author: PALMORE, Chief Justice.

text:
    Larson E. TILFORD et al., Appellants, v. Lee A. GARTH, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Henry V. B. Denzer, Hogan, Taylor, Denzer & Bennett, Louisville, for appellants.
    Charles M. Leibson, Charles E. Duncan, Louisville, for appellee.
   PALMORE, Chief Justice.

Shortly after midnight of June 25-26, 1963, the appellee, Garth, a night watchman, left his place of employment at Cooke Chevrolet Company in Louisville to have a late lunch at a hamburger stand. He drove his car westwardly along an alley running parallel with and 210 feet south of the south line of Breckenridge Street and, as he attempted to cross Third Street from east to west, was struck on the right side of his car by an automobile being driven southward on Third Street by the appellant Larson Tilford. Garth was injured and Francis Price, a passenger in the Tilford vehicle, was killed.

This negligence action was brought by Garth against Tilford, and Tilford counterclaimed. Price’s administratrix intervened against both, whereupon Garth and Tilford cross-claimed against each other for contribution. In due course a jury found that Tilford’s negligence was the sole cause of the accident and awarded damages to Garth and the Price estate. Tilford has settled with the Price estate but appeals from the judgment against him in favor of Garth. He makes two contentions, (1) that Garth was contributorily negligent as a matter of law, and (2) that the trial court erred in instructing the jury that it was Tilford’s duty to stop when the traffic light at Third and Breckenridge turned from green to yellow for vehicles on Third Street.

Third Street is a one-way street for southbound traffic. It consists of four 10-foot lanes, which for convenient reference may be numbered from 1 to 4, east to west. The outer lanes, 1 and 4, were used for parking and the inner lanes, 2 and 3, for driving.

Breckenridge is a one-way street for westbound traffic. Traffic at the intersection of Third and Breckenridge is controlled by lights facing north on Third and east on Breckenridge.

According to Garth’s evidence, as he reached the intersection of the alley with the east sidewalk of Third Street he stopped to let some pedestrians go by, after which he moved forward and stopped again when the front of his car was somewhere in lane 1 of Third Street, the easterly parking lane. From this point he could see the traffic light that faced east on Breckenridge at Third. It was red, meaning that Third Street traffic was free to come through the intersection, so he waited until it turned green for Breckenridge. Observing no vehicles approaching on Third Street in or south of the intersection, and none turning onto Third from Breckenridge, he then started forward intending to continue along the alley as it extended westwardly on the other side of Third. He looked again at about the time the front of his car reached the middle of Third Street, and at this moment he saw the Tilford car approaching from the north in lane 3 at great speed and so near to the traffic light at Third and Breckenridge that he realized it could not stop at the intersection. He pressed down on the accelerator in effort to spurt across and out of the way, but his car did not respond, and rolled on at a slow speed. In a very brief instant he was struck by the Til-ford car in lane 3.

Tilford said that as he was going south on Third Street in lane 3 he was driving at about 35 m. p. h., which was the legal speed limit, and that when he came within 30 to 45 feet of the intersection at Breckenridge' the traffic light changed from green to yellow. Being too close to stop, he accelerated his automobile in an effort to go through before the light turned red. As he passed through the intersection (by his own admission, exceeding the speed limit) he looked to the left for vehicles that might be entering from Breckenridge and then looked ahead and saw Garth’s automobile moving out into Third Street from the alley. He applied his brakes but it was too late to avoid the collision. He left skid marks about 15 feet in length.

Tilford’s first contention (that Garth was negligent as a matter of law) is based on our decisions in Vaughn v. Jones, Ky., 257 S.W.2d 583 (1953); Couch v. Hensley, Ky., 305 S.W.2d 765 (1957); Chambliss v. Lewis, Ky., 382 S.W.2d 207 (1964); Louisville & Nashville Railroad Co. v. Fisher, Ky., 357 S.W.2d 683 (1962) ; Louisville & Nashville Railroad Co. v. Dunn, Ky., 380 S.W.2d 241 (1964); and Cincinnati, New Orleans & Texas Pacific Railway Co. v. Ferguson, Ky., 385 S.W.2d 947 (1965); the latter three being highway-railroad intersection cases. To round out this line we might add Hargadon v. Louisville & Nashville Railroad Co., Ky., 375 S.W.2d 834 (1964), and Shewmaker v. Louisville & Nashville Railroad Co., Ky., 403 S.W.2d 283 (decided May 27, 1966), two more highway-railroad intersection cases; and Riggs v. Miller, Ky., 396 S.W.2d 69 (1965); Metcalfe v. Hopper, Ky., 400 S.W.2d 531 (1966), and Davidson v. Davidson, Ky. (decided June 17, 1966), three more highway intersection cases.

In all of those cases there was a collision between vehicles using intersecting thoroughfares, highway or railroad. In all of them but Shewmaker and Metcalfe the driver of the one entering or attempting to cross the superior road was held negligent as a matter of law. In all of the non-railroad cases but Metcalfe this negligence was held as a matter of law to have been the sole cause of the accident. They all focus on one simple proposition, that if the motorist on the inferior road has plenty of time and opportunity to see the vehicle on the superior way and to observe the rapidity with which it is approaching, then in the absence of some special exculpatory circumstance he cannot get hit without being careless. Whether that carelessness is the only proximate cause depends on whether the other driver has reasonable time and opportunity to avoid the collision after he is able to apprehend the negligence of the first motorist. Thus in Metcalfe, considering the amplitude of distance between Met-calfe and the intersection at the time a jury could reasonably find he should have realized that Hopper was going to come through, we held it was for the jury to say whether Metcalfe also was negligent. On the other hand, in such cases as Vaughn, Couch, Chambliss, Riggs, and Davidson the speed and proximity of the vehicle on the superior highway when the other one entered made it obvious that the driver with the right-of-way did not have time to avoid the collision.

It is readily apparent that Garth’s reliance on the traffic signal at Third and Breckenridge is a distinguishing feature between this case and those we have cited. Tilford argues that the traffic light was for persons and vehicles using the intersection and that Garth had no right to rely on it. We are unable to agree. It should not be forgotten that by definition ordinary care is that which an ordinarily prudent person would exercise under similar circumstances. We have no hesitation in affirming that under the circumstances of this case an ordinarily prudent person would have done just what Garth says he did. If he had admitted that he saw the Tilford car nearing the intersection at a high rate of speed before he got out into the middle of Third Street, at a time when he could have stayed out of the way, the Vaughn, Couch, Cham-bliss, Riggs and Davidson decisions would have been applicable. But he did not admit that. He said that when he started forward the second time there were no cars between him and Breckenridge Street, or within the intersection, or approaching closely to the intersection. He did see the lights of approaching traffic, among which must have been the Tilford car, but insisted they were some distance north of the intersection. The jury was authorized to believe all of this. And if it was true, he had no reason to anticipate that someone would bolt through the red light and create an immediate hazard.

On the remaining point of contention it could be argued with some force that Til-ford was negligent as a matter of law, in which event an error in the instructions outlining his duties would not have been prejudicial. As it is, however, we are of the opinion that the particular instruction in question was not erroneous. By stipulation it was introduced in evidence that Louisville City Ordinance 323.01(b) reads as follows :

“b. Yellow alone or ‘Caution’ when shown following the green or ‘Go’ signal: Vehicular traffic facing the signal shall stop before entering the nearest crosswalk at the intersection.”

Unless there is a statute or ordinance to the contrary, the yellow light is nothing more than a warning that the signal is about to change. Brockie v. Shadwick, Ky., 396 S.W.2d 63 (1965) j Johnson v. Berry, Ky., 405 S.W.2d 552 (decided July 1, 1966). Its generally understood purpose is to make sure that the approaching motorist has no excuse for breaking the law.

This being so, the requirement of the Louisville ordinance is, to some extent at least, self-defeating, and for that reason and for the sake of uniformity it should be amended. We are unwilling to say, however, that it is so unreasonable as to be void, or that it must be construed to mean something less than what it says. The same situation prevails, of course, where signals change from green to red without the intervention of a cautionary yellow light.

Having stated accurately the law of Louisville, the instruction cannot be held erroneous.

The judgment is affirmed.

      . In Brockie the pertinent subsection of the Louisville ordinance was not properly introduced.


source: Caselaw Access Project

license: Public Domain

text:
    Arthur C. HERMAN and General Tire Company, Inc., of West Kentucky, Appellants, v. Elvin C. JACKSON, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.

