author: PALMORE, Judge.

text:
    Clifton RILEY, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 25, 1963.
    As Modified on Denial of Rehearing Feb. 14, 1964.

      Don A. Ward, Hazard, for appellant.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Jarvis Allen, Pikeville, for appellee.
   PALMORE, Judge.

Clifton Riley, one of several codefend-ants in a highway condemnation proceeding, appeals a judgment of the circuit court dismissing his appeal from county court because he failed to name some of his co-defendants as parties to the appeal. The contention of the state, in which the circuit court concurred, is that the codefend-ants were indispensable parties and that if they declined to join as appellants they should have been joined with the state as appellees.

The action originated in the Perry County Court under KRS 177.081 to 177.089. Clifton Riley, widower, Juanita Smith and husband, Daily Smith, Jasper Wright, Jr., and wife, Irene Wright, and Nora Lyons and husband, Cecil Lyons, were named as the defendants. The petition alleged that they were the owners of the land designated to be taken, but did not specify their respective interests. It would appear, however, from the source of title following the description of the property that Clifton Riley, Juanita Smith, Jasper Wright, Jr., and Nora Lyons, whatever may have been their fractional shares, were tenants in common.

The county court commissioners made an award of $1700. Riley and the Smiths filed a joint answer contesting the state’s right to condemn and the amount of the award. The Wrights and Lyonses did not appear. The county court entered judgment sustaining the right to condemn and confirming the report of commissioners. Neither the judgment nor the report of commissioners fixed the interests of the respective defendants in the land or in the amount of the award.

Riley and the Smiths appealed to the Perry Circuit Court, stating as grounds that the compensation was inadequate and that it was unnecessary, and therefore illegal, for the state to condemn more of their property than was reasonably necessary for the building of a highway. None of the other parties appealed.

One of the expressly requisite components of an appeal to the circuit court pursuant to KRS 177.087 is “a statement of the parties to the appeal.” In this case the statement of appeal clearly designated Riley and the Smiths, by name, as the parties who were appealing, referred to them as “defendants,” and requested that summons be issued and executed upon “the plaintiff.” The state having been the only “plaintiff,” there could not have been any question as to who was the appellee. We therefore hold that there was a sufficient statement of the parties to the appeal.

It seems to be a general rule that if a review is sought by one or more parties against whom a judgment has been rendered, the appealing party or parties need not join coplaintiffs or codefendants unless they will be affected by the appeal. 4 C.J.S. Appeal & Error § 393, p. 1331 et seq. The liberal policy prevailing in this jurisdiction is exemplified in CR 73.01(2), which provides as follows:

“Parties interested jointly, severally, or otherwise in a judgment or final order may join in an appeal therefrom; or any .one or more, of them may appeal separately, or any two or more of them may join in an appeal.”

The foregoing rule applies only to appeals to this court, but in the absence of some express provision to the contrary there is no reason why the same policy should not govern appeals to circuit courts as well.

White v. Commonwealth, Ky., 287 S.W.2d 625 (1955), and Land v. Salem Bank, 279 Ky. 449, 130 S.W.2d 818 (1939), were cases in which the statements of appeal failed to designate the appellees. They are not applicable to the question before us in this case.

If the Wrights and Lyonses were satisfied with the county court award, no useful purpose would have been served by their being drawn involuntarily into the circuit court proceeding. Upon failure to appeal they lost the right to contest either the state’s right to condemn or the adequacy of the award. Their fractional interests in the property were severable from Riley’s and Mrs. Smith’s. The correct procedure is for the jury to assess the difference in market value of the property before and after the taking (Commonwealth Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844), after which judgment should be entered in favor of Riley for the difference multiplied by the fractional interest to which he establishes title. Whether the specific quantum of title owned by him be ascertained before or after the trial on damages is immaterial, though it must, of course, be determined before final adjudication of the sum he is entitled to collect.

We recognize the possibility of the state’s being in an ambiguous position in the unlikely event the circuit court should adjudge that it does not have the right to condemn all of the property described in the county court petition. As against the non-appealing parties this right is settled and concluded, and if the state has deposited the amount of the award and thus permitted a partial distribution, to some extent at least the money so distributed may have been wasted. However, it was not incumbent on the state to take possession while its right to condemn was still being litigated by one of the owners.

The order of the circuit court dismissing the appeal of Riley and the Smiths was dated March 12, 1962. Included in the transcript are copies of two subsequent orders of the county court dated March 13 and 14, 1962. One of them purports to be an agreed order (1) permitting the Smiths, in full payment for their interest in the property taken, to withdraw $300 of $1700 theretofore deposited by the state with the county court clerk, and (2) dismissing them as parties to the action. The other recites that Nora Lyons and Jasper Wright, Jr., desire to accept $300 in full payment for their interest in the property and directs the clerk to pay that amount to them.

Under CR 5.05 it is not necessary that the “filing” of a paper be noted by order. This does not mean, however, that anything handed to the clerk becomes a proper matter for consideration by the court. In this instance the copies of the county court orders were not introduced in the circuit court proceeding through or as part of any pleading, motion, or other document required or permitted by the Civil Rules, nor was an order entered to evince their admission and purpose. Therefore, their presence in the record provided no occasion or basis for any action by the trial court, and they are irrelevant to this review. We make no attempt to determine their validity or effect.

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

      . The Smiths, having failed to join in the appeal to this court, are now in the same position as the Wrights and Lyonses, bound by the county court judgment.

      . Cf. Commonwealth Dept. of Highways v. Burchett, Ky., 367 S.W.2d 262, 264 (1963).

      . In litigating with less than all of the owners or claimants the state is in much the same position as if it had settled out of court with the others.

      . The circuit clerk’s transcript is defective in that it fails to show when this order and several of the other papers in the case were filed in her office.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    Theodore LAPPAS et al., Appellants, v. Milton BARKER et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 20, 1963.
    Rehearing Denied Feb. 28, 1964.

      Charles W. Dobbins, Woolsey M. Caye, Louisville, Tilford & Dobbins, Louisville, of counsel, for appellant.
    Paul R. Huddleston, Bowling Green, Davis Williams, Munfordville, for appellees.
   CLAY, Commissioner.

• This suit was instituted primarily for the purpose of selling an oil and gas leasehold to satisfy a $50,000 note executed by the principal appellant Lappas. Upon the assertion of other claims in the suit, an accounting was had. Appellants took the position that the whole transaction out of which this $50,000 note arose was fraudulent, and they sought to cancel the note, rescind various leases and recover for certain expenditures. The Chancellor found against them on all phases of the controversy.

Lappas, who may be described as a capitalist from New Jersey, had worked with appellees Smith and Craighead in the acquisition and operation of oil and gas leases in Kentucky. While they were not partners, they had entered into several joint enterprises, with Smith and Craighead attending to the production end of the business.

In April 1959 Smith called Lappas and advised of the discovery of an attractive lease in Green County, designated the “Jr. Ennis Lease”. Lappas was advised that Smith and Craighead had investigated the production and were willing to invest $50,-000 of their own money in the purchase of this lease. When Lappas came to Kentucky, Smith and Craighead showed Lappas a production slip, which indicated the lease was producing 8,200 barrels of oil per month. (This truly represented the production for the preceding month of March.) A “stick test” was also made on the ground which indicated substantial daily production.

On April 28, 1959 the transaction was closed by the appellee owners assigning various interests to the appellants, and a one-fourth interest was assigned to Smith and Craighead. At the time of the closing the sale price was fixed at $200,000. Smith and Craighead each gave their checks for $25,000 to the owners, and in addition to $100,000 in cash paid by appellants, Lappas executed the $50,000 note. Thereafter additional wells were drilled but production rapidly fell off and the lease did not turn out to be the profitable venture originally anticipated. ’

Shortly after the closing of this transaction the owners returned to Smith and Craighead their $25,000 checks and it was subsequently learned by appellants that these two men had a secret agreement with the owners. This agreement was that Smith and Craighead would be entitled to anything they could get above $150,000.

Appellants contend the whole transaction was fraudulent. The first argument is that Smith and Craighead, with the acquiescence of the owners, misrepresented the production on the leasehold. There is ample support in the record for the trial court’s findings that there was no material misrepresentation in this respect upon which appellants had the right to rely. Perhaps Smith and Craighead did not make sufficient investigation but they did not misrepresent the information they had obtained. In any event, the owners made no representation about production and they committed no fraud in this respect which would justify rescission of the transaction or cancellation of the $50,000 note.

