author: CULLEN, Commissioner,

text:
    Sterling HOSKINS and Oakley Mullins, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.

      Shumate, Shumate & Flaherty, Irvine, for appellants.
    John B. Breckinridge, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner,

Sterling Hoskins and Oakley Mullins appeal from a judgment sentencing each to life imprisonment upon their conviction of being accessories before the fact to a murder committed by one J. C. Willis.

We shall first discuss the contention that the evidence is insufficient to sustain the verdict.

The victim, Carl Winkler, was an elderly, bachelor farmer who lived alone on a farm on a country side road. Around 7:50 p. m. on February 8, 1963, he came on foot to the home of a neighbor, in a wounded condition, and told the neighbor that three masked men had attempted to rob him, there had been a “shoot-out,” and two of the men had run away but he thought he had killed the third man. Winkler was taken to a hospital where within a few hours he died without making any further statements.

The body of J. C. Willis was found in the yard of the Winkler home. He had on a mask and a pistol was clasped in his hand.

J. C. Willis owned a 1953 Mercury car. Around 8 p. m. on the night of the killing two witnesses saw a 1953 Mercury driving toward Richmond on the main highway, at a point not far from the entrance to the side road leading to the Winkler home, at a high rate of speed. Another witness had seen a car (unidentified by the witness as to model) parked on the side road a short distance off the main road around 7 p. m. that night. Willis’s car was found the next day parked on a street in Richmond. In the glove compartment was a pistol identified by a witness as having belonged to the defendant Mullins, and a pistol box bearing the same serial number as the pistol found in Willis’s hand. A witness testified that on a night after the killing (she did not know what night) she saw the defendant Hoskins go to the Willis car (parked on the same street on which it was found after the killing) and remove a package from it. A police officer testified that Hoskins told him he had seen the car parked on the street, the night of the killing, and had looked into it to see whether it was Willis’s car.

Hoskins testified that at one time he had owned the pistol found in Willis’s hand, but that he had given it to Willis around two weeks before the killing in payment of wages be owed Willis, wbo had worked for him.

A witness testified that she saw Hoskins and a man who looked like Mullins (wearing clothes of the same color that Mullins on the following day gave a woman to be laundered) talking with Willis in front of the Willis home around 4:30 p. m. on the day of the killing. Willis left in his car and Hoskins and Mullins left together in a truck.

Another witness said that she saw Hos-kins and Willis leave the Willis home together, on foot, around “dusky dark” on the day of the killing.

There was testimony that on the day after the killing Mullins brought a coat and pair of pants to the daughter of a woman with whom he had been keeping company and asked her to wash them thoroughly with clorox and washing powders. The girl said the clothes had what appeared to be blood or oil on them, she couldn’t say which. He gave the girl $5.00 for washing the clothes and he displayed several bills of the same and larger denominations.

Three witnesses testified that Mullins told them he did not kill Winkler but “his gun did.”

The girl who was asked to do the washing, and her mother, both testified that Mullins demanded of them with threats of bodily harm that they tell anyone who asked, that he had spent the entire night of the killing at their home. The mother further testified that she was supposed to have had a date with Mullins that night but she was unable to find him anywhere.

A policeman testified that Mullins first told him he had spent the night with the woman above mentioned, but later changed his story and said he had stayed in his hotel room the entire evening and night except for taking a short trip by taxi to Hoskins’ home. The hotel clerk testified that he had checked Mullins’ room several times on the night of the killing and Mullins was not there. The manager of the taxi company testified that there was no record of the-claimed taxi trip.

A policeman testified that Hoskins told’ him he had spent the entire night of the killing at his home, except that around 7:00‘ p. m. he had gone with his family to a restaurant for dinner, and later had gone to a drug store to make some purchases. The restaurant owner and his wife, and a waitress, testified that Hoskins and his family were not at the restaurant that night. The owner testified that several days after the killing Hoskins had attempted to convince him that the Hoskins family was at the restaurant that night.

In our opinion the evidence as to Mullins is ample to sustain his conviction. In summary, the evidence warranted findings that he was in the company of Willis a few hours before the killing; his pistol was found in the Willis car; he made statements that his pistol did the killing; he was anxious that his clothes, on which there was some foreign substance that might have been blood, be thoroughly washed and he paid an excessive price to have them washed; he attempted to force two women to give a false alibi for him; he lied about his being in his hotel room and having taken a taxi ride; the Willis car, in which his pistol was found, was near the scene of the killing at the time of the killing. His entire conduct after the time of the killing was inconsistent with innocence, particularly his attempt to induce or force witnesses to give a false alibi for him. See Collier v. Commonwealth, Ky., 339 S.W.2d 167. We believe that the evidence establishes a chain of circumstances pointing unerringly to Mullins’ guilt. See Hendrickson v. Commonwealth, Ky., 259 S.W.2d 1.

While the evidence as to Hoskins is not as full, we believe it is sufficient to sustain his conviction. The evidence warranted findings that he was in the company of Willis at 4:30 and again about 6:30 (around an hour before the killing) on the day of the killing; he went to the Willis car, parked on the street, after the killing, and removed a package from it; the gun used by Willis had belonged to Hoskins and his story about giving it to Willis in payment of wages was not one that the jury was obliged to believe; he tried to convince the restaurant owner to go along with his false alibi of being in the restaurant on the night of the killing. Under authority of the Collier and Hendrickson cases, above cited, we think the evidence must be held sufficient.

The appellants contend that the trial court erred in overruling their motion for separate trials. Under RCr 9.16 the court is required to grant separate trials if a defendant “is or will be prejudiced * * * by joinder for trial.” The contention is that since a substantial amount of the evidence, particularly as to the conduct of the defendants after the time of the killing, related only to one of the defendants and not the other, they were prejudiced by being tried jointly. In support of this argument it is pointed out that on nine occasions during the trial the court was required to admonish the jury to consider a particular item of evidence only against one defendant and not the other.

We have no direct Kentucky precedent on this question because RCr 9.16 is of recent origin and we have not previously been called upon to interpret it. Under the former Criminal Code defendants in felony cases were entitled to separate trials as a matter of right. The Federal Criminal Rule, Rule 14, is somewhat different from RCr 9.16 in that it says the trial court “may” grant separate trials where it appears there will be prejudice from joinder, where as RCr 9.16 uses the word “shall.”

We find satisfactory precedent, however, in the decisions from other jurisdictions annotated in 70 A.L.R. 1185, 104 A.L.R. 1522, 131 A.L.R. 923, and 54 A.L.R.2d 830. The prevailing rule appears to be that the mere fact that evidence competent as to one defendant but incompetent as to the other may be introduced is not alone sufficient to establish such prejudice as to require the granting of separate trials. Ordinarily there must be some additional factor, such as that the defendants have antagonistic defenses, or that the evidence as to one defendant tends directly to incriminate the other, e. g., one defendant’s admissions directly implicate the other. There are no such factors in the instant case. We shall accept the prevailing rule and hold that there was not such prejudice in the instant case as to require the granting of separate trials.

The contention is made that the trial court erred in not allowing each defendant 15 peremptory challenges. Under RCr 9.40 the defendants jointly are entitled to 15 challenges, with the court being given discretion to allow each defendant additional challenges. Here the court did allow five additional challenges. The appellants argue that since they would have been entitled to 15 challenges each if tried separately, they should have the same number when tried jointly. The simple answer to this is that the Rule does not so provide.

Complaints are made of the admission of various items of allegedly incompetent evidence. These complaints may be disposed of summarily as follows:

1. The fact that Frances Rader was not positive that Mullins was one of the men she saw talking with Willis did not make her testimony incompetent, but only went to the weight of the testimony. She said the man looked like Mullins, and was wearing clothes similar to those Mullins gave her to be washed the next day.
2. Frances Rader was not permitted to “continue” to describe stains on Mullins’ clothing as blood stains. She said only once that the stains looked like blood or oil.
3. The testimony of Frances Rader that Mullins had a substantial sum of money with him was competent in view of the previous testimony that Winkler had said three men had attempted to rob him. Furthermore, it was obvious from the circumstances of the crime that robbery was the motive.
4. There were no objectionable leading questions.
5. The testimony claimed to be hearsay was not hearsay because it consisted of statements made by the accused in the presence of the witness.
6. The fact that Margaret Sparks did not know what night it was that she saw Hoskins take a package from the Willis car did not make her testimony inadmissible. Testimony of the police officer that Hoskins admitted having gone to the Willis car and looked into it on the night of the killing, and other testimony showing that the car was moved the next day from the street where Mrs.' Sparks had seen it, sufficiently fixed the night of the killing as the night she saw Hoskins at the car.
7. Testimony that the Willis car was found on a street in Richmond after the killing was competent, although there was no absolute proof that the Willis car was used in the crime. It was sufficient that Willis himself was found dead at the scene of the crime and that a car closely resembling his was seen leaving the vicinity of the crime.
8. Testimony that a pistol was found in the Willis car was competent circumstantial evidence. The Commonwealth was not required to disprove the possibility that someone might have “planted” the pistol in the car after the killing.
9. There was sufficient evidence that the car found on the street was Willis’ car, and the testimony concerning the bill of sale found in the car could not have been prejudicial even if the testimony could be considered to violate the best evidence rule.
10. The sheriff did not testify to any hearsay of any consequence from Winkler.
11. Raymond Willis did not give any testimony implying another offense on the part of either of the defendants.
12. The testimony of Mrs. Reeves was from such records as she had, and from her personal knowledge, and it did not violate the hearsay rule or the business records rule.

