text:
    Elizabeth MARTIN, Plaintiff-Respondent, v. Virgil James SHERRELL, a minor, by his guardian ad litem, James N. Otis, Defendant-Appellant.
    No. 8572.
    Springfield Court of Appeals. Missouri.
    June 27, 1967.

      Northern & Crow, Rolla, for defendant-appellant.
    Jay White, Rolla, for plaintiff-respondent.
   STONE, Presiding Judge.

In this jury-tried action at law, plaintiff Elizabeth Martin sought $5,000 for personal injuries and $200 for property damage to her 1954 Chevrolet sedan alleged to have resulted from a collision with a 1955 Chevrolet sedan driven by defendant Virgil James Sherrell, then seventeen years of age, on a graveled country road near Rolla, Missouri, just before sundown on October 4, 1964. By a nine-man jury verdict, plaintiff was awarded $125 for personal injuries and $175 for property damage; and, from the judgment entered on that verdict, defendant appeals.

Plaintiff’s petition charged humanitarian negligence in that defendant allegedly could and should have averted the collision “by swerving his automobile to its right, or by applying the brakes of his said automobile.” Since the only evidence on that subject was that defendant did apply the brakes on his automobile prior to the impact, leaving skid marks approximately ninety-three feet in length, the sole assignment submitted to the jury was that of humanitarian negligence for defendant’s failure to swerve to his right; and the single issue for determination on this appeal is whether plaintiff made a submissi-ble case on that assignment. Plaintiff’s counsel called the two parties and plaintiff’s physician as witnesses, introduced two photographs showing the damaged portions of the vehicles, and then rested. Defendant stood on his motion for a directed verdict at the close of plaintiff’s case.

At the outset, we recognize and reiterate the broad general principle that, in determining whether a submissible case was made, the reviewing court must consider the evidence in the light most favorable to plaintiff and must accord to her the benefit of all supporting inferences fairly and reasonably deducible from the evidence [DeLay v. Ward, 364 Mo. 431, 439, 262 S.W.2d 628, 633(3); Price v. Nicholson, Mo. (banc), 340 S.W.2d 1, 4-5(1), 95 A.L.R.2d 599; Appelhans v. Goldman, Mo., 349 S.W.2d 204, 208(8)], subject however to the sensible qualifications and limitations that this calls for consideration of all the facts shown by plaintiff and not merely a part of them isolated from the remainder, and does not require the court to supply missing evidence, or to disregard the dictates of common reason and accept as true that which, on the whole record, obviously is not true, or to give plaintiff the benefit of inferences other than reasonable ones [Kirks v. Waller, Mo., 341 S.W.2d 860, 863(3); Dillon v. Hogue, Mo.App., 381 S.W.2d 599, 600(1); Holland v. Lester, Mo.App., 363 S.W.2d 75, 80], and does not accord to plaintiff the benefit of defendant’s evidence which is contrary to her own or at war with her fundamental theory of the case. Migneco v. Eckenfels, Mo., 397 S.W.2d 682, 686; Pijut v. St. Louis Public Service Co., Mo., 330 S.W.2d 747, 752; Fisher v. Gunn, Mo., 270 S.W.2d 869, 873-874; Pettus v. Dubman, Mo.App., 389 S.W.2d 373, 374(3); Gudorp v. City of St. Louis, Mo.App., 372 S.W.2d 483, 484.

In approaching a factual review of the record at hand, we observe preliminarily that the evidence was egregiously meager, scant, and besprinkled with meaningless generalities and confusing contradictions, which worked the unfortunate result of shrouding salient details in ambiguity, uncertainty and obscurity. The “traveled portion” of the east-west country road, on which the accident occurred, was approximately fifteen feet in width, with “two tracks * * * down the road right in the middle.” The point of collision was “at the front of,” “right in front of * * or near the front of” plaintiff’s home which, as opposing counsel agree dehors the record, is on the north side of the road. The westbound plaintiff, “coming in home” with her son eight years of age, had just ascended “a long hill” with the setting sun “directly in my [plaintiff’s] face as I come up the hill.” Her home and driveway were “on the level” at the crest of the hill, but the record does not disclose whether the driveway entered the yard at a point east or west of the house. The eastbound defendant, accompanied by a girl fourteen years of age, had ascended the other side of the hill and had reached the crest, traveling at a speed of thirty-five to forty miles per hour, when he sighted plaintiff’s approaching automobile “approximately a hundred feet” distant. Defendants version of subsequent developments was singularly succinct and (within the record) utterly incomprehensible. “I swerved to my left [the north] and I applied my brakes and tried to avoid her [plaintiff] * * * ’cause she was on her left [the south side] of the road and it was my right of the road,” but the impact was between the left front fender of defendant’s automobile and the left rear fender of plaintiff’s automobile. When they came to rest, defendant’s automobile was “just about in the middle [of the road] — not quite,” and plaintiff’s automobile “was a way in her driveway, knocked over in the ditch” — “off on her land there,” north of the road.

Plaintiffs testimony was no more definite, complete or satisfactory. Her counsel states, dehors the record, that she was “about to enter her driveway.” However, the only testimonial statement pertaining to that was plaintiff’s laconic “yes” to the leading question, “now, you was just coming in home with your little boy — and no effort was made to show the relative position of either vehicle with reference to the driveway at any given time. Furthermore, there was no evidence concerning the width of the driveway or the entrance thereto, from which any inference could have been drawn as to whether or not a motorist would have found it necessary to make a wide turn into the driveway from the opposite or south side of the road.

According to plaintiff, her speed “prior to the accident * * * was under twenty miles an hour.” As to when she first saw defendant’s approaching automobile, her initial response was “well, just a few minutes prior to it [the accident].” But, when subsequently asked “how far was his car down the road or up the road from you at the time that you seen him,” plaintiff responded “oh, about thirty-five foot.” We note particularly that plaintiff offered no information as to the position of her automobile in relation to the imaginary center line of the fifteen-foot roadway either when she first sighted defendant’s approaching automobile thirty-five feet distant or at any time prior thereto, and that, with respect to the location of plaintiff’s automobile after she first sighted the other vehicle, her statements were confusing and contradictory. First, she explained that “I seen it [defendant’s automobile] coming and I tried, you know, to get over to my right [north side of road] as far as I, you know, could get * * * I got over as far as I could get to clear the road to give him time, you know, to get by.” Later, when her counsel inquired where her automobile was at the time of impact, she said even more emphatically that “my car was over to the right off of the road.” But in the meantime she had stated that the impact had occurred in “the center of the road.” So her counsel, then obviously puzzled and confused even as we now are, pressed for an explanation, “how did he hit your car in the center of the road if * * * your car was off the road,” and elicited this reply which certainly did nothing to dispel the obfuscation, “well, he [defendant] pulled — as he’s coming down the road, you know, a good clip of speed, well, he just * * * hit me after I, you know, got off as far as I could get.” Apparently despairing of elucidation, counsel agreed, “well, you was as far over as you could get at the time of the impact,” and received his client’s simple affirmation.

In 1954, our Supreme Court thought it a matter of common knowledge “that the distance from the center of one front tire to the center of the other front tire on plaintiff’s Chevrolet automobile was about 4½ feet.” Fisher v. Gunn, Mo., 270 S.W.2d 869, 873(1). And although we do not profess to know judicially the precise width of the body of a 1954 Chevrolet such as instant plaintiff was driving, we think it a matter of common knowledge within our ken that the overall width of her automobile was less than six feet. Hence if, as the only evidence on this point showed, the collision occurred in “the center of the [fifteen-foot] road,” obviously plaintiff’s automobile could not have been at the time of impact either off the road or as close as possible to plaintiff’s right (the north) side of the roadway. And if, as she said, she first sighted defendant’s automobile when it was thirty-five feet distant, there would have been insufficient time and space for any material change in the position of her automobile relative to the imaginary center line of the roadway prior to the impact. For, even at fifteen miles per hour (she estimated her speed as having been “under twenty miles an hour”) she would have been traveling 22 feet per second and her automobile would have moved 16.6 feet in the average reaction time of three-fourths second assumed in the absence of evidence on this subject [Roach v. Lacho, Mo., 402 S.W.2d 344, 350(10); Koogler v. Mound City Cab Co., Mo., 349 S.W.2d 233, 237(6) ]; and, although the speed of thirty-five to forty miles per hour at which defendant’s automobile had been traveling was in the process of deceleration, the two meeting vehicles undoubtedly would have closed an intervening distance of thirty-five feet within a minor fraction of a second after plaintiff’s reaction time of three-fourths second had elapsed. Yet, the unmistakable import of plaintiff’s testimony was that she had turned further to her right (the north) side of the road after she had sighted defendant’s automobile. Of course, plaintiff was not conclusively bound by her estimates of time, speed or distance [Meier v. Moreland, Mo., 406 S.W.2d 97, 101(4); McDonough v. St. Louis Public Service Co., Mo., 350 S.W.2d 739, 744(3)], but the foregoing is illustrative of the state of the record before us.

The photograph of plaintiff’s automobile indicates that the initial point of contact on that vehicle was on the rear part of the left rear door just in front of the left rear wheel, and the nature and extent of damage, insofar as inferable from the photograph (and there was no testimony on that subject), suggests that the left front of defendant’s automobile struck a sharply angling, and by no means a broadside, blow. However, the record is utterly void of any showing as to the specific direction in which either vehicle was moving at the moment of impact.

We have not overlooked plaintiff’s statements that “he didn’t try to avoid hitting me; he coulda, you know, got his car over to the right * * * I’d say he’d have four foot to get over.” But, without further extending this discussion by including the series of questions and answers into which the quoted statements were dropped gratuitously, suffice it to say that, in their context, those statements were enigmatic and unintelligible even to plaintiff’s own counsel, as demonstrated by the fact that immediately after the last quoted statement he asked, “well, now, what do you mean by that,” and thereby afforded his client an opportunity to compound the confusion in this wise, “well, I imagine that it’s the distance between two cars,” which was quickly stricken as an imaginative concept and was followed by no further effort on the part of counsel to determine the sense and meaning of the statements under consideration.