      Robert B. Reed, Joseph S. Freeland, Pa-ducah, for appellants.
    David R. Reed, James E. Moore, Padu-cah, for appellee.
   PALMORE, Chief Justice.

This is a proceeding in which the trial court was required to unravel the affairs of two men who had conducted a garage business for 10½ months without ever reaching a mutual understanding as to the nature and terms of their business relationship. Both are dissatisfied with the judgment, and they appeal.

The appellant Herman was president and sole stockholder of his corporate co-appellant, General Tire Company of West Kentucky, which was engaged in the tire business. The corporation is the real party in interest (Herman having acted at all times in a representative capacity), but for convenience we refer to them in this opinion as one. Jackson, the appellee and cross-' appellant, operated a garage. They agreed to merge. Jackson moved all of his tools and equipment into Herman’s place of business, which was a building recently purchased by Herman and his wife and rented from them by the tire company. Other tools and equipment were acquired and several used cars were purchased for resale during the 10i/2-month period the arrangement lasted.

It is agreed that Jackson was to devote full time to the garage phase of the business and receive $125 per week plus half of its profits. Nothing was said as to how the profits would be figured or how the various expenses other than Jackson’s salary would be allocated between the tire and garage departments. Jackson’s equipment was encumbered by a $7,333.36 mortgage debt, $3,666.68 of which (11 installments of $333.33 each) was paid by the company and charged to the garage account during the 10½ months, leaving an unpaid balance of $3,666.68 when Jackson and Herman parted company. During the same period a 1962 model International truck wrecker was purchased against the garage account and floor-planned for $3,450, $3,090 of which remained unpaid at the end. Jackson took this wrecker with him when he left, and continued making the payments on it as they fell due under the floor plan.

Jackson began the litigation with a claim and delivery against Herman and the tire company by which he regained possession of the tools and equipment, with replacements, that he had brought into the business. He alleged that the relationship had been a partnership, and by amended complaint claimed that the partnership had earned profits of $15,000 and demanded half of that amount plus half the value of the tools and equipment and used car inventory retained by the tire company. Herman and the tire company denied that a partnership had ever existed and by counterclaim alleged that Jackson had sold and transferred his tools and equipment to the tire company in consideration of its assumption of the $7,333.36 balance due on his mortgage note. The tire company demanded damages for detention of the property retaken by Jackson or, if it should be determined that there was a partnership, a dissolution and disposition of the assets.

A few days after Jackson had filed his claim and delivery suit the tire company brought a similar action against Jackson seeking possession of the International truck wrecker. The two proceedings eventually were consolidated. The sheriff’s return in the tire company’s claim and delivery action indicates that the wrecker was taken from Jackson, but from the testimony it appears that he still has it.

After hearing the evidence the trial court made findings and entered a judgment determining in substance that there never had been a meeting of the minds and that the parties should be restored as nearly as possible to the state existing at the beginning. Jackson was given all the tools and equipment he had repossessed and was permitted to keep the International truck wrecker, but was required to assume payment of the unpaid balances of the floor plan debt against the wrecker and the mortgage debt against the other equipment. He was required also to pay the tire company $55, half the difference between the value of the wrecker ($3,200) and the debt against it ($3,090). The tire company was permitted to retain the used car inventory and the tools and equipment remaining in its possession.

We are confident that no one involved in this case would suggest that the finding of “no contract” was clearly erroneous. In the absence of some special circumstance justifying a denial of relief, a person who has been unjustly enriched at the expense of another must make restitution. Cf. Restatement of Restitution, § 1. More specifically, and subject to exceptions not pertinent in this instance, where one person has in good faith conferred benefits upon another under the mistaken belief that there is a contract between them requiring him to do so, or in anticipation of such a contract, the recipient is under a duty to restore the goods “to the extent of their value or their proceeds” (Restatement of Restitution, § 56, Comment b) or, in the case of services rendered, to pay the value of the services. Cf. Restatement of Restitution, §§ 15, 39, 40, 47, 56, 155. That is the broad principle by which the correctness of the judgment in this case must be measured.

When the venture began, Jackson owned the tools and equipment (including a wrecker mounted on a Ford chassis) which have been awarded to him by the judgment. However, he owed the bank $7,333.36, and when the venture ended this debt had been reduced by $3,666.68. That $3,666.68 was paid by the tire company but was charged against the garage account. Hence it was paid half by Jackson and half by the tire company. To say it another way, Jackson’s net worth was enhanced to the extent of $3,666.68 by the joint efforts of himself and the tire company. The tire company is therefore entitled to restitution in the amount of $1,-833.34.

The cost of the International truck wrecker and improvements placed on it likewise were charged to the garage account, so the wrecker was owned equally by Jackson and the company. The trial court found it had a value of $3,200, and Jackson was required to assume the $3,090 debt against it. Thus he received an asset worth $110, half of which had been contributed by the company. The trial court’s award of $55 to the tire company for this item was correct.

According to the evidence, several used cars were purchased by the company and charged to the garage account. Hence they were joint acquisitions. Two of them, a 1948 model International truck and a 1956 model Chevrolet, were sold before the break-up and, presumably, the proceeds were credited to the garage account. Of those remaining on hand, a 1963 model Rambler, 1956 model Cadillac and 1953 Buick were later sold by the company for $1,400, $495, and $7.50, respectively, total-ling $1,902.50. A 1953 model Cadillac costing $222.57 (and later traded off) and a 1953 model Chevrolet costing; $76 remained in the hands of the company. Jackson is entitled to half these amounts, or a credit of $1,100.53.

At about the same time Jackson went with Herman and the company he sold a compressor for $250, which amount was received by the company and credited to the garage account. This money was consumed for the joint benefit of Jackson and the company, so he is entitled to $125 as the value of the benefit to the company.

This brings us to the subject of profit and loss. Jackson claims he should not be charged for any of the overhead expenses, such as rent, office salaries, insurance, utilities and advertising, because there never was any agreement in that respect. This argument overlooks the fact that the remedies to be applied by a court in a case of this kind are not based on agreement, but on the absence of agreement. All of these items of overhead represent benefits contributed by the company. To disallow a fair portion of them as proper charges against the garage account would deny restitution to the company. Conversely, their allowance effects such a restitution. The $125 per week paid to Jackson for his services falls in exactly the same category on the other side of the case.

During the course of the litigation the parties consented to have an independent audit made, and although they did not agree to be bound by it, certainly it may be considered in support of the findings and judgment. What the record actually contains instead of an audit report is simply an unsigned income statement that has been marked “Audit,” but whatever it is and whether or not the parties agree with it, they do not question its authenticity. Unfortunately, the person who prepared it did not testify, and there is no evidence from which the supporting details and accounting methods can be ascertained. We shall assume, however, as the trial court was entitled to assume, that the statement is correct, subject only to modification of the ending used car inventory figure as hereinafter mentioned.

The income statement shows that over the period of 10½ months the garage department grossed $88,054.72 and wound up with a net loss of $1,176.99. The garage department is charged with half the overhead expenses. In the absence of evidence to the contrary, this allocation of expenses between the garage department and the tire department appears proper.

The amount shown for ending used car inventory is $1,212.50. Probably it represents cost, but for purposes of restitution equity requires that it be treated in terms of actual (market) value insofar as it can be determined. As we have seen, three of these vehicles were later sold for $1,902.50, and the cost of those retained was $298.57, for a total of $2,201.07. Using that figure in lieu of $1,212.50 (a difference of $988.57) decreases the net loss from $1,176.99 to $188.42.

Since Jackson did not bring any cash into the venture (other than the $250 receipt from sale of the compressor, for which, as we have said, he is entitled to a credit of $125), the $188.42 deficit necessarily was absorbed by the tire company and is in the same category, but on the other side of the case, as the $250 contributed by Jackson through the sale of his compressor. The tire company therefore is entitled to restitution in half the amount of this contribution, or $94.21.

No evidence was introduced to show the value of the miscellaneous tools and equipment purchased against the garage account and retained by the tire company. The burden was on Jackson to prove it, and as he failed to do so there is no basis on which the court could adjudge any monetary restitution in that respect.

Summing up, the restitution due the respective parties under the evidence and findings of the trial court is as follows:

The briefs are devoted to principles of contract, recission, and partnership which, in view of the finding of no contract, are not apposite to the controversy and need not be discussed.

