author: MONTGOMERY, Judge. OSBORNE, Judge

text:
    Mary Frances BATCHELOR, Appellant, v. Donald E. FULCHER, Appellee.
    Court of Appeals of Kentucky.
    June 2, 1967.
    Dissenting Opinion June 9, 1967.
    As Modified June 13, 1967.
    Earle M. Nichols, Nichols & Nichols, Madisonville, for appellant.
    Carroll S. Franklin, Franklin & Gordon, Madisonville, for appellee.
   MONTGOMERY, Judge.

This contest is between Mary Frances Batchelor, the mother, and Donald E. Fulcher, the father, over the custody of their children, Donald Wayne Fulcher, born September 28, 1960, and Carla Gaile Ful-cher, born November 5, 1962. The action by the mother was dismissed on motion of the father, challenging the jurisdiction of the Hopkins Circuit Court, on the ground that he had obtained an order for the children’s custody in a divorce action granted in Indiana.

The mother, on appeal, contends that the Indiana judgment was void and that even if not void, it should not be enforced in a child custody case. The latter point is decisive.

The parties were married on November 7, 1959. Both are natives of Hopkins County. During part of the period of their marriage they lived in Kentucky. Then they lived in Evansville, Indiana, for about two years before moving to California in January or February 1964. Appellant separated from her husband in California in November 1964, and went to Florida, taking the children with her.

Fulcher followed her to Florida, stayed a few days, obtained the children without her consent, she claims, and returned to Hopkins County. In January of 1965, Ful-cher took the children to California. He returned to Kentucky in February, and after a short stay he went to Gary, Indiana, taking the children with him.

In March 1965, the parties met in Hopkins County. The son was turned over to appellant. She later took him to Florida. The daughter had been left in Indiana. On July 2, 1965, the father took the son from the mother in Florida by force, she claims, and returned to Indiana.

On February 8, 1965, the mother sued for divorce in Lake County, Florida. On April 2, 1965, the father filed an answer in that action together with waiver of notice sworn to before a notary public. On July 14, 1965, the mother was granted a divorce. The question of custody of the children was not raised or adjudicated in the Florida action.

On July 22, 1965, the father sued for divorce and custody of the two children in Lake County, Indiana. The mother was proceeded against by publication as a nonresident. She disclaims any notice or knowledge of this proceeding. Shortly after September 21, 1965, the return day for the nonresident process, the husband was granted a divorce and the custody of the two children, who were with him.

On the same day that appellee sued for divorce, July 22, 1965, appellant married her present husband, Raymond Batchelor. They have lived in Hopkins County since shortly after their marriage.

Appellant and her husband testified that in July 1966, appellee called appellant and told her to come to Gary, Indiana, and get the children. Appellant said that appellee assigned as the reason that he was having trouble with his bride of three weeks. Appellant and her husband said that they arrived in Gary about 8 a. m., and stayed until about 2 p. m. During this time ap-pellee and his bride were preparing the children and their clothes to return to Kentucky with appellant and her husband. Ap-pellee claims that the children were taken from his home without his knowledge or consent. The children have remained with appellant in Kentucky since July 3, 1966.

Appellant filed this action July 7, 1966, by which she seeks to have the custody awarded to her. Personal service was had on appellee when he returned to Kentucky to get the children.

Three questions are inherent in this case: Was the Hopkins Circuit Court bound to give full faith and credit to the Indiana custody order in the absence of personal service on the mother? Did the Hopkins Circuit Court have jurisdiction to determine the custody of the children? and, If so, what is the controlling factor in such determination ?

In May v. Anderson, 345 U.S. 528, 73 S. Ct. 840, 97 L.Ed. 1221, the husband obtained a divorce and an order for the custody of the children in Wisconsin without obtaining personal service on the mother who was then in Ohio. Afterward, the husband sought to obtain the custody of the children from the mother in a proceeding in Ohio. He relied on the Wisconsin custody order.

In rejecting the Wisconsin custody order, the United States Supreme Court, speaking through Mr. Justice Burton, stated and answered the question thus:

“ * * * we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody.
“ ‘It is now too well settled to be open to further dispute that the “full faith and credit” clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extraterritorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.’ Baker v. Baker, Eccles & Co., 242 U.S. 394, 401, and see 403, 37 S.Ct. 152, 155, 61 L.Ed. 386 [391, 392]; Thompson v. Whitman, (U.S.) 18 Wall. 457, 21 L.Ed. 897; D’Arcy v. Ketchum, (U.S.) 11 How. 165, 13 L.Ed. 648.
“In Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, 1 A.L.R.2d 1412, supra, and Kreiger v. Kreiger, 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572, supra, this Court upheld the validity of a Nevada divorce obtained ex parte by a husband, resident in Nevada, insofar as it dissolved the bonds of matrimony. At the same time, we held Nevada powerless to cut off, in that proceeding, a spouse’s right to financial support under the prior decree of another state. In the instant case, we recognize that a mother’s right to custody of her children is a personal right entitled to at least as much protection as her right to alimony.
“ * * * We find it unnecessary to determine the children’s legal domicile because, even if it be with their father, that does not give Wisconsin, certainly as against Ohio, the personal jurisdiction that it must have in order to deprive their mother of her personal right to their immediate possession.”

See also Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240; People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133.

The decree of the Indiana court did not validly deprive her of a right to seek the custody of her children in the Hopkins Circuit Court.

Three concurrent bases of jurisdiction have generally been recognized in cases of this character. They are: domicile of the child in the state; presence of the child in the state; and personal jurisdiction over the contending parties. See Restatement of the Law, Second, Conflict of Laws, Proposed Official Draft, May 2, 1967, Section 79, Pages 294-300, for a full discussion and citation of authorities. It is therein observed that: “In point of fact, each of these bases of judicial jurisdiction provides a reasonable and suitable basis upon which a court may proceed in a proper case.”

In the instant action there are present two bases for jurisdiction: presence of the children in Hopkins County, Kentucky, and an action brought by the mother with personal service on the father. The Hopkins Circuit Court had jurisdiction to determine the custody of the children.

Having resolved the first two questions, the answer to the third is easy. The welfare of the child is always the overriding consideration in the determination of its custody. This is the reason for the rule stated in May v. Anderson, supra. Wells v. Wells, Ky., 406 S.W.2d 157, and 412 S.W.2d 568; McLemore v. McLemore, Ky., 346 S.W.2d 722, 92 A.L.R.2d 691.

Accordingly, it was error to dismiss appellant’s action. The Chancellor should have heard testimony and determined which party in the best interest of the children should have custody. This is a factual issue to be resolved by the Chancellor. Brengle v. Hurst, Ky., 408 S.W.2d 418. Cf. Walden v. Johnson, Ky., 417 S.W.2d 220.

Judgment reversed.

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

HILL and OSBORNE, JJ., dissent.

OSBORNE, Judge

(dissenting).

The majority opinion holds we are not required to give full faith and credit to a child custody decree entered in Indiana, where the mother was not personally served, even though the children and father were all domiciled there and the children personally present in Indiana when the decree was entered.

We attempt to justify our action by saying since the mother and children are presently before this court and the best interest of the children seem to us to demand it, we have jurisdiction to disregard the Indiana decree and proceed as if it were never entered. I do not believe this is a proper and accurate statement of the law generally or of the law of this state. It is nothing more than a formal adoption of the rule of “seize and run.”

The central problem is whether the Indiana judgment should be accorded full faith and credit by the courts of Kentucky and incident to a solution of this problem is the question of jurisdiction. If Indiana had jurisdiction at the time it entered its decree then Kentucky is required under article 4, section 1 of the Constitution of the United States to give full faith and credit to the Indiana decree. The majority opinion cites as authority for its holding May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221. The one important single factor ignored by the majority opinion is that the children in the instant case were present in Indiana at the time the decree was entered. This was not so in May v. Anderson, supra, where the children were residing in Ohio with their mother at the time the Wisconsin court granted custody to the father. The Wisconsin court based its jurisdiction upon the tenuous proposition that the technical domicile of the child is the same as the domicile of the father. Therefore, any court where the father is domiciled would have jurisdiction to grant custody of his children wherever they might be. In May v. Anderson, supra, jurisdiction is based upon technical domicile. In the present case jurisdiction is based upon actual domicile and presence. They are distinguishable. There are other factors concerning May v. Anderson which should properly be brought out. First and foremost is the fact that what purports to be the opinion of the majority was not concurred in by a majority of the members. The opinion was written by Justice Burton and concurred in by three other justices. Justice Frankfurter wrote a separate concurring opinion in which he does not agree with the basis of the majority opinion. Justices Reed and Minton dissented and Justice Clark took no part in the case. However, since our majority places such great stress upon this one case, it will be necessary to review it at some length.

