author: CLAY, Commissioner.

text:
    James E. MEADOWS, Appellant, v. The CHESAPEAKE & OHIO RAILWAY COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Warren M. Briggs, Cleveland, Ohio, Eldon L. Webb, Ashland, for appellant.
    Porter M. Gray, John M. Williams, Gray, Woods & Cooper, Ashland, Atkinson & Atkinson, Greenup, for appellees.
   CLAY, Commissioner.

Plaintiff appellant, driving an automobile, was struck by defendant appellee’s passenger train on a public railroad crossing. He survived, and in this suit for damages the trial court directed a verdict for defendant at the close of plaintiff’s evidence. Assuming defendant was negligent in the operation of its train, our question is whether plaintiff was contributorily negligent as a matter of law.

The accident happened at 1:30 a. m. on a clear night. There were three tracks running east and west over the crossing. The highway runs north and south. Plaintiff approached from the south, and the train approached from the west on the south rails. Plaintiff thus described the accident in his brief:

“Appellant stopped his automobile about ten or fifteen feet from the crossing and looked both ways for trains and listened for trains. The weather was clear, warm, and the moon was shining. The front left window of his automobile was partly down and the automobile was running smoothly. Appellant was listening, but saw nothing to indicate the approach of a train. Appellant was looking, but saw nothing to indicate that approach of a train. After having stopped a reasonably safe distance from the crossing and having looked and listened for the approach of trains, appellant started across the rough crossing at a speed of three or four miles an hour with his eyes on the road in front to avoid going off on either side of the crossing.
“Appellant proceeded in this fashion for five or six seconds to a point where the front portion of his automobile had cleared the southern track at which time he was struck by the company’s passenger train proceeding east on the southern track.”

The train was traveling 65 miles an hour. It had a light on it, although there is some conflict in the evidence as to the kind of light. As one approaches the crossing from the south, the view to the west is obstructed by a barn, a large tree and undergrowth bordering the right of way. However, from a point approximately 15 feet south of the southern rail there is an unobstructed view of the tracks (which curve to the north) for 1200 feet.

Plaintiff knew this crossing well. He lived close by and had traversed it daily for six weeks. He knew that a large number of trains passed every day.

Two of plaintiff’s witnesses, who resided 400 feet north and 200 feet west of the crossing (the direction from which the train approached), testified that they heard and saw the train as it approached and passed their house. Plaintiff testified he did not see or hear the train until he was struck. He had never looked to right or left when he proceeded slowly after stopping 10 or 15 feet back from the crossing.

On this set of facts we must determine if the circuit court erroneously concluded that reasonable minds could not differ on the issue of whether, plaintiff exercised reasonable care for his own safety. It must be conceded that, whether or not this crossing may be described as “extra-hazardous”, the view of a highway traveler going north was substantially obstructed until he was within 10 or 15 feet of the crossing. However, plaintiff knew this, and he also knew that this crossing daily carried heavy train traffic. Known hazards exact greater care on the part of the traveler than those which are unknown. Louisville and Nashville Railroad Co. v. Fisher, Ky., 357 S.W.2d 683; Hargadon v. Louisville and Nashville Railroad Co., Ky., 375 S.W.2d 834.

We are unable to comprehend how this accident could have happened if plaintiff took the precautions he said he did. Had he stopped, looked and listened as he testified, one wonders why he did not see and hear this train. Assuming he could not see or hear it at the point he stopped, he completely abandoned precautions as he slowly approached the crossing.

The pertinent factors and controlling principles which govern a case of this sort have been carefully considered in the recent cases of Louisville & Nashville Railroad Company v. Hines, Ky., 302 S.W.2d 553; Louisville and Nashville Railroad Co. v. Fisher, Ky., 357 S.W.2d 683; Hargadon v. Louisville and Nashville Railroad Co., Ky., 375 S.W.2d 834; Louisville & Nashville Railroad Company v. Dunn, Ky., 380 S.W.2d 241. It would serve no useful purpose to restate the standard of care required of a motorist at a railroad crossing, or to emphasize his duty to take reasonable precautions to see and hear the approach of a train before he commits himself to a position of peril. With knowledge of the physical characteristics of this crossing, plaintiff’s own testimony shows that he blinded himself, at a critical time, to a hazard he could anticipate and observe. The preliminary care he said he exercised accomplished no purpose and did not relieve him of the duty of continuing care when it would count. This is especially true while traveling at an extremely slow rate of speed (according to his testimony) as he approached the immediate vicinity of the crossing. See Cincinnati, New Orleans & Texas Pacific Railway Co. v. Ferguson, Ky., 385 S.W.2d 947. ' We cannot find that the lack of care shown constituted reasonable prudence under the circumstances. We do not believe reasonable men could conclude otherwise, and a verdict was properly directed for the defendant.

It is unnecessary for us to pass upon plaintiff’s contention that the defendant was negligent since we have assumed it. As we pointed out in Louisville & Nashville Railroad Company v. Dunn, Ky., 380 S.W.2d 241, the breach of duty by the railroad does not extinguish the motorist’s obligation to exercise due care.

The judgment is affirmed.

All concur.

      . We are impressed with the fairness, accuracy and excellence of the briefs prepared by appellant’s counsel.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    BUTLER COAL, INC. and Williams Brothers Stripping Corporation, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Henry J. Potter, Jr., Bowling Green, for appellants.
    Robert Matthews, Atty. Gen., H. C. Smith and C. E. Skidmore, Dept, of Highways, Frankfort, for appellee.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, obtained from a landowner, for highway purposes, a deed in fee simple to a tract of 50 acres. This tract was part of a larger acreage on which there was an outstanding mineral lease in favor of Butler Coal, Inc. However, the lease had not been worked and was being kept alive only by delay rental payments on an annual renewal date of May 23.

After obtaining its deed in December 1961 the Commonwealth let a contract for construction of a highway to pass over the 50-acre tract, and in March 1962 the contractor staked out the right of way. In April the contractor cleaned and grubbed out the right of way. However, excavation was not begun until June 14. In the meantime, the mineral lessee failed to make the delay rental payment due on May 23, 1962, whereupon the lease terminated.

In a condemnation action which the Commonwealth had brought it was adjudged that the mineral lessee had no compensable interest in the 50-acre tract and that the Commonwealth had not taken any property of the lessee. The latter has appealed from that judgment, claiming only that the actions of entering upon the land with construction equipment, staking out the right of way, and cleaning and grubbing off the right of way, before the lease had expired, constituted a “taking” of the lessee’s property.

We find no merit in the lessee’s claim. Being the owner of the surface, the Commonwealth had the right to use the surface in any legitimate manner so long as it did not unnecessarily obstruct or interfere with the rights of the owner of the mineral estate; Wells v. North East Coal Co., 274 Ky. 268, 118 S.W.2d 555; or impose an unreasonable burden on the mineral estate. Jenkins v. Depoyster, 299 Ky. 500, 186 S.W.2d 14. Here, during the period the mineral lease remained in effect, there was no material obstruction of, interference with, or burden on the mineral estate. The mere presence of movable machinery of the highway contractor on the premises was at the most a temporary obstruction not amounting to a “taking” of the mineral estate.

The judgment is affirmed.

All concur.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. John T. BOONE et al., Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.

      Robert Matthews, H. C. Smith, Sp. Asst. Atty. Gen., Department of Highways, Louis J. Amato, Catlett & Amato, Frankfort, for appellant.
    E. E. Hubbard, John S. Kelley, Fulton, Hubbard & Kelley, Bardstown, for appel-lees.
   HILL, Judge.

This is an appeal by the Department of Highways of this Commonwealth from a judgment in a condemnation action to acquire right-of-way for construction of the Bluegrass Parkway and for relocation of a portion of a county road.

Prior to the taking, the appellees owned a farm of approximately 385 acres some eight and one-half miles west of Bardstown, Kentucky, on Kentucky Highway 733, a blacktop highway known as the Boston-Bellwood Road. Highway 733 bisected the farm with approximately 140 acres north of the road, 105 acres of which was in young timber and not very valuable and 35 acres in pasture, and approximately 245 acres on the south side. All improvements, bottomland which was used for cultivation, and a second bottom pasture were located south of Highway 733. The taking in this action was in the clean, gently-rolling part of the farm south of the road. The improvements consisted of a nine-room colonial brick home, an 85' x 122' dairy bam with milk parlor, loft, hay storage shed with concrete floor and electricity, a 24' x 60 hay barn, a 4CK x 72' tobacco barn, a 22' x 38' corn crib, sheds, a concrete block garage, other out buildings, feeder pens and troughs and a tenant house.

It is undisputed that at the time of taking, appellees had perhaps the best Grade A dairy farm in Nelson County.

Appellant sought to condemn 29.66 acres in fee and a permanent easement in 4.25 acres for drainage channels. The property taken was good tractor land. Located on the strip of land taken were a tobacco barn, some cattle pens and cattle troughs.

The county court commissioners awarded the sum of $26,495 as damages, from which both parties appealed. A trial by jury was held in circuit court, and after viewing the premises and hearing the evidence, the jury awarded the sum of $33,166 as the difference in the market value before and after the taking and $100 for a temporary easement. Appellant contends on this appeal that the verdict is not supported by evidence of probative value and that it is excessive.

Nowhere in appellant’s brief is it pointed out in what respect the appellees’ evidence lacked probative value except to say that there are inherent inconsistencies in the evidence of appellees’ witnesses.

