author: MILLIKEN, Judge.

text:
    Jacqueline Miles Hurst BRENGLE, Appellant, v. Clifford L. HURST, Appellee.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    Rehearing Denied Dec. 16, 1966.

      W. David Klingman, Louisville, for appellant.
    G. Phillip Deeb, Sr., Louisville, for ap-pellee.
   MILLIKEN, Judge.

The custody of two little girls under ten years of age and the Full Faith and Credit Clause of the Federal Constitution are involved here.

The parents of the little girls are the parties to this appeal. The children’s mother was awarded their custody when she obtained a divorce from their father in Indiana in 1961, and she and the children have been residents of Kentucky practically ever since. In March of this year (1966) their father obtained a transfer of their legal custody to him through the Indiana court where their mother had divorced him and, in order to obtain actual possession of his little daughters, he filed this habeas corpus action in Kentucky seeking enforcement of the Indiana judgment transferring their custody to him. The Indiana judgment transferring custody was given upon notice to the mother, but without service upon her or personal jurisdiction over her, and we do not know the reasons which prompted the transfer of custody. Apparently assuming that the Full Faith and Credit Clause of the Federal Constitution (Article IV, Sec. 1) required enforcement of the Indiana judgment transferring custody, the Kentucky chancellor, without a hearing on the merits, gave judgment for the father but stayed its enforcement pending the ruling of this Court on the mother’s appeal.

The Indiana transfer of custody decree was based, of course, on the theory that custody may be changed as the welfare of children may suggest, and that Indiana retained enough of the habiliments of jurisdiction over the status of the children, whose custody it originally had awarded to the mother, to justify its transfer of that custody to the father regardless of the present nonresidence in Indiana of both the children and the mother. Since the Indiana court necessarily treated its original award of custody as changeable when it subsequently transferred the custody of the children from the mother to the father, it follows that Indiana does not view its own custody decrees as res judicata in the sense that they permanently settle the matter.

The welfare of the children is the paramount interest to be protected and the controlling consideration in all controversies between parents over the custody of their minor children, and it has been held that a court in one state can modify a custody decree made in another state. New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). In Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (Dec. 1962), the Supreme Court unanimously decided that a Virginia judgment refusing to grant custody of minor children to a father, in compliance with a written agreement of the parents, was not res judicata in Virginia and did not bar South Carolina from later granting full custody to the mother, the children and the mother being residents of South Carolina at the time, the Court concluding:

“We hold that the courts of South Carolina were not precluded by the Full Faith and Credit Clause from determining the best interest of these children and entering a decree accordingly. In holding otherwise, the South Carolina Supreme Court was in error. The case is reversed and remanded to that court for further proceedings not inconsistent with this opinion.”

The Full Faith and Credit Clause was designed to give the United States certain benefits of a unified nation, but a judgment of a sister state need not be recognized by another state if it is an improper infringement on the interests of the latter state. Restatement of the Law of Conflicts, 2d Ed., Tentative Draft No. 10, Sec. 434c (April 1964), pointing out in Comment b., “It has been said that full faith and credit does not apply to custody decrees.” In his excellent 1959 treatise on The Conflict of Laws, Professor Leflar comments in Section 180 that the trend in custody cases where separate jurisdictions are involved, “ * * * if identifiable at all, is in the direction of giving greater freedom to each court that hears a case, so that in the end ‘the welfare of the child itself’ replaces Conflict of Laws guides and concepts. It is normal for courts issuing custody decrees to retain jurisdiction over the case so that new orders can be issued when conditions change, and orders so issued undoubtedly have some validity. But courts in other states regularly disregard them, at least when the children have acquired new residences in the interim or are personally before the second court. (Citing Rodney v. Adams (1954), Ky., 268 S.W.2d 940, among others.) The residence of the child alone is usually enough to induce a court to accept jurisdiction in a custody case * * jfc »

In the present case, if we assume arguendo that the March 1966 Indiana change of custody was res judicata on the facts existing at that time, that does not make it res judicata as to the facts existing in June 1966 when the Kentucky court, without a hearing on the merits, decided to give full faith and credit to the Indiana decree. Thus in Kovacs v. Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008 (1958), the United States Supreme Court, without deciding whether a custody award comes within the Full Faith and Credit Clause or not, held that a valid decree could be in any event disregarded by the courts of a second state if that state found as a fact that changed conditions subsequent to the award justified a different award in the second state.

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. The relationship between a mother and her children is a vital fact of life, is highly personal, and should not be disturbed peremptorily on the assumption the Full Faith and Credit Clause requires it. The United States Supreme Court has consistently refused to rule categorically that child custody matters are within the purview of the Full Faith and Credit Clause, for that Court appreciates the fact that the welfare of the children is the chief consideration of all of us, and that a rigid application of the Full Faith and Credit Clause often would thwart the achievement of that end. The custody of these children should not be changed without a hearing on the merits and the husband, of course, is entitled to a hearing for that purpose if he desires one.

The judgment is reversed for proceedings consistent herewith.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Erna Elijah HONEYCUTT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.
    Rehearing Denied Dec. 16, 1966.

      M. S. Mahurin, Henderson, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CULLEN, Commissioner.

Erna Elijah Honeycutt has moved for .an appeal from a judgment fining him $10 for exceeding the speed limit in the City <of Henderson, by traveling 50 miles per hour in a 35-mile-per-hour zone. We are granting the motion because the appeal presents important questions of public ■concern with regard to the admissibility of evidence of speed as recorded by a radar device.

The trial court allowed a city policeman -to testify that a radar device operated by him, having a speedometer unit in a police • cruiser in which the policeman was parked just off a certain street in Henderson, registered the fact that a vehicle was approaching from the rear of the police cruiser at 50 miles per hour, and upon visual observation -the policeman identified the vehicle as be-ing one operated by the appellant, Honey-cutt. The policeman testified that the accuracy of the radar unit had been tested, earlier in the same day, by use of a calibrated tuning fork and by a speedometer check with another police cruiser driven through the radar field. The evidence was admitted over the appellant’s objections.

The appellant maintains that evidence of the radar reading should not have been admitted because (1) there was no expert testimony of the scientific validity of the principles of radar speed detection or that radar is capable of accurately measuring speed of a motor vehicle; (2) the accuracy of the particular instrument used in this case was not proved; and (3) the policeman was not shown to be qualified to properly operate and interpret the instrument. Further, appellant argues that there was insufficient proof that his car was the one that caused the radar speedometer to show a reading of 50 miles per hour.

This court has not previously been presented with a case involving the use of evidence from a radar detecter, but a number of such cases recently have reached the courts of sister states. Those courts have written at some length on the questions raised and we think there is no need for us to add to the literature on the subject. It will be sufficient for us to indicate our agreement with what appears to be the uniform view of all of the other courts in the cases that have arisen in the last few years.

First, the courts will take judicial notice of the fact that a properly constructed and operated radar device is capable of accurately measuring the speed of a motor vehicle. 7 Am.Jur.2d, Automobiles and Highway Traffic, sec. 327, p. 870; State v. Dantonio, 18 N.J. 570, 115 A.2d 35, 49 A.L.R.2d 460; Everight v. City of Little Rock, 230 Ark. 695, 326 S.W.2d 796; State v. Graham, Mo.App., 322 S.W.2d 188; State v. Tomanelli, 153 Conn. 365, 216 A.2d 625.

Second, the courts will not take judicial notice of the accuracy of the particular instrument employed on a specific occasion, but will treat, as sufficient evidence of accuracy, uncontested testimony that the instrument was tested within a few hours of its specific use, and found to be accurate, by use of a calibrated tuning fork and by a comparison with the speedometer of another vehicle driven through the radar field. 7 Am.Jur.2d, Automobiles and Highway Traffic, sec. 327, pp. 870, 871; State v. Dantonio, 18 N.J. 570, 115 A.2d 35; State v. Graham, Mo. App., 322 S.W.2d 188; State v. Tomanelli, 153 Conn. 365, 216 A.2d 625. In fact, in the latter (Connecticut) case it is indicated that the tuning fork test alone may be sufficient. It is pointed out in that case that the accuracy of the tuning fork itself may be assumed in the absence of an attack by the defendant.

Third, it is sufficient to qualify the operator that he have such knowledge and training as enables him to properly set up, test, and read the instrument; it is not required that he understand the scientific principles of radar or be able to explain its internal workings; a few hours’ instruction normally should be enough to qualify an operator. State v. Dantonio, 18 N.J. 570, 115 A.2d 35; State v. Graham, Mo. App., 322 S.W.2d 188; State v. Tomanelli, 153 Conn. 365, 216 A.2d 625. In the instant case the policeman had received 13 weeks’ training as a radar repairman and had operated radar equipment for almost two years. We think this was sufficient qualification to make his testimony competent. A reading of his testimony indicates that he understood how to operate the instrument.

The radar device used in the instant case simply registered a speed reading on a speedometer dial. It did not show a “blip” on a screen or by any other means undertake to show location or direction of a vehicle in its field. The testimony of the policeman was that he had set up the instrument to cover northbound traffic on the four-lane, two-way street in question. He said that he observed, in the rear view mirror of the cruiser, several vehicles approaching from the south. One of them was passing the others. The radar speedometer registered an unstable reading, with a top of 50 m.p.h. Directly, the reading stabilized at 50 m.p.h. and he observed in the mirror that one car had passed the others and was by itself out in front of the others. The fact that the one car was by itself, away from the others, and closest to the radar unit, enabled the radar unit to make a stable reading of its speed. The policeman pursued the car in question, in the cruiser, and caused it to stop. The car was being driven by the appellant.