The next contention is that the owners, acting jointly with Smith and Craighead, fraudulently conspired to make it appear that the actual sale price was $200,000 and that the latter two were investing $50,000 of their own money in this lease, which was not true; that appellants relied upon these facts as a material inducement to their entering into the transaction; that because of the relationship of appellants with Smith and Craighead and the latter’s representations, they could reasonably rely on the integrity of the transaction; and' they were defrauded into making a bad! deal.

It is clear from the record that when this transaction was closed, one phase of it was completely fictitious and known by the owners and Smith and Craighead to be fictitious. Ostensibly Smith and Craig-head were investing $50,000 of their own money in this lease. They and the owners knew this was false, and appellant Lappas had ample reason to believe it was true. The finding of the court that Smith and Craighead did not misrepresent the nature of their interest has no support in this record and is clearly erroneous. If he relied on this feature of the transaction to his detriment, he was defrauded.

It is contended that there is no evidence Lappas (or the persons he represented) relied upon Smith’s and Craig-head’s apparently bona fide investment in this leasehold. While it is true the record fails to disclose a specific statement by Lappas concerning such reliance, the chain of circumstances, the nature of the representations made by Smith and Craighead, and the necessary inferences to be drawn from Lappas’ testimony make it clear the nature of Smith’s and Craighead’s apparent financial interest in this lease ($50,000) constituted a material inducement to Lappas to enter into it. In addition, the method by which the closing of this transaction was engineered by the owners with Smith and Craighead establishes that this totally unnecessary and fictitious maneuver was for a single purpose, and that was to induce Lappas (and those he represented) to become a party to it. The conclusion is inescapable that he did rely on Smith’s and Craighead’s ostensible financial interest as an inducement.

It is further contended by appellees that Lappas had no right to rely upon the misrepresentations of Smith and Craighead because they were acting as brokers for the owners and no fiduciary relationship existed between them and Lappas. The court found as a fact that no partnership or join adventure existed between Lappas and Smith and Craighead and that the latter were acting “as brokers for the sellers”. The finding that no partnership existed is a correct one. The other two findings are clearly erroneous.

Smith, Craighead and Lappas were engaged in a joint adventure to purchase this leasehold. This term is simply descriptive and has been defined as “an enterprise undertaken by several persons jointly”. Wyoming-Indiana Oil & Gas Co. v. Weston, 43 Wyo. 526, 7 P.2d 206, 208, 80 A.L.R. 1037. It exists when persons embark upon a common enterprise for their mutual benefit. Hey v. Duncan, CCA Ill., 13 F.2d 794. It is ordinarily an association for a particular transaction. Jones v. Nickell, 297 Ky. 81, 179 S.W.2d 195. An agreement to purchase specific property for speculation or resale at profit is a “joint adventure”. Drew v. Hobbs, 104 Fla. 427, 140 So. 211.

The significant feature of this transaction was that Smith and Craighead admittedly induced Lappas to jointly purchase with them this leasehold for their mutual benefit and prospective profit. For Smith and Craighead to assert that they were acting as brokers for the sellers in this transaction cannot stand the light of serious consideration. They could not at the same time act in the capacity of brokers for the sellers and buyers for their own benefit. Clearly they engaged in this adventure as joint purchasers with Lappas.

This joint enterprise created a fiduciary relationship between the parties. Such relationship exists when the parties are “under a duty to act for or give advice for the benefit of another upon matters within the scope of the relation”. Restatement, Torts, Section 874. It exists where a special confidence is reposed in another who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence. Klika v. Albert Wenzlick Real Estate Co., Mo.App., 150 S.W.2d 18. As a general rule joint purchasers of property owe fiduciary obligations to one another. Jones v. Nickell, 297 Ky. 81, 179 S.W.2d 195; Ozark Motor Co. v. Horton, Mo.App., 196 S.W. 395; Fink v. Weisman, 129 Cal.App. 305, 18 P.2d 961; Lowe v. Hendrick, 86 Conn. 481, 85 A. 795; Allen v. Barhoff, 90 Conn. 183, 96 A. 928, 929.

It is crystal clear from this record that appellants were induced to enter into this transaction as joint purchasers with Smith and Craighead for their mutual interests as they had done in the past. All of the activities of Smith and Craighead were ostensibly for their mutual benefit. There was nothing to indicate to Lappas that they were working the other side of the street. Under these facts equity demanded that Smith and Craighead act in good faith. They could not for their own benefit take advantage of their relationship to the detriment of the other party in this enterprise. Appellants had a right to rely on the representations of Smith and Craighead and the fairness of the transaction into which they jointly entered. All of the elements' of fraud with respect to this phase of the transaction were conclusively established.

The final problem is the nature of the relief to which appellants are entitled. Their request for rescission of the entire transaction cannot be honored for several reasons. Because of the subsequent operations on this leasehold, the parties could not be placed in status quo ante. Because of the expenditure of substantial sums of money by appellants and other transactions involving the leasehold, it would be practically impossible to achieve a fair accounting upon rescission. In addition, the equities of the case do not justify imposing the entire loss arising out of this business enterprise upon appellees. On the other hand, the fraud in this case related principally to the actual sale price of the leasehold, and the equitable rights of both parties can be adequately secured by a pro rata adjustment of appellants’ investment in it.

The measureable injury suffered by appellants was that they were induced by fraud to pay an excessive amount for their three-fourths interest in this lease. Had the sale price truly been $200,000, their proper contribution would have been what they agreed to pay, to wit, $150,000. Since the owners were actually selling the entire leasehold for $150,000, their fair share would be three-fourths of this figure.

Where a joint purchaser of property is induced to pay more than the actual purchase price as a result of misrepresentation, he may recover the excess above what he should have paid as his proper pro rata share of such purchase price. Jones v. Nickell, 297 Ky. 81, 179 S.W.2d 195; Lowe v. Hendrick, 86 Conn. 481, 85 A. 795; Allen v. Barhoff, 90 Conn. 183, 96 A. 928.

The same principle has been applied in the reverse situation where a seller was fraudulently induced by a co-owner of property to sell the property at a lower price than the purchaser was willing to pay, when one of the co-owners made a secret profit on the sale. (In that case rescission of the contract was decreed.) Powell v. Keene, 205 Ky. 846, 266 S.W. 659.

In the first three cases cited above the joint purchaser was allowed recovery from his co-purchaser who made the secret profit, which in this case would be Smith and Craighead. The same claim however may properly be asserted against the ap-pellee owners (or sellers). A person who knowingly aids and abets a fiduciary to make a secret profit is jointly liable with such fiduciary. Fink v. Weisman, 129 Cal.App. 305, 18 P.2d 961; Jackson v. Smith, 254 U.S. 586, 41 S.Ct. 200, 65 L.Ed. 418; Ozark Motor Co. v. Horton, Mo.App., 196 S.W.395. It simply cannot be disputed that appellee owners actively and affirmatively aided and abetted Smith and Craighead to-perpetuate the fraud upon appellants with respect to the selling price. The ostensible acceptance and secret return of the two' $25,000 checks by them lay at the very heart of it. Therefore they are liable for the loss suffered by appellants.

The practical and equitable solution of this controversy may be achieved by a modification of the judgment. Appellee owners are not entitled to recover the $50,000 due on Lappas’ note which was given as a part of the $150,000 payment on the $200,000 lease. Since we have determined that appellants were buying a three-fourths interest in a $150,000 lease, the balance still owing must be reduced proportionately. On the basis of a $150,-000 purchase price, the cost of a three-fourths interest is $112,500. Appellants have paid $100,000. The balance due is $12,500. Therefore Lappas shall be allowed a $37,500 credit on the $50,000 note. In all other respects the judgment is proper.

The judgment is affirmed in part and reversed in part, with directions to modify the judgment consistent with this opinion.


text:
    David H. PRITCHETT, Commissioner of Finance of Commonwealth of Kentucky, et al., Appellants, v. Thomas F. MARSHALL et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 27, 1963.
    Rehearing Denied Feb. 28, 1964.

      John B. Breckinridge, Atty. Gen., Martin Glazer, Ronald M. Sullivan, Asst. Attys. Gen., for appellants.
    Thomas F. Marshall, Joseph J. Leary, Frankfort, for appellees.
   PALMORE, Judge.