As above stated, the father was a resident of Wisconsin, the mother of Ohio. The parties were- married in Wisconsin and lived there until the onset of trouble. In December of 1946 the wife left the husband and took the children to Lisbon, Ohio, to think over her future course. By New Year’s Day, she called her husband and informed him that she had decided not to return to Wisconsin. A few days thereafter he filed suit in Wisconsin seeking an absolute divorce and custody of the children. The only service of process upon the wife was a delivery to her in Ohio of a copy of the Wisconsin summons and petition which made no mention of the fact that there was a proceeding for the custody of the children. She entered no appearance and took no part in the proceedings. Justice Burton writing for himself and three other members of the court held that the wife was not bound by the Wisconsin decree and cites for authority Weber v. Redding, 200 Ind. 448, 454-455, 163 N.E. 269, 271. Also, Sanders v. Sanders, 223 Mo.App, 834, 837-838, 14 S.W.2d 458, 459-460; Carter v. Carter, 201 Ga. 850, 41 S.W.2d 532. Without reviewing these authorities in detail, we believe it will suffice to point out that in none of them were the children present in the state at the time of the entry of the judgment. As an example, in Carter v. Carter, supra, the court points out that at the time the judgment was entered by the South Carolina court granting custody, “the child was in Georgia in the custody of his mother where he had been for approximately two years with the exception of two or three days during which the father had surreptitiously taken the child out of the state.”

In Sanders v. Sanders, supra, the court points out:

“We have found no case in Missouri, however, which holds, or even intimates, that the circuit court has jurisdiction to give the custody of minor children to one spouse or the other, at the time of granting a decree of divorce, when service is obtained on defendant in such suit by publication, and when the children were with defendant in another state both at the time the petition was filed and when the divorce decree was entered.”

In Weber v. Redding, supra, the Indiana court held the decree of Ohio invalid as it related to the custody of the child “for the reason that the court did not have jurisdiction of either the appellant or the child.”

It is apparent from the foregoing that the ruling of the court in May v. Anderson, supra, is limited to a situation where the child is not present in the jurisdiction of the court when the order is entered. Not until the present case has any court ever refused to grant full faith and credit to a judgment awarding custody when the children were before the court when the order was entered. This is an alarming situation and brings about what could be a catastrophic result for it in effect holds that all custody orders in this and other states based upon constructive service are not entitled to full faith and credit, even though the children were before the court at the time the order was entered.

Justice Jackson in his dissent in May v. Anderson summarizes this problem as follows:

“I am quite aware that in recent times this Court has been chipping away at the concept of domicile as a connecting factor between the state and the individual to determine rights and obligations. We are a mobile people, historically on the move, and perhaps the rigid concept of domicile derived by common law from feudal attachment to the land is too rigid for a society so restless as ours. But if our federal system is to maintain separate legal communities, as the Full Faith and Credit Clause evidently contemplates, there must be some test for determining to which of these a person belongs. If, for this purpose, there is a better concept than domicile, we have not yet hit upon it. Abandonment of this ancient doctrine would leave partial vacuums in many branches of the law. It seems to be abandoned here.
“The Court’s decision holds that the state in which a child and one parent are domiciled and which is primarily concerned about his welfare cannot constitutionally adjudicate controversies as to his guardianship. The state’s power here is defeated by the absence of the other parent for a period of two months. The convenience of a leave-taking parent is placed above the welfare of the child, but neither party is greatly aided in obtaining a decision. The Wisconsin courts cannot bind the mother, and the Ohio courts cannot bind the father. A state of the law such as this, where possession apparently is not merely nine points of the law but all of them and self-help the ultimate authority, has little to commend it in legal logic or as a principle of order in a federal system.”
“ * * * In spite of the fact that judges and law writers long have recognized the similarity between the jurisdictional requirements for divorce and for custody, this decision appears to equate the jurisdictional requirements for a custody decree to those for an in personam money judgment. One reads the opinion in vain to discover reasons for this choice, unless it is found in the remark that for the wife 'rights far more precious * * * then property will be cut off’ in the custody proceeding. The force of this cardiac consideration is self-evident, but it seems to me to reflect a misapprehension as to the nature of a custody proceeding or a revision of the views that have heretofore prevailed.
“ * * * I fear this decision will author new confusions. The interpretative concurrence, if it be a true interpretation, seems to reduce the law of custody to a rule of seize-and-run. I would affirm the decision of the Ohio courts that they should respect the judgment of the Wisconsin court, until it or some other court with equal or better claims to jurisdiction shall modify it.”

The Supreme Court of the United States had this problem before it in 1962 in Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed. 240, where the courts of Virginia dismissed a petition for custody upon the agreement of the husband and wife that they had settled the matter. Action was brought later in the courts of South Carolina for custody of the children. The Supreme Court held that under the full faith and credit clause the courts of South Carolina were not bound by the Virginia order because the Virginia order was not res judicata in Virginia. The importance of this decision is that in the course of it the court makes the following statement “[wjhether the South Carolina court’s interpretation of the Full Faith and Credit Clause is a correct one is a question we have previously reserved.” In the footnote to this statement, the court cites Halvey v. Halvey, 330 U.S. 610, 91 L.Ed. 1133, 67 S.Ct. 903, in which it had held the courts of New York could modify a decree entered in Florida because such decree was open for modification in Florida. The Halvey case is significant because service of process was had upon the husband by publication and the court did not rule such process was invalid. So, we see that prior to May v. Anderson the court in Halvey v. Halvey did not hold process in child custody actions by publication invalid and again in Ford v. Ford, supra, subsequent to May v. Anderson, supra, pointed out this fact had been specifically reserved in Halvey v. Halvey. From the foregoing, it is apparent that a majority of the members of the court have never held a decree awarding custody of children in divorce proceedings not entitled to full faith and credit solely because process upon one of the parties was had by publication or other constructive service.

The question here presented has been much litigated in the several state courts. The increased mobility of the population has brought with it a corresponding increase in the volume of litigation. It should be stated at the outset there is considerable confusion in the cases dealing with the question occasioned by vague definitions and varying factual situations. The problem is stated most lucidly in 9 A.L.R.2d 439.

“The judicial solution of problems regarding the custody of children, or for that matter, of domestic relations generally, has never been wholly satisfactory, either from a social or a legal viewpoint, especially when multistate elements complicate the situation. There is little accord among the authorities as to the proper basis of jurisdiction to award custody of a minor child, and the cases dealing with this question are in considerable confusion.
“One of the reasons for this conflict is the existence of various theories which have been developed by legal writers and sociologists to determine the correct basis for jurisdiction over the subject matter of a child custody proceeding and which dominate the courts’ thinking in this class of cases.
“According to one theory which has been adopted by the Restatement and several leading textwriters the question is simply one of status and as such subject to the control of the courts of the state where the child is domiciled. The Restatement expresses this view with absolute clearness and certainty. It declares that the state of a child’s domicil is the only one which has jurisdiction to award custody, and such an award will be recognized in all other states. A state in which a child is physically present, but not domiciled, may appoint a temporary guardian to protect it from harm, but such appointment, being an exercise of police power, has effect only within the state. The rationale of this position seems to be that custody is a matter of status and that the state of domicil is the one to properly determine it. Its weakness, in this writer’s opinion, is that custody, unlike questions of divorce, does not fit well into the concept of status, as the court is not creating or dissolving a legal relationship, but is making a determination as to which of several contesting parties has the best claim to the child. However, more important from a practical point of view is the objection that the rules relating to domicil of an infant are frequently unrealistic, giving in extreme cases jurisdiction to a court within the territorial limits of which the child has never lived.”

The authorities are generally in agreement that jurisdiction must be based upon the status of the child. The cases fall generally into three categories. Resting jurisdiction either on domicil, residence or presence. Most authorities agree that jurisdiction based upon domicil is valid.

The Restatement of the Law, Conflict of Laws, § 117 provides:

“A state can exercise through its courts jurisdiction to determine the custody of children or to create the status of guardian of the person only if the domicil of the person placed under custody or guardianship is within the state.”

Jurisdiction based upon residence is somewhat more confusing because of confusion inherent in the definition of residence and the similarity between residence and domi-cil. Again this age of mobility has caused great confusion in the old definitions. Professor Roy Moreland in a most excellent review of this problem in the Kentucky Law Journal points out the fact of changing concepts.

“What is the definition of domicil? The writer has never found a satisfactory one; the term is so unsettled and vague. It is true that it may be an individual’s ‘home’ if his roots remain where he was born or he has settled permanently in one place, where he has his family and his work. But under modern conditions such an individual has become almost the exception rather than the rule. People move around and technical domicil may be a place with which there is little actual contact or presence.” 54 KLJ, 172.

Most courts agree that jurisdiction in child custody cases may be based upon actual domicil or residence, but will not base jurisdiction, upon presence alone. However, there are some exceptions even to this, rule. In Kentucky, we apparently follow, or maybe it should be said at one time followed, the domicil rule. See Carter v. Netherton, Ky., 302 S.W.2d 382, at page 384, where this rule is stated thusly:

“We have recognized that the right to the custody of a child is governed by the law of the state of the child’s domicil. Rodney v. Adams, Ky., 268 S.W.2d 940, and the cases collected therein. See also McMillin v. McMillin, 114 Colo. 247, 158 P.2d 444, 160 A.L.R. 396; Application of Enke, [129] Mont. [353], 287 P.2d 19. In view of the domicil of Carolyn Sue Carter in Indiana, the Chancellor’s ruling in declining to make any further order concerning her custody was not an abuse of discretion.”

The majority opinion herein cites Brengle v. Hurst, Ky., 408 S.W.2d 418. This case is not applicable to the set of facts presented before us. In the Brengle case the children were brought into Kentucky in 1961 and had made their home here for five years. Jurisdiction in that case was based upon residence. In the course of the opinion, the court states:

“We do not have a situation before us where these children have been removed from Indiana in order to get away from the courts of that state; we have rather an instance where a mother has taken the children to Kentucky and in good faith established residence here. Because these children have been citizens of Kentucky for several years, this state has an interest in their welfare, and should not relinquish that interest by default.”

In the present case before us, the children were brought into this state on July 3, 1966, by the mother. This action was instituted four days later on July 7, 1966. By no stretch of the imagination can it be said that domicil or residence was established in this period of time, especially where the father contends that the children were stolen from Indiana. We are basing jurisdiction on presence alone and I do not feel this is sufficient. Exercising jurisdiction in domestic-relations cases, where the parties either reside or are domiciled in another state, encourages “court jumping.” If the mother can in this case bring the children into Kentucky, institute suit in four days, and acquire valid legal custody, then what is to prevent the father from, in turn, illegally taking them into another state the day after entry of judgment in Kentucky and doing the same there? This process has no end. It can continue ad infinitum until all fifty states are used, each with a custody order inconsistent with the other forty-nine sister states. It behooves all courts to carefully examine these cases and not permit themselves to be used as pawns in the ever-raging domestic wars. The courts in most of our states are not in any way superior to the courts in the rest of our states, therefore it behooves none of us to criticize the rest of us and we should not “dupe” ourselves into believing that we can improve upon the judgment of the court who last handled the case simply because we have the power to grasp jurisdiction. Goodrich, Conflict of Laws, 136, pp. 422, 423 (3d ed.) sums up the problem about as well as it can be said:

“If the question of custody is passed upon by a court having jurisdiction, the great weight of authority holds that the decree is conclusive as to all matters up to the time of its rendition, and will be recognized and given effect in another state. This seems entirely sound. To allow relitigation of the question involves-an unfortunate lack of confidence in the competence of the judicial officers of a sister state, and an unduly narrow interpretation of the full faith and credit clause of the Constitution.”

For the foregoing reasons I am of the opinion that the Indiana court had jurisdiction based upon actual domicil and residence; that the judgment of that court should be afforded full faith and credit in Kentucky, and our action taking jurisdiction upon presence alone was not warranted.

Recognizing that there is conflict in the law and this is unavoidable and further recognizing that there are few rules without exceptions, nevertheless, I believe that there are some definite conclusions that can be drawn from the foregoing cases and other authorities and they are as follows:

Orders pertaining to the custody of children in one state must be awarded full faith and credit in all other states subject to the following exceptions:

1. If the award is subject to be opened and altered in the state where rendered the doctrine of full faith and credit will not preclude it from being opened and altered in any other state having jurisdiction provided the modifications are made upon the basis of facts transpiring after the entry of the original order.

2. Technical domicil based upon nothing more than the domicil of the father is a doubtful basis for jurisdiction. And judgment based upon this fact alone will not be binding upon the mother without a valid service of process upon her. However, this question is much in doubt and the position of the court in May v. Anderson, supra, and the authorities therein cited are questionable.

No court of last resort prior to the majority opinion in this case has ever before held constructive service coupled with the presence of the children was not sufficient to grant such jurisdiction as to make a judgment' entitled to full faith and credit.

The majority opinion on one hand takes the position that Kentucky has jurisdiction because the children are present in this state and the “welfare of the children is always the outstanding consideration” and on the other hand decrees that Indiana had no jurisdiction while acknowledging that the children were present there. Apparently what we call “the welfare of the children” is entitled to primary consideration in Kentucky and to no consideration in Indiana. I cannot understand this reasoning.

Therefore, I respectfully dissent.

EDWARD P. HILL, J., joins in this dissent.

      . In view of our decision this fear seems well founded.

      . Domicil here means actual and not technical.

      . There are charges presently pending in Indiana against appellant for illegally removing the children from that state.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    Gene DAMRON, Appellant, v. Loretta DAMRON, Appellee.
    Court of Appeals of Kentucky.
    June 2, 1967.

      Jean L. Auxier, Pikeville, for appellant.
    Francis M. Burke, Pikeville, for appel-lee.
   CLAY, Commissioner.

The Chancellor granted the appellee wife a divorce, restored to her certain real estate, and awarded her $5,000 alimony, payable at the rate of $100 a month. The husband appeals, contending the court could not properly restore the real estate to the wife and award her substantial lump sum alimony.

The property involved is the home place. The land was deeded jointly to the husband and wife by the wife’s father. The parties borrowed $6,500 from the bank for the purchase of materials and the husband, being a carpenter, did most of the work in the building of the house. The wife’s father did all the wiring and plumbing.

Clearly the husband’s one-half interest in the land was obtained through the wife by reason of the marriage. KRS 403.060(2). The husband invested no money in the property but he did contribute something of value in the construction of the house. However, he failed to establish the monetary value of such services. Assuming the property could have been divided for restoration purposes (which is most doubtful), appellant did not show the extent of his interest in it, which is required. Rayborn v. Rayborn, Ky., 329 S.W.2d 576. In the case of Patterson v. Patterson, Ky., 323 S.W.2d 862, even though the wife established that she had invested $1,200 of her own money in improvements on her husband’s real estate, we held it proper to restore the land with improvements to the husband.

In any event, we have a situation where it would have been practically impossible to separate the interests of the husband and wife in this land as improved. Ordinarily improvements go with the land. It is not shown that the husband paid anything on the mortgage loan and it is substantially now all outstanding as a charge against the property. The Chancellor required the wife to assume this indebtedness, and by reason thereof she will eventually have a substantial monetary investment in this property. In so decreeing the Chancellor relieved the husband of his obligation to pay this debt. Under all these circumstances the order of restoration was proper.

Appellant contends that since the wife was given the property, he has no estate and the court could not award lump sum alimony. We believe appellant misconstrues the nature of this award. He assumes it is an allowance out of an estate, which it is not. It is simply a monthly alimony award with a limitation on the ultimate amount to be paid. This form of allowance was approved in Jones v. Jones, Ky., 382 S.W.2d 842. There is no contention that appellant is financially unable to meet the $100 monthly payments. He is regularly employed and earns not less than $500 a month. We find no abuse of discretion in this allowance.

The judgment is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Maude ROLLYSON et al., Appellees.
    Court of Appeals of Kentucky.
    June 2, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Special Asst. Atty. Gen., Dept, of Highways, Frankfort, Eugene H. Clark, Manchester, for appellant.
    Grant F. Knuckles, Lay & Knuckles, Pineville, for appellees.
   CLAY, Commissioner.

This is a highway condemnation proceeding appealed by the Commonwealth on the grounds that the verdict was palpably excessive and insufficiently supported by evidence of probative value.

Appellees owned a 15-acre tract on U.S. 25E in Knox County, between Barbour-ville and Pineville. On the land fronting this highway were a substantial brick house, a tourist court and a service station. Behind these buildings was some tillable land, and behind that was a hillside partially cleared. The land condemned was a strip about 800 feet in length and 230 feet in width behind the principal buildings. Within this strip were a frame stock barn, a corncrib and a hog house, which of course were taken.

The new road, to which appellees have access, divides the property, leaving approximately two acres fronting on old 25E and about eight acres fronting on the new highway. Approaches to the new highway from the remaining two tracts are to be provided, although there are cuts and fills.

The jury found the before value of the lot to be $26,000 and the after value $17,250, the difference being $8,750, which was the amount awarded in the judgment appealed from. Appellees’ three witnesses had fixed the difference in values in the range of $17,500 to $20,000.

The Commonwealth contends the landowners’ witnesses used improper factors, one of which was the possibility of building sites, both commercial and residential. It is said there was no evidence of demand for such lots or that the landowners planned such development. The cases of Commonwealth, Dept. of Highways v. Vincent, Ky., 357 S.W.2d 678; and Commonwealth, Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922, are cited. In our more recent case of Commonwealth, Dept. of Highways v. Siler, Ky., 411 S.W.2d 937, we pointed out that the potential for commercial or residential development may be significant even though the landowner had never thought of subdividing his property. Therein we said:

“If property is adaptable to a particular use or development different from its existing use, and the prospect that it will be or could be so used or developed is sufficiently imminent to affect its present market value, that prospect not only is a proper but necessary factor in determining such value.”

We must say that in this case the possibility of commerical or residential use as it affected market value was not well developed by the witnesses. Yet the Commonwealth failed at the trial to properly raise for a court ruling the question of the significance or insignificance of this factor, or the competency or relevancy of the testimony pertaining thereto. However that may be, for the reason hereafter noted, we do not think the reference to this factor, even if an improper one, was prejudicial. We may say the references to other factors about which the Commonwealth complains, such as the proximity of the new highway to the buildings and the impairment in the agricultural potential of the original tract, were relevant.

We are inclined to agree with the Commonwealth’s contention that the estimates of the landowners’ witnesses regarding the difference in before and after values appear palpably excessive. They testified the taking of approximately one-third of the land, leaving all major improvements, reduced the value of the remainder 60 percent. However, an unusual feature of this case is that the jury must have considered such extreme opinions incredible. Whereas the landowners’ three witnesses had fixed the difference in value from $17,500 to $20,000, the jury found the difference to be $8,750. The members of the jury had viewed the premises and they very materially discounted the testimony of the landowners’ witnesses.

In view of the fact that under all the evidence the taking substantially damaged appellees’ property, that the testimony of appellees’ witnesses did have some probative value, and that the jury appears to have exercised reasonable judgment, we do not find the verdict palpably excessive.

The judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    Arch McDONALD, Appellant, v. Ed WHALLEN et al., Appellees.
    Court of Appeals of Kentucky.
    June 2, 1967.
    Thomas F. Marshall, Frankfort, for appellant.
    William A. Young, County Atty. of Franklin County, Frankfort, for appellees.
   STEINFELD, Judge.

On July 12, 1966, a local option election was held in Swallowfield precinct No. 22 located in Franklin County. 57 persons voted for and 79 persons voted against the continued sale of alcoholic beverages in that precinct. Arch McDonald, the appellant herein, who resides in that precinct filed suit in the Franklin Circuit Court to contest that election. KRS 242.120. From a judgment holding that a regular and valid local option election had been held McDonald appeals.

McDonald claims that the order of the Franklin County Court directing that the election be held was entered at a special term of the county court and not at the regular term. KRS 242.020(4) directed that after a petition for local option election had been filed “ * * * the county court shall, at the current or the next regular term, make an order on the order book of the court directing an election to be held in that territory.” The day established as the first day of each regular monthly term of the Franklin County Court was and is the first Monday of each month. In 1966 the first Monday in May fell on the 2nd day of that month. On that date the following order was entered by that court.

“Regular Term Franklin County Court Held in Court House in City May 2, 1966 Hon. Robert T. Harrod, Presiding Judge
ORDER
The Court upon its own motion hereby orders the regular May, 1966 term of the Franklin County Court continued from day to day until Saturday, May 29, 1966.
This the 2nd day of May, 1966.
/S/ Robt. T. Harrod JUDGE, FRANKLIN COUNTY COURT”

No order was entered between May 2, 1966, and May 29, 1966, adjourning the regular May term and no order was entered between those dates calling or directing the holding of a special term of that county court. KRS 25.120. Renshaw v. Cook, 129 Ky. 347, 111 S.W. 377, 33 Ky.Law Rep. 860. From time to time between May 6, 1966, and May 29, 1966, various orders unrelated to the local option election were entered in the county court. These orders bear the caption “Special Term of the Franklin County Court”. The clerk testified that these several orders were prepared by various local attorneys and were entered by the court without correction being made. He said that it had been a custom of the court to show that orders entered on the 1st Monday of the month as having been entered at the regular term whereas orders entered on other days indicated that they were entered at a special term.

The order directing that the local option election in the Swallowfield precinct be held was entered on May 20, 1966, and it showed that it was entered at the “Regular Term”' of court. A controversy rages as to whether the order was entered at a regular term or at a special term.

McDonald cites Hinton v. Stewart, 272 Ky. 162, 113 S.W.2d 1150; Steele v. Perry County, 299 Ky. 827, 187 S.W.2d 302 and Hardy v. Commonwealth, Ky., 336 S.W.2d 338, in support of his contention that the order directing the holding of the local option election was entered at a special term and therefore is contrary to KRS 242.020 (4). Those cases involved situations in which a circuit court held simultaneous and conflicting terms. They are not applicable here.

Courts speak only through their records. Simpson v. Antrobus, 260 Ky. 641, 86 S.W.2d 544; Poynter et al. v. Smith, 290 Ky. 169, 160 S.W.2d 380. The order of May 2, 1966, directed that the regular May term continue from day to day until May 29, 1966. In Hinkle v. Rose, Judge, 233 Ky. 606, 26 S.W.2d 541, we decided: “ * * * that a session of a regular term of court held by the judge thereof on any day or days intervening between the beginning and terminating day will be valid, * * * ”. Baker v. Commonwealth, 308 Ky. 43, 213 S.W.2d 52L The regular term of the Franklin County Court was kept open. Richie, Judge v. Peiper’s, Ex’x, 99 Ky. 194, 35 S.W. 279, 18 Ky.Law Rep. 87. The order directing that a local option election be held was entered at the regular term of court. Howard v. Farmer, 268 Ky. 303, 104 S.W.2d 957.

McDonald also contends that the advertisement which the sheriff caused to be inserted in the newspaper did not comply with KRS 242.040 and violates the law stated in Terrill v. Taylor, 271 Ky. 475, 112 S.W.2d 658. The statute provides in part that: “The sheriff shall have the order published * * * and shall also advertise the order by written or printed handbills * * * Pursuant to KRS 242.040 the sheriff caused the order to he published. He did not advertise the following part of the order:

“It is further ordered that the Clerk of the Franklin County Court and the Sheriff of Franklin County carry out their respective duties as required by law pursuant to this Order and K.R.S., Chapter 242.
Witness my hand this 20th day of May, 1966.
/S/ Robt. T. Harrod
Judge, Franklin County Court”

We have held that the provisions of KRS 242.040 as to publication and posting of notices of elections are mandatory, although provisions concerning the time of such posting and publication are directory. Hall v. Sturgill, 305 Ky. 445, 204 S.W.2d 496. It should be noted that all of the order pertaining to the holding of the election was published. This was compliance with all of the mandatory provisions of the statute. In Terrill v. Taylor, supra, the sheriff published only a synopsis of the order.

McDonald asserts that the advertisement and the notices posted pursuant to KRS 242.040 and KRS 424.140(2) did not contain the substance of the question to be voted on. KRS 424.140(2) provides that “Any advertisement of an election shall state the time and purpose of the election, and if the election is upon a public question the advertisement shall state the substance of the question.”

The advertisement, among other things, stated that said election was “ * * * to be held on Tuesday, July 12, 1966, between the hours of 6:00 A.M. until 6:00 P.M. * * * to take the sense of the voters * * * upon the question whether or not the sale of alcoholic beverages within said precinct shall continue to be permitted, * * The advertisement also referred to “ * * * the calling of a local option election * * * We hold that the time and purpose of calling the election and the question to be decided were clearly stated. Keeling v. Coker, 294 Ky. 199, 171 S.W.2d 263.

The judgment is affirmed.

All concur.


author: CULLEN, Commissioner.

text:
    Sam COPELAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 2, 1967.

      J. William Howerton, Paducah, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Sam Copeland, who is serving a life sentence in the state penitentiary as an habitual criminal pursuant to a 1946 judgment of the Muhlenberg Circuit Court upon a verdict which found him guilty of storehouse breaking and of having in 1927 and 1938 been convicted in the McCracken Circuit Court of previous felonies, filed a motion in the McCracken Circuit Court under CR 60.02 to set aside the 1927 and 1938 convictions on the ground that he did not have counsel at the trials which resulted in those convictions. (This was a preliminary step designed hopefully to lead eventually to the setting aside of the habitual criminal conviction on the ground that the prior convictions. were void. Cf. Wilson v. Commonwealth, Ky., 403 S.W.2d 710.) After a full hearing, the circuit court entered an order overruling the motion. Copeland has appealed from that order.

The 1927 sentence was for one year; the 1938 one was for two years. Both were imposed upon guilty pleas. Both, of course, had been served out long before the 1946 conviction. The records of the 1927 and 1938 trials are completely silent as to whether Copeland had counsel; he testified at the hearing on the instant motion that he did not have counsel. For the reasons hereinafter stated we do not find it necessary to consider the question of whether the presumption of regularity particularly applicable to proceedings of many years ago would warrant a finding, such as the circuit court made here, that Copeland did have counsel.

In Gayes v. State of New York, 332 U.S. 145, 67 S.Ct. 1711, 91 L.Ed. 1962 (1947), there was a factual situation similar to the one here involved. A prisoner sought relief from an habitual criminal conviction of 1941 on the ground that a prior conviction of 1938 (which made him subject to the habitual criminal law) was void because he was denied counsel. The Supreme Court held that the denial by the state court of the requested relief was proper because it appeared that the accused, although having a full opportunity on his 1941 trial to raise the question of the invalidity of the 1938 conviction, had not done so.

Copeland, at his 1946 trial, was represented by employed counsel. In 1942, four years previous to that trial, this Court, in Smith v. Buchanan, 291 Ky. 44, 163 S.W.2d 5, 145 A.L.R. 813, had held that coram nobis was available as a remedy to set aside a criminal judgment on the ground of lack of counsel. Thus, at the time of Copeland’s 1946 trial a remedy was available by which Copeland could have obtained relief from the claimed previous denial of the right to counsel guaranteed him by the Kentucky Constitution. His counsel at the 1946 trial was chargeable with knowledge of the existence of that remedy — one which Kentucky itself provided. It. is of no significance that the federal remedy did not arise until 1963 with Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

Copeland says that he did not know he had a remedy until Gideon achieved prominence. However, nothing but chaos could result if the courts were to hold that a person is not bound by his lawyer’s decisions on matters affecting his legal rights unless the person himself fully knew and comprehended those rights.

It is our conclusion that the claimed invalidity of the 1927 and 1938 convictions could and should have been raised at the 1946 trial, and that the 1946 conviction cannot now be attacked on that ground.

The order is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    Lucille ARNOLD et al., Appellants, v. The JAMES B. HAGGIN MEMORIAL HOSPITAL, Appellee.
    Court of Appeals of Kentucky.
    June 2, 1967.
    James F. Clay, Danville, I. C. James, Harrodsburg, for appellants.
    W. Earl Dean, W. Earl Dean, Jr., Dean & Dean, Harrodsburg, for appellee.
   WADDILL, Commissioner.

In this action instituted by Lucille Arnold and her husband seeking damages against The James B. Haggin Memorial Hospital the only question presented on this appeal is whether the trial court erred in directing a verdict in favor of the hospital. In essence the alleged negligence is the failure of the hospital’s employees to properly protect Mrs. Arnold from injury. The parties stipulated that The James B. Haggin Memorial Hospital is privately owned.

On December 11, 1964, appellant, Mrs. Lucille Arnold, age 41, entered the hospital operated by appellee. A hysterectomy was performed by Dr. Ralph Ballard. During the following two days she was given the normal medication, including drugs to relieve pain. Mrs. Arnold’s physician left instructions at the hospital that she be exercised on December 12th. When two nurses attempted to walk Mrs. Arnold she became violently ill and was immediately returned to her bed.

On December 13th, after Dr. Ballard had examined Mrs. Arnold, he again prescribed exercise for her which, he testified, was the usual and necessary treatment. Later that day when two nurses undertook to exercise Mrs. Arnold she protested and stated she was sick and unable to walk. At the trial she described the events leading to her alleged injury thusly:

“ * * * I was laying in my bed and Mrs. Lester and Mrs. Royalty came in and told me, said, ‘Mrs. Arnold, you haven’t been walked today,’ and said, ‘We have got to get you up.’ I was really sick and I told them, I said, ‘I don’t believe I can walk, I’m so sick.’ Mrs. Lester walked around to the foot of the bed and stood there. Mrs. Royalty took me by my left arm and give it a jerk and she said, ‘Get on up from there— doctor’s orders, and you have got to do it.’ They took me up and took me a few steps out in the hall and Mrs. Lester said, ‘Lucille, you’re getting sick, aren’t you?’ I said, ‘Noreen, I’m really sick,’ and about that time I just completely collapsed and I hit the floor and when I did, I felt this sharp pain in my back and I have lived with this pain ever since.”

Mrs. Arnold further testified that while she was being exercised there was a nurse on each side of her who had an arm around her. She stated that at the time she fell “ * * * my arms came up this way and they were holding on. * * *. I hit the floor awful hard for two people to be holding on to me.”

Dr. Charles Wilson, a neurosurgeon, was of the opinion that, if Mrs. Arnold fell in the hospital, it was a reasonable medical certainty that the fall was the cause of the ruptured disc she now has.

Upon a motion for a directed verdict a party opposing the motion is entitled to the most favorable inferences that can be drawn from the evidence. When the evidence substantially tends to support the cause of action a verdict should not be directed against him. Current v. Columbia Gas of Kentucky, Ky., 383 S.W.2d 139.

Applying this rule in the instant case we believe that the evidence, when properly evaluated, presents an issue of whether the employees of the hospital who were assigned to walk Mrs. Arnold and to properly protect her from injury (such as by falling) were negligent in the performance of their duties. Lexington Hospital, Inc. v. White, Ky., 245 S.W.2d 927; Hicks’ Adm’x v. Harlan Hospital, 231 Ky. 60, 21 S.W.2d 125. The fact that Mrs. Arnold was being exercised in accordance with her physician’s orders does not excuse the employees of the hospital from their duty to use proper care for her safety.

The appellee hospital recovered $1656.55 upon its counterclaim for services rendered Mrs. Arnold while she was a patient there. This portion of the judgment is not in issue. Other questions not specifically adjudicated herein are reserved.

The judgment on the counterclaim is affirmed; the judgment insofar as it dismisses appellants’ claim for damages against the appellee is reversed, with directions to set it aside and to grant appellants a new trial.

All concur.


author: EDWARD P. HILL, Judge.

text:
    Earl GOODHUE and Bobby Miller, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 2, 1967.

      Glay E. Maggard, Munfordville, for appellants.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   EDWARD P. HILL, Judge.

Appellants were convicted of aiding and abetting one Henry Jewell in the commission of the crime of uttering a forged check for over $20, defined and penalized by KRS 434.130.

It is argued on appeal on behalf of Goodhue that there was not sufficient evidence, other than that of an accomplice, to convict him and that the court erred in refusing to instruct the jury to find him not guilty. RCr 9.62 is relied upon.

Miller insists he was “20 miles” from the scene of the crime; that the essential elements of the crime of aiding and abetting another in the commission of the crime not having been established, he was entitled to a directed verdict of acquittal.

The indictment charged the defendants, Earl Goodhue, Bobby Miller, and Henry Jewell, with forging a check for $27.50 dated September 7, 1965, drawn on the account of Junior Vance; and in count two it charged them with uttering said forged check. The case was tried only as to Good-hue and Miller. Jewell testified for the Commonwealth. Admittedly, Jewell was an accomplice.

During a period of about three weeks, “ten or fifteen” checks were issued bearing the forged signature of Junior Vance. A number of these checks were introduced in evidence. Jewell testified he and appellants collaborated in forging and uttering these checks; that he endorsed his name on the back of the checks and either Goodhue or Miller filled in and forged the name of the drawer on each of them because he, Jewell, could write his name only. Jewell worked for Vance as a farmhand, and the checks showed they were in payment of his work.

We examine the evidence to determine whether there was sufficient evidence, other than that of the accomplice Jewell, to convict Goodhue.

Mrs. Ralph Atwell testified she cashed the check for Jewell and that no one was with him at the time.

Goodhue testified he had been “riding around” with Jewell, Miller, and Ed Horton, but he denied any participation in the crime. There was no other evidence “tending to connect” Goodhue with the crime. It is concluded the trial court erred in overruling Goodhue’s motion for a directed verdict of acquittal. Cf. Hartsock v. Commonwealth, Ky., 382 S.W.2d 861.

Miller would be in the same posture as Goodhue but for his outburst at the examining trial when Jewell was testifying. According to the evidence of the county judge who conducted the examining trial, Miller volunteered the statement in open court that he “wrote” or forged seven of the series of checks. This amounted to sufficient corroboration of the evidence of the accomplice to support the verdict as to Miller. Miller v. Commonwealth, 301 Ky. 66, 190 S.W.2d 864 and Jones v. Commonwealth, 303 Ky. 666, 198 S.W.2d 969.

Goodhue may have been equally guilty with Miller, and it may be said that equal justice has not been rendered in this case. But criminal rules must be invoked uniformly. Running through all criminal proceedings is the inviolate presumption of innocence which requires the Commonwealth to establish by competent evidence beyond a reasonable doubt the essential elements of the crime charged. This court, being limited to a review of the competent evidence offered, will not indulge in speculation or give more weight to the evidence of an accomplice than RCr 9.62 envisions.

The judgment is affirmed as to Miller and reversed as to Goodhue with directions to grant him a new trial.

All concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Josie OLIVER et al., Appellees.
    Court of Appeals of Kentucky.
    June 2, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Sp. Asst. Atty. Gen., Dept, of Highways, Frankfort, Carl T. Miller, Jr., Jackson, for appellant.
    Ralph N. Walter, Nickell & Walter, West Liberty, E. E. Bach, Campton, for appel-lees.
   CLAY, Commissioner.

In this condemnation case the Commonwealth acquired approximately 11 acres for the construction of the Mountain Parkway through appellees’ 115-acre farm in Wolfe County. We set aside an award on a former appeal on the ground that the testimony of the landowners’ witnesses did not have sufficient probative value to support it. Commonwealth, Dept. of Highways v. Oliver, Ky., 385 S.W.2d 173. The present award was $11,000.

On the new trial the landowners used another expert witness who had not before testified. His qualifications were not questioned and his testimony indicates a thorough understanding of property values in Wolfe County. The Commonwealth contends the verdict is excessive because this witness’ testimony lacked probative value. He was of the opinion the farm originally had a market value of $23,000 and that the 11 acres taken reduced its value one-half. This was principally on the ground that the property condemned included a substantial portion of the tillable land and severed such land as remained. The Commonwealth argues that the before and after values given by this witness were patently extravagant and not justified by his reference to comparable sales.

As we have before mentioned, this witness was well qualified. He testified that he made reasonable adjustments in comparing sales of smaller tracts of land. His opinions were supported by the factors he took into consideration. We cannot say they lacked probative value. The jury viewed the premises. It was within their province to pass upon the credibility of the estimates given by the landowners’ expert. While the award was liberal, we find no legal basis upon which it properly could be set aside.

The judgment is affirmed.

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

MONTGOMERY, J., dissents.


author: PALMORE, Judge.

text:
    Betty HOSCH, Administratrix of the Estate of Ronald N. Hosch, Deceased, Appellant, v. Eugene Edward HELTON, Appellee.
    Court of Appeals of Kentucky.
    June 9, 1967.
    Robert L. Milby, Hamm, Taylor & Milby, London, for appellant.
    Roy E. Tooms, Jr., Brown, Tooms & Helton, London, for appellee.
   PALMORE, Judge.

Ronald Hosch was killed when he drove his automobile into the rear end of a coal truck operated by Eugene Helton. His ad-ministratrix brought this action against Helton for wrongful death. Helton counterclaimed for personal injuries and property damage. A jury found specifically that both drivers were negligent, and judgment was entered dismissing both claims. The plaintiff appeals.

The accident happened on U. S. Highway 25 in Laurel County about a mile and a half north of Corbin. It was after dark, and the weather was dry and clear. At the scene of the accident U. S. 25 runs north and south and is practically straight and level. The pavement is three lanes (36 feet) wide, the east lane being for northbound and the middle and west lanes for southbound traffic. Proceeding north to south, the highway widens from two lanes to three lanes at a point 1250 feet north of the immediate place of the collision, and there are official signs giving notice of a “truck lane” and admonishing slow traffic to keep to the right.

Both vehicles were in the middle lane headed south. Helton was on his way home and was about to turn left into a side road. He was following another coal truck driven by his employe, Middleton. Middleton stopped in the middle lane of the highway in order to let four or five northbound vehicles go by, and then turned into the side road. Helton stopped immediately behind Middleton, but before he could put his truck back into motion as the Middleton truck turned off the highway he was struck from the rear by Hosch.

The main factual issue in the case was whether Helton’s truck was properly lighted. Cf. KRS 189.050. Appellant contends the trial court erred in (1) refusing to instruct the jury that Helton was negligent as a matter of law for failure to have his truck equipped with lights that met the statutory requirements, (2) permitting evidence that his lights were burning at various intervals before the accident, and (3) refusing to instruct the jury that it was Helton’s duty not to stop his truck on the main traveled portion of the highway.

The answer to points (1) and (3) is that since the jury found Helton negligent anyway, any and all deficiencies in the in-structions relating to his duties, including a refusal to hold him negligent as a matter of law, proved non-prejudicial to his adversary. Foley’s Adm’r v. Witt, 294 Ky. 498, 172 S.W.2d 81, 84 (1943); V.T.C. Lines, Inc. v. Chappell’s Dairy, Inc., Ky., 298 S.W.2d 683 (1957); Southeastern Greyhound Lines, etc. v. Grimes, Ky., 385 S.W.2d 189, 191 (1964).

The same principle applies with respect to point (2). The only negligence of which Helton could have been found guilty under the instructions given was a failure to have the proper lights on his truck. Necessarily, the jury found he did not have them. Hence the evidence tending to show the contrary proved to be ineffectual. Surely, the jurors did not find Helton negligent in not having the lights and at the same time find Hosch contributorily negligent on the theory that Helton did have them.

The judgment is affirmed.

All concur.


text:
    KENTUCKY WEST VIRGINIA GAS COMPANY, Appellant, v. Ray SPURLOCK et al., Appellees.
    Court of Appeals of Kentucky.
    June 9, 1967.

      William J. Baird, Baird & Hays, Pike-ville, for appellant.
    Scott Collins, Prestonsburg, for appellee Ray Spurlock.
    Robert Matthews, Atty. Gen., Paul D. Rehm, Dept, of Labor, Frankfort, for Special Fund.
   WADDILL, Commissioner.

This is an appeal from a judgment setting aside an order of the Workmen’s Compensation Board and directing it to reconsider the disability claim of appellee Ray Spurlock against his employer, appellant Kentucky West Virginia Gas Company. The board had dismissed the claim because it was not timely filed.

The question presented by this appeal is whether the continued payment of wages by an employer, under an employment contract while an employee is disabled, is in lieu of compensation and will therefore toll the limitation imposed by KRS 342.270 (1). This subsection of the Workmen’s Compensation Act provides in pertinent part:

“ * * *. Such application must be filed within one year after the accident, or * * * within one year after the cessation of voluntary payments, if any have been made.”

On May 8, 1962, while in the company’s employ, Spurlock received a work-connected injury. A few days later the company so notified its insurance carrier. According to the testimony of the carrier’s claims manager he issued a check on August 20, 1962, to compensate Spurlock for his temporary total disability and three checks to those who furnished him medical services as recently as May 24, 1963. Apparently the check for disability payment was delivered to and cashed by Spurlock’s employer pursuant to their employment contract. Nothing was filed with the board until April 9, 1964, when Spurlock made an application for permanent total disability.

Spurlock testified that after his injury the company continued to pay him his usual wages as required by his employment contract until May 3, 1963. He denied receiving a compensation check from the insurance carrier and stated it was customary for such compensation to be received by the employer so long as it continued to pay an injured employee his regular wages. The parties agree that insofar as pertinent the employment contract provides:

“ * * *. In the event that an employee suffers an occupational injury, then he is to be paid by the Company for a period of up to one year the difference between his regular salary or wages based upon a forty (40) hour work week and the amount received as Workmen’s Compensation. * * * ”

It is the contention of the appellant company that the payment by its insurance carrier on August 20, 1962, was the only voluntary payment of compensation within the meaning of KRS 342.270(1) and that Spurlock’s application was filed more than one year after this date. As pointed out by the company it is well settled that payments of medical bills are not “voluntary payments” under this statute. Miles v. General Electric Co., Ky., 280 S.W.2d 529.

The recent case of Louisville Safety Council, Inc. v. Hack, Ky., 414 S.W.2d 877 (decided November 18, 1966) involved a situation similar to the instant one. An employer told his injured employee to immediately notify its insurance carrier of his work-connected injury. He did this and the insurance company defrayed his various medical expenses over a four-year period. During this time the employer continued to pay him his full salary although the employee could only work on a part-time basis. After the employee’s doctors informed him that he had a partial, permanent disability, he sought to make a final settlement with the insurance carrier. He was then informed the statute of limitations precluded his receiving further benefits. The employer and employee regarded the salary payments as pro tanto payments of compensation under the Act. This, we held, satisfied the “voluntary payments” provision of the statute so as to toll limitations as a matter of law.

Appellant contends the instant case is distinguishable because the employer and employee did not agree the wages were in lieu of compensation benefits. However, it is apparent that the appellant company paid Spurlock under the provisions of their employment contract. By its express terms a portion of the disabled employee’s wages represented benefits of workmen’s compensation. This circumstance justified Spurlock’s belief that the payments were in lieu of compensation under the Act. KRS, Chapter 342.

The company relies on Buchanan v. Buchanan Coal Co., Ky., 310 S.W.2d 534, and other cases that are distinguishable from the instant one. In Buchanan the employee considered payments from the employer as a loan and the employer stated they were “for living purposes.” Hence, they were correctly held not to toll the limitation statute.

Voluntary payments which will toll the limitation statute (KRS 342.270 (1)) are those which either the employer intended or the employee had grounds to reasonably believe were in lieu of workmen’s compensation benefits. Larson, 2 Workmen’s Compensation Law, Section 78.43(c). We conclude that Spurlock reasonably believed a portion of his wages were in lieu of compensation benefits.

The judgment is affirmed.

All concur.


author: MILLIKEN, Judge.

text:
    George I. GATES et al., Appellants, v. Edward B. STRUBE et al., Appellees.
    Court of Appeals of Kentucky.
    June 9, 1967.
    Ewing L. Hardy, Jr., Thomas E. Gates, Louisville, for appellants.
    Stuart A. Handmaker, Kenneth S. Hand-maker, Louisville, for appellees.
   MILLIKEN, Judge.

Heavily traveled Bardstown Road slants across the end of Windsor Place, one of the two entrances to Louisville’s Windsor Place Subdivision, creating odd shaped corner lots, No. 1 and No. 26, at the intersection. The Subdivision’s forty-five other lots are oblongs fronting on Windsor Place. The appellees are the owners of corner lot No. 26 and its adjoining lot, No. 27 on which their home is located. Bardstown Road has been zoned, Commercial, since 1935 to a depth of three lots into the Windsor Place Subdivision, and the elderly ap-pellees seek to free their side yard, corner lot No. 26, from subdivision restrictions imposed a half century ago, which limit its use to residential purposes. The question on this appeal is whether the trial court was justified in rejecting the protests of appellants, representative owners in the Subdivision, and granting the appellees the relief they prayed.

Unimproved corner lot No. 26 fronts 63.12 feet on Windsor Place and runs along Bardstown Road 150.41 feet to an alley. Windsor Place Subdivision was started in 1910. Lot No. 27 and 10 feet of lot No. 26 were conveyed to R. L. Woodard in 1913, and the balance of lot No. 26 was conveyed to him in 1915. The restrictions contained in these deeds are numerous and lengthy, hence we will not incorporate them in the opinion and reference will only be made to the pertinent parts thereof. Both deeds recite the property conveyed “shall be used only for the erection of a single residence and no residence shall be erected thereon that shall cost less than $5,000.” Following this in both deeds appear these restrictions: limiting the materials out of which the exteriors and roofs may be constructed; providing all outbuildings must be under one roof and cannot be erected until the residence is begun; limiting the height and location of fences; limiting the grade of the lots to the present grade above Windsor Place. Such restrictions were included in all forty-seven of the lots in the Subdivision but two, while the deed to lot No. 27 (upon which is located the appellees’ home) and the deeds to thirty-one other of these lots contained a covenant that the grantor “will restrict all its other lots in said subdivision, fronting on Windsor Place, for residence purposes only.” However, the covenant just quoted was omitted from the deed conveying the balance of lot No. 26. The deed to lot No. 26 (which is located on the corner) recites that after a residence is built facing Windsor Place in conformity with the above restrictions, the owner may then erect an apartment house “on the rear of said lot and on the 40 feet of same laying along the alley” (evidently meaning it was to face on Bardstown Road), the lower floor of which may contain offices or storerooms. It appears from the record that this privilege has not been exercised and that lot No. 26 is entirely vacant.

In a written opinion the trial court discussed the evidence supporting its findings of fact and concluded that the restrictions on the use of lot No. 26 should be removed except that no structure erected on the lot should be within 35 feet of the property line facing Windsor Place or within 3 feet of either of the sidelines of the lot, and entered judgment accordingly. The judgment thus largely preserved the appearance of the entrance to Windsor Place, yet freed the rest of the lot which faced Bardstown Road from restrictions on its use.

The trial court noted in its opinion that all deeds to lots in the Subdivision which carried the restrictions and the negative covenant were executed between 1919 and mid-1916, and those deeds from the developer and subsequent to mid-1916 carried neither any building restrictions nor any negative covenant. The trial court did not determine whether the developer had a general building plan for the Subdivision originally or whether the developer had abandoned it if it did have one, but based its conclusion on the fact that some of the property was not rental property, some of the owners or tenants took in roomers, and for a number of years various businesses have been shown by the Caron City Directory to have had mailing addresses or offices in residences on Windsor Place. The trial court was also impressed by the fact that the developer early recognized that the corner lots had characteristics somewhat different from the other lots in the Subdivision and that the City had for thirty years recognized the commercial trend along Bardstown Road by zoning the area accordingly. For years a doctor’s office had been located across Windsor Place on corner lot No. 1. For whatever reason, no residence ever was built on lot No. 26 although it was available for that purpose. The shape of the lot and the burgeoning traffic and commercial development along Bardstown Road are probably the reasons.

We agree with the chancellor that change has come to Windsor Place, but are more impressed by the failure of some of the deeds to contain the restrictions and covenant. The uniformity of construction in the Subdivision consequently appears to stem more from aesthetic considerations than from compulsion. In the modern view, building restrictions are regarded more as a protection to the property owner and the public rather than as a restriction on the use of property, Brandon v. Price, Ky., 314 S.W.2d 521 (1958), and, when viewed in that light, it is difficult for us to see how the judgment in this case could better meet the situation presented here. It permits lot No. 26 to be used as it was originally intended to be used, yet requires any commercial construction on it to be set back 35 feet from Windsor Place as are the residences along it.

We also conclude that our 1940 opinion in Meyer v. Stein, 284 Ky. 497, 145 S.W.2d 105, where we refused to permit a funeral home to be operated from the residence on lot No. 27 and the adjoining 10 feet of lot No. 26 is not controlling in the factual situation now presented. In that litigation lot No. 26 was only tangentially involved. Robbins v. Cornell, Ky., 311 S.W.2d 543 (1958), is distinguishable on the facts.

The judgment is affirmed.

All concur.


text:
    Wayne PEEK, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Wayne McDOWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Robert LAWLESS and Junior Dickerson, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 26, 1967.

      J. William Howerton, R. L. Myre, Sr., Robert Reed, Donald S. Muir, Paducah, for appellants.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   EDWARD P. HILL, Judge.

Appellants were convicted of the crime of storehouse breaking under KRS 433.190. They were each sentenced to one year in prison. Appellants Robert Lawless and Junior Dickerson prosecute a joint appeal and file a joint brief. Appellants Wayne Peek and Wayne McDowell file separate appeals and separate briefs. Different attorneys represent appellants on the separate appeals noted above.

Appellant Lawless signed a written confession before trial and introduced it as a part of his evidence. He also admitted the crime on the witness stand and inculpated the other three codefendants.

Appellant Dickerson signed a written confession before trial. He did not testify on the trial, but his attorney filed on behalf of his client Dickerson the latter’s written confession.

Appellant McDowell made a verbal confession that he went with Dickerson to sell the saddle. He also gave a written confession conforming to his verbal admission, but it was not introduced in evidence. His verbal admission was established by the testimony of the sheriff.

Appellant Peek made no confession and did not testify at the trial.

The first question raised, common to all three appeals, relates to the ruling of the trial court denying motion for separate trials authorized by RCr 9.16. The motions were not made in writing as required by RCr 8.14, but they were apparently made at the commencement of the trial and before the jury was sworn. So the motions for separate trials were apparently sufficient. This record does not contain the grounds on which the motions relied, nor does it contain any evidence of a hearing thereon.

The trial court must rule on motion for separate trials before trial. It it apparent that the party moving for a separate trial has the burden of showing facts justifying the relief he seeks. In the absence of a showing, we must presume the party making the motion for separate trial failed to meet the burden and that the trial court did not abuse its discretion in overruling the motion for separate trials. Smith v. Commonwealth, Ky., 375 S.W.2d 819.

The next argument relied on by all appellants relates to the introduction of evidence of “out of court” confession. Appellant Lawless, as heretofore noted, admitted the crime on the witness stand. He will not be heard to complain now to the introduction of evidence pertaining to confessions. Appellant Dickerson is in the same posture by reason of his own act in introducing his own written confession.

This leaves only McDowell’s confession to be examined to determine whether it was voluntarily given. McDowell made his written confession in the presence of the county attorney and others after being in jail for one week. The sheriff testified McDowell made the confession that he went with Dickerson the morning after the crime was committed to try to sell the saddle to Collins. The sheriff also said McDowell consented to sign the confession only after his bondsman insisted upon McDowell telling the truth before he (the bondsman) would sign the bond. The State is not, and should not be, charged with any undue influence, pressure, sweating, or inducement exercised by a private citizen,acting on his own, not in concert with the officers of the State.

It is concluded McDowell’s confession was not involuntarily given.

Appellant Peek questions the evidence pertaining to the confessions of the other three appellants, but it appears abundant admonitions were given by the trial judge not to consider any of the confessions against Peek.

Peek’s argument that he was entitled to a directed verdict of acquittal presents a difficult question. The answer to this question requires close scrutiny of the evidence. In resolving this question, we must disregard all the evidence relative to the three confessions, although the confessions indicate Peek was the “brains” of the infraction charged. There is evidence by disinterested witnesses that Peek and his companion, McDowell, met the other two appellants at a tavern late at night and left together a short time before the commission of the crime; that he “pushed” or helped get the automobile of Lawless and Dickerson started; that he and McDowell went bright and early the morning after the crime to rendezvous with Lawless and Dickerson; Dickerson and Peek’s companion, McDowell, took a saddle, identified as one of the stolen items, in Peek’s automobile and tried to sell it to Collins. Failing in this attempt to liquidate the fruits of the crime, they hid the saddle in a building in Peek’s home community, where he was familiar with the countryside.

We conclude this circumstantial evidence is sufficient corroboration of the evidence of his accomplices to support the conviction of Peek. See Hartsock v. Commonwealth, Ky., 382 S.W.2d 861 (1964); Hart v. Commonwealth, Ky., 389 S.W.2d 939 (1965); Hammershoy v. Commonwealth, Ky., 408 S.W.2d 624 (1966); and Perkins v. Commonwealth, Ky., 409 S.W.2d 294 (1966).

All four appellants complain of the instructions. No instruction was given relative to the evidence of the accomplices. But, as noted above, proper and ample admonitions were given when such evidence was given. In any event, Lawless and Dickerson are in no position to complain, having introduced their own confessions. If McDowell’s confession was made knowingly and voluntarily, and we conclude from the evidence it was so made, he was not entitled to an instruction on the weight to be given the evidence of his accomplices. It is not error to refuse an accomplice instruction if there is adequate evidence to convict without the testimony of the accomplice. Combs v. Commonwealth, Ky., 341 S.W.2d 774 (1961); Dunn v. Commonwealth, Ky., 350 S.W.2d 709 (1961); Cox v. Commonwealth, Ky., 356 S.W.2d 766 (1962); and Schweinefuss v. Commonwealth, Ky., 395 S.W.2d 370 (1965).

Upon the same principle, insofar as Peek is concerned the trial court’s failure to give an accomplice instruction was not error, because there was sufficient evidence to support the verdict even without the evidence of the accomplices.

The sufficiency of the indictment is questioned. It cites KRS 430.190 which is not the correct number of the statute on storehouse breaking. The correct number of the statute is KRS 433.190. However, the indictment correctly described the crime as “storehouse breaking,” which was sufficient. RCr 6.10; Fitzgerald v. Commonwealth, Ky., 403 S.W.2d 21 (1966). Furthermore, no motion was made for a bill of particulars. RCr 6.22.

Appellants Lawless and Dickerson attack their confessions as having been made involuntarily and without the assistance of counsel. The introduction of their confessions on the trial when they had the assistance of counsel constituted a complete waiver of this question.

The judgment is affirmed.

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

OSBORNE, L, not sitting.


author: CLAY Commissioner.

text:
    BETH-ELKHORN CORPORATION et al., Appellants, v. Chester McFALL et al., Appellees.
    Court of Appeals of Kentucky.
    June 9, 1967.
    Harry C. Campbell, Pikeville, for appellants.
    Thurman L. Hibbits, Pikeville, for appel-lee Chester McFall.
   CLAY Commissioner.

This is an appeal from a judgment confirming an order of the Workmen’s Compensation Board which required appellant employer to reimburse the appellee employee for medical expenses he allegedly incurred.

The employee had prosecuted a claim for workmen’s compensation against appellant and the Subsequent Claim Fund. On June 1, 1964, the Board entered an order reciting that the employee recover compensation of the defendant Subsequent Claim Fund, and also recover of “said defendant” medical, surgical and hospital expenses. (This latter part of the order was doubtless erroneous.) The order ends with the following recital:

“That plaintiff’s application for adjustment of his claim for compensation be, and it is hereby dismissed and denied as against the defendant Bethlehem Mines Corporation.”

About nine months later the employee filed a motion with the Board for an order requiring the employer to reimburse him for medical expenses. This motion was sustained and an award was given against the employer for these expenses. On appeal the circuit judge confirmed the latter order of the Board.

The employer takes the position that the Board had no authority to enter this order, and we agree. The claim against the employer had been dismissed by the final order of June 1, 1964. No award of any kind was granted against it. If this order was erroneous, and it probably was, it could have been corrected on appeal. No appeal was taken. The matter became res judi-cata as far as the employer was concerned. See Hysteam Coal Corporation v. Ingram, 283 Ky. 411, 141 S.W.2d 570. To this extent the Board had lost jurisdiction of the claim.

If there existed some remedy to set aside the order of June 1, 1964, it was not pursued. If the employee’s motion for reimbursement of medical expenses be considered as a motion to reopen under KRS 342.125, there was nothing to reopen. Insofar as the employee and the employer were concerned, there was nothing pending before the Board upon which it could act. The order of dismissal was final and effective. Under such circumstances we have held that the Board lacked jurisdiction to reopen. Princess Elkhorn Coal Company v. Ousley, Ky., 356 S.W.2d 37. See also Edgemont Fuel Co. v. Patton, 256 Ky. 538, 76 S.W.2d 284.

It was error for the circuit court to confirm this award.

The judgment is reversed.

All concur.


text:
    Gerald WILBORN, Appellant, v. Glen SNEED and Millard Sneed, Appellees. William Glen SNEED and Millard Sneed, Appellants, v. William Mitchell KINGERY and Gerald Wilborn, Appellees. Gerald WILBORN, Cross-Appellant, v. William Glen SNEED and Millard Sneed, Cross-Appellees.
    Court of Appeals of Kentucky.
    June 2, 1967.

      Richardson, Barrickman & Dickinson, Glasgow, for appellant Wilborn.
    Redford & Redford, Glasgow, for Glen and Millard Sneed.
    Nunn & Travis, Glasgow, for William Mitchell Kingery.
   PALMORE, Judge.

The appellee Kingery was injured when a truck owned and operated by Gerald Wilborn, in which Kingery was a passenger, struck an embankment by the side of the road and turned over. Kingery brought this suit for damages against Wilborn and against Glen Sneed and Millard Sneed, the driver and owner, respectively, of a coal truck which was obstructing the road in front of the Wilborn vehicle. Wilborn and the Sneeds asserted cross-claims against each other for contribution. Kingery settled with Wilborn before trial for $8,000, reserving his rights against the Sneeds. The trial resulted in a verdict and judgment for Kingery against the Sneeds in the amount of $22,000 and for the Sneeds against Wilborn in the amount of $11,000, each of these awards being subject to a credit of $8,000 representing the amount theretofore paid by Wilborn and received by Kingery under their settlement.

Everyone but Kingery appeals, and among the interesting and well-briefed questions is whether the trial court erred in holding Wilborn in the lawsuit and exposing him to further liability on the Sneeds’ cross-claim for contribution after he had settled with Kingery. However, our opinion in the recent case of Commonwealth, Dept, of Highways v. Graham, Ky., 410 S.W.2d 619 (rehearing denied February 10, 1967), obviates discussion of all but whether the Sneeds were entitled to a directed verdict on the ground that their negligence, if it be conceded, was not a proximate cause of the accident.

In the cited case the driver of a tractor-trailer unit for the Department of Highways negligently blocked a highway at a point 435 feet from the crest of a hill. A loaded milk truck owned by the plaintiff came over the hill and its brakes failed suddenly and unexpectedly. To avoid striking the Highway Department vehicle the driver of the milk truck turned left into a side street and the milk truck turned over. In a proceeding brought by the owner of the milk truck against the Highway Department before the Board of Claims the board found that the driver of the Highway Department unit was negligent and the driver of the milk truck was not contributorily negligent, but that the proximate cause of the accident was the unexpected failure of the brakes on the milk truck, and not the negligent act of the Highway Department’s driver in obstructing the highway. A judgment of the circuit court reversing the board’s dismissal of the claim on that ground was reversed by this court. The substantive import of our decision was that as a matter of law the brake failure was the proximate cause and the negligence of the Highway Department’s driver was not a proximate cause. Commonwealth, Dept. of Highways v. Graham, Ky., 410 S.W.2d 619 (1967).

The factual differences between this and the Highway Department case are superficial. Here the defendant Glen Sneed backed a 2-ton truck loaded with seven tons of coal out of a private driveway onto a blacktop road 18 feet in width, at a point 440 feet from the crest of a hill. Before he could turn the truck and get it in his intended lane of travel, and while it was in a position blocking both traffic lanes, Wilborn came over the crest of the hill 440 feet away at a speed of 25 to 30 m. p. h. Wilborn was driving a pickup truck loaded with a 300-gallon tank of whey. We continue with Wilborn’s testimony:

A — “Well, when I came over the hill, I seen this truck in the road, and I pushed on the brake, and the pedal went to the floor and hung, so I seen I was going to hit the truck, and I cut the truck across the road a little bit and throwed it up in second and I seen it wasn’t going to stop, so I cut towards the bank, aimed to kindly ease — get in towards the bank a little, and it hit head-on and turned over.”
* * * * * *
Q — “Now, did you ever attempt to grab your emergency brake?”
A — “No.”
Q — “Never did?”
A — “No.”
Q — “Did you have an emergency brake?”
A — “I don’t think I had any emergency brake.”

Kingery, Wilborn’s passenger, had just completed some work on the Wilborn vehicle which had required removing and replacing one of the front wheels. It had been driven about 4½ miles without incident since completion of the job. The failurt of its brakes was sudden, complete and unexpected. The jury’s verdict was to the effect that the accident resulted from the concurring negligence of Wilborn and Glen Sneed.

The grade of the hill from the crest to the point of obstruction progressed from 5% to 8%. The accident happened in the daytime on July 24, 1963, and although it had rained some two hours earlier there was no substantial evidence that the road surface was not dry. In a pre-trial deposition Wilborn said he could have stopped if his brakes had held. At the trial he equivocated, saying, “Well, since I have seen the distance, I can’t tell for sure.” A state trooper testified that on a level blacktop surface a vehicle traveling at 25 m. p. h. should be able to stop within 50 feet, subject, of course, to its size and weight, the size and condition of its tires, and other variable factors bearing on the coefficient of friction.

It is negligent per se to turn a vehicle around on a highway near the crest of a grade “unless it can be seen from a distance of five hundred feet by the driver of any other vehicle approaching from either direction.” KRS 189.400. There was evidence in this case that the Sneed truck was 11 feet high, and upon that hypothesis an engineer testifying for Kingery calculated under cross-examination that the driver of an approaching vehicle, from an eye level 4½ feet above the road surface, could have seen the Sneed truck at a distance of 584 feet. But even if that distance had been 499 feet, or 440 feet, it seems indisputable, as in Commonwealth, Dept. of Highways v. Graham, Ky., 410 S.W.2d 619, 620 (1967), that the driver of the oncoming truck “could have avoided the accident had his brakes been functioning properly.” The statute, KRS 189.400, contemplates normal conditions, and when a collision results from a supervening, abnormal circumstance, violation of the statute is not a proximate cause. Cf. Swope v. Fallen, Ky., 413 S.W.2d 82, 85 (1967).

Wilborn having settled and the Sneeds being nonliable as a matter of law, no cause of action is left.

The judgment is reversed with directions that all claims be dismissed.

All concur.