Complaint is made concerning several statements made by the Commonwealth’s attorney in closing argument, but we find ■ nothing seriously objectionable in those statements, certainly nothing calculated to mislead or inflame the jury.

The judgment is affirmed.


source: Caselaw Access Project

author: MOREMEN, Judge.

license: Public Domain

text:
    CITY OF PIKEVILLE, Appellant, v. Bob MAY, Appellee.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.

      O. T. Hinton, Pikeville, for appellant.
    L. D. May, Pikeville, for appellee.
   MOREMEN, Judge.

Appellee, Bob May, recovered from appellant, City of Pikeville, the sum of $1493.-30, as salary due him under his employment as a policeman for the City.

On June 27, 1960, at a regular meeting of the council of the City of Pikeville, a motion was duly carried to hire the appellee -as a policeman. May was sworn in as a policeman; he then applied to the Crisman Insurance Agency for the bond required by statute. The chief of police notified-the insurance agency not to issue a bond and stated to it that Bob May had not been hired and would not be permitted to work as a policeman. This action apparently was without authority from any source. May was never permitted to assume his duties as an officer.

At a meeting held on July 25, 1960, one of the councilmen moved to correct the minutes by changing his original vote from "yes” to “no.” There is doubt as to whether a person could properly change his vote at a subsequent meeting and after the hiring of Bob May, but the minutes disclose that a majority remained even after such a change. At a called meeting of the council, on August 12, 1960 a motion was made and duly carried to set aside the motion which hired May as a policeman. Thereafter, in December, the City paid the sum of $306.72 to May, but the circumstances of this payment cannot be determined from the record.

On this appeal, appellant states that both counsel for the policeman and the trial court proceeded under, and the court based its judgment on, the misconception that KRS 95.765 afforded immunity to a police officer from discharge without a hearing and due cause shown. We agree with counsel for appellant that said statute is not applicable here. The statute originally was section 6 of chapter 9 of the Acts of the General Assembly of 1942, which authorized fourth class cities to operate their police and fire departments under the system that is generally called “civil service.” There was no showing that the City of Pikeville has ever adopted the civil service system; in fact, a copy of an ordinance passed January 4, 1960 — filed as an exhibit — expressly states that the police department was operating under KRS 95.700 which has been in the statute books in various forms since 1893. This statute reads:

“(1) The city legislative body in cities of the fourth and fifth classes may, by ordinance, establish a police department, appoint its members, and provide for their number, grades, compensation and regulation.
“(2) The term of office of members of the police department appointed by the city legislative body shall not ex-’ ceed two years. They shall be subject to removal for cause.”

We find nothing in the findings of fact, conclusions of law or in the judgment that indicates the trial court based its opinion upon KRS 95.785. It appears that the judgment was founded on KRS 95.700 above quoted.

It is not clear, however, as to the method the court used in arriving at the amount of $1800 due appellee, subject to a credit of $306.71 theretofore paid. It will be noted subsection (2) of KRS 95.700 states that the appointment shall not exceed two years and since May was appointed as a policeman at a salary of $275 per month, it is difficult to surmise just how the court reached the figure it did. The prayer of the complaint asks judgment for the sum of $275 per month for each and every month beginning August 1, 1960, and, as the suit was filed on February 3, 1961, perhaps the court reached the conclusion that ap-pellee sought to recover for a period slightly more than six months. Appellee May has not cross-appealed and does not complain as to the amount.

Appellant takes the position that unless prohibited by the constitution, a statute or an ordinance, a public officer may be discharged at the pleasure of the appointing body. We believe the last sentence in subsection (2) of KRS 95.700 has application here. It states “They shall be subject to removal for cause.” The City made no attempt to justify its action on the 12th day of August 1960, when it removed appellee from office and no reason has been assigned by anyone as a just cause for removal.

Courts generally will not interfere with the discretion vested in the council in absence of abuse, but will act when the dismissal of an officer is capricious or arbitrary. Glass v. Board of Common Council of City of Frankfort, 262 Ky. 471, 90 S.W.2d 700. In that case the reason for dismissal was given as a reduction in force, still the court looked through the subterfuge and concluded that it was only an attempt to evade the spirit and purpose of the statute. We have concluded that KRS 95.700 and its expression “They shall be subject to removal for cause” does not mean that the council may capriciously and without cause refuse to permit a qualified man to serve after he has been duly appointed.

We have found this record to be lacking in many particulars which should have been developed. We believe, however, the trial court reached a reasonable and fair conclusion under the circumstances.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Mary Spicer HODGES, Administratrix of the Estate of Charles Franklin Hodges, Deceased, Appellant, v. Wardell YARBRO et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.

      Harry H. Boaz, Seth T. Boaz, Jr., May-field, Samuel S. Boaz, Paducah, for appellant.
    Dee L. McNeill, Hickman, for appellees.
   CLAY, Commissioner.

In this suit for wrongful death the jury found for appellee defendants. Plaintiff appellant contends several errors were committed in the course of the trial.

Decedent was employed by defendants as a truck driver. During a regular trip, while stopped at a restaurant on a December night, he was found dead in the cab of his truck. The cause of death was carbon monoxide poisoning.

Plaintiff’s claim is based on the alleged negligence of defendants in failing to furnish their employee a safe place to work. There was evidence of a leak in the exhaust pipe or muffler, and the controversy principally involved this alleged defective condition and the knowledge defendants had or should have had concerning it.

An unusual procedural problem was presented. Defendants had pleaded contributory negligence, and there was no reply. Plaintiff sought to avoid this defense by introducing proof that defendants were eligible to operate under the Workmen’s Compensation Act (KRS 342.005(1)) and had not so elected. If within the provisions of that statute, they were denied the defense of contributory negligence by KRS 342.410. Defendants contended that since no pleading presented the issue of the availability of this defense, evidence with respect thereto could not be introduced and the trial court properly declined to submit that issue to the jury.

Prior to the adoption of our Civil Rules, the issue of the nonavailability of the contributory negligence defense under KRS 342.410 must have been raised by a reply. Patton v. Stegall, 220 Ky. 674, 295 S.W.979.

Under CR 7.01 a reply to an answer (which does not assert a counterclaim) is not required and is not allowed except upon order of the court. In CR 8.04 it is provided : “Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.” Though the use of the word “averments” in this sentence suggests that the purpose is to controvert of record the truth of the allegations in a pleading, the use of the word “avoided” at the end of the sentence would indicate that the availability of the defense itself is automatically placed in issue when a responsive pleading is not required or permitted (as a matter of right). ■CR 8.03 may not be invoked as requiring the pleading of this avoidance since it apparently relates to those pleadings authorized by CR 7.01 without a court order. It is •therefore our conclusion that the nonavail.ability of this defense (as distinguished from the evidential issue its averments ■present) need not be pleaded by the plaintiff.

This creates a practical difficulty with respect to the introduction of proof ■on the question and the possible necessity for a special instruction to the jury thereon. .'The best practice would be for the plaintiff .to raise this issue prior to trial. It may be •done in either of two ways. The plaintiff . could move the court under CR 7.01 to permit the filing of a reply in which the ground for avoidance of this defense is set forth. In the alternative, the plaintiff could move to strike this defense as insufficient under ■CR 12.06. Since the judgment in this case is being reversed, this phase of the procedural problem may be obviated by obtaining leave of the trial court to file a reply raising the issue.

During the trial it was not clearly established the defense of contributory negligence was unavailable to defendants. Since there was conflicting evidence on this issue, however, the plaintiff is correct in contending that an instruction should have been given to the jury which would permit them to determine whether defendants had as many as three employees regularly engaged in the same occupation or business. (KRS 342.005(1)) (It would be much better if this question could be disposed of at a pre-trial conference.) We do not approve of the instruction offered by the plaintiff since it does not pinpoint this issue and attempts to put all of the law of the case in one instruction.