The first and basic fact of liability under the humanitarian doctrine is a position of imminent peril. Banks v. Morris & Co., 302 Mo. 254, 267, 257 S.W. 482, 484; Anderson v. Prugh, 364 Mo. 557, 565, 264 S.W.2d 358, 364(8); Hastings v. Coppage, Mo., 411 S.W.2d 232, 236. “The peril truly must be imminent — that is, certain, immediate, and impending; it may not be remote, uncertain or contingent. A likelihood or bare possibility of injury is not sufficient to create imminent peril.” Blaser v. Coleman, 358 Mo. 157, 160, 213 S.W.2d 420, 421(2); Kelley v. St. Louis Public Service Co., Mo., 248 S.W.2d 597, 602; Wilson v. Toliver, 365 Mo. 640, 654, 285 S.W.2d 575, 583(13). And it is only when such imminent peril arises that the humanitarian doctrine, blotting out antecedent negligence, seizes upon the then existing situation and imposes the duty thereafter to exercise proper care to avoid inflicting the threatened injury. Ornder v. Childers, Mo., 327 S.W.2d 913, 916(3); Kinealy v. Goldstein, Mo.App., 400 S.W.2d 438, 444(3); Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930(3).

When and where plaintiff came into a position of imminent peril were matters of prime importance. Although it is true that the precise time when, and place where, one comes into a position of imminent peril are for determination by the triers of the fact [Welch v. McNeely, Mo., 269 S.W.2d 871, 876(10); Romandel v. Kansas City Public Service Co., Mo., 254 S.W.2d 585, 593; Stith v. St. Louis Public Service Co., 363 Mo. 442, 450, 251 S.W.2d 693, 698(7), 34 A.L.R.2d 972], nevertheless the burden rested on plaintiff to adduce substantial evidence of probative value from which the jury fairly and reasonably might have found when and where she (plaintiff) did, in fact, come into such position of imminent peril. Yarrington v. Lininger, Mo., 327 S.W.2d 104, 109(7) ; Shirley v. Norfleet, Mo., 315 S.W.2d 715, 723(5); East v. McMenamy, Mo., 266 S.W.2d 728, 731-732(5).

Another indispensable prerequisite to defendant’s liability under the humanitarian doctrine was that, after he knew or should have known of plaintiff’s position of imminent peril, he (defendant) then had the present ability with the means at hand to have averted the impending harm without injury to himself or others. Davis v. St. Louis Public Service Co., Mo., 316 S.W. 2d 494, 497(6); West v. St. Louis-San Francisco Ry. Co., Mo., 295 S.W.2d 48, 52(5); Wapelhorst v. Lindner, Mo., 269 S.W.2d 865, 871(8); Lane v. Wilson, Mo. App, 390 S.W.2d 943, 949(8); Glenn v. Offutt, Mo.App, 309 S.W.2d 366, 369(5).

The plaintiff in a humanitarian case, as in other actions, must establish every essential element of his theory of submission by substantial evidence of probative value or by inferences reasonably deducible therefrom [Vietmeier v. Voss, Mo, 246 S.W.2d 785, 787(1); Harmon v. Thompson, Mo.App, 226 S.W.2d 102, 104(1)], and a judgment for plaintiff on a humanitarian submission may not stand where it rests upon speculation, conjecture and surmise [Hastings v. Coppage, supra, 411 S.W.2d at 237(9); Yeaman v. Storms, 358 Mo. 774, 779, 217 S.W.2d 495, 499; Davis v. McClanahan, Mo.App, 262 S.W.2d 65, 68(2), 69(4)], either with respect to the basic element of plaintiff’s position of imminent peril [Paydon v. Globus, Mo., 262 S.W.2d 601, 603; Kasten v. St. Louis Public Service Co., Mo.App., 266 S.W.2d 1, 4(3)], or with respect to defendant’s ability, after notice thereof, to have averted the accident with the means at hand. Stephens v. Thompson, Mo, 293 S.W.2d 392, 395 (7-9); Meese v. Thompson, 344 Mo. 777, 783, 129 S.W.2d 847, 850; Batson v. Ormsbee, Mo.App., 304 S.W.2d 680, 683-684(6-7); Berry v. McDaniel, Mo.App., 269 S.W.2d 666, 670-671(5-8).

“A humanitarian negligence case involving moving automobiles necessarily involves speed and distance or position of the cars, and ability to avert, sufficiently definite in each respect that they may be combined as an intelligible whole. When one is lacking, the picture is not complete, for the plaintiff is required to prove every element of her case. And when these essential elements do not, in and of themselves, mesh together in making a physically factual situation of liability, we cannot, simply because the collision occurred, aimlessly and without evidence in support, slide the time, distance [position] and speed back and forth or [supply] lengthen or compress them, in the hope of making them fit together somehow by the hazard of guess. ” Harrellson v. Barks, Mo.App., 326 S.W.2d 351, 359(7,8).

Considering the evidence before us in the light of the stated principles, did instant plaintiff make a submissible case of humanitarian negligence for defendant’s alleged failure to swerve to the right ? We think not. Plaintiff’s testimony was so confused, contradictory, obscure and incomplete as to indicate her lack of knowledge concerning the salient facts [cf. Ewen v. Spence, Mo.App., 405 S.W.2d 521, 525], and defendant’s testimony was so abbreviated and condensed as to leave the end result, i. e., an angular contact between the left front fender of his automobile and the left rear fender of plaintiff’s automobile in “the center of the road,” wholly unexplained and unexplainable within the record. On the evidence adduced, the triers of the facts could not have reconstructed the accident or even followed the course of either vehicle prior to the impact, and any finding either as to the time when and the place where plaintiff came into a position of imminent peril or as to defendant’s ability with the means at hand thereafter to have averted the impending harm without injury to himself or others by swerving to his right necessarily could have rested on nothing more tangible than sheer speculation, rank conjecture and unadulterated guesswork. Lindner v. Sawyer, Mo., 388 S.W.2d 896, 899; Vietmeier v. Voss, supra, 246 S.W.2d at 789(10), 790; Biehle v. LaChance, Mo.App., 403 S.W.2d 936, 939(4, 5); Harrellson v. Barks, supra, 326 S.W.2d at 359(6-9).

The judgment for plaintiff cannot stand; but, in view of the state of the evidence pertaining to the issue of liability, we are of the opinion that the ends of justice would be served by remanding the case for a new trial on that issue. However, we are directed that “[ujnless justice requires otherwise * * * no new trial shall be ordered as to issues in which no error appears.” V.A.M.R. Rule 83.13(c); V.A. M.S. § 512.160(3). And, although the mere fact that no complaint has been made concerning the amount of the verdict and no error has been alleged pertaining to the assessment of damages does not require that retrial be limited to the issue of liability only and does not entitle defendant-appellant to such limitation as a matter of right [Artstein v. Pallo, Mo. (banc), 388 S.W.2d 877, 882(6)], we are satisfied that in the case at bar a retrial on the issue of liability only can be had without prejudice or injustice to plaintiff. Grissom v. Handley, Mo.App., 410 S.W.2d 681, 691(21); Thompson v. Gray, Mo.App., 415 S.W.2d 299, 307(12). Accordingly, the judgment for plaintiff on the issue of liability is set aside and the cause is remanded to the circuit court for retrial on that issue only; and, if upon such retrial that issue shall be found for plaintiff, the court shall enter judgment for her in the sum of $300 against defendant.

HOGAN and TITUS, JJ., concur.


source: Caselaw Access Project

author: EDWARD P. HILL, Judge.

license: Public Domain

text:
    Kenneth HACK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 26, 1967.
    Rehearing Denied Sept. 29, 1967.
    Joseph J. Grace, Paducah, for appellant.
    Robert Matthews, Atty. Gen., Howard E. Trent, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   EDWARD P. HILL, Judge.

Appellant was convicted under an indictment charging him with storehouse breaking (KRS 433.190) and grand larceny (KRS 433.220) and was given one year and six months in prison. By this appeal only the sufficiency of the evidence to convict is called into question.

On the night of March 10, 1966, one of the storage trailers of Presley Plumbing & Heating Company was broken into, and a surveyors’ transit, valued at about $300, and its container were taken therefrom.

Dennis Charles Augustus testified he purchased the transit from appellant Kenneth Hack while the two were visiting at the home of one Barbara Phillips during the first part of March; that he gave appellant $2 for it, with the understanding that appellant needed the money to purchase gasoline with and would return the money and redeem the transit; that when appellant failed to redeem it, he, Augustus, sold it to James (Red) Riley in the presence of Robert Helm. Helm later purchased the transit from Riley and sold it to Harold Black for $50.

Black advertised for a tripod for the transit. An employee of Presley Plumbing & Heating Company answered the ad and identified the transit as being the one stolen from his employer. He called the sheriff who took possession of the transit as stolen property.

Barbara Phillips partially corroborated the evidence of Augustus in that she testified she was present in her home when appellant and Augustus were there, but she did not witness the transaction described by Augustus.

Appellant Hack and Augustus are admitted ex-convicts.

Appellant contends the evidence is not sufficient to convict in the light of the evidence of Riley and Helm that they did not believe the Augustus appearing as a witness for the Commonwealth was the same man who sold Riley the transit. There was evidence that the man who sold the transit to Riley had long and heavy hair and sideburns at the time of the sale. Augustus did not have such adornment at the trial, but there was evidence he visited the barbershop shortly before the trial for the removal of his fleece.

Admittedly the evidence of Riley and Helm weakened the probative effect of Augustus’ testimony, but it was not destroyed thereby. It was the province of the jury to weigh the evidence of Augustus in the light of the doubt cast on it by Riley and Helm. This the jury did. This court will not trespass on the province of the jury. Nix v. Commonwealth, Ky., 299 S.W.2d 609 (1957); Byrd v. Commonwealth, Ky., 283 S.W.2d 191 (1955); and Baker v. Commonwealth, Ky., 307 S.W.2d 773 (1957).

The judgment is affirmed.

All concur.


text:
    TERRY & WRIGHT OF KENTUCKY, Appellant, v. Sarah CRICK et al., Appellees.
    Court of Appeals of Kentucky.
    June 30, 1967.
    Rehearing Denied Sept. 29, 1967.

      Robert G. Hunt, King, Deep, Branaman & Hunt, Henderson, for appellant.
    Richard L. Frymire, Moore, Morrow & Frymire, Madisonville, for appellees.
   EDWARD P. HILL, Judge.