Five witnesses, including appellee John T. Boone, testified for appellees on the before and after value of the farm. Four of these witnesses were local real estate dealers or brokers with years of experience. Obviously they were well qualified from the standpoint of experience. It may be noted here that there is not a great deal of difference in the after value of the farm as fixed by the appellees’ witnesses and that fixed by the witness for the appellant. The appellant’s witness fixed the after value at $45,-800, while appellees’ witnesses fixed the after value ranging from a high of $42,500 to a low of $40,000; and the jury set the after value at $44,000, which is only $1800 below the appellant’s after value.

The real bone of contention between the evidence for appellant and that of appellees stems from the variation between the before value testified to by the witness for the appellant and the before value fixed by the witnesses for the appellee. Appellant’s one witness thought the before value was $60,800; appellees’ witnesses opined that the before value ranged from $80,000 to $87,500.

It should be remembered in connection with the before value that the evidence is undenied that appellees paid $58,000 for the farm in 1960 and spent $20,000 to $22,000 on improvements.

In the light of this evidence, we cannot say the appellees’ evidence on the before value lacked probative value. It looks like persuasive evidence to us. See Commonwealth, Department of Highways v. Fister, Ky., 373 S.W.2d 720 (1963); Commonwealth, Department of Highways v. Vaughn, Ky., 390 S.W.2d 146 (1965); and Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963).

It should be noted here that the improvements were undisturbed except for a tobacco barn and some cattle pens and troughs. The tobacco barn was 40' x 72'. There was no evidence on the age or value of the improvements destroyed. They were certainly of some considerable value, and the jury had a right to consider their value in arriving at the after value of the farm. The loss of these improvements may well account for the difference between after values fixed in the testimony. Furthermore, the farm is cut into five separate tracts by the taking, resulting in the cost of fencing and construction of approaches, to say nothing of water problems and impairment to the value of the farm as a unit for a dairy operation, clearly its highest and best use. It is common knowledge that the value of facilities for the operation of a dairy farm plummet to a low level when grazing conditions supporting such facilities are lost or seriously impaired.

Finally, we come to the question was the verdict excessive? From our comments on the probative value of the evidence and the discussion of the facts, the reader, no doubt, has anticipated our answer to this question will be in the negative. The anticipation is correct. Our answer is no. We do not consider the verdict so excessive as to strike the mind at first blush that it was arrived at in passion or prejudice. See Commonwealth, Department of Highways v. Barton, Ky., 398 S.W.2d 694 (1966) and Commonwealth, Department of Highways v. Riley, Ky., 402 S.W.2d 840 (1966).

In Commonwealth, Department of Highways v. Sea, Ky., 402 S.W.2d 842 (1966), it was said that “the separation of a farm, having farming as its highest and best use, may materially and substantially impair its market value as a unit.” See also Commonwealth, Department of Highways v. Arnett, Ky., 401 S.W.2d 762 (1965).

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    Elmer Joseph JAGGERS, Petitioner, v. Brent C. OVERSTREET, Special Judge and Frank A. Ropke, Presiding Judge, Respondents.
    Court of Appeals of Kentucky.
    Jan. 20, 1967.

      Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, amici curias.
    Stuart L. Lyon, David Kaplan, Jim Webb, Louisville, for petitioner.
    Carl C. Ousley, Jr., First Asst. Commonwealth’s Atty., Louisville, for respondents.
   DAVIS, Commissioner.

Elmer Joseph Jaggers has been found guilty of murder by a jury whose verdict fixed his punishment at death. By this original proceeding in this court Jaggers seeks to prohibit Honorable Brent C. Over-street from “any further trial authority in this case.” An order denying the relief was entered December 16, 1966, and this opinion will relate the court’s bases for the order.

Honorable Frank A. Ropke is the regularly elected and presiding judge of the Jefferson Circuit Court, First Criminal Division. Judge Ropke was made a respondent herein but no specifice relief is sought against him. For an interval after October 6, 1966, Judge Ropke was unable to preside over the court due to illness. On that date an order was entered reciting that Judge Ropke was necessarily absent and that no other judge of the Jefferson Circuit Court was present to hold court. The order reflects that “ * * * the members of the bar held an election and the Honorable Brent C. Overstreet, a member of this bar, having qualifications as a circuit judge, was elected special judge for this occasion. Thereupon, came Brent C. Overstreet and qualified as such special judge by taking the oaths as prescribed by law.”

It appears that Judge Ropke’s indisposition continued, and that a similar order appointing Mr. Overstreet was entered at the opening of each day’s session of that division of the Jefferson Circuit Court. The trial date for Jaggers’ murder trial was November 1st, 1966. An order was entered November 1st, 1966, again reciting the absence of Judge Ropke and other judges, and the election of Mr. Overstreet as special judge “ * * * for this occasion and period.”

A subsequent trial order for November 1st, 1966, reflects that petitioner Jaggers appeared in person and with counsel, and that the trial was had before a duly qualified jury. The same order includes the jury’s verdict.

On November 4, 1966, petitioner filed motion and grounds for new trial, enumerating several grounds upon which he deemed himself entitled to have the verdict set aside and a new trial of the cause. There was no reference in the motion and grounds for new trial to any objection concerning the regularity of the appointment of the special judge who had tried the case. It is conceded that neither Jaggers nor his counsel interposed any objection to Mr. Overstreet’s acting as special judge in the case.

KRS 23.230 furnishes the mechanism for appointment of special circuit judges in this jurisdiction. In pertinent part Subsection (1) of the statute provides:

“When, from any cause, a judge of any circuit court * * * fails to attend * * * the parties, by agreement, may elect one of the attorneys of the court to preside on the trial or hear the application, or hold the court for the occasion. * * ”

Subsection (2) of KRS 23.230 makes provision for the appointment of a special circuit judge by the Chief Justice of the Court of Appeals in specified situations, including a situation in which the parties cannot agree upon an attorney as provided in Subsection (1), but is not apposite here.

The order of the court relating to the “election” of Mr. Overstreet leaves much to be desired as recital of his “election” by agreement of the parties. Better practice would suggest the entry of a written agreement of the parties that the particular case be submitted to a special judge in compliance with KRS 23.230(1). However, the statute makes no requirement that the “election” by “agreement of the parties” be documented by any formal writing subscribed by the parties. It is manifest that petitioner and his counsel were present in the court when the trial opened. It is certain that all parties to the case knew that Judge Ropke was not present and that Mr. Overstreet was performing as a special judge in his stead. There was no whisper of objection to Mr. Overstreet’s presiding. In our view this was tantamount to an agreement by all parties that Mr. Overstreet should serve as the special judge in the murder trial of petitioner Jaggers.

There can be no doubt that Jag-gers and his counsel could have explicitly agreed for Mr. Overstreet to serve as special judge pursuant to KRS 23.230(1). See Philpot v. Commonwealth, 240 Ky. 289, 42 S.W.2d 317; Sergent v. Commonwealth, 133 Ky. 284, 117 S.W. 362. Participation in the trial before Special Judge Overstreet, without objection to his authority to so preside, was agreement to his election as special judge, and as effective as an explicit written agreement would have been.

It is suggested that in capital cases this court will reverse for error, even if timely objection was not made. So it is, but that principle does not afford a basis for relief here. In the first place, it is settled that a litigant, including a defendant in a criminal case, may waive objection to irregularity in the appointment of a special judge. See Feck v. Commonwealth, 264 Ky. 556, 95 S.W.2d 25; Sergent v. Commonwealth, 133 Ky. 284, 117 S.W. 362; Tabor v. Armstrong, 30 KLR 938, 99 S.W. 957. Thus, the failure to object to Special Judge Overstreet was not failure to object to a prejudicial error — it was an agreement that he serve, hence there was no error. Secondly, even if there had been error it would have been one reviewable by appeal. In such case the extraordinary remedy sought here is not available. Massengale v. Warren, Ky., 378 S.W.2d 221; Wright v. Ropke, Ky., 393 S.W.2d 796.

For the reasons herein assigned, the relief sought has been and is denied.


text:
    Wayne MARCUM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Fritz Krueger, Somerset, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, C. Homer Neikirk, Commonwealth’s Atty., J. A. Montgomery, County Atty., Somerset, for ap-pellee.
   DAVIS, Commissioner.

Wayne Marcum was tried again after the reversal of his earlier conviction for violation of the local option law. See Marcum v. Commonwealth, Ky., 398 S.W.2d 886. He was again convicted and has attempted to prosecute a second appeal. The Commonwealth has moved to dismiss the appeal for procedural defects in its prosecution.

Verdict and judgment of conviction in this proceeding were entered on June IS, 1966. A motion for new trial was filed in the circuit court on June 22, 1966. The motion was overruled by order entered July 9, 1966. Notice of appeal was filed on July 16, 1966.

The certificate of service appended to the motion for new trial is in this language:

“I certify that a copy of the above Motion has this day been handed to Hon. C. Homer Neikirk Attorney for Plaintiff.” (signed) Fritz Krueger, Attorney for Defendant.

RCr. 12.54 prescribes the time within which an appeal may be taken to the Court of Appeals in a criminal case. The rule is thus worded:

“The time within which an appeal may be taken to the Court of Appeals shall be ten days from the entry of the judgment or order appealed from, but if a timely motion has been made for a new trial or in arrest of judgment, an appeal from a judgment of conviction may be taken within ten days after entry of the order denying the motion.”

It becomes necessary to ascertain whether the motion for new trial was “timely” made in order to determine whether that motion suspended the running of the time within which to perfect the appeal. RCr. 10.06 relates to the time for making a motion for new trial and is thus stated:

“The motion for a new trial shall be served not later than five days after return of the verdict. A motion for a new trial based upon the ground of newly discovered evidence shall be made within one year after the entry of the judgment or at a later time if the court for good cause so permits.”