The appellant argues that there was insufficient evidence that his car was the one which caused the radar unit to show a 50 m.p.h. reading; that a south-bound car in the other lane could have caused it. In our opinion the reasonable import of the policeman’s testimony is that he observed the appellant’s car passing others at the same time the radar dial showed a fluctuating reading with a 50 m.p.h. maximum. When the dial stabilized at 50 m.p.h. the car was in front by itself, nearest to the unit. The policeman’s estimate of its speed, from visual observation alone, was from 40 to 45 m.p.h. This evidence reasonably points to the appellant’s car as the offending vehicle, and we do not think that the evidence is reduced to worthlessness by the remote chance of coincidence that a southbound vehicle broke clear from a passing situation, at 50 m.p.h., at the same moment that the appellant’s car got out in front in the north-hound lanes. Furthermore, the testimony indicates with reasonable certainty that a south-bound car, when it entered the range field of the radar, would have been beyond the north-bound cars and therefore would not have registered a stabilized reading.

In our opinion the radar evidence in this case was competent.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Luther BATES et al., Appellees.
    Court of Appeals of Kentucky.
    June 17, 1966.
    As Modified on Denial of Rehearing Dec. 16, 1966.
    Robert Matthews, Atty. Gen., J. C. Smith (Dept, of Highways), Frankfort, Edmond H. Tackett, Pikeville, for appellant.
    Combs & Polly, Whitesburg, for appel-lees.
   PALMORE, Judge.

The state highway department appeals from a judgment awarding appellees, Luther Bates and wife, $30,000 in a condemnation proceeding.

Before the taking the Bates property consisted of two dwelling houses, a concrete block garage building, and other lesser improvements situated on a 1.2-acre plot of ground on Kentucky Highway 15 within the city limits of Whitesburg. The portion acquired by the state consisted of a strip through the center of the property and included a 9-room brick veneer residence. After the taking this house was sold back to Bates and was removed to another location in the county.

Reluctantly, we must reverse because the trial court declined to permit a jury view. “The peremptory language of the statute [KRS 177.087] has been consistently held to make it the duty of the trial court, at the request of either party, to permit the jury to go upon the land sought to be taken or damaged.” Commonwealth, Dept. of Highways v. Farra, Ky., 338 S.W.2d 696, 698 (1960).

The reason given for overruling the highway department’s motion for a view was “that the residence building has been removed from the premises and there has been a change in condition and the Court feels that it would serve no useful benefit for the Jury to view the premises.” Unfortunately, however, and regardless of whatever unrecorded information may have been discussed or disclosed in chambers, our review is confined to the bleak pages of the record, and the only change of conditions indicated there is the removal of the 9-room brick residence. “The mere fact that the residence had been removed * * * was not sufficient to deprive appellant of the right to a jury view, because there was no showing of any substantial change in the condition of the house.” Commonwealth, Dept. of Highways v. Garland, Ky., 394 S.W.2d 450, 451, 453 (1965).

In Commonwealth, Dept. of Highways v. Hackworth, Ky., 400 S.W.2d 217 (1966), it was held to be discretionary with the trial court to limit the view of a relocated building to an outside look, upon (1) evidence that there had been a' substantial change in the building and (2) a finding that by reason thereof a view would not be helpful, or would be misleading. In this case we have the finding, but not the evidence, nor is there any indication as to why the jurors were not sent for a view of the remainder of the property as it appeared after the taking.

We do not find any other errors. It was not improper for the landowners’ counsel to say in his opening statement that they had paid $33,000 for the residence if he intended to introduce that information in evidence for the purpose of relating it to market value. Cf. Commonwealth, Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249, 253-254 (1946); Commonwealth, Dept. of Highways v. Stamper, Ky., 345 S.W.2d 640, 643-644 (1961). When the landowners rested their case without having adduced any such evidence, counsel for the highway department did not seek any corrective action or admonition from the court, so there is no basis for the claim of error.

The appellees’ argument that the Highway Department’s appeal from the county court to the circuit court was not timely is not entitled to consideration because no cross appeal was filed.

The cause is reversed with directions for a new trial.


author: PALMORE, Chief Justice.

text:
    The SHELBY COUNTY BOARD OF EDUCATION, Appellant, v. Richard MORELAND et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 28, 1966.
    Rehearing Denied Dec. 16, 1966.

      Charles E. Duncan, Duncan & Lehnig, Louisville, for appellant.

      Kinsolving & Kinsolving, Shelbyville, Edward F. Prichard, Jr., Marion Rider, Frankfort, for appellees.
   PALMORE, Chief Justice.

The Shelby County Board of Education appeals from a verdict and judgment in favor of appellees, Elvin Bailey and the personal representatives of William Crisp and John Moreland, which they obtained upon the fourth trial of this case. The critical question is whether the trial court erred in setting aside a verdict returned in favor of the Shelby County Board of Education in the third trial and granting a new trial.

On a morning in January of 1959 Bailey, Crisp and Moreland were standing in front of Moreland’s disabled car which was stopped on the north shoulder of U.S. Highway No. 60 in Shelby County. A car driven in a westerly direction by James Hawkins pulled partly off the highway onto the north shoulder west of the More-land car and was struck from behind by a car operated by Donald Palmer which also was headed west. The Palmer car then crossed the center line of the highway and sideswiped an eastbound school bus belonging to appellant, whereupon the bus angled across the highway and struck the three men standing in front of the Moreland car, killing two of them and injuring the other.

Appellees brought this action for damages against Hawkins, Palmer and the appellant school board. A trial in 1961 resulted in a verdict for appellees against all defendants. Hawkins and the school board appealed and this court by memorandum opinion affirmed the judgment as to Hawkins but reversed as to the school board. On that appeal it was held that there was sufficient evidence to support a verdict against the school board on the theory that the driver of the bus negligently failed to control it after its collision with the Palmer car, but because of an error in the instructions that portion of the judgment was reversed and the case was remanded for a retrial of the issue of the school board’s liability. A second trial in 1964 resulted in a hung jury. At a third trial during February of 1965 the jury found for the school board, but the trial court set the verdict aside and granted appellees a new trial. The fourth trial, held during July, 1965, resulted in a judgment for appellees.

At the first trial Hawkins had testified as to what occurred at the time of the accident. At the second trial Hawkins was subpoenaed as a witness but could not be found. His testimony given at the first trial was read without objection. At the third trial appellant did not have a subpoena issued for Hawkins but moved to read his testimony from the transcript of the first trial. Over an objection by appellees the trial court permitted it to be read to the jury. After the verdict was rendered at the third trial appellees moved to set it aside on the ground that Hawkins’ testimony should not have been read because appellant had failed to establish that it had diligently but unsuccessfully sought to procure Hawkins’ presence in court. The trial court sustained the motion and granted a new trial.

Assuming, but without so deciding, that the admission of Hawkins’ transcribed testimony was an error, we are of the opinion that it was non-prejudicial. “No error * * * is ground for granting a new trial or for setting aside a verdict * * * unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” CR 61.01. “Thus in every instance when an error is claimed, the court must consider not only whether * * * an error has been committed .but whether * * * it was prejudicial under the circumstances.” Clay’s Kentucky Practice, CR 61.01, Comment 2. In the absence of a “substantial reason,” the action of a trial court in setting aside a verdict exceeds the bounds of “sound discretion.” Gottsegen v. Wilson, 278 Ky. 734, 129 S.W.2d 575, 578 (1939).

Hawkins was one of several eyewitnesses to the accident, including Bailey, Palmer, and one James Pickett, who was not a party to the litigation. The only portion of Hawkins’ transcribed testimony from the first trial which really could have been prejudicial to the plaintiffs when read to the jury at the third trial consists of his having characterized the impact between the Palmer car and the school bus as “a pretty good crash,” “a pretty hard blow.” He said also that it was “a glancing blow,” or “a glancing lick,” explaining as follows: “Well, it sounded like a pretty good blow, it was a glancing blow, nobody hit headon, it was a glancing blow. It would be considered a pretty good blow as the car went off on the right side after it hit.”

These descriptions of the force of the impact were merely cumulative of other testimony to the same effect, none of which was contradicted by any witness.

The plaintiff Elvin Bailey said, “I saw a dark streak of another car [Palmer] go by” and then “I heard a crash and I turned back around and saw the school bus coming at me.” “Was it a loud crash ?” “I would say it was, I don’t know, I just heard a crash, I couldn’t say now.” Asked to estimate the speed of the Palmer car, he replied, “Looked like it was coming fast.”

Palmer himself, appearing at the third trial as a witness for the plaintiffs, testified that “the bus hit me and knocked me out of my car.” “How did you happen to fall out of your automobile ?” “The blow knocked me out of it." (Emphasis ours.)

James Pickett was a disinterested witness called by the plaintiffs. His testimony on this facet of the case was as follows:

Q — -“Describe, if you can, the force of the impact between the bus and the Palmer car.”

A — “It was considerable force. I would say at 40 miles an hour for the automobile and 30 or 35 miles an hour for the bus, a pretty good impact.”

Thus it is apparent that wholly apart from the Hawkins testimony there was only one reasonable conclusion the jury could have drawn with respect to the severity of the impact between the Palmer car and the bus.

Between the third and fourth trials Hawkins’ deposition was taken. He first described the impact as “a glancing lick,” a “side lick.” He was asked to say whether the sound of the impact was loud, soft, or medium, to which he replied, “It was loud.” Then he was asked to describe the force of the impact and, just as he had done at the first trial, he said, “It was d pretty hard blow.” (Emphasis ours.) Remarkably, this deposition was introduced and read at the fourth trial not by the school board but by the plaintiffs, who now insist that similar testimony admitted in the third trial prejudiced them. It seems to us that their own use of substantially the same matter in the last trial compromises the argument that they were prejudiced by it in the third trial.

It is our conclusion that the granting of a new trial was erroneous.

The cause is reversed with directions that a judgment be entered in conformity with the verdict rendered at the third trial.

