this is a complete defense. In the light of the foregoing discussion, we must reject this view.

Obviously the manner of operation of the Carr automobile was a participating cause of this accident. Whether defendant was driving her automobile with reasonable care at the time it went into a skid we do not know, and we cannot as a matter of law decide. Factors that enter into this determination are: Was she driving too fast for the conditions in the light of her previous experiences on the highway? While shifting gears may be an approved method of slowing down, did she do so timely and in a proper manner? Did she lose control of the vehicle when she shifted gears? Did she inadvertently accelerate her speed ? Did she .pursue the proper course when she headed for the bank on the left hand side of the road?

It may be defendant Carr was operating her automobile in a reasonably prudent manner. On the other hand, one could fairly conclude she did not exercise the care demanded by the circumstances. (No one would venture the suggestion that her automobile could not have been driven down the hill zvithout skidding into the wrong lane.) In a situation of this sort, the question is not one of law but of permissible inferences to be drawn from-the facts. The questions we have asked above are ones upon which reasonable minds could well differ. We have a jury issue.

This opinion is not to be interpreted as foreclosing the right of either the plaintiff or the defendant to a directed verdict under exceptional circumstances where reasonable minds could not differ about the fair conclusion to be drawn from the facts. It is unnecessary to overrule the cases of Risen v. Consolidated Coach Corporation, (1938) 274 Ky. 342, 118 S.W.2d 712, and Atlantic Greyhound Corporation v. Franklin, (1946) 301 Ky. 867, 192 S.W.2d 753, but we disapprove of the reasoning followed in those cases as a basis for directing a verdict for the defendant.

Defendant Carr further contends that in any event the plaintiff cannot recover because she was guilty of contributory negligence as a matter of law. This argument is based on the fact that plaintiff was aware of the hazardous driving conditions, which had actually been discussed by the occupants of the automobile. Perhaps more accurately defendant’s position is that plain- j tiff assumed the risk. In Morrison & Conklin Construction Co. v. Cooper, Ky., 256 S.W.2d 505, a distinction between contributory negligence and assumed risk was discussed. It was pointed out that a person may, without negligence, assume a risk and thereby foreclose his right of recovery.

Clearly it was not negligence as a matter of law for plaintiff to remain as a passenger in the Carr automobile. She had the right to believe the driver could successfully traverse the highway, as she had shown herself capable of doing (in spite of the icy condition). To the extent plaintiff may be said to have assumed the risk of the hazardous conditions, we cannot say she knowingly accepted the additional hazard of the driver’s negligence. In the Morrison case above cited, the plaintiff assumed the risk of a known danger and that very con•dition was the cause of her injury. No act of negligence of another party contributed to the accident.

Defendant Carr places reliance up■on Robinson v. Bybee, Ky., 271 S.W.2d 873. There a passenger in a truck was injured when it slid off a freshly oiled road. The truck had been furnished for the use of the passenger but it was being driven: by a 15 year old boy. The opinion is not at all clear .as to the ground upon which the passenger was held contributorily negligent as a matter of law. Apparently it was assumed the passenger had a right to or did exercise some control over the operation of the truck. The negligence of the driver was in effect imputed to the passenger. We may observe in passing that this decision is questionable, but in any event the facts are not comparable with those in the present case. We cannot say as a matter of law the plaintiff was either contributorily negligent or assumed the risk of injury by riding in the automobile.

With respect to the directed verdict for the owner and operator of the truck we find no error. Plaintiff contends the truck was being driven too fast, but there is neither evidence of excessive speed nor evidence tending to prove the speed of the truck played any part in the chain of causation.

Plaintiff suggests that because the truck driver could observe the approach of the Carr automobile, he may have had some last clear chance to avoid the accident. There is no evidence from which a fair inference could be drawn that the truck driver was aware of defendant Carr’s difficulties, or if he had been aware of them, that available steps could have been taken by him to avoid the accident. As plaintiff herself admits, the only thing he might have done was to get “on the other side of the road”, (the wrong side for him) which rarely is either a sensible or practical maneuver. We can find no substantial evidence of negligence in this respect. See Hewitt’s Adm’r v. Central Truckaway System, 302 Ky. 459, 194 S.W.2d 999; and Rankin v. Green, Ky., 346 S.W.2d 477. This directed verdict was proper.