It will be observed that RCr. 10.06 directs that the motion for new trial shall be served not later than five days after return of the verdict. The rule is silent as to when such a motion must be filed. In the case before us the only showing of service of the motion is contained in the quoted certificate of service, and is there said to have been accomplished on “this day.” However, the certificate is not dated, so there is no certification as to when “this day” occurred. Perhaps the certificate would support the inference that it was served not later than the date upon which the motion was filed (which we do not need to decide), but it affords no basis for an inference that it was served before the day upon which it was filed.

Since the motion for new trial was not filed until June 22, it came more than five days after the return of the verdict. Thus, it was not a timely motion unless it had been served not later than five days after return of the verdict. The onus of demonstrating that the motion was timely served rests upon the movant. Here there is no showing whatever that the motion was served at any time prior to June 22nd — more than five days after the return of the verdict. Significantly, the appellant’s counsel does not allege that the motion was served timely, but takes the position that the record fails to show that the motion was not served in time. As noted, we are of the view that this negative approach is not the proper one — rather the obligation rests upon the movant to show affirmatively that the notice was served in time. This he has failed to do. It follows that the motion was not timely filed, and did not operate to suspend the running of the time for filing notice of appeal. Thus, the notice of appeal was not timely filed.

Appellant points out that RCr. 10.02 (2) authorizes the trial judge to order a new trial, on his own initiative, not later than ten days after return of the verdict. It is reasoned that since the motion for new trial was filed within that ten-day period, it becomes timely in light of RCr. 10.02(2). This argument overlooks the fact that the trial judge did not grant a new trial — on his own initiative or otherwise. RCr. 10.02(2) affords the trial judge a ten-day period in which to grant a new trial, even without a motion, but that rule does not enlarge the time for the filing of the motion for new trial; if it did, RCr. 10.06 would be mere surplusage.

The appeal is dismissed.

      . Newly discovered evidence was not included as a ground for the instant motion.


author: WADDILL, Commissioner.

text:
    Dallas G. HOWARD, Appellant, v. Betty Lynn HOWARD et al., Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Thomas D. Shumate, Shumate, Shumate & Flaherty, George W. Robbins, Richmond, for appellant.
    James S. Chenault, Chenault, Coy & Sword, Clay Shackelford, Shackelford, Burnam & Thompson, Richmond, for ap-pellees.
   WADDILL, Commissioner.

Appellant, Dallas Howard, instituted this action seeking a divorce from appellee, Betty Howard, on the ground of cruel and inhuman treatment. Betty counterclaimed for a divorce on the same ground and asked for lump sum alimony of $30,000, the custody of their son, and for the payment of the costs of the action. Insofar as pertinent herein, the chancellor granted Betty an absolute divorce, awarded her alimony in a lump sum of $23,310, and ordered Dallas to pay the costs of the action, including a fee of $2,000 to the attorneys representing her.

Dallas contends that the sums awarded for alimony and attorneys’ fees are excessive and are based upon erroneous findings concerning the value of his property.

The allowance of alimony, the form of its payment, and the fixing of attorneys’ fees are matters resting in the sound discretion of the chancellor and are to be decided upon the peculiar facts of each particular case. Petrie v. Petrie, Ky., 262 S.W.2d 182; Dalton v. Dalton, 304 Ky. 223, 200 S.W.2d 469. With this rule to guide us, we consider the contentions urged on this appeal.

Dallas and Betty were married on June 1, 1948, and are now 43 and 35 years of age, respectively. They have one child, Michael, who is now about seventeen years of age. Although there was uncontradicted testimony that in recent years Betty had flagrantly neglected her duties to her family, the chancellor found that she, rather than Dallas, had established grounds for divorce and predicated the award of alimony upon a finding that Dallas’ net worth was not less than $55,500.

Some of the important factors that properly should be considered in fixing alimony are the value of the husband’s estate, the ages, health and earning capacities of both the husband and wife, as well as their station in life and the length of time of their marriage. Ralston v. Ralston, Ky., 396 S.W.2d 775; Hicks v. Hicks, Ky., 290 S.W.2d 483. The record in the instant case reflects that the chancellor observed most of the appropriate factors. Thus, the only questions for us to consider with regard to alimony are whether the evidence supports the finding of Dallas’ net worth and whether 42% of that amount is an excessive award for Betty under all the circumstances presented.

Dallas’ testimony is the only evidence concerning the value of his property. He valued a house he owns in Wallace Court Subdivision, Richmond, Kentucky, at not more than $21,500, while the chancellor valued it at $23,000; Dallas valued his residence in Richmond at $20,000 to $21,000, while the chancellor fixed it at $21,500; and Dallas placed no value on his furniture, while the chancellor listed it at $1,500. In light of the evidence, Dallas’ property was overvalued by the chancellor in the amount of $3,500 and, therefore, his net worth is $52,000.

Since Betty is young, in good health, recently employed at $50 a week, and has encouraged and contributed to the break-up of the marriage, we are limiting her award of alimony to a lump sum of $17,335, secured by a lien upon Dallas’ property, which sum is approximately one-third of Dallas’ net worth. See Ralston v. Ralston, supra; Heustis v. Heustis, Ky., 346 S.W.2d 778.

The record in this case shows that several able attorneys represented each of the party litigants in this heated controversy. After a careful review of the case we are unwilling to hold that the chancellor abused his discretion in allowing the fee in question.

The judgment is affirmed in part and reversed in part with directions to enter a judgment in conformity with this opinion.

WILLIAMS, C. J., and MONTGOMERY, MILLIKEN, PALMORE and STEINFELD, JJ. concur.


text:
    William CREECH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Bernard J. Blau, Newport, for appellant.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., Frankfort, Frank Benton, III, Comonwealth’s Atty., Newport, for appellee.
   DAVIS, Commissioner.

William Creech was found guilty of being an accessory before the fact to the crime of armed assault with intent to rob. KRS 431.160; 433.150. The jury’s verdict fixed his punishment at imprisonment for 21 years. Upon this appeal he presents several purported grounds for reversal, but we deem it necessary to consider only whether the Commonwealth presented sufficient evidence tending to connect Creech with the commission of the offense, apart from the evidence of two accomplices. RCr 9.62.

As related by the accomplices, Francis Brossart and James Lucas, the appellant Creech and Lucas arranged for Brossart (a somewhat mentally-retarded youth of 17) to undertake an armed robbery of Bernard Finkelman. Creech and Lucas outlined the plans for the crime to Brossart, and obtained a pistol which Creech delivered to Brossart, although it was not Creech’s weapon. The plan was for Brossart to conceal himself in the automobile of Fink-elman, armed with the pistol, and rob him when he unsuspectingly entered the car. Creech and Lucas were to stand by in concealment to assist Brossart to depart the crime-scene with impunity. The plan misfired, literally. Brossart shot himself with the gun in his fumbling effort to rob Finkelman. Even so, Creech and Lucas succeeded in spiriting Brossart from the scene to a temporary refuge, from which Brossart was shortly routed by the police.

About an hour or hour-and-a-half before the assault Brossart and Creech were walking together on Brighton Street, near Tenth Street in Newport; this point was about a block from Finkelman’s store, and about three blocks from Creech’s residence. As they walked together they were observed by a detective, who interrupted the stroll by taking Brossart to police headquarters for questioning; Creech was not taken by the police, and allegedly went on home. The police released Brossart and he undertook the robbery later that same night, March 3, 1966.

On March 4, 1966, the police picked up Creech and questioned him briefly; he was then being charged (although not formally) with contributing to the delinquency of Brossart, a minor. It was some few days later that the police again had Creech come into headquarters for an interview. Detective Patrick Ciafardini testified that he advised Creech of his right to have counsel and to remain silent, as well as of the fact that anything he might say could be used against him. The detective said that Creech informed him that he did not desire to make any statement, and that no statement was obtained from him. It is apparent that the detective used the term “statement” in the sense of a formal written instrument.

Despite Creech’s having informed the detective of his desire to remain silent, Brossart was brought into Creech’s presence by the detective and was asked to relate what Brossart had theretofore confessed; the confession of Brossart implicated Creech fully. As a part of Bros-sart’s recital he asserted that Creech had delivered to him the pistol used in the attempted robbery. At this point the detective inquired of Creech: “Bill, is that right?” Then, according to • Officer Ciafardini, Creech responded: “O.K., Pat. Giving him a gun would be like putting a pack of matches in a kid’s hands.” We observe that the quoted statements are as they appear in the record as it relates to voir dire examination, out of the presence of the jury. The trial court overruled Creech’s objection to the admission of this reference to “putting a pack of matches in a kid’s hands.”

When the detective gave his evidence before the jury the version of the incident was slightly modified. He did not relate that he had posed the question: “Bill, is that right ?” and in recounting what Creech had said phrased it this way: “Well, Pat, it was just like putting a pack of matches in a kid’s hands.”

There is really nothing else in the entire record which may be deemed as corroborative of the testimony of the two accomplices. It is our view that the bare statement, whether it was uttered in the words recorded on the voir dire examination, or as stated in the testimony before the jury, falls short of meeting the corroborative requirements imposed by RCr 9.62. The bare statement is susceptible of various interpretations, most of them as consistent with an innocent proclamation as with an incriminating one. This is particularly so in light of the fact that Brossart was shown to be a youth of retarded mentality. The statement could mean that Creech regarded the confession obtained by the police from Brossart as having been easily accomplished, or it could indicate Creech’s idea of pointing out that no sensible person would have handed Brossart a gun. We are not able to read into the statement anything tending to connect Creech with the commission of the offense.