MONTGOMERY, J., dissenting.


author: JOE P. CLARK, Special Commissioner.

text:
    Janell VICK, Appellant, v. The METHODIST EVANGELICAL HOSPITAL, INC., Appellee.
    Court of Appeals of Kentucky.
    Sept. 23, 1966.
    As Modified on Denial of Rehearing Dec. 9, 1966.
    Robert E. Hogan, Louisville, for appellant.
    Wm. O. Guethlein, A. J. Deindoerfer, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellee.
   JOE P. CLARK, Special Commissioner.

This is an action filed by Janell Vick, plaintiff, against The Methodist Evangelical Hospital, Inc., of Louisville, Kentucky, defendant, for damages in the sum of $10,000 as a result of the plaintiff getting out of or falling out of a bed at defendant’s hospital, allegedly caused by the negligence of the employees of defendant. The trial court directed a verdict for the defendant, and plaintiff appeals.

Plaintiff entered the hospital of the defendant after midnight November 18, 1963, for the purpose of childbirth, and was in labor when she entered the hospital. The child was delivered at 2:34 a. m.

According to the photostatic copy of the hospital “Delivery Note” on Mrs. Janell Vick, from the time the plaintiff entered the hospital until the birth of the child at 2:34 a. m. she was given the following: Tuinol, three grains ( to reduce apprehension, to produce sleep) ; phenergan, which makes the tuinol a little stronger; demerol, fifty milligrams; scapalomine, a drug of amnesia, so that the patient would not remember very much of her labor; and after being completely dilated, a saddle block anesthetic. After delivery she was given two cc’s of 2X duladumone.

After the birth of the child, plaintiff was placed in the recovery room where she remained until 4:10 a. m., and was then carried to hospital room 328 which is located on the same floor. She talked with her husband between 3:00 and 3:30 a. m. but was not fully alert.

The medical records disclose that she was under sedatives for some time after the birth of the child and was left alone in a private room for one hour and five minutes after receiving medication which could have produced sleep or unconsciousness for at least three hours longer.

According to the testimony of Dr. Gillim:

“Q. And what — over what period of time, Doctor, considering that you gave Mrs. Vick this dosage of medication, over what period of time would that be effective upon her, considering her build and her age and — and general condition ?
“A. This is extremely variable. The amount of medication a patient receives many times does not depend upon their size — I’ve seen small people take very large quantities of medication to control these people in labor. I’ve also seen large people take a small amount. Different individuals have different reactions to drugs.
“Q. Is that akin to the man who’s affected by a small amount of intoxicants as opposed to the other fellow who can drink much more without any appreciable effect?
“A. Yes.”

The plaintiff entered the hospital for the purpose of childbirth and was of the opinion that she would be properly cared for and looked after by the nurses and doctors, which was the duty of the hospital and for which she paid. The record presents factual issues with respect to plaintiff’s condition and the nature of the attention she received.

The record discloses that the guard rails on the hospital bed were up at the top or near the plaintiff’s head, and that the bottom of the rails slanted down to where the patient could get in and out of bed. This would allow the patient to get in and out of the bed and not require help or assistance in doing so.

While plaintiff testified she was in such a condition that she did not know exactly what happened, it was established that she fell on the floor or against some hard object, resulting in a cut on her chin and an injury to the back of the head, both of which required surgery. Her testimony would support the inference that these injuries resulted from two different falls. Considering all the circumstances, in our opinion there was sufficient evidence to justify a jury finding that defendant’s employees did not exercise due care to protect this patient from injury while under sedation.

In Garfield Memorial Hospital v. Marshall, 92 U.S.App.D.C. 234, 204 F.2d 721, 37 A.L.R.2d 1270, it was held that even though there was expert testimony that the hospital’s physicians and nurses acted in accordance with good and accepted standards of hospital service, the circumstances were such that the jury could reject this evidence and find negligence in the treatment of the patient.

In Miners Memorial Hospital Ass’n of Ky. v. Miller, Ky., 341 S.W.2d 244, the court held that a patient admitted to a hospital operated for private gain is entitled to such reasonable care and attention for his safety as his mental and physical condition known or discoverable by the exercise of ordinary care may require.

It is apparent, as shown by the testimony of the nurses and the chart, that the sedatives given the plaintiff were in such amount as to support a finding that the plaintiff was not oriented or alert and was not properly attended to prevent her getting out or falling out of bed.

We conclude that the court erred in giving a directed verdict for the defendant.

The judgment is reversed, with directions to grant a new trial.

MOREMEN, WILLIAMS and STEWART, JJ., dissenting.

When it was held in Mullikin v. Jewish Hospital Association of Louisville, Ky., 348 S.W.2d 930, that a charitable hospital was liable for torts committed, we believed that few anticipated the case would stand for the proposition that a hospital would be held to standards of service other than those which were in accordance with good and accepted practices for other similar institutions in the community. The opinion of the majority clearly imposes an additional responsibility upon a hospital.

The facts in this case in most respects resemble those presented in Miners Memorial Hospital Association of Kentucky v. Miller, Ky., 341 S.W.2d 244, where a patient fell and broke her wrist while attempting to climb into her bed. The main question concerned whether a special nurse should have been present in the room at the time, and we said this:

“In the instant case we are of the opinion that there was no evidence of any circumstances from which it could reasonably be said that the hospital was under a duty to have a special nurse in the room with Mrs. Miller more than three hours after she had regained consciousness. Though she may not now remember the events just preceding her injury, it is uncontroverted that she had made two previous trips to the bathroom and was responsive to conversation. Under the circumstances, it is scarcely possible to resist the conclusion that the patient was well able to summon a nurse had she chosen to do so. The mere fact that the accident happened is no indication of negligence on the part of the hospital.”

We believe it is common knowledge that most patients are under sedation at certain periods during hospitalization and we must face the question whether each hospital should require constant attendance by a nurse during those periods. We think not.

There was nothing unusual about Mrs. Vick’s accouchement, or the treatment of her during subsequent hours. She was given the same care given other patients under similar circumstances. She was under sedation and it could be reasonably assumed that she would sleep for several hours. A “buzzer” was close at hand if a nurse was needed. (She used the buzzer after she fell.) It was not shown that any equipment was defective. The whole case seems to have been based upon the supposition that a nurse should have been in constant attention. There was no proof that such a practice was standard. Most people are aware, we believe, that if 24-hour nursing service is required special nurses must be hired by the patient. In this period of a dire nurse shortage, a requirement that the hospital furnish 24-hour constant attendance to all patients under sedation would be impossible to fulfill.

There is no series of negligent acts in this case as was shown in Garfield Memorial Hospital v. Marshall, 92 U.S. App.D.C. 234, 204 F.2d 721, 37 A.L.R.2d 1270. There, the experts testified that the hospital’s doctors and nurses acted in accordance with good and accepted standards of hospital care, and it was argued that since they had so acted there was no showing of negligence. The Court said: “The jury did not, and was not required to, accept this somewhat startling statement.” The statement was startling when one reads how the patient in that case was treated.

We have no such facts here and we therefore respectfully dissent.


author: MOREMEN, Judge.

text:
    Headmon MAY, Petitioner, v. Hon. Hollie CONLEY, Judge, Floyd Circuit Court, Prestonburg, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    Motion to Reconsider Petition for Writ of Mandamus Denied Dec. 16, 1966.
    Headmon May, pro se.
    Hollie Conley, pro se.
   MOREMEN, Judge.

Petitioner, Headmon May, a prisoner now confined at Eddyville, has filed a petition in this court by which he seeks to obtain a writ of mandamus to compel the Honorable Hollie Conley, Judge of the Floyd Circuit Court, to vacate, under RCr 11.42, the judgment and sentence under which he is now confined.

Petitioner avers that his motion in the circuit court was based on the grounds of newly discovered evidence to the effect that he was, at the time of the original trial, a person of unsound mind. He prays this court “to enter an order forthwith granting petitioner the redress sought therein, his motion to vacate judgment — sentence by reason of judgment by default * *

On a number of occasions we have issued writs in the nature of mandamus where a circuit court has failed or refused to act upon a motion filed under RCr 11.42. The petitioner makes the allegation that the “circuit court has ignored, or refused to pass upon any kind of judgment” on the motion. We are unable to conclude that he is seeking that type of relief here. (The response filed does not state definitely that the' court has entered judgment.) The best interpretation we can make is that petitioner is asking this court to control the discretion of the circuit court and to grant the relief sought in that court.

Although mandamus will lie to set a court in motion, it cannot be used to control discretion. Hargis v. Swope, 272 Ky. 257, 114 S.W.2d 75; and Kaufman v. Humphrey, Ky., 329 S.W.2d 575. The function of mandamus is not to compel a court to decide a matter in a particular way. Hardison v. Pace, Ky., 121 S.W. 671.

The petition for a writ of mandamus is denied.


text:
    J. S. CREECH et al., Appellants, v. Alford MINIARD et al., Appellees.
    Court of Appeals of Kentucky.
    June 18, 1965.
    Rehearing Denied Dec. 16, 1966.

      A. E. Cornett, Hyden, Stanley R. Hogg, Whitesburg, for appellants.
    Ray O. Shehan, Harlan, Denver Adams, Hyden, for appellees.
   PALMORE, Judge.

Appellants brought this action to quiet their title to part of a 100-acre tract surveyed in 1844 and patented to William Turner in 1845, and to enjoin appellees from cutting and removing timber from it. Ap-pellees denied appellants’ title and asserted ownership in themselves, including title by adverse possession. The chancellor adjudged that appellees own the land through a “conditional line” agreement made in 1883 by their predecessor, David Turner, and appellants’ predecessor, Eli Huff, and by adverse possession as well.

Appellants proved record title by mesne conveyances from the Commonwealth. It thus became incumbent on appel-lees to establish title either through off conveyance by one or more of appellants’ predecessors or by adverse possession, or both. The scope of our review is to determine whether there was sufficient competent evidence to support a judgment in their favor.