This is an appeal from a judgment of $3250 for damages claimed by appellees to have resulted from blasting done in connection with the making of a cut for the Western Kentucky Parkway that runs near appellees’ property.

Nineteen “questions” are “presented” by appellant on this appeal. In questions I, II, III, IV, V, VI, and XV, appellant takes the position that the pleadings, evidence, and instructions should have separated the damages caused from flying rock (actual trespass) from those caused by concussion and vibration from blasting. Appellant argues that under our case law, proof of negligence is required in cases for damages from concussion or vibration from blasting. Numerous cases are cited, including the Jacobs case hereinafter referred to. The trouble with this argument is that a few months before the date of appellant’s brief this court overruled Jacobs in Lynn Mining Co. v. Kelly, Ky., 394 S.W.2d 755, 758, (1965) by stating:

“For reasons difficult to understand, we have held it necessary to prove negligence in blasting cases where the damage was caused by concussions or vibrations as opposed to the casting of physical objects on the plaintiff’s land. See Aldridge-Poage, Inc. v. Parks, Ky., 297 S.W.2d 632; Marlowe Construction Company v. Jacobs, Ky., 302 S.W.2d 612; and cases cited therein. The soundness of this theory was questioned in both of those opinions and it was repudiated in the two cases cited in the preceding paragraph. In the latter it was recognized that an invasion of another’s right to the use and enjoyment of his property constituted a trespass and the exercise of due care is not a defense. The present Kentucky law is that a plaintiff, claiming to have been injured by the creation or maintenance of a nuisance, may be entitled to relief without allegation or proof of negligence on the part of the defendant. The Parks and Jacobs cases, just above cited, and those of similar import, are expressly overruled to the extent they adopted a contrary rule.”

Question VII, raised by appellant, relates to certain questions and arguments of counsel for appellees in regard to “inconvenience” suffered by appellees during the five months blasting was in progress. Ap-pellees’ attorney pointed out to the jury that this element was not compensable; so did the trial court in its admonition to the jury. Actually it was difficult to prevent the jury from realizing that there was some inconvenience sustained. There was evidence that windowpanes were replaced and again blown out the same day. On the whole, we cannot say the references to “inconvenience” were prejudicial.

Appellant’s objections VIII and IX complain of evidence of Henry Lile, father of appellee Sarah Crick, in regard to a conversation he had with Lawrence Terry, president of the appellant company, in which Mr. Terry told him that in event his company did any damage to the Lile house, they would “build him a new house if they tore it down.” Objection is also made to the reading of the deposition of Jack Reese, project superintendent of the appellant company.

Mr. Lile’s evidence, even if unexplained,. did not amount to an admission of liability on the part of Mr. Terry. He said “if” we tear it down. Furthermore, Mr. Terry explained the conversation by saying it was in a “jocular” vein as was usual between the two of them. We conclude this evidence was not prejudicial.

The reading of the deposition of Jack Reese was authorized by CR 26.04. The return on the subpoena for Reese showed he was in Indiana.

Questions X and XI have reference to the ruling of the trial court overruling appellant’s motion to make Henry Lile a party plaintiff. Mr. Lile, father of appellee Sarah Crick, moved his house from a separate tract condemned by the Department of Highways onto the land of his daughter under some family arrangement undisclosed in the record. Mrs. Crick admitted the house belonged to her father and that she might pay him a part of any amount recovered. However, the Lile house was situated upon and attached to the tract owned and described by Sarah Crick in her complaint. Henry Lile’s house thereby became a part of Sarah Crick’s realty. Cf. Tarter v. Turpin, Ky., 291 S.W.2d 547, 60 A.L.R.2d 1205. Certainly the judgment herein is res adjudicata insofar as Lile is concerned. While we held in Campbell v. McCoy, Ky., 306 S.W.2d 843 (1957), that the doctrine of res adjudicata does not apply to one who merely participates in a case as a witness, we think this case is clearly distinguishable from the Campbell case in that in the present case Mr. Lile not only testified, but he had knowledge that his daughter filed her suit to include all items of damage, including the house he admitted in the evidence was “his house.” He also negotiated with appellants for settlement of the claim. These circumstances taken with the well-settled rules pertaining to permanent attachments to real estate justify an exception to the general rule announced in Campbell. See 30 Am.Jur., Judgments, § 227; McKenzie v. Hinkle, 271 Ky. 587, 112 S.W.2d 1019; and Amburgey v. Adams, 196 Ky. 646, 245 S.W. 514.

Question XII is a double-barrel proposition. The left barrel of this question is a repetition of the first seven “questions” hereinbefore discussed, and the right barrel points to the testimony of appellees’ witness who emphasized appellees’ damages in terms of “reconstruction” cost instead of costs of “repairs” as did the witnesses for appellant. We think these attacks on the evidence on damages are without merit.

Question XIII urges that the evidence mentioned in question XII should have been stricken. We do not agree.

Appellant next contends in question XIV that the amount of the verdict is excessive.

Appellees’ witness Gamblin, who said he was a carpenter and contractor, told the jury the cost of repairs in his judgment was $4003.52 for the Crick house and $1790.87 for the Lile house. Appellant’s witness estimated the cost of repairs necessary at an amount in excess of $800. The verdict was within the range of the evidence. While we are persuaded, particularly from photographs in the evidence, that the amount of the verdict is very liberal, we cannot say it is excessive.

Questions XVI and XVII advance the arguments that the trial court erred in refusing to instruct the jury on the doctrine of assumption of the risk by appellees and the doctrine of the duty to minimize their damages. We do not think either instruction appropriate.

Appellant also claims (XVIII) that it was prejudiced by the refusal of the trial court to admit a certified copy of the condemnation judgment in the action wherein the state condemned Mr. Lile’s property. This judgment has no bearing upon the issues in the present case. The trial court was correct.

Having arrived at question XIX, we find appellant’s final objection concerns the propriety of the ruling of the trial court overruling the motion of appellant to allow the jury to view the property claimed to have been damaged. In condemnation cases, this court has held that except in “unusual or extreme circumstances,” it is the duty of the court to allow the jury to view the property as directed in KRS 177.087. We have no statute relating to ordinary' actions for damages to land. Cf. Illinois Cent. R. Co. v. Frost, Ky., 124 S.W. 821.

The judgment is affirmed.

All concur.


author: CULLEN, Commissioner.

text:
    Mrs. Emma TOOKE, Mother and Next Friend for Winston Delano Tooke, and Emma Tooke, Individually, Appellants, v. Omer D. ADKINS, Appellee and Cross-Appellant, and Frank Haddad, Jr., Administrator of the Estate of Gladys Mae Adkins, Deceased, Appellee and Cross-Appellant.
    Court of Appeals of Kentucky.
    June 9, 1967.
    Rehearing Denied Sept. 29, 1967.

      Hughes & Gregory, Murray, Waller, Threlkeld & Whitlow, Paducah, for appellants.
    Joseph E. Fineman, Louisville, Johnstone & Eldred, Princeton, for appellee and cross-appellant, Omer D. Adkins.
    Herman E. Frick, Louisville, for ap-pellee and cross-appellant Frank Haddad, Jr.
   CULLEN, Commissioner.

At a highway intersection Omer D. Adkins, with his wife as a passenger, drove his automobile into the path of an oncoming automobile owned by Emma Tooke and being driven by her son Winston. In the resulting collision Mrs. Adkins was killed, Mr. Adkins and Winston were injured, and both automobiles were damaged.

The Tookes sued Mr. Adkins. He counterclaimed. The administrator of the estate of Mrs. Adkins intervened and asserted a claim against the Tookes. They in turn amended their complaint to ask contribution or indemnity from Mr. Adkins with respect to any recovery against them by the administrator. On the damage claims between the Tookes and Mr. Adkins the jury found both drivers negligent and awarded no damages to either side. On the administrator’s claim the jury awarded $15,724.17 against the Tookes, the award consisting of $14,000 for general damages and $1,724.17 for funeral expenses. However, the trial court ruled that since Mr. Adkins would be the sole beneficiary of any recovery of general damages for the wrongful death of his wife (there being no children), and since his negligence contributed to her death, the general damages were not allowable. Accordingly the court entered judgment in favor of the administrator against the Tookes for the funeral expenses only. And although the issue of contribution had not been submitted to the jury, the court further entered judgment awarding the Tookes contribution from Mr. Adkins for half of the funeral expenses, on the theory that the jury’s finding that both drivers were negligent automatically settled the contribution question.

The Tookes have appealed and both Mr. Adkins and the administrator have cross-appealed. Many fascinating issues are raised, but they have been eliminated by virtue of our conclusion, hereinafter detailed, that as a matter of law Mr. Adkins was negligent and his negligence was the sole cause of the collision.

In clear daylight Winston Tooke was headed northward on State Highway No. 93, south of the point where Old U. S. Highway No. 62 crosses No. 93 at right angles. Adkins was headed eastward on No. 62, west of the intersection. At the intersection No. 93 is the superior, arterial, or “through” highway, and there are stop signs on No. 62.

Reduced to the essentials,, the facts of this case are simply that Adkins entered the intersection when the Tooke car was so close as to constitute an immediate hazard, in plain violation of KRS 189.330(4). Admittedly, Adkins had a clear view to his right for 800 feet. He said he looked carefully and saw nothing. However, all of the circumstances point unerringly to the fact that the Tooke car was in plain view and dangerously close. It is true that Winston Tooke said he saw the Adkins car approaching the intersection but since it was going only five miles per hour he assumed it was going to stop before entering upon his path. The slow rate of speed of the Adkins car was confirmed by Mr. Adkins himself, who said he was approaching the intersection in low gear at a rate of from five to eight miles per hour. Although Tooke said that Adkins did not stop at the stop sign on the right side of No. 62 some 27 feet west of the intersection, this fact would not charge him with notice that Adkins would continue into the intersection without stopping, in view of the slow speed of the Adkins car which would enable it to stop immediately and in view of the fact that there was another stop sign on No. 62, in an island on the left side, right at the edge of the intersection, which Tooke could assume Adkins was intending to observe.

