author: GREEN, Chief Justice.

text:
    Leonard MULLENS, Executor of Estate of Ruby Jane Bates Bailey, Deceased, Appellant, v. Gambrell BAILEY et al., Appellees.
    No. 16.
    Court of Civil Appeals of Texas. Corpus Christi.
    Jan. 9, 1964.

      Wm. Brode Mobley, Jr., Corpus Christi, for appellant.
    Joe J. Alsup, of Alsup & Alsup, Corpus Christi, for appellees.
   GREEN, Chief Justice.

Appellant filed suit on August 5, 1960, against appellees Gambrell Bailey, Tressie Bell Jacobs, and her present husband Dorsey Jacobs, seeking a money judgment for $1,750.00 and foreclosure of certain vendors lien notes executed February 20, 1943, by appellees Gambrell Bailey and his then wife, now Tressie Bell Jacobs. Appellee Bailey filed a motion for summary judgment alleging that as a matter of law appellant’s cause of action was barred by the four years statute of limitation, Article 5520, Article 5527, Vernon’s Ann. Texas St. The motion was granted and judgment was rendered by the trial court favorable to all of the appellees. Appellant excepted and gave notice of appeal. We affirm the judgment.

On the trial before the court, appellant and appellee Bailey stipulated on the facts to be considered by the court in rendering judgment, which stipulation was introduced as a part of the record by agreement of all parties. Since it is short, we copy it herewith as follows:

“STIPULATIONS
“It is agreed by and between the Plaintiff, Leonard Mullens, Executor of the Estate of Ruby Jane Bailey, and the Defendants, that the following are the undisputed facts in the above entitled and numbered cause and may be considered as the statement of facts, upon which judgment may be rendered in this cause:
I.
“That on February 20, 1943, S. C. Bailey and wife, Ruby Jane Bailey, by deed conveyed Lot 3 Block 4, Bay view Addition to Defendants.
II.
“That the notes as described in Plaintiff’s original petition were executed on the date of the delivery of the deed.
III.
“That all of said notes have been paid except $1750 as shown by the pleadings.
IV.
“That the notes attached to Plaintiff’s original petition are true and correct copies of the note so delivered.
V.
“That the last note was due in June, 1951.
VI.
“S. C. Bailey died in the late ’40’s or early ’50’s.
VII.
“Ruby Jane Bailey died on February 12, 1957.
VIII.
“This suit was filed on August 5, 1960.
IX.
“That the instrument referred to in Bailey vs. Mullens [Tex.Civ.App.], 313 S.W.2d 99, is the same instrument and contains the same provisions as the instrument referred to in the pleadings in this case, retaining the vendor’s liens therein referred to.
“ALSUP AND ALSUP
“By Joe J. Alsup
“Joe J. Alsup, Attorney for
“Defendant Gambrell Bailey
“WM. BRODE MOBLEY, JR.
“ATTORNEY FOR PLAINTIFF”

The cause of action on these vendor’s lien notes was barred by the four year statute of limitation (Articles 5520, 5527, V.A.T.S.) at the time of the death of Mrs. Ruby Jane Bailey. Hence, Article 5538, V.A.T.S., cited by appellant as tolling the law of limitations for twelve months after her death does not apply to this case.

Appellant contends in his first point that paragraph III of the stipulations constitute an acknowledgment of the justness of the debt and an implied promise to pay same, and that hence, the debt was taken out of the law of limitations and cites First National Bank v. Gamble, 134 Tex. 112, 132 S.W.2d 100, 125 A.L.R. 265; and Standard Surety & Casualty Co. v. Wynn, Tex.Civ.App., 172 S.W.2d 789, as authority. In Bank v. Gamble, a check, with notation “int. on note”, delivered by the maker to the holder of the note after the note had become barred, was held, under the circumstances, sufficient acknowledgment to toll the statute of limitations. In Standard Surety & Casualty Co. v. Wynn, there was a written acknowledgment of the debt, together with part payment,- which under the facts of that case was held sufficient to bring the case under the provisions of Article 5539. Neither case is applicable to the present situation.

Appellee Gambrell Bailey, at the time of entering into the stipulation, had a plea of the four year statute of limitation on file, both in his original answer and his motion for judgment. He was vigorously denying any present obligation on either the notes or the vendors lien. In order for a written instrument to be sufficient -to take a debt otherwise barred out of the operation of the statute of limitations under Article 5539, V.A.T.S., it must contain two' elements, namely, an acknowledgment of the-justness of the claim, and an expression of willingness to pay. The unqualified acknowledgment in writing of the indebtedness, unaccompanied by an expression indicating an unwillingness to pay, may raise the implications of a new promise to pay. 37 Tex.Jur.2d, Limitation of Actions, § 162, § 167, and cases cited. Under the undisputed facts there was no such recognition of any obligation or willingness to pay by appellees as would revive the debt. Article 5539, V.A.T.S.

Appellant in his second point states that because of the life estate retained by the grantors in the deed in question (see Bailey v. Mullens, Executor, Tex.Civ.App., 313 S.W.2d 99), limitation on the vendors lien did not. start until .after, the death of Ruby Jane Bailey on February 15, 1957. The reservation of the life estate did not affect the due date of the notes. The last of such notes had matured more than four years prior to her death. This is not a case where the mortgagee is in possession of the property defending a title/suit filed by the mortgagor, in which the defendant mortgagee as holder of vendors lien notes barred by limitation asserts his right to continue in possession until the debt is paid, as was the situation in each case cited to us by appellant. Benn v. Security Realty & Development Co., Tex.Civ.App., 54 S.W.2d 146, writ ref.; Hare v. Henderson, 5 Cir., 113 F.2d 277, certiorari denied, 311 U.S. 697, 61 S.Ct.. 135, 85 L.Ed. 451; also see Jasper State Bank v. Braswell, et al., 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329. This is a suit by plaintiff mortgagee in which the sole cause of action alleged in his petition was to recover a money judgment on notes barred by limitation and to foreclose on a vendor’s lien, likewise barred. Article 5520, Article 5527, V.A.T.S.; Yates v. Darby, 133 Tex. 593, 131 S.W.2d 95; Holcroft. v. Wheatley, Tex.Civ.App., 112 S.W.2d 298, no writ hist.; Kiel v. Staber, Tex.Civ.App., 116 S.W.2d 809, no writ hist.; Miller v. Linguist, Tex.Civ.App., 141 S.W. 170, no writ hist. The second point is overruled.

The cause of action, if any, was not revived by the holding of the Court of Civil Appeals in Bailey v. Mullens, 313 S.W.2d 99, that the deed in question conveyed the property to the grantees subject to the vendors lien, as contended by appellant in his third point. The appellate court in that case, which was between these same parties, was passing upon the disputed issue as to whether the written instrument there involved was sufficient to constitute a deed of conveyance. The holding was that the instrument as executed by the grantors in 1943 was a deed conveying real property subject to a vendor’s lien. Such language has no effect on the issue of limitations raised here.

Being of the opinion that the judgment as rendered by the trial court is correct, same is affirmed.


source: Caselaw Access Project

author: CHADICK, Chief Justice.

license: Public Domain

text:
    UNION IRON AND METAL COMPANY, Inc., Appellant, v. Mildred E. GIBSON et al., Appellees.
    No. 7532.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 26, 1963.
    Rehearing Denied Dec. 31, 1963.

      James F. Bobbitt, Karl E. Kraft, Houston, for appellant.
    Hill, Brown, Kronzer, Abraham, Watkins & Steely, Baker, Botts, Shepherd &' Coates, Wyatt H. Heard, Houston, for appellees.
   CHADICK, Chief Justice.

This is a negligence action involving personal injuries. The judgment of the trial court is affirmed as to the plaintiffs’ recovery and between the original and impleaded parties defendant the judgment is reversed and rendered.

First, this appeal presents a problem in the field of indemnity and contribution between joint tortfeasors. The appellee Houston Transit Company, with the appellee Mildred E. Gibson concurring, stoutly advocates a specific pronouncement that the doctrine of discovered peril is applicable between joint tortfeasors.

Brevity and clarity sanctions reference hereafter to Mildred E. Gibson as “Mrs. Gibson”, Houston Transit Company as “the transit company”, and Union Iron and Metal Company, Inc., as “Union”. It wilt also contribute to a better understanding of this composition to emphasize that two of the transit company’s buses figure in the case. These two separate buses and their drivers are referred to as the “shuttle” bus (this is the vehicle in which Mrs. Gibson was a passenger) and the “Liberty-South-more” bus.

South Park Boulevard in the City of Houston, Texas, in the vicinity relevant to this case, is divided by an esplanade. At the time of the occurrences of concern here there were two through vehicular traffic lanes on either side of the esplanade, those on the east side accommodating northbound traffic and those on the west southbound traffic. At an intersection near the site of collision the width of the paving expands and a third, or “right turn” traffic lane is provided for traffic turning right or eastward off of the Boulevard.

Just prior to the collision the shuttle bus was standing, headed north, in the right turn lane, the Liberty-Southmore bus, until this time standing immediately to the shuttle’s rear, began pulling out and around to the left of the shuttle bus and into the two northbound traffic lanes. Union’s truck, at this same time traveling north in the right hand or outer through traffic lane, was approaching the locality of the two buses. The movement of the Liberty-Southmore bus placed that bus in front of Union’s truck and diagonally across the northbound through traffic lane. The truck driver turned his vehicle to the right to avoid, and did so, the Liberty-Southmore bus, but collided with the rear end of the shuttle bus. Mrs. Gibson’s injuries resulted from this collision.

The jury found the negligence of Union’s track driver in several particulars as proximate causes of the collision between the truck and the shuttle bus. Also, it was found that the driver of the Liberty-South-more bus was negligent in failing to give a signal of his intention to move into the traffic lanes under the existing circumstances, and that such failure was a proximate cause of the collision between Union’s truck and the shuttle bus. Damage issues were answered assessing a total of $24,-500.00 in damages.