The land in question is located north and west of Greasy Creek in Leslie County. At the time the conditional line was established Eli Huff owned the William Turner 100-acre patent and David Turner owned the westerly portion of the James Turner 650-acre patent located generally to the southeast of the 100-acre patent, between the latter and Greasy Creek. To the extent of about 25 acres, the northwest corner of the 650-acre patent, which was junior, overlapped the southeast corner of the senior 100-acre patent. There was also a strip of land between the southeast line of the 650 acres and Greasy Creek. Huff and Turner each owned land on both sides of the Creek, Huff downstream and Turner upstream.

Just what lands were in dispute between Huff and Turner when they agreed on the conditional line was not proved. The line is well established from the creek to a large rock, marked EH and DT, on top of a ridge. Running northwestwardly from the creek, it crosses the strip between the creek and the southeast line of the 650 acres. The marked rock on the ridge is within the 650 acres but some 1400 feet south of the 100 acres. Where the conditional line runs from that point is the big issue in the case. Appellees claim it continues across the ridge on a northwesterly course until it strikes the south line of the 100 acres and then follows the boundaries of the 100-acre patent clockwise so as to embrace it all. Appellants claim it follows the ridge, which runs northwardly through the southeast corner of the 100 acres, follows the east boundary of the 100 acres for some distance, and then turns to the northwest so as to cut off about 25 acres in the north-northeast corner of the 100 acres.

The paper title through which the appel-lees principally claim is a 1930 deed from David Turner to Enoch Lewis, Alfred (or Alford) Miniard, and Roda (or Rhoda) Miniard.. The only evidence of any real substance on which the conditional line can be established in accordance with their contention lies in the testmony of I. D. Miniard (Rhoda’s husband) and ' Alford Miniard (brother of I. D. Miniard), and appellants contend it was incompetent.

The evidence in question, to which appellants seasonably objected, was this :

I. D, Miniard said that in 1928 David Turner (his grandfather, now deceased) pointed out the conditional line to him and gave him the written agreement between Turner and Huff; Miniard took the agreement to the county court clerk for recordation, but as it was not acknowledged it could not be recorded; he took it back home and shortly thereafter his house burned and the agreement was lost in the fire; his knowledge of the location of the conditional line was based on two sources, (a) his grandfather's having shown it to him and (b) his inspection and recollection of the contents of the written instrument delivered to him by his grandfather.

Alford Miniard testified that his knowledge of the line resulted from his grandfather’s having pointed it out to him and from his brother’s having read the agreement to him.

The basis for the objection to this testimony by I. D. and Alford Miniard is KRS 421.210(2), which provides that “no person shall testify for himself concerning any verbal statement of, or any transaction with, or any act done or omitted to be done * * * by one who is * * * dead when the testimony is offered to be given,” etc.

We trust it is beyond question that the actions of David Turner in pointing out the boundaries to I. D. and Alford Miniard were “verbal statements” and “acts done” by a person deceased at the time the testimony was offered. Both of the witnesses were parties to the lawsuit. Alford was directly interested, and' I. D. was interested through his wife, Rhoda. Cf. Truitt v. Truitt’s Adm’r, 290 Ky. 632, 162 S.W.2d 31, 140 A.L.R. 1127 (1942); Gardner’s Adm’r v. Dale, 309 Ky. 869, 219 S.W.2d 40, 42 (1949). There can be no doubt that this particular aspect of their testimony fell under the prohibition of the statute.

Neither was it permissible for either of the Miniards to relate the contents of the lost instrument.

“In general, statutes prohibiting a witness from testifying as to a transaction with or statements by a deceased person do not render him incompetent to testify as to the fact of the loss or destruction of a writing, although he may not testify as to the contents of the instrument, unless in the circumstances the testimony does not involve a personal transaction or communication with the deceased.” (Emphasis added.) 58 Am.Jur. 167 (Witnesses, § 258).

“The rule followed by a majority of courts is that, where a statute prohibits a party or interested witness from testifying as to any transaction with or statement by a deceased person, such party or witness is incompetent to testify concerning the contents of an instrument executed by one deceased and subsequently lost or destroyed.” Annotation, “Statute excluding testimony of one person because of death of another as applied to testimony in respect of lost of destroyed instrument,” 79 A.L.R. 785, 791.

Since the opportunity of reading the agreement came through a transaction with the deceased about which I. D. Miniard could not testify, “the disqualification carries through and is inseparable.” Gibbs v. Terry, Ky., 281 S.W.2d 712, 715 (1955).

There is still a further reason why the testimony relating the contents of -this particular instrument was incompetent. It must be conceded that if David Turner himself had lived to appear at the trial, even he could not have testified as to the execution, contents or delivery of the agreement by the deceased Eli Huff. Isaacs v. Isaacs, 206 Ky. 540, 267 S.W. 1104 (1925); Ganter’s Adm’r v. Smith, 254 Ky. 654, 72 S.W.2d 58 (1934). The authenticity of the instrument depends entirely on what David Turner had to say about it, and if the law would not permit him to give the information himself, surely it would be absurd to hold that it could be given by someone else second hand — that is, by another person whose only source was the same David Turner.

One other witness, Robert Lewis, 91 years of age, a son-in-law of David Turner, said Turner had shown him the conditional line and they had “followed it to the top of the hill.” However, Lewis did not otherwise locate the line, and his testimony was by no means sufficient to indicate where it was with reference to the 100-acre patent.

Eliminating the incompetent testimony of I. D. and Alford Miniard, there is not enough evidence in the record to support any factual conclusion one way or the other as to where the conditional line ran north of the marked rock on the ridge. Hence the chancellor’s finding in this respect was clearly erroneous. CR 52.01.

On the issue of adverse possession, I. D. Miniard had a sheriff’s deed executed in 1931 covering some 25 acres in the northeast portion of the 100-acre patent, lying east of the ridge hereinbefore mentioned as coinciding with appellees’ version of the northern extremity of the conditional line. It was proved that I. D. Miniard had enclosed this 25-acre tract in fences and had regularly cultivated it ever since 1931 or 1932. Although the description set forth in appellants’ complaint may take in a part of the 25 acres, they do not contest Miniard’s title to that portion of the 100-acre survey.

The 1930 deed under color of which appellees claim some or all of the remaining portion of the 100 acres gives the unrecorded conditional line agreement as the source of title, but the description is so deficient that it would require a crystal ball to ascertain just what its author had in mind. I. D. Miniard testified that his grandfather “had control” of the entire 100 acres during his lifetime and that he, Min-iard, had been “in possession of it and exercised control over it and been using it” ever since he got his deed. These vague allusions to “possession” and “control” are not sufficiently descriptive to establish the type of actual, physical dominion essential to a ripening of title by adverse possession. As a matter of fact, it is abundantly clear from the rest of I. D. Miniard’s testimony that the only dominion ever exercised by him outside his 25-acre enclosure consisted of cutting timber off the westerly edge of the ridge in 1934 and 1935 and, perhaps, sporadic cutting of trees at other times. These activities did not fulfill the requirement of continuity for a 15-year period, much less the other necessary elements of title by adverse possession. “To be adverse * * * the possession must be actual, open, notorious, exclusive and continuous for the full statutory period.” Sackett v. Miniard, 219 Ky. 765, 294 S.W. 487, 488 (1927).

Despite the incomprehensible description in the 1930 conveyance, the chancellor upheld appellees’ title by adverse possession on the further theory that the actual possession of part of a tract under col- or of title extends by construction to the outside limits of the description. Bypassing the lack of a reasonably well-defined boundary, which is an indispensable requisite to the proper application of that principle, Miniard’s possession under the 1930 deed, even if it had clearly defined the 100-acre patent, could not have extended by construction into the territory covered by a senior title. See J. Walter Wright Lumber Co. v. Baker, Ky., 395 S.W.2d 365 (decided March 26, 1965) and cases therein cited.

There was not a scintilla of probative evidence to sustain a finding that I. D. Miniard, David Turner, or any other person or persons ever have had the actual possession of any part of the 100-acre survey (other than the 25 acres conveyed by sheriff’s deed to I. D. Miniard) .for a continuous period of 15 years. Likewise there was no evidence of adverse possession existing at the time any of the deeds in appellants’ chain of title were executed, so as to render them champertous. The chancellor’s findings to the contrary in these respects also were clearly erroneous. CR 52.01.

The evidence produced by appellees being insufficient to support a finding of superior title from a common source or a finding of title by adverse possession, the paper title proved by appellants must prevail except as to the above mentioned 25 acres.

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

      . These were the words of a leading question propounded by counsel for appel-lees, to which the witness responded, “I have.”

      . That is, the deed to Enoch Lewis, Alfred Miniard, and I. D. Miniard’s wife, Rhoda.

      . Lipps v. Turner, 164 Ky. 626, 176 S.W.2d 42, 44 (1915).


author: DAVIS, Commissioner.

text:
    V. P. NOFFSINGER et al., Appellants, v. James E. BROWN et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.

      Donan & Vick, Greenville, Robertson & Robertson, Owensboro, Harold M. Streets, Central City, for appellants.
    William E. Payton, Jarvis, Cornette & Payton, Greenville, for appellees.
   DAVIS, Commissioner.

Appellants, as heirs at law of Peter S. Noffsinger, brought this action to quiet their claimed title to all minerals except coal underlying about 192 acres of land. The appellees hold the record title to the surface of the land, and assert their ownership of all of the minerals. (There is no controversy as to the coal rights.) Summary judgment was entered sustaining the claim of the appellees. Solution of the case involves construction of certain “exceptions” or “reservations” in three deeds in the title chain.

By deed dated February 21, 1906, Peter S. Noffsinger and wife conveyed to Elijah Bassett the coal rights in the property with which we are concerned. The trial court found, and the litigants recognize, that the deed to Bassett conveyed only coal rights — not oil and gas.