This court has dealt often with the sufficiency of corroborative testimony in accomplice cases. See 6 Ky.Digest Criminal Law ©^Sll. Each case rests upon its particular facts as those facts may or not fall within the legal concepts. Examples of cases in which the corroborative testimony has been held insufficient include Daggit v. Commonwealth, 314 Ky. 721, 237 S.W.2d 49; Bryant v. Commonwealth, Ky., 277 S.W.2d 55; Commonwealth v. Truglio, Ky., 371 S.W.2d 648; Hartsock v. Commonwealth, Ky., 382 S.W.2d 861. Without undertaking an analysis of these and other cases of similar import, we consider it sufficient to say that we are persuaded that they impel the conclusion that the evidence at hand was insufficient to corroborate the testimony of the accomplices within the purview of RCr 9.62.

We need not decide whether the rationale of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and cases of that tenor was applicable to the trial at which Creech was convicted. It is certain that the principles enunciated in Escobedo, and in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, will be applicable in the event of another trial. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.

It appears, therefore, that the court should not admit Creech’s statement relating to the “pack of matches” since it was elicited while Creech was in custody and after he had affirmatively declared that he did not desire to make any statement.

The other alleged errors are deemed to be without merit and will not be discussed herein.

The judgment is reversed for proceedings consistent with the opinion.

All concur.


author: STEINFELD, Judge.

text:
    Lester WENK et al., Appellants, v. David RUBY et al., Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.

      Val A. House, Jr., Scottsville, for appellants.
    Paul R. Huddleston, Huddleston & Huddleston, Bowling Green, for appellees.
   STEINFELD, Judge.

The present action is another effort to enforce collection of claims reduced to judgment.

Lester Wenk and L. C. Tabor filed suit against Black Rock Oil Corporation, David Ruby, Milton Singer and Business Development Company, Inc. Wenk demanded “that his judgment lien be enforced.” The “judgment lien” to which Wenk referred was predicated upon a judgment entered on October 9, 1961, in the Allen Circuit Court. In part, that judgment provided:

“That Lester Wenk shall recover from the defendant Black Rock Oil Corporation, the sum of $5,293.96, for labor and materials on the D. S. Oliver and T. Y. Oliver leases, with 6% interest thereon from October 28, 1959, until paid; * * ”

It also directed:

“The three leases ordered sold herein shall be sold subject to the following liens and indebtedness which the purchaser or purchasers shall assume:
1. Lien and judgment of Lester Wenk in the amount of $5,293.96 with 6% interest against D. S. Oliver and T. Y. Oliver leases.”

Tabor demanded “that his execution lien be enforced.” The execution to which he referred was issued pursuant to the same judgment. As to him, it read:

“Judgment is entered for L. C. Tabor against the defendant, Black Rock Oil Corporation, in the sum of $425.00 and interest from date until paid, and for which execution may be issued.”

For a statement of facts regarding pertinent litigation see Wenk, et al. v. Ruby, et al., Ky., 379 S.W.2d 55, decided April 17, 1964. The appellants and the appellees in the 1964 appeal were Lester Wenk, L. C. Tabor, David Ruby, Milton Singer and the Fidelity Deposit Company of Maryland. Black Rock Oil Corporation, while a party to that litigation was not designated either as an appellant or appellee in this court when that appeal was brought here.

After the decision was rendered on April 7, 1964, Wenk and Tabor made various motions in the original action by which they sought to have the court modify or supplement the original judgment so that they could force a sale of the subject leaseholds and thereby obtain satisfaction. They also sought to make Business Development Company, Inc. a party to those actions. They claimed that Ruby and Singer on December 2, 1963, had sold and transferred the leaseholds to Business Development Company, Inc. Ruby and Singer resisted. On August 28, 1965, the court overruled these motions. Nothing more was done.

Another suit was filed, the judgment of which is now before us. The parties are Black Rock Oil Corporation, David Ruby, Milton Singer and Business Development Company. Inc. The lower court made findings of fact and conclusions of law and entered a final judgment on June 29, 1966. It dismissed the claims of Wenk and Tabor and on the counter-claim filed by Ruby and Singer on behalf of Business Development Company, Inc., it enjoined Wenk and Tabor from attempting to bring about a sale of certain leaseholds and equipment owned by Business Development Company, Inc.

Tabor moved that he be permitted to appeal. The motion was sustained. Wenk appeals as a matter of right. They designated Ruby, Singer, Black Rock Oil Corporation and Business Development Company, Inc. as the appellees. Since Wenk, Tabor, Ruby, Singer and Black Rock Oil Corporation were parties to the 1964 litigation, the opinion on that appeal is the law of this case as to them. It is binding on those parties, the trial court and the Court of Appeals. Martin, et al. v. Frasure, et al., Ky., 352 S.W.2d 817.

In the 1964 decision we held that “neither of the appellants had a right under the judgment to insist upon a sale of property to satisfy their claims.” We also said “the liens may be enforced by further proceedings in this action for that purpose, but not under the judgment as it now stands.” Wenk and Tabor brought the current action to enforce Tabor’s execution and Wenk’s lien. They alleged that Business Development Company, Inc. (the only new party to the current litigation) is claiming some interest in the property and they demanded that it set up that interest or be barred. Business Development Company, Inc. did not answer. Ruby and Singer filed a counter-claim seeking to enjoin Wenk and Tabor from continuing their efforts “to attach or sell the W. H. Foster, D. S. Oliver and T. Y. Oliver oil and gas leaseholds and equipment now owned and held by Business Development Company, Inc., as the as-signee of Ruby and Singer.”

Tabor’s efforts are to enforce an execution issued on the judgment in the original action. He has not referred us to any rule of law which permits him to bring a subsequent action, under the circumstances existing here, to obtain a sale of property levied on in the prior action. We know of none.

In the 1964 decision we stated “that the original judgment did not direct a sale of the leaseholds to satisfy the claim of Wenk,” and that “under the judgment” Wenk had no right “to insist upon a sale of the property to satisfy” the claim he is asserting here.

Wenk also has not furnished to us authority which authorized him to bring this separate action to obtain a sale of property by reason of a lien adjudged to him in the earlier proceeding. We know of none.

We adhere to the principle that 'piecemeal litigation is contrary to the policy of the courts. Perry’s Adm’r v. Louisville & N. R. Co., 199 Ky. 396, 251 S.W. 202, 39 A.L.R. 560; 1 Am.Jur.2d 648, sec. 127.

The trial court was correct in dismissing the action brought by Tabor and Wenk.

However, it is also our opinion that the court below was in error in granting an injunction against Tabor and Wenk prohibiting them from efforts to subject property held by Business Development Company, Inc. to the satisfaction of the judgment. The complaint named Business Development Company, Inc. as a defendant. It did not answer. Instead Ruby and Singer filed a counter-claim in their name, to protect Business Development Company, Inc. Ruby and Singer were not the “real party in interest”, therefore, they had no right to claim for Business Development Company, Inc. Cr 17.01. L & N R Co.v. Mack Mfg. Corporation, Ky., 269 S.W.2d 707. The injunction should be dissolved.

The judgment is affirmed in dismissing the complaint and reversed in granting an injunction.

All concur.

      . This is not a discovery proceeding brought under CR69, or an action in aid of an execution, authorized by KRS 426.381.


text:
    Carl CABE, Commissioner of Labor, Commonwealth of Kentucky, Custodian of the Special Fund, Appellant, v. OLIN MATHIESON CHEMICAL CORPORATION, Thomas H. Roberts, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Stuart E. Alexander, Louisville, for appellant.
    Marvin M. Sotsky, Louisville, for ap-pellee, Roberts.
    William Mellor, Louisville, for appellee, Olin Mathieson.
    Robert Matthews, Atty. Gen., Frankfort, for appellee, Workmen’s Compensation Bd.
   DAVIS, Commissioner.

The basic issue at hand is whether the workmen’s compensation award due to Thomas H. Roberts shall be paid by Olin Mathieson Chemical Corporation (hereinafter Olin) his employer at the time he was injured, or by the Special Fund. The Workmen’s Compensation Board awarded Roberts compensation based upon 100% permanent disability, and ordered that the compensation should be paid by Olin. Upon appeal to the circuit court a judgment was obtained reversing the Board, and imposing all of the unpaid liability on the Special Fund. It is to be noted that Olin has already paid compensation for the first 34%ths weeks, for the physical disability of Roberts (as distinguished from his pyschiatric disability), and the Special Fund stipulated its responsibility for the next 70%ths weeks of compensation, based on the fact that Roberts was employed by Olin at his regular salary during that time. This stipulated liability was based on KRS 342.120(5) in effect at the time of the 70%ths weeks involved.

The Special Fund contends that there was substantive medical testimony warranting the Board’s finding that Roberts did not have a dormant non-disabling disease condition which was aroused or brought into disabling reality by reason of a subsequent compensable injury. Thus, it is reasoned, the familiar rule is applicable and the court exceeded its prerogative in substituting its judgment for the judgment of the Board as the fact finder. KRS 342.-285.

Roberts sustained physical injuries as the result of an explosion at Olin’s plant on April 17, 1962. After Roberts had recovered from the objective physical injuries suffered in the accident he returned to his work for a brief period. He was unable to continue working due to a persistent psychoneurotic reaction.