The judgment is affirmed in part and reversed in part for proceedings consistent with this opinion.

MONTGOMERY and MOREMEN, JJ., dissenting.

      . We are guessing at these figures, but believe it a fair guess.

      . Atlantic Greyhound Corporation v. Franklin, (1946) 301 Ky. 867, 192 S.W.2d 753.

      . Risen v. Consolidated Coach Corporation, (1938) 274 Ky. 342, 118 S.W.2d 712.

      . See footnote 2.

      . See Peters v. United Electric R. Co., 57 R.I. 311, 189 A. 901.

      . Tente v. Jaglowicz, (1931) 241 Ky. 720, 44 S.W.2d 845.

      . Thurmond v. Chumbler’s Administratrix, (1956), Ky., 287 S.W.2d 908.

      . It is interesting to note that there is often a marked decline in urban accidents during periods of extremely hazardous driving conditions. While this may be attributable in part to less driving, it could also be attributed to the extreme care exercised by the ordinarily prudent driver under these conditions.

      . In Head v. Lucas, (1950) 313 Ky. 356, 231 S.W.2d 81, a motorist was held negligent as a matter of law even though, when traveling at 20 miles per hour, he shifted gears to slow down.

      . In the case cited in the preceding footnote and in Rose v. Vasseur, (1959) Ky., 320 S.W.2d 608, the driver of a skidding vehicle was properly held negligent as a matter of law.


author: STEWART, Judge.

text:
    HARLAN COUNTY BOARD OF SUPERVISORS and James E. Luckett ex rel. COMMISSIONER, DEPARTMENT OF REVENUE, Commonwealth of Kentucky, Petitioners, v. Edward G. HILL, Judge, Harlan Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.

      Larry A. Carver, Department of Revenue, Frankfort, James C. Brock, County Atty., Harlan, for petitioners.
    James S. Greene, Jr., Greene & Forester, Harlan, for respondent.
   STEWART, Judge.

This proceeding before this Court seeks to prohibit the Honorable Edward G. Hill, Judge of the Harlan Circuit Court, from hearing and determining a tax appeal of Black Star Land Company, as plaintiff, against Harlan County Board of Supervisors and the Kentucky Tax Commission, as defendants.

On June 1, 1964, respondent perfected an appeal to the Harlan Circuit Court from a final' order of the Kentucky Tax Commission dated May 28, 1964. This appeal was from the ruling of the Harlan County Board of Supervisors on a tax assessment made by the Harlan County tax commissioner.

It is contended by petitioners the Fiarían Circuit Court is without jurisdiction to entertain the appeal. The theory is advanced that the provisions of KRS 131.-120(1) set forth the procedure that should have been followed by respondent in taking its appeal from the decision of the Kentucky Tax Commission. Briefly stated, that subsection required an appeal from an assessment by the Department of Revenue or its agent to be taken to the Franklin Circuit Court.

The appeal in question was prosecuted under KRS 133.120(4), which provided in substance that a taxpayer dissatisfied with the final action of the board of supervisors might within fifteen days after its adjournment appeal to the Kentucky Tax Commission; and any party under this subsection might appeal from a decision of the Kentucky Tax Commission to the “circuit court in the county where the property is located.”

KRS 131.120(1) was repealed and KRS 133.120(4) was amended by the 1964 Legislature, effective July 1, 1964, but the amendment states: “The right to appeal any order of the Kentucky Tax Commission entered on or before June 30, 1964, is preserved to any aggrieved party in the form and mode existing prior to such date.” See 1964 House Bill 3, sec. 38.