On November 29, 1907, Noffsinger and his wife conveyed the 192 acres (described in two tracts) to Midland Townsite Company. In this deed, which we shall designate as Midland Deed No. 1, the grantors made specific reference to an easement theretofore granted, and reserved a described boundary of five acres as a home-site. In addition to these stated exceptions from the conveyance, the deed contained this language:

“The coal and mineral rights under both of the above described tracts of land are reserved, they having been convey (sic) by a former deed.”

On November 30, 1908, the Noffsingers conveyed to Midland Townsite Company the five acres which they had reserved as a homesite in Midland Deed No. 1. This Midland Deed No. 2 contained the following language:

“The coal, and mineral and mining rights in and to the tract of land herein conveyed are reserved, they having been conveyed by a former deed.”

The position of the appellants (Noff-singer heirs) is that their ancestor did not convey the oil and gas rights by either of the Midland deeds, hence those rights were never conveyed to anyone, and therefore passed to them by inheritance. Appellees take this view, as expressed in an able brief filed in this court:

“Appellees maintain that Appellants’ ancestor, Peter S. Noffsinger, did not intend and did not except unto himself any interest in the mineral by the above quoted language. Appellees assert that the language was used for the purpose of absolving and protecting the grantor as to any warranty of the mineral in and underlying the property conveyed.”

As recently as Brown v. Brown, Ky., 404 S.W.2d 286, this court dealt with the same question which is presented in this appeal. It would serve no useful purpose to reiterate what has been written in the Brown case and the precedents listed in that opinion. It is our view tljat the expressions in the two Midland deeds “They having been conveyed by a former deed” were merely descriptive — not restrictive. The fact that the “former deed,” the Bas-sett deed, had served to convey only the coal rights, is not sufficient to restrict the reservations to coal rights.

In light of Gibson v. Sellars, Ky., 252 S.W.2d 911, 37 A.L.R.2d 1435, and decisions before and after it, we are unable to say that there is any ambiguity in the language employed by the grantors in the Bassett and Midland deeds. As stated in Gibson:

“Applying the definition so often adopted by this court, we conclude that the term ‘coal and mineral rights’ has a definite and certain meaning which includes oil and gas.” Id. 252 S.W.2d at 913.

The judgment is reversed with directions to enter a new judgment consistent with this opinion.


text:
    Herbert Ryan Lee READO, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    Herbert Ryan Lee Reado, pro se.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

This is an appeal from a judgment in an RCr 11.42 proceeding whereby the court refused to vacate appellant’s 1958 conviction for rape. A previous such motion was denied in March 1965 and no appeal was taken to this Court from that judgment. The present RCr 11.42 proceeding was filed in December 1965 in which the same relief was asked again for the same generic reasons.

RCr 11.42 declares in pertinent part, “ * * * Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding * * The courts are not required to entertain a second or successive motion for similar relief from the same prisoner. Tipton v. Commonwealth, Ky., 398 S.W.2d 493 (1966).

The judgment is affirmed.


author: IRA D. SMITH, Special Commissioner.

text:
    Betty TURNER, Appellant, v. GREER BROTHERS & YOUNG, INC., Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.
    William H. McCann, Brown, Sledd & McCann, Lexington, for appellant.
    John W. Morgan, Allen, Duncan, Duncan & Arnold, Lexington, for appellee.
   IRA D. SMITH, Special Commissioner.

On this appeal from a verdict and judgment denying a claim for damages appellant Betty Turner is seeking a new trial. The only question presented for the Court’s determination is whether certain testimony concerning other automobile accidents was admissible.

In December, 1963 at approximately 7:00 P.M. Betty Turner and her husband, Chester Turner, were driving to Winchester. Appellee, a construction company, had been widening U.S. 60 near its intersection with I-7S in Fayette County. The Turner car ran into a traffic island and appellant was injured. Upon the question of the contractor’s negligence, that is, whether appellee exercised ordinary care in giving motorists notice of the dangerous condition at the construction site, the verdict was for appellee.

Appellant contends that the trial court erred in excluding testimony which she offered regarding other accidents occurring several days prior to, but at the same place as the one involved in the present lawsuit. We have examined the authorities cited by the appellant and while there might be certain exceptions to the rule they are not applicable here and the decisions in the cases of Louisville & N. R. R. Co. v. Loesch, 215 Ky. 452, 284 S.W. 1097, 47 A.L.R. 347, and Chambers v. Hawkins, 233 Ky. 211, 25 S.W.2d 363 are controlling. We do not think that the Court has ever departed from the rule announced in the Loesch case where it was stated:

“Accidents may and do happen frequently in unaccountable ways, and the facts and circumstances in any two of them are rarely identical, or approximately so; the facts and circumstances leading up to one accident at the same place as another can rarely furnish any light upon an investigation of what caused the other accident. The general rule therefore seems to be that evidence of a previous accident at the same place is incompetent upon the investigation of the cause of a subsequent one. * *

The real issue for the jury to determine was whether or not appellee exercised reasonable care to warn motorists of the condition of the construction site at the time its agents and employees left the work on Saturday night, November 30, 1963. We do not think that the trial court’s ruling on the admissibility of testimony seriously prejudiced the plaintiff. It appears to us that the case was fairly tried and that negligence or non-negligence of appellee was determined on the facts existing at the time of the accident.

The judgment is affirmed.


text:
    Patricia R. SMITH, Appellant, v. Isaac HILLIARD et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    Walter B. Smith, Louisville, for appellant.
    Malcolm Marshall, Squire R. Ogden, James S. Welch, Ogden, Brown, Robertson & Marshall, Louisville, for appellees.
   PALMORE, Chief Justice.

Patricia R. Smith appeals from a summary judgment rendered against her in favor of Isaac Hilliard and others, d/b/a J. J. B. Hilliard & Son, a stock brokerage firm, for amounts due in connection with the sale of 100 shares of R. J. Reynolds Tobacco Company stock.

In September of 1961 Mrs. Smith owned several hundred shares of R. J. Reynolds common. As of the close of business on September 7 the company effected a two for one split and provided that certificates for the additional shares would be mailed on October 6. On September 7 the New York-Stock Exchange, on which R. J. Reynolds is listed, issued a directive to the effect that transactions in R. J. Reynolds common stock would not be ex-distribution until October 9, and that all certificates delivered before that time must be accompanied by “due bills” for the new shares, which due bills were to be redeemed on October 13. This meant, of course, that all shares transferred between September 7 and October 9 were to carry with them the right to the new shares. This means also that the market price per share as quoted on the board represented the value of two shares, being the original or old share and the additional share for which a certificate was to be mailed on October 6.

Mrs. Smith had been dealing to some extent with Hilliard’s, a member of the New York Stock Exchange, for 37 years. Having observed from an evening newspaper on October 3 that R. J. Reynolds common was quoted at 147, on the morning of October 4 she telephoned Henry J. Oeswein, manager of the board room at Hilliard’s, and instructed him to sell for her 100 shares of R. J. Reynolds common stock. Later in the day she delivered to Mr. Oeswein a certificate for 100 shares which had been issued to her in 1959. According to Hil-liard’s, the sale was completed on the Exchange the same day, and a confirmation was mailed to Mrs. Smith immediately.

When Mrs. Smith delivered the certificate to Mr. Oeswein on October 4 she was not advised, and says she was completely unaware, of the directive theretofore issued by the Exchange, nor was she asked at that time to execute a due bill for the additional 100 shares that were to be forthcoming.

Mrs. Smith received a check from Hil-liard’s in the amount of $14,635.92 ($14,700 less commission, tax and postage) on October 10. Meanwhile, the confirmation mailed by Hilliard’s on October 4, together with a due bill for Mrs. Smith to sign for the additional 100 shares, had been misdirected, and Mrs. Smith did not receive them until some time after October 10. When she did receive the request to sign and return the due bill, evidently she failed to respond, so on October 18 Hilliard’s wrote her a letter asking her to send the new certificate which by that time she would have, and no doubt had, received from R. J. Reynolds. She refused, and according to Mr. Oeswein’s affidavit it became necessary for Hilliard’s to borrow 100 shares of the new stock in order to complete delivery on its October 4 transaction, and eventually, on November 17, to purchase 100 shares at $83,875, plus tax and postage. Also, as a dividend of 37½(⅞ per share had been declared on October 12, Hilliard’s was obliged to pay $37.50 to the owner of the undelivered shares sold on October 4.

Though Mrs. Smith’s case has been carefully prepared and industriously argued, it does not have enough merit to justify much further time and discussion here. No matter what she understood or did not understand with reference to the rules and directives of the stock exchange, and regardless of Mr. Oeswein’s carelessness in failing to make certain she understood that the new stock would have to be delivered up when received in the form of a certificate, she is defeated on the simple principles of unjust enrichment.

Let it be assumed Mrs. Smith had no knowledge, express or implied, that the $147 price quotation listed in the newspaper on October 3 was not ex-distribution. Certainly Hilliard’s knew it, knew it could not be sold on any other basis, and could not have undertaken to execute the sell order on any other basis. At most, there was no meeting of the minds, no contract, but a bona fide misunderstanding. In such a case the parties are entitled to restitution. Herman v. Jackson, Ky., 405 S.W.2d 9 (1966). Quite aside from the rules and regulations of the stock exchange, without the new shares of stock the old shares were worth $73.50 apiece, not $147. That is all they would have brought regardless of how or through whom they were marketed. The moment Mrs. Smith refused to execute the due bill or endorse the new certificate over, she was unjustly enriched by $73.50 per share. She should have relinquished the new stock or refunded the overpayment. Had she promptly repaid $7,350, Hilliard’s could have covered the sale by purchasing 100 shares of new stock on a “when issued” basis for $73.50 a share, or thereabouts. Her failure to yield up one or thé other resulted in a further loss of more than $1,000, a damage which flowed directly from her wrongful refusal to do what was right, and for which she therefore is now held accountable. The same principle applies to the minor item of $37.50 represented by the October 12 dividend.