A series of discovered peril issues were submitted in addition to those just noted. By its responses the jury found the following facts. The Liberty-Southmore bus was in a perilous position, Union’s driver discovered the Liberty-Southmore bus in such position, and after discovery realized the Liberty-Southmore bus would in all reasonable probability-not be able to extricate itself from the position of peril. Unionls truck driver, after such discovery and realization, and' by the exercise of ordinary care in the use of means at hand, could' have avoided collision with the shuttle bus. Union’s truck driver’s failure to exercise ordinary care, and use the means at hand to avoid collision with the shuttle bus was negligence and a proximate cause of the collision with the shuttle bus. It thus appears that the Liberty-Southmore bus, together with its driver and passengers was in a position of peril immediately preceding the collision. However, that particular bus was not touched nor injured in the collision between the Union track and the shuttle bus. Because of its materiality, as later shown, it is emphasized that there is an absence of any finding by the jury that the shuttle bus, its driver and passengers, was discovered to be in a position of peril.

The judge of the trial court entered a joint and several judgment against Union and the transit company, awarding Mrs. Gibson damages in accordance with the jury’s findings after requiring a $2,000.00 remittitur with reference to future medical expense. In addition, the judgment decreed that the transit company be indemnified by Union for any amount it was compelled to-pay in satisfying the award to Mrs. Gibson, and was awarded $556.50 for damages to the shuttle bus.

Disposition of the appeal does not require a consideration of the applicability of the doctrine of discovered peril between joint tortfeasors. This conclusion is based on the commonly accepted definition of discovered peril. For the purpose at hand the definition of discovered peril in “Negligence”, 40 Texas Jurisprudence, p. 621, Sec. 110, is adopted; there it is said:

“If a person is in a position of peril and that position is discovered and realized by another in sufficient time to prevent injury by the exercise of ordinary care and with the means at his command, the person discovering the perilous position will be liable for any injury proximately caused by his failure to exercise ordinary care, even though the person so injured is guilty of contributory negligence but for which the injury would not have occurred. * * *"

With the quoted definition as a yardstick, attention is directed-to the discovered peril issues previously outlined. The jury findings establish the facts from the standpoint of Union’s truck driver. A controlling fact found is that the Liberty-Southmore bus was in a position of peril; and it is undisputed that Union’s driver avoided a collision with that bus. There is no finding that the shuttle bus was in a position of peril. The definition here used, and all definitions of discovered peril that have come to the attention of the court, without exception, make an element of the doctrine a discovery of the peril of the injured party. See cases in Note S, 40 Texas Jurisprudence 2d, p. 626, Sec. 112.

The transit company dismisses this view with the conjecture that damage to the shuttle bus and its occupant is a problem of foreseeability, a consequential incident of the truck driver’s negligence found in the discovered peril series. The argument advanced disregards as irrelevant the fact that collision with the Liberty-Southmore bus, the instrumentality actually found to be in peril, was avoided by Union’s truck. This argument would have a countenance of validity had the Liberty-Southmore bus been struck and shoved into the shuttle bus, but such is not the case. The element of discovery of the peril of the shuttle bus was not submitted to the jury. What a jury might have answered had the issue been tendered is open to speculation. The evidence makes it difficult to conclude that Union’s truck imperiled the shuttle bus and its passengers at any time before it swerved to the right to avoid the Liberty-Southmore bus.

In harmony with the conclusion reached and supporting it, though not factually congruent, is Elder v. Panhandle Stages Shuttle Service, 144 Tex. 638, 193 S.W.2d 170. In the case a lady was crossing a street and near its center paused to allow an approaching west bound bus to pass in front of her. As she stood watching the west bound vehicle she was struck by an east bound bus. Both buses were owned and operated by the same company. At the trial of her suit to recover damages for personal injuries she requested issues submitting the theory of discovered peril from the standpoint of the driver of the west bound bus that was approaching at the time of the collision but never reached or struck her. It was held that refusal to submit discovered peril issues was proper, although the two buses were of common ownership and the driver of each bus an employee of a common employer liable for each driver’s negligence under the respondeat superior doctrine. The Supreme Court said:

“ * * * The case cannot be treated as one in which two or more employees of a defendant are engaged in the operation of a single instrumentality. The situation is not comparable to that of different members of a crew on a railroad train where each is charged with some responsibility for preventing injuries to a third person by the method of operating the train. The two busses here involved are independent instru-mentalities and the liability of the driver of each must arise from his own negligence and not from the negligence of the other.” (Emphasis supplied.)

The emphasized statement in the Elder case is equally applicable to the situation presented in this case. Here, each of the transit company’s buses must be considered as independent instrumentalities in the utilization of the discovered peril doctrine.

If a different conclusion than that just expressed had been reached, this court would feel compelled to refuse to apply the discovered peril doctrine in adjusting the rights of joint tortfeasors among themselves because it was held inappropriate to do so in Kimbriel Produce Co., Inc., v. Mayo, Tex.Civ.App., 180 S.W.2d 504, error ref., W. O. M., and Texas Bus Lines v. Whatley, Tex.Civ.App., 210 S.W.2d 626, err. ref., N. R. E. These cases held that the discovered peril doctrine is not to be resorted to on such occasion.

Article 2212, Vernon’s Ann.Civ.St., provides for contribution between joint tort-feasors in all cases except those in which the right of contribution, indemnity, or recovery-over is given by statute or under the common law. No statute is cited as authorizing indemnity, so in this instance the transit company must rely upon the common law to sustain the trial court’s judgment granting it indemnity against Union. In Contribution and Indemnity, 26 Texas Law Review, p. 150, Professor Gus M. Hodges reviews numerous Texas cases adjudicating questions of indemnity, and gives the following rule, which he says expresses the result of the decision, that is:

“When there are two tortfeasors, either or both of whom are liable to an injured third person, but one of whom has breached a duty which he owed both to his co-tortfeasor and to the injured third person, then the tortfeasor who, to his co-tortfeasor, is blameless, should be allowed indemnity.”

Very recently in Gulf, Colorado & Santa Fe Railway Co. v. Bliss, Tex., 368 S.W.2d 594, at page 596, the Supreme Court refers to the statement in Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563, and re-approved this test: “ * * * for one tort-feasor to be allowed recovery of indemnity against another it must be predicated upon a consideration as to whether the tort-feasor as plaintiff suing the other in tort would be entitled to recover.” In application Professor Hodge’s Law Review rule and the test quoted are the same.

Evidence was introduced showing the driver of the Liberty-Southmore bus suddenly drove his vehicle from its position in the right turn lane over into the through traffic lanes and in front of the approaching Union Truck without giving a signal of his intention to do so. The jury found, as previously stated, that this negligence was a proximate, cause of the collision between Union’s truck and the shuttle bus. Such negligence contributed to bring about the collision of Union’s truck and the shuttle bus. This contributing negligence violated a duty owed both Union and Mrs. Gibson as a passenger in the shuttle. Thus the transit company is not entitled to indemnity. Likewise, contributory negligence bars a recovery by the transit company on its cross action against Union for damages to the shuttle.

The only judgment supported by the record is one, in accordance with the provisions of Article 2212, that each of the two defendants in the trial court, the transit company and Union, have contribution against the other for any sum paid to the appellee, Mrs. Gibson, above one-half of the judgment, costs, etc., awarded her, and that the transit company take nothing by its cross action. The judgment entered is ordered modified to this end.

The second question is addressed to the excessiveness of the damages awarded Mrs. Gibson by the jury’s verdict. An extended statement would be required to suggest the facts involved. Effort in that respect is hardly worthwhile, but attention and study in detail has been given to the question presented. The cogency of the Union’s argument arouses doubt, both as to the extent of Mrs. Gibson’s injuries and the ex-cessiveness of the amount of the verdict. The argument is unsettling, yet it does not put at rest doubt that a remittitur of consequence might be more unjust than the judgment entered. This court cannot with requisite certainty say the award is excessive.

The judgment of the trial court is affirmed as to Mrs. Gibson, and reversed and rendered in the respects previously stated.

      . Historically neither the common law courts nor the legislative bodies have been sympathetic with the plight of wrongdoers in the adjustment of their affairs. Prosser clearly illustrates this with his recital of the Highwayman’s case, where one highway robber sued another robber for an accounting of plunder obtained by a joint venture. The court dismissed the bill with costs adjudged against plaintiff’s counsel, held, plaintiff’s solicitors in contempt of court, fined one 50£, deported the other, and had both plaintiff and defendant beheaded. As Prosser says: “In short, contribution was not allowed”. (From Contribution and Indemnity, by Gus A. Hodges, 28 Texas Law Review 150.)


author: COLEMAN, Justice.

text:
    Leon HAUCK et ux., Appellants, v. Mrs. Commie PRICE, a Feme Sole, Appellee.
    No. 14277.
    Court of Civil Appeals of Texas. Houston.
    Jan. 9, 1964.
    Parrish & Webb, Don S. Webb, Houston, for appellants.
    Robert H. Cowie, Houston, for appellee
   COLEMAN, Justice.

This is an appeal from a judgment awarding damages to the plaintiff in an action based on an assault. The principal questions presented by this appeal are concerned with alleged misconduct of the jury.

At a hearing on the motion for new trial, evidence was produced’to the effect that while the jury was deliberating on the damage issues some question arose as to how the defendants could pay any damages that might be awarded against them, and the foreman of the jury stated that they owned a business and could pay the damages, or, probably, could borrow enough money to pay them. Another member then spoke up and said: “Well, that is none of our business.” The fact that the defendants owned and operated a business was in evidence and the mention of that fact in the jury room was not misconduct. There was no evidence concerning the financial condition of the appellants and their ability to pay a judgment was a matter of no concern to the jury. However, such a casual reference to financial condition which was promptly rebuked, was not calculated to injure appellants. St. Paul Mercury Indemnity Co. v. Bearfield, Tex.Civ.App., 296 S.W.2d 956; Menefee v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 181 S.W.2d 287.