Thus, KRS 131.120(1) clearly applied to appeals from decisions of the Kentucky Tax Commission pertaining to tax assessments which the Department of Revenue or its agent was authorized to make initially; and KRS 133.120(4) related to appeals to the Kentucky Tax Commission, and thereafter to circuit court, from decisions made on tax assessment by the board of supervisors. The latter subsection governed in the instant case. See Cook v. Citizens State Bank of Wickliffe, Ky., 304 S.W.2d 931.

It follows that the Harlan Circuit Court had jurisdiction td try and determine the tax matter.

Wherefore, the writ is denied.


author: WILLIAMS, Judge.

text:
    LOUISVILLE & JEFFERSON COUNTY PLANNING & ZONING COMMISSION, Appellant, v. C. E. COIN et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.
    Homer Parrent, Jr., James L. Taylor, Louisville, for appellant.
    Raymond F. Bossmeyer, Heidenberg & Bossmeyer, Sidney Baer, Louisville, for appellees.
   WILLIAMS, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court directing the Louisville & Jefferson County Planning & Zoning Commission to change the zoning classification of appellees’ property from “A” One-Family to “D-l” Commercial. The hearing in circuit court was de novo, as provided in KRS 100.057(2). Within a short time after the hearing took place our opinion in American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Commission, Ky., 379 S.W.2d 450, was handed down. Therein we held that KRS 100.057(2), insofar as it provides that hearings in circuit court shall be de novo, violates section 27 of the Kentucky Constitution. It follows, we said, that issues on an appeal taken under that section of the statute shall be confined to questions of law which are encompassed in the question, “Was the administrative decision arbitrary ? ”

Accordingly, this case must be and it is reversed, and remanded to the circuit court for review consistent with the applicable rules set out in American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Commission, Ky., 379 S.W.2d 450.


author: DAVIS, Commissioner.

text:
    Donald Glenn HARTSOCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.

      Francis D. Burke, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Appellant was convicted of forgery and sentenced to imprisonment for two years. KRS 434.130(2).

Appellant predicates this appeal on these claims of error below: (1) lack of evidence corroborating the testimony of accomplices; (2) the failure to instruct the jury of the necessity for corroboration of the evidence of an accomplice; (3) the instruction given was improper, and (4) cumulative errors reflecting the failure to accord appellant a fair trial.

The appellant was jointly indicted with Douglas Yates and Walter Hall. The indictment charged that the three men uttered a forged check and thereby fraudulently obtained money from Wards Supply Company.

Yates and Hall testified for the Commonwealth. Each of them said that appellant had prepared the check and that he was to share with them the proceeds of it. It was shown in evidence that appellant was not present in the store when the check in issue was cashed. Appellant denied implicity in the transaction. According to the Commonwealth’s theory, Yates and Hall were accomplices of the appellant. RCr 9.62 provides that a conviction cannot be had upon the testimony of an accomplice .unless that evidence is corroborated by other evidence tending to connect the accused with the commission of the offense. Failing such corroborative evidence, it is the court’s duty to direct a -verdict of acquittal. The cited rule substantially embraces the long standing Kentucky rule enunciated in §§ 241 and 242 of the Criminal Code of Practice; decisions treating this problem as it frequently arose under the Criminal Code are authoritative as to RCr 9.62.

The corroborative testimony required must be of such nature and character to inspire belief in a reasonable and unprejudiced mind that it points toward guilt and links up with the principal fact under investigation. The corroborative testimony may be circumstantial and may include an admission or confession of the defendant on trial. The court will consider implications in a defendant’s testimony which are inimical to his claim of innocence. Williams v. Commonwealth, 257 Ky. 175, 77 S.W.2d 609; Price v. Commonwealth, 296 Ky. 144, 176 S.W.2d 271; Scott v. Commonwealth, 303 Ky. 473, 198 S.W.2d 53; Tinsley v. Commonwealth, Ky., 273 S.W.2d 364, and cases therein discussed. In measuring whether the corroboration is adequate the evidence of the accomplice is eliminated. Hinton v. Commonwealth, 310 Ky. 435, 220 S.W.2d 1004.