The appellee Clark, Commissioner of the Department of • Fish and Wildlife Resources (KRS 150.061), discharged two employes, who thereupon appealed to the Personnel Board (KRS 18.270) demanding reinstatement. The Attorney General, conceiving it his duty to act as counsel for the Personnel Board in this connection, declined a request that he represent the Commissioner. The Department of Fish and Wildlife Resources Commission (KRS 150.-023) then authorized the Commissioner to, and he did, contract for the services of private counsel, the appellees Marshall and Leary. When these attorneys appeared before the Personnel Board at a pre-hearing conference and presented motions to dismiss the appeals and quash certain subpoenas, their right to represent the Commissioner and his department was questioned. No action was taken on the motions. Meanwhile a dissenting member of the Commission had notified the attorneys in writing that their contract of employment was unauthorized and that the fee therein provided could not be paid with funds of the department.

This is a declaratory judgment action (KRS 418.040) brought by Marshall and Leary, the Commissioner, and all but the dissenting member of the Commission against the dissenting member, the Commissioner of Finance, the State Treasurer, and the members of the Personnel Board to determine the rights of the affected parties with respect to (1) the employment and payment of the attorneys out of public funds and (2) the scope of the hearing to be held by the Personnel Board. The trial court adjudged that the Commissioner, with the approval of the Commission, had the right to employ counsel of his and their own choosing at public expense, ordered the Personnel Board to proceed with the hearing, and directed that such hearing be confined exclusively to .“the questions of fact raised and framed by the statements of appeal” of the discharged employes “as joined in issue by the response of the Department of Fish and Wildlife Resources Commission.” The Personnel Board and chief fiscal officers of the state appeal this judgment.

During the course of the litigation in the circuit court the right of the Commission and Commissioner to be represented by Marshall and Leary without expense to the state was conceded by stipulation. The questions now before us are (1) whether the counsel fee is payable out of public funds and (2) whether it was proper for the circuit court to regulate the scope of the hearing to be held by the Personnel Board. Our conclusion is that in both of these respects the judgment was erroneous.

KRS Chapter 12 relates to the administrative organization of the state government. KRS 12.210 authorizes a “department” to employ counsel at public expense only upon approval of the Governor, which was not sought or obtained in this case. KRS 12.200, enacted in 1948 as part of the same legislation as KRS 12.210, defines “department” as including “each and every executive or administrative department, agency, division and independent agency as said terms are defined and set forth in KRS Chapter 12 * * * and shall include any administrative department, agency, division and independent agency heretofore or hereafter designated as such by the General Assembly.” KRS 150.021(1), also enacted in 1948, specifies that the Department of Fish and Wildlife Resources is “a statutory administrative department of the state government within the meaning of KRS Ch. 12.”

Appellees virtually concede that prior to the passage and enactment into law of Chapter 106, Acts of 1962, KRS 12.210' was applicable to the Department of Fish and Wildlife Resources and its Commission. They contend, however, that the 1962 Act removed the department from the purview of KRS Chapter 12.

The 1962 Act, originating as Senate Bill 153, effected several revisions in KRS Chapter 12, chief among which was a new section conferring upon the Governor the power of reorganizing the administrative structure of the state government. KRS 12.025. During the course of its consideration in the General Assembly the bill was amended by addition of the following article (KRS 150.018):

“Notwithstanding the provisions of KRS 12.025, the Department of Fish and Wildlife Resources is not subject to inclusion within an agency formed by executive action of the Governor.”

The 1962 Act also amended KRS 12.020, in which the various administrative bodies are enumerated. Since 1956 the Department of Fish and Wildlife Resources had been specifically listed in KRS 12.020, but it was not so designated in the 1962 enumeration.

Appellee takes the position that the enactment of KRS 150.018 and omission of the Department from the specific enumeration set forth in KRS 12.020 evince a legislative intent to remove the Department wholly from the purview of KRS Chapter 12 and, particularly, from the definition of “department” in KRS 12.200. As we see it, however, there are at least three significant circumstances that refute such a theory:

(1) KRS 12.200 provides that for purposes of KRS 12.210 “department” includes any administrative department as the term is defined and set forth in KRS Chapter 12. Assuming arguendo that nothing is added by the further language, “and shall include any administrative department, agency, division and independent agency heretofore or hereafter designated as such by the General Assembly,” the definition of “department” in KRS 12.200 depends on how it is elsewhere “defined and set forth in KRS Chapter 12.” How, then, is it elsewhere defined and set forth in that chapter? In this respect we find a striking difference before and after 1962. Before 1962 KRS 12.010 defined “department” to mean “any executive or administrative agency of the state named in KRS 12.020 as an administrative department,” etc. (Emphasis ours.) At that time, as heretofore noted, the Department was in fact so named in KRS 12.-020. But the 1962 Act changed the definition of “department” in KRS 12.010 to mean “that basic unit of administrative organization of state government, by whatever name called, designated by statute or by appropriate executive action as a ‘department.’ ” (Emphasis ours.) Thus, if it be assumed that prior to 1962 the definition in KRS 12.200 was confined by KRS 12.010 to the specific enumeration in KRS 12.020, the 1962 amendment of KRS 12.010 destroyed the sole avenue by which that conclusion could have been reached.

(2) By the 1962 amendment of KRS 12.-020 the following new provision was added: “It is not intended that this enumeration of administrative bodies be all-inclusive.” The natural assumption is that this rather cryptic sentence means what it says.

(3) KRS 150.021(1), in which it is categorically provided that the Department is a statutory department within the meaning of KRS Chapter 12, has been left intact. Of course, the legislature may have overlooked it by inadvertence, and if it were actually inconsistent with newly added KRS 150.018 we should have no hesitation in finding a repeal by implication. The fact is, however, that the two provisions are not inconsistent. Exclusion of the Department from the reorganizational powers of the Governor merely leaves it the same independence it had before the Governor was given those powers. We see no reason to believe that in protecting the Department from any possible incursion by the chief executive the legislature intended also to remove it from the provisions of KRS Chapter 12 that had theretofore applied to it.

In summary, it is our opinion that the legislative intent of the 1962 Act, as applied to the Department of Fish and Wildlife Resources, was simply to preserve its status quo, and no more. That purpose was adequately and quite succinctly expressed in KRS 150.018. KRS 12.210 remains applicable.

Miller v. O’Connell, 304 Ky. 720, 202 S.W.2d 406, does not apply because, among other reasons, under a similar statute the Governor refused to approve the employment of counsel, whereas in this case his approval was never sought.

Though it is not made a point of discussion in the briefs, throughout the course of this litigation appellees appear to have been meticulously careful in referring to the Commission and the Commissioner, as such, rather than the Department of Fish and Wildlife Resources. Should there be any question as to whether the Commission and Commissioner occupy a status separate or different from that of the Department itself with respect to KRS 12.210 or KRS 18.270, it is our opinion that the Commissioner and the members of the Commission are the chief officers of the Department, and that whatever official actions they are authorized to and do take become the acts of the Department.

We come now to the problem of what, if any, right lay in the circuit court to regulate or limit the proceeding of the Personnel Board.

As heretofore indicated, the appeals of the discharged employes to the Personnel Board seek reinstatement. Yet they do not allege that they were discharged “for any political, religious, or ethnic reason,” which would appear to he the only-ground on which KRS 18.270 authorizes reinstatement. In all other cases that statute provides only that the Board may submit findings and recommendations and, at most, place their names on an appropriate re-employment list. To the latter the ap-pellees have no objection. They are apprehensive, however, lest the hearing become a fishing expedition in which a broad and unfettered search will be made in the hope of finding hitherto undiscovered evidence of political motivation, or other evidence the purpose of which would not be properly relevant. Some of the subpoenas issued at the request of the discharged employes, and which appellees sought to quash, may justify that apprehension. Certainly we agree with the trial court that this ought not to be permitted, but neither can it reasonably be presupposed that the Board will permit it. In all fairness, we are unable to avoid the conclusion that at this stage the conduct of the proceeding is entirely within the competence of the Board and beyond legitimate intervention by the courts.