Evidence unfolded before the Board reflecting that Roberts had endured certain experiences in World War II, which, along with his having been run over as a pedestrian by an intoxicated driver, had left him in a “mental disease condition” of a non-disabling nature. This condition, contends Olin, was aroused into disabling reality by the explosion incident. The Board then appointed Dr. Frederick C. Ehrman, a psychiatrist, pursuant to KRS 342.121, and the Special Fund was made a party before the Board.

Dr. Ehrman filed a report, dated November 11, 1965, in which he stated, in part:

“In attempting to answer the questions raised by the Board there did not appear to be any active disability plaintiff suffered prior to April 17, 1962. There also did not appear to be any laten (sic) non-disabling disease or other condition capable of being aroused or brought into disabling reality by reason of subsequent injury.”

As provided in KRS 342.121(4) Olin filed timely objections to the report of Dr. Ehrman, asserting that it could demonstrate the inaccuracy of the report by taking Dr. Ehrman’s deposition. The Board granted Olin’s motion to take the deposition of Dr. Ehrman.

In giving the deposition Dr. Ehrman testified, in pertinent part:

“Q. What, in your opinion, Doctor, if anything, is actually the matter with this man now?
A. I would like to state categorically that I don’t know, but in order to try to answer the question, it would appear that this individual has some basically passive dependent characteristics which have become somewhat more permanent since this accident and injury in 1962, *
******
“Q. Doctor, you spoke of this passive condition that had become more pronounced. Did I understand you to mean that it is your thinking that this man, at the time of the explosion at Olin Mathieson, had a passive mental problem which was brought into active reality by the explosion?
A. Not a mental problem.
Q. Perhaps I used the wrong word. A mental condition?
A. Or, if I am understanding you correctly, not even a mental condition, because I think this is part of basic personality and makeup, and actually we are talking here about percentages, because we all have these characteristics to some extent, and up to that time it had never been crippling or bothersome or anything of that sort, and did not appear to really demonstrate itself until the accident and subsequent happening.
Q. Well, that’s what I am getting at, Doctor. Do you have a thought concerning this man’s previous condition, however you would describe it, as being something that was brought into active reality by the explosion at Olin Mathieson?
A. In that context, I’d have to say that the accident was contributory.”

We think that a fair reading of the evidence of Dr. Ehrman sustains the conclusion that Dr. Ehrman did not testify that Roberts had any dormant non-disabling disease condition which was aroused or brought into disabling reality by reason of a subsequent compensable injury by accident. It is significant that the doctor carefully excluded the terms “mental problem” and “mental condition” as descriptive of Roberts’ status prior to the 1962 explosion. Rather, in the doctor’s language, he considered Roberts’ status before the 1962 explosion as “a part of basic personality and makeup.” We suppose each individual has basic personality and makeup in the sense used by Dr. Ehrman; some persons are more “nervous” than others, and some are able to take in stride the very experiences that will lead to “nervous breakdowns” in others. But we do not regard these basic personality propensities as dormant non-disabling disease conditions within the purview of KRS 342.120(1) (b). The Board had substantive evidence from Dr. Ehrman, whether by the initial report or by the report and deposition combined, warranting its finding that the disability of Roberts did not stem from a dormant non-disabling disease condition. In that state of case the circuit court was without authority to disturb the finding of the Board. KRS 342.285.

The judgment is reversed with directions to enter a new judgment affirming the Board’s award.

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

STEINFELD, J., not sitting.


text:
    W. E. PROCTOR et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1967.

      Blakey Helm, Helm, Eddleman, Flanery & Jay, Louisville, for appellants.
    Robert Matthews, Atty. Gen., H. C. Smith, Frankfort, E. Presten Young, Louisville, for appellee.
   CLAY, Commissioner.

In this condemnation case the landowners appeal, claiming errors committed during the trial in the circuit court.

Appellants owned a 10-acre tract of land on the east side of Preston Street Road in Jefferson County. It was unimproved, undeveloped and uncleared, and it was covered with underbrush and trees. Appellants had owned the property for 40 years and had not used it for any purpose. It was zoned for residential use.

The Commonwealth condemned a 47½-foot strip across the frontage of approximately 350 feet for the purpose of widening Preston Street Road. The new highway will be at approximately the same grade level, and a three-foot ditch will be constructed. The jury awarded appellants $1,000 for the taking of this strip.

The first contention is that this taking somehow limits appellants’ right of access, and while claiming no reversible error, they ask us to declare that the new frontage has unlimited access. The simple answer is that the taking did not affect appellants’ access rights in any manner. In this respect they have exactly the same rights as they had before. Of course they never had an unlimited right of access to Preston Street Road. Their rights have always been, and will be, subject to a reasonable exercise of the police power by the Commonwealth. See Commonwealth, Dept. of Highways v. Carlisle, Ky., 363 S.W.2d 104; Commonwealth, Dept. of Highways v. Raybourne, Ky., 364 S.W.2d 814; Sloan v. Commonwealth, Dept. of Highways, Ky., 405 S.W.2d 294. Suffice it to say, this condemnation proceeding did not alter one iota appellants’ access rights.

The next contention is that the Commonwealth’s expert witness could not “legally refuse” to answer questions concerning the value of appellants’ land for “commercial” development. The witness testified that he had appraised the property as zoned residential, which was the highest and best use of the land at the time its market value was to be determined. Appellants’ counsel then attempted to have this witness fix a market value based on commercial use of the property. The witness then said that he would have to speculate as to its commercial value since it was zoned residential.

We are at a loss to understand upon what legal or other basis an expert witness in a condemnation case can be compelled to give his opinion about a market value which he says does not exist. This witness in effect said that because the property was zoned for residential use, it had no commercial market value. That was his opinion and if it was an unsound one, appellants could introduce contrary evidence or argue its unsoundness to the jury. The trial court certainly did not commit error in declining to compel this witness to speculate.

It may be pointed out that this witness was taking a proper approach to the question of market value, because such value should be based upon the zoned usability of the land in the absence of a showing that the reasonable probability of zoning reclassification would enhance it. See Chitwood v. Commonwealth, Dept. of Highways, Ky., 391 S.W.2d 381. This was not shown. It may be noted here that the landowners and their witnesses testified, without objection on the part of the Commonwealth, concerning the possible commercial development and possible commercial value.

It is next contended the court erred in failing to instruct the jury that they should consider “the highest and best uses to which the property could be adapted rather than the question of any present use”, and should have also instructed the jury that they should consider certain specific factors such as location, availability of public utilities, etc., etc. We know of no justification for such instructions. The criteria set forth in the instructions offered by appellants are those brought out in the examination of the expert witnesses and upon which their opinions as to value are based. What appellants propose is to make experts of the members of the jury, whereas their principal function is to determine the credibility of the expert opinion evidence.

Another valid objection to appellants’ offered instructions is that they tend to emphasize certain factors without including them all. It would be an almost impossible task and would not serve to enlighten the jury if the court were required by an instruction to detail every element that enters into the determination of market value. The instructions given adequately presented the issue the jury was called upon to decide.

The final contention is that the Commonwealth’s counsel made improper argument. When alluding to appellants’ witnesses’ speculative testimony as to value and the extravagant argument of appellants’ counsel, the attorney for the Commonwealth remarked: “How would the money hold out?” Under the circumstances, this, rhetorical question was not unfair or improper. In any event, it could not have been so prejudicial as to constitute reversible error.

The judgment is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Robert J. WILDER, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Dept, of Highways, Frankfort, Eugene H. Clark, Manchester, for appellant.
    R. Lee Brown, W. M. Cox, Jr., Williams-burg, for appellees.
   CLAY, Commissioner.

In this condemnation case the Commonwealth condemned appellee^’ house and lot located on Fifteenth Street in the City of Williamsburg. The lot had a 100-foot frontage and a depth of 75 feet. On it was a frame five-room house, apparently in excellent condition. It was located in one of the better neighborhoods in Williams-burg.

The Commonwealth’s witnesses fixed its market value at $5,000. Appellees’ five expert witnesses fixed the value at $9,000 to $11,000. The jury awarded $9,000.

The Commonwealth contends the verdict is excessive because not supported by evidence of probative value. Appellees’ witnesses did not refer to any comparable sales, but all qualified as expert witnesses on property values in Williamsburg. The Commonwealth attacks the opinions of ap-pellees’ witnesses on the ground that they did not sufficiently support their estimates by detailing various considerations affecting market value. Also it is argued they used some factors which were not relevant, such as an offer to purchase the property,, and the replacement cost of the house without taking into account depreciation. However, the court sustained objections to most of the testimony incorporating incompetent considerations, and admonished the jury.

While the Commonwealth contends it is evident that these witnesses were actually using improper factors, we think their evaluations had substantial probative value. The objections of the Commonwealth really go to the credibility of the witnesses’ opinions and not to the competency of their testimony. Considering the evidence as a whole, while the testimony was not of the highest caliber, it did support the verdict.

The Commonwealth contends that the testimony of one witness should have been stricken because he based his estimate of value upon the replacement cost of the dwelling without depreciation and referred to the offer of purchase to which an objection had theretofore been sustained. While the probative value of this witness’ opinion was seriously impaired by reason of the improper factors taken into consideration, if it was error not to strike all of his testimony, such error was not so prejudicial as to require reversal.

The judgment is affirmed.

All concur.


text:
    David William SMITH, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1967.

      David W. Smith, Jr., pro se.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   STEINFELD, Judge.