The judgment is affirmed on the cross-appeal and reversed in part on the appeal with directions that the award in favor of the tire company be increased from $55 to $757.02.


author: DAVIS, Commissioner.

text:
    Robert A. CHICK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Claude Asbury, Catlettsburg, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, W. B. Arthur, Commonwealth’s Atty., Ash-land, for appellee.
   DAVIS, Commissioner.

Robert A. Chick, appellant, is in custody in Boyd County, pending the imposition of sentences upon him relating to his convictions in the Boyd Circuit Court which occurred in 1943. He is also being held awaiting trial upon two indictments for offenses alleged to have been committed in 1943, namely, his own escape from jail after conviction (but before sentencing) in 1943, and for aiding and abetting another prisoner to escape from jail at that same time.

The present appeal stems from the denial of appellant’s petition for writ of habeas corpus, the denial of a motion to vacate pursuant to RCr 11.42, and a denial of his motion to set aside the 1943 convictions as void.

It is patent that RCr 11.42 can afford appellant no relief because appellant is not “[a] prisoner in custody under sentence who claims a right to be released on the ground that the sentence is subject to collateral attack.” Appellant has not been sentenced, hence is not within the purview of RCr 11.42.

The 1943 indictments against appellant charged him with (1) forgery and (2) uttering a worthless check. KRS 434.130; 434.070. He entered a guilty plea to both indictments and his punishment was fixed by a jury at imprisonment for five years on the forgery indictment and two years on the worthless check charge. Appellant escaped from the Boyd County jail before sentence was pronounced in the two convictions. The escape, coupled with his alleged activities with respect to another escaping prisoner, led to the two pending indictments incident to that episode.

Appellant has had a varied series of experiences since his escape in 1943. Shortly after the escape he entered the armed forces of the United States, from which he was honorably discharged. However, he became embroiled in criminal activity in Texas and was ultimately sentenced to imprisonment for life in that state. He has been released from his Texas confinement and returned to Kentucky to face the 1943 charges against him.

Appellant bases his attack upon the two convictions upon twelve asserted errors:

1. He was not given a preliminary hearing.
2. He was not advised of his right to counsel.
3. He did not have counsel.
4. He was not confronted by his accusers.
5. The jailer told him to cooperate and the judge would be lenient.
6. He was not given a copy of the warrant on which he was held.
7. He entered a plea of guilty without advice of counsel.
8. He was never given a copy of the indictment.
9. The Commonwealth’s Attorney told the jury they had to do something with such people coming into Boyd County and committing these crimes.
10. He did not know the consequences of pleading guilty and no attorney advised him of the consequences.
11. He filed a motion to dismiss February 8, 1950.
12. He filed a motion to dismiss April 13, 1965, which the circuit court refused to rule on because he was not personally before the court.

In addition to the formidable list of “errors,” which are set out in substantially the language of appellant, there are other reasons advanced by appellant which he considers sufficient to warrant his immediate release from custody. We have examined all of these reasons and find that none of them is sufficient to afford the relief sought.

In treating the twelve charges of error as to the original convictions, it is manifest that many of them are not proper grounds for setting aside the convictions. It is plain that numbered grounds 1, 4, 5, 6, 8, 9, 11 and 12 afford no basis for setting aside the original convictions. Cf. Carson v. Commonwealth, Ky., 382 S.W.2d 85, cert. den. 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed.2d 825; Benoit v. Commonwealth, Ky., 402 S.W.2d 706; King v. Commonwealth, Ky., 387 S.W.2d 582.

Grounds 2, 3, 7 and 10 relate to ineffective assistance of counsel. Appellant places much emphasis upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and asserts that he should have had counsel at every critical stage of the prosecutions. The principles of Es-cobedo affect only those cases in which the trial began after June 22, 1964. Johnson v. New Jersey, (dec. June 20, 1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. This leaves for inquiry the allegation that appellant had no counsel upon his trial.

The trial orders incident to the 1943 convictions reflect that the appellant appeared “with counsel” and entered pleas of guilty in each case. At an evidentiary hearing in the present proceeding the trial judge heard testimony from the appellant to the effect that he did not, in fact, have counsel, the recitations of the orders to the contrary notwithstanding. The trial judge concluded that the appellant’s unsupported statement was not sufficient to impeach the verity of the trial orders made at the very time of the trial. Since the transcript of the evidentiary hearing is not in the record before us, we could affirm on the principle that we will assume that the transcript supports the findings of the trial judge. However, we conclude that the face of the record is adequate to sustain the findings of the trial court in this respect. Cf. Williams v. Commonwealth, Ky., (dec. July 1, 1966) 405 S.W.2d 17; Moore v. Commonwealth, Ky., 394 S.W.2d 931; Brown v. Commonwealth, Ky., 396 S.W.2d 773.

Appellant contends that Kentucky forfeited its jurisdiction of him, with respect to the original convictions as well as in the pending escape indictments. This contention is based on the fact that appellant was arrested in Nevada in 1949, apparently upon an “unlawful flight to avoid prosecution” charge. He was then in federal custody, and it was made known that Texas and Kentucky authorities “wanted” him. Texas authorities obtained him, and he was sentenced to imprisonment for life on the Texas charge. A detainer was placed against him by Kentucky authorities incident to the matters now before us. This, says appellant, forfeited Kentucky’s jurisdiction. He relies on Davis v. Harris, Ky., 355 S.W.2d 147; Jones v. Rayborn, Ky., 346 S.W.2d 743, and Thomas v. Schumaker, Ky., 360 S.W.2d 215. It will be noted that those decisions are premised upon KRS 440.330, which directs that Kentucky’s Governor may surrender “ * * * any person found in this state” * * * to another demanding authority without forfeiting Kentucky’s right of prosecution. It was the failure to observe the statutory procedures in the three cited cases that worked forfeiture of Kentucky’s right of prosecution. But those three prisoners were persons “found in this state,” and whose release was effected by local authorities, not the Governor. In the case at bar the appellant was not “found in this state” — he was in Nevada, when he was transferred to the Texas authorities. In such case the provisions of KRS 440.330 had no application, nor do the cases just cited. It should be noted that KRS 440.330 was enacted in 1960 as a part of the Uniform Criminal Extradition Act; it was not effective in 1949 anyway, so its provisions had no effect upon the actions of which appellant complains.

Even if it could be thought that the 1943 convictions were void, the appellant is in legal custody. He is legally detained to answer the escape charges; he is legally detained as to the original 1943 charges also, since the validity of his indictment on those charges remains unchallenged.

The judgment is affirmed.


author: DAVIS, Commissioner. PALMORE, Chief Justice

text:
    James WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.
    James Williams, pro se.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

James Williams, having been convicted of armed robbery and being presently confined at Eddyville Penitentiary serving a life sentence, filed a motion under RCr 11.-42 seeking to vacate the judgment of conviction. The motion was overruled without appointment of counsel or an evidenti-ary hearing. This appeal tests the propriety of the order denying the motion to vacate.

The grounds for vacating the judgment, as asserted in the RCr 11.42 motion, are the same grounds urged here for reversal. They are: (1) effective assistance of counsel upon the original trial was denied, because (a) the lawyer appointed for appellant was so appointed only two or three hours before the trial started; (b) the court-appointed lawyer failed to object to “very serious errors * * * of a constitutional nature,” and (c) the court-appointed counsel “refused to appeal the case, or make a motion for a new trial;” (2) appellant was denied an examining trial.

Official orders of the original trial reflect that on November 16, 1953, the defendant-appellant appeared in open court, waived arraignment and entered a plea of not guilty. At that time, according to the order, it appearing that defendant was without funds, Hon. Kelsey E. Friend, a regularly practicing attorney at the Pike County bar was appointed to represent him. The trial date was set for December 8, 1953. On the latter date, as shown by trial order in the record before us, the trial was had, and Mr. Friend appeared for and represented the defendant-appellant.

In these circumstances, we are of the view that the “file” of the original trial, viz., the orders which recite that counsel was appointed for this appellant on November 16th, prior to a trial on December 8th, refute the bald assertion that counsel was not appointed until just two or three hours before the trial. See Moore v. Commonwealth, Ky., 394 S.W.2d 931, in which we cited with approval the principle enunciated in Rayborn v. United States, 6 Cir., 251 F.2d 950, that mere unsupported allegations of lack of counsel will not be permitted to contradict plain, unambiguous court records. Of like import is Brown v. Commonwealth, Ky., 396 S.W.2d 773. In the present case the appellant does not deny that the trial records are correct, hence there was no error in refusing a hearing on the asserted lack of time for counsel to prepare the defense.