A declaratory judgment proceeding will not be entertained “for the determination of the procedural rules, or the declaration of the substantive rights involved in a pending suit. Such decisions and declarations must be made in the first instance by the court whose power is invoked and which is competent to decide them.” Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614, 33 S.W.2d 601, 603 (1930). This principle has been applied, and the action dismissed on jurisdictional grounds, where the question was within the jurisdiction of an administrative agency. Moore v. Louisville Hydro-Electric Co., 226 Ky. 20, 10 S.W.2d 466 (1926); Travelers Ins. Co. v. Carter, 314 Ky. 392, 235 S.W.2d 1003 (1951).

There are, of course, exceptions to the rule that courts will not intrude in administrative proceedings. Cf. Goodwin v. City of Louisville, 309 Ky. 11, 215 S.W.2d 557 (1948); Louisville & Jefferson County Planning & Zoning Comm. v. Stoker, Ky., 259 S.W.2d 443 (1953). For example, a claim that constitutional rights are being violated is always justiciable, even though the statute establishing the administrative procedure does not provide for judicial review. Commonwealth ex rel. Meredith v. Frost, 295 Ky. 137, 172 S.W.2d 905, 909 (1943); Kendall v. Beiling, 295 Ky. 782, 175 S.W.2d 489, 491 (1943); Hatch v. Fiscal Court of Fayette County, Ky., 242 S.W.2d 1018, 1021 (1951). The same inherent authority that legitimates a review where none is allowed by statute would equally justify earlier intervention if the threatened invasion were sufficiently probable and the circumstances such that a review could not provide adequate relief. In this case, despite a certain absurdity in the spectacle of one statutory agency of the state suing another, it may be assumed that the legislature, tho'ugh it saw fit to provide in KRS 18.270 that the actions of the Board “shall be final and not subject to judicial review,” did not intend to confer arbitrary power on the Board and thus waive and deny to its own agencies and departments a right guaranteed to others by § 2 of the Constitution; and if this theory is correct,'the standing of an administrative department to bring a suit such as this, and the right of a court to hear it, would be indispensable to the preservation of that right. Whereas, therefore, the attempts at judicial intervention in Moore v. Louisville Hydro-Electric Co., 226 Ky. 20, 10 S.W.2d 466 (1926), and Travelers Ins. Co. v. Carter, 314 Ky. 392, 235 S.W.2d 1003 (1951), were rejected for lack of jurisdiction, in this instance the defect is not jurisdictional.

Appellees contend that the Department has a right to due process, which will be denied if its officers “are required in an administrative hearing before the Personnel Board to meet and rebut unknown, undisclosed, secret evidence unrelated, irrelevant and immaterial to the issues presented by the pleadings.” Conceding (without deciding) all this to be correct, the record does not show a reasonable probability that the Personnel Board is going to let it happen or, if it does, that a judicial review pursuant to the inherent power of the courts to provide relief from constitutional infringements would be inadequate.

The issuance of subpoenas does not oblige the Board to hear or consider the evidence made available by their execution. That the prayer of the discharged employes for reinstatement is not supported by their allegations should not prevent a full inquiry into the circumstances of and motivation for their dismissals, because such an inquiry is necessary in order for the Board to determine whether it will grant the lesser relief provided by KRS 18.270. And if within the ambit of this inquiry evidence is adduced which justifies an amendment of the pleadings, it would be no more unfair or unconstitutional for the Board to permit it than it is for a court of law to do it under CR 15.

The Personnel Board is enjoined against arbitrariness by § 2 of the Constitution, a concept we consider broad enough to embrace both due process and equal protection of the laws, both fundamental fairness and impartiality. The Board will have the advice and guidance of counsel whose duty in this respect and under these circumstances will be no less than its own. There is no basis for presupposing that these obligations will be violated.

The cause is reversed with directions that a judgment be entered in conformity with this opinion.

      . Chapter 122, Acts of 1948.

      . Which we shall hereinafter call the 1962 Act.

      . By the same token, the court’s remark in Hogan v. Glasscock, Ky., 324 S.W.2d 815, 75 A.L.R.2d 1335 (1959), to the effect that ICRS 12.210 applied exclusively to “expressly specified” agencies wonld not follow under the 1962 amendments.

      . KRS 12.160 (1942 ed.).

      . It is not contended that KRS 12.100 furnishes an applicable method for resolution of the internal dispute, and we do not pass on that question.


author: WARD YAGER, Special Commissioner.

text:
    F. R. ANDERSON, Appellant, v. Glen BRITT et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 29, 1963.
    Rehearing Denied Feb. 28, 1964.

      Val A. House, Jr., Scottsville, for appellant.
    N. G. Goad, Scottsville, for appellees.
   WARD YAGER, Special Commissioner.

Appellant, F. R. Anderson, through his agent, Ralph Warkentine, procured an oil and gas lease from appellees, Glen Britt and wife, Lucy, covering thirty-five acres, more or less, adjoining the northeastern city limits of Scottsville. Appellees also own a four-acre tract adjoining the thirty-five acres and separated from it by a fence. The four-acre tract extends to the city limits at North Eighth Street in Scottsville. Appellant, in his complaint, refers to the four-acre tract as “other lands of Defendant,” and thereby recognizes that it is independent of the lease.

There are three gates on the four-acre tract between Eighth Street and the leased premises. These gates were on the four-acre tract prior to the execution of the lease.

Appellant filed this action claiming that appellees have refused him access to the leased premises through and across the other lands of Britt and seeking a restraining order against appellees and damages.

The leased thirty-five acres are described as follows: Bounded on the north by lands of Cy Kelley, on the east by lands of Glen Britt’s barn and house lots, on the south by lands of G. M. Allen, on the west by lands of Henry Rush, and being the same land conveyed to appellees by one Allen and giving source of title. The deed, the source of appellees’ title, and the lease to appellant are both in evidence.

Appellees contend that the four acres were not embraced in the lease, and that at the time of the execution of the lease, appellant’s agent was informed that he would have to obtain access to the leased premises-in a way other than over the four acres in question. The court found that appellant had not definitely shown that he had no-other means of access to the thirty-five-acre lease.

Appellant admits in his evidence that he owns the Henry Rush lease and the Murrell' Allen lease and that both join the Britt lease, and that he tried to obtain access over these lands to the Britt lease.

Appellant contends that the right of access to the lease is implied. The lease itself neither grants nor forbids access to the thirty-five acres leased. Appellant cites Neal v. Finley, 136 Ky. 346, 124 S.W. 348, for the proposition that a conveyance of a mineral interest in and to realty implies with it access over remaining lands of the grantor to premises concerned in the lease conveyance. That case does not govern this action inasmuch as it involved a contract to convey which contained a covenant to convey the mineral in a part of certain lands, together with all necessary mining rights. There is no such covenant here; the only writing involved is the oil and gas lease which contained no covenant of such nature.

An implied covenant is one which may reasonably be inferred from the whole agreement and the circumstances attending its execution. A covenant is viewed as implied in nature when its existence is inferred by legal construction from the use of certain words and phrases. There is no limitation upon the form or general character of the words which may lay the basis for the existence of an implied covenant. The primary concern in this connection is the intention of the parties to the instrument rather than the manner of its expression. However, implied covenants are not favored in the law. Such covenants can arise only where there is no expression on the subject. The courts will declare implied covenants to exist only when there is a satisfactory basis in the express contract of the parties which makes it necessary to imply certain duties and obligations in order to effect the purposes of the parties to the contract made. Such covenants can be justified only upon the ground of legal necessity arising from the terms of a contract or the substance thereof. The implication from the words must be such as. will clearly authorize the inference or an imputation in law of the creation of a covenant. It is not enough to say that it is necessary to make the contract fair, that it ought to have contained a stipulation which is not found in it, or that without such covenant it would be improvident, unwise, or operate unjustly. The covenants raised by law from the use of particular words in an instrument are only intended to be operative when the parties themselves have omitted to insert covenants. But when a party clearly indicates to what extent he intends to warrant or obligate himself, that is the limit of his covenant and the law will not hold him beyond it. 14 Am.Jur., Covenants, Section 14, page 490.

Appellant contends that the law implies a covenant for access across appel-lees’ other land, and further that this implied covenant may not be contradicted by parol evidence. However, from the consideration of implied covenants, above, we see that the law will imply a covenant only where the parties do not express their intentions. 14 Am.Jur., Covenants, Section 14, page 490. As for the admissibility of parol evidence on the subject, this Court has long taken the position that while parol evidence may not be admissible to contradict or vary the provisions of a writing, the law is clear that where the contract is silent, or where the entire agreement is not reduced to writing and the parol evidence is only to supply the unwritten agreement, it is admissible. Ford v. Hurt, Ky., 265 S.W.2d 475; Reynolds Metals Co. v. Barker, Ky., 256 S.W.2d 17; and Rudd-Melikian, Inc. v. Merritt, 6 Cir., 282 F.2d 924.