There was also testimony that in connection with the discussion of the amount to be awarded appellee as damages for physical pain, mental anguish and disfigurement, some one or more of the jurors calculated the amount of salary she would have earned from the time of her injury to the end of the year and arrived at the sum of $1800.-00. One juror testified that they discussed that figure as a loss of wages or damages for the time she was off work, and that she, the juror, considered such a loss as physical damage. This. witness further testified that the discussion of the time lost from work by appellee “was exactly what we heard from the testimony in the courtroom.” The three jurors who testified all remembered that there was some discussion of loss of wages, although one didn’t remember whether the discussion was in the jury room or somewhere else.

The evidence showed that appellee was earning $50.00 a week prior to the assault and that as a result of the assault appellee was off work for one week. She was compensated for that week, but later found it hard to keep a job because of nervousness. There was no direct testimony as to any other time lost and loss of wages was not included as -an element of damage in the charge of the court.

. There is' -evidence that appellee suffered physical pain, mental anguish and disfigurement. In his charge ' the trial court instructed the jury that in determining the amount of money that would reasonably compensate appellee for her injuries, they should consider those elements and nothing else. It is appellants’ contention that the evidence proves that this instruction has been violated in that the jury also considered loss of earnings.

Since the trial court denied the motion for a new trial and filed no findings of fact or conclusions of law, we must presume that he found that the jury followed his instructions and did not -take into consideration, in arriving at their verdict, the possible loss of wages. The testimony presented at the trial shows clearly that appel-lee did not lose $1800.00 in wages. None of the witnesses testified that the jury agreed to allow any sum as damages for loss of wages. The fact that the matter was discussed does not establish as a matter of law that it entered into the verdict. While there is no conflict in the evidence as to whether such a discussion occurred, neither is there a’necessary inference that it affected the verdict. It is not misconduct for a juror to discuss the evidence in a case. City of San Antonio v. Willinger, Tex.Civ.App., 345 S.W.2d 577. The court cannot speculate about the mental process by which a juror reached his verdict. Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483, 156 A.L.R. 1028.

Since the trial court has impliedly found that no misconduct occurred, and such a finding is not contrary to the undisputed evidence, this Court is bound by the finding. Younger Bros., Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546.

In any'event, viewing the record as a whole,-we do not think it probable that injury resulted to appellants. Trousdale v. Texas & N. O. R. Co., 154 Tex. 231, 276 S.W.2d 242.

Appellants made certain objections to the court’s charge in their motion for a new trial, but there is no showing that the objections were presented to the court in writing before the charge was read to the jury. The objections were waived. Rule 272, Texas Rules of Civil Procedure; Smith v. Morgan, Tex.Civ.App., 235 S.W.2d 938, error dism.

There is nothing in the record to indicate that the jury was influenced by passion or prejudice and the verdict is not so great as to, in itself, indicate that the case was not decided by the jury on its merits alone.

The judgment of the trial court is affirmed.


author: CLAY, Commissioner.

text:
    Elizabeth FARROW, Petitioner, v. Hon. Wallis DOWNING, Judge Jefferson Circuit Court, et al., Respondents.
    Court of Appeals of Kentucky.
    Jan. 14, 1964.
    Ephraim K. Lawrence, Jr., Louisville, for petitioner.
    Joe H. Taylor, Hogan, Taylor, Denzer & Bennett, Louisville, for respondents.
   CLAY, Commissioner.

This is an original proceeding in this Court to compel the respondent Judge of the Jefferson Circuit Court to permit petitioner to file an amended complaint in a personal injury action. The amendment sought to increase the amount of claimed damages after respondent had granted a new trial on the ground of excessiveness of the award by a jury in the original trial. It is unnecessary to examine the basis of respondent’s order overruling petitioner’s motion to file the amended complaint. Relief will not be granted in this proceeding for at least three reasons.

The remedy is not available except under extraordinary and unusual circumstances where it is apparent that great injustice and irreparable injury will be suffered by the petitioner. Barker v. Breslin, Ky., 329 S.W.2d 578. No such showing is made.

Mandamus will not issue to control the discretion of an inferior court. Fannin v. Keck, Ky., 296 S.W.2d 226. Though petitioner contends to the contrary, the necessity for an order of court under CR 15.01 reposes some discretion in the trial court.

Assuming respondent has abused his discretion, mandamus will not be granted if the petitioner has an adequate remedy by appeal or otherwise. Bender v. Eaton, Ky., 343 S.W.2d 799. Petitioner has two potential remedies if justice requires his amended pleading. Since respondent’s order was interlocutory, he could sustain a renewed motion by petitioner at any time prior to or during the trial if the record or the proof establishes grounds for the award of additional damages. See CR 15.02. In any event, petitioner will have a remedy by appeal if the ruling constitutes an abuse of discretion to petitioner’s prejudice.

The order of mandamus is denied.


author: MOREMEN, Judge.

text:
    Eugene COOPER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.

      Wheeler B. Boone, Lexington, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Charles Calk, Commonwealth’s Atty., Lexington, for ap-pellee.
   MOREMEN, Judge.

Appellant, Eugene Cooper, was convicted in the Fayette Circuit Court of incest and sentenced to five years’ imprisonment.

The prosecuting witness, Marie Cooper, age sixteen, was born during the marriage of appellant to a former wife. She lived with appellant in Lexington on two occasions of about six months each, the first time in 1951 or 1952, and the second in 1962. She testified that appellant is her father and that he had sexual relations with her at their home. The appellant denied that the girl is his child. He testified that his former wife, while carrying the child, had told him the real father was a tenant living on their farm.

Appellant advances as grounds for reversal that (1) the Commonwealth failed to prove the existence of a blood relationship, (2) the written confession of appellant was improperly admitted as evidence and (3) the instructions were erroneous.

The prosecuting witness testified that Cooper is her father. It is argued that the child’s statement of parentage is hearsay and not sufficient to establish the relationship. A well known exception to the hearsay rule exists in respect to matters of family relationship and pedigree. Matters of pedigree include facts of birth, paternity and legitimacy. Lindsey’s Devisee v. Smith, 131 Ky. 176, 114 S.W. 779. See also Hagedorn v. Reiser, 310 Ky. 657, 221 S.W.2d 633. In addition appellant admitted that the child was born in wedlock —thus a strong presumption of legitimacy arises. Gross v. Gross, Ky., 260 S.W.2d 655. Although rebuttable, this presumption requires strong evidence to overcome it and certainly the uncorroborated statement of appellant that his wife told him another man was responsible for her pregnancy is not sufficient. It must be noted in this connection, however, that the evidence required to rebut this presumption of parentage need not be as strong as that required to rebut legitimacy for the purposes of inheritance. Maxey v. Commonwealth, 225 Ky. 663, 9 S.W.2d 1001. We are of opinion that the evidence offered by the Commonwealth was sufficient to permit the issue of blood relationship to be submitted to the jury.

Appellant next contends that his written confession was improperly admitted into evidence. He claims that at the time he made it he was under such physical, mental and emotional strain as to render his confession one obtained under mental duress. The trial court properly held a hearing in chambers relative to whether the confession was a valid one under the terms of KRS 422.110. There was an abundance of evidence to show that appellant’s statement was voluntarily given. We believe the trial court correctly decided that it was admissible in evidence.

Finally it is contended that the instruction given was erroneous. Appellant was indicted under KRS 436.060. This reads:

“Any person who carnally knows his or her father, mother, child, sister or brother, knowing such a relationship to exist, shall be confined in the penitentiary for not less than two years nor more than twenty-one years.”

The instruction given by the court reads:

“If the jury believe from the evidence in this case, to the exclusion of every reasonable doubt, that the defendant, Eugene Cooper, in Fayette County, Kentucky, and before the finding of the indictment herein, did carnally know Marie Cooper, his daughter, knowing such relationship to exist, you will find the defendant guilty as charged in the indictment, and fix his punishment at confinement in the penitentiary for a period of not less than two nor more than twenty-one years, in your discretion.”

In addition a reasonable doubt instruction was given.

The instruction for the most part is substantially in the words of the statute and generally this is sufficient. Cecil v. Commonwealth, 140 Ky. 717, 131 S.W. 781. However, there is a grievous mistake in the instruction in that it definitely designates Marie Cooper as being the daughter of appellant when it states “did carnally know Marie Cooper, his daughter.” The appellant had raised the issue as to whether she is in fact his daughter. The instruction states that she is. This was error because the court definitely eliminated the issue as to parentage.

The form given in 3 Stanley, Kentucky Instructions to Juries, sec. 974, correctly submits all of the issues which have appeared in this case and upon a new trial, if the evidence and issues are approximately the same, a similar instruction should be given.

Judgment reversed.


author: ELVIS J. STAHR, Special Commissioner.

text:
    Amy HUTCHINSON et al., Appellants, v. William SCHNEEBERGER et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.

      H. Rupert Wilhoit, Wilhoit & Wilhoit, Grayson, for appellants.
    William C. Kibbey, Grayson, Virgil H. Redwine, Sandy Hook, for appellees.
   ELVIS J. STAHR, Special Commissioner.

This case is here on appeal by the lessors from a judgment awarding the lessee part of a tract of land leased to him for oil and gas development and denying them damages for alleged negligent drilling practices, and on cross-appeal by the lessee from the judgment allowing him only a part of the leased premises.

The lessee, J. B. Schneeberger, has died pending the appeal, and the appeal has been revived by an ancillary administrator.

The land involved here lies in Elliott County and is one of two tracts owned by R. F. Hutchinson at his death. It consists of 160 acres on Gilbert Fork of Middle Fork of Little Sandy River: Bounded on the north by land of Lish Branham; on the east by the land of Robert Oliver and John Hutchinson heirs; on the south by the land of Bascom and Rufus Hutchinson and by lands of C. R. Skaggs; on the west by the lands of C. R. Skaggs and James Fannin.

The other tract consists of 138 acres with a different location and in which the mineral rights were under different ownership.

At his death R. F. Hutchinson left surviving him his widow, Amy Hutchinson, and the following children: Clyde Hutchinson, who is married to Jewel Hutchinson; J. Harvey Hutchinson, who is married to Nancy Hutchinson; and Erie Kitchen, who is married to J. D. Kitchen.

On December 10, 19S5, the widow, the heirs and their spouses executed a lease to J. B. Schneeberger and others (who subsequently assigned their interests to Schnee-berger) for exploration and production of oil and gas on a 160-acre tract. The lease was for a fixed term of two years, expiring on December 9, 1957, unless oil or gas was then being produced, in which event the lease was automatically extended so long as gas or oil was being produced.

The lease contained an additional forfeiture clause which provided that if no well was commenced by June 10, 1956, the lease would terminate. However, this provision was tempered with a condition that by the payment to Amy Hutchinson of the sum of $10.00 the commencement could be deferred for three months for each such payment.

There was no activity under the lease until June 21, 1957, when an engineer made a survey plat for filing with the Department of Mines and Minerals, and on July 2, 1957, a drilling permit was issued; and on September 21, 1957, a bulldozer was moved onto the land, a site was cleared and on September 26, 1957, drilling was begun.

Lessee had sent checks for payment of the “quarterly deferred commencement rental” for each three months through September 9, 1957. Each such payment of rent was several days tardy, hut these checks were each received, endorsed and cashed by Amy Hutchinson as provided in the lease.

It further appears that Amy Hutchinson and her daughter, Erie Kitchen, and J. D. Kitchen lived on this farm and were present and knew of the operation as hereafter described.

In the drilling of the first well (there being a total of two) at the 150 foot level oil was found in “Maxam Sand,” which made a good showing. Because, however, in this area the best production had been found to be deeper in “Weir Sand,” lessee continued to drill and late in November, 1957, having reached “Weir Sand” and finding it dry and due to the severity of winter, he shut down.

In June 1958 lessee returned and pulled the pipe out from the Weir to Maxam level and in September 1958 began to pump oil from this well at the rate of three barrels a day.

In July 1958 lessee began to drill a second well after usual departmental notice to the owners-lessors and upon reaching “Maxam Sand” began to pump oil from this well at the rate of two barrels a day. Both wells were pumped into the same tank.

Under the provisions of the lease the lessors were permitted to take gas from the well to the residence and after the June 1958 resumption J. D. Kitchen for himself, his wife and Amy Hutchinson requested of lessee permission to connect to the well and to pipe the gas to their residence, which was granted and was done.

Some time in 1959 it appears that another of the lessors, J. Harvey Hutchinson, wrote a letter to lessee claiming a forfeiture of the lease because only two wells had been drilled.

The production of the two wells was bought by and delivery at the tank was accepted or made by Ashland Oil and Transportation Company and when, some time prior to July 9, 1959, the buyer requested a normal “Division Order” (authorization to divide the proceeds) the lessors refused, to sign it. Thereupon the lessee filed this action which by subsequent amendment became an action for a mandatory injunction to require lessors to sign the “division order”; for reformation of the description of the property covered by the lease, as through mutual mistake or by error of the scrivener the boundaries of the 138-acre tract had been used to describe the 160-acre tract; for a judgment validating his lease and removing a cloud from his leasehold interest; and for a recovery of damages by reason of slander to his title by lessors.

Lessors by answer and counterclaim, also amended, denied lessee’s right to re-enter the land; alleged termination by expiration of the term as well as forfeiture under the June 10, 1956 commencement provision; and demanded damages for trespass and negligence in the drilling and non-protection of the first well.

Oral proof was heard by the Chancellor and the evidence has been transcribed and filed as a part of the record.

Lessee testified that he expended $6430.16 in producing Well No. 1, $3688.60 in producing Well No. 2 and $675.80 pumping costs to the time evidence was heard on November 12, 1959. The record does not. disclose pumping costs after that date nor has an accounting been made by Ashland Oil & Transportation Company, and it now holds all of the revenue from the wells without interpleader; nor has it been made a party to this action and subject fca any orders or judgments herein.

The case was practiced and treated on appeal as if both sides recognized that there was a mistake in the description of the land covered by the lease, and that through an innocent error the two tracts were mixed. The chancellor treated this as a known fact; however, in his judgment he failed to remedy the error.

The learned chancellor in his findings of fact and ruling of law held that lessee failed to pay deferred commencement rental after September 9, 1956, that there was no production at the expiration of the two year term on December 9, 1957, and that the lease terminated but that lessee made the improvements on the land in good faith, believing that he had a right to do so. Lessee was awarded ⅞ths of the past and future production of the two wells, with 10 acre protected area for the two wells, and lessors were awarded royalty and an injunction against lessee to prevent his development of any of the remaining acres. The judgment further ordered the buyer to make distribution of the proceeds accordingly.

It seems obvious that the payment of $10.00 a quarter for deferring commencement of a well was little more than a token of good faith, as it amounts to about 5‡ per month per acre.

Amy Hutchinson for herself and the other lessors and the lessors through Amy Hutchinson had, by acceptance of the tardy payment, condoned the practice and when lessee actually began operation they accepted this as fulfillment of good faith as it was for this that the lease was given.

Equity does not favor forfeitures and the intent must be clear and unequivocal as well as the conditions therefor.

The beginning of preparation for drilling on September 21 was apparently accepted by both parties in lieu of an additional $10.00 rental. We therefore hold that there was a substantial compliance with the terms of the lease and that there was timely commencement.

The next question to be resolved is whether there was production within the intent of the lease on December 9, 1957, the date on which the term expired unless there was production.

The obvious purpose of the contract between these parties was the development of oil or gas production on this land.

Lessee had discovered oil at a shallow level in what had theretofore been recognized as a level not providing the best production and, using what seems to have been good practice elected to drill deeper to “Weir Sand,” the recognized best production sand. There is no showing that discontinuing operation for the winter was not also the accepted practice. So he discontinued operation until the next spring when he returned and prepared to and did pump oil at the first discovered level. The oil was there and all parties knew it. If lessee had not reasonably and seasonably returned to pump the discovered oil we might here reach a different conclusion; however, he did return seasonably and did pump the oil already discovered.

This situation with a lease of the same or similar terms has not heretofore been presented to this court. All of the cases cited by counsel in briefs can be distinguished from this case by the terms of the respective leases.

The reasoning and holding in the case of Western States Oil and Land Company v. J. C. Helms, 143 Okl. 206, 288 P. 964, 72 A.L.R. 357, seems to be a fair statement of what the law of this state ought to be:

“Under an oil and gas mining lease for a specific term ‘and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee,’ the lessee after having discovered oil or gas during the initial term of the lease may continue to produce oil or gas therefrom until the exhaustion of the oil or gas discovered during the initial term, or the lessee may, after the expiration of the initial term, temporarily abandon the oil or gas discovered during the initial term for the purpose of further exploration at a greater depth and with the intent to return and produce the oil or gas discovered during the initial term if other oil or gas is not discovered at the greater depth. * * *
“ ‘Accordingly, it has been held that the discovery of oil or gas in an upper sand, during the term, although neither was actually produced, and operations were continued with the intent of returning and producing from such stratum in case no further production was discovered at a lower level, vested in the lessee the right to produce from the sand discovered after the expiration of the term.’ ”

This court said in Reynolds v. White Plain Oil & Gas Co., 199 Ky. 243, 250 S.W. 975, that as a matter of public policy which looks to the facilitation of development work in oil, gas, and other minerals, a lessee who in good faith is prosecuting work for development with reasonable diligence will be protected against cancellation of his lease. We therefore hold that there was production under the provisions of the lease and within the intention of the parties and the lessee in good faith was prosecuting work for development with reasonable diligence. Thus the lessee is entitled to continue his leasehold interest in the entire tract covered by the lease so long as there is production. It follows that lessee is entitled to of the production and lessors are entitled to ⅛ royalty.

The Ashland Oil and Transportation Company is not a party to this action and there has been no interpleader. Hence no order or judgment can be entered directing it to make division; however, proper action is available to bring it within the jurisdiction of the court.

This cause is affirmed on the appeal, reversed on cross-appeal with directions that a judgment be entered in conformity with this opinion.

The opinion is approved by the court and the judgment affirmed on the appeal and reversed on the cross-appeal with directions that a judgment be entered consistent therewith.


text:
    Sam T. SMITH et al., Appellants, v. Wavy DECKER et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.

      W. D. Bratcher, Greenville, Harold M. Streets, Central City, William P. Donan (Donan & Vick), Greenville, for appellants.
    Forest P. Bell, Hartford, Walter Catinna (Woodward, Bartlett & Catinna), Hartford, for appellees.
   CLAY, Commissioner.

This suit was brought by plaintiff appel-lees to establish title to a one-half interest in certain land claimed by defendant appellants. The sole issue was whether, under the doctrine of res judicata, the plaintiffs were barred from asserting their rights. The Chancellor denied defendants’ plea and found for the plaintiffs.

Herman and Jane Decker, husband and wife, were joint owners of the tract involved. Jane died intestate in 1945 and Herman died intestate a year later. Since the deed by which they held title did not contain a survivorship clause, their one-half interests descended to their respective heirs. (Their heirs were not the same.)

In 1946 a suit was instituted by Herman’s personal representative to settle his estate and sell the land for the payment of his debts. The petition alleged Herman had died “seized in fee simple” of the land, and a copy of the deed was filed as an exhibit. The present plaintiffs, heirs of Jane, were made parties to that suit. Some entered their appearance but none raised the question of title. In proper proceedings the court ordered the land sold for the payment of Herman’s debts, confirmed the sale, and a commissioner’s deed was delivered to the purchaser, defendants’ predecessor in title.

Thirteen years later the plaintiffs filed this action, claiming a one-half interest in the property. This was a collateral attack upon the prior judgment. It could not be maintained unless such judgment was void; The Chancellor found that it was void to the extent it ordered and confirmed the sale of Jane’s one-half interest in the property. This decision was based upon the finding that the circuit court entertaining the prior action did not have jurisdiction of Jane’s one-half interest in the land.