Using these guidelines, we conclude that there was insufficient corroboration of the accomplices’ evidence to warrant submission of the case to the jury. The accomplices testified that the appellant forged the checks involved and suggested the modus operandi. They said that he accompanied them into the Pikeville business section as they respectively set about to cash three checks entirely forged by appellant. Accomplice Hall related that appellant and accomplice Yates walked along the street with him until Hall entered the garage where Hall cashed the first check; then the three resumed their walking until accomplice Yates separated himself from them for the-purpose of going to the store where Yates cashed the check upon which the instant indictment is based. According to the accomplices, appellant and Hall were waiting for Yates to cash the check, after which the three were to divide the money and go to Ohio to obtain employment.

While Yates was thus separated from appellant and Hall a police officer arrested Hall. Appellant was with Hall when the officer made the arrest, but nothing was said or done by anyone at that time which indicated that appellant was involved in the criminal charge for which Hall was arrested.

Appellant testified that when Hall was: arrested he, appellant, obtained a taxi to go to Town Mountain for some beer. As the taxi was crossing the Williamson bridge appellant saw accomplice Yates running from two police officers. The two officers commandeered the taxi to pursue Yates; appellant was still in the taxi during this pursuit. When Yates “started to the hills”' the officers “got him and headed up the river.” Appellant continued in the taxi to Pound, Virginia, and drank beer there. While he was on his way back to Pikeville he was arrested at Jenkins, Kentucky, pursuant to information telephoned to the Jenkins police from the Pikeville police. The Pikeville police had been informed by accomplices Yates and Hall that appellant was implicated in the check cashing scheme.

The appellant testified that Yates had a check already prepared and “asked me if I wanted to make some money, and right away I knew what he meant, and I said, ‘No.’ ” He admitted that on more than one occasion the proposal had been made to him that the three of them should undertake to “make some money” through the use of forged checks. However, he stoutly maintained that he did not accede to the suggestions and did not know that Hall and Yates were actually intending to cash forged checks as he walked with them.

The Pikeville Chief of Police "gave this answer when asked whether any money was “recovered” from either of the three men: The best I remember, we recovered the money from Mr. Hartsock and Mr. Yates.” He did not say how much money was “recovered,” nor how he identified it as being part of the proceeds obtained by cashing the forged checks. In fact, neither of the accomplices said that they had given appellant any money, although they declared that the plan was for a three-way split. Manifestly, Yates could not have given appellant any of the proceeds of the check involved in this case — he was arrested before he ever rejoined appellant.

In Commonwealth v. Truglio, Ky., 371 S.W.2d 648, there was evidence that the accused had been seen-in the company of 'the accomplices about two hours before the crime was committed and that he was with them again about three hours later. In Luster and Smith v. Commonwealth, Ky., 333 S.W.2d 267, the accused was with the accomplice early in the evening on the night of the crime and slept that night at the accomplice’s home. In each of the cited .cases we said that the fact that the defendant was shown to have been with the accomplice shortly before and shortly after the crime — without - more — was not sufficient corroboration. We see no circumstance in the case before us to warrant a different conclusion. If the corroborative evidence upon a new trial is no greater than at the instant trial, the court will direct a verdict of acquittal pursuant to RCr 9.62.

What we have said makes it unnecessary to determine the other questions presented by appellant. However, in our consideration of the entire case we point out that we construe RCr 9.22, 9.54 and 10.12 as meaning that although it is not necessary to raise objection to the instructions at the time they are given, it is imperative that claimed errors in instructions, given or omitted, be presented to the trial court at some time, either by proper objection or by motion, and certainly no later than the motion for a new trial, before they may receive appellate review. RCr 10.12 is a counterpart of CR 59.06: The underlying1 principle of the rule is to afford an opportunity to the trial court, before or during the trial or hearing, to rule upon the question raised. Clay, CR 59.06, Comment 3. However, there is no counterpart for CR 51 in the Criminal Rules. Since appellant did not preserve the errors ascribed to the instructions given and omitted by any objection or motion, or in any other manner, we may not consider them. In the event of another trial it is unlikely that the asserted errors would recur.

The judgment is reversed for proceedings consistent with this opinion.

STEWART, J., dissenting.


text:
    IMPERIAL ELKHORN COAL COMPANY et al., Appellants, v. Alvis NEWSOME et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.

      Fred G. Francis, Howard, Francis & Howard, Prestonsburg, for appellants.
    Ronald W. May, Francis M. Burke, Pike-ville, for appellees.
   WILLIAMS, Judge.

The Workmen’s Compensation Board found that an accident causing injury to appellee Alvis Newsome did not arise out of and in the course of his employment and, consequently, dismissed his claim. Upon appeal to the circuit court the order of the Board was reversed.' 7fhis appeal from the judgment of the circuit court results. The appellee’s cross-appeal has been abandoned.

Appellee was injured by an explosion in a mine some distance from his employer’s tipple, where he had been working. Ap-pellee testified that he went to that mine in search of a shovel to loosen some coal stuck in the tipple. He says that as he approached the mine an explosion occurred which caused his injuries.

A witness named Robinson testified that he was present at the mine when the explosion occurred. He saw appellee and another man tamping dynamite inside the mine and he saw them light the fuse. Appellee attempts to discredit Robinson’s testimony as being motivated by political prejudice.

The Board had before it two versions of why appellee was at the scene of the explosion. Had it believed appellee’s story he would have been entitled to compensation. But the Board accepted the witness Robinson’s statement that appellee was there tamping and shooting dynamite, which was completely without the scope of his employment.

The Board may pick the witnesses it chooses to believe and its finding, if based on relevant and substantial testimony, will not be disturbed. Savage v. Claussner Hosiery Company, Ky., 379 S.W.2d 473. Robinson’s testimony was relevant and substantial, and conclusively proved that appel-lee was not injured by an accident arising out of and in the course of his employment.

The judgment is reversed.


text:
    Fred CONLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.

      Eugene C. Rice, Paintsville, for appellant.
    John B. Breckinridge, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
   STEWART, Judge.

Fred Conley was indicted, tried, and convicted of the crime of incest and sentenced to 10 years’ imprisonment. The prosecuting witness was his 14-year-old daughter, Lena Conley. He appeals.

The primary question presented for determination is whether it was prejudicial error to admit so-called lie-detector evidence upon the basis of a waiver signed by appellant, Conley.

The waiver recites in substance that appellant consented to submit to a lie-detector test, that he agreed the results could be introduced as evidence against him, and that the test to be taken was understood to be the standard polygraph test conducted by a qualified polygraph operator. The evidence shows that appellant was illiterate, being able to write only his name, but that he knew the contents of the waiver as it was read to him. The waiver also states that appellant was apprised of his rights. Appellant contended at the trial he did not understand it, and that he did not know what he was signing. It is undisputed that appellant did not have counsel at this time.

An annotation in 23 A.L.R.2d 1307, after pointing out that the lie detector is not an instrument that automatically and unerringly discloses a lie by the person being tested, states thus on the subject: “Rather, the lie detector is a scientific instrument which records certain physiological phenomena, such as changes in the pulse rate, blood pressure, respiration, and in electrodermal response, under the theory that a person telling a lie undergoes definitely ascertainable physiological reactions, whereas a person telling the truth will show only normal reactions. The procedure consists of attaching instruments to the subject’s body and interrogating the person, commencing with innocuous questions so as to establish the person’s normal reactions and then proceeding to question the subject as to a crime of which he is suspected or other matters upon which the interrogator seeks information.”

In the case at bar carbon copies of two sheets of paper were filed in evidence by the Commonwealth’s attorney, without being identified by the person who allegedly prepared it. It disclosed a list of 31 questions that were supposedly propounded to appellant, and that no answers were given. This conclusion was appended by the person who called himself the polygraph examiner: “The subject was found to be a. capable reactor. After careful analysis of the poly-grams, it is the opinion of the examiner that the subject did not tell the truth .during this examination.” Appellant objected seasonably to the introduction of this evidence.

Objection to the admissibility of the results of lie-detector tests is generally placed on the ground that such tests have not yet achieved scientific reliability. Regarding the accuracy of such tests, these statistics have been advanced: In 75 to 80 per cent of the cases the examination correctly indicates the guilt or innocence of the accused; in 15 to 20 per cent, the results are too indefinite to warrant a judgment one way or the other; and in 5 per cent, the margin of error is conclusive. See Cureton, A Consensus as to the Validity of Polygraph Procedures, 22 Tenn.L.Rev. 713.

In 1961, a New Jersey appellate court wrote “ * * * that there is not a single reported decision where an appellate court has permitted the introduction of the results of a polygraph or lie-detector test as evidence in the absence of a sanctioning agreement or stipulation between the parties.” See State v. Arnwine, 67 N.J.Super. 483, 495, 171 A.2d 124, 131.

The Supreme Court of Arizona in a case of first impression held that polygraph or lie-detector tests and expert testimony relating thereto are admissible upon stipulation entered into by both the parties. See State v. Valdez, 91 Ariz. 274, 371 P.2d 894, decided May 23, 1962. The question of reliability of such tests was not resolved in this case. People v. Houser, 85 Cal.App.2d 686, 193 P.2d 937, and State v. McNamara, 252 Iowa 19, 104 N.W.2d 568, are two other cases that determined lie-detector evidence was admissible pursuant to a written stipulation.

This Court in Colbert v. Commonwealth, Ky., 306 S.W.2d 825, 71 A.L.R.2d 442, ruled it was prejudicial error to admit in evidence the results of a lie-detector test, which was ordered by the trial judge, after the accused in open court requested permission to be so examined and “agreed to be bound by the result.” The grounds in the opinion upon which the test report was rejected as inadmissible were that the agreement in respect thereto, although voluntary, was oral, and the reasonable reliability and accuracy of the test given were not established.

Because the scientific trustworthiness of the lie-detector test is still tenuous, the courts will not at present recognize in an unrestricted manner the results. Of course absolute infallibility is not the standard for admissibility of scientific evidence. But at this time it seems wise to demand greater standardization of the instrument, more improvement in the techniques of lie detection and in examiner qualifications, and the endorsement by a larger segment of the psychological and physiological branches of science, before permitting general use of lie-detector evidence in court.

It is our opinion the purported evidence growing out of the lie-detector test in the instant case should have been excluded, as it was objected to. Furthermore, since we are holding lie-detector results inadmissible, the written agreement that such might be introduced was not binding.

Wherefore, the judgment is reversed for further proceedings not inconsistent with this opinion.


author: ROBERT M. COLMAN, Special Commissioner.

text:
    James W. SLUSHER, Appellant, v. Bobbie Sue MIRACLE, Appellee.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.

      Patterson & Berger, Pineville, R. W. Keenon, Lexington, for appellant.
    Farmer Helton, Pineville, for appellee.
   ROBERT M. COLMAN, Special Commissioner.

This is an appeal from a judgment of the Bell Circuit Court awarding appellee $3,000 for personal injuries in an automobile collision. The appellant was an employee of the Kentucky Division of Forestry, and in the course of his employment in a State vehicle at the time of the accident. He is sued as an individual and the State is not a party to the suit

Two questions are presented in this appeal:

(1) May the plaintiff seek recovery against the defendant individually for his tort in the circuit court, or is she compelled to prosecute her claim against the agent of the State or the State before the Board of Claims under KRS 44.070?

(2) Was there sufficient evidence to warrant an instruction on, and to sustain the verdict of $1,000 for permanent injuries?

The appellee, accompanied by her sister, operating her husband’s automobile, was following a pickup truck on Highway 119 about 1:00 p. m. on April 29, 1961. The truck in front of her stopped, and she slowed her car and brought it to a stop in the highway some thirty to fifty feet behind the truck. Almost immediately her car was struck from the rear by the State truck operated by appellant. The evidence as to the giving of signals and the presence of another car following appellant’s truck is contradictory. There is a variance in the evidence as to distances. The question of the negligence of the parties is not raised on this appeal.

Appellee testified as to the nature, extent and effect of her injuries. According to the testimony of Dr. Baird, she suffered contusions and strain of the low back region and muscle and ligament strain involving the cervical spine and shoulder girdle on the right side. She was hospitalized from May 1 to 6 and followed closely as an outpatient. She also consulted Dr. Vinke of Cincinnati, Ohio, who placed her in a back brace and prescribed she sleep on a board. She was rehospitalized by Dr. Baird from January 28 to February 3 and placed in traction. Due to nerve involvement, she suffers pain and numbness in two fingers of her right hand, which interferes with her typing and secretarial work. She was examined by Dr. Imprescia of Middlesboro at appellant’s request.

Only Dr. Baird testified in the case. Concerning the permanency of her injuries he said:

“I think some scarring has taken place as a result of the injury to the soft tissues in an amount sufficient to cause the symptoms she complains with at the present time. It would be hard to reach a percentage of disability, I can’t say how much, and I can’t say whether it will improve with time, which I hope it will, and I can’t say it won’t get worse. I actually don’t think it will, but in every attempt to be fair, I would calculate after one year and a half one would expect her to have trouble in the future. I think very gradually she will improve with her back and eventually have no trouble as far as the back is concerned. I think her residual disability will be due to the other injuries.
“Q58. You attribute the residual disability to the cervical spine and right arm and shoulder?
“A. Yes, sir.”

The jury found a verdict awarding the appellee “$1,000 Med., $1,000 Pain and Suf., $1,000 Disability,” total $3,000.

This court said in Spillman v. Beauchamp, Ky., 362 S.W.2d 33:

“It seems to us that in order to impose personal liability there should be some element of personal fault on the part of the officer or agent, such as negligence or deliberate wrongdoing.
“The ordinary rule is that a public officer when acting in good faith within the scope of his authority is not personally liable for damages sustained by a member of the public as a result of his action, unless he acted negligently, that is, failed to meet the standard of the ordinarily prudent man. 67 C.J.S. Officers § 125, pp. 417, 418; J. F. Schneider & Son v. Watt, Ky., 252 S.W.2d 898. In our opinion this is a proper rule, and if under a particular set of facts liability would not exist under this rule liability should not be imposed on the officer simply because the government cannot be made to pay. (Emphasis added.)
******
“The appellees have argued that even if there exists a basis for personal liability on their part it can be enforced only by proceedings under the Board of Claims Act, KRS 44.070 to 44.160, and not by action in the circuit court. However, we do not find in the Board of Claims Act any evidence of an intent that it should apply to claims against a state officer or agent individually.”

We conclude that decision is dis-positive of the question here. We are not persuaded to accept appellant’s argument to retreat from the rule announced in the Spillman case, supra. Here, the liability is predicated upon the claimed negligence of the employee, hence, the rationale of Spill-man v. Beauchamp controls.

The purpose of this statute was not to grant a cloak of immunity behind which all employees of the State could hide from their individual responsibility for their negligent acts, but to waive immunity by reason of sovereignty, and to facilitate simple processing of claims against the State. Cf. 43 Am.Jur., Public Officers, § 279.

The question of damages for personal injuries, and especially permanent injuries, perhaps above all others, presents to the court and juries a matter where each case must rest upon its particular set of facts. We have read carefully all the cases cited in the briefs on this question. The testimony of the appellee and her physician in this case is that she has suffered a low back injury from which she will probably recover; that she suffered an injury to the cervical spine and shoulder, soft tissue scarring-, and damage to the ulnar nerve, resulting in pain and numbness in two fingers of her right hand, which interferes with her secretarial work in typing and operating machines, which will persist. Considering the amount of the award, $1,000, and all the lay and medical testimony, we are of the opinion there was sufficient evidence to warrant the giving of the instruction complained of and to sustain the verdict.

We recommend that the judgment should be affirmed.

The opinion is approved by the court, and the judgment is affirmed.