Taking another view of the same situation, suppose that Mr. Oeswein had been as ■circumspect as he ought to have been, and ’had explained to Mrs. Smith the terms un•der which the stock would have to be sold in order to bring $147 per share. The most :she could have done was to withdraw the ■sell order and keep the stock. What then would she have had? $14,700 worth of •stock. But instead of $14,700 worth of .stock she wound up with $14,700 in money (less the trifling amount of deductions). Since she got the money, obviously it would be unjust for her to retain half the amount ■of stock (at the expense of Hilliard’s) that -was required to be sold in order to produce it. To say it another way, in the absence of fraud or some other circumstance dis-entitling Hilliard’s to restitution, she cannot have $14,700 for $7,350 worth of stock.

Much argument has been devoted to the contention that this is not a case for summary judgment, in that certain matters alleged in the complaint and denied in the answer have not been proved. That does not make any difference. The vitals of this lawsuit were laid bare in the affidavits of the respective parties. There is no dispute on the material facts as they have been stated in this opinion. Mrs. Smith argues there is no proof that Hilliard’s borrowed 100 shares and later had to replace them at a cost of $83.875 per share, as their affidavits say, but her counter-affidavit makes no attempt at a denial beyond alleging that “there is no proof or evidence” to that effect in the form of exhibits filed with the affidavits.

“On the whole affidavits are the least satisfactory form of evidentiary materials on which to base a summary judgment * * * Nevertheless it is well settled that a summary judgment may be rendered solely on the basis of affidavits or upon affidavits or other evidentiary materials.” 6 Moore’s Federal Practice par. 56.14 [4], at 2363 (2d ed. 1965). The affidavits themselves are “proof” sufficient to warrant summary judgment in the absence of countervailing affidavits or the existence of some reason why the opposing party “is presently unable to present by affidavit facts essential to justify his opposition. * * * Since on the whole the deposition and discovery rules provide effective means of obtaining evidentiary materials, unless the opposing party is unduly hurried to a hearing on a motion for summary judgment he has access to proof, as a general proposition, even where the essential facts are within the knowledge or control of the movant.” Id. at 2364. In such a case, it has been aptly said, the affidavits “pierce the pleadings.” Id. par. 56.11 [3] at 2167.

The amended answer tendered unsuccessfully by Mrs. Smith does not contain anything inconsistent with facts as we have stated them. Hence the trial court’s action in denying leave to file it cannot have been prejudicial. Nor could the refusal of the trial judge to vacate the bench have made any difference, because nobody else could have decided the case more correctly than he did.

The judgment is affirmed.


text:
    William DUPIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    William Dupin, pro se.
    Robert F. Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

On March 12, 1965, appellant, William Dupin, was convicted of the offense of storehouse breaking and was sentenced to confinement in the penitentiary for a period of four years. No appeal was taken.

On April 19, 1965, he filed a motion to vacate the judgment under RCr 11.42, on the following grounds:

1. Violation of constitutional rights.

2. Prejudiced jury.

3. Incompetent counsel.

In a memorandum brief filed with the motion, he set out the details of his contentions. He stated that his court-appointed counsel approached him before trial and said: “For one hundred dollars I can beat this charge for you.” Petitioner replied that he had no money. Counsel then asked if he would enter a plea of guilty and take a two-year sentence if his alleged accomplice were freed. The reply was “No.” Counsel then stated that he would see that the accomplice got five years. Petitioner concluded that this showed a lack of interest and should be interpreted as incompetency.

In addition it was alleged that on voir dire examination four jurors stated that they were friends of the complaining witness and eight jurors said they had traded at his store, and when appellant asked counsel to remove the jurors that might be prejudiced in this case, the counsel’s reply was "No, leave them on the jury, none of them like him.”

The final point was that counsel refused to allow appellant to testify in his own behalf.

A response was filed by the commonwealth and on May 6, 1965, the motion, on the basis of the record and without full-dress hearing, was overruled.

On September 9, 1965, appellant filed a second motion under RCr 11.42 to vacate the judgment in which the allegations were practically the same as those in the earlier motion. It did state, however, that in the meantime he had filed a petition for habeas corpus in the Lyon Circuit Court which was overruled because he had failed to pursue his remedy under RCr 11.42. It also contained a statement that appellant was not identified or seen within miles of the place where the crime for which he was convicted occurred, and indicated that he may now contend that the evidence was insufficient to support the verdict in the case. This motion was overruled without a hearing and from that judgment this appeal is prosecuted.

Subsection (3) of RCr 11.42 reads:

“The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.”

We will not consider the matter of sufficiency of evidence because it was not raised in the first motion and was concluded by that proceeding.

The allegations made concerning the alleged conduct of appointed counsel on his first meeting with appellant indicate little more to us than that counsel was attempting to get some compensation for the work he was about to do. If appellant thought such action showed that he was disinterested, he had the right to ask the court to appoint another attorney. Short v. Commonwealth, Ky., 394 S.W.2d 937; Irby v. United States, 101 U.S.App.D.C. 19, 246 F.2d 706, cert. denied, 355 U.S. 961, 78 S.Ct. 547, 2 L.Ed.2d 535, cert. denied, 358 U.S. 890, 79 S.Ct. 135, 3 L.Ed.2d 117 (1957).

The complaint about the alleged action of counsel in regard to the jurors and in connection with his failure to place defendant upon the stand shows little more than a mere disagreement.between counsel and accused as to the manner in which the trial should have been conducted. This does not invalidate the proceeding. Jones v. Commonwealth, Ky., 388 S.W.2d 601.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Harold L. DENNIS et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.

      Robert Matthews, Atty. Gen., H. C. Smith, L. A. Faurest, Frankfort, Faurest & Collier, Tildón H. McMasters, Elizabeth-town, for appellant.
    J. Smith Barlow, Jr., Bardstown, for ap-pellees.
   PALMORE, Chief Justice.

The state highway department appeals from a judgment awarding appellees, Harold and William Dennis, $40,350 in a land condemnation case. It makes two contentions, (1) that the trial court erred in permitting Harold Dennis to testify that after the taking it would no longer be feasible for the remaining property to be used as a dairy or stock farm, and (2) that the award was excessive.

The affected property consisted of a 161-acre farm about 2% miles south of Bloomfield on State Highway 55, a blacktop road running from Bloomfield southward to Springfield. It was in a very high state of cultivation and was used as a dairy farm and for other general agricultural purposes, including the raising of tobacco. The Den-nises purchased it in 1958 for $52,500 and thereafter improved it extensively, in addition to which the value of farm lands in the vicinity has substantially appreciated.

Before the taking the property lay within one boundary, 20 acres on the east side and 141 acres on the west side of Highway 55. Two barns and a spring-fed pond were located on the east 20 acres, and a 14-room century-old brick dwelling with a stone wall in front, together with outbuildings, was situated on the west 141 acres.

The area taken by the state is now a part of Central Kentucky Parkway, including most of a cloverleaf interchange with Highway 55 plus a widening of Highway 55 along its southerly approach to the parkway (the northernmost tip of the cloverleaf area and the north approach of Highway 55 lie beyond what formerly was the Dennis north boundary). Its shape is something like that of a tomahawk, with the handle running through from the west line of the farm and the business end occupying the northeast corner. It includes a total of 42.3 acres, 12.3 acres of which come out of the east 20 acres and 30 acres out of the main or west part of the farm. A 37.28-acre portion of the property lying northwest of the parkway is left landlocked, there being no access between it and the parkway or any other existing road or passway.

The residence stood 170 feet back from Highway 55, and its yard lay almost flush with the top of a stone wall paralleling the highway. The cut of Highway 55 has been increased from 5 feet to 10 feet, the right-of-way has been moved 72 feet nearer to the house, and the stone wall has been taken and removed. A large barn, a well, and the pond (including its source-spring) located on the east 20 acres, together with other fencing along both sides of Highway 55, also have been taken.

Aside from a temporary easement which is not in issue, the verdict of the jury was as follows:

$80,500 $40,250 $40,250

[$500 per acre]

The witnesses gave these estimates:

Before After Difference

For the condemnor:

Story $71,400 $42,300 $29,100

Taylor 69,400 45,275 24,125

For the landowners:

Dennis $80,500 $30,710 $49,790

Arnold 80,600 “about 30,000” 49,000 (approximately)

Hardin 80,500 37,250 43.250

Seay 75,670 32,997 42,673

Dugan 76,475 34,412 42,063

Akers 91,150 46,900 44.250

The first question is whether Harold Dennis, after testifying that the property had been operated as a dairy and for general farming, should have been allowed to say whether it could still be used as a dairy. His answer was that it could not be used as “a self-sustaining dairy or stock farm” because there would not be enough land to grow feed and provide pasture as well. Counsel then asked and was answered as follows:

Q- “Is this factor one of the elements that affects the after market value that you testified about?”

A- “Yes, sir. Yes, sir.”

By reason of his experience and knowledge of land values in Nelson County Mr. Dennis was a fully qualified valuation witness. Cf. Commonwealth, Dept. of Highways v. Fister, Ky., 373 S.W.2d 720 (1963). As such, he was competent to enumerate and explain factors bearing upon the value of the farm and to compare the before and after values in terms of those factors. And even if he had not been so qualified, surely any evidence of diminished usability or versatility would be relevant and competent as a value affecting factor. Cf. Commonwealth, Dept. of Highways v. Burns, Ky., 394 S.W.2d 923 (1965); Commonwealth, Dept. of Highways v. Teater, Ky., 397 S.W.2d 137 (1965); Commonwealth, Dept. of Highways v. Arnett, Ky., 401 S.W.2d 762 (1965); Commonwealth, Dept. of Highways v. Sea, Ky., 402 S.W.2d 842 (1966).

There are, of course, cases in which inconvenience and restrictions in the way property can be used are not relevant. For example, if it is undisputed that the highest and best use of the land after the taking will be for a different purpose, then it makes no difference how hard it will be to continue operating it for the same purpose as before. Likewise, if it is clear that a tract cut in two will be equally or more valuable if sold in two pieces instead of as a unit, it is of no consequence that driving cattle back and forth across the new road will be inconvenient. Cf. Commonwealth, Dept. of Highways v. Roberts, Ky., 390 S.W.2d 155 (1965). But we do not have a comparable situation here. There was testimony by the state’s witnesses that in other instances property adjacent to interchanges between limited-access expressways and lesser highways has been enhanced in value by reason of commercial potential, but no one could say with any degree of assurance that it will be so in this case (especially in view of the fact that the parkway was designed to accommodate a service area within its right-of-way a very short distance from the intersection of Highway 55). The jury could reasonably infer that the highest and best use of all this property after the taking would be agricultural. That being so, the evidence that its utility for that purpose would henceforth be limited was competent as a value-affecting circumstance.

All of the witnesses, including the state’s, agreed that there had been no recent sale of any property in the area as valuable as the Dennis place. For example, the highest per acre price reflected by the comparable transactions cited by the witness Story was $273, whereas he appraised the Dennis farm at $443. Four of the witnesses for the owners, all of them well qualified, estimated it at $500 or more. The highest “comparable” sale prices being admittedly so far off the value of the property in question, it occurs to us that all of the estimates were largely in the area of guesswork anyway, and the comparable sale figures do not provide a reasonable basis for judicial interposition of a limit between $443 and $500. Hence we cannot hold that the before value of $80,500 established by the verdict was excessive.

The jury found that the value of the farm had been reduced by exactly 50%. On the face of it this might appear unwarranted, because even if the landlocked 37.38 acres be considered absolutely worthless (as some of the witnesses said), the Den-nises still have 70 acres, the equivalent of half the original farm, on which the residence and its outbuildings are situated. However, their witnesses testified, as the state’s witness Story had already conceded, that the acreage taken by the state was “part of the best land on the farm.” If the portion thus taken was of better quality than the average quality of the remainder, and the remainder was further reduced in value by its being rendered adaptable to fewer agricultural purposes, it does not appear unreasonable for the jury to have concluded, as evidently it did conclude, that the value of the house and the speculative value of the landlocked acreage were offset by these differences.

This was an exceptionally well tried case on both sides, and the record is free of error.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    William D. MESSAMORE, Appellant, v. John W. WINGO, Warden, Appellee.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    William D. Messamore, pro se.
    Robert Matthews, Atty. Gen., Harold Hotopp, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

This is an appeal from a judgment denying appellant release, from the penitentiary on a habeas corpus petition. Appellant’s contention is that the Commonwealth had lost jurisdiction to recommit him to prison as a parole violator.

In 1938 appellant was convicted in the Jefferson Circuit Court of the crime of armed robbery and was sentenced to life imprisonment. In 1947 he was paroled.

In 1949 he was apprehended in Kentucky on an Indiana warrant. He was extradited to Indiana and not long thereafter escaped from an Indiana jail. He was later apprehended in Kentucky on a federal bank robbery charge, was released to the federal authorities, and was convicted in the federal court on such charge. When he was released from federal custody in 1965, he was arrested in Kentucky on a parole violation warrant.

The substance of appellant’s contention is that when he was apprehended in Kentucky on the Indiana and federal charges the Kentucky authorities knew that he was a parole violator, and when he was released to foreign authorities Kentucky lost jurisdiction to reimprison for parole violation. The obvious fallacy in appellant’s position is that he was not released to the foreign authorities while being held in custody on the parole violation warrant. Our decision in Baker v. Commonwealth, Ky., 378 S.W.2d 616, is dispositive of this case.

The judgment is affirmed.


author: STEWART, Judge.

text:
    Estill R. SIZEMORE, Appellant, v. Charles B. BENNETT, Jr., Administrator of the Estate of C. Bentley Bennett, Sr., Deceased et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    C. B. Creech, Ashland, for appellant.
    Frank K. Warnock, James W. Lyon, Sr., Greenup, Howard VanAntwerp, III, G. B. Johnson, Jr., Ashland, Thomas Theobald, Jr., Grayson, for appellees.
   STEWART, Judge.

This appeal questions the order of the Greenup Circuit Court in setting aside a judicial sale.

The facts in this case are not in dispute. C. Bentley Bennett, Sr., died intestate, survived by three sons and two daughters. There were a great many debts owed by the decedent, and his estate was not liquid. In a suit filed to settle his estate, it was ascertained his indebtedness was approximately $25,585 and there were many creditors. In due course the circuit court by judgment directed a special master commissioner to hold two public sales of the decedent’s property. One separate sale, the only one this appeal is concerned with, was for the purpose of selling 176 unimproved lots in the Bennett Addition to the City of Raceland in Greenup County. Two persons appointed to appraise this property placed a value of $200 on each lot, or a total valuation of $35,200 on all of them.

The order of sale provided that “ * * * Before selling said real estate and property known as the Bennett Addition as set out herein, it shall be advertised by the special master commissioner by written or printed notices posted one at the Greenup County courthouse door in Greenup, Kentucky, and three (3) other public places in the vicinity of the land to be sold for at least fifteen (15) days before the sale, and also by advertising the time, terms and place of sale in the Greenup News and Russell Times, newspapers of general circulation in Greenup County, Kentucky, said advertisement in said newspapers to be made in three (3) issues immediately preceding said sale and, further, by block advertisement in the Ashland Daily Independent, Boyd County, Kentucky, which is a newspaper of general circulation in the vicinity and location of the land mentioned herein for three (3) consecutive days during the said advertisement period of said three (3) weeks of said Greenup News and Russell Times. The special master commissioner shall also have said real estate appraised as required by law.”

The report of the special master commissioner recited that the property was duly advertised for sale according to law, that the highest and best bid for a considerable portion of the 176 lots of the Bennett Addition was $11,915, and that the highest and best bidder was Estill R. Size-more, appellant herein. On December 18, 1965, eighteen days after the sale and seven days after the report of sale, counsel for the estate moved to enter an order setting it aside and holding it null and void.

The exceptions to the sale were that, fifteen days prior thereto, advertisement was properly made in the Russell Times but that in two issues of the Greenup News the date of sale was incorrectly stated as being the last day of December instead of the first, and that in the Ashland Daily Independent a block advertisement of the sale was carried in only two issues. It was shown, in addition, that the Greenup News, in all three issues, erroneously failed to advertise two lots, although both the judgment and the notice of sale prepared by the special master commissioner stated that these lots were to be sold. That newspaper also, in all three issues, recited that another lot would be sold which was not included in the judgment or in the commissioner’s notice of sale.

At a hearing on the motion to set aside the sale the affidavits of H. R. McWhor-ter and R. D. Mantz, two citizens of Greenup County, were presented. These affiants stated that each of them read an issue of the Greenup News which recited that the sale of the lots was to be held the last day of December, 1965; that they clipped the notice of sale from the newspaper and kept it to remind them of the date; that they were interested in purchasing some of the lots and intended to attend the sale; and that they did not discover the sale had been held on December 1, 1965, until it was over.

The trial court sustained the exceptions to the report of sale, thereby voiding it. The basis for taking such a step is thus set forth in the trial court’s opinion: “The Greenup News is the principal organ for advertising court sale in this jurisdiction. The Greenup News erroneously advertised the date of sale and made other errors in the advertisement. At least two prospective purchasers were prevented from bidding because of the errors. The lots brought less than one-third of the appraised value.”

Did the irregularity in the advertising furnish a valid ground for nullifying the sale? The trial court, in setting aside the sale, took the position that, because the advertising was faulty in the leading newspaper in Greenup County, this directly caused two potential bidders not to attend the sale. Then, too, we believe the opinion infers the incorrect date could have resulted in a bid that was far below the actual value of the property.

KRS 426.700, so far as it relates to the advertisement of property to be sold at a judicial sale, provides that every sale “ * * * shall be made after such notice of the time, place and terms of sale as the order may direct; * * See, however, KRS 426.560, which became effective June 16, 1966. This section of the statutes will apply to any judicial sale that may be made hereinafter in this case.

In 31 Am.Jur., Judicial Sales, § 59, p. 430, it is stated: “The time at which the sale is to be made should be clearly stated in the notice. A mistake in giving the date will be fatal if it is of such character as to make the notice in that respect ambiguous or misleading to the public, as where a sale is advertised to be made in one year when intended to be made, and is actually made, in the succeeding year.”

In Miller v. Title Insurance & Trust Co., 278 Ky. 598, 129 S.W.2d 163, the judgment directed that the advertisement should be by printed handbills and by newspaper notices. It was disclosed that the newspaper advertising was properly done but that the handbills were not posted. This court, in setting aside the sale, gave this reason why the order directing handbill notices should not have been disregarded:

“But where such form of notice or manner of advertising is ordered by the judgment, a failure to observe such terms is fatal to the sale.”

It is asserted, however, appellees were estopped to object to the sale, because it is uncontradicted that their attorneys knew a week prior to the day of sale that the Greenup News in the first two issues had carried an incorrect date in respect to the day of sale; and it is argued the sale could have been called off if they had acted promptly upon the basis of this information. However, it appears to be conceded that, prior to the day of the sale they were unaware of the omission in the newspaper notices of two of the lots to be sold and of the erroneous inclusion therein of another lot not to be sold, and of the failure of the Ashland Daily Independent to carry the block advertisement in three issues.

The trial court made the following observation: “Nothing that plaintiff’s attorney could have said at the sale could have had any legal effect on the sale. The commissioner was in charge of the sale and he was acting as an arm of the court and his actions were not subject to the control of either or any of the parties to this action.”

Estoppel is based upon the principle that one who failed to act when he should have acted should not reap a profit to the detriment of his adversary. In the case at bar ten days were allowed in which to investigate the sale and file exceptions to the report of the special master commissioner. Appellees acted within the prescribed period and, as the bid had not yet become finalized by confirmation of the report of sale, appellant was never placed off balance. Furthermore, as the trial court pointed out, appellees sought to obtain the relief they contended they were entitled to from the only source which was empowered by law to pass upon their motion to vacate the sale.

Appellant here cannot be heard to say he was harmed by the fact that appellees’ counsel did not call off the sale, when the judgment and the notices prepared by the special master commissioner were not complied with by the Greenup News and the Ashland Daily Independent. This is so because the judgment and order of sale in this case are public records and all the bidders were placed on notice of their terms. See Noel v. Harper et al., 170 Ky. 657, 186 S.W. 503. Appellant, as well as appellees, must be charged equally with the knowledge that the terms of the advertising were not carried out in conformity with the judgment and order of sale and, as a consequence, the validity of the sale might be questioned.

As we have noted the lots involved in this appeal were appraised at $35,200 and the sale price as reported by the special master commissioner was $11,915. In the light of these facts, appellees insist the price bid is so out of range to the actual value of the property as to raise a presumption of irregularity.

Mere inadequacy of price, standing alone, is not a ground for setting aside a judicial sale. But where the price bid is greatly disproportionate to the actual value of the property only slight additional circumstances are required to make it the duty of the trial judge to set aside the sale. See Bean et al. v. Hoffendorfer et al., 84 Ky. 685, 2 S.W. 556, 3 S.W. 138, 8 Ky.Law Rep. 739. This principle of law is well established in this forum, and reference is made in this connection to the many cases cited in 12 Ky.Dig., Judicial Sales, @=» No. 40.

It is undisputed in the record that the Greenup News, the leading news medium for publishing judicial sale notices in Greenup County, advertised an incorrect sale date in two of three issues of that newspaper; that in all three issues of that newspaper there was an omission of two lots described in the judgment and order of sale; that in all three issues of that newspaper another lot, not embraced in the judgment and order of sale, was listed to be sold; and that the Ashland Daily Independent, which was duly directed to publish three notices of the sale, inserted only two.

The trial court believed these many errors in advertising, coupled with a finding that the sale price was inadequate, must be deemed to be prejudicial to the substantial rights of the heirs at law and the creditors of the estate. Furthermore, from the affidavits of H. R. McWhorter and R. D. Mantz, which stated they were misinformed as to the true sale date, the trial court was of the view that actual prejudice was established.

It is our opinion that under the facts presented and the law applicable thereto, the trial court properly set aside the sale.

Wherefore, the judgment is affirmed.


author: HILL, Judge.

text:
    Frances Perkins SLOWEY, etc., Appellants, v. Katie JENKINS et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.

      Tom Alexander, Butler, Binion, Rice, Cook & Knapp, Houston, Tex., George B. Boston, Bowling Green, for appellants.
    Joe S. Garman, Marshall Funk, Bowling Green, for appellees.
   HILL, Judge.

By this opinion, we undertake to construe Item III of the will of Anna Carroll Jenkins, first wife of Allen L. Jenkins. The controversy is between Katie Jenkins (the second wife of Allen L. Jenkins and appel-lee herein) and appellant Frances Perkins Slowey, the adopted daughter of Anna Carroll and Allen L. Jenkins.

Allen L. Jenkins died shortly after his second marriage, which was to appellee Katie Jenkins.

We quote “Item III” in its entirety:

“ITEM III: I give, devise and bequeath all of my remaining estate, of whatever kind and nature, that I may own at my death to my husband, Allen L. Jenkins. However, and without any limitation, restriction or encumbrance as to the title of my husband, Allen L. Jenkins, in and to the property devised and bequeathed to him above, I do request of him that in the event my adopted daughter, Frances Perkins Castleman, desires to make her home with my husband, Allen L. Jenkins, said home being located at 1807 Normal Boulevard, Bowling Green, Warren County, Kentucky, that in that event my husband grant her desire. Also, and again without any limitation, restriction or encumbrance as to the title of any of said property, I do request of my husband that should my adopted daughter, Frances Perkins Castleman, during the lifetime of my husband, because of any change in her physical, mental or financial condition require assistance, that my husband come to her aid and, if necessary, and if he so desires, that he will use any or all of my estate which he inherits from me under this will for her benefit.
“In the event my husband, Allen L. Jenkins, predeceases my adopted daughter, Frances Perkins Castleman, then in that event all of my estate shall go to my adopted daughter, Frances Perkins Castleman.”

It was the opinion and judgment of the circuit court that Allen L. Jenkins took an absolute fee simple title “without any limitation, restriction or encumbrance.” Under this judgment, appellee Katie Jenkins inherited from Allen L. Jenkins, who has since departed this life. Appellant Frances Perkins Slowey contends that her adoptive parent, Allen L. Jenkins, took a life estate, or “defeasible fee,” under Item III of the will of her adoptive mother. We agree and reverse the judgment.

Of course, the fundamental rule in will construction directs that the intention of the testator he determined from the contents of the will. Greenway v. White, 196 Ky. 745, 246 S.W. 137, 32 A.L.R. 1385 (1922); and Phelps v. Stoner’s Adm’r, 184 Ky. 466, 212 S.W. 423 (1919).

More specifically, our question here is whether an initially devised fee title may be thereafter modified, qualified or reduced so as to reduce it to a life estate. The answer to this question is well stated in DeCourley v. Tucker, Ky., 383 S.W.2d 337, 338 (1964), from which we quote:

“Prior to our decision of April 23, 1948, in Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, 17 A.L.R.2d 1, * * * it was the rule in this state that where property is devised to one absolutely with unlimited power of disposition and by a subsequent provision of the will the testator undertakes to devise whatever may be left at the first taker’s death, the limitation over is void and the first taker acquires a fee simple title * * *. The Hanks case abolished this rule .•* * * >>

It was written in Hanks, supra:

“It will be remembered that the Polar Star rule is that the intent of the maker •of the instrument shall prevail and be •enforced, unless it antagonizes a statute •or is against public policy. We have no ■statute forbidding the modification or •qualification of the apparent fee title given to the first taker so as to reduce that title to a life estate. Therefore, the only ground for the declaration and application of the ‘Biting’ rule, which as we have said has prevailed in this state for a number of years, is that it is against public policy.
* * * * * *
“To first vest one with a fee title, but -in the same conveying instrument manifest an intent and purpose to limit it to a life estate (even with power to encroach upon the corpus of the property) and then direct that if the first taker should die without appropriating for his personal benefit the entire property, the remnant thereof should go to others is not forbidden by any definition of public policy(Emphasis ours.)

The circuit court concluded the use of the words “without any limitation, restriction or encumbrance as to title” in Item III had such “impact on the testator’s intention” that “nothing bestowed upon her (the daughter) shall establish a limitation, restriction or encumbrance upon the title of property given the husband.”

It must be remembered that the same words were used in connection with testator’s “request” that the daughter be allowed to reside in the house at 1807 Normal Boulevard, in the event she so desired, as were used in connection with her “request” that in the event the daughter “required assistance,” her needs be met. These words of limitation and restriction have no reference to the last paragraph of Item III. It clearly provides one, and only one, condition on which the daughter may inherit the remnant of her estate, and that condition is: “In the event my husband, Allen L. Jenkins, predeceases my adopted daughter. * * * ”

We have no difficulty in arriving at the intention of the testator. Our perplexity is brought about by the various and indiscriminate designations of certain estates by the writers of our case law. The estate taken by the husband in the present case has been variously designated a “defeasible fee,” a “consuming life estate,” and others.

At common law, an absolute fee simple title with power of disposition or appointment could not be followed by or converted into a remainder or executory interest because the two estates were considered repugnant and impossible as the entire estate had already vested in the holder of the fee simple title. We quote an interesting comment by J. J. Dukeminier, Jr., from the Minnesota Law Review, Vol. 43:13, p. 28 (1958-59):

“Out of a dictum of Chancellor Kent grew a rule that an executory interest limited after a fee was void if the owner of the fee had the absolute power to dispose of the property. The typical situation in which this rule may be invoked is a devise of property ‘to my wife absolutely, to do with as seems best for her, but if any of the property remains undisposed of at her death, then to A.’ The remnant gift over to A, an executory interest, is void if the rule is applied. The rule can not be applied to a contingent remainder, since the rule presupposes the prior estate is a fee, and a remainder by definition cannot follow a fee.
“The rule is entirely illogical as a matter of theory. There is no reason why a valid executory interest cannot be limited subject to being destroyed by the exercise by another of a power of disposition.” (Emphasis ours.)

A suitable definition of the estates created in the present case may be found in Restatement of the Law, Property, section 46, p. 147, from which we quote:

“(1) Except as stated in Subsection (2) (no application here), an estate in fee simple subject to an executory limitation exists when any limitation, in an otherwise effective conveyance of land,
(a) creates an estate in fee simple in a conveyee, or leaves an estate in fee simple in the conveyor or his successor in interest; and
(b) provides that the estate subject thereto, upon the occurrence of a stated event is to be divested, before the normal expiration thereof, in favor of another interest in a person other than the conveyor, or his successor in interest.”

Allen Jenkins had a defeasible fee simple title with a power to convey a fee simple absolute title as to any or all of the property. That is, his fee simple title was subject to being defeated by the contingency of his predeceasing Frances without having theretofore exercised his power of disposal. Frances had a contingent future interest denominated as an executory interest, or an estate upon a conditional limitation. That is, the fee simple title to whatever Allen Jenkins had not transferred or consumed during his lifetime was limited to shift from him to her if and when he died and she survived. Though not recognized by the common law of medieval times, this cutting off and transference of a fee simple title, called a shifting use, was legitimated in law as well as equity by the Statute of Wills (1540) and the Statute of Uses (1536).

The judgment is reversed with directions to enter another consistent herewith.