author: HOGAN, Judge.

text:
    R-, Plaintiff, Appellant-Respondent, v. M-, Defendant, Appellant-Respondent.
    Nos. 8271, 8273.
    Springfield Court of Appeals. Missouri.
    Nov. 13, 1964.

      Veryl L. Riddle, Riddle, O’Herin & New-berry, Malden, for plaintiff, appellant-respondent.
    Charles M. Cable, John W. Noble, Bradley & Noble, Kennett, for defendant, appellant-respondent.
   HOGAN, Judge.

This is a divorce action. The husband is the plaintiff; the wife is the defendant. The plaintiff filed suit for divorce, stating as his grounds that the defendant had committed adultery and had offered him certain intolerable indignities. The defendant countered with a cross bill for separate maintenance, alleging that the plaintiff openly consorted with other women during their marriage, and charging certain other indignities. Both parties sought custody of their minor children. The trial court has denied a divorce to either party and both have appealed. The two appeals were consolidated in this court.

The plaintiff, at trial time, was 63 years old. He is a funeral director, though not a licensed embalmer, and is the principal officer and director of a corporation which operates funeral homes at Campbell and Malden, Missouri, with sub-offices in other locations. The record indicates that he has' been engaged in this business for many years. He is assisted in the operation of this business by Mrs. B., to whom he was formerly married. Mrs. B. is a licensed embalmer, and her duties include “keep--[ing] the books,” and “she sees about the funerals and gets records.” Mrs. B. is a-substantial shareholder in the corporation which operates the funeral business, and the record indicates that during all the time here in question she has been closely associated with the plaintiff in the operation of his business.

In 1945, after the plaintiff and Mrs. B. were divorced, he and the defendant were married. The parties are the parents of three children, a son aged 17, and two daughters, one 16 and the other 12. We infer that all of these children were born before the parties finally separated in 1951. These children now live with their mother. The parties, as we say, have been separated since 1951, and during all this time the defendant and the children have lived in what is best described as an annex to the funeral home — “built under the same roof * * * but different entrances” — while the plaintiff has continued to live in the adjoining funeral home. The apartment, or annex, in which the defendant and her children reside, consists of a living room, one bedroom, a kitchen and a bathroom. The children sleep in the bedroom, which is partitioned by the use of dressers, while the defendant sleeps in the living room where she “makes out a folding couch” each night. The record indicates that though the plaintiff contributes substantially to the children’s support, he otherwise has little contact with them. The plaintiff’s position is that the defendant has deliberately alienated the children from him, while the defendant maintains that the plaintiff “just treats them like they were strangers” and “doesn’t even recognize them.” Thus, whatever the basic source of their difficulties, the parties appear to have lived for the past thirteen years in an- atmosphere of considerable hostility at relatively close quarters, substantially without change since their final separation.

The parties in this instance presented evidence of a number of episodes, through which there run, so to speak, a number of recurrent themes. Each expressly accused the other of adultery, and each presented evidence which we must in fairness say tends to support the accusation. The plaintiff’s evidence was that the defendant had openly consorted with a number of men, and one of these men, an automobile mechanic, testified that he had seen or been with the defendant “every week or something like that” for a period of “maybe a year.” Sometimes this man would be alone with the defendant, and “sometimes the children were with us.” This witness positively testified to having sexual intercourse with the defendant on several occasions. Testimony given by the witness’ former wife tended to corroborate his evidence.

Another man, who appears to have been án appliance dealer in a nearby city, was also shown to have associated with the defendant in a rather intimate and imprudent fashion, though there is no positive testimony that the defendant ever actually committed adultery with him. The plaintiff’s evidence with regard to this man was that his car was seen parked near the defendant’s quarters on numerous occasions, and that the defendant had referred to him as her “boy friend.” A former police officer testified that on one occasion he saw the appliance dealer go toward the defendant’s apartment about 10:00 P.M. and leave about 1:45 A.M., during which time no lights were visible in the defendant’s house. Presumably the children were in the house at the time. The defendant categorically denied any improper association with either man.