There is no question that the circuit court in the prior suit had jurisdiction of the general subject matter, which was the judicial sale of real estate allegedly owned by Herman Decker, and jurisdiction of the parties. Having such jurisdiction, the judgment was binding upon all parties thereto with respect to all matters involved in the scope of the proceeding. Moore v. Waltman’s Adm’x et al., 288 Ky. 258, 156 S.W.2d 100.

Plaintiffs take the position, and it was apparently accepted by the Chancellor, that because no specific question was raised by the pleadings concerning the possible claim of Jane’s heirs to an interest in the property, the court did not and could not adjudicate that issue. Clearly this argument is unsound.

In the first place, the petition tendered the issue of title when it alleged in substance that Herman was the sole owner of the land. The judgment ordering a sale of this property for the payment of his debts' required and necessarily constituted a determination that he was such owner. See Kimbrough v. Harbett, 110 Ky. 94, 60 S.W. 836. That this adjudication was implicit in the order of sale is admitted by plaintiffs in their brief by the assertion that the “wholly void portion of the judgment is brought about by the fact that the court attempted to adjudge a sale of the fee in the tract of land involved * * * The pleading of an adverse claim was not a prerequisite to the adjudication of title. See Clay v. Clay, 199 Ky. 4, 250 S.W. 829.

Secondly, even if the issue of title was not raised or necessarily determined by the judgment, the jurisdictional authority of the court and the doctrine of res judicata extend to all of those matters which properly were involved in the scope of the proceedings, or belonged to the subject of the litigation, which the court might have been called upon to decide or which the parties might have brought forward. Moore v. Waltman’s Adm’x et al., 288 Ky. 258, 156 S.W.2d 100; Webb v. Perry, Ky., 331 S.W.2d 897. As said in Commonwealth v. Givens, Ky., 299 S.W.2d 799, 801:

“A broader aspect of this same doctrine is that a judgment rendered on the merits by a court having jurisdiction of the subject matter and parties is conclusive on the rights of the parties and their privies in another action, not only on the points upon which the court was required by the parties to form an opinion and pronounce judgment but as to every point which properly belonged to the subject matter being litigated and which the parties, by reasonable diligence, might have brought forward.”

It is difficult to imagine a proceeding wherein an adverse claim of title could more properly be interposed by any affected parties. The suit was brought to sell the fee simple title t® the land for the payment of Herman Decker’s debts. The very basis of the suit was his ownership. Simple justice would demand that all parties thereto with adverse claims of title should then assert them. Surely that is when an adjudication on conflicting claims would not only have been authorized and appropriate, but would have been necessary to protect an innocent purchaser from acquiring a defective title. The estoppel element of res judicata is here apparent. The purchaser and the creditors were led into relying upon the finality of the decree by the failure of any party to the suit to assert an adverse claim. The order of sale and its confirmation foreclosed any rights of the plaintiffs to question its propriety. See 30A Am.Jur., Judicial Sales, section 178 (page 1006).

Finally it is the policy of the law to protect the integrity of judicial sales, and it is not incumbent upon the purchaser to defend the soundness of the decree. Rose v. Cox, 297 Ky. 458, 179 S.W.2d 871, 155 A.L.R. 1246. An order confirming a judicial sale is final and conclusive as to the rights of all parties in the property. 30A Am. Jur., Judicial Sales, section 140 (page 982). The purchaser takes all the rights of the parties to the action in the land conveyed to him. Nickels v. Mineral Development Co., 31 Ky.Law Rep. 1224, 104 S.W. 1033. Clearly the circuit court had jurisdiction to determine those rights.

Since the circuit court in the prior action had jurisdiction of the subject matter and the parties, the judgment vesting title in defendants’ predecessor was binding on the plaintiffs. By no stretch of the imagination could it have been void. It cannot be collaterally attacked by them in this proceeding.

The judgment is reversed, with directions to enter judgment for the defendants.


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. J. S. DARCH et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Jarvis Allen, Dept, of Highways, Pikeville, for appellant.
    H. M. Shumate, Shumate & Shumate, Irvine, for appellees.
   MONTGOMERY, Judge.

The Department of Highways of the Commonwealth of Kentucky appeals from a judgment of $35,000 in favor of J. S. Darch et al., landowners, in a condemnation proceeding. In general, appellant contends that the testimony as to the property value was erroneously admitted because the witnesses were not qualified or because there was no proper basis for the statement of value.

The property acquired in this proceeding is at the intersection of Darch and Main or Lumber Streets in Beattyville. It is also the intersection of Kentucky Highways 11 and 52. It encompasses 8,904 square feet for permanent right of way, 471 square feet for temporary easement, and 1,009 square feet for permanent easement. The entire tract fronted 125 feet on Darch Avenue and 560 feet on Lumber Street and contained 70,000 square feet, or 1.61 acres. On the acquired lot there stood a wooden store building, two wooden sheds connected thereto, and a concrete storage shed. The store building was fifty or sixty years old and was being used as a hardware store. Only the concrete storage shed appears to be of recent vintage. A brick dwelling on the original tract was not taken.

The sole issue involved was the difference in market value before and after the taking. Commonwealth v. Sherrod, Ky., 367 S.W.2d 844.

J. S. Darch, an appellee, and three other witnesses testified for the appellees. Over objection to the form of the question, Darch testified that he thought the property taken “should be worth sixty or sixty-five thousand dollars.” He fixed the value of the whole property before taking at $165,000, but gave no value for the remaining property. On cross-examination he admitted that his evaluation was made on the basis that he did not want to sell the property.

The proper criterion of value in a condemnation case, when part of a tract of land is taken, is the difference in the fair market value of the tract before and after the taking. Commonwealth v. Tyree, Ky., 365 S.W.2d 472. The fair market value may be stated as the price at which an owner who desires to sell but is not required to do so would sell the property in its then condition to a purchaser who desires to purchase but is not compelled to do so. Commonwealth v. Begley, 272 Ky. 289, 114 S.W.2d 127. As was said therein, “It is not the ‘value to the owner’ that is the criterion any more than it is the ‘value to the taker.’ ” Milby v. Louisville Gas & Electric Co., Inc., Ky., 375 S.W.2d 237 (1963). See also City of Newport Municipal Housing Commission v. Turner Advertising, Inc., Ky., 334 S.W.2d 767. The unwillingness of an owner to sell is not a proper measure by which to judge the value of the property to be taken. Nichols, Eminent Domain (1961 Ed.), Volume 4, Section 12.3141, page 175. The unwillingness of Darch to sell was an improper basis for him to use in the evaluation of his property. Appellant’s objection thereto should have been sustained. See Commonwealth v. Smith, 229 Ky. 345, 17 S.W.2d 203, where admission of evidence of sentimental value to owner was held to be prejudicial error.

Appellees’ witness, J. Marshall Ma-Laffey, testified, “I base my value on what it would cost to build a building.” He estimated the floor space of the building taken to be 8,000 square feet. Using this figure and the figure of $4.00 per square foot as the reproduction cost, he arrived at a value of $32,000 for the building taken. Actually only a total of 8,904 square feet was taken for a permanent right of way. The record indicates that the building taken occupied about 5,800 square feet. The witness also indicated a similar lack of knowledge concerning other dimensions of the property taken and property remaining. His testimony as to value was faulty on two grounds: lack of knowledge of the property and improper use of reproduction or replacement cost as the basis for his evaluation. Commonwealth v. Slusher, Ky., 371 S.W.2d 851; and Commonwealth v. Rankin, Ky., 346 S.W.2d 714. Such testimony was erroneous. Objections thereto should have been sustained.

The other two witnesses for the ap-pellees demonstrated such a lack of knowledge concerning the property to be taken, its condition and dimensions, and the result of such taking as to cast doubt on their qualifications and to indicate, lack of support for their evaluations. Commonwealth v. Tyree, Ky., 365 S.W.2d 472. One of these witnesses, Jesse Tharp, used as a basis for evaluation offers made for other property. Such testimony has been condemned as improper. Commonwealth v. Begley, 272 Ky. 289, 114 S.W.2d 127.

The erroneous admissions of such testimony in behalf of appellees are deemed to have a cumulative prejudicial effect and to afford an improper evidential basis for the verdict.

Judgment reversed.


text:
    Lamar MOSELY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.

      William C. Jacobs, Lexington, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Charles L. Calk, Lexington, for appellee.
   MOREMEN, Judge.

Appellant, Lamar Mosely, was convicted of carrying concealed about his person a deadly weapon and was sentenced to confinement for a period of two years.

The only witness who testified in this case was Sergeant Brown of the Lexington City Police Department. He stated that on February 22, 1963, at about 11:30 p. m. he observed appellant standing at the corner of Third and Deweese Streets in Lexington. The Sergeant drove on down the street and was in the process of making a turn when he heard a shot. He “observed this muzzle flash on a shining object, which, upon later investigation, contained this pistol right here.” He stated: “As I jumped out of the vehicle and approached the defendant he at that time was in the process of putting the gun in his pocket. He had on at that time a government issue field jacket, the type that has the large pockets there. The gun at that time was completely concealed down there. You could not see any part of the weapon.” Thereupon he arrested appellant, charged him with breach of peace, searched him and removed a chrome plated pistol from his pocket. The pistol had two live rounds and three empty shells in the cylinder. He was thereafter indicted under KRS 435.230.

Appellant urges as grounds for reversal that the court erred in failing to direct a verdict in his favor, because (a) the Commonwealth failed to prove that the deadly weapon was capable of being fired and (b) because there was no evidence that the weapon was ever carried or transported from one place to another.

In Couch v. Commonwealth, Ky., 255 S.W.2d 478, and Prince v. Commonwealth, Ky., 277 S.W.2d 470, it was stated that a pistol is a deadly weapon per se and when the Commonwealth has proved that the accused had such a weapon concealed on or about his person it has made out a case and if the weapon was in such a defective condition that it could not be fired, the burden was upon the accused to prove such a fact in the way of an affirmative defense. Counsel for appellant faces up to the fact that such is the law in this state, but suggests that the cases should be overruled and the burden placed upon the Commonwealth. We have been offered no sound reason for such action.