David William Smith, Jr., appeals from the order denying his RCr 11.42 motion to vacate the sentence for which he is now incarcerated in the penitentiary. The trial court afforded an evidentiary hearing, after which the relief sought was denied. The bases for appeal are: (1) that appellant was deprived of due process by the failure of the juvenile court to afford him counsel, and (2) ineffective court-appointed counsel in the circuit court trial.

On April 9th or 10th, 1958, appellant committed armed robbery in Pike County. At that time appellant was 17 years old; he was then a member of the U.S. Navy and absent without leave from his naval duty. Appellant was arrested in West Virginia (his home state) on April 13, 1958. He waived extradition and was returned to Kentucky and incarcerated in the Pike County jail. On April 28, 1958, a hearing was had before the judge of the Pike County Court, sitting as a juvenile court pursuant to KRS Chapter 208. The following. order was entered by the juvenile court on that occasion:

“PIKE COUNTY JUVENILE COURT
April 28, 1958
Commonwealth of Kentucky Plaintiff
vs. Order
David William Smith, Jr. Defendant
A hearing in the above-styled action having been set down for hearing on April 21, 1958, and the accused, David William Smith, Jr., being present in court with his parents, Mr. and Mrs. David William Smith, Sr., and the court having heard witnesses for the Commonwealth, and being sufficiently advised under the provisions of KRS 208.140 as amended, this case is hereby ordered to the Pike Circuit Court Grand Jury for proper action.
/s/ Ervin S. Pruitt, Judge”

On June 3, 1598, the Pike County Grand Jury indicted appellant upon the charge of armed robbery. He was brought before the court on June 9, 1958, at which time counsel was appointed for him by the circuit court judge. The order reciting the appointment of counsel reflects that appellant waived formal arraignment and entered a plea of guilty. The case was passed until the next day for submission to a jury for fixing sentence. The jury fixed sentence at imprisonment for life.

Was appellant entitled to counsel in the juvenile court? Was the failure to appoint counsel for him there of such serious consequence as to vitiate the juvenile court’s waiver of its jurisdiction? What effect did the failure to appoint counsel in the juvenile court have upon the validity of the conviction and consequent sentence in the circuit court? All of these are searching and vexing questions which are squarely presented in this appeal.

As early as 1911, when the first juvenile court legislation in Kentucky appeared for testing before this court, it was written that proceedings looking toward the rehabilitation of a juvenile were not criminal proceedings. See Marlow v. Commonwealth, 142 Ky. 106, 133 S.W. 1137. That landmark case stated with approval the underlying principle supporting juvenile courts as agencies for rehabilitation of minors by use of this language:

“The purpose in view is not punishment for offenses done, but reformation and training of the child to habits of industry, with a view to his future usefulness when he shall have been reclaimed to society, or shall have attained his majority. Having been abandoned by his parents, the state, as parens patriae, has succeeded to his control, and stands in loco parentis to him.”

See 133 S.W. at page 1141. Text writers in this field have continued to recognize that precept as warranting juvenile courts in the exercise of a benign, paternalistic supervision over juveniles. This may be sound as it relates to rehabilitation efforts for delinquent juveniles but that is not the situation at bar. Here we deal with the effect of the Juvenile Court’s relinquishing the delinquent for processing as an adult.

An annotation on the question of the right to counsel in juvenile court proceedings appears in 60 A.L.R.2d 691, et seq. The case preceding the annotation is the much discussed Shioutakon v. District of Columbia, 98 U.S.App.D.C. 371, 236 F.2d 666, 60 A.L.R.2d 686, in which it was held that a juvenile was entitled to counsel even in a delinquency proceeding looking only toward his commitment to training school. We need not decide whether that decision will be followed in delinquency proceedings in this jurisdiction. The interested reader should consult 45 Ky. Law Journal 532-537 for comment upon right to counsel in juvenile court proceedings.

The most recent pronouncement upon the matter before us is found in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84. In Kent the juvenile had an attorney, but the juvenile court did not rule-on certain motions made by the attorney.. The juvenile court waived jurisdiction of Kent, who was then indicted and convicted of felonies; he was sentenced to imprisonment for indeterminate terms ranging from 30 to 90 years. The juvenile court did not conduct a hearing relating to the question whether its jurisdiction of Kent should be waived. In the course of the opinion delivered in Kent by Mr. Justice Fortas, it was written:

“We do not consider whether, on the merits, Kent should have been transferred; but there is no place in our system of law for reaching a result of such tremendous consequences without ceremony — without hearing, without effective assistance of counsel, without a statement of reasons. It is inconceivable that a court of justice dealing with adults, with respect to a similar issue, would proceed in this manner. It would be extraordinary if society’s special concern for children, as reflected in the District of' Columbia’s Juvenile Court Act, permitted this procedure. We hold that it does, not.” Id., 86 S.Ct. at p. 1053, 16 L.Ed.2d at p. 93.

In the same opinion it is said:

“It is clear beyond dispute that the waiver-of jurisdiction is a ‘critically important’’ action determining vitally important statutory rights of the juvenile.” Id., 86 S.Ct.. at p. 1055, 16 L.Ed.2d at p. 94.

In summarizing the court’s views in Kent,. Mr. Justice Fortas wrote for the court:

“The net, therefore, is that petitioner — - then a boy of 16 — was by statute entitled to certain procedures and benefits as a consequence of his statutory right to the ‘exclusive’ jurisdiction of the Juvenile Court. In these circumstances, considering particularly that decision as to waiver of jurisdiction and transfer of the matter to the District Court was potentially as important to petitioner as the difference between five years’ confinement and a death sentence, we conclude that, as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court’s decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.” Id., 86 S.Ct. at p. 1055, 16 L.Ed.2d at p. 95.

In light of the foregoing language we think there is no room for debate on the question whether the present appellant was entitled to counsel in the juvenile court proceedings. As noted, the record demonstrates that he had none.

This was a critical stage of the litigation. Pursuant to KRS 208.020 the jurisdiction of the juvenile court is exclusive unless it be surrendered by that court. Childers v. Commonwealth, Ky., 239 S.W.2d 255. Surrendering jurisdiction was not compulsory on the part of the juvenile court.

A remaining question is whether the error in failing to provide counsel in these circumstances is one that may be reached by RCr 11.42 proceedings. The error could have been raised in the circuit court by a motion to dismiss the indictment and it could have been raised upon appeal to this court if properly preserved. In King v. Commonwealth, Ky., 387 S.W.2d 582, and many subsequent decisions following it, we have held that the post-conviction relief afforded by RCr 11.42 is not a substitute for the appeal process, and does not permit review of alleged trial errors which fall short of a denial of due process. Even certain constitutional guarantees may be waived by failure to appeal. See Collier v. Commonwealth, Ky., 387 S.W.2d 858. As noted in Collier, however, a contrary result had been reached in Hall v. Warden, Maryland Penitentiary, 313 F.2d 483 (4th Cir.1963), because at the time the petitioner had been tried in the Maryland court the substantive law of Maryland permitted the use of evidence obtained by an unconstitutional search.

The case at bar falls within the rationale of the principles just discussed. When appellant and his court appointed counsel had to deal with his situation in 1958 they were acting without benefit of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 789, 93 A.L.R.2d 733. Courts generally, including this one, had held that proceedings in juvenile courts were not substantially criminal proceedings. Kent v. United States, supra, had not been rendered. In view of these factors we may not say that appellant is foreclosed from raising this issue because he failed to avail himself of the right of appeal.

The U. S. Supreme Court recently elaborated on the tests it employs in determining retroactivity of its decisions. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, decided June 20, 1966. In Johnson the Supreme Court reiterated that the denial of counsel at a trial goes to the fundamental fairness of the proceedings, and effects a denial of due process. Based upon that reasoning it is argued that appellant was denied due process as assured by the Kentucky and United States Constitutions when he was not accorded a hearing with the advice of counsel incident to the waiver proceedings by the juvenile court.

We are of the opinion that under the circumstances in this case retroactive effect should not be given to Kent. Johnson v. State of New Jersey, supra, and Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453. “Thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective.” Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601.

If we applied Kent retroactively, the remedy authorized therein would not he helpful to appellant, Smith, who is now over 21 years of age. The opinion stated:

“Ordinarily we would reverse the Court of Appeals and direct the District Court to remand the case to the Juvenile Court for a new determination of waiver. If on remand the decision were against waiver, the indictment in the District Court would be dismissed. See Black v. United States [122 U.S.App.D.C. 393, 355 F.2d 104], supra. However, petitioner has now passed the age of 21 and the Juvenile Court can no longer exercise jurisdiction over him. In view of the unavailability of a redetermination of the waiver question by the Juvenile Court, it is urged by petitioner that the conviction should be vacated and the indictment dismissed. In the circumstances of this case, and in light of the remedy which the Court of Appeals fashioned in Black, supra, we do not consider it appropriate to grant this drastic relief. Accordingly, we vacate the order of the Court of Appeals and the judgment of the District Court and remand the case to the District Court for a hearing de novo on waiver, consistent with this opinion. If that court finds that waiver was inappropriate, petitioner’s conviction must be vacated. If, however, it finds that the waiver order was proper when originally made, the District Court may proceed, after consideration of such motions as counsel may make and such further proceedings, if any, as may be warranted, to enter an appropriate judgment. Cf. Black v. United States, supra.” Id., 86 S.Ct. at p. 1059, 16 L.Ed.2d at p. 99.