On the other side of the scale, there is evidence that the plaintiff himself had, on at least one occasion, been guilty of adultery. Though we are inclined, on this particular point, to accept her testimony with some reserve, the defendant stated that during their marriage the plaintiff lived with his former wife “just like he had two wives under the same roof,” and further related an incident, which occurred while the plaintiff was in the hospital, when a woman, unknown to the defendant, “walked in and commenced to kissing him [plaintiff] and hugging him and making over him like she was his wife.” More substantial, though the plaintiff makes vigorous efforts to avoid its effect, is the testimony of the parties’ son, who stated that he had seen his father associating with other women, “walking along the street and eating at the restaurant, talking and driving around together,” and that on one occasion, while he was working near his father’s sleeping quarters, he overheard his father making love to a young waitress from a local cafe, and that at the time “he [the plaintiff] was having sexual intercourse with her.” The plaintiff flatly denied these incidents or any improper association with other women.

It is apparent that the presence of Mrs. B. has produced discord between the parties. Again and again some mention of the hostile feeling between the defendant and the plaintiff’s former wife appears. The plaintiff’s view is that Mrs. B. has been a trusted and necessary employee; she appears to be in charge of one of the funeral homes in which the plaintiff is interested, and she is a substantial shareholder in the corporation which owns and operates the funeral homes. Exhibits introduced at the trial make it appear that at one time or another she has either invested or loaned a considerable amount of money to the corporation, and the corporation is now indebted to her. The defendant, on the other hand, understandably regards Mrs. B. as a rank and most unwelcome intruder. Indeed, a substantial part of the parties’ immediate difficulty seems to have sprung from the fact that the plaintiff, by incorporating his assets and by agreeing that his corporate shares shall be transferred to the other shareholders for cash upon his decease — the record indicates that he has been seriously ill — has effectively put his assets into Mrs. B.’s hands and out of reach of defendant and her children. In this respect, we agree that she may have some cause for concern.

On at least one occasion, the defendant and Mrs. B. have openly fought. The plaintiff’s version of this incident is that the defendant made á wholly unprovoked assault on Mrs. B., and in the process not only injured Mrs. B. but called her an “old whore and son-of-a-bitch.” The defendant maintains that the altercation was wholly provoked by Mrs. B.

Each party has accused the other of physical abuse, in some degree. The defendant testified that on several occasions the plaintiff had assaulted her without provocation. At one time, the defendant said, after she and Mrs. B. had engaged in some kind of argument, or had had some difference which angered Mrs. B. and Mrs. B. threatened to leave, “he [plaintiff] put his hands around my throat and hit my head against the wall and he said ‘I’ll kill you for running my embalmer off.’ ” On another occasion, while the children were small, the plaintiff attacked the defendant after she had remonstrated with him because of his neglect of the children, and “threw me down on a trunk and give me a good beating.” Once while the defendant was burning trash the plaintiff, having' become angered over some matter, attempted to run the defendant down with a truck or an automobile, and the defendant testified that on one occasion the plaintiff had pointed a pistol at her and had threatened to kill her. The plaintiff has positively denied mistreating his wife. His testimony on this subject was that he “never touched her. I never beat her up.” On one occasion, the plaintiff testified, the defendant threatened to break all the glass out of one of his funeral coaches, and because of the ensuing altercation he “paid a fine,” but did so only “to satisfy her [defendant].”

Repeated reference is made to the plaintiff’s indifference to the children. The plaintiff himself testified that the children “don’t even recognize me.” Being asked why the children “have not been friendly * * * for the past few years,” the plaintiff answered, “they do whatever she [defendant] tells them.” While there is no question, as we have said, that the plaintiff has contributed substantially to the children’s support, the children themselves apparently consider that he is indifferent to them, for the parties’ son and their older daughter testified that he seldom speaks to them, and they obviously have the impression that he considers them inferior and not worthwhile. The plaintiff concedes that the defendant alone has reared the children, although he denies that she has “done a good job.” The plaintiff’s proof, in fact, is to the effect that the defendant has deliberately encouraged and assisted their son in stealing money from the funeral home over a considerable period of time and in substantial amounts, and indeed there is evidence that he may have done so, though both the son and the defendant categorically deny it. The defendant, on the other hand, believes that plaintiff’s attitude toward the children has been influenced by his former wife, even though she says that he refuses to associate with them, and “just treats them like they were strangers.” At all times, defendant says, “I have tried to teach them to love him and respect him.”