In connection with appellant’s contention that the court should have directed a verdict because there was no evidence that the weapon was ever carried or transported from one place to another, reliance is placed upon the case of Avery v. Commonwealth, 223 Ky. 248, 3 S.W.2d 624, where during a general discussion of the elements which must be established to warrant conviction under the concealed weapon statute, this statement is made:

“To ‘carry’ the weapon means that it must be on the person or so connected or annexed to the .person that the weapon is carried along as the person moves. If it "is in the pocket or in the clothing of the person, or if it is in some receptacle attached to or carried by the person as he moves, he is carrying the weapon.”

It may be noted that the. definition is concerned with the connection or attachment to the body of the person. It does not mean that if the weapon is concealed and annexed to the body or in a receptacle held by such person that the person must move in order to be carrying the weapon.

In a concise memorandum opinion in Commonwealth v. Walker, 7 Ky.Law Rep. 219, this is said: “The word ‘carry’ in the statute does not imply locomotion; it is a synonym of ‘bear’,” The word has been so defined in other states. In Danal v. State, 14 Ala.App. 97, 71 So. 976, it was said: “The word, ‘carry’ as used (in the statute) prohibiting the carrying of a pistol, means the bearing of arms * * *. One may ‘carry’ or bear arms on his person ‘without moving out of his tracks’; it does not necessarily import or imply the idea of locomotion.” A similar definition may be found in Thomas v. State, 9 Ala.App. 67, 64 So. 192, and State v. Nieto, 101 Ohio St. 409, 130 N.E. 663.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    HOME FINANCE COMPANY, Appellant, v. Herbert RATLIFF, Appellee.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.

      Baird & Hays, Jack T. Page, Pikeville, for appellant.
    L. D. May, Pikeville, for appellee.
   DAVIS, Commissioner.

Appellee, Herbert Ratliff, recovered $900.00 compensatory damages and $1,000.-00 punitive damages against Home Finance Company. Appellant contends (1) that no award for punitive damages is warranted, and (2) that $900.00 for compensatory damages is excessive.

Ratliff’s cause of action arose from these ■circumstances: On July 9, 1959, Ratliff purchased a 1956 Chevrolet automobile from Pike Motor Company on a deferred payment conditional sales contract. He paid $250.00 of the purchase price at the time of the sale, and agreed to pay $42.87 per month for twenty-four months until the purchase price, plus charges for insurance, interest and carrying charges, had been satisfied. Ratliff paid the first two payments, but was in default upon his third payment.

The appellant purchased the conditional •sales contract from Pike Motor. Home Finance repossessed the automobile from Ratliff on or about November 9, 1959, and there is no dispute in the record as to the propriety of the repossession. There is ■dispute in the evidence as to the condition ■of the car at the time of the repossession which is of some significance, as will later appear.

Home Finance scheduled an auction sale ■of the car to be held at its place of business at noon on November 23, 1959. Due notice •of the proposed sale was furnished to Ratliff. On November 17, 1959, Stuart Justice, an automobile dealer from West Virginia, visited the used car lot of Home Finance with the view to purchasing a number of ■cars. At that time Justice viewed the car which had been repossessed from Ratliff .and bid $200.00 for it. In behalf of Home Finance the record reflects that its representative explained to Justice that the car was scheduled for auction sale on November 23rd and that delivery of it could not be had until after that sale. It is indicated that Justice agreed to let his $200.00 bid stand, and if the car brought no more, he would accept delivery. However, in the confusion of taking delivery of some $7,-000.00 worth of used cars purchased from Home Finance, Justice inadvertently took into his possession the 1956 Chevrolet which had been repossessed from Ratliff.

Ratliff came to the advertised place of the auction sale shortly before the appointed hour of sale. He testified that he had upon his person a cash sum sufficient to fully discharge the entire balance due from him under the conditional sales agreement. Ratliff did not disclose what sum of money he had in possession, nor did he know the precise balance due. Neither did he assert that he informed any representative of Home Finance of his willingness and ability to fully discharge his indebtedness. There is sharp variance in the evidence as to what happened at the advertised time of sale. For Home Finance it is claimed that the car was offered for sale — albeit in absentia — whereas Ratliff maintains that he was present before the hour of sale and remained until past sale time, but that no sale of any kind was had. Home Finance, through its agent, maintains that it offered the car for sale, but that only one bid was received, namely, the bid of Home Finance Company in the sum of $150.00. Under these circumstances, Home Finance consummated its transaction with Justice for the sale of the vehicle at $200.00. Here it should be observed that Justice had paid Home Finance a sum in excess of $7,000.00 before the scheduled date of the auction sale, and in this sum was included the $200.00 bid for the Ratliff car.

Ratliff instituted this action seeking recovery of $2,500.00 as compensatory damages and $5,000.00 as punitive damages. Home Finance, after crediting the account of Ratliff by the $200.00 received of Justice, asserted a counterclaim in the sum of $501.14 by way of deficiency due from Ratliff on the original purchase price.

The issues were submitted to the jury by way of interrogatories. In its answers to the interrogatories, the jury fixed the value of the 1956 Chevrolet at $900.00 on November 23, 1959, the date of the abortive sale. The jury also awarded the sum of $1,000.-00 as punitive damages. Appeal was granted pursuant to RCA 1.180. Appellant challenges the judgment on two fronts: (1) It is contended that the pleadings in the case are based upon contractual violation, and that there can be no recovery of punitive damages for breach of contract; and (2) that the award of $900.00 as the market value of the car is excessive.

We do not reach the questions arising from the first contention of appellant. It is our view that the activities of appel-lee’s agents do not meet the test to become the basis for an award of punitive damages. In 15 Am.Jur., pp. 713, et seq., Damages, § 278, it is written:

“While every legal wrong entitles the party injured to recover damages sufficient to compensate for the injury inflicted, not every legal wrong entitles the injured party to recover exemplary damages. * * * It is universally recognized that punitive or exemplary damages, if recoverable at all, may be recovered only in cases where the wrongful act complained of is characterized by, or partakes of, some circumstances of aggravation, such as wilfulness, wantonness, malice, gross negligence or recklessness, oppression, contumely and indignity, outrageous conduct, insult, or gross fraud.”

Numerous decisions of this and other courts are cited in support of the text. Among them may be noted: Drane v. Graves, 261 Ky. 787, 88 S.W.2d 927, and Ohio County Drug Co. v. Howard, 201 Ky. 346, 256 S.W. 705, 31 A.L.R. 1355.

The actions of the agents of appellant cannot be characterized as willful, wa.nton, malicious nor grossly negligent. At best, the unfortunate incident can be regarded as negligence. Ordinary negligence does not suffice as a predicate for punitive damages. Cf. C.I.T. Corp. v. Short, 273 Ky. 190, 115 S.W.2d 899.

We hold, therefore, that the trial court erred in submitting the question of punitive damages to the jury; the objection of appellant to that submission should have been sustained. The motion for judgment n. o. v. pursuant to CR 50.02 was improperly denied.

Appellant complains that the evidence does not sustain the jury’s verdict that the car had a value of $900.00 on the sale date. However, there is competent evidence furnished by an automobile dealer fixing a higher value than $900.00 for the car. It is argued that Ratliff paid only $900.00 for the car in July so that it is unreasonable that it could have that value in November. We do not agree. Ratliff’s purchase may have been a bargain sale to him. In any event the price he paid for it is not conclusive on the issue of market value. The jury’s verdict on this item is well within the range of competent testimony.

There is no dispute in the record that Ratliff owed a balance of $501.14 on the original purchase after credit by $200.-00 paid by Justice. The verdict placed the car’s value at $900.00. Ratliff was deprived of the benefit of a public sale of the car under the advertised and normal circumstances. Appellant was remiss in its obligation to Ratliff to conduct a proper sale. Ratliff’s damage could not exceed the market value of the car, less the sum due from Ratliff to Home Finance. Thus, the balance due Ratliff is $398.86, the difference between the market value of the car and his debt to Home Finance.

The judgment is affirmed in part and reversed in part with directions to enter a judgment for Ratliff in the sum of $398.86,


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Hilda L. DALY, Widow, et al., Appellees. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Harold Ray TRUE et al., Appellees. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Augustus THRELKELD et al., Appellees. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ralph GROVES, Single, Appellee.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Chas. E. Skidmore, Frankfort, for appellant.
    William F. Threlkeld, Ottis P. Lanter, Williamstown, for appellees.
   CLAY, Commissioner.

These are consolidated appeals from judgments in condemnation cases dismissing appellant’s attempted appeals from the county court to the circuit court. The basis of the rulings was that such appeals were not taken within the time allowed by law. The controversy concerns the true date when the county court judgments were entered by the signing of the order book by the county judge.

The judgments in the county court were tendered to the county judge on October 4, 1961, and apparently were signed by him on that date. The signing of the judgments did not constitute the entry thereof, the date of signing the order book constituting the rendition or entry of the judgment. Commonwealth v. Clarke, Ky., 340 S.W.2d 442. The determination of the date when the order book was signed is the controlling factor in this case since appellant did not file its statement of appeal until November 8, 1961. An appeal must be taken within 30 days from the date of the judgment. KRS 177.087.

The order book in which these judgments were recorded did not show the date it was signed. Appellant (with leave of the circuit court to which the appeals had been taken) moved the county court for an order showing the specific date on which the county judge had signed the order book. Pursuant thereto, the county court entered an order reciting that the order book had been signed by him on two separate dates, October 6 and October 7. If the judgments were entered on either of those dates, the appeals were not timely.

Since the corrected record which appellant sought did not put it in any better position, the contention is now made that the county court had no authority to thus correct its records and the judgments were not entered at any time in October because no date of signing was shown on the face of the order book. It is insisted that affixing the date of signing is just as important as the signing itself and that there is no judgment until both of these entries are made on the order book. While we think it inexcusable that a record of this nature failed to show the date of signing, this was simply a clerical mistake which falls within the corrective provisions of CR 60.01.

It seems clear from the decisions in City of Frankfort v. Yount, Ky., 262 S.W.2d 665, and Commonwealth v. Clarke, Ky., 340 S.W.2d 442, that the judicial act which makes a judgment effective is the signing of the order book (wherein the judgment is recorded). The date this is done is a part of the record which it is the duty of the clerk to keep. Dating the entry is a ministerial act to be performed by him and consequently a mistake in the date of signing could not impair the effectiveness of the judgment. The omission of any date differs from an incorrect date only in the matter of degree, and such a mistake can properly be corrected as was done here.

Since under the findings of both the county court and the circuit court the judgments were rendered not later than October 7, 1961, the appeals attempted to be taken November 8, 1961 were not within the time prescribed by KRS 177.087.

The judgments are affirmed.


text:
    Jack WHARTON et al., Appellants, v. Mattie Hays COLE, Appellee.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.

      Don B. Mills, Barbourville, Glenn W. Denham, Middlesboro, for appellants.
    Charles G. Cole, Jr., Cole & Cole, Bar-bourville, for appellee.
   MONTGOMERY, Judge.

Jack Wharton and the City of Barbour-ville appeal from a judgment in favor of Mattie Hays Cole by which they are permanently enjoined from doing certain acts. Appellants question the authority of the court to render a judgment without notice of the hearing and without giving them an opportunity tp .be heard.

On August 17, 1961, appellee sued to enjoin appellants from doing certain acts in connection with property on the floodwall constructed at Barbourville. The rights of the parties under a deed of easement are involved. A restraining order was issued upon the filing of the complaint. On September 5, 1961, appellants answered and asserted an affirmative defense. The case remained in this status until judgment was entered on June 4, 1963.

Appellants contend that the court had no authority to render a judgment in the absence of notice of the hearing to appellants. Appellee does not contest the lack of notice, but she seeks to justify or excuse it.

CR 40 provides:

“No case shall be assigned for trial without giving reasonable notice to all parties not in default of the day on which a trial date will be fixed.”

It is an elementary essential of a judicial proceeding that notice of a hearing shall be given an adverse party. This principle is inherent. The burden is upon the court, or a litigant wishing his case assigned for a hearing or trial, to make sure that a party who might possibly object is notified. Clay, CR 40, Comment 3. Burns v. Brewster, Ky., 338 S.W.2d 908; Ledford v. Osborne, Ky., 350 S.W.2d 641. The entry of the judgment herein without notice of a hearing was in error.

Neither KRS 23.150 nor CR 6.03(2), cited by appellee, justifies the action taken. The argument made by appellee that the error in granting the judgment was harmless is frivolous. It is'unnecessary to discuss the second contention urged by appellants.

Judgment reversed.


author: WADDILL, Commissioner.

text:
    Albert BRUMFIELD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.

      Vincent & Rice, P. H. Vincent, Ashland, for appellant.
    John B. Breckinridge, Atty. Gen., James G. Osborne, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant was convicted of the offense of transporting alcoholic beverages for the purpose of sale in local option territory as denounced by KRS 242.230(1). The punishment imposed was a fine of $100.00, and confinement in jail of 60 days. This case was tried over appellant’s objections the day after he had been convicted of speeding. The chief prosecuting witness in both cases was a police officer who had found the alcoholic beverages in appellant’s automobile following his arrest for exceeding the speed limit.

Two of the jurors who were empaneled to try appellant on the transporting charge had been members of the jury which had convicted appellant of violating the speed law. Several other members of the panel had been in the courtroom during the course of the trial which resulted in appellant’s conviction of speeding. Notwithstanding the fact that appellant had challenged these jurors for cause and moved to discharge them from the jury panel, the court permitted these jurors to try the case.

Appellant’s first and chief contention is that he did not obtain a fair trial in that the court forced him to accept several jurors who were not free of bias.

A defendant in a criminal case is entitled to be tried by a jury composed of impartial jurors free of bias, actual or implied and to protect that right RCr 9.36 was enacted. It provides in part:

“When there is reasonable ground to believe that a juror cannot render a fair and impartial verdict on the evidence, he shall be excused as disqualified to serve.”

Upon the facts presented we conclude that there are reasonable grounds to believe the members of the jury who were challenged by appellant could not render an impartial verdict in the instant case. Cf. Sullivan v. Commonwealth, 304 Ky. 783, 202 S.W.2d 620. Therefore we hold that appellant did not obtain a fair trial because the trial court erred in .failing to sustain appellant’s challenges to the jurors in question. See Tayloe v. Commonwealth, Ky., 335 S.W.2d 556.

The trial court empaneled eighteen jurors and permitted each party to peremptorily challenge as many as three of them. Appellant contends that the court erred in requiring him to use his peremptory challenges before the Commonwealth had accepted the jury. In the event of another trial the court should empanel a tentative jury and after the attorney representing the Commonwealth has accepted it, appellant’s counsel should then be given the opportunity to assert three peremptory challenges.

We find no merit in the other contentions of the appellant.

The appeal is granted and the judgment is reversed with directions to set it aside and grant appellant a new trial.


text:
    HOTEL AND RESTAURANT ASSOCIATION OF KENTUCKY, INC., et al., Appellants, v. COMMISSIONER OF DEPARTMENT OF INDUSTRIAL RELATIONS et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 8, 1963.
    Rehearing Denied Feb. 14, 1964.

      Claude S. Eddleman, Jr., Louisville, Richard P. Moloney, Sr., Moloney & Mo-loney, Lexington, Bernard H. Barnett and Charles F. Wood, Greenebaum, Barnett, Wood & Doll, L. L. Pedley, Louisville, for appellant.
    John B. Breckinridge, Atty. Gen., H. N. McTyeire, Asst. Atty. Gen., James C. Osborne, Asst. Atty. Gen., Frankfort, for ap-pellees.
    Herbert L. Segal, Louisville, J. W. Brown, Ben Gettler, Jonas B. Katz, Jerry F. Venn, Cincinnati, Ohio, amici curiae.
   CLAY, Commissioner.

This controversy involves the validity of a wage order, issued on June 6, 1962 by the Commissioner of Labor, which fixed a new minimum wage scale for women and minors employed in the hotel and restaurant industry in Kentucky. It was issued under the provisions of KRS 337.210 to 337.300. On appeal to the Franklin Circuit Court (authorized by KRS 337.310) the order was affirmed.

Appellants attack the order on eight specific grounds which involve questions of whether the Commissioner acted in excess of his powers, or contrary to the statutes, or contrary to the evidence. (The scope of review is prescribed in KRS 337.310.)

The first contention is that the Commissioner improperly made this order mandatory, whereas KRS 337.250(3) only authorizes him to issue a “directory” order. That section relates to the entry of an original order covering an industry not theretofore subject to minimum wage rates. This order was a revision of an existing order (entered in 1954) and under KRS 337.290 and 337.300 the Commissioner is authorized to declare the order mandatory.

It is next contended the Commissioner based the determination of a fair minimum wage rate on average wage rates paid in other states. The record does not support this contention. Even if this factor was accorded weight, it is pertinent and appellants present no satisfactory reason why average wage rates may not be considered.

It is next contended the Wage Board (appointed by the Governor at the request of the Commissioner) failed to hold a public hearing as provided by administrative regulations. A public hearing was scheduled and the notice of it provided the Board should be advised of the names of those who wished to present evidence. No one so advised the Board and when the time of the hearing arrived the Board noted that “the public has not appeared”. Apparently some witnesses were available who wished to testify. However, they had not complied with the reasonable requirement of the notice and the Board had some justification for proceeding as it did.

Conceding, however, that this abortive hearing violated an administrative regulation, the record indicates no one was prejudiced thereby. Subsequently four public Bearings on this proposed minimum wage order were held both at Frankfort and Louisville. No one was deprived of the right to be heard and this record shows that all available evidence for and against the wage order was presented and considered.

It is next contended the Commissioner failed to follow the “cost of living” index, consideration of which is required by KRS 337.230 and was recognized as significant in Middlekamp v. Willis, Ky., 267 S.W.2d 924. The contention is that the “cost of living” index showed an increase in living costs since the date of the earlier order (in 1954) of approximately 25 percent, while the new order increased wages in some instances as much as 150 percent. Appellants’ theory seems to be that the Commissioner is without authority to increase the wage rate except in strict conformity to some established “cost of living” increase percentage. There are several answers to this contention.

In the first place, the “cost of living” index is simply one of the factors which ■should be taken into consideration by the ■Commissioner. Secondly, the “cost of living” index may be examined to determine a basic minimum subsistence level without regard to annual increases or decreases. Thirdly, there is no requirement of the law that an increase in wage rates must be geared to the percentage increase in the cost of living over any given period of time. The record fails to show the ■Commissioner improperly utilized the “cost of living” index as one of the factors in determining the new minimum wage rates.

It is next contended the Commissioner did not properly compare the cost of living in Kentucky with that of other states. The argument seems to be that some unspecified wage-per capita income ratio existing in other states must be accepted by the Commissioner as governing the wage rates. Nothing in the law does, or should, impose such a limitation upon the Commissioner. We are of the opinion that due and proper consideration was given to the comparative per capita income factor.

It is next contended the Commissioner took into consideration “cost of living” budgets of industrial workers generally rather than those employed in the hotel and restaurant business. The argument apparently is that since the latter have historically been in the lowest paid classification, their subsistence level must be substantially lower than those of other industrial workers. We think the Board and the Commissioner could properly use data concerning other industrial workers to determine what constitutes a minimum “cost of living” budget. A bare subsistence level of those in industrial employment would not be determinable simply on the basis of the type of occupation. It is also argued that those employed in the restaurant industry were shown to be living well on a budget supported by a wage rate substantially less than that fixed in the new order. There was ample evidence to support the finding that a lesser increase than that allowed by the new order would not constitute a fair livable minimum.

It is next contended the Commissioner did not consider the effect of the new proposed minimum wage rates on the economy of the industry. On behalf of the appellants there was evidence to the effect that some marginal establishments might be put out of business by this increased minimum wage and that other establish-merits might have to curtail their services or cut down on the number of persons employed. This specter confronts those engaged in any business and the evidence is of a highly speculative character. Some disruption of business may well be experienced and individual hardship may result. But this does not militate against the legality of an order which is designed to benefit a general class of employees. See West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703. It may be pointed out that there is substantial evidence in the record that many of those engaged in this industry in Kentucky are at the present time successfully conforming to an equal or higher wage rate than that fixed in the new order. It cannot be said the Commissioner did not give due consideration to the impact of the revised minimum wage rates upon this industry generally.

Finally it is contended the Commissioner did not consider the effect of tips which might be received by “service” employees in determining the minimum rates and should have made a classification based thereon. It may be conceded that tipping is a universal custom in this industry. The record, however, shows a wide disparity in the amount of tips and very serious problems are presented in recognizing this wholly uncertain income, received as a gratuity from persons other than the employer, as a part of the wage rate. A wage rate anticipating a certain amount of tipping might not fairly fix a minimum for those workers who receive no tips or whose tips are not substantial. In addition, by contract or business policy the employer could deprive the employee of this potential source of income. See Williams v. Jacksonville Terminal Co., 315 U.S. 385, 62 S.Ct. 659, 86 L.Ed. 914.

In view of the practical difficulties involved, we believe the Commissioner had a right to reject possible and uncertain tips as a necessary increment of a wage rate or as requiring a special classification of employees. Certainly the record contains ample evidence to justify this ruling.

We can find nothing in the record which would invalidate the wage order before us, and the circuit judge correctly upheld it.

The judgment is affirmed.


author: CULLEN, Commissioner. MONTGOMERY, Judge

text:
    STEPHENS ELKHORN COAL COMPANY, Appellant, v. Luther TIBBS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 18, 1963.
    Rehearing Denied Feb. 7, 1964.

      Fred G. Francis (Howard, Francis & Howard), Prestonsburg, for appellant.
    Dan Jack Combs, Pikeville, for appellees.
   CULLEN, Commissioner.

The Workmen’s Compensation Board granted Luther Tibbs benefits for total disability resulting from silicosis which was contracted while working in the mine of Stephens Elkhorn Coal Company. The company seeks reversal of the judgment upholding the award on the ground that Tibbs failed to give it timely notice as required by KIRS 342.316(2). Under this subsection an employe is required to give notice to his employer within a reasonable time after he has a disability from an occupational disease which impairs his capacity to perform his work and he knows (or should know by the exercise of reasonable care) that he has contracted the disease. Peabody Coal Co. v. Powell, Ky., 351 S.W.2d 172.

Tibbs had been employed by the company since 1949. During 1952 he began having respiratory trouble and filed a claim for compensation for disability due to silicosis. Upon his condition being diagnosed as tuberculosis, Tibbs’ claim was dismissed without prejudice. Several months later he was re-employed by the company and, although suffering from chest pains, he continued to work in its mine until September 1, 1961, when he quit his job because he was unable to perform the work required of him upon being assigned to the night shift. On September 4, 1961, he gave the company notice of his disability and filed his claim with the Workmen’s Compensation Board.

Upon the hearing of his claim Tibbs testified that he was informed in 1956 that he had contracted silicosis by Doctor W. C. Hambley who examined him when his chest pains and breathing difficulties worsened and that he was partially disabled to perform his work from that time until he quit his job in 1961. It was conclusively established that he is now totally disabled.

Under the rule hereinbefore stated, the requirement of giving notice was conditioned on Tibbs’ having “a disability * * which impairs his capacity to perform his work.” The characteristics of the disease of silicosis, and its effects on employability, are such that it is difficult to say with any certainty when “disability” arises. Without attempting to lay down a set of rules or standards for determining when disability from silicosis shall be considered to exist, we shall say that in our opinion practical realities require the conclusion that so long as the employe, after first acquiring knowledge that he has the disease, continues to be employed in full-time employment by the same employer, he cannot be considered to be disabled within the meaning of the notice statute. If, according to the employer’s standards, the workman has sufficient capacity to be continued in full-time employment, it would seem that in practicality he is not disabled, even though by the employe’s subjective standards he is not able to work to full capacity. So the fact that Tibbs testified, in the instant case, that for several months he had been unable to do a full day’s work, did not establish that he was disabled within the meaning of the notice statute.

This decision is predicated, of course, on the terms of the statute in force at the time this case arose. We do not undertake to determine the effect of the 1962 amendments to the statute, KRS 342.316.

The judgment is affirmed.

MONTGOMERY, J., dissenting.

MONTGOMERY, Judge

(dissenting).

In this case and in Brock v. International Harvester Company, Ky., 374 S.W.2d 507, the Court has adopted a definition of "disability” which is unique. Under the Court’s definition of disability, Tibbs was not disabled despite his own statement that for several months he had been unable to do a full day’s work.

The whole trouble started with an ineptly drawn statute by which occupational diseases were sought to be treated in the same way as accidental injuries. In Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167, it was held that the notice requirement of KRS 342.316(2) is “notice of disability.” See also Peabody Coal Company v. Guthrie, Ky., 351 S.W.2d 168; Peabody Coal Company v. Harp, Ky., 351 S.W.2d 170; and Peabody Coal Company v. Powell, Ky., 351 S.W.2d 172. This was done despite the plain provision of the statute that the procedure for filing claims in occupational disease cases shall be “the same as in cases of accidental injury or death,” with the added requirement that the employee shall give notice after he “first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease, or a diagnosis of such disease is first communicated to him, whichever shall first occur.” The provisions for filing a claim and giving notice have been ignored just as though they were not in the statute. This is contrary to all rules of statutory construction and hardly requires citation of authority.

Once having ignored and departed from the plain language of the statute, the Court has been in difficulty in every occupational disease case. In this case and in the Brock case, already mentioned, the height of confusion has been reached. The majority opinions in these two cases say now that nO' notice of filing of claim need be given “so-long as the employe, after first acquiring knowledge that he has the disease, continues to be employed in full-time employment by the same employer,” despite another express provision of the statute which bars the right to compensation “unless a claim is filed * * * within one year after the last injurious exposure to the occupational hazard or after the employe first experiences a distinct manifestation of am occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease, whichever shall last occur; * * KRS 342.-316(3). In the Brock case, the Workmen’s Compensation Board and the circuit court both held that the claim was barred under the statute.

The net effect of the two opinions is that the statute has been ignored almost entirely. The inept wording of the statute does not justify this Court’s ignoring other pertinent provisions of the statute and rewriting the statute in contradiction of those provisions. The 1962 General Assembly attempted to remedy the situation by substituting “notice of claim” in lieu of “notice of disability.” No doubt this will prove ineffectual.

This dissent is for the purpose of pointing up the need for a special statute on the procedure and handling of occupational disease cases. By their nature such cases cannot be and should not be handled in the same way as accidental injury cases. Neither the Legislature nor this Court has arrived at a satisfactory solution. It is hoped that the next General Assembly will address itself to this distressing and perplexing problem.


text:
    Lige BROCK et al., Appellants, v. INTERNATIONAL HARVESTER COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 18, 1963.
    Rehearing Denied Feb. 7, 1964.
    Jay H. Taylor, Pineville, for appellants.
    William A. Rice, Harlan, for appellee.
   CULLEN, Commissioner.

The appeal is from a judgment of the circuit court affirming an order of the Workmen’s Compensation Board which dismissed a claim for compensation.

Appellant, Lige Brock, worked as a miner for appellee, International Harvester Company, from 1927 until 1956, when he began to show symptoms of the disease of silicosis. On reporting his condition to the foreman on April 7, 1956, he was transferred from inside the mines to the company’s machine repair shop where he continued to work until January 11, 1960.

On October 28, 1958, appellant delivered a letter to appellee company which stated that he had been examined at the Harlan Memorial Hospital and was informed that he was suffering from silicosis.

Brock testified that early in the morning on January 11, 1960, he was cleaning out the exhaust chute of the emery wheel when suddenly “the emery wheel started up and blew my face full of dust.” Thereupon he became ill and went home. He did not thereafter return to work and on December 20, 1960, he filed claim for compensation. Appellee pled the statute of limitations.

The Workmen’s Compensation Board ruled that the claim was barred by limitations and this ruling was upheld on 'appeal to the circuit court.

The pertinent statute, KRS 342.316(3), provides that a claim for compensation “for disability resulting from an occupational disease” must be filed within one year after the last injurious exposure or after the employe first experiences a distinct manifestation of the disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease, whichever shall last occur.

Although the commencement of the running of limitations is by the statute related to knowledge of or exposure to the disease, it is obvious that limitations could not commence to run in any event unless the employe has a disability, because the claim is for “disability resulting from an occupational disease,” and certainly the statute does not contemplate that an employe must file a claim before he has a claim.

In Stephens Elkhorn Coal Co. v. Tibbs, Ky., 374 S.W.2d 504 (this day decided) we have held that for the purpose of the notice statute, KRS 342.316(2), an employe is not to be considered disabled so long as he continues in full-time employment of the same employer. We believe the same interpretation must be placed upon the limitation statute. As noted in the Tibbs case, the interpretation is of the statute as it existed when this case arose. We do not undertake to determine the effect of the 1962 amendments.

Brock was not disabled, under the rule above stated, until he terminated his employment on January 11, 1960. Therefore his claim was filed in time.

The judgment is reversed with direction to enter judgment setting aside the order of the Workmen’s Compensation Board dismissing Brock’s claim, and remanding the case to the board.

MONTGOMERY, J., dissenting.

MONTGOMERY, Judge

(dissenting).

For the reasons stated in the dissent in Stephens Elkhorn Coal Company v. Tibbs, Ky., 374 S.W.2d 504 (decided this day), I respectfully dissent from the majority opinion herein.