The facts of this case are indistinguishable from those in Vaughn v. Jones, Ky., 257 S.W.2d 583; Chambliss v. Lewis, Ky., 382 S.W.2d 207; Riggs v. Miller, Ky., 396 S.W.2d 69; and Davidson v. Davidson, Ky., 412 S.W.2d 221. Under the rationale of those cases it must be held that as a matter of law Adkins was negligent and his negligence was the sole cause of the collision. Metcalfe v. Hopper, Ky., 400 S.W. 2d 531, is distinguishable, because there the car on the superior highway was at least 450 feet away when the other car actually entered into the former’s driving lane.

It is our conclusion that the trial court should have directed a verdict for the Tookes on the claims of Mr. Adkins and the administrator, and should have directed a verdict of liability on the Tookes’ claims against Mr. Adkins, leaving only the question of damages for the jury. The Tookes made appropriate motions for such verdicts and for judgments n. o. v.

On the direct appeal the judgment is reversed with directions to enter judgment dismissing the claims of Mr. Adkins and the administrator, and with directions to retry the question of damages only on the claims of the Tookes against Mr. Adkins. On the cross-appeals the judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ralph H. HORNE and M. Edith Horne, Wife, Stevens Lumber Company, Inc., Appellees.
    Court of Appeals of Kentucky.
    March 31, 1967.
    Rehearing Denied Sept. 29, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Dept, of Highways, Frankfort, James E. Adkins, Catlettsburg, Lewis D. Jones, Flemingsburg, for appellant.
    C. B. Creech, Ashland, for appellees.
   OSBORNE, Judge.

In this action, the Commonwealth of Kentucky, Department of Highways, seeks to condemn approximately 2¾ acres of land upon which are located two frame dwelling houses; one 36' x 24', the other 28' x 14' and a small shack or workshop constructed out of used corrugated tin, 24' x 16'. The property is subject to pondage easement to the federal government, under which approximately ½ of it is flooded on the average of twice a year. The property is hilly, the houses are located on the high ground, and therefore, not affected by the flooding.

The action was tried before a jury on October 28, 1963; it fixed the value of the property immediately before the taking at $14,750; the value after the taking at $1000 and awarded the landowner $13,750. It is from a judgment upon this verdict that the Department of Highways appeals. It alleges that the verdict is not sustained by the evidence and is so palpably excessive as to strike the mind, at first blush, that it was given under the influence of passion and prejudice and without regard to the evidence and instructions of the court. The Department also charges that the court erred in admitting evaluation testimony of the owner, Ralph H. Horne, and Robert Smith, who was introduced as an expert witness by Horne.

First we take up the question of the testimony of the owner, Ralph H. Horne. In an attempt to qualify him to testify, he was asked if he had had an occasion to observe the sale of property in the area before the institution of the proceedings. His answer was, “I don’t know, but property is high in that vicinity. I tried to purchase a piece of property from my neighbor.” The question was restated to him again and he again, in evading a direct answer, said, “Well, my sister, she bought a house.” Then the question was put more directly, “Do you feel you are reasonably acquainted with the value of property as of October 28, 1963, in this neighborhood?" And, the witness answered, “I am not a real estate man.” Then, a fourth attempt was made to qualify the witness. This time, he was asked, “do you have some knowledge of what property buys and sells for in this area?” This time he responded, “yes, I think so.”

In the case of Commonwealth of Kentucky, Department of Highways v. Fister, Ky., 373 S.W.2d 720, we had occasion to review our previous decisions and to pass specifically upon the qualifications of an owner of real estate to testify as to its value. We stated the rule as follows:

“It is true an owner may properly be presumed familiar with the character and extent of his property, but this is only one of two necessary elements in the appraisal of its value. The other element is some knowledge of property values. While the owner may have a general concept of the worth of his property based upon what he paid for it (and evidence of this price ordinarily is competent — 18 Am.Jur., Eminent Domain, section 351; 55 A.L.R.2d 791), it does not sufficiently qualify him to express an objective opinion of its current market value. * * * We see no reason why an owner, before expressing his opinion concerning the market value of his real estate, should not have the initial minimum qualifications required of his neighbors. It follows that the qualifications of the owner witness, as other witnesses, must be affirmatively shown before his opinion of market values is expressed. 32 C.J.S. Evidence § 458a., page 98.”

We believe it is obvious under the foregoing rule that the owner in the present case did not establish sufficient qualifications to make his opinions as to the market value of his property competent and upon a retrial of this case his testimony should not be admitted unless he establishes substantially better qualifications in advance of expressing his opinion as to value.

The Department of Highways seriously contends that the value fixed by the jury in this action is so excessive as to strike the mind at first blush as having been given under the influence of passion and prejudice. We agree. A plat of the property and photographs of the buildings involved, which are included in the record, indicate most conclusively the verdict is excessive. The main dwelling house is of light, frame construction with a composition or tarpaper covering. It is 36' x 24' and set on a concrete block foundation. The back portion of the house, which presumably contains the kitchen, is of shed-type construction. The roofing is light shiplap decking covered with a roll-type roof. It is common knowledge that this type of construction, even in this time of high prices, is relatively inexpensive.

The second building is more of a shed-type affair, 28' x 14' with a corrugated tin roof and covered with composition siding, which is in many places peeling off and rolling down. The window facings and door facings appear to be in poor condition. The 2¾ acres of land which was taken was rather remotely located on rough terrain without substantial value for building or agricultural purposes. We are of the opinion that the fair value of the property is much below that fixed by the verdict. For this reason the verdict strikes our minds at first blush as being excessive. Since the testimony as heretofore pointed out was incompetent for any purpose and as the verdict is excessive, the judgment must be reversed for a new trial. See Commonwealth of Kentucky, Department of Highways v. Brumfield, Ky., 418 S.W.2d 231 rendered December 16, 1966.

The judgment is reversed.

All concur.


text:
    John Porter BARTLETT, Administrator of the Estate of Leon Mitchell Bartlett, Deceased, Appellant, v. COMMONWEALTH of Kentucky and Department of Child Welfare, Commonwealth of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    June 23, 1967.
    Rehearing Denied Sept. 29, 1967.

      Robert S. Miller, Miller, Griffin & Marks, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, for appellees.
   EDWARD P. HILL, Judge.

On May 7, 1964, Leon Mitchell Bartlett, age 15, was found dead in a cell with two other inmates at Kentucky Village, a state-operated home for delinquent children. He had been choked with a towel and his neck slashed with a razor blade. This suit was filed pursuant to KRS 44.070 et seq. with the Board of Claims by the father as administrator of the estate of his deceased son against the Commonwealth of Kentucky and Department of Child Welfare. The claim was disallowed. Appellant herein appealed to the circuit court, where the action of the Board was affirmed. The appeal to this court followed.

The complaint alleges that the death of Leon was “the direct and proximate result of the negligence and carelessness of the defendants * * * in that they failed to properly segregate, control, maintain, supervise, direct, instruct and/or protect the inmates in their care, custody and control * *

Before discussing the merits of the case and the questions raised with respect thereto, we should refer to appellees’ motion to dismiss the appeal. Appellees contend the circuit court filed an “opinion” on July 14, 1966, which recited that “the ruling of the Board is affirmed and plaintiff’s claim is dismissed”; that the “opinion” is an ap-pealable order; and that appellant’s notice of appeal, served November 2, 1966, came too late. However, the “opinion” was not entered as required by CR 58 and 79.01. It was not until October 24, 1966, that an appealable judgment was entered. We think there is no merit to appellees’ position that the appeal should be dismissed.

Appellant claims the Board erred in refusing to admit certain records of the Department of Child Welfare, which if admitted would establish that the two boys who killed Leon were not only vicious and dangerous but mentally unstable. It is also claimed by appellant that such records constituted notice to the Department of the hazards involved in placing Leon in a maximum security cell with the two boys who killed him.

Appellant contends that even without the records referred to above there was ample evidence of negligence proven.

The appellees counter with the argument that KIRS 44.140(2) limits the scope of review of judgments of the Board of Claims and that rulings on the admissibility of evidence are not reviewable. They argue further that the propriety of the ruling in question becomes moot because the full Board did actually consider the records by way of avowals.

First we examine the supra statute limiting the scope of review on appeal. It provides :

“(2) On appeal no new evidence may be introduced, except as to fraud or misconduct of some person engaged in the hearing before the board. The court sitting without a jury shall hear the cause upon the record before it, and dispose of the appeal in a summary manner, being limited to determining: Whether or not the hoard acted without or in excess of its powers; * * * and whether the findings of fact supported the award.” (Emphasis added.)

Rule-making power is given to the Board by KRS 44.080. It is not necessary, however, for the Board to adopt a rule by which it declares that in ruling on the competency or incompetency of evidence it shall be governed by the well-recognized rules of evidence. It is fundamental that the proceedings before the Board shall be fair and just. If the Board has the absolute and final power to determine the competency of evidence, it has the power to hear no evidence. For centuries freemen have sought justice and equality before the law. With this thought uppermost in mind, the writers of our Constitution wisely and cautiously provided in section two that: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”

It is readily concluded that in appeals from orders and judgments of the Board of Claims, the propriety of its rulings rejecting evidence is clearly within the scope of appellate review.

The records of Kentucky Village sought to be introduced related to case histories and observations and recommendations of “cottage parents” and other personnel of the Department concerning the two boys (Simpson and Schmidt) charged with the murder.

It is concluded these records were competent on the question of whether or not the Department had knowledge of any dangerous and vicious propensities of the boys who did the killing. Cf. King v. Ohio Valley Fire & Marine Insurance Co., 212 Ky. 770, 280 S.W. 127, and Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498.

In view of the fact that we are reversing the judgment and remanding this case to the Board with directions to admit further evidence, we decline to say whether there was sufficient evidence of negligence to require the Board to find for appellant. In this connection, it is interesting to note that Dr. Arthur L. Robertshaw, a senior psychiatrist at the Veterans Hospital in Lexington, Kentucky, who examined the two boys pursuant to the order of the Fayette Circuit Court previous to their trial for murder, testified as follows:

“Well, in a nutshell, the situation as I see it is this: We have one boy, Bartlett, who seems to have been an individual who was prone to irritate and exasperate his fellow inmates of Kentucky Village. We have another boy, Simpson, who is mental (sic) defective and who is a rather passive type of individual, and we have a third boy (Schmidt) who is mentally defective and who is a rather aggressive type of individual, prone to explosive behavior. To have placed all these boys together in one room would have been rather injudicious.”