General standards to determine whether or not jurisdiction should be waived had been promulgated. Among these were “The seriousness of the alleged offense * * * ”, also “Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner”, and “Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons * * * There were others including “The sophistication and maturity of the Juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.” Smith was in the United States Navy but was away without leave at the time he committed the crime. He was born on June 15, 1940, and was within seven weeks of being eighteen when the waiver occurred. Six days before his eighteenth birthday he pled guilty. The offense for which Smith was charged was using a shotgun to rob the manager of an automobile service station of $100.00. His parents were with him at the waiver proceeding. Beyond a reasonable doubt, counsel at the time of the hearing in the juvenile court could not effectively have prevented a waiver of jurisdiction; therefore, Smith was not adversely affected.

We have carefully examined the record to determine whether or not there is any merit in the claim that Smith did not have effective represenation of counsel in the criminal court. We find nothing to so indicate.

The judgment is affirmed.

All concur.

      . The appendix following Kent v. United States, supra, title “Policy Memorandum No. 7, Nov. 30, 1959” is a guide to assist in determining whether or not waiver is appropriate.


author: MILLIKEN, Judge.

text:
    MOORE MINING COMPANY, Appellant, v. David GIBBONS, Special Fund, and Workmen’s Compensation Board, etc., Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Maxwell P. Barret, Reeves, Barret & Cooper, Hazard, for appellant.
    Doyle Inman, Whitley City, Paul D. Rehm, Versailles, Robert Matthews, Atty. Gen., Frankfort, for appellees.
   MILLIKEN, Judge.

The Workmen’s Compensation Board awarded David Gibbons compensation for total and permanent disability from silicosis to be paid by the Special Fund with medical expenses, not exceeding $2500, to be paid by his employer, Moore Mining Company. The circuit court modified the award by absolving the Special Fund from liability because the Special Fund provisions of the Workmen’s Compensation Act were not in effect until after Gibbons quit working, and that court consequently assessed the total cost of compensation against Moore Mining Company, Gibbons’ last employer. The sole issue raised by the employer on this appeal is the contention that Gibbons “was not exposed to the hazards of the disease in his employment within Kentucky for at least two years immediately next before his disability” within the meaning of the governing provisions of the Act, KRS 342.316(4), which provides:

“In claims for compensation due to the occupational disease of silicosis it must be shown that the employe was exposed to the hazards of the disease in his employment within this state for at least two years immediately next before his disability or death.”

The interpretation and application of this provision have been troublesome and occasionally have been fraught with harsh results to employer or employee. For example, in Lovell v. Osborne Mining Corporation, et al., Ky., 395 S.W.2d 596 (1965), relied on by the appellant, an employee who had worked 33 years in coal mines was denied compensation benefits because his last twenty months of such employment occurred in West Virginia. He twice was refused employment in Kentucky upon his return home because pre-employment physical examinations disclosed he had silicosis. In Lovell we said:

“The explicit language of KRS 342.-316(4) appears to us to preclude compensation to the appellant under the circumstances of this case. The words ‘it must be shown that the employe was exposed to the hazards of the disease in his employment within this state for at least two years immediately next before his disability or death’ leave little or no room for ‘liberal construction.’
* * *
“Whether the legislature would have written the present statute as it did if it had envisioned the situation at hand we may not fathom; the fact is that the law is so written, and we are not at liberty to change it. Harsh or not, it is too clear to be construed in any way except literally.” (Emphasis ours.)

Moore cites the language used in Lovell as implying that a claimant had to be exposed to silicosis within Kentucky for the two years immediately before his disability began for him to have a compensable claim for silicosis under our law, but that was not our intention. In Lovell the claimant was denied compensation because he had worked out of Kentucky during the two-year period. LoveU must be read in connection with Mary Helen Coal Corporation v. Parrott, Ky., 290 S.W.2d 477 (1956), where we construed KRS 342.316(4) as follows:

“We see no legislative purpose in the construction of the statute advocated by the Company. The two year provision of the statute designates the period of time during which an employee must be exposed to the hazards of silicosis in his employment within this state, but it does not attempt to specify how frequent or how intense the exposures must be during the two year period. The evident purpose of the two year time provision is to afford employers protection against such claims from migrant workers and those who have incurred the disease in employment out of the state. A worker who occasionally is intensely exposed to silica dust during his employment over a period of two years might more readily incur silicosis than an employee who is mildly exposed every day during the period. The statute is not intended to require a specific number of days, or even hours, of exposure to silica dust; it is intended to limit or qualify the class of employees who may become entitled to compensation benefits for silicosis.”

In Davis v. Harlan Everglow Coal Company, Ky., 392 S.W.2d 62 (1965), we held that the defendant-employer was not liable to the claimant who had worked three days for another coal company after Harlan Everglow had ceased operation because of difficulties with its lease. The opinion declared that “disability, plus last exposure, constitutes the basis of the claim, regardless of prior exposures or manifestations of the disease” and concluded Davis’ contention that the three-day exposure with the other coal company subsequent to his employment with Harlan Everglow was not sufficient to cause his silicosis by saying, “There is no merit in the suggestion by Davis * * * in view of the holding in Childers v. Hackney, Ky., 337 S.W.2d 680 (1960)” where we cited KRS 342.316(12) which statute declares “ * * * the employer in whose employment he was last injuriously exposed to the hazard of the disease, and the employer’s insurance carrier, if any, at the time of the exposure, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier; except as otherwise provided herein.”

In the case at bar no contention is made on this appeal that the Special Fund (the former Subsequent Injury Fund) was not properly absolved of liability by the circuit court and there is no contention that the finding that Gibbons had silicosis was not sustained by competent evidence. It was. The record shows that Gibbons was employed in coal mining in various capacities with various companies since 1925. In the interval between 1958 and February 1, 1961, when Gibbons last worked for Moore, he cut, drilled and shot coal, and testified he inhaled plenty of dust from rock, slate and “sand rock” as well as loaded coal for the two or three weeks of his actual work with Moore. He stated he had not looked for work since he was laid off by Moore in February 1961 because it was about that time his cough and breathing difficulties became more of a problem to him and he felt “disabled to work,” and on March 1, 1961, he first applied for Social Security benefits. Shortly thereafter, on March 11, 1961, he visited Dr. Begley who did a chest x-ray and prescribed some medicine for him but did not reach any conclusion about the cause of Gibbons’ condition at that time. Dr. Begley saw Gibbons seven or eight times before referring him to a chest specialist for examination. As heretofore stated, it is conceded that there is sufficient medical testimony to sustain the Board’s conclusion that Gibbons had silicosis and is totally and permanently disabled for that reason.

In view of the provision of KRS 342.316(12) imposing liability on the employer and insurance carrier, if any, in whose employment the employee was “last injuriously exposed to the hazard of the disease,” we are constrained to conclude that Moore is properly chargeable with the responsibility for payment of Gibbons’ compensation award. We adhere to the interpretation of the two-year time provision stated in Parrott that “The two year provision of the statute [KRS 342.316(4)] designates the period of time during which an employee must be exposed to the hazards of silicosis in his employment within this state, but it does not attempt to specify how frequent or how intense the exposures must be during the two year period.” We conclude that Gibbons was last “injuriously exposed to the hazard of the disease” in his last employment — that with the Moore Mining Company. It was about then his breathing difficulty became noticeably worse, and he sought no other work. The medical evidence sustains his claim.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, OSBORNE, PALMORE and STEINFELD, JJ., concur.

MONTGOMERY, J., dissents.

      . KRS 342.316(13), Acts of 1962, Ch. 276, requires six months’ exposure in the employment of the last employer, hut was not effective until March 22,1962.


text:
    William L. BARKER et al., Appellants, v. Theodore LAPPAS et al., Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.

      Paul R. Huddleston, Bowling Green, for appellants.
    Davis Williams, Munfordville, Morris Butler, Greensburg, for cross-appellants.
    Woolsey M. Caye, Tilford & Dobbins, Louisville, Davis Williams, Munfordville, Morris Butler, Greensburg, for appellees.
    Paul R. Huddles ton, Bowling Green, Woolsey M. Caye, Louisville, for cross-ap-pellees.
   MILLIKEN, Judge.

This action stems from the decision rendered by this Court involving the same parties in Lappas et al. v. Barker et al., Ky., 375 S.W.2d 248 (1963).

After the trial court entered a judgment as directed by this Court, appellants — William L. Barker, Milton R. Barker, and Everett Pope — filed a motion in that court for leave to file an amended complaint. Over objection leave was granted and an amended complaint was filed. The trial court then subsequently dismissed the amended complaint. Appeal was taken to this Court, and appellees — Delmous Craig-head and James E. Smith — filed a cross-appeal on the grounds that the trial court erred in permitting the amended complaint to be filed.

Since no briefs were filed for appellants their appeal is dismissed. RCA 1.260(b).

Since the issue presented by the cross-appeal is now moot, that appeal is also dismissed.

All concur.


author: PALMORE, Judge.

text:
    The PENTECOSTAL CHURCH OF CHRIST et al., Appellants, v. Melvin WEBB et al., Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.

      Eugene C. Rice, Paintsville, for appellants.
    R. B. Harrington, Paintsville, for appel-lees.
   PALMORE, Judge.

This action was brought in the name of “Pentecostal Church of Christ.” Among the defenses asserted in the answer was that the suit had not been authorized by the plaintiff or any of its members or trustees. In due course a judgment was entered in which it was determined that the parties purporting to act as trustees of the church in the litigation were not in fact its trustees and had no authority in the premises. They appeal, in the name of the church and in their own names as trustees.

The case comes before us on a partial record which does not include the evidence. It does include a host of affidavits introduced in connection with a motion to have a lock removed from the church door, but there is nothing to suggest that trial of the merits was had on the affidavits in lieu of testimony. In fact, the judgment recites that depositions and exhibits were considered. Under this state of affairs it is presumed that the evidence supports the judgment. “Since we do not have before us all the evidence submitted to the Chancellor, we must' presume that the portion of the evidence which has not been presented to us supports the Chancellor’s finding.” Conley’s Adm’r v. Kindred, 304 Ky. 1, 199 S.W.2d 610 (1946).

In any event, the affidavits themselves provide ample support for the finding that the individual appellants are not members of the “Pentecostal Church of Christ.”

The judgment is affirmed.

All concur.


author: MONTGOMERY, Judge.

text:
    A. V. WITBECK et al., Appellants, v. BIG RIVERS RURAL ELECTRIC COOPERATIVE CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1967.

      David C. Brodie, Owensboro, for appellants.
    Ridley M. Sandidge, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellee.
   MONTGOMERY, Judge.

Big Rivers Rural Electric Cooperative Corporation, pursuant to KRS 416.230 et seq., sought to condemn the right of way for an easement for the construction of a 69,000 volt transmission line across the southern edge of the farm of A. V. Wit-beck and his wife. The Witbecks have appealed from a judgment on a verdict for $2,400. Appellants claim that the court erred in various rulings concerning the admissibility of evidence; that there was a variation in the description of the property condemned; that the appellee should be liable for exemplary damages; and that the verdict was outside the range of the testimony.

Appellants were the owners of a 365-acre .farm. The easement sought was 100 feet in width and extended 2,053 or 2,058 feet over the extreme south end, or rear, of the farm. The center line of the easement varied from 206 to 232 feet from the south boundary line of the farm. Four single poles with three live lines and one dead line were to be placed on the easement. The right of way embraced 4.7 acres. The west third of the easement crossed an area which included about 1⅛ acres of timber. The remainder of the easement was over cleared land.

Appellants sought to introduce testimony to show that the fear of danger from a 69,000 volt line lessened the value of their property. In Gulledge v. Texas Gas Transmission Corporation, Ky., 256 S.W.2d 349, it was held that for such purpose the following should be established in sequence: (1) The basis in reason and experience for fear; (2) a satisfactory showing that the fear entered into the calculations of a substantial number of persons who deal in the buying or selling of similar property; and (3) the depression of market value by reason of the existence of such fear.

There is no merit in this contention because the testimony sought to be introduced did not conform to the requirements of the Gulledge case; no ruling was obtained by the court on part of the testimony, Commonwealth, Department of Highways v. Taylor County Bank, Ky., 394 S.W.2d 581; and answers to all factual questions asked on the point were read to the jury from a pretrial deposition of the same witness. Appellants obtained a favorable response concerning the dangerousness of a 69,000 volt line; hence, they were not prejudiced. They made no effort to establish step three required by the Gulledge case.

It is also contended that they should have been permitted to prove the market value of a so-called “five acre grove, a part of the Witbeck farm.” No avowal was taken to show the answer to the question. The claimed error is not available on appeal. Pearce v. Rawlings, Ky., 373 S.W.2d 426. In any event it was indirectly an effort to prove a price tag. Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844. In Commonwealth, Department of Highways v. Gardner, Ky., 388 S.W.2d 360, the point was decided thus:

“Neither the minerals or timber should be valued separately. Com., Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249; Gulf Interstate Gas Co. v. Garvin, Ky., 368 S.W.2d 309.”

The cases cited are inapplicable.

Appellants’ objection to a question asked on direct examination by counsel for appellee was sustained. The gist of the question was whether the construction of a power line made any difference in the before and after market values of a farm. Appellants’ counsel then examined the witness on cross-examination on the same point. He then moved to exclude the answers but obtained no' ruling by the court. He now complains that “Mere offers as to comparable property are not admissible.” The proffered testimony was not to show a comparable sale but to show that construction of a power line was not a damaging factor. For this reason, and because he waived any objection by failure to insist on a ruling, there is no merit in such contention.

Appellants complain that Witbeck was prevented from testifying concerning the suitability of the five-acre portion of the farm, part of which was taken, for use as a “black walnut grove.” Four other witnesses for the landowners were permitted to testify to the suitability of the five acres for a black walnut grove. The testimony of Witbeck would have been cumulative. There was no prejudicial error in the denial of its admission. Cody v. Nortof, Ky., 267 S.W.2d 403.

Complaint is made that appellants were not permitted to show evidence of productivity of the walnut grove. Appellants offered to show that the grove would produce in perpetuity four trees per year worth $125 each. There was no evidence to show any reasonable probability that timber would be marketed from the land within the immediate future. There was no error in the rejection of the testimony. Robinette v. Commonwealth, Department of Highways, Ky., 380 S.W.2d 78, and cases cited therein. Commonwealth, Department of Highways v. Eubank, Ky., 369 S.W.2d 15, cited by appellants, supports this view.

Two witnesses for the landowners were asked whether a grove of timber on the five acres would enhance or lessen the value of the land. Witness Durham, by avowal, said it would lessen the value; therefore, this answer would not have helped appellants had it been admitted. Witness Baker was permitted to state that removal of the timber would decrease the value of the farm; therefore, appellants cannot complain. His testimony was admitted.

Appellants complain that they were not permitted to show the qualifications of witness Lively concerning his knowledge of the price of black walnut timber growing on the ground. An examination of the lengthy harangue and avowal on this point shows that the court properly refused to permit such evidence to be admitted as being an effort to “price tag” the walnut timber. Commonwealth, Department of Highways v. Gardner, Ky., 388 S.W.2d 360.

Appellee was permitted, by amendment in circuit court, to correct the description of the easement condemned. The easement was actually occupied as originally staked, and its location on the ground was never changed. It was the same location viewed by the county court commissioners and used as the basis for their appraisal. Inaccuracies in the description were corrected to conform to the staked survey on the ground. Appellants argue that they were denied the opportunity to negotiate on the basis of the new description or to raise this issue by pleading.

This argument is meritless in view of appellants’ refusal to accept letters or telephone calls at their home near Detroit, Michigan, and their refusal to accept or discuss offers of settlement. If appellants were wronged in regard to negotiations, the wrong was self-inflicted. In the light of Young v. Tennessee Gas and Transmission Company, Ky., 367 S.W.2d 270, there was no error in permitting the description to be corrected in circuit court. Cf. Cartee v. Commonwealth, Department of Highways, Ky., 374 S.W.2d 860.

It is contended by appellants that it was error to exclude evidence of destruction of growing timber outside the condemned easement. The only issue to be tried in a condemnation case is the difference in the market value immediately before and after the taking of the easement condemned. Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844. Off right of way damages are ordinarily recoverable separately. Commonwealth, Department of Highways v. Davidson, Ky., 383 S.W.2d 346; Blair v. City of Pikeville, Ky., 384 S.W.2d 65; Commonwealth, Department of Highways v. Thacker, Ky., 384 S.W.2d 79. Actually, testimony was later permitted to include damages to trees cut without being confined to the right of way. The original ruling of the trial court excluding the evidence was not erroneous and was not prejudicial.

Appellee’s contractor entered upon appellants’ land two or three days before the refusal by appellants of the damages tendered. For this reason appellants claim that appellee trespassed and that they are thereby entitled to punitive damages. The rule is that where an entity possessing the power of eminent domain prematurely enters upon the premises of the condemnee, the exclusive remedy of the landowners is based on Kentucky Constitution, Section 242, which provides that “just compensation for property taken” shall be made. This remedy is frequently referred to as “reverse condemnation.” Chesapeake & O. Ry. Co. v. Wadsworth Electric Mfg. Co., 234 Ky. 645, 29 S.W.2d 650; Kentucky & West Virginia Power Company v. Vanhoose, 295 Ky. 339, 174 S.W.2d 538; Eversole v. Morgan Coal Company, Ky., 297 S.W.2d 51; Young v. Tennessee Gas and Transmission Company, Ky., 367 S.W.2d 270. The measure of damages is the same as in condemnation cases. Separate recovery of punitive damages is prohibited. Harlan County v. Cole, 218 Ky. 819, 292 S.W. 501; Franklin County v. Bailey, 250 Ky. 528, 63 S.W.2d 622; Mercer County v. Ballinger, 238 Ky. 120, 36 S.W.2d 856; Commonwealth, Department of Highways v. Gisborne, Ky., 391 S.W.2d 714. The cases relied on by appellants concern private companies without the power of eminent domain.

Finally, appellants complain that the after value found by the jury in its verdict is not within the range of the testimony and that for this reason the judgment should be reversed. Appellants do not specifically claim that the verdict was inadequate. The before and after values found by the jury were $90,000 and $87,600, respectively, making an award of $2,400 to appellants. The before value was within the range of the testimony. The lowest after value testified to was $89,500. Obviously the jury finding was beneficial to the appellants; otherwise, the verdict would have been confined to the difference between the before value fixed at $90,000 and the lowest after value testified to of $89,-500. While the verdict may have been erroneous in this respect, it is not considered reversible error under the facts of this case. Cf. Commonwealth, Department of Highways v. Cleveland, Ky., 407 S.W.2d 417; Commonwealth, Department of Highways v. Doolin, Ky., 411 S.W.2d 44. Ap-pellee might have complained of this but did not. Upon a consideration of the record the verdict appears to be fair. Cf. East Kentucky Rural Electric Coop. Corp. v. Price, Ky., 398 S.W.2d 705, and Kentucky Utilities Company v. Bruner, Ky., 400 S.W.2d 203, and cases cited therein.

Judgment affirmed

All concur.