It must be said that the parties have made some attempt to resolve their differences. Though the subject is not very fully developed in the record, it appears that in 1953 the defendant brought a separate maintenance action against the plaintiff, which was either unsuccessful or was voluntarily dismissed, and it also appears that at some later time, possibly in 1961, the parties entered into a written separation agreement in an attempt to settle their property rights. These attempts to resolve their differences have, like the parties’ whole marital career, been frustrated by their mutual suspicions and hostility. It appears that by the terms of this agreement the plaintiff is obligated to pay the defendant a fixed sum for support and maintenance, and to provide her with different and presumably more adequate quarters; he has testified that he has attempted to comply with the agreement. The defendant appears deeply suspicious of the plaintiff’s motives in effecting the agreement, for he seems contemporaneously to have incorporated his assets, as we have said, and to have arranged for his former wife to become a substantial shareholder. The shareholders have apparently agreed that upon the death of any shareholder, his stock will be transferred to the remaining shareholders in return for a specified sum to the deceased shareholder’s estate, and the defendant regards both the separation agreement and the corporate agreement as having been “made with bad intentions.” The defendant believes that the plaintiff’s mind has been affected by the disease or illness from which he has suffered, and believes that “they [presumably Mrs. B. and her husband] are trying to get hold of his property, his money and all of his property * * * so they will have their access to him.”

Both parties, we must say, produced apparently credible witnesses who testified to their good character.

Both parties make a number of arguments designed to avoid the impasse at which they find themselves. The defendant argues that evidence of adultery committed by her should not have been received and should not be considered by us, because the petition alleged only acts of adultery occurring before the parties’ separation in 1951 while the acts proved occurred in 1956.

As a point of pleading, we consider the defendant’s objection to have some merit. The petition alleged dates only in connection with the marriage, separation and birthdays of the children. The only averment alleging the commission of adultery is that the defendant “did commit adultery.” Neither the time and place of the offense nor the person with whom it was committed is stated, and ordinarily adultery must be alleged with such certainty of averment as to time, place and person as will enable the person charged to meet the allegations with proof. Though there are a good many exceptions and limitations to this rule of pleading, we are of the view that the defendant was entitled to a more definite statement of the charge of adultery than was contained in this petition, and that the part of the petition charging adultery would probably have been subject to a motion for more definite statement as provided by Rule 55.34.

The theory of the plaintiff’s action is clear, however, and the jurisdictional facts are alleged. While the plaintiff’s averment of adultery is seriously deficient, it is joined with allegations of indignities, and the petition as a whole stated a cause of action. The defendant did not move the trial court for a more definite statement, so far as the record shows, but pleaded over tó the merits. The only complaint defendant has in respect to the charge of adultery is the want of specification of the acts constituting the charge, and though that complaint is substantial, we believe it was waived by failure to object by motion. • .

The plaintiff argues that defendant has condoned any misconduct of which he has been guilty. His argument on this point is somewhat diffuse, but he appears to contend that by executing a separation agreement the defendant has condoned any breach of the marital obligation on his part. We believe we must reject this argument, primarily because we cannot find any evidence in the record before us to support it. To establish condonation, some evidence must appear which shows an intent to forgive and become reconciled with the offending spouse, and we find no evidence of any conciliatory spirit on the part of the defendant. Despite her testimony that she “intends to see that he [plaintiff] is taken care of,” we are unable to perceive anything in her course of conduct indicating her intention to forgive the plaintiff or to restore the marital relation. So far as the record shows, the separation agreement amounts only to a voluntary agreement to live separately and apart. Since the agreement itself is not in the record (though we are assured that it was executed in writing) we cannot know what the parties recited therein about their past-grievances, but such authority as we have found on the-point indicates that the fact that the parties agreed to live apart under articles of separation would not in itself imply condonation of past offenses, Potts v. Potts, N.J.Ch., 42 A. 1055, 1058; Fosdick v. Fosdick, 15 R.I. 130, 23 A. 140, 141; Anno., 32 A.L.R.2d 107, 147 (1953), nor amount to a connivance at the plaintiff’s subsequent adultery, Donohue v. Donohue, 159 Mo.App. 610, 613, 141 S.W. 465, 466 [3, 4]; Anno., 17 A.L.R.2d 342, 371-372, Section 15, which we consider to be established by substantial evidence.