It is well-settled law in this and most other jurisdictions that the keeper of the prison must exercise ordinary care for the protection of his prisoner if there is reasonable ground to apprehend the danger to the prisoner. Cf. Lamb v. Clark, 282 Ky. 167, 138 S.W.2d 350; Ratliff v. Stanley, 224 Ky. 8, 7 S.W.2d 230; 41 Am.Jur., Prisons and Prisoners, § 13; and 60 A.L.R.2d, p. 879. The liability of state employees and departments of state government is recognized and provided for by KRS 44.070. All the cases we have examined involve injury or death to adults. Instances in which infants are involved would certainly demand no less duty than the general rule requires as to adults. Indeed the duty may be greater in the case of an infant, for in the final analysis in the present case the keeper of the prison (Kentucky Village) stands in loco parentis of the infant prisoner.

There is considerable evidence that the two boys had records of violence and mental and emotional instability.

Ordinarily, state-operated institutions for the rehabilitation of juvenile delinquents are filled with persons ranging in age from about seven years of age up to twenty-one. They cannot be handled as the usual Sunday school pupil. It is the duty of the institution to exercise a high degree of diligence to obtain the history of the inmates and to respect some system of age classification. Kentucky Village has the services of a trained psychiatrist. It is equipped for the isolation of incorrigibles. Of course, the real purpose of the Village is for the rehabilitation of these young people, and the Lord knows this to be a necessary and a difficult job. But you can’t rehabilitate a dead man.

Appellees’ position that the order of the full Board actually did consider the record evidence sought to be presented by appellant and refused by the referee is not supported by the order itself. While it recites that “the entire record” was read, it concludes with the finding that “the referee was not only correct in his findings of fact and rules of law, but that he reached the only reasonable conclusion.” (Emphasis added.)

Appellant would have this court conclude as a matter of law that negligence was established and fix the amount of recovery. These are matters for the Board to determine on the remand of this case.

The judgment is reversed for proceedings consistent with this opinion.

All concur.

      . Simpson and Schmidt were tried in Fayette Circuit Court and convicted of the murder of Leon Mitchell Bartlett.


author: PALM ORE, Judge.

text:
    TEAMSTERS LOCAL UNION NO. 783 et al., Appellants, v. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.
    Rehearing Denied Sept. 29, 1967.

      Herbert L. Segal, Louisville, for appellants.
    John K. Skaggs, Jr., George Logan, Louisville, for appellee.
   PALM ORE, Judge.

Teamsters Local Union No. 783, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called the union, and three of its members appeal from an order of the Jefferson Circuit Court finding them guilty of civil contempts and assessing an aggregate punishment against each of them in an amount exceeding the $30 or 30-hour maximum fixed by KRS 432.-260C1).

The appellee, Coca-Cola Bottling Company of Louisville, hereinafter called Coca-Cola, brought this suit for injunctive relief against certain actions by the union and its members in connection with a labor dispute. A temporary injunction against various activities was isued on June 25,1965. On July 9 and 14, 1965, Coca-Cola moved for rules against the union and individual members named in the motions to show cause why they should not be punished for contempt of court for violating the temporary injunction. The motions were supported by numerous affidavits setting forth the incidents alleged to have been in violation. The rules were issued and brought on for trial by the court without a jury. Judgment was entered finding that 27 separate instances of violation had occurred, for which the union was fined $30 each, totalling $810. Each of the three union members who are appealing was found guilty of more than one act of contempt and was separately assessed for each, so that although the punishment for each separate incident was 30 hours in jail (or less), the total for each of these three men exceeded 30 hours.

The case is before us on a partial record, and we have neither the affidavits filed in support of the motions nor a transcript of the testimony showing the various acts for which the appellants were found in contempt. However, in the absence of a transcript it is presumed that the evidence supports the judgment, Pentecostal Church of Christ v. Webb, Ky., 412 S.W. 2d 264, 265 (1967), and it seems to be conceded that the judgment is based upon a series of separate acts committed by individual members of the union, each of which acts, standing alone, was in violation of the injunction and therefore served as a valid basis for holding the offender in contempt.

All of the appellants contend that there can be only one finding of contempt against each of them on one show cause order that is couched in general terms and does not separately specify different acts of contempt. The union contends also that in any event the various acts of its individual members constituted but “a single, continuous act of contempt” insofar as the union itself is concerned.

The questions thus raised are of first impression in this court. Prior to the enactment of what is now KRS 432.260 “and at common law, courts possessed unlimited powers to punish for contempt.” Talbott v. Commonwealth, 207 Ky. 749, 270 S.W. 32, 33 (1925). Indeed, the validity of the statute is not free of doubt. Cf. Arnold v. Commonwealth, 80 Ky. 300, 304, 44 Am.Rep. 480 (1882). “It may well be doubted whether the legislature could limit the authority of the courts respecting practice and proceedings since all of our courts are created by the Constitution and all judicial power is lodged in them, save and except the Senate in cases of impeachment.” Crook v. Schumann, 292 Ky. 750, 167 S.W.2d 836, 840 (1943). Be that as it may, and without further examination of the constitutional question at this time, we are disposed to give the statute that construction which is most compatible with the ancient and indispensable power of a court of law to preserve its dignity and enforce its authority.

“While there are but few cases dealing with the question * * * it seems settled that a court has power to assess punishment for more than one act of contempt in a single proceeding.” Annotation, 160 A.L.R. 1104, citing among other cases Ex parte Genecov, 143 Tex. 476, 186 S.W.2d 225, 160 A.L.R. 1099 (1945), from which we quote the following passage:

“It would hardly be contended that after a court has punished a party to the limit of the statute for a violation of its injunction and such party has paid the penalty imposed upon him, he could thereafter violate the injunction with impunity and the court would be powerless to punish him therefor. Obviously, the statute places no such limitation upon the- power of a district court. Neither could it reasonably be contended that the trial court could divide one contemptuous act into thirty separate acts and assess the maximum punishment provided by statute for each of those acts. Had the relator been charged with but one continuous act of polluting the streams, and had the court concluded that each day or each hour of his violation constituted a separate and distinct contemptuous act, relator’s points would be well taken. But that is not the case presented. The motion upon which the contempt order was entered charged the relator, along with others, with' thirty-six separate, distinct and independent violations of the injunction in the operation of several leases and the trial court, after a hearing, sustained thirty of such charges, finding in favor of relator on the other six. With particularity the order describes each and every act of which relator was found to be guilty and the punishment assessed against him was a fine of $50 and confinement in the county jail for a period of twenty-four hours ‘for each and every of the aforesaid acts.’ Relator was served with notice, and was given a hearing at which he was confronted by the witnesses who testified against him.”

Appellants distinguish this case from Genecov on the ground that here there was only one charge of contempt. In that the show cause orders did not specify the incidents reflected in the affidavits filed in support of the motions the distinction is valid, but we have no inclination to exalt technicalities over substance. The motions were duly served on the respondents. The information was in the supporting affidavits. Hence the respondents had ample notice of the precise charges leveled by the show cause orders. As a matter of fact, if it had been necessary for the show cause orders to contain a statement of the particular violation or violations alleged in the affidavits filed with the motions, the trial court could not have found any of the appellants in contempt, because the show cause orders did not cite any specific violations. If for purposes of due process we equate contempt proceedings with criminal proceedings, as the Texas court did in Genecov, the motion and affidavit may be likened to a complaint, information or indictment, and the show cause order to a summons or bench warrant. It is the motion, and not the show cause order, that is the charging instrument, and if it does not provide enough information to enable the responding party to defend himself he is free to move for appropriate relief. There is no real due process question here.

We hold that every act in which an individual appellant participated that constituted a violation of the injunction was a separate contempt for which each participant was separately punishable regardless of whether the aggregate amount of punishment exceeded maximum limits permissible by KRS 432.260 without a jury trial. Stated another way, the statute does no more than limit the punishment for one indivisible act of contempt.

From what we have said thus far it follows that if the union is in contempt at all it is in contempt each time its individual members and representatives are in contempt, subject to the qualification that if two or more individual members of the union jointly committed a single act of contempt, the union in that instance is amenable to punishment for one contempt only. If it is subject to punishment for something John Jones did in the morning it would be absurd to say that it is not subject to punishment for a repetition of the same act, or the commission of another contemptuous act, by John Jones or other members later in the day. The union makes no contention that it is not liable for at least one contempt. So far as we are concerned, that ends its case. If it is liable for one it is liable for all.

The judgment is affirmed.

All concur.

      . “A court shall not impose a fine of more than thirty dollars or imprison for more than thirty hours for contempt without the intervention of a jury.”

      . For example, the appellant Brown was found guilty of five offenses, or “counts,” and his punishment was fixed at 30 hours on one and eight hours apiece on the other four, totalling 62 hours.

      . The record does not disclose whether the 27 contempts of which the union was found guilty include any duplications representing the same incident, so we must assume there are none.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. C. M. BRUMFIELD et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    Rehearing Denied Sept. 29, 1967.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Donald P. Moloney, Lexington, J. G. M. Robinson, Ashland, Walter Mobley, Flem-ingsburg, for appellant.
    John W. McKenzie, John C. Clarke, Die-derich & Hermansdorfer, H. David Her-mansdorfer, Ashland, for appellees.
   STEWART, Judge.

This is an appeal by the Commonwealth, Department of Highways, from a judgment awarding C. M. Brumfield and Maude Brumfield, his wife, $67,000 incident to the condemnation of 22.9 acres of their land.

Appellees’ property, before this condemnation proceeding, consisted of 108.6 acres of farm land. It is situated on Ky. 180 as relocated, approximately seven or eight miles south of Ashland and two miles from the village of Cannonsburg. The terrain is rolling and hilly. The portion condemned is unimproved and is situated in the northwest portion of the tract. Witnesses introduced by the Commonwealth testified that, after the taking, there was an average increase in the value of the farm of $19,-713; those who appeared in behalf of the property owners stated that, after the taking, there was a decrease in the value of the farm of $68,219.

It is contended reversible errors were committed: (1) In ruling that C. M. Brum-field was not required to answer certain questions when cross-examined except on condition that he be considered a witness for the Commonwealth; (2) in excluding the testimony that C. M. Brumfield gave at a former trial; (3) in allowing witnesses of the landowners to base damage estimates upon an alleged reduction of access to the newly constructed highway, Ky. 180; (4) in submitting instructions, over the objection of the Commonwealth, that were incorrect; (S) in stating to the jury that the 1959 and 1960 tax assessments of Brum-field were not sworn to; (6) in failing to rule in a proper manner on objections made to an alleged improper argument before the jury; and (7) in refusing to set aside the verdict as excessive.

The first two grounds dovetail into each other and they will be discussed together. C. M. Brumfield, testifying in his own behalf, mentioned several perfunctory details in connection with his farm and the surrounding community but gave no estimates concerning the value of his tract or of any other near-by land. In the course of his cross-examination by counsel for the Commonwealth, he was asked if his farm and the property in the immediate neighborhood had not increased in value since 1957. This question was objected to upon the assumption that this witness had not been qualified to express an opinion as to real estate values. The trial court, in passing on the objection, stated to counsel for the Commonwealth: “You may ask him if you want to make him your witness.”

Counsel for the Commonwealth continued the interrogation of this witness with the qualification imposed, over the Commonwealth’s objection, that he would be considered the Commonwealth’s witness in respect to all matters that had not been covered on direct examination. Brumfield was then asked if he did not in 1957, when the value of the property involved in the action at bar was in issue in a divorce-and-alimony suit between him and his ex-wife, state under oath that its worth was only $30,000. Counsel for the landowners objected, stating : '“He is trying to impeach his own witness.” Brumfield was also interrogated concerning the increase in the worth of his land growing out of the expected change that would result to it from the highway construction project. The same type of objection was interposed.

The trial court sustained objections to all these valuation questions on the theory that the Commonwealth had made Brumfield its witness and was undertaking to impeach him. An avowal was made in the circuit judge’s chambers consisting of Brumfield’s answers to questions propounded to him. In this avowal Brumfield stated that, at the time of condemning his land, the property in his opinion, before the 22.9 acres were severed, was worth $200,000. He hedged when asked whether or not he had stated this same property was worth $30,000 when he testified in the divorce-and-alimony case with his ex-wife.- The Commonwealth offered to file and make a part of the record a complete certified transcript of his evidence in the former action but the trial judge refused to permit this transcript to be filed.

The trial court’s ruling as to the evidence sought to be elicited from C. M. Brumfield conflicts with the clearly stated provisions of CR 43.06, which read, in part: “A party may call an adverse party * * * and interrogate him by leading questions and contradict and impeach him in all respects as .if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief. Except as stated in the preceding sentence, any witness called by a party and examined as to any matter material to any issue may be examined by the adverse party upon all matters material to every issue of the action.” (Emphasis added.)

The limitation on cross-examination in the first sentence of CR 43.06 would apply only if the Commonwealth had called Brumfield as its witness and Brumfield’s attorney had sought to cross-examine him. The cross-examination under the situation that developed in this case is governed by the second sentence of the Rule. It follows that the trial judge should have allowed counsel for the Commonwealth to examine Brumfield “upon all matters material to every issue of the action.”

Was the testimony of C. M. Brumfield in a former action in 1957 in the Boyd Circuit Court, in which he placed a value on the identical property involved in this proceeding, competent evidence as an admission against interest?

In Schaible v. Uhl, Ky., 343 S.W.2d 578, an automobile, with George Uhl as the driver and Mr. and Mrs. Joseph Schaible as passengers, was involved in an accident. The Schaibles sued Uhl for damages growing out of their claimed injuries. A written statement of Joseph Schaible, exhibited at a pretrial conference which tended to hold Uhl blameless, was introduced at the trial to contradict the testimony of Schaible that Uhl’s negligence caused the accident. It was contended the writing was nothing more than an impeaching statement. This court held that the writing was “an admission against interest by a party”, and as such must be regarded as substantive evidence.

In the case of Johnson v. Tucker, Ky., 383 S.W.2d 325, it was held on the trial of a civil action for assault and battery that a plea of guilty to a criminal charge, involving the same offense, was competent as an admission against interest. However, that case went on to say that “the defendant may testify as to the circumstances under which the plea was made and explain the reasons for such a plea.” See also Race v. Chappell, 304 Ky. 788, 202 S.W.2d 626, 628.

It was a prejudicial error for the trial court to rule, for the reason stated, that C. M. Brumfield could not be subjected to cross-examination concerning the valuation of his farm, provided it was first shown he was a qualified witness on real estate values. Furthermore, the testimony of Brumfield in the divorce-and-alimony action, wherein a dollar estimate was given by him on the identical property involved in this litigation, was admissible as substantive evidence, since it was indicated in that action he purported to have a knowledge of the worth of his farm.

The next assignment of error involves the evidence of the four witnesses who appeared in behalf of the landowners. Prior to their testifying, an engineer for the Commonwealth pointed out on a map the non-access frontage of the landowners’ property, after the taking, which would abut on Ky. 180 as reconstructed. Although this witness testified that S00 feet of Ky. 180 contiguous to this property would be inclosed by a guardrail, it was stated by the engineer, and his testimony on this point is unrefuted, that the landowners would nevertheless have the same right of access to this area they had possessed before the rebuilding of this highway.

These four witnesses, in disregard of the engineer’s testimony, treated this 500-foot stretch of highway as being non-access and stated this supposition was a main factor considered by them in measuring their appraisals of the after value of the property. They also advanced the view that, as the farm originally adjoined Ky. 180, it was “very adaptable” to subdivision purposes. Brooks Wells, a witness for the landowners, testifying on this point, said: “You could go or have an approach onto a black top road (old Ky. 180) and you could lay your * * * streets off coming on to that road.” Wells and also the other witnesses for the landowners were permitted to testify that the purported diminution of the frontage on Ky. 180, as reconstructed, would require considerably more building' of approaches to this portion of the farm and there would be no choice left to the landowners as to where entrances would be located.

The uncontradicted testimony in this case discloses, as has been noted here-inbefore by the testimony of the Commonwealth’s engineer, that there has been no loss of access upon the part of the landowners to the land bordering upon Ky. 180, as a result of its reconstruction. Under the evidence introduced, there was no issue involving á loss, or even a reduction, of access; therefore it was incumbent upon the trial judge to so inform the jury of this undisputed fact. See Commonwealth, Department of Highways v. Adkins, Ky., 396 S.W.2d 768. More than that, the trial judge should have rejected this evidence as incompetent when, upon its being offered at the trial, its introduction was objected to by the Commonwealth.

The loss of access that is complained of is the alleged loss of access to an anticipated subdivision. It is conclusively shown that the property of the landowners has never been used for any purpose other than a stock farm. It is located eight miles from Ashland, the population center of Boyd County; and it lies in a community where nothing but farming is engaged in. Then, too, there is a complete absence of testimony which manifests-any probability or immediate prospect of dividing any portion of the farm into lots for subdivision purposes. We conclude the landowners were not entitled to introduce evidence of this character as a basis for its market value. See Commonwealth, Department of Highways v. Gearhart, Ky., 383 S.W.2d 922; Bowling Green-Warren County Airport Bd. v. Long, Ky., 364 S.W.2d 167.

Turning now to the instructions which submitted this case to the jury, it is chiefly argued that the portion added by the trial court to “Instruction 4,” as offered by the Commonwealth, was error. We agree. A timely objection was interposed to this addition to Instruction 4. Complaint is also made that portions of other instructions proffered by the Commonwealth were deleted.

It would serve no good purpose to discuss at length the points raised by the Commonwealth, in view of the fact that there will no doubt be a retrial of this proceeding. If there be a new trial, this court in Commonwealth, Department of Highways v. Priest, Ky., 387 S.W.2d 302, 306, has succinctly set forth the instructions which should be ordinarily given in this type of case.

Two other errors that we believe occurred during the trial of this action need to be discussed briefly, as they may recur in the event of another trial.

The first of these arose during the cross-examination of C. M. Brumfield, one of the landowners, regarding his tax assessment listings for the years 1959 and 1960, which revealed the real estate involved in this action was assessed for $6200. He admitted he signed both returns but stated he did not swear to them. When he was asked to read to the jury the printed oath above his signature on each listing an objection was made and the trial judge stated: “It is not sworn to.” Upon inquiry to the judge if Brumfield would not be required to read the oath, he responded: “He didn’t take the oath.”

If the assessment valuation of land is fixed by the owner himself, the list may be introduced in a condemnation case upon the theory that it is an admission against interest. On the other hand, when the value shown on the return is not one placed upon the land by the owner, the return is not admissible as evidence of the market value of the land. See Commonwealth v. Gilbert, Ky., 253 S.W.2d 264, 266, 39 A.L. R.2d 205.

In the instant case, the signatures of Brumfield appear immediately beneath the “Oath of Taxpayer” printed on each list. Since he admitted he affixed his name to each assessment list, he will not be heard to say that each return does not truly represent valuations fixed by him. It is immaterial whether he swore to the statements contained in them, because it has been held that when a taxpayer signs an assessment return, even though he does not make oath thereto, it may be introduced and considered as an admission against interest. See Commonwealth, Department of Highways v. Rankin, Ky., 346 S.W.2d 714, 717. It was improper, therefore, when the trial judge stated in the presence of the jury that the assessment lists were not sworn to. (Moreover, the record indicates the 1960 list was properly sworn to.)

The next alleged error directs our attention to the failure of the trial judge to rule on and admonish the jury in respect to objections by the Commonwealth to allegedly improper statements made during the jury argument by counsel for the landowners. In passing upon such objections and a request for an admonition, the trial judge would neither sustain nor overrule the objection.

For instance, when counsel for the landowners told the jury they could arrive at the just compensation due the con-demnees only by considering both the “acreage taken” and the “damage done to the remainder by reason of the taking,” the Commonwealth objected and asked for an. admonishment upon the basis that the taking damage and the remainder damage do not represent the difference in the fair market value of land condemned before and after the taking. The trial judge simply stated to the jury: “You shall follow Instruction No. 3 in this matter.” Another objection was made and an admonishment requested upon the ground that a Commonwealth witness did not testify at all to a certain sum of money in a particular instance. The trial judge merely responded: “The jury will remember the item in the verdict and follow the instruction.”

It was the trial court’s duty specifically to sustain or overrule any objections made during the trial and, if an objection was sustained, the jury should have been admonished regarding it, if such a request was made. The court, in effect, left it to the jury to determine whether or not the objections interposed by the Commonwealth should have been sustained or overruled. This oblique practice of not passing upon and resolving a point raised and merely stating to the jury that they should try the case according to the testimony introduced or the instructions submitted has been consistently condemned by our opinions. See Brandenberg v. Addison and Brandenberg’s Ex’r v. Addison, 221 Ky. 442, 298 S.W. 1091; Cincinnati, N. O. & T. P. R. Co. v. Martin, 154 Ky. 348, 157 S.W. 710.

It is vigorously maintained that the verdict in this case is palpably excessive for the reason that it is not supported by evidence of probative value. In our opinion the award of $67,000 for 22.9 acres of unimproved farm land, or $2925 per acre, cannot be factually sustained. The attempt to support these figures, on the one hand, on the theory that the land taken was suitable for a prospective subdivision must fail. As we have pointed out, there is no substantial proof in the record that such a scheme of development was likely in the foreseeable future. On the other hand, the landowners, in their improvement of their land, indicate definitely they have always considered its best use to be that of a stock farm. They have cleared off the brush, constructed farm buildings, fertilized the soil, sowed grass seed, built stock scales, erected fences, and provided feed troughs and stock shelters. Furthermore, the farm is eight miles distant from the center of population of the county, and lies in a section of Boyd County where all the land is devoted exclusively to agriculture or stock raising.

We have heretofore stated that all the witnesses of the landowners, in part, based their estimates of the difference in the before and after value of the property on a false premise, namely, upon an assumed loss of access of the farm to Ky. 180 as reconstructed. The evidence indisputably discloses there is no such loss of access.

Thus, the erroneous admission of incompetent testimony in behalf of the landowners, timely objected to but allowed to be considered, had a prejudicial effect and afforded an improper evidentiary basis for the verdict. Under such a state of facts, we must hold that the verdict is palpably excessive for the reason that no foundation exists for the high values set in behalf of the landowners. See Commonwealth, Department of Highways v. Darch, Ky., . 390 S.W.2d 649; Commonwealth, Department of Highways v. Gearhart, Ky., 383 S.W.2d 922; Commonwealth, Department of Highways v. Williams, Ky., 383 S.W.2d 687; Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472; Commonwealth, Department of Highways v. Lyons, Ky., 364 S.W.2d 336.

Other alleged errors are urged for reversal of the judgment but we deem it is unnecessary to consider them because we believe that they will not recur if there be another trial of this action.

Wherefore, the judgment is reversed and the case is remanded for further proceedings consistent with this opinion.


author: MILLIKEN, Judge. STEINFELD, Judge.

text:
    Fehr KREMER, Appellant, v. Marion R. KOPMEYER et al., Appellees.
    Court of Appeals of Kentucky.
    March 31, 1967.
    Rehearing Denied Sept. 29, 1967.

      E. Gerry Barker, James W. Hendricks, Louisville, for appellant.
    Robert L. Sloss, Allen P. Dodd, Jr., Brown & Eldred, Joseph J. Kaplan, Louisville, for appellees.
   MILLIKEN, Judge.

The central issue presented on this appeal is whether the case should have been submitted to a jury.

The trial court granted judgment to the defendants in this libel action on their motion to dismiss on the ground that the complaint did not state a cause of action. Affidavits were filed by both sides to sustain their respective viewpoints, and the trial court entered judgment dismissing the complaint on the ground that the allegedly libelous publication was privileged as a fair report of the judicial proceedings set out in the exhibits and was not made for the purpose of causing harm to the appellant-plaintiff.

The appellant, Fehr Kremer, had asserted in his complaint that he “was and is the ‘former management of the Fehr Brewery’ * * * and was and is known to be by all of his associates, business acquaintances, friends and the general public,” and that the following item which appeared in the October 20, 1960, issue of the Louisville Chamber of Commerce’s magazine “Louisville” defamed him. The item was taken from a report to the stockholders of the Brewery made by the so-called “Kopmeyer Management Group” who succeeded Kremer to the management of the Company and who also are defendants in this action. The allegedly libelous article stated:

“The Internal Revenue Service proved to the satisfaction of the various courts that the former management of the Fehr Brewery had fraudently (sic) used large sums of the corporation’s money for their own personal benefit and entertainment — including frequent expensive vacations in Florida and elsewhere for themselves and their entire families. This not only depleted the brewery’s funds and led to eventual bankruptcy, but it created an additional tax liability of $156,000.”

The “various courts” referred to in the article were the United States District Court for the Western District of Kentucky, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court and involved tax returns of the Frank Fehr Brewing Company for the years 1948 through 1952 when the appellant, Fehr Kremer, was the executive vice president of the Company, director of sales and advertising and, in most respects, its chief officer because of the advanced age of his uncle, the president of the Company at the time. During this period the Company prospered, its taxable income varying from $231,000 in round numbers in 1952 to a high of $1,181,000 in 1949. It was subsequent to this period of time that the Company’s financial affairs depreciated sufficiently to cause it, while still solvent, to request in 1957 a Chapter 10 reorganization in the United States District Court, and in 1959 the Kopmeyer Management Group refinanced and took up management of the Brewery from the court appointed trustee. In its memorandum “In the Matter of Frank Fehr Brewing Company, in Proceedings for the Reorganization of a Corporation” the United States District Court said through Judge Shel-bourne that the tax returns of the Company for that period were sufficiently fraught with fraud to justify tolling the three-year statute of limitations in order to permit the Internal Revenue Service to collect additional taxes for that period caused by Fehr Kremer and his uncle incurring expenses which were charged on the Company’s books as Company expense as advertising, public relations, etc., when some of them were more properly chargeable as personal expense. Judge Shelbourne commented, “It is apparent from Mr. Kremer’s testimony that, in his opinion, they were legitimate expenses for advertising, creating good will, and in furtherance of the’ interests of the Corporation. However, it cannot be denied that he at all times knew there had been no recorded authorization for the expenditure of any such amounts by him. * * * ” and that Kremer knew all of this at the time the tax returns were made. The Court adjudged the Company tax returns were sufficiently fraudulent to toll the statute of limitations, but denied the Internal Revenue Service claim for the assessment of penalties. In Re Frank Fehr Brewing Co., 160 F.Supp. 631 (D.C.Ky.1958), affirmed Clarke v. United States, 274 F.2d 824 (Sixth Circuit 1960), cert. denied Kremer v. Clarke, 362 U.S. 963, 80 S.Ct. 880, 4 L.Ed.2d 878 (1960).

In his affidavit to counter the motion of the defendants to dismiss his complaint, the appellant, Fehr Kremer, points out that the United States District Court action concerned the Brewing Company, that he was not a party to it, and that there was no finding that the Company Management “of the Fehr Brewery had fraudulently used large sums of the Company’s money for their own personal benefit,” as the article in the magazine stated. He contends that the sole purpose of that litigation was to obtain tolling of the statute of limitations with respect to the years 1948 through 1952, and that most of the dis-allowances there involved pertained to inactive 80-year old Col. Frank Fehr’s salary as president and not to sundry expenditures made by him which crossed the shadowy line between promotional expenditures for the Company and personal expenditures for himself. He states at the time the allegedly libelous article was published in “Louisville” his own tax case was pending before the United States Tax Court and that he was subsequently absolved of any fraud. He filed a copy of the Tax Court opinion as an exhibit to his affidavit. The Tax Court expressly absolved him of any fraudulent intent to evade taxes saying:

“ * * * Petitioner (Kremer) was the major stockholder and chief executive officer of the Frank Fehr Brewing Company during the time here involved. There was evidence from which it can be concluded that a substantial sum of the amounts paid to or for the petitioner by the brewery should have been included in his income in each of the years in question. However, we are convinced that the petitioner believed the expenditures by the brewery to or for him were legitimate Company expenditures for the purpose of furthering the interests of the Brewing Company by creating good will and by developing a body of satisfied customers who operated the clubs, bars and other places where much of petitioner’s spending was done. It also appears that the amounts of Brewing Company funds paid to or for petitioner were not in any way concealed. On the contrary the Board of Directors knew of and approved the expenditures.” Fehr Kremer, Fehr Kremer and Nan D. Kremer, T. C. Memo 1961-337, Cite as ¶ 61, 337 P-H Memo TC, 12-18-61.

It is Kremer’s contention in his affidavit that at the time of the allegedly libelous publication in “Louisville” fraud on his part or on the part of the Company’s Management had not been established in any court, that the disallowed expenditures and the consequent additional tax levy did not lead to the eventual bankruptcy of the Company, and that the published account was not a fair report of what actually occurred and, consequently, was not privileged. He requested retraction of the article and was denied one. KRS 411.060 declares in part:

“ * * * The publication of a fair and impartial report or the whole or a synopsis of any indictment, warrant, affidavit, pleading or other document in any criminal or civil action in any court of competent jurisdiction shall be privileged, unless it is proved that it was published maliciously, or that the defendant after request by the plaintiff has failed to publish a reasonable explanation or contradiction thereof, giving the explanation or contradiction the same prominence and space as the original publication, or that the publisher has refused after request by the plaintiff to publish the subsequent determination of the proceeding. This section shall not authorize the publication of any indecent matter.”

We believe that different conclusions can be drawn as to whether the questioned article impartially and fairly states the situation and Kremer’s part in it, and for that reason we conclude that the case should have been submitted to a jury for its determination of that issue. 33 Am.Jur., Libel and Slander, Sec. 296. We likewise conclude that the issue of malice in publication of the article is a jury question, for “ * * * the great weight of authority supports the view that the motive by which the defendant was actuated must be determined by the triers of fact whenever the evidence raises the issue.” 33 Am.Jur., Libel and Slander, Sec. 297.

The judgment is reversed.

WILLIAMS, C. J., and HILL, PAL-MORE and OSBORNE, JJ., concur.

MONTGOMERY and STEINFELD, JJ., dissent.

STEINFELD, Judge.

I am of the opinion that the trial court was correct in dismissing the complaint. CR 12.02 authorizes consideration of matters outside the record to support a motion to dismiss.

Upon consideration of those outside matters, the charge that the statements were libelous, must fall. The opinion of two United States Courts support the statement that corporation funds had been used fraudulently for the personal benefit of the appellant and members of his family. The trips to Florida and the use of substantial funds were admitted. The additional tax liability was imposed. I consider the statements substantially true, therefore, there is no cause of action. State Journal Co. v. Redding, 175 Ky. 388, 194 S.W. 301; Plummer v. Commercial Tribune Publishing Co., 208 Ky. 210,270 S.W. 793.

The statement that depletion of the brewery’s funds in this manner led to eventual bankruptcy is a matter of opinion. “The propriety of the opinion, as fair comment thereon, is a matter of judgment.” American Law Inst. Restatement, Torts, Volume 111, section 566. This expression of opinion is not libelous.

The majority opinion refers to an opinion of the United States Tax Court but this opinion was rendered December 18, 1961 more than a year after the article appeared, therefore, it is not relevant.

For the reasons indicated I dissent.

MONTGOMERY, J., joins in this dissent.


author: CLAY, Commissioner.

text:
    Myrt CLARK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 19, 1967.
    Rehearings Denied Sept. 29, 1967.

      Morris Butler, Robert L. Dowell, Greens-burg, for appellant.
    Robert Matthews, Atty. Gen., H. N. McTyeire, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

The appeals in these two cases have been consolidated. Appellant was convicted of two separate offenses of selling and possessing alcoholic beverages in local option territory.

With respect to the offense of selling, she contends the indictment was defective because it did not name the purchaser of the liquor. Without deciding whether the indictment was sufficient under RCr 6.10(2) and RCr 6.12, the question presented was waived because the objection was not raised by motion before trial, which RCr 8.18 requires.

It is next contended it was not shown that Metcalfe County was local option territory. The Commonwealth’s attorney had stated in open court, “Let the record show that we have stipulated that Metcalfe County is local option territory”. This statement was made in the presence of defendant’s counsel and it was not questioned. While normally a stipulation should be in writing, we believe that with respect to a fact such as this (about which there was no question anyhow), defendant’s tacit agreement should be binding.

It is next contended that defendant was entitled to a directed verdict because the witness who purchased alcoholic beverages from her was cooperating with the county officials for his personal benefit. It seems this witness had been fined for a traffic violation which he would not be required to pay if he followed the directions of the sheriff in making this purchase.

We are unable to comprehend on what ground this witness should not be permitted to testify or why his testimony would be incompetent. He was examined to prove the fact of purchase. His motives or reasons why he participated in the transaction are completely irrelevant to the fact he sought to prove. The alleged employment or coercion of the witness might well affect his credibility, but would not render his testimony incompetent. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374.

It is also contended it was not shown that the purchase was made in Metcalfe County but there was ample proof of this.

With respect to the conviction for possession of alcoholic beverages in local option territory, the contention is made that the evidence should be suppressed because of the invalidity of the affidavit for a search warrant. This affidavit was made by the same witness who testified he had made the purchase. No contention is made that the affidavit is not sufficient on its face. It is argued that the person signing the affidavit was not sworn.

On the trial the person signing the affidavit testified he did not swear to it, but the person who acknowledged his signature testified positively that “he was sworn to this affidavit”.

In spite of the witness denying that he was sworn, the court would have been justified under the written and oral evidence in this case in finding to the contrary. However, we are of the opinion the principle applied in Reitzel v. Commonwealth, 203 Ky. 186, 261 S.W. 1106; Commonwealth v. Thacker, 299 Ky. 488, 17 S.W.2d 399; and Thornton v. Commonwealth, 245 Ky. 336, 53 S.W.2d 707, should be applied here. In those cases it was held the court will not go behind the affidavit for a search warrant to determine its sufficiency or to inquire into the truthfulness of the facts stated therein. Since there is no question here about the sufficiency of the affidavit, or about affiant’s signature, or even about the actual truth of the statements contained in the affidavit, we do not think the defendant may properly raise the collateral issue of whether, contrary to what the affidavit states, the affiant was formally sworn. The search warrant was valid because based upon a complete and proper affidavit on its face and the evidence obtained through its use was properly admitted in evidence.

The judgments in both cases are affirmed.

All concur.


text:
    Florence FENWICK, Administratrix of the Estate of Anna Hatchett, Appellant, v. Billy Ray DAUGHERTY, Appellee.
    Court of Appeals of Kentucky.
    May 19, 1967.
    Rehearing Denied Sept. 29, 1967.
    L. B. Lawton, Henderson, for appellant.
    Frank N. King, Jr., Dorsey & Sullivan, Henderson, for appellee.
   OSBORNE, Judge.

This action arises out of an accident which took place on U. S. Highways 60 and 41 within the city limits of Henderson, Kentucky. The highway runs generally north and south and, as it passes through the City, bears the name of Green Street. Green Street intersects with Seventh Street which runs in an east and west direction, Green Street being the through street. There are no traffic signals at the intersection of Green and Seventh Street, however there is a stop sign requiring traffic to stop on Seventh Street before proceeding onto Green. The maximum speed limit for the area is 35 miles per hour. Green Street is four lane with only a dividing line separating the two north-bound lanes from the south-bound lanes. The decedent, Ann Hatchett, along with her seven-year-old daughter, was attempting to cross Green Street in the vicinity of Seventh Street when she was struck by appellee’s automobile. At the point where Seventh Street intersects Green Street there is a marked crosswalk. The evidence is conflicting as to whether decedent and her daughter were in the crosswalk at the time of the accident. The officer who investigated the accident paced off a distance of 32 feet from the crosswalk to the body. At a later date, he measured with a tape the distance from the body to the south edge of the crosswalk and found this distance to be 51 feet, 1 inch. Appellee, Billy Ray Daugherty, was traveling south on Green Street following another vehicle approximately two car lengths. As he approached the intersection of Seventh, a car traveling at a faster rate of speed and in the same direction passed his automobile in the driving lane next to the curb or to his right. He testified that he observed two people standing in the middle of Green Street, side by side, facing east, just at the moment the automobile preceding him was about even with them. He states that at this time he was approximately two car lengths or 30 to 35 feet from the decedent and her daughter and was traveling 20 to 25 miles per hour.

His testimony is that he was unable to • observe the pedestrians prior to the accident because the preceding automobile blocked his view. Appellee further testified that ■“a split second” before his automobile reached the decedent she stepped, fell or otherwise moved back into the lane in which he was driving. He testified that possibly she was trying to move back from the path of another automobile that was approaching close to her and traveling in the opposite direction. He states that her move was sudden and without warning. Appellee’s automobile struck the decedent and carried her five to ten feet to the south. He did not blow his horn but did apply his brakes and tried to swerve to the right to miss her. No skid marks were left and immediately after the accident appellee pulled his car to the curb and stopped.

The record contains evidence by other persons who were eye witnesses to the accident. Their testimony does not agree in all respects with that of appellee but we deem the foregoing facts sufficient for a proper disposition of this case. The case was heard by a jury who returned a verdict for the appellee. Appellant is here contending that the instructions given by the trial court were erroneous in that they did not properly present the question of who had the right of way at the time of the accident and the failure of the trial court to give a least clear chance instruction. On the first contention, we agree with the appellant that the rights and duties of the parties depend upon and should be fixed by a determination of which party had the right of way. This is controlled by decedent’s position relative to the crosswalk. KRS 189.570(2) provides:

“Except as provided in subsection (4), where the traffic control signals are not in place or in operation the operator of' a vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked cross walk or within any unmarked cross walk at an intersection. If necessary in order to yield the right of way, the operator shall slow down or stop.”

See also Ellis v. Glenn, Ky., 269 S.W.2d 234.

If the decedent was in the marked crosswalk at the time she was struck, she had the right of way and the court should so have instructed the jury. If she were not within the crosswalk as defined by the statute, then of course the converse is true and the motorist had the right of way. KRS 189.570(4) (b).

We believe the court erred in not instructing the jury that if decedent was in the crosswalk at the time she was struck, she had the right of way.

In addition to the foregoing, appellant also contends that the trial court should have given a last clear chance instruction. As it is likely that this case will be tried again, we believe we should answer this contention.

In the case of Ellis v. Glenn, supra, the pedestrian had walked nearly to the center of Bardstown Road and was standing, waiting for a car approaching from Sils Avenue to pass. She testified that as it passed, she started to step over the yellow center line and was struck by the Ellis automobile. Here we held that a last clear chance instruction was proper. In Severance v. Sohan, Ky., 347 S.W.2d 498, which was a similar situation in that the pedestrian was in the center of the street, we held that the facts did not support a last clear chance instruction because the pedestrian did not stop or slow down sufficiently that the driver should have or could have seen her and therefore the driver did not have a “clear” chance. In Riley v. Hornbuckle, Ky., 366 S.W.2d 304, a pedestrian case similar to those previously cited, we distinguished Severance v. Sohon, supra, on the basis that the driver did have a “clear” chance and stated the rule as follows:

“ * * * the last clear chance issue should have been submitted to the jury. If it is to have any real effect as a humanitarian policy, we think the doctrine must be held applicable to the situation in which (as in the Saddler case) there is evidence that a pedestrian who was within the intended path of travel of an oncoming vehicle remained in that area of peril, with nothing to prevent the driver’s seeing him, long enough for the vehicle to move a distance of several hundred feet. When this occurs, there is usually a point in time at which the curtain closes on the ability of the pedestrian to get out of the way of a faster-moving vehicle while it yet remains open for the driver to shift his course. Whether that interim constitutes a ‘clear’ chance ought to be left to the jury.”

Recently we reaffirmed the principles set out in this case in Frank v. Silvers, Ky., 414 S.W.2d 887, rendered May 5, 1967.

We are of the opinion that if the facts as developed on a new trial are similar to those appearing in this record, the appellant should be given an instruction upon the theory of last clear chance.

The judgment is reversed.

WILLIAMS, C. J., and HILL, MILLI-KEN, PALMORE and STEINFELD, JJ., concur.