The law as it applies here is that Warkentine, appellant’s agent, and Britt reached an agreement whereby appellant was to seek and use other means of ingress and egress. This was"not stated affirmatively or negatively in the written lease; hence, the full agreement was not written. The parol evidence does not contradict any part of the writing, but rather it explains that a part of the agreement was not written into the contract. The parol evidence supplies that unwritten, noncontradictory agreement.

The evidence shows that temporary permission was given by appellees for appellant, and those under him, to use the four-acre tract as access to the leased thirty-five acres; that appellant was advised at the same time that he must procure a right of way otherwise; that appellant expected to and relied on doing so; that the gates on the four-acre tract were kept locked and the keys kept by appellees; and that permission to cross the four-acre tract was given only when specifically requested.

It is our conclusion that the four-acre tract is no part of the leased premises; that access over the four acres is not implied because the agreement of the parties is otherwise; and it is not shown definitely that the appellant was unable to obtain other access to the leased premises.

It is, therefore, our opinion that the judgment of the lower court should be affirmed.

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


author: MONTGOMERY, Judge.

text:
    Thomas Scott SILER, Appellant, v. Elsie WILLIFORD, Appellee.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.

      Robert J. Watson, Middlesboro, for appellant.
    William S. Tribell, John J. Tribell, Mid-dlesboro, for appellee.
   MONTGOMERY, Judge.

Thomas Scott Siler has appealed from a judgment by which Elsie Williford was awarded $15,000 for damages for injuries arising out of an auto collision. This is a second appeal. See Siler v. Williford, Ky., 350 S.W.2d 704, in which an award of $6,741 was reversed. The facts on the second trial were substantially the same as on the first except for variations in estimates of speed and distances and the proof of injuries.

Briefly, the case involves a collision between the Williford car, coming out of a private driveway, and the Siler car, traveling on Cumberland Avenue in Middlesboro. The collision occurred about 12:35 a. m. on a foggy night in October.

Appellant contends that ICRS 189.330(7) is mandatory in requiring the driver of the vehicle about to enter or cross a highway from a private road or driveway to yield the right of way to all vehicles approaching on the highway. He says that the trial court should have held as a matter of law that appellee was contributorily negligent and that the court was in error in overruling his motions for directed verdict and for judgment notwithstanding the verdict.

Considering similar evidence heard on the first trial, this Court held that the issue of plaintiff’s (appellee) negligence was for the jury. Appellee urges that the law of the case rule governs and that the decision on the first appeal controls. When an appellate court decides a question concerning evidence or instructions, the question of law settled by the opinion is final upon a retrial in which the evidence is substantially the same and precludes the reconsideration of the claimed error on a second appeal. Big Sandy Realty Company v. Stansifer Motor Company, Ky., 294 S.W.2d 529; Armstrong v. McGuire, Ky., 317 S.W.2d 902; Copley v. Craft, Ky., 341 S.W.24 70. Cf. Union Light, Heat & Power Company v. Blackwell’s Adm’r, Ky., 291 S.W.2d 539, 87 A.L.R.2d 264. The motions wera correctly overruled.

With respect to whether ICRS 189.330(7) imposes a mandatory duty on the driver on a private road or driveway, this Court, in the earlier opinion, held that “the matter of who has the right of way is relative, notwithstanding the literal language of the statute.” Thomas v. Dahl, 293 Ky. 808, 170 S.W.2d 337. This Court, in the earlier opinion herein, directed the giving of an instruction embodying the principle that it was the duty of-the driver of appellee’s automobile before entering Cumberland Avenue to yield the right of way to appellant’s approaching car and not to attempt to enter the street if the approaching car was so near that the driver of the appellee’s car could not, by the exercise of ordinary care, avoid the collision. The jury was so instructed on the second trial. Appellant’s complaint as to this instruction is also rejected by reason of the law of the case rule previously stated. The same answer is made concerning the objections made to Instructions 1, 2, and 3, which were the same as were given on the first trial. Dunaway v. Darnell, Ky., 323 S.W.2d 857.

Appellant contends that there was no proof of permanent injury and impairment of the power to earn money; hence, no instruction on this point should have been given, and, consequently, there is insufficient proof to sustain the damage award. He also says that the award is excessive.

Appellee sustained multiple lacerations about the face, leaving scars on her nose and forehead. She also suffered multiple bruises and lacerations of her lower extremities. Her most serious injury was a fracture of the jawbone where it connects to the skull. This injury necessitated keeping her jaw immobilized for six weeks, during which time she lived on liquids taken by means of a straw. There was medical testimony of the permanent nature of her facial scars, of the jaw injury, and of a partial loss of hearing. Her medical expenses were in excess of $700. She was hospitalized twelve days and she returned to work part time about two months after being injured. She had been employed in the nursing service at the local hospital at $250 per month. On the occasion of the second trial, she was still working, and at a small increase in pay. At the time of the accident, she was forty-eight years of age.

In Moore v. Hart, 171 Ky. 725, 188 S.W. 861, this Court held that when the injury is permanent, failure to show the impairment of one’s earning power is not fatal to a recovery. In Spurlock v. Spurlock, Ky., 349 S.W.2d 696, it was held that a married woman who has sustained permanent injuries may recover therefor without direct proof of any specific pecuniary loss. Under the circumstances of this case, the instruction was justified and the damages are not excessive.

Judgment affirmed.


text:
    UNITED FUEL GAS COMPANY, a Corporation, Appellant, v. Wilson D. ROWE et al., Appellees.
    Court of Appeals of Kentucky.
    March 20, 1964.

      J. Peyton Hobson, Jr., Hobson & Stephens, Pikeville, C. E. Goodwin, H. Raymond Andrews, Jr., Charleston, W. Va., for appellant.
    V. R. Bentley, Pikeville, for appellees.
   MONTGOMERY, Judge.

Wilson D. Rowe et al. were awarded $3,100 in damages by a judgment against United Fuel Gas Company arising from the laying of a gas pipeline across their property. On appeal the instructions are attacked.

By their complaint as amended, appel-lees claimed that in the laying of a gas pipeline the appellant exceeded its rights and “through the wanton and malicious acts of the defendant (appellant), by its agents, servants and employees not in the reasonable exercise of its easement rights therein and thereunder” damaged appellees’ residence, bottom land, trees, crops, and fence. Appellant claimed that the pipeline construction was done in a workmanlike manner under a right of way agreement. Appellant also had an oil and gas lease on the property. The proof in the main conformed to the pleadings.

Appellant urges on appeal that the instructions were erroneous in various respects. Appropriate objections were made. CR 51.

Appellant complains that Instruction No. 1 was based on appellant’s rights under the gas lease instead of under the right of way agreement. The rights of appellant under the right of way agreement are broader and more specific than they are under the lease. It was error to base the instructions on the lease rather than on the right of way agreement inasmuch as appellant based its right in its answer on the agreement. There was no issue concerning appellant’s rights under the lease. Edge v. Ott, 151 Ky. 672, 152 S.W. 764.

The court gave five separate instructions on five different items of damage. None of the instructions set forth the rights of appellant under its right of way agreement; hence, the jury was in ignorance of these rights. The pleadings presented an issue as to what appellant had done by way of damages not in the necessary and prudent construction and laying of the pipeline under the right of way agreement. As an example, Instruction No. 2 permitted appellees to recover damages for injury done to trees without telling the jury that appellant had the right under its agreement to cut and remove such trees as were necessary to be removed from the right of way in the prudent conduct of the construction and laying of the pipeline. The court should have instructed the jury concerning the relative rights of the parties under the right of way agreement and should have submitted the question as to whether the acts causing damage were prudently and necessarily done. Regal Block Coal Company v. Bentley, 204 Ky. 66, 263 S.W. 683.

Injuries to appellees’ residence, bottom land, fence, and trees are injuries to real property. The injuries flowing from the construction and laying of the pipeline are permanent in nature. The measure of damage for permanent injury to real estate is the difference between the market value before and after the injury. Blue Diamond Coal Company v. Press Eversole, Ky., 253 S.W.2d 580; Chapman v. Beaver Dam Coal Company, Ky., 327 S.W.2d 397. The several instructions given might well have been embodied in a single instruction containing this measure of damage. The instructions given were erroneous for such failure. No instruction was given on damage to crops, indicating that there was no evidence on which to base such an instruction.

By Instruction No. 4, the jury was empowered to award damages for such failure to lay the pipeline “underneath the soil” as interfered with cultivation of the-land. On the “Perlina Keene Tract” part: of the pipeline was not placed beneath the surface because the surface was stone. The right of way agreement provided that “the gas line * * * shall be constructed and maintained below cultivation, so that grantors may fully use and enjoy the premises •* * The language used indicates that it-was intended for the appellees to have full enjoyment of their lands primarily for the purpose of cultivation. Attainment of this objective is not lessened by a failure to place the pipeline below the surface when it passed over solid rock. The failure to lay the pipe beneath a stone surface obviously would not interfere with cultivation. No instruction authorizing such damages should have been given.

Judgment reversed for a new trial consistent herewith.


text:
    W. R. WILLETT LUMBER COMPANY, Inc., et al., Appellants, v. M. W. HALL, d/b/a Lyon County Builders & Lumber Company, et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.

      A. Joe Asher, Benton, for appellants.
    Marvin C. Prince, Benton, J. Luke Quertermous, Princeton, A. E. Boyd, Jr., Paducah, for appellees.
   CLAY, Commissioner.

This suit was brought by creditors of one Hall to set aside certain deeds to and a mortgage on a tract of real estate, and to subject the property and/or proceeds to the payment of creditors’ claims. Motions to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted against any of the defendants were sustained and the complaint was dismissed with prejudice.

The circumstances out of which this suit arose may be briefly summarized. M. W. Hall was engaged in business under the name of Lyon County Builders and Lumber Company. On January 23, 1961 he transferred his one-half interest in the real estate involved to his wife (she was the owner of the other half). On June 22, 1961 this property was mortgaged to defendant Citizens Bank of Kuttawa to secure a loan of $7,000, which was allegedly used in part by Hall to pay obligations of his business. On August 12, 1961 the property was sold to defendants Henry M. Price and wife. The suit sought to have the deeds and mortgage set aside on the grounds of fraud and preference.

The claims of the plaintiffs are invoked under KRS 378.010 (fraudulent conveyances) and KRS 378.060 (preferential encumbrances). The allegations of the complaint do not follow or include the simple, direct and significant language of those statutes, and we are called on to search for plaintiffs’ causes of action.

At the outset plaintiffs concede they failed to state an enforceable claim against Price and his wife, so the suit was properly dismissed as to them. With respect to the mortgage made to the Bank of Kuttawa on June 22, 1961, it could be questioned only if the transaction was entered into (1) in contemplation of insolvency, and (2) with the design to prefer the bank as a creditor. KRS 378.060. Heidrich v. Silva, 89 Ky. 422, 12 S.W. 770. Neither of these allegations appear nor can the language of the complaint be construed as making these assertions. No enforceable claim against the bank is stated.

The only remaining question is whether plaintiffs stated a claim arising out of the transaction between Hall and his wife. In view of the allegations of probable insolvency, insufficient consideration, and the statement that the conveyance was made “in fraud” of the rightful claim of creditors, by the exercise of extreme liberality we can find the assertion of a right to have this deed voided under KRS 378.010. See Alt v. Burt, Ky., 242 S.W.2d 974. (We do not approve this form of pleading under that statute.) However, in view of the fact that the real estate is beyond the reach of creditors (being now owned by a good faith purchaser), this is an empty claim upon which no relief can be granted by way of subjecting the property to Hall’s debts.

The only other claim arising out of this transaction is the possibility of personal liability on the part of Hall’s wife (to the extent of the value of Hall’s interest conveyed to her) if she participated in a scheme to defraud the creditors. See 24 Am.Jur., Fraudulent Conveyances, section 128 (page 274). No direct allegations are made that she committed any wrongful act, nor is any specific relief asked against her. However, construing this pleading liberally under CR 8.06 and in the light of CR 8.01 and 54.03, it is our opinion that the complaint states a claim upon which some form of relief could possibly be granted against defendant Bernice Hall. See Clay, Kentucky Practice, Vol. 6, CR 8.01, Comments 3 and 5; Lee v. Stamper, Ky., 300 S.W.2d 251; Ewell v. Central City, Ky., 340 S.W.2d 479.

The judgment is affirmed in part and reversed in part, with directions to overrule defendants’ motion to dismiss plaintiffs’ claim against defendant Bernice Hall.


author: MILLIKEN, Chief Justice.

text:
    INLAND STEEL COMPANY, Appellant, v. Leon MOSBY et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.
    Fred G. Francis and Howard, Francis & Howard, Prestonsburg, for appellant.
    C. W. Napier, Jr., Hazard, Cordell Martin, Hindman, for appellees.
   MILLIKEN, Chief Justice.

This case is a sequel to Inland Steel Company v. Mosby (1962), Ky., 355 S.W.2d 651, in which we remanded the case to the Workmen’s Compensation Board after it had dismissed Mosby’s claim for disability from silicosis on the ground he had not given the employer proper notice.

Prior to his present claim for silicosis Mosby had received an award on the basis of 50% disability against the appellant, Inland Steel Company, in June, 1956, for an injury to his leg which occurred on May 9, 1955. The appellee last worked for the appellant June 26, 1957, when he was cut off due to a reduction in working force.

Subsequently on June 13, 1958, after he had lost a job in a restaurant because he had silicosis, Mosby filed his claim for workmen’s compensation benefits for silicosis which he asserted developed while working for Inland. Upon processing of the latter claim, the Workmen’s Compensation Board dismissed it for failure to give proper notice which conclusion we overruled and remanded the case to the Board for a hearing on the merits. Inland Steel Company v. Mosby, supra. After the hearing was held, the Board found Mosby 100% disabled from silicosis and granted an award accordingly.

Confronted with conflicting medical opinions the Board referred Mosby to Dr. Oscar O. Miller for examination and he concluded that Mosby was totally disabled by reason of impaired breathing capacity; 30% attributable to, silicosis and 70% to nonoccupational emphysema. However, Dr. Miller admitted that Mosby’s silicosis was sufficient to make it “not advisable” for him to work in the mines. On November 9, 1963, the Workmen’s Compensation Board .awarded Mosby total and permanent dis.ability benefits. Mosby had worked for Inland for nearly thirty years so his case ■does not involve the subsequent claim fund. It was at Inland where he had his last exposure to silica dust.

Appellant urges that the Workmen’s Compensation Board erred in awarding ap-pellee 100% disability without giving credit to the employer for compensation previously paid in the amount of 50% disability to the body as a whole. Mosby worked for Inland .about a year and a half after the 1955 leg injury before his dismissal. Appellant emphasizes the fact that appellee’s leg injury .and award for 50% disability to the body as a whole was incurred during the same period of employment during which he incurred silicosis. Appellant argues that it is unconscionable to award a man disability in an amount of 150% to the body as a whole.

The two awards given to the appellee are in line with tire decision of this Court in International Harvester Company v. Poff, Ky., 331 S.W.2d 712, which held that where leg injuries themselves produced total and permanent disability, the workman was entitled to total and permanent disability com-pensation, without deduction of an amount -previously paid to compensate him for disability resulting from the loss of an eyeball even though the loss of the eyeball caused .25% partial disability to the body as a whole. Simply because silicosis is not so • easily detected as an exterior visible injury should not cause us to deviate from the principle of the International Harvester Company case.

In the International Harvester Company •case, supra, this Court cited a statement •from Larson’s Workmen’s Compensation Law, Vol. 2, Sec. 59.42, p. 67, which also covers the case at bar, to wit: “The capacities of a human being cannot be arbitrarily and finally divided and written off by percentages. The fact that a man has once received compensation as for 50% of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive a compensation award going beyond the other 50% of total. After having received his prior payments, he may, in future years, be able to resume gainful employment. If so, there is no reason why a disability which would bring anyone else total permanent disability benefits should yield him only half as much.”

Appellant further contends the award for lung disease should be apportioned 30% to silicosis, an occupational disease, and 70% to emphysema, a nonoccupational disease. The testimony of Dr. Oscar O. Miller supports the conclusion that 30% breathing impairment attributable to silicosis is enough for total and permanent disablement for the performance of coal mining. In Bethlehem Mines Corporation v. Davis, Ky., 368 S.W.2d 176, 177, this Court held that proof relating to other possible contributing factors to total and permanent disability of one employed by a coal mining company, and who also was found disabled by an occupational disease of a respiratory nature acquired in employment, was insufficient to require apportionment. See, also, on the subject of apportionment and qualifying opinions of physicians, Leep v. Kentucky State Police, Ky., 366 S.W.2d 729.

In any event, the conclusion of the Board is supported by lay witnesses and .the testimony of two physicians as well as by Dr. Miller.

The judgment is affirmed.

MONTGOMERY, J., dissenting.


text:
    Minnie BRUMLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.
    Lester L. Parrott, Manchester, for appellant.
    John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Asst. Atty. Gen., for ap-pellee.
   MILLIKEN, Chief Justice.

This is an appeal from a conviction for voluntary manslaughter resulting in a sentence of two years in the penitentiary. The judgment must be reversed because this Court changed the standard instruction covering the defense of insanity in Terry v. Commonwealth, Ky., 371 S.W.2d 862, decided in May, 1963, after the appellant’s conviction in January of 1963, but while it was pending on appeal.

The appellant shot and killed Reuben Smith, an 83-year old man, on September 1, 1962, after a heated argument over a small debt when Smith struck her with his cane and abused her verbally. Subsequently, the appellant was adjudged a person of unsound mind and sent to the State Hospital at Danville for observation. She was released sometime later, but the court was not officially informed as to her mental status or condition at the time of her dismissal from the State Hospital.

Whether it' was proper to force her to trial in the circumstances was a matter of discretion for the trial court as we decided (October, 1963) in Hopper v. Commonwealth, Ky., 371 S.W.2d 646. See, also, RCr 8.06.

In' Terry v. Commonwealth, supra, in order to permit wider scope to psychiatric testimony, we deserted the established M’Naghten Rule (knowledge of right or wrong) covering the defense of insanity. This was done with the full knowledge that there might be and probably were some cases on appeal in which the M’Naghten instruction had been given the jury. The present c^se is one of them and it is our view that this appellant should be tried by the same standard afforded Terry by the reversal of his case, because this appeal was pending during the period in which the Terry case was being considered and decided. We wish it clearly understood that this change in the form of instruction to be given on the issue of defense of insanity is prospective in its application except in the instance of Terry and those cases on appeal when the Terry appeal was decided. 14 Am.Jur., Courts, Sections 129, 130, at pages 345-347, and annotations; Criminal Law, by Donelly, Goldstein & Schwartz (1962), at pages 289-294.

The philosophy of our position is that the M’Naghten Rule was the procedural law of its era, but that the discoveries and developments in the social sciences such as psychology, psychiatry and sociology must be recognized as facts of life as much as the applications of atomic energy and electrical computers. The Terry decision tailors the procedural law to permit the better utilization of the social sciences in the courtroom.

The judgment is reversed.


author: DAVIS, Commissioner.

text:
    Howard YATES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.
    John B. Breckinridge, Atty. Gen., Ronald M. Sullivan, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Appellant, Howard Yates, is here, in for-ma pauperis, asking reversal of adverse ruling by McCracken Circuit Court on his RCr 11.42 motion to vacate a judgment of that court, wherein he was convicted of voluntary manslaughter and sentenced to imprisonment for 21 years. In the motion he asserted three grounds upon which he deems himself entitled to have the voluntary manslaughter conviction set aside: (1) newly discovered evidence, (2) incompetence of a prosecuting witness because of drunkenness of the witness at the trial, and (3) misconduct of some of the jurors. These same points are urged here as grounds for reversal of the judgment overruling the RCr 11.42 motion.

The judgment convicting Yates of voluntary manslaughter was entered December 11, 1962, in McCracken Circuit Court. The motion to vacate was filed in the same court on July 15, 1963, while Yates was a prisoner at Eddyville.

The allegedly newly discovered evidence consists of this: another inmate of the Eddyville penitentiary, O. L. Dudley, testified at the RCr 11.42 hearing that about April 1, 1963 (after the conviction of Yates), he heard Adam Scribner say to Albert Lofton, “I’ll bust your damn brains out just like I did Bill Cole’s.” The witness, Dudley, did not communicate this information to Yates until June 28, 1963, which was the date Dudley entered Eddy-ville as a fellow prisoner of Yates.

It may be noted that RCr 10.06 permits motion for new trial on the ground of newly discovered evidence within one year after the entry of the judgment or at a later time if the court for good cause so permits. We treat the instant motion as if made pursuant to RCr 10.06 in respect to the “newly discovered evidence” facet.

There was no showing concerning the availability of Adam Scribner. Obviously, the testimony of Dudley recounting the statement of Scribner was hearsay. Such proffered testimony is not newly discovered evidence; it is not evidence at all. The testimony could not have been offered upon the original trial, assuming that it had been available at that time. Clearly, it is not proper basis for a new trial under RCr 10.06 or 11.42. See 20 Am.Jur. 428, Evidence, § 495, wherein it is said:

“According to the overwhelming weight of authority, a confession on the part of a third person that he committed the crime which the defendant is charged with having committed, even though it is made in expectation of imminent death or by a person jointly indicted with the accused, is not admissible as substantive evidence tending to exculpate the accused where the confession does not constitute a part of the res gestae. The reason given by the courts for excluding such evidence is that it is hearsay.”

It is appropriate to observe that some authorities take the position that such extrajudicial admissions by a stranger to the trial may be admitted, despite the hearsay rule, in those instances in which the declar-ant has become unavailable to the processes of the court. See 20 Am.Jur. 429, Evidence, § 495. However this may be (and we do not decide the point), in the case before us there was no showing as to whether Adam Scribner was available to testify; neither can it be conclusively said that his purported statement specifically relates to the homicide of the victim, Bill Cole. For these reasons there is no merit in the newly discovered evidence phase of the motion.

One of the prosecution’s witnesses in the homicide trial was Robert Sanderson. Appellant asserts that at the time of the trial Sanderson was drunk; he offered evidence to the effect that Sanderson was observed drinking some liquid — assumed to be an intoxicant — at intervals while the trial was in progress and before Sanderson testified. Appellant does not point out any portion of Sanderson’s testimony which he claims was befogged by alcohol. No instance of incoherence is suggested. Indeed, we have the bare claim by one witness that he saw Sanderson drink something under circumstances suggesting it was an intoxicant. The witness professed long standing acquaintance with Sanderson, and of Sander-son’s propensities toward intoxication, deposed : “I have known him all his life and I ain’t never seen him no other way.”

The circuit court clerk testified that he heard Sanderson’s evidence; that San-derson was not drunk, but was coherent and appeared aware of all circumstances. The trial judge who tried the homicide case and presided at the RCr 11.42 hearing noted that during the homicide trial objection was made to Sanderson’s evidence, which was overruled. This question then became one which could have been reached by appeal. The failure of appellant to avail himself of the right of appeal precludes his attack on the competency of Sanderson. See Owen v. Commonwealth, 181 Ky. 257, 204 S.W. 162.

The final point argued for appellant is alleged misconduct of some of the women who served on the jury which convicted him. We are loath to dignify the point with discussion. Appellant offered witnesses who said they saw two of the women on the jury enter the rest room during a recess of court while the trial was in progress. Then, two women, spectators at the trial, entered the rest room while the jury members were there; and as the spectators entered, one of them was heard to say, “Howard Yates.” There were five women on the jury; all testified that no person discussed the case with them during the course of the trial, in the rest room or anywhere else.

It is significant that appellant offered his own mother, who testified that she was apprised of this alleged misconduct of the women on the jury nearly simultaneously with its purported happening. Appellant testified that his mother and sister did not advise him of the event until six months later. However this may be, there is no showing of any misconduct on the part of any juror, nor of any effort by any person to tamper with the jury or any member of it.

We entertain substantial doubt that any of the complaints here asserted by appellant properly fall within the purview of RCr 11.42, nor is this opinion to imply that this court so construes that rule. Inasmuch as the case is here, at least on the point of alleged newly discovered evidence under RCr 10.06, we have disposed of the entire matter on the merits.

The judgment is affirmed.

      . Bill Cole was the victim of the homicide for which Yates had been convicted.


author: CULLEN, Commissioner.

text:
    Thelma L. STOVALL, Treasurer, Commonwealth of Kentucky, Appellant, v. EASTERN BAPTIST INSTITUTE, d/b/a The Mountain Craft Shop, et al., Appellees. Thelma L. STOVALL, Treasurer, Commonwealth of Kentucky, Appellant, v. COMMONWEALTH of Kentucky ex rel., etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.

      Thomas F. Marshall, Frankfort, for appellant.
    William M. Johnson, Frankfort, for ap-pellee Eastern Baptist Institute.
    Paul E. Tierney, Department of Economic Security, Martin Gl'azer, Asst. Atty.
    Gen., Frankfort, for appellee Commonwealth of Kentucky.
   CULLEN, Commissioner.

The refusal of the State Treasurer to honor warrants for loans approved under Chapter 21 of the Acts of 1962 (KRS 152.410 to 152.480) and Chapter 41 of the Acts of 1962 (KRS 216.750 to 216.780) precipitated two actions in which the constitutionality of the two Acts was placed in question. The circuit court entered judgments upholding the Acts and the State Treasurer has appealed.

Chapter 21 (KRS 152.410 to 152.480) creates a state “Arts and Craft Loan Fund Board” with authority to loan appropriated funds to nonprofit organizations “for the purposes of building inventories, purchase of equipment and supplies, purchase of finished products for marketing, establishment of craft centers, establishment of warehouses, establishment of display centers, or for any similar purpose that would develop the Kentucky arts and craft industry.” The board is authorized to promulgate regulations fixing the rate of interest on loans, determining the amount and kind of security to be required, establishing standards for determining the soundness and feasibility of proposed projects, prescribing the form and contents of applications, and generally governing such other matters as the board may deem necessary.

Chapter 41 (KRS 216.750 to 216.780) creates a state “Nursing Home and Personal Care Home Loan Fund Board” with authority to loan appropriated funds to operators of nursing homes or personal care homes “for constructing, equipping, remodeling or re-equipping” such homes. This board is given powers to make regulations .substantially identical with those given the Arts and Craft Loan Fund Board by Chapter 21.

The first claimed ground of unconstitutionality is that each of the Acts delegates legislative power in violation of Section 27 of the Kentucky Constitution. Under the principles laid down in Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W.2d 584, this ground is not sustainable. It is our opinion, also, that even under the more restrictive view expressed in such cases as Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387; Keller v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 272, 130 S.W.2d 821, and Kerr v. City of Louisville, 271 Ky. 335, 111 S.W.2d 1046, the Acts in question do not make an invalid delegation of legislative authority, since the regulatory powers granted to the hoards relate to administrative detail rather than basic policy.

The second ground on which the Acts are claimed to be unconstitutional is that they serve private rather than public purposes, in violation of Sections 3 and 171 of the Kentucky Constitution. For the reasons hereinafter stated we think this ground also is not sustainable.

The Arts and Crafts Act is designed to accomplish the purpose of “promotion, encouragement and development of the Kentucky arts and crafts industry,” which “employs and provides a livelihood for many persons.” This Court has recognized promotion of economic welfare, relief of unemployment, and stimulation of industry as legitimate public purposes. See Industrial Development Authority v. Eastern Kentucky Regional Planning Commission, Ky., 332 S.W.2d 274; Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80; Carman v. Hickman County, 185 Ky. 630, 215 S.W. 408. Development of the arts and craft industry may play a substantial part in the economic rehabilitation of depressed areas of this state. We think that the Arts and Crafts Act has a sufficient relation to the accomplishment of legitimate public purposes as to preclude interference by the courts with the legislative declaration of the public purpose of the Act.

The Nursing Home and Personal Care Home Act declares the public interest in providing suitable housing and care facilities for elderly persons. Under the principles laid down in Bowman v. Frost, 289 Ky. 826, 158 S.W.2d 945, we think' this is a legitimate public purpose. The fact that there will be some private benefits from the Act does not negate its public purpose. Industrial Development Authority v. Eastern Kentucky Regional Planning Commission, Ky., 332 S.W.2d 274.

The Third contention is that each act violates the prohibitions of Section 177 of the Kentucky Constitution against a lending of the credit of the Commonwealth to any individual, company, etc., and against the making of a donation by the Commonwealth to any company, association, etc. This contention is fully answered by the opinion in Industrial Development Authority v. Eastern Kentucky Regional Planning Commission, Ky., 332 S.W.2d 274. As held in that case, there is no lending of credit, but only a lending of money; and the fact that both Acts contemplate the making of loans in instances in which financing is not available from conventional lending sources does not mean that the loans will be the equivalent of donations.

The judgments are affirmed.


text:
    William GIBSON, Petitioner, v. JUDGE OF WARREN CIRCUIT COURT, Bowling Green, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.
    William Gibson, pro se.
    Robert M. Coleman, Bowling Green, for respondent.
   MILLIKEN, Chief Justice.

The petitioner filed this original action in this Court on January 2, 1964, asking us to mandamus the Judge of the Warren Circuit Court to correct the form of his judgment of conviction of grand larceny by removing the provision permitting the State Parole Board to determine whether his sentence should run concurrently or consecutively with a five year sentence which was theretofore imposed by the Hopkins Circuit Court for another offense. Upon being informed that the State Parole Board did not have such discretion, the Warren Circuit Court had entered an Order on March 12, 1963, declaring that the two year sentence for grand larceny should run consecutively with the sentence then being served by Gibson. In other words, what the petition seeks had already been done. Furthermore, the Judge must be designated by name. Trodglen v. Judge, Daviess Circuit Court, Ky., 371 S.W.2d 40

The mandamus is denied.


text:
    James H. HAMPTON, Petitioner, v. JUDGE OF the JEFFERSON CIRCUIT COURT, CHANCERY BRANCH, THIRD DIVISION, Respondent.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.

      James H. Hampton, pro se.
    I. G. Spencer, Jr., Clements & Spencer, William H. Walden, Asst. County Atty., Louisville, for respondent.
   MONTGOMERY, Judge.

James H. Hampton, a prisoner in the State Penitentiary, has filed a petition in this Court by which he seeks a writ of mandamus compelling the “Judge of the Jefferson Circuit Court, Chancellery (sic) Branch, Third Division” to halt a proceeding in that court brought by Jerry Martion Watson under KRS 199.500. The record in that proceeding is not before us. Apparently it is an action to obtain a consent for adoption of petitioner’s child. For the reasons stated in Trodglen v. Judge, Daviess Circuit Court, Ky., 371 S.W.2d 40, the petition should be dismissed.

The Honorable Lyndon R. Schmid, Judge, Jefferson Circuit Court, Chancery Branch, Third Division, has filed a response herein in which it is pointed out correctly that the petitioner is not entitled to the extraordinary remedy of mandamus. The petitioner has failed to use or exhaust the remedies available to him in circuit court and has an adequate remedy at law by appeal. Stewart v. Taustine, Ky., 343 S.W.2d 575.

Petitioner has failed to comply with RCA 1.420(a). No memorandum of authorities was filed in support of the petition. Curtis v. Bradley, Ky., 333 S.W.2d 944.

Petitioner is not entitled to the relief sought for the reasons stated.

The petition is dismissed.


author: WILLIAMS, Judge.

text:
    Charles CLEVENGER, Petitioner, v. JUDGE OF PIKE CIRCUIT COURT, DIVISION # 2, and Commonwealth of Kentucky et al., Respondents.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.
    Charles Clevenger, pro se.
    Thomas B. Ratliff, Commonwealth’s Atty., Pikeville, for respondents.
   WILLIAMS, Judge.

Charles Clevenger, a prisoner in the State Penitentiary under sentence from the Pike Circuit Court, has filed in this Court a petition naming as respondent Judge of Pike Circuit Court, Division #2, seeking an order of mandamus to compel the respondent to pass upon a motion filed in that court by petitioner.

The Pike Circuit Court has acted upon the motion filed by the petitioner and entered an order overruling such motion.

Petitioner has failed to name the Judge against whom the order of mandamus is sought, which is fatal to his cause. Trodglen v. Judge, Daviess Circuit Court, Ky., 371 S.W.2d 40. In that case it was stated that an order to control the action of the trial court is in the nature of a personal action against the judge of the trial court, and the judge against whom the order is sought must be sued by name and properly served with notice of the petition.

The petition is dismissed.