Plaintiff contends that other instructions given were erroneous in several respects, and we agree. The jury was instructed that they could find for the plaintiff only if defendants were guilty of gross negligence and the deceased employee had “used the highest degree of ordinary care”. We know of no justification for these standards of care in this case. Other instructions were inconsistent, and • at least one was incomprehensible. On another trial a completely new set of instructions should be given.

An instruction on unavoidable accident may properly be given (see Stanley’s Instructions to Juries, Vol. 2, section 602a; Chaney v. Slone, Ky., 345 S.W.2d 484), and ordinary care should be defined.

Complaint is made of comments of the trial judge. Since there will be a new trial by another judge and the occasion for these comments will probably not arise, it is unnecessary to examine them.

To avoid the many errors that crept into this trial, we recommend a pre-trial conference at which the real issues in this case may be clarified.

The judgment is reversed, with directions to grant the plaintiff a new trial consistent with this opinion.


author: STEWART, Judge.

text:
    Barbara GILL and Barbara Russell, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.
    Luker & Luker, J. Milton Luker, London, for appellants.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STEWART, Judge.

Barbara Gill and Barbara Russell were convicted as codefendants of the crime of armed robbery in the Pulaski Circuit Court and sentenced to life imprisonment. They have appealed.

It is first argued as a ground for reversal, and we believe meritoriously, that the trial court erred in overruling their motion to dismiss the indictment, made before the trial began, for the reason that the grand jurors who returned it were not selected in the manner required by law.

It is contended the circuit judge failed to comply with the provisions of KRS 29.135 (1) ; the relevant portion of this subsection it is claimed was ignored reads: “At each term of circuit courts having terms, the judge shall, in open court, draw from the drum a sufficient number of names not to exceed sixty, to procure twelve persons to act as grand jurors for the next term of court * *

The terms of the Pulaski Circuit Court convene on a definite day of the month and remain in session a fixed period of time as follows: Second Monday in January for 24 days; second Monday in February for 24 days; first Monday in May for 24 days; second Monday in June for 24 days; first Monday in September for 24 days; and second Monday in October for 24 days.

The instant indictment was returned on the 15th day of January, 1963. Under the foregoing statutory subsection the October term, 1962, was the last regular term when grand jurors who were to serve during the January term, 1963, should have been drawn from the drum. It is not revealed any such drawing then took place. However, the circuit judge ruled that the names of the grand jurors who returned the indictment against appellants were taken from the drum at an alleged special term of the Pulaski Circuit Court ordered by him under date of December 21, 1962, and directed to commence the next day, December 22, “to draw names from the jury wheel for jury service at the January, 1963, term.” (The record indicates the names of the sixty persons from which the grand jury in question was chosen were actually drawn from the drum on December 21, 1962.)

KRS 23.110(1) provides that a special term may be held either by entering an order of record at the last preceding regular term or by posting a notice, signed by the circuit judge, at the courthouse door for 10 days before the special term is to be held. It is further stated: “The order or notice shall specify the day when the special term is to commence, and shall give the style of each case to be tried, or in which any motion, order or judgment is to be made or entered at the special term, and no other case shall be tried, or motion, order or judgment entered therein, unless by agreement of the parties, * *

The sole record pertaining to the fixing of a time for a so-called special term to be held is one that the circuit judge instructed the circuit clerk to embrace in an order dated December 21, 1962. As heretofore noted, this entry recites in brief that he was directing a special term to convene on December 22, 1962, for the purpose of drawing from the drum a grand jury for the January, 1963, term. Apparently, in calling a special term in this manner, the circuit judge was of the opinion that he could completely bypass the requirements of KRS 23.110(1).

In the recent case of Price v. Commonwealth, Ky., 366 S.W.2d 725, a manslaughter conviction was reversed because this same circuit judge selected the petit jurors after the close of the regular term of court, thereby disregarding the requisites of KRS 29.135(1). We should add that the same statutory provisions equally govern the time during which grand jurors and petit jurors should be drawn from the drum. In the case at bar we must hold there was a complete failure to observe any of the procedural steps designated in the applicable statutes in respect to the summoning of the grand jury that returned the indictment against appellants. It follows the indictment must be set aside and held for naught.

Certain other complaints are made which we believe should be resolved, as there may be another trial under a new indictment.

It is next asserted the trial court did not pursue a proper method of reducing the number on the petit jury to twelve where one alternate juror had been used during the trial. The process employed was that the circuit clerk, under instructions of the trial court, placed all thirteen names of the jurors in the box and then withdrew from it twelve names and those twelve were sent to the jury room to determine this case. RCr 9.32 provides in part: “The clerk, after mixing the names, shall draw from the box sufficient names (one or two, as the case may be) to reduce the jury to the number required by law.”

Upon a retrial RCr 9.32 should be adhered to; it clearly lays down a course of action to be followed that can scarcely be . misunderstood.

The next error assigned concerns a refusal of the trial judge to admit in evidence the entire statement of appellant, Barbara Russell, after the Commonwealth had called an Ohio police officer who testified to a portion of the statement she had made in his presence. The trial court limited the examination of this witness before the jury only to questions concerning a telephone call of appellant, Barbara Russell, to one Murrell Trimble, purportedly made to lure the latter to the spot where he was brutally murdered and subsequently robbed.

It is argued the entire statement should have been permitted to be introduced because, without it, all events immediately preceding and following the telephone call, and the reason for the call, could not be shown. The Commonwealth counters by stating that the excluded evidence would have been only self-serving and for this reason would have been incompetent.

On the matter raised this language from Meadors v. Commonwealth, 281 Ky. 622, 136 S.W.2d 1066, in our opinion is in point: “It is a rule of equal general recognition in the practice of criminal law that where the prosecution introduces statements of the defendant tending to show that he is guilty, he has the right, on cross-examination, to elicit from the witnesses relating those statements the whole of the relevant and material subject matter, even though the statements so drawn out are self-serving or favorable to him.” See also Winn v. Commonwealth, Ky., 303 S.W.2d 275, and Collins v. Commonwealth, 227 Ky. 349, 13 S.W.2d 263.

At another trial of this case, if the Commonwealth puts in evidence a portion of the admissions or conversation of one of the appellants, the latter should be permitted to produce or draw out by cross-examination all that was said bearing upon that particular statement made to the witness testifying.

The next complaint questions the ruling of the trial court in permitting Roy Gill, the husband, to testify as to certain alleged conversations and transactions in respect to the offense with appellant, Barbara Gill, his wife. Roy Gill was previously convicted of the same crime of which his wife was indicted. It is argued the matter testified to was a confidential communication which transpired between a husband and wife during their marriage relationship and therefore was inadmissible.

A confidential communication within the meaning of KRS 421.210(1), to which the law extends a privilege, includes all knowledge obtained by reason of the marriage relation and which but for the confidence growing out of that relation would not have been known. Todd v. Barbee, 271 Ky. 381, 111 S.W.2d 1041. But if the facts about which a spouse undertakes to testify do not come to his or her knowledge by reason of the marital status, and may have been known and seen by any person who had an opportunity to know or see them, the witness is not disqualified. Hughes v. Bates’ Adm’r., 278 Ky. 592, 129 S.W.2d 138. As stated in Wharton’s Criminal Evidence, 12th Ed., Vol. 3, sec. 830, p. 188: “The law extends a privilege to those communications between spouses which are confidential in nature. Communications made in the presence of third persons are not privileged, since, being made in the presence of third persons, they cannot be regarded as confidential to the spouses.”

In 97 C.J.S. Witnesses § 269, p. 772, it is stated: “Where husband and wife have joined in the commission of a crime, the voluntary confession of one spouse is not privileged, but is admissible against the other.” See also State v. Mann, 39 Wash. 144, 81 P. 561, which is cited as authority for this statement.

Furthermore, in 97 C.J.S. Witnesses § 269, p. 773, this rule is laid down: “When husband and wife are co-conspirators, or when the evidence justifies such a conclusion, a declaration of the husband or wife at the time of the act in question is not privileged.” A nearly identical statement is found in Wharton’s Criminal Evidence, 12th Ed., Vol. 3, sec. 829, p. 186.

We have been unable through research to bring to light any Kentucky cases that .deal with the subject under discussion. We believe, however, that, since the husband and wife were here accused of being particeps criminis, under the authorities above cit.ed, they should be denied the right to assert that any testimony in respect to their criminal acts, alleged to have been jointly committed by them, constitute a privileged communication.

Delk v. Commonwealth, Ky., 285 S.W.2d 169, relied upon by appellant, Barbara Gill, to sustain her position is not controlling because the husband and wife, under the facts of that case, were not coconspirators as the husband alone was under indictment for the crime.

We should point out there is no contention that appellant, Barbara Russell, was present during the alleged conversations between appellant, Barbara Gill, and her husband, Roy Gill, and, for this reason, the testimony of Roy Gill, implicating his wife with the commission of the instant offense, was not competent to be used against appellant, Barbara Russell.

The next ground of objection has to do with the conduct on the part of the Commonwealth’s attorney in cross-examining certain character witnesses who appeared in behalf of appellant, Barbara Gill. Thus, a witness introduced for this appellant, after testifying her general reputation for truth and morals was good, was interrogated by the Commonwealth’s attorney, in part, as follows: “Had you known that prior to her marriage to Roy Gill she had lived -with him * * * would you still say her moral reputation was good?” No evidence of any description had been previously introduced to imply any acts of indiscretion on the part of this appellant.

The trial judge sustained an objection to this line of inquiry, but the Commonwealth’s attorney, despite the trial judge’s ruling, persisted in plying questions in the same form, in an effort to bring out evidence of an incompetent nature, not only to this character witness but to two others who testified in the same capacity for appellant, Barbara Gill. .

It was-clearly improper, as was done here, for the Commonwealth’s attorney to propound hypothetical questions to the character witnesses which assumed that appellant, Barbara Gill, had been guilty of certain misconduct when there was no proof before the jury to establish such a fact.

We have held it is prejudicial error to preface the form of the inquiry, when interrogating a character witness, with words such as, “Had you known.” In Laine v. Commonwealth, 287 Ky. 134, 151 S.W.2d 1055, 1057, it was pointed out the correct form of questioning such a witness should be, “Have your heard,” or language of like import. See also 47 A.L.R.2d 1308, 1309, where the form in which the question should be asked is discussed at length.

This same appellant’s right to a fair and impartial trial was also jeopardized when the Commonwealth’s attorney continued to conduct his interrogation of the character witnesses in the manner referred to above, after the trial judge had ruled the manner of phrasing the questions was improper and the subject matter sought to be elicited was incompetent. We should warn that if a similar practice is resorted to at another trial it will constitute a ground for reversal.

Other alleged errors are complained of by appellant but they are of such a nature that if a retrial of this case is had it is believed they will not recur. Therefore we do not pass on them.

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


author: CULLEN, Commissioner.

text:
    A. J. CROLEY et al., Appellants, v. ROUND MOUNTAIN COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.
    E. B. Wilson, Pineville, for appellants.
    T. E. Mahan, Williamsburg, William Hays, Winchester, Robert H. Hays, Lexington, for appellees.
   CULLEN, Commissioner.

A. J. Croley and wife, owners of the surface of a tract of mountain land, brought this action against Round Mountain Coal Company and others, seeking to enjoin the defendants from conducting strip and auger mining on the tract and to recover damages for such mining already done. Judgment was entered dismissing the complaint on the ground that it did not state a claim upon which relief could be granted. The Croleys have appealed.

The question presented is whether, under the terms of a reservation of mineral rights in favor of the grantor, in a deed by which the surface was conveyed to the Croleys’ predecessor in title, the grantor and his lessees have the right to remove the coal by strip and auger mining.

At one time Greasy Brush Coal Company owned the tract in fee. In 1948 the company deeded the tract to the Croleys’ predecessor in title, with this reservation:

“Reserving all coal, oil, gas, stone, water and any other minerals in, on or under the land, together with the right of ingress and egress to take, enter, mine, cut and remove any and all minerals in, on or under the land. In the event any of the operation in the reservation aforesaid injures or damages any growing crop on the surface, then the person so damaging the growing crop shall pay for the damage done. Second party is given the right to mine for his own use only in his dwelling only coal from the premises, provided his action in so doing does not interfere in any operation of the first party under the reservation, or anyone under it.”

Sómé 13 years later Greasy Brush Coal Company leased the mineral rights to Roúnd Mountain Coal Company and that company then commenced the strip and afo'ger mining operations that gave rise to this suit

In Buchanan v. Watson, Ky., 290 S.W.2d 40, this Court held that under the terms of the so-called “Mayo” form of mineral lease, which was prevalent in Kentucky in the early 1900’s, the lessee has the right to strip and auger mine. The Mayo form of lease differs in several respects from the reservation clause here in question. The appellants maintain that because of those differences, and because the Mayo lease involves a grant of mineral rights (which will be construed most strongly in favor of the rights) whereas the instant case involves a reservation of mineral rights (which will be construed most strongly against the rights), the Buchanan case is not controlling here. (Buchanan has been followed in Blue Diamond Coal Co. v. Neace, Ky., 337 S.W.2d 725; Kodak Coal Co. v. Smith, Ky., 338 S.W.2d 699; Ritchie v. Midland Mining Co., Ky., 347 S.W.2d 548; and Blue Diamond Coal Co. v. Campbell, Ky., 371 S.W.2d 483.)

The Mayo form of lease provides that the lessee has the right to “use and operate the same and surface thereof * * * in any manner that may be deemed necessary or convenient for mining” and it contains a release by the grantor of any claim for damages in the use of the land and the surface by the grantee. The appellants contend that these two provisions were of controlling consideration in the Buchanan case.

It is true that the opinion in the Buchanan case does make mention of the release of damages clause. However, it does not treat this clause as a controlling factor, and it does not attach any special significance to the other clause above mentioned. An examination of the opinion discloses that the decision was based simply on the proposition that the parties clearly intended to convey the coal; that the purpose of the conveyance was to enable the grantee to remove the coal from under the surface of the land; and that to deny the grantee the right to remove the coal by the only feasible process would defeat the principal purpose of the conveyance.

The reservation in the instant case not only reserves “all” coal, but also oil, gas, stone, water, and “any other minerals in, on or under the land,” with the right to “take, enter, mine, cut and remove any and all minerals in, on or under the land.” Obviously, all coal could not be removed by the deep mining process. Removal of stone normally would require substantial destruc- . tion of the surface. We think the parties must have intended that the minerals could be removed by any recognized method or . process.

In 1948, when the deed in question was made, strip mining was fairly common, so it cannot be said that the parties could not have contemplated the use of that method of mining.

Since we think the meaning of the reservation is plain, there is no occasion to apply the rule that in case of ambiguity a deed will be construed most strongly against the grantor.

In the opinion in Blue Diamond Coal Co. v. Neace, Ky., 337 S.W.2d 725, there is the' suggestion of a possible rule that the surface owner’s right to subjacent support should not be considered to have been surrendered by a mineral conveyance' unless there be fairly positive language in the conveyance indicating that intent, such as ‘ the language in the Mayo lease conferring upon the lessee the right to use the surface in “any manner that may be deemed necessary and convenient.” However, we think the language in the reservation here in issue expresses with the same force the intention of the parties that the owner of the minerals shall have the right to destroy the surface to the extent necessary to remove the minerals.

It is our conclusion that the appel-lees here have the right under the terms of the reservation to remove the coal by strip and auger mining. Having that right, they are not liable for any damage to the surface (except to growing crops as specified in the reservation) unless they act arbitrarily, wantonly or maliciously. Buchanan v. Watson, Ky., 290 S.W.2d 40. The trial court, therefore, properly dismissed the complaint, except as hereinafter stated.

In addition to the allegations seeking relief on the ground that the defendants had no right to do strip and auger mining, the complaint alleged that the defendants were casting waste material on the plaintiffs’ tract from other lands, and were carrying on their strip and auger mining on the plaintiffs’ tract in an arbitrary, wanton and malicious manner. The appellees admit that the latter allegations state claims upon which relief could be granted. The trial court erred in dismissing so much of the complaint as set forth those allegations.

The judgment is affirmed to the extent it dismissed so much of the complaint as undertook to assert a claim on the basis of a lack of right of the defendants to carry on strip and auger mining; the judgment, is reversed to the extent it dismissed the other portions of the complaint, with directions to enter an order overruling the motion to dismiss as to those portions.


author: PALMORE, Judge.

text:
    Ray T. HALL et al., Appellants, v. Henry KOLB et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.

      Waller, Threlkeld, Whitlow & Byrd, Williams & Rivers, Paducah, for appellants.
    John B. Blackburn, Holland G. Bryan, Wheeler & Marshall, Paducah, for ap-pellees.
   PALMORE, Judge.

This is a negligence action arising out of a collision between two automobiles on the concrete slab of a new road being constructed by the appellee, J. B. Michaels & Company, Inc. (hereinafter called Mi-chaels), under a contract with the state. The road had not been completed, accepted, marked or designated as a highway and was not officially open for use by the general public, but the barrier at its entrance was so constructed and placed that a driver could easily enter upon it from U.S. 62. That is just what the appellant Gary Dale Roberts did. So also, shortly before, had the driver of a large tractor-trailer outfit. Roberts overtook this truck and, in passing it on the left, struck a car driven by the appellee Kolb, a rural mail carrier, who was crossing the concrete slab from Roberts’s right to left on an intersecting county road. There were no signs or markers to indicate the presence of the intersection.

Roberts was driving an automobile owned by his father-in-law, the appellant Hall, and was accompanied by his wife. The Robertses sued Kolb and Michaels for personal injuries. Kolb counterclaimed against Roberts, cross-claimed against Mi-chaels and, in substance, asserted a third-party complaint against Hall for personal injuries. Hall then asserted a claim against Kolb and Michaels for damages to his automobile. In addition to various defensive pleadings, all parties cross-claimed over for contribution.

At the conclusion of the evidence the trial court held Roberts guilty of negligence as a matter of law and submitted the alleged negligence of Kolb and of Michaels to the jury, instructing it to consider the accident as having occurred at an ordinary road intersection, with neither the county road nor the newly constructed concrete strip having preference over the other. The jury found in favor of both Kolb and Michaels and awarded Kolb damages in the sum of $46,847 against Roberts alone.

Though Hall and Mrs. Roberts are named with Roberts as appellants, the argument as briefed in this court is directed exclusively to the judgment on Kolb’s counterclaim against Roberts and on Roberts’s cross-claim against Michaels for contribution. Thus all other issues are waived, which eliminates Hall and Mrs. Roberts. Likewise, no question is raised with respect to Roberts’s negligence and the theory upon which the trial court held him negligent as a matter of law.

It is first suggested that Kolb, in attempting to cross the concrete strip (which for the sake of convenience we shall occasionally call the "new road”), was contributorily negligent as a matter of law in that he failed to see the obvious. Cf. Vaughn v. Jones, Ky., 257 S.W.2d 583 (1953). But we think this was a jury question. Until he arrived within 30 feet of the new road Kolb’s vision was obstructed by a bank through which the county road was cut. When he emerged into the clear, he saw the large truck approaching from his left and judged that he had time to get across ahead of it. Evidently, however, Roberts was then in the process of passing or beginning to pass to the left of the truck, so that the truck was moving along directly in what otherwise would have been the line of vision between Roberts and Kolb. Hence neither of them saw the other until it was too late. This is what the jury was entitled to and apparently did believe from the evidence, and on that premise we cannot say Kolb was negligent as a matter of law.

Roberts does not contend that the new road should not have been treated as a public highway within the purview of KRS Chapter 189. On the contrary, he takes the position that it should have been defined as a boulevard, with an instruction requiring Kolb to stop and to yield the right of way in accordance with KRS 189.330(3) and (4). The basis for this theory is the physical difference in size and condition between the two roads. The new road, being concrete surfaced and 24 feet wide, obviously was intended and destined eventually to become a superior highway as against the rough and tortuous country road on which Kolb was traveling. Whether or not it had been technically opened to general traffic, it was in limited de facto use by the road contractors, local residents, and such inevitable interlopers as Roberts and the truck driver. We recognize all these facts of life, but in the interest of orderly government are loath to assume as a common law process the task of designating through highways. That is properly a function of statutory definition or administrative regulation. Until defined or designated as a superior thoroughfare in the manner authorized by statute, one road has no legal preference over another. In so saying, we expressly refrain from passing on the question of whether the new road in this case was or should have been treated as a public road at all.

The gist of the claim against Mi-chaels for contribution is that the barrier maintained at the place where Roberts entered the new road did not conform to the requirements of Michaels’s contract with the highway department; that these requirements were the criteria of Mi-chaels’s duty of care toward Kolb; and that Michaels’s failure in this regard was a proximate cause of the accident.

The standard specifications for all public highway construction contracts of this state provide in substance that until a new road is ordered open for traffic the contractor shall erect and maintain strong, virtually immovable barricades to keep vehicles from being driven on the pavement. Actually, however, it appears that a rigid observance of such a stricture would have been extremely impracticable if not impossible under the circumstances of this case, and the barrier maintained by Michaels was a movable structure only 12 feet in width, which on a 24-foot pavement could be and was driven around. On it was tacked a sign reading “Road Closed.”

We are inclined to agree with counsel for appellants that the barricade was in fact nothing more than a warning sign. But even conceding further, for purposes of the argument, that Michaels was thus negligent as a matter of law towards Kolb and that such negligence was a proximate cause of the accident, we are of the opinion nevertheless that as between Roberts and Michaels the liability of Roberts was primary and Michaels secondary. When a traveler chooses to disregard a “Road Closed” sign and drive across a stretch of gravel onto a freshly constructed pavement that is unmarked and obviously not open for general use, we do not believe he is in a justifiable position to insist that the builder share his responsibility for an accident which, as between the two of them, he had the last opportunity to avoid. We do not buy the argument that “Road Closed” signs are made to be ignored, and surely they will be ignored if the courts declare them meaningless.

The judgment is affirmed.

      . Armstrong v. McGuire, Ky., 283 S.W.2d 366 (1955).

      . Violation of KRS 189.330(2) .and KRS 189.340(4) (b). The latter subsection has now been repealed by c. 288, Acts of 1962.

      . Other notations on the plans for this particular contract raise serious doubt that the standard specifications could be given a literal construction in this respect.

      . Which, in view of Kolb’s admitted knowledge that certain vehicles had been using the new road, is a most charitable assumption.

      .For example, the shoulders had not yet been built up to the level of the pavement.


text:
    Bertha Mae Abell SKAGGS, Appellant, v. Marlow COOK, Judge, Jefferson County Court, et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.

      William Kiel, Mayer, Cooper & Kiel, Louisville, for appellant.
    Mark Davis, Jr., Garland R. Hubbard, Samuel Steinfeld, Steinfeld & Steinfeld, Louisville, for appellees.
   STEWART, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court, affirming an order of the Jefferson County Court, by which the application of appellant, Bertha Mae Abell Skaggs, to be appointed administratrix of the estate of her uncle, James V. Abell, deceased, was rejected and Frank Haddad, Jr., an appellee herein, who is the public administrator of Jefferson County, was appointed.

On February 7, 1961, Mary P. Abell, wife of James V. Abell, died testate, and willed her estate of approximately $260,000 to certain persons unrelated to her by blood, with a provision that her husband’s income should be supplemented for necessities during his lifetime, only if his income proved insufficient. William Emmett Abell, an ap-pellee herein, was left one-fourth of the remainder.

On April 14, 1961, James V. Abell was adjudicated an incompetent, and Samuel Abell, his brother, together with the Liberty National Bank and Trust Company, were made his cocommittee. On April 17, 1961, the cocommittee filed a renunciation of Mary Abell’s will on behalf of James V. Abell. On May 10, 1961, the cocommittee filed suit in the Jefferson Circuit Court requesting either an affirmance of the co-committee’s renunciation or that the circuit court make the renunciation on behalf of James V. Abell. This proceeding is now pending.

On August 15, 1961, James V. Abell died testate, leaving his estate in equal amounts to his niece, appellant herein, and to his nephew, William Emmett Abell, an appellee herein. The will was probated on September 28, 1961, and the executor named therein refused to qualify. Appellant and ap-pellee, William Emmett Abell, each filed an application for letters of administration-with the will annexed and each objected to the appointment of the other.

A hearing was held before a special commissioner who recommended that appellant be appointed in the foregoing capacity. Appellee, William Emmett Abell, filed exceptions to the special commissioner’s report. His chief exception was that appellant’s interests are contrary to and in conflict with the administration of the estate of James V. Abell and, in consequence, she could not perform the trust in an unbiased manner. The county court sustained this exception, rejected the applications of both-appellant and appellee, William Emmett Abell, and appointed appellee, Frank Had-dad, Jr., as administrator with the will annexed. The circuit court on review affirmed the county court’s actions. This appeal followed.

James V. Abell’s estate, at the time of his death, was valued at $14,716.04. The attempted renunciation, if successful, would enhance his estate by about $130,000, which would be shared equally by appellant and appellee, William Emmett Abell.

KRS 395.040(1), concerning who is entitled to be named administrator, states in part: “The (county) court shall grant administration to the relations of the deceased who apply for administration, preferring the surviving husband or wife, and then such others as are next entitled to distribution, or one or more of them whom the court judges will best manage the estate.”

It is the established rule in Kentucky that the county court inust conform to the directions set forth in the above subsection in the appointment of a personal representative to administer an estate. The right is a valuable one, and a person entitled to perform such a trust cannot be deprived of it without legal cause. See Cosby v. Hays, Ky., 257 S.W.2d 575; Liberty Bank & Trust Co. v. Kentucky Title Trust Co., 239 Ky. 263, 39 S.W.2d 258; and Hood v. Higgins’ Curator, 225 Ky. 718, 9 S.W.2d 1078.

Appellant and appellee, William Emmett Abell, both of whom applied for letters of administration, were equally entitled to be appointed unless either or both be disqualified. The special commissioner concluded the right as to whom should be accorded preference should be determined by the attitude of each applicant to the question of whether the renunciation proceeding, now awaiting a circuit court decision, should be prosecuted to a final determination. Appellant favors a continuation of this litigation; appellee, William Emmett Abell, opposes such a course of action, he having testified he will dismiss the action if he is named administrator. Perhaps his motive for taking such a stand is the fact that he is a legatee under the will that is sought to be renounced.

The special commissioner ruled that the announced intention of appellee, William Emmett Abell, to refrain from obtaining a renunciation of the will of Mary P. Abell, disqualified him from being appointed as the personal representative, because such inaction “would result in the estate of James V. Abell being denied the opportunity of being greatly increased” and would therefore be in conflict with the best interests of that estate. On the other hand, he found appellant qualified and competent and was of the view that her avowed purpose to bring about a renunciation of the will of Mary P. Abell, if successful, would redound to the benefit of the estate of James V. Abell. Accordingly, he recommended appellant’s appointment.

As stated heretofore, the county court declined to follow the recommendation and made the appointment mentioned in the first paragraph of this opinion. The circuit court upheld the county court’s action and employed this line of reasoning in declining to honor the application of appellant:

“If Mrs. Skaggs (appellant) as ad-ministratrix pursues the course already charted (that is, attempts to adjudicate the renunciation) and is successful she will be doing so at the expense of the estate for her own personal gain and at the expense of her brother, for. he will be charged with one-half of the expense. On the other hand, if she is unsuccessful, her brother will again be bearing one-half of the expense for an action which would enure to Mrs. Skaggs’ personal gain. Among other things it is not fair that William E. Abell should bear the expense of his sister in fighting for her own personal gain.”

It appears the only reason advanced for rejecting appellant’s application for appointment is that her interest, as the trial judge found, “is opposite and necessarily antagonistic to that of her brother.” In the case of Rieke’s Adm’r. v. Rieke, 183 Ky. 131, 208 S.W. 764, this Court reversed a judgment which removed the administrator with the will annexed who was seeking a construction of the will that would be to the benefit of his wife. It was held such action did not warrant the discharge of one acting in a fiduciary capacity. The opinion of that case said that persons upon whom preference in appointment is conferred under the statute “always necessarily have interests antagonistic to others entitled to participate in the distribution of the estate.”

In Hays v. Coy, Ky., 264 S.W.2d 258, it was held the fact that personal antagonism existed between the husband and the deceased wife’s brother did not disqualify the brother from holding the office of administrator with the will annexed of the wife’s estate.

In Barnett’s Adm’r. v. Pittman, 282 Ky. 162, 137 S.W.2d 1098, the opinion, after pointing out that the right to act asserted, in order to uphold the removal of a fiduciary, must be one that is incompatible with the best interest of the estate, made this pertinent statement: “ * * * Mere personal hostility toward a distributee does not necessarily disqualify one to act as personal representative of an estate.”

Appellant and appellee, William Emmett Abell, will lose only the expense of the lawsuit, if renunciation is denied. On the other hand, the legacy that each would receive could increase from $7000 to approximately $72,000, if the renunciation litigation is successful. The very act it is claimed should disqualify appellant for the appointment is one that demonstrates she would be performing a deed for the best interest of the estate. In fact, it is firmly believed the administrator with the will annexed, whoever he might be, would be derelict in his duty if he failed to attempt to have the will of Mary P. Abell, the decedent’s wife, renounced.

Wherefore, the judgment is reversed with directions that a new one be entered directing the county court to appoint appellant, Bertha Mae Abell Skaggs, adminis-tratrix with the will annexed of the estate of James V. Abell.


author: MILLIKEN, Chief Justice.

text:
    J. W. CARTEE et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.
    Holland G. Bryan, Paducah, for appellant.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Reed Anderson, Paducah, Richard H. Peek, Smithland, for appellee.
   MILLIKEN, Chief Justice.

This is an appeal from a summary judgment for the Department of Highways in a suit brought against it by landowners to recover damages for additional impairment of ingress and egress to their property caused by a change in the Department’s construction of the highway from the original plan.

In December, 1954, the Department of Highways procured a deed through condemnation proceedings from the appellants for the improvement of a public road leading from Kentucky Dam to Paducah. At that time the Department presented plans and specifications showing how the proposed improvement would affect the appellants’ property. Subsequently, the Department changed its plans and in 1961 the appellants sued the Department asserting that “their rights of ingress and egress to and from their driveway and property was, and is, partially destroyed and seriously interfered with, in that, instead of being able to turn into or turn out from driveway regardless of the direction in which they may be proceeding; if they are proceeding from the north toward their home, they cannot turn into their driveway but are required to proceed a great distance to Reidland and turn around and come back to their property; or if they are emerging from their driveway and desire to go south towards Reidland, they are required instead to proceed north at least a half mile, then cross over into the south-bound roadway and drive back another half mile to a point opposite their driveway, and then proceed as they desired south toward Reidland.”

The change in plans from an ordinary highway to a divided highway probably has caused some inconvenience to the appellants, but they still have reasonable access to the State Highway System and that is all they are entitled to have. Department of Highways v. Carlisle (1962), Ky., 363 S.W.2d 104; Department of Highways v. Jackson (1957), Ky., 302 S.W.2d 373, 376. And see, also, the re-affirmal of this view in Com. Department of Highways v. Sherrod (1963), Ky., 367 S.W.2d 844, at pages 858, 859. Furthermore, the change in plans and specifications was permissible. Commonwealth Dept. of Highways v. Littrel (1959), Ky., 319 S.W.2d 458.

The judgment is affirmed.


text:
    A. B. SCHLATTER, INC., Appellant, v. LOUISVILLE & JEFFERSON COUNTY PLANNING & ZONING COMMISSION et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.

      Daniel B. Boone; Boone & Triplett, Louisville, for appellant.
    James L. Taylor; Sal Pinto; Louisville, for appellees.
   CLAY, Commissioner.

Appellant sought to have the zoning classifications of a tract of land owned by it in Jefferson County changed from “E-3” Industrial to “E-4” Industrial. The Zoning Commission denied appellant’s application, and on appeal to the circuit court under KRS 100.057, after a trial de novo, the circuit court confirmed the action of the .Commission by denying the zoning change.

The only question before us is whether there was substantial evidence to support the findings of the circuit court. Louisville & Jefferson County Planning and Zoning Commission v. Cope, Ky., 318 S.W.2d 842; Jenkins v. Louisville & Jefferson Co. Plan. & Zon. Com’n, Ky., 357 S.W.2d 846. There was testimony by home owners in the vicinity concerning the probable adverse effect of heavy industrial uses of the property, testimony of the Chief Planner for the Louisville & Jefferson County Planning and Zoning Commission with respect to the reasons for the “E-3” zoning classification and why it should not be changed, and testimony by real estate men about the adverse effect of a reclassification. There was also evidence that there was ample unused property in the general area with an “E-4” classification.

The only reason shown by appellant for the requested reclassification was its own convenience. Without deciding the extent of the burden on appellant to establish a substantial basis for the change, and without examining the question of spot zoning in the light of Hodge v. Luckett, Ky., 357 S.W.2d 303, we are of the opinion the findings and conclusions of the circuit court were amply supported by the evidence and were in conformity with law.

The judgment is affirmed.

      . The language generally used is “substantial evidence of probative value”. The phrase “of probative value” is surplusage. The evidence could not be substantial unless it possessed this persuasive quality.


text:
    William J. POWERS, Jr., Petitioner, v. Chester D. ADAMS, Judge of the Fayette Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.

      William J. Powers, Jr., pro se.
    Donald P. Moloney, Lexington, for respondent.
   CULLEN, Commissioner.

William J. Powers, Jr., has filed in this Court a petition asking that an order of prohibition be entered against Chester D. Adams, Judge of the Fayette Circuit Court, enjoining him from enforcing or causing any other person to enforce an order of 35-day commitment for mental observation of Powers made on May 17,1947, and a judgment adjudicating Powers to be a person of unsound.mind and committing him to the U. S. Veterans’ Hospital at Lexington, entered June 9, 1947. The petition alleges various grounds upon which the order and judgment are claimed to be void.

The petitioner has been released from institutional confinement and the petition does not allege that the respondent or anyone else is threatening now to enforce the order and judgment (of course the order is functus officio, having long ago been enforced to the full extent possible). It appears that what the petitioner really desires is that the order and judgment be vacated. Such relief may be sought in the court that entered the order and judgment. Cadden v. Commonwealth, Ky., 242 S.W.2d 409. No reason has been shown why the circuit court remedy would not be adequate. This Court will not grant an order of prohibition where there is an adequate remedy in the circuit court.

The petition is denied.


text:
    PULASKI FISCAL COURT et al., Appellants, v. Lavey FLOYD et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.

      Harris & Ramsey, Somerset, for appellants.
    H. K. Spear, Somerset, for appellees.
   PALMORE, Judge.

Following its approval of an order to the effect that the court house doors be locked from 9:00 P.M. until 4:00 A.M. daily, the fiscal court of Pulaski County adopted a further order authorizing the county judge “to buy a lock and hasp and as many keys as needed, and have the lock and hasp installed on the back door of the Courthouse.” Pursuant to KRS 23.030(1) the appellees, dissenting members of the fiscal court, appealed the latter order to the Pulaski Circuit Court, which held it void as an unauthorized invasion of the rights and prerogatives of the county jailer. The instant appeal challenges the correctness of that judgment.

The Pulaski County Jail is situated on an upper floor of-the court house. The front door of the court house is kept locked at night, and the only access to the jail is by way of the back door. The position of the dissenting members of the fiscal court is that the “lock and hasp” terminology of the order in question connotes a padlocking of the back door from the outside, which would prevent unlocking from the inside and thus not only imprison the jailer himself but make it impossible for him to open up for the reception of prisoners being brought in by police officers. Conceding arguendo that an order effectively disabling the jailer from performing his fundamental and statutory duties would be unauthorized and void, we do not believe the language of this order need be so strictly construed. In our opinion it is broad enough to encompass the installation of a locking device that will permit opening of the door from the inside.

KRS 67.080(6) empowers the fiscal court to “regulate and control the fiscal affairs and property of the county.” By KRS 67.130 the jailer of a county having a population of less than 75,000 and not having a city of the second class or a circuit court of continuous session “shall he superintendent of the public square and all county buildings at the county seat.” The latter provision is not exclusive, however, but is to be construed in pari materia with KRS 67.080 and other pertinent statutes relating to the powers of the fiscal court. It was not intended to deprive the fiscal court of its superior power to regulate and control the county’s buildings. Owen County v. Greene, 129 Ky. 750, 112 S.W. 854 (1908).

Conceding further that the jailer is lord and master of the jail itself, the fact that he must use the halls and portals of the court house to reach it does not make them a part of the jail. So long as he is provided a key, we think it is well within the legitimate and necessary powers of the fiscal court to lock the court house doors at night. The inconvenience of coming down stairs to open the door does not amount to an unreasonable interference with the performance of his office.

The action of the fiscal court in this case was precipitated by the commission of offensive acts in the court house hall during nighttime. There is no law obliging the county to provide public toilet ‘facilities at all, much less to do so around the clock. And, to put it mildly, the trial court’s vigorous defense of the practice of satisfying calls of nature on the court house floor comes as something of a surprise.

The cause is reversed with directions that a judgment be entered denying the relief prayed by the appeal from the order of the fiscal court.

      . Cf. Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947).


author: WILLIAMS, Judge.

text:
    James V. MARCUM, Commissioner, Department of Revenue, Commonwealth of Kentucky, Appellant, v. CITY OF LOUISVILLE MUNICIPAL HOUSING COMMISSION, Appellee.
    Court of Appeals of Kentucky.
    March 8, 1963.
    Kehearings Denied Nov. 8, 1963 and Feb. 21, 1964.
    William S. Riley, Asst. Atty. Gen., Francis D. Burke, William P. Curlin, Jr., Dept, of Revenue, Frankfort, for appellant.
    Carl Wedekind, Jr., James W. Stites, N. H. Dosker, Louisville, for appellee.
   WILLIAMS, Judge.

The appellee, City of Louisville Municipal Housing Commission, brought this action against the Commissioner of the Department of Revenue, Commonwealth of Kentucky, seeking a declaration of rights that it is exempt from the Kentucky sales and use tax on utilities purchased by it. From a judgment of the Franklin Circuit Court declaring the appellee exempt, this appeal is taken.

It has been agreed for the purposes of this case that the appellee is an institution of purely public charity and within the purview of section 170 of the Kentucky Constitution. That section exempts from taxation “institutions of purely public charity.” Also KRS 139.470 provides:

“There are excluded from the computation of the amount of taxes imposed by this chapter:
“(1) Gross receipts from the sale of, and the storage, use or other consumption in this state of, tangible personal property the gross receipts from the sale of which, or the storage, use or other consumption of which, this state is prohibited from taxing under the Constitution or laws of the United States, or under the Constitution of this state; * * * ”

Obviously then, the judgment of the lower court is correct if the tax is imposed upon the appellee.

In order to avoid confusion we shall first dispose of the use tax question. The legislature, by Chapter 5, Acts 1960 General Assembly, enacted both a sales tax and a use tax. Provisions for the collection and incidence of the two differ. The use tax is an excise tax imposed on the storage, use or other consumption of personal property (KRS 139.310) and must he collected by the retailer from the consumer (KRS 139.340). Clearly, the legal incidence of the use tax falls upon the consumer who is the appellee here and, as the taxpayer, is exempt under section 170 of the Constitution and KRS 139.470. The appellant admits this fact.

On the other hand, the sales tax is imposed upon all retailers for the privilege of making retail sales (KRS 139.200) and may be collected by the retailer from the consumer (KRS 139.210). It was the obvious intent of the legislature to place the legal incidence and economic burden of the use tax on the consumer. It is just as apparent the legislature intended to place the legal incidence of the sales tax on the retailer, even though the economic burden might be passed on to the consumer.

The United States Supreme Court, in James v. Dravo Contracting Company, 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155, 114 A.L.R. 318, construed the West Virginia gross sales tax statute which imposed upon a contracting company a tax equal to two per cent of the gross income from its business. The Company realized income from a contract with the federal government. It was held that the tax on such income was not a tax on the government although it was a direct burden on the government. The Supreme Court, in Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3, held that the Alabama sales tax which was imposed upon the retailer but required to be passed on to the consumer was not a tax on the United States even though the economic burden was passed on to the United States. The Court said:

“ * * * The asserted right of the one to be free of taxation by the other does not spell immunity from paying the added costs, attributable to the taxation of those who furnish supplies to the Government and who have been granted no tax immunity. So far as a different view has prevailed, see Panhandle Oil Co. v. State ex rel. Knox, supra [277 U.S. 218, 48 S.Ct. 451, 72 L.Ed. 857] ; Graves v. Texas Co., supra [298 U.S. 393, 56 S.Ct. 818, 80 L.Ed. 1236], we think it no longer tenable. >}< % »

Since King & Boozer, the test has been whether the legal incidence is upon the tax exempt instrumentality. If so, it need not bear the burden of payment. But, if it is affected only through increased costs of services or materials, the exemption does not lie. See 9 Vanderbilt Law Review, beginning at page 204.

The Supreme Court has considered several cases involving different factual sitúa-tions but has not varied from an approval of the “legal incidence” test as opposed to the “economic burden” test. See United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209; Esso Standard Oil Co. v. Evans, 345 U.S. 495, 73 S.Ct. 800, 97 L.Ed. 1174; Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 74 S.Ct. 403, 98 L.Ed. 546; United States v. City of Detroit, 355 U.S. 466, 495, 505, 78 S.Ct. 474, 2 L.Ed.2d 424; United States v. Township of Muskegon, 355 U.S. 484, 78 S.Ct. 483, 2 L.Ed.2d 436; City of Detroit v. Murray Corporation, 355 U.S. 489, 78 S.Ct. 458, 486, 2 L.Ed.2d 441, 460. State courts have followed the lead; e. g., Timm Aircraft Corp. v. Byram, 34 Cal.2d 632, 213 P.2d 715, 716; General Dynamics Corp. v. County of Los Angeles, 51 Cal.2d 59, 330 P.2d 794, 796. And this Court, on one occasion, rejected the contention that federal employees were exempt from a Louisville occupation tax on the theory such tax placed a burden on the federal government. Cook v. Commissioners of Sinking Fund of City of Louisville, 312 Ky. 1, 226 S.W.2d 328. Therein we said:

“ * * * If it could be determined with any reasonable degree of certainty that any portion of the burden of the tax levied against its employee and measured by his income could reach the Federal Government, such would be a mere incident arising out of the coexistence of more than one taxing; authority, and which was known and recognized at the time of the adoption of the Federal Constitution. * * *”

The latest expression of this Court relating to the economic impact of a tax was in Marcum v. Kentucky Enterprise Federal Savings & Loan Association, Ky., 363 S.W.2d 118. The question there was whether a tax on the capital stock of a domestic building and loan association was a tax imposed on the corporation or upon its members. We said:

“ * * * The provision of KRS 136.-300(2) entitling the corporation to reimburse itself out of dividends, if it so elects, satisfies one of the tests of a tax against the ownership interests of the members but of course is not itself dispositive, nor is the fact that under various other statutory sections cited by the Department the ability of the corporation to cast the ultimate burden of the tax upon the members seems assured. Regardless of the relationship between the corporation and its members, we find nothing to indicate any liability for the tax on the part of the individual members, as would exist if the corporation were merely a collecting agent.”

We now look to various sections of the sales tax law. KRS 139.200 imposes a tax on all retailers at the rate of three per cent of the gross receipts derived from retail sales for the privilege of making retail sales. KRS 139.210 provides the taxes imposed may be collected from the consumer. The taxpayer is the person liable for the tax. (KRS 139.180) All gross receipts are subject to the tax until the contrary is established. (KRS 139.260) The definition of retailer includes a seller who is a person engaged in the business of selling tangible personal property or services of a kind, the gross receipts from the retail sale of which are required to be included in the measure of the sales tax. (KRS 139.140) He must have a permit to do business (KRS 139.240) which is non-assignable. (KRS 139.250) All of which indicates the intent of the legislature that the sales tax is on the retailer and not the consumer.

By comparison we note that the Kentucky statute closely follows the California Code (California Rev. & Tax. C.A., section 6001 et seq.). Section 6051 provides:

“For the privilege of selling tangible personal property at retail a tax is hereby imposed upon all retailers at the rate of 2i/% percent of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in this State * *

The California Court, in Livingston Rock and Gravel Co. v. De Salvo, 136 Cal.App.2d 156, 288 P.2d 317, said that the sales tax is levied on the retailer for the privilege of selling tangible personal property. And in a landmark case from that state, Western Lithograph Co. v. State Board of Equalization, 11 Cal.2d 156, 78 P.2d 731, 117 A.L.R. 838, that court held the sales tax provisions create a relation of sovereign power and taxpayer between the state and retailer and not between the state and consumer.

KRS 139.Z10 provides:

“The taxes herein imposed may be collected by the retailer from the consumer.”

California Rev. & Tax. C.A., section 6052, provides:

“The tax hereby imposed shall be collected by the retailer from the consumer insofar as it can be done."

Although the California directive is stronger than that provided in the Kentucky statute, nevertheless the California courts have consistently construed it as providing for a tax on the retailer and not the consumer. It was said in Market Street Railway Company v. California State Board of Equalization, 137 Cal.App.2d 87, 290 P.2d 20:

“ * * * But the sales tax is not a tax on the buyer, but a tax on the seller, imposed on the privilege of selling goods at retail. While the seller may pass the tax on to the buyer, the tax itself is imposed on the seller, and the payment of it is his primary obligation. The buyer has no direct obligation, so far as the state is concerned, for the payment of the tax.”

In Western Lithograph Co. v. State Board of Equalization, supra, it was stated:

“ * * * The tax being a direct obligation of the retailer and, so far as the consumer is concerned, a part of the price paid for the goods and nothing else, it is neither in fact nor in, effect laid upon the consumer. It does not become a tax on the sale nor because of the sale, but remains an excise tax for the privilege of conducting a retail business measured by the gross receipts from sales.”

We note from a comparison of the Sales Tax Acts of several different states that in almost every instance the incidence of the tax is said to be on the retailer when the law merely permits him to collect from the consumer. On the other hand, the incidence is held to be on the consumer when the law directs that the tax shall be collected from the consumer. The Kentucky statute merely permits the retailer to collect from the consumer. The fact that the burden may be passed on certainly does not convert the tax from one on the retailer to one on the consumer.

KRS 139.220 prohibits a retailer from advertising that the sales tax will be assumed by the retailer or that it will not be added to the selling price of the property sold, or that, if added, it will be refunded. This is another question which the California courts during the 30 years in which the tax has been in existence in that state have had occasion to examine. In Livingston Rock and Gravel Co. v. De Salvo, supra, that court said:

“ * * * The purpose of this section is to place retailers on an equal basis since it is ‘deemed unfair competition for the strong to absorb the tax and build up his trade at the expense of the weaker dealer who could not absorb it.’ ”

The 1934 Kentucky Sales Tax Act was construed by this Court in City of Covington v. State Tax Commission, 257 Ky. 84, 77 S.W.2d 386, to be a tax imposed on the consumer. The 1934 law required the retailer to collect the tax from the consumer while the statute under consideration now merely permits collection. Other differences between the old and the new laws indicate an attempt by the legislature to establish a different concept in the new one. The import of the decision in the City of Coving-ton case is that, since the economic burden of the tax fell upon the consumer, then he, in fact, was the taxpayer. It has been heretofore shown that the economic burden is not a criterion which will dictate the incidence of the tax. The present statute has been changed so materially as to render the opinion in the City of Covington case no longer controlling.

KRS 139.570 provides:

“The taxpayer shall deduct and withhold from the taxes otherwise due from him two percent thereof to reimburse himself for the cost of collecting and remitting the tax.”

The taxes contemplated in that section are both sales taxes and use taxes. As we have noted, use taxes must be collected by the retailer from the user and they become a debt owed by the retailer to the state. (KRS 139.360) It is not unusual for the state to compensate an individual for tax services performed which benefit the state; e. g., cigarette wholesalers are permitted to buy tax stamps which they attach to cigarette packages at a reduced price. (KRS 138.-146(4)) It is commonly accepted practice to allow a discount to a taxpayer who pays his taxes early. Most significantly, gasoline dealers are permitted a deduction of a certain percentage of the number of gallons upon which tax is owed for various reasons, including handling and reporting the tax. (KRS 138.270(1) (b)) The gasoline dealer is the taxpayer. He pays tax on gasoline received. (See KRS 138.210, 138.-220) Consequently, we see no reason to conclude a taxpayer is not really a taxpayer just because he is given an allowance for handling the tax.

The question here involves the liability of the appellee for taxes upon utilities furnished to it. KRS 139.100(2) (b) provides:

“(2) ‘Retail sale’ or ‘sale at retail’ shall include but shall not be limited to the following: * * *
“(b) The furnishing of sewer services and intrastate telephonic and telegraphic communications and services;

And KRS 139.160 reads:

“ ‘Tangible personal property.’ ‘Tangible personal property’ means personal property which may be seen, weighed, measured, felt or touched, or which is in any other manner perceptible to the senses and includes natural, artificial and mixed gas, electricity and water.”

The circuit court adjudged that the appellee was exempt from the imposition of the Kentucky sales and use tax on its purchases or use of utilities, as well as to other tangible property, and that the application of the sales and use tax to the purchase of utilities by the appellee impairs the obligations of its contracts. We have shown that the sales tax is not a tax upon the appellee, and appellee is not exempt from bearing the burden of the tax which may be passed on to it by a utility company. The use tax is upon the appellee, and, consequently, the appellee is exempt therefrom. It follows that there is no impairment of a contractual obligation of appellee. Because the sales tax and use tax were a part of the same Act of the legislature and were jointly questioned in this action, we have determined the rights of the appellant and appellee as regards each tax.

The judgment is reversed in all respects, except that portion which declares the ap-pellee exempt from payment of the use tax.

MONTGOMERY and MOREMEN, JJ., dissenting.


author: PER CURIAM.

text:
    Eleanor FARRELL, Petitioner, v. Dean FARRELL, Respondent.
    No. A-9827.
    Supreme Court of Texas.
    Dec. 31, 1963.
    Matthews, Payne, Pace, Sands & Ben-ners, Dallas, William O. Huie, Austin, for petitioner.
    Joseph M. Stuhl, Dallas, for respondent.
   PER CURIAM.

The opinion of the Court of Civil Appeals is found in 370 S.W.2d 241.

This is an action for divorce and a division of property. The judgment of the Court of Civil Appeals is final under Article 1821, Vernon’s Annotated Texas Civil Statutes, unless there has been a disagreement among the Judges of the Court of Civil Appeals, or unless the Court of Civil Appeals has held differently from a prior decision of another Court of Civil Appeals or of this Court on a question of law material to the decision. Arts. 1821, 1728, V.A.T.S. There is no disagreement among the Judges of the Court of Civil Appeals, and the petitioner seeks to invoke the jurisdiction of this Court on the basis of asserted conflicts between the decision of the Court of Civil Appeals and prior decisions of this Court.

In order for this Court to have jurisdiction under subdivision 2 of Art. 1728, V.A.T.S., the asserted conflict must not only be upon a question of law material to the decision in the case, but also such conflict must appear on the face of the opinion. Dockum v. Mercury Insurance Company, 134 Tex. 437, 135 S.W.2d 700; State v. Wynn, 157 Tex. 200, 301 S.W.2d 76. It does not do so here.

The Motion for Rehearing is overruled.