Neither is there merit in the vaporous claim that appointed counsel failed to duly object to “very serious errors * * * of a constitutional nature.” To say the least, if appellant is in good faith in making such an allegation he should be in position to say what errors he had in mind. Barnes v. Commonwealth, Ky., 383 S.W.2d 342; Sharp v. Commonwealth, Ky., 385 S.W.2d 317; Brown v. Commonwealth, Ky., 397 S.W.2d 160.

Appellant’s third assault on the judgment is that his court-appointed counsel “refused to appeal the case, or make a motion for a new trial.” We think the principle of Tipton v. Commonwealth, Ky., 398 S.W.2d 493 governs here. It is noted that appellant does not aver any substantive ground upon which he deems that a motion for a new trial or an appeal would have been successful. The case at bar is distinguishable from Hammershoy v. Commonwealth, Ky., 398 S.W.2d 883 in that Hammershoy “set forth certain substantive grounds of error and alleged that he had been deprived of an appeal because his court-appointed counsel failed to perfect it after agreeing to do so.” Id., 398 S.W.2d at 884. We do not distinguish Hammer-shoy on the basis of the alleged agreement of counsel to appeal, but on the basis of the averment of “substantive errors” in the original trial, the review of which (it was claimed) had been foreclosed by the court-appointed counsel’s failure to perfect an appeal.

Our position in this respect is not in conflict with Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, and Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892. In Douglas the defendants, both indigents, had discharged the public defender because of a claimed conflict of interest. They sought postponement to obtain other counsel, but this motion was denied, and upon their trial without counsel they were convicted of 13 separate felonies. They requested and were denied the right to counsel on appeal. Their appeal as of right to the California District Court of Appeal resulted in the affirmance of the convictions. Among numerous grounds for reversal advanced by Douglas and his co-defendant, Meyes, was the failure to afford them counsel on their appeal to the District Court of Appeal of California. In rejecting that argument for reversal the District Court of Appeal of California observed that its examination of the trial record convinced the court “that no good whatever could be served by appointment of counsel.” See People v. Douglas, 187 Cal.App.2d 802, 10 Cal.Rptr. 188, 195. This ruling of the California court was based on a California rule authorizing appellate courts of that state to make an independant determination as to whether it would be advantageous to appoint counsel on appeal for an indigent. Since that rule left the indigent to the discretion of a state agency (court) as to whether he could or should have an appeal with counsel, it was struck down as violative of the guaranties of equal protection and due process. Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.

In Lane v. Brown, 372 U.S. 477, 83 S. Ct. 768, 9 L.Ed.2d 892, the Indiana law was held unconstitutional which reposed in the public defender the sole discretion as to whether a free transcript should be furnished the indigent on appeal. In Lane there were numerous substantive errors asserted.

If the present appellant had perfected an appeal from the original trial this court could have (and should have) disposed of it perfunctorily for his failure to have asserted substantive prejudicial error. RCr 9.24. It would be anomalous to require a hearing in this proceeding, with a view to permitting a belated appeal, in the face of an absence of any asserted error to be reviewed even if the appeal were taken.

We are bolstered in our conclusion by Miller v. United States, 9th CCA, 1964, 339 F.2d 581. In Miller, decided in full light of Douglas v. People of State of California, supra, and Lane v. Brown, supra, the U. S. Court of Appeals held that the District Court properly denied post-conviction relief without a hearing. A prime basis urged for the relief was Miller’s claim that his court-appointed counsel “ * * * [had] not honored his assurance to file timely notice of appeal.” In disposing of that contention the U. S. Court of Appeals said:

“Appellant in his moving papers also states that he acquainted both the trial court and trial counsel with his view ‘that plain errors and harmful prejudice permeated his jury trial.’ He has not, however, beyond this conclusory statement disclosed to the Court below the nature of the error and prejudice which by appeal he proposed to correct. The statement itself does not amount to an allegation that specific error had been committed. Rivera v. United States (9 Cir. 1963) 318 F.2d 606, 608. There was no way in which the District Court could determine the existence of prejudice or judge the substantiality of appellant’s claim.
“Under these circumstances appellant is not entitled to a hearing under § 2255. Wilson v. United States (9 Cir. 1964) 338 F.2d 54 [1964].”

There is no merit in the claimed lack of an examining trial, inasmuch as there is no showing or assertion that any prejudice to appellant’s rights at his jury trial resulted from the failure to accord him an examining trial. Roark v. Commonwealth, Ky., 404 S.W.2d 22 (Decided June 10, 1966).

The judgment is affirmed.

PALMORE, Chief Justice

(dissenting).

After dwelling so much on what happened in the lower courts in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the majority opinion seems to misapprehend the basis on which the Supreme Court reversed the case. It was held in Douglas that an indigent defendant cannot be deprived of counsel on appeal even when the court from which he desires to take the appeal makes a determination that he has no meritorious grounds for appeal. Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), held the same to be true when the determination is made by a public defender. The significant point of these two decisions is that the right to an appellate review, with counsel, does not depend on the existence of meritorious grounds.

Since, therefore, a convicted defendant need not have meritorious grounds in order to avail himself of the right to counsel on appeal, it is absurd to say that he must nevertheless allege that he did have such grounds in order to show that he has been deprived of that right. Yet that is exactly what the majority opinion says he must do. For that reason I think it is incompatible with Douglas and Lane. I am afraid our reluctance to face up to overruling the dictum in Tipton v. Commonwealth, Ky., 398 S.W.2d 493 (1966), may result eventually in the necessity of overruling both it and this case.

Douglas and Lane were not even discussed in Miller v. United States, 339 F.2d 581 (9th Cir. 1964). Needless to say, I believe that opinion also is unsound.

Sometimes I feel that we are too restrictive in our application of the principles laid down by the Supreme Court because they do not meet with our unqualified approval. Whether we like them, however, is irrelevant. Our only task is to determine whether they apply.

Since I believe the principle of Douglas and Lane apply to this case I dissent from the majority opinion.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Lawrence Gray HOWARD et al., Appellees.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Robert Matthews, Atty. Gen., H. C. Smith', C. E. Skidmore, Frankfort, for appellant.
    Earl R. Cooper, Marcus Mann, Salyers-ville, for appellees.
   MILLIKEN, Judge.

The Department of Highways has appealed this $5,000 judgment for 1.23 acres condemned for the construction of the Eastern Kentucky Turnpike on the ground that it was entitled to a directed verdict or judgment non obstante veredicto because there was insufficient evidence of probative value to support the verdict. Both the Department and the landowners had appealed the $2,000 judgment of the County Court for the taking of the property. The land taken was hill land on which a 3-room frame tenant house was situated.

The only competent appraisal witness for the landowners estimated the before-value of the 60.7-acre farm at between $48,000 to $50,000 and its after-value at $42,000 or $43,000, but he reached his after-value by valuing what was taken and deducting it from the before-value rather than conforming to the rule laid down in Commonwealth, Department of Highways v. Sherrod (1963), Ky., 367 S.W.2d 844, of ascertaining the value of the part taken by deducting the after-value of the whole tract from its before-value if the latter were larger. The Sherrod method permits the jury to credit the State with any increase in value attributable to the improvement, while the method used by the witness in this case was prejudicial to the State because it could get no credit for improvement. Because we are constrained to reverse the judgment for this reason, we do not find it necessary to discuss in detail the other ground raised. Suffice it to say, the Department was not entitled to judgment non obstante veredicto. McDermott v. Byrley Supply Company, 234 Ky. 670, 28 S.W.2d 988.

The judgment is reversed.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Joseph LOVELL et al., Appellees.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Thomas S. Waller, Richard C. Roberts, Waller, Threlkeld & Whitlow, Paducah, for appellant.
    Frank D. Berry, Madisonville, James Gordon, Gordon, Gordon & Logan, Madi-sonville, for appellees.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, appeals from a judgment awarding the appellees approximately $18,000 as damages in the condemnation of a strip of land of about eight acres, through the appellees’ farm. The taking, for a nonaccess highway, severed the farm into two tracts. One, of 18 acres, contains all of the improvements, none of which was damaged. The other tract, of 74 acres, which was landlocked by the taking, had been used mainly for pasturage, with a few acres being under cultivation and a few in the soil bank program.

We agree with the Commonwealth’s contention that the award of damages is excessive. Even accepting the testimony for the appellees that the landlocked 74 acres were practically worthless after the taking (which is hard to accept because the evidence shows that the appellees have continued to use this tract for pasturage, cultivation and soil bank credit), we cannot give credence to the proposition, inherent in the damage estimates of the appellees’ witnesses, that prior to the taking the 74-acre tract, plus the eight acres being taken by the condemnation, constituted four-fifths of the value of the entire farm. The entire farm was purchased for $5,000 only six years before the condemnation. It is true that improvements were made, but a substantial part of the improvements were to the 18-acre parcel containing the buildings. It is unbelievable that the part of the improving done to the bare land in the rest of the farm increased its value from a small proportionate part of $5,000 to almost $18,000.

We think that the jury accorded more weight and value -to the testimony for the appellees than its maximum probative value warranted, and that the award is palpably excessive. Cf. Commonwealth, Dept. of Highways v. Arnett, Ky., 390 S.W.2d 187.

Actually, the only witness who estimated the difference in market value as high as $18,000 was the appellee Joseph Lovell, the owner of the land. His testimony should have been stricken because it was made reasonably clear on cross-examination that his purported estimates of market value were in reality only his idea of who much he had been damaged and how much money he would like to have. See Commonwealth, Dept. of Highways v. McGeorge, Ky., 369 S.W.2d 126.

The two expert witnesses for the appellees estimated the difference in value at $16,500 and $16,000. However, the difference between the before value of one and the after value of the other would amount to $21,000. In some circumstances the jury, might properly take the before value of one witness and the after value of another. See Chitwood v. Commonwealth, Dept. of Highways, Ky., 391 S.W.2d 381. But in the instant case the witnesses were crowding the excessive line to begin with, and any damage figure higher than their individual estimates of difference in value, reached by a combination of their estimates of before and after values, would clearly be over the line.

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

STEWART, J., dissenting.


text:
    Martha M. McLAUGHLIN et al., Appellants, v. Frederick A. McLAUGHLIN, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.

      Fielden Woodward, Woodward, Hobson & Fulton, Louisville, for appellants.
    J. Allen Sherman, Louisville, for appellee.
   CULLEN, Commissioner.

Martha M. McLaughlin and her attorney, Fielden Woodward, appeal from those parts of a divorce judgment which denied alimony to Mrs. McLaughlin and any fee to her attorney, granted child-support allowances of $160 per month for each of five children until age 21 and awarded the husband a total of $8,000 as restoration of property.

At the time of the trial Mrs. McLaughlin was 45 years old, her husband was 46, and the children were 20, 16, 13, 12 and 9. The parties were married in 1942 and the divorce was granted, to the husband, in October 1963. The custody of the children was awarded to the wife, with directions that the husband pay $160 per month for each child until reaching age 21 or becoming emancipated (one is now past 21 and another is 19). Alimony was denied on the grounds that the wife was wholly at fault and had sufficient estate of her own. A fee for her attorney was denied on the ground that she had ample estate to pay the fee. The property in the joint names of the parties, consisting of a nice dwelling house with furniture and a $12,900 note secured by mortgage, was awarded to the wife as restoration of property contributed by her, subject to the payment to the husband of $1,000 as restoration of his contribution to the house purchase and $7,000 as restoration of an indirect contribution to acquisition of the note and mortgage.

The wife’s total estate after restoration (including some securities that always have been her separate property) amounts to around $61,000. The husband has no estate at all, but earns a salary and bonuses, in an important executive position in a merchandising firm, of $30,000 per year.

As concerns the question of alimony, we think the court erred in denying it. As we read the evidence it does not warrant the conclusion that the wife was “wholly at fault” within the meaning of the rule barring alimony to a wife wholly at fault. See Coleman v. Coleman, Ky., 269 S.W.2d 730. While her conduct, consisting of excessive drinking and indulging in emotional extremes, was calculated to destroy permanently the husband’s peace and happiness, it is reasonably clear that the husband’s indifference, lack of consideration and upsympathetic attitude were contributing factors. The wife’s actions were more those of an ill person than those of one purely mean. Certainly, after 20 years of marriage and the mothering of five children, the wife should not be held to have forfeited her rights unless she is guilty of “fault” without any justification or mitigation. We think the facts here are comparable to those in Snider v. Snider, Ky., 302 S.W.2d 621, where a finding that an emotionally disturbed wife was “wholly at fault” was reversed.

It is our opinion that the lower court erred also in finding that the wife has “sufficient estate of her own,” within the meaning of KRS 403.060, as an additional ground for denying alimony to her. As hereinbefore stated, the wife has a separate estate of $61,000, including the home in Which her equity is valued at $20,000. The home (or a home) must be maintained while the children are growing up, so that portion of her estate is not a free asset to her. Even counting the house, the income reasonably expected to be receivable from her estate would not exceed $2,500 per year.

This court has construed “sufficient estate of her own,” as used in KRS 403.060, to mean that the wife’s estate must be of such character and amount as will yield income or profits sufficient for her comfortable maintenance in a style suitable to her social standing, without her being required to consume the principal. Baldridge v. Baldridge, 306 Ky. 583, 208 S.W.2d 741; Barnett v. Barnett, 292 Ky. 840, 168 S.W.2d 17; see also Francisco v. Francisco, Ky., 331 S.W.2d 279.

An income of $2,500 per year would not come near to maintaining the appellant here in the style to which she was accustomed as the wife of a man with an income of more than $25,000 per year. Regardless of that consideration we think that in any event “sufficient” is a relative term, and that in determining what is sufficient estate for the wife the husband’s income and estate must be considered. Where the husband earns $30,000 per year, the wife’s estate of $61,000 is relatively small.

It is our conclusion that the appellant wife is entitled to alimony and that an allowance of $250 per month would be proper.

With respect to a fee for the wife’s attorney it is our opinion that, for the same reasons the wife’s estate is not “sufficient” within the meaning of KRS 403.060, it is not “ample” within the meaning of KRS 453.-120. Accordingly, the husband should be required to pay the fee and upon remand of the case the trial court shall fix a suitable fee to be paid by the husband.

As concerns the support payments for the children, we think they are adequate.

As concerns the $1,000 restorable interest of the husband in- the house, we think the judgment is proper.

As concerns the $7,000 restorable interest of the husband in the note and mortgage, we encounter difficulty. The trial court found that the husband had paid $7,000 out of his earnings to reduce a mortgage which the couple had placed on a dwelling they formerly occupied in Indianapolis, which dwelling originally had been purchased debt-free with the wife’s money. The difficulty is that the evidence is not at all clear as to how much of the borrowed money went to increase the wife’s estate. (Obviously, if the husband borrowed money on his wife’s house, for his own personal use, the fact that he later paid the money back would give him no equity in the house.) There is evidence that some of the borrowed money was used to “add a room” to the house and some for a drainage system. But the husband said that “we used some of the money to purchase a car.” Under this evidence we think that the most liberal allowance that could be made to the husband would be $4,000, and we direct that the $7,000 allowance be reduced to $4,000.

(The appellant argues that the money paid on the mortgage did not come from the husband’s earnings, but we think the'evidence shows that of the total of $17,000 paid on the mortgage, $7,000 came from the husband’s earnings and the remaining $10,-000 from the proceeds of sale of a hotel property.)

The judgment is reversed with directions to enter judgment in conformity with this opinion.


author: WILLIAMS, Judge.

text:
    Clarence ROE and Benjamin Roe, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.

      J. D. Atkinson, Jr., Greenup, for appellants.
    Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., Frankfort, for appellee.
   WILLIAMS, Judge.

Appellants were arrested April 18, 1965, on their farm in Greenup County, Kentucky, and indicted on a charge of operating a nudist society without a license. At the time of the arrest both appellants, the wife of one, and their children were in the back yard in the nude preparing to begin a church service. This area was visible from the road, and there were at least four cars of “sightseers” parked along the road. Appellants had circulated an application for membership in their “church” and they had solicited people to become members, but no one had joined. A sign warning people of the nudist church had also been posted on the road to the farm. The record indicates that appellants were sincere in their belief that they had been called to establish a new church.

Appellants did not have a license to operate a nudist society nor were the premises surrounded by a 20-foot high wall as is required by KRS 232.020-030.

Appellants demurred to the indictment on the grounds that the statute upon which the indictment is based is violative of their freedom of religion as guaranteed by the Kentucky and United States Constitutions, and also that the statute denies appellants due process of law. This motion and later motions for a directed verdict by appellants were overruled and the case was submitted to a jury which found appellants guilty and fined each of them $1,000. Appellants have now appealed from that conviction.

KRS Chapter 232, reads as follows:

“232.010. As used in this chapter, ‘nudist’ means any person who displays any part of his private person naked before persons of the opposite sex, not his husband or wife, at their solicitation or with their consent, for religious or health purposes.”
“232.020. No person shall own or operate a nudist society unless he first secures a license from the Department of Revenue and pays an annual tax of one thousand dollars.”
“232.030. No person shall operate a nudist society without first building a wall twenty feet in height, made of brick, stone or cement around the premises on which the society is located.”
“232.040. Every nudist society shall be inspected by such persons and at such times as may be deemed necessary by the Attorney-General.”
“232.050 The owner, operator or other person in charge of a nudist society shall keep a register of the names and addresses of all persons who enter the society. The register shall be open to inspection at all times to the proper authorities.”
“232.990. Any person who violates any of the provisions of this chapter shall be fined not less than one thousand dollars.”

We do not reach the contention that the legislation violates freedom of religion for the reason we find it an unreasonable exercise of the police power.

The police power is an indispensable, essential attribute of sovereignty; an inherent power of the state. It is the least limitable of governmental powers, and courts have been unwilling definitely to circumscribe it. The basic standard by which the validity of all exercise of the police power is tested is that it extends only to such measures as are reasonable. It has been said that the only limitation upon the exercise of the police power is that such exercise must be reasonable. See 16 Am. Jur.2d, Constitutional Law, sections 259, et seq.

In Workmen’s Compensation Board v. Abbott, 212 Ky. 123, 278 S.W. 533, 47 A.L.R. 789 (1925), this Court said:

“* * * The right of the Legislature to declare what is a proper public policy, so as to authorize its being dealt with under the police power, seems to be limited only by the consideration that its action in the matter may not be arbitrary, but must be rested upon some tangible and reasonably clear public purpose to be served, and which has a reasonably substantial tendency to further the interest of the public welfare. * * * ”

The legislature has seen fit to include nudist societies within the realm of activities which may properly be regulated under the police power. There is no contention they do not fall within that scope. Perhaps they could have been prohibited altogether, but the fact is they were not. The question before us then is whether the statutes regulating them are unreasonable. It was held in State Racing Commission v. Latonia Agricultural Association, 136 Ky. 173, 123 S.W. 681, 25 L.R.A.,N.S., 905 (1909):

“ * * * Whether the end justifies the means is exclusively for the legislative discretion. Whether the means bear a pertinent and reasonable relation to the end may be looked into by the courts so far only as to determine the fact of pertinency and reasonableness. Only when the means adopted are manifestly unreasonable and oppressive, or bear no logical relation to the object of the legislation, are the courts at liberty to declare the act unconstitutional. * * *”

We look to the legislation under consideration. KRS 232.030 requires a masonry wall 20 feet high around the premises on which a nudist society is located. In this case the appellants were attempting to operate a nudist society on their farm. To build a 20-foot masonry wall around the perimeter of the farm would undoubtedly be prohibitive. It seems obvious to us that privacy could be obtained by the exercise of far less stringent measures.

KRS 232.020 provides that an annual license tax of $1,000 be paid before a nudist society may be owned or operated. The Attorney General is authorized to inspect every nudist society at such times as he deems necessary. The purpose of a license tax imposed under the police power is to compensate for issuing the license and for supervising the licensee. The cost of issuing a license by the Department of Revenue would be minimal, and the Attorney General’s expense occasioned by necessary inspections should not approach the amount exacted from each nudist society. It is a well-known rule of law that a license fee imposed under the police power must not be so large as to create the imputation of a revenue measure. The fee must be sufficient only to meet the expense of issuing the license and supervising any necessary regulatory measures. In City of Henderson v. Lockett, 157 Ky. 366, 163 S.W. 199 (1914), we said:

“ * * * But, where a license fee is imposed under the police power, the fee exacted must not be so large as to charge the ordinance with the imputation of a revenue-producing purpose. The fee that may be imposed under the police power is one that is sufficient only to compensate the municipality for issuing the license and for exercising a supervision regulation over the subjects thereof. Anything in addition to this amounts to a tax for revenue, and cannot be upheld as a valid exercise of the police power. What is a reasonable fee is a question of fact, depending upon the particular circumstances * * *.” ■

See also Reeves v. Adam Hat Stores, 303 Ky. 633, 198 S.W.2d 789 (1946); Martin v. City of Greenville, 312 Ky. 292, 227 S.W. 2d 435 (1950).

We note in passing that KRS 232.010, construed literally, would define as a nudist a female patient who undergoes an examination by a male physician.

A consideration of the entire legislation pertaining to nudist societies conclusively shows that the regulatory provisions set out' therein are so unreasonable as to be prohibitive. The fact that a person seeking to own or operate a nudist society must pay a $1,000 license tax each year and build a 20-foot brick, stone or cement wall around the entire premises, effectively precludes the existence of a nudist society altogether. The legislature did not see fit to prohibit the existence of nudist societies but merely sought to regulate them. Having done so, the regulations should have been reasonable. We feel they were not and, consequently, must declare the act unconstitutional.

For the reasons heretofore stated, the judgment assessing a fine of $1,000 against the appellants is void.

The judgment is reversed.


text:
    COMMONWEALTH of Kentucky, Appellant, v. Troy MULLINS and Marion Martin, Appellees.
    Court of Appeals of Kentucky.
    July 1, 1966.

      Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, Cordell H. Martin, Special Commonwealth Atty., Hindman, for appellant.
    John Y. Brown, Brown, Sledd & McCann, Lexington, for appellees.
   WILLIAMS, Judge.

The appellants Troy Mullins and Marion Martin were tried in the Floyd Circuit Court for murder on November 22, 1962. The jury was unable to reach a decision. A second trial was had on April 24, 1963, which resulted in a verdict of guilty, with punishment set at two years and one day in the State Penitentiary. That judgment was appealed to this Court, 375 S.W.2d 832, found to be erroneous, reversed, and the case was remanded to the Floyd Circuit Court for a new trial. A special judge was designated to try the case in April 1964, but he became ill and the trial was not had. Honorable Coleman Wright was then appointed special judge and on September 16, 1964, the trial under consideration here began. At the conclusion of the introduction of all the evidence the attorney for appellees moved the court for a directed verdict. The motion was sustained and, pursuant to the court’s instructions, the jury returned a verdict of not guilty.

In its appeal from the judgment entered on the verdict of not guilty the Commonwealth asks this Court to re-examine the rationale of the principle that an accused person may not be twice put in jeopardy for the same offense. The argument is that jeopardy should not attach until the accused has had a fair trial. The theory advanced is that jeopardy is single and continuing until such time as a fair trial has been accomplished. It is said that the trial judge has wielded the most awesome power of which he is capable — the power to absolve an accused of guilt, and that absolute power can no more be tolerated when invoked against society in favor of a criminal defendant than when invoked in favor of society and against a criminal defendant.

Section 13 of the Kentucky Constitution provides:

“No person shall, for the same offense, be twice put in jeopardy of his life or limb, * *

Long ago this Court decided that an accused person has been put in jeopardy after a jury has returned a verdict of not guilty, regardless of the fact the verdict was the result of an erroneous peremptory instruction given by the trial court. In Commonwealth v. Ball, 104 S.W. 325 (1907), the trial court, on motion of the defendant, instructed the jury to find the defendant not guilty, which was done. This Court found that the ground upon which the instruction was based, that the court lacked jurisdiction, was not well founded, and that the court erred in giving the peremptory instruction. It was further held that an actual acquittal, though upon an improper ground raised by the defense, is a former jeopardy and a bar to further prosecution. This Court said:

“ * * * The Constitution guarantees the defendant counsel in the management of his case. The right to the assistance of counsel would be a vain thing if the counsel might not raise such questions as they deemed proper. The guaranty that a person shall not be put twice in jeopardy would amount to but little if he could be tried a second time wherever his acquittal was due to an error of the court committed upon his motion. It is immaterial that the circuit judge gave the peremptory instruction on the ground that the court was without jurisdiction. We cannot go into the reasons which actuated him. The fact is that under the instructions of the court the jury have regularly found the defendants not guilty, and they cannot be further prosecuted.”

In Commonwealth v. Little, 140 Ky. 550, 131 S.W. 387 (1910), this Court concluded that the trial court erroneously directed an acquittal by virtue of which the accused was discharged. Nevertheless, the verdict operated to free him from the accusation and to prevent a subsequent prosecution for the offense.

It is interesting to note that the common law not only prohibited a second punishment for the same offense but went further and prohibited a second trial for the same offense, whether the accused had been acquitted or convicted on the former trial. See Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 1119 (1957). In that case Mr. Justice Black, speaking for a majority of the Court, said:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
“In accordance with this philosophy it has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offence.’ United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 [303], Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous.” (Citing cases.)

. We are of the opinion that justice demands a retention of our decision that an accused person has been placed in jeopardy after a jury has returned a verdict of not guilty. As has been said before, this might result on some rare occasion in a guilty person not receiving the punishment which he is due. However, it clearly avoids the evils attendant to the subjection of that person to more than one trial after he has once been acquitted.

The judgment is affirmed.

HILL, J., not sitting.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mitchell DOTSON et al., Appellees.
    Court of Appeals of Kentucky.
    July 1, 1966.

      Robert Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Edmond H. Tackett, Pikeville, for appellant.
    Clifford B. Latta, Burl Wells Spurlock, Prestonsburg, for appellees.
   WILLIAMS, Judge.

Appellant, Commonwealth of Kentucky, Department of Highways (hereinafter called Department), condemned a strip of land off the front of appellee Mitchell Dotson’s property for the purpose of constructing a portion of the Mountain Parkway extension. A jury in the Floyd Circuit Court returned a verdict in the amount of $13,500. From a judgment entered on that verdict this appeal is prosecuted.

Dotson’s 175-acre farm is located about six miles from Prestonsburg. Prior to the taking he had access to Highway 114 by way of a private lane which crossed Middle Creek. He had constructed a concrete ford across the creek which was passable virtually every day of the year.

The new highway was constructed along the bed of Middle Creek, and a new 40-foot creek channel was made between the highway and Dotson’s new property line. As a result, the Department owns land on both sides of the creek, which includes a 20-foot strip between the new creek channel and Dotson’s new property line. The construction of the highway, of course, destroyed Dotson’s ford across Middle Creek.

It was stipulated in the complaint filed in Floyd Circuit Court that the Department would provide an approach ramp from the new highway down to the edge of the new creek channel. Dotson is left with the right of access to the 20-foot strip of land the Department owns on his side of the creek. The new creek channel is not fordable; thus, to gain physical access to the approach ramp, it will be necessary to build a bridge across the creek.

The appraisal witnesses for the Department did not consider loss of access in their calculations of after value of the Dotson property. It is argued that Dotson has access to the 20-foot strip of land adjacent to his property and, consequently, he has access to the highway system. Commonwealth, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104 (1962), is cited as authority for the proposition that the landowner is entitled only to reasonable access to the highway system. But in Commonwealth, Department of Highways v. Adkins, Ky., 396 S.W.2d 768 (1965), we pointed out that a landowner cannot be deprived of reasonable access without just compensation. If the facts show he is not left with reasonable access he is entitled to be compensated for the diminution in value resulting to his property. It would be futile, for example, to permit a landowner access to property owned by the Highway Department but separated from the highway by a wall 40 feet high. That is the situation here. The landowner has access to the Department’s strip of land on the one side of the creek, but he is separated from real physical access to the highway by a 40-foot creek lying between him and the approach built by the Department.

The loss of physical access should have been taken into consideration by the Department’s appraisal witnesses, and failure to do so deprives their testimony of full persuasive value.

The Department complains that some of the witnesses for appellees used factors in making their appraisal which were improper, and that their testimony should have been stricken. It is admitted by ap-pellees that some items were included by their witnesses which should not have been considered, but many of the same items were also used by the Department’s witnesses in arriving at appraisal estimates. Technically speaking, some of the testimony of witnesses for each side should have been stricken, and had there been no other proof offered in this case failure to strike would have been prejudicial.

There was another witness for ap-pellees, however, who was well qualified as a real estate appraisal expert. He made an appraisal of what the property was worth prior to the taking, what it was worth after the taking, and what the difference in value was between the two. He did not attempt to make an estimate of the value of the individual items located on the property, nor of the value of the strip of land taken, nor of damage to the property remaining after the taking. He did make his appraisal and his testimony was offered as was directed in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S. W.2d 844 (1963). The jury obviously ignored the erroneous testimony of the other witnesses and accepted his exact figures for the verdict. In view of the circumstances, we do not feel that either party was prejudiced by failure to strike the portions of the testimony of other appraisal witnesses which were incompetent but which related only to minor items.

It was established that Dotson would have to build an exit across the Department’s 20-foot strip, and a bridge across the creek before he could reach the ramp to the highway. Without doing that, he is completely without physical access to the highway. Consequently, we do not feel the jury’s verdict was excessive.

Judgment affirmed.


text:
    Helen CRABTREE, Appellant, v. William Franklin GUTHRIE, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.

      C. B. Upton, Williamsburg, for appellant.
    Robert H. Helton, Jr., Brown, Tooms & Helton, London, for appellee.
   WILLIAMS, Judge.

Appellant Helen Crabtree brought this action in the Laurel Circuit Court seeking to recover damages for personal injuries sustained by her as the result of an automobile collision between the car which she was driving and a truck driven by appellee William Franklin Guthrie. Appellee counterclaimed for damage resulting to his truck.

A jury returned a verdict finding both parties negligent. This is an appeal from the judgment entered upon that verdict.

The accident occurred when appellant was attempting to pass appellee’s truck. Appellant’s version is that she had been following the truck at about 30 to 35 miles per hour. At the place she attempted to pass the road was straight for a distance of about a mile and no traffic was coming from the other direction. There was an intersecting road leading off to the left, but appellee gave no signal of an intention to turn left into that road. Appellant activated her turn signal light, pulled out into the left lane, blew her horn and started around the truck. When she got even with the truck she noticed it was angling to the left, so she steered further left, blew her horn a second time and put her car into passing gear. Her. car got slightly ahead of the truck before appellee turned to the left against appellant’s car, forcing it off the left side of the road over an embankment.

Appellee’s version is that he.gave a signal of his intention to turn left by extending his left hand out straight from the side of the truck for a distance of 200 feet or more before he started to turn. He applied the brakes on his truck to slow it down as he prepared to turn left and appellant did not sound her horn at all.

Appellee, his wife and another lady were riding in the cab of the truck. Riding in the bed of the truck with their backs to the cab were four other persons. It appears that all of the people in the truck were going to London for the purpose of picking up government commodities.

The driver of another trdck which was behind appellant’s car was a witness to the collision. He testified, “I think I heard a horn blow.” Some of the passengers in ap-pellee’s truck testified that they did not hear a horn blow. Others testified that appellant did not sound the horn.

Appellant argues that, under the facts of the case, she had a right to pass the truck at that particular place, and had taken all the necessary precautions before attempting to pass. She says the complete burden was upon appellee not to make a left turn until it could be done with reasonable safety, and the fact there was a collision indicates he failed in this duty and that his negligence was the sole cause of the accident. She argues that the verdict of the jury finding her guilty of negligence is so flagrantly and palpably against the evidence that it should be set aside. She also argues that the jury was carried away by sympathy for the ap-pellee who was on his way to get government commodities.

We can find no basis for the allegation that the jury decided against appellant out of sympathy for appellee. Nor do we believe the finding of the jury that appellant was guilty of negligence is flagrantly and palpably against the evidence. The evidence was conflicting as to whether appellee gave the required signal of his intention to turn left, and it was conflicting as to whether appellant sounded her horn before attempting to pass and kept a proper lookout. Faced with such conflicting testimony, the jury could logically decide that both parties were negligent.

In addition, the record does not disclose that appellant made a motion for a directed verdict. In Claspell v. Brown, Ky., 332 S.W.2d 851 (1960), and Walker v. Bencini, Ky., 374 S.W.2d 368 (1964), we held that a party waives the insufficiency of his adversary’s evidence when he fails to challenge it by motion for a peremptory instruction.

The judgment is affirmed.


author: GREENHILL, Justice. GRIFFIN, Justice.

text:
    James C. SCOTT et al., Petitioners, v. BOARD OF ADJUSTMENT et al., Respondents.
    No. A-11081.
    Supreme Court of Texas.
    June 29, 1966.
    Rehearing Denied July 27, 1966.
    Charles R. Cunningham, Frances Tarlton Farenthold, Corpus Christi, for petitioner.
    McDonald & Spann, I. M. Singer, City Atty., John A. Waller, Jr., Corpus Christi, for respondent.
   GREENHILL, Justice.

Three taxpayers, Petitioners here, brought an injunction proceeding against the City of Corpus Christi, its Board of Adjustment, and the Greater Corpus Enterprises, Inc., operator of a Ramada Inn. The suit was to restrain the maintenance of a large Ramada Inn sign authorized by the Board as a variance under the City zoning ordinance. The trial court entered a summary judgment dismissing the action on the ground that plaintiffs had no jus-ticiable interest which would justify their prosecution of a suit. That action was affirmed by the Court of Civil Appeals. 393 S.W.2d 837.

A zoning ordinance, among other things, limited the size of signs. The sign in question substantially exceeded the permitted size for the sign of its type. The property on which the sign was erected is on the bay front of Corpus Christi. This area is one generally of scenic beauty, having a required open or yard space between the street and the building erected on the property. The free-standing sign here involved was built in this area ordinarily required to be kept open.

One of the plaintiffs, Mrs. Catherine Bluntzer Tarlton, owned a vacant lot approximately two blocks from the sign’s location and within the same zoning area. She also owned a residence several blocks away. The other plaintiffs, James C. Scott and Jim Alice Scott, had a residence several miles from the particular sign. All plaintiffs were taxpayers. Mrs. Tarlton testified that the entire bay front would be damaged scenically. She thought property values in the area would be damaged, but she said that she did not know whether her property would be damaged particularly.

Article lOllg provides for a Board of Adjustment for cities. The Corpus Christi Board granted to the Greater Corpus Enterprises a permit to erect the sign at its Ramada Inn Motel on Shoreline Boulevard. The action of the plaintiffs, petitioners here, is in effect an appeal (by writ of certiorari) from the action of the Board of Adjustment. The statute provides the following with regard to appeals from the Board of Adjustment:

“Any person or persons, jointly or severally, aggrieved by any decision of the Board of Adjustment, or any taxpayer, or any officer, department, board or bureau of the municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality.” [Emphasis ours.]

Thus the statute provides for three separate classes of people who may appeal: (1) any persons aggrieved; or (2) any taxpayer; or (3) any officer, department, board of bureau of the municipality. The three groups are set out disjunctively.

In most cases of this general nature, it has usually been required that the plaintiff be a “person aggrieved” or a person whose interests are adversely affected, or a person having a special interest in the matter. This has been held to be true in the absence of statute. City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754 (1888); San Antonio Conservation Society v. City of San Antonio, 250 S.W.2d 259 (Tex.Civ. App. 1952, writ ref.). Many statutes give the right to review or to institute suit to “persons aggrieved,” “persons adversely affected,” “any party in interest,” or any persons “whose rights are substantially affected.” Davis, Standing to Challenge Governmental Action, 39 Minn.L.Rev. 353 at 357 (1955); Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265 (1961) ; Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255 (1961). Where the statute requires that the person be interested, affected, or aggrieved, or (in the absence of a statute) where the common law rule requiring the showing of particular injury or damage is controlling, the plaintiff must allege and show how he has been injured or damaged other than as a member of the general public in order to enjoin the actions of a governmental body. Such suits are essentially private in character and are for the protection of private rights.

In other instances, however, the courts have recognized the rights of individuals to challenge governmental action without showing any particular damage. A number of these cases are reviewed in Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255 at 281 et seq. Within constitutional bounds, the Legislature may grant a right to a citizen or to a taxpayer to bring an action against a public body or a right of review on behalf of the public without proof of particular or pecuniary damage peculiar to the person bringing the suit. Thus, in Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597 (1915), the statute authorized “any citizen” to bring an action to enjoin the operation of a bawdyhouse. The statute went further, specifically providing that “such citizen shall not be required to show that he is personally injured by the acts complained of.” This Court concluded that the plaintiff did not have to show particular interest or damage.

A number of states have statutes which authorize the institution and maintenance of suits by citizens or taxpayers. 18 Mc-Quillin, Municipal Corporations, § 52.05 et seq. (3d ed. 1963). Among them are Maryland and South Dakota. Haines v. City of Rapid City, 59 S.D. 58, 238 N.W. 145 (1931); Mayor and City Council of Baltimore v. Byrd, 191 Md. 632, 62 A.2d 588 (1958). These courts recognize that there is a distinction between granting rights of appeal to “persons aggrieved” on the one hand, and “any taxpayer” on the other. This Court in City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67 (1945), observed that Article 101 lg (the statute now under consideration) authorized the institution of suits “not only by the party or parties whose application was denied by the board of adjustment, but by, among others, ‘any taxpayer’.” 190 S.W.2d at 70.

Since the Legislature has authorized the appeal upon the basis of illegality by any taxpayer [on behalf of the public], and since the plaintiffs here are taxpayers, the courts below erred in dismissing their case. Inasmuch as they are suing as taxpayers, it was not necessary for them to prove particular damage which would be required if they were suing as “persons aggrieved.”

Inasmuch as the plaintiffs have the right to bring the suit as taxpayers, we do not reach the question as to whether they have sufficient injury to themselves or their property to be considered “persons aggrieved.”

This opinion is not to be construed as approving or disapproving the action of the Board of Adjustment of Corpus Christi. Our holding is that the plaintiffs are entitled to their day in court.

The judgments of the courts below are reversed, and the cause is remanded to the district court for trial.

DISSENTING OPINION

GRIFFIN, Justice.

I respectfully dissent. I agree with the opinion of the Court of Civil Appeals in this case. Courts are set up for the redress of wrong and to establish rights and not for the purpose of promoting lawsuits.

      . Statutes referred to herein are Vernon’s Texas Civil Statutes Annotated.


author: PER CURIAM.

text:
    F. A. HERNANDEZ et ux., Petitioners, v. Jose DOMINGUEZ et al., Respondents.
    No. A-11382.
    Supreme Court of Texas.
    June 29, 1966.

      Rey & Rey, El Paso, for petitioners.
    Paul Andow, Gloria Senftner, Alex Sil-verman, John C. Akard, El Paso, for respondents.
   PER CURIAM.

The petitioners, F. A. Hernandez and wife, Guadalupe R. ■ Hernandez, filed this suit alleging that they were the owners in fee simple of Tracts 25 and 26, in Block 54 of the Ysleta Grant, according to the resurvey thereof in El Paso County, Texas. It was alleged that the two tracts consisted of approximately 43 acres.

In the alternative, the plaintiffs alleged that the two tracts of land were owned by the plaintiffs, Jose Dominguez and Louis Wayne Brown and prayed for an equitable partition of the land.

The trial court found that the defendants, Ruperta Gonzales, Margarita Gonzalez Marrufo and Josefina Gonzalez Sena, had acquired title from Jose Dominguez and were the owners of two acres of said land. The Court ordered a survey of the two-acre tract. Ownership of the two-acre tract was found by the trial court to be as follows: An undivided one-half interest was awarded to Ruperta Gonzalez, and the remaining one-half interest was awarded equally to Margarita Gonzalez Marrufo and Josefina Gonzalez Sena. The Court found that the entire two acres was subject to a “homestead right in full amount thereof in favor of Ruperta Gonzalez, as the surviving spouse of Reyes Gonzalez, deceased.” The Court further found that although there were no field notes, the evidence established that the two-acre tract had been identified sufficiently so that a plat and field notes could be accurately prepared by a survey.

The Court’s judgment provided that:

“Said two acres, together with reasonable access thereto shall be platted and the plat agreed upon and filed by all the parties hereto and filed of record in the Deed Records of El Paso County, Texas, within six months from the date this judgment becomes final. If such plat is not prepared and filed, then upon the application of any interested party the Court will appoint a surveyor to prepare such a plat to be approved by the Court and filed in the Deed Records of El Paso County, Texas. The costs of such survey and other expenses in connection therewith shall be assessed by the Court at the time of the approval of the survey.”

The Court of Civil Appeals has affirmed the judgment of the trial court. 399 S.W.2d 385.

We find no erorr in the judgment of the trial court or the judgment of the Court of Civil Appeals. However, in view of the pleadings in the trial court and the recitations contained in the judgment of the trial court, as above indicated, we have concluded that the suit is an action to partition the two tracts consisting of approximately 43 acres so as to segregate the two (2) acre tract from the remainder of said lands. We are of the opinion that the judgment of the trial court entered on the 24th day of November, 1964, is a decree of partition and should be made final by the entry of a judgment incorporating an approved plat and field notes describing the two acres of land, all in accordance with the trial court’s original judgment. See Rules 760 and 761, Texas Rules of Civil Procedure.

The application for writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.