The parties have energetically advanced a number of other arguments which we have carefully considered. It is our view, however, that the merits of this appeal cannot be resolved along the lines they propose. It is familiar learning that while our statute enumerating the causes for divorce (Section 452.010) speaks in terms only of the “injured” party, a divorce may be granted only if the party seeking it affirmatively shows that he is both an injured and “innocent” party. Of course the requirement of “innocence” means only that the applicant must show that he himself has not committed any offense which is a cause for divorce. Nevertheless, the burden of showing “innocence” is an affirmative burden, and though the cross bill here is for separate maintenance, the burden of proof is substantially the same. And whether on petition or upon cross bill, if the party seeking relief has himself been guilty of conduct which would entitle the opposite party to a divorce, he or she must fail,- notwithstanding the evidence might be otherwise sufficient. Hoffman v. Hoffman, supra, 43 Mo. at 551; Gruner v. Gruner, 183 Mo.App. 157, 177-178, 165 S.W. 865, 871. What each party proved here was essentially recriminatory matter— counter accusations — the effect of which was not to exonerate the offending spouse but merely to prevent the injured opposite from being “innocent” within the meaning of the law. Of course, as the defendant points out, if “both parties have been guilty of adultery,” then the statute in terms forbids granting a divorce, Section 452.030; but it has also been clear from an early day that any ground of divorce may be recriminated, or offset, so to speak, by any other, Nagel v. Nagel, 12 Mo. 53, 56-57, and therefore even if we set aside the testimony tending to prove an adulterous act on plaintiff’s part, as he urges we should, still no divorce can be granted if he has offered the defendant indignities within the meaning of the statute, Section 452.010. Unless the trial court’s implied finding that both parties are guilty of misconduct amounting to a cause for divorce is “clearly erroneous” [Rule 73.01(d)], we must affirm the judgment, because we cannot compare the parties’ conduct in relative terms and award a divorce or decree of separate maintenance to the one least at fault; the doctrine of “comparative rectitude” does not obtain in this state.

The plaintiff argues, with considerable logical force, that the marriage relation here is “as dead as the ashes of a long forgotten campfire,” and forthrightly suggests that it would be in the best interests of the parties and the state if the marriage relation were dissolved, regardless of fault. Possibly so. It has been cogently argued that the whole idea of mutual recrimination, and the principle that if both parties are at fault neither may have a divorce, are unrealistic anachronisms, leading to an increase in migratory divorce and hypocritical evaluation of the evidence in appellate opinions to avoid the force of these doctrines. Such superficial research as we have done indicates that nearly half the American jurisdictions now allow divorce simply pursuant to separation for a specified time. Generally, under these statutes, it is held that the separation must have been voluntary in its inception or have become so by acquiescence, but a divorce can ordinarily be granted without regard to marital fault; that is, it is not necessary that the party seeking a divorce be either without fault or be the “innocent and injured” party. The public policy of these statutes is said to be “ * * * that where a husband and wife have lived apart for a long period of time, without any intention ever to resume conjugal relations, the best interests of society * * * will be promoted by a dissolution of the marital bond.” Anno., supra, 51 A.L.R. at 764. Were the so-called “policy decision” ours, we think we could agree that the perpetuation of the marriage in this case serves no useful purpose, either for the state or for the parties. Certainly it does nothing to alleviate the appalling situation in which these litigants and their children find themselves merely to say that since neither is without fault, we must leave them to “their common remedy in common humiliation, and mutual forgiveness.”

It is clear, however, that divorce in this state is a wholly statutory proceeding, State ex rel. Couplin v. Hostetter, 344 Mo. 770, 775-776, 129 S.W.2d 1, 4 [8], and we may not broaden the statutory provisions judicially. Ezell v. Ezell, supra, 348 S.W.2d at 597; Chapman v. Chapman, supra, 230 S.W.2d at 150-151; Allen v. Allen, Mo.App., 60 S.W.2d 709, 712 [8], As we have noted, we believe that in this situation, as in a case where both parties seek a divorce, the rule is that if both parties are entitled to a decree, then neither may have it. We are not prepared to say that there is no credible evidence tending to prove that both parties have been guilty of adultery; rather, we believe there is substantial evidence to show that both have, and in that case the language of the statute forbids granting of a divorce. Section 452.030. We need not, for the purposes of this opinion, consider all the inferences possible from the facts adduced, but even if we set aside or ignore the evidence of plaintiff’s adultery as the fabrication of a resentful adolescent, as the plaintiff urges, still we could not say there is clear error in refusing him a decree. During all the time plaintiff and defendant were married, the plaintiff’s former wife was not only in close proximity but worked in close association with the plaintiff. The jealousy, suspicion and resentment which this aroused on the defendant’s part is evident, and probably natural. The defendant believed, and testified, that plaintiff deferred to his former wife, and that on one occasion plaintiff attacked her, the defendant, because she had angered Mrs. B. The defendant’s evidence was that when she was separated from the plaintiff and given her present quarters, she was obliged to keep house with Mrs. B.’s castoff furniture, while plaintiff’s former wife was furnished with more comfortable quarters across the street. The defendant wag obliged to remain completely away from the funeral home because the plaintiff feared conflict between the two, and on at least one occasion Mrs. B. and the defendant fought openly. Finally, at-least from the defendant’s viewpoint, it appears that the plaintiff has in effect placed his assets in Mrs. B.’s hands and out of the reach of the defendant and her minor children. We do not say, nor mean to infer, that there is any very convincing evidence indicating an adulterous relationship between the plaintiff and his former wife. At the same time, we consider it entirely reasonable to say that plaintiff’s long continued and close association with his former wife, and his deference to her wishes and feelings, over the defendant’s objections, constitute a course of conduct “subversive of the family relationship,” amounting to indignities and grounds for divorce. In such a view of the facts, the plaintiff’s charge of adultery stands offset or recriminated by such indignities.

We do not comment, nor mean to comment, upon the moral aspects of this situation. We do not know, nor can we determine, the original sources of discord between the parties. Whatever they were, they have been aggravated and intensified by years of estrangement and hostility, vigorously refreshed and renewed on many occasions. It does appear that both parties have grounds for divorce, and therefore a decree must be refused to both of them. The judgment must therefore be affirmed. .

RUARK, P. J., and STONE, J., concur.

      . Poole v. Poole, 221 Iowa 1073, 265 N.W. 653, 658-659 [8]; Freeman v. Freeman, 39 Minn. 370, 40 N.W. 167; Anno., 2 A.L.R. 1621, 1622 I (1919); 17 Am.Jur., Divorce and Separation, §§ 336-338, pp. 499-501; 27A C.J.S. Divorce § 108b, pp. 373-374.

      . See Anno., supra, 2 A.L.R. at 1628-1631.

      . All references to statutes and rules are to RSMo (1959) V.A.M.S. and V.A.M.R., except as otherwise noted.

      . Empire Storage & Ice Co. v. Giboney, 357 Mo. 671, 677-678, 210 S.W.2d 55, 58-59 [4, 5], aff’d. 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Hamilton v. Linn, 355 Mo. 1178, 1182, 200 S.W.2d 69, 71 [9, 10]; State ex rel. and to use of Braneato v. Trimble, 322 Mo. 318, 322, IS S.W.2d 4, 5 [3, 4]; Kreisman v. Kornfeld, Mo.App., 208 S.W.2d 79, 81-82 [1, 2]; see Conant v. Conant, 10 Cal. 249, 254.

      . Pobst v. Pobst, Mo.App., 317 S.W.2d 655, 660-601 [2] [3, 4]; Forbis v. Forbis, Mo.App., 274 S.W.2d 800, 808-809 [31-35]; Weber v. Weber, 195 Mo.App. 126, 132, 189 S.W. 577, 579 [5]; 1 Nelson, Divorce and Annulment, § 11.-01, pp. 373-374 (2d ed. 1945); 17 Am. Jur., Divorce and Separation, § 230, p. 415.

      . Franklin v. Frankin, 365 Mo. 442, 446, 283 S.W.24 483, 485-486 [6-8]; Simon v. Simon, Mo., 248 S.W.2d 560, 562 [1]; Hoffman v. Hoffman, 43 Mo. 547, 549; Cody v. Cody, Mo.App., 233 S.W.2d 777, 781 [5]; Chapman v. Chapman, Mo.App., 230 S.W.2d 149, 151 [3, 4],

      . Simon v. Simon, supra, 248 S.W.2d at 503 [2, 3]; Hoffman v. Hoffman, supra, 43 Mo. at 549; Langshaw v. Langshaw, Mo.App., 331 S.W.2d 15, 18 [2]; Chapman v. Chapman, supra, 230 S.W.2d at 151 [3, 4],

      . Simon v. Simon, supra, 248 S.W.2d at 562 [1]; Fudge v. Fudge, Mo.App., 355 SW.2d 381, 382-383 [2, 3]; Ezell v. Ezell, Mo.App., 34S S.W.2d 592, 597-599 [11, 12] ; Ellebrecht v. Ellebrecht, Mo.App., 243 S.W. 209, 210 [3],

      . Glick v. Glick, Mo., 372 S.W.2d 912, 915 [8-10]; Ellis v. Ellis, Mo., 263 SW.2d 849, 853 [3, 4]; Forbis v. Forbis, supra, 274 S.W.2d at 807 [24-28]; Meredith v. Meredith, Mo.App., 166 S.W.2d 221, 223 [1]; Anno., 49 L.R.A..N.S., 86. Of. Pichel v. Pichel, 291 Mo. 180, 204-205 (V), 236 S.W. 287, 293-294 [3], indicating- that separate maintenance is actually a remnant of the action for divorce from bed and board.

      . Nagel v. Nagel, supra, 12 Mo. at 56; Coons v. Coons, Mo.App., 236 S.W. 358, 359 [1, 21; Barth v. Barth, 168 Mo.App. 423, 427, 151 S.W. 769, 770-771 [2]; see Aschemeyer, Some Aspects of Missouri Divorce Law, 27 Mo.L.R. 332, 352-353 (1962).

      . See Weinstein, Proposed Changes in the Law of Divorce, 27 Mo.L.R. 307, 313-322 (1962).

      . Note, Living Apart Statutes as a Replacement for Fault, 1959 Wash.U.L.Q. 189.

      . Annots., 51 A.L.R. 763 (1927); 97 A.L.R. 985 (1935); 111 A.L.R. 867 (1937); 166 A.L.R. 498 (1947). The statutory provisions do vary considerably; they are summarized and compared 1959 Wash.U.L.Q. at 205.

      . Baldwin v. Baldwin, 151 Fla. 341, 9 So.2d 717, 721 [4] [5]; Craig v. Craig, 129 Iowa 192, 105 N.W. 446, 448, 2 L.R.A.,N.S., CG9; Farley v. Farley, 278 Mich. 361, 270 N.W. 711, 712-713 [11, 109 A.L.R. 678; 17 Am.Jur., Divorce and Separation, § 87, pp. 310-311.


source: Caselaw Access Project

author:
STEWART, Judge.
      PALMORE, Judge

license: Public Domain

text:
    CITY OF OWENSBORO et al., Appellants, v. J. G. SMITH et al., Appellees.
    Court of Appeals of Kentucky.
    April 17, 1964.
    As Modified on Denial of Rehearing Dec. 4, 1964.
    William T. Carroll, City Atty., Owens-boro, for appellant.
    Thomas F. Marshall, Funk, Chancellor & Marshall, Frankfort, for appellee.
   STEWART, Judge.

This is an appeal from a judgment of the Daviess Circuit Court, holding that City of Owensboro Ordinance No. 24-61 which prohibits the licensing by the city of any pinball, shooting, target or amusement device for which a federal gaming stamp has been secured, is ultra vires because it is outside or in excess of the authority conferred by KRS 137.410, and invalid because it is in conflict with Kentucky statutes relating to the licensing of coin-operated amusement machines.

The judgment enjoined appellants, who are the Mayor, Board of Commissioners, City Manager, City Treasurer, and Chief of Police of the City of Owensboro, from enforcing the ordinance and directed appellants to issue the city license applied for on the pinball machine herein involved.

Two of appellees are J. G. Smith and Marvin Melheiser, a partnership doing business under the name of the Owensboro Amusement Company. They own pinball machine No. B-3659 and, pursuant to KRS 137.340, paid the state fee required and were issued a license in accordance with KRS 137.360 for the machine. They anticipated placing the device in a restaurant in Ow-ensboro owned by Robert Wellman, also an appellee. Wellman, under protest, bought a federal gaming stamp for the machine, and Smith and Melheiser applied for a city license for it under the provisions of City of Owensboro Ordinance 11-27, the general licensing ordinance, and tendered the' fee of $10 named therein. The city clerk declined to grant the license, as the application stated a federal gaming stamp for it had been secured. This refusal was based on City of Owensboro Ordinance 24 — 61 mentioned above. Following this refusal, the three appellees brought this action, asking for the relief which was granted in the judgment.

The trial judge found the pinball machine is activated by the insertion of a 5‡ coin, and “in its construction, operation and use meets the qualifications of * * * KRS 436.230(5), which exempts devices similar in all respects to the one owned and operated by the Owensboro Amusement Company from the penalties provided in a previous subsection of the same statute making it unlawful to set up and keep, manage or operate, certain machines or contrivances for the purpose of gambling. No money, or any thing else of value, may be won or lost in the operation and playing of this device, and the operation and playing of such device shall not be considered gambling under the provisions of KRS 436.230(5).”

The trial court concluded as a matter of law that the Commonwealth had preempted the field of licensing coin-operated amusement machines in this state by enacting KRS 137.340 through KRS 137.410; and that City of Owensboro Ordinance No. 24-61 was ultra vires and therefore invalid, as its enactment was beyond the power conferred upon the city by KRS 137.410.

It is argued that where a state licenses pinball games under statutory provisions intended to be state-wide in effect, as in the case of KRS 137.340 through KRS 137.410, such games are exclusively governed by state law and the City of Owensboro had no authority to enact the prohibitive ordinance. It was restricted, it is contended, to the power granted by KRS 137.410, which provides only for the charge of a limited license tax, and the attempt to set up additional requirements for the obtaining of a city license on pinball games is void.

To support their position appellees cite Magwire v. Village of Springfield, 111 Vt. 414, 17 A.2d 260, where it was held that the legislature, by the enactment of a statute intended to be general in scope for the licensing of pinball games, must have intended to repeal a former statute empowering a municipality to license or refuse to license pinball machines within the limits of the municipality. They also rely upon Smith Amusement Co., et al. v. Mayor, etc., of the City of Chattanooga, 205 Term. 712, 330 S.W.2d 320, wherein it was ruled that an ordinance of the City of Chattanooga prohibiting the possession or display of pinball machines was ultra .vires, in view of a state statute specifically excluding pinball machines from the definition of gambling or from classification as gambling devices.

Appellants maintain that the ordinance, the purpose of which is to prevent gaming by the use of pinball machines, does not go counter to the provisions of KRS- 436:-230(5), the intent of which is also to restrain gaming with such devices. Appellants point out that, by purchasing the federal gaming stamp, appellees have in effect admitted the machine will be used for gambling purposes and that to issue them a city license would actually contravene the intent of the statute.

In Terry v. City of Portland et al., 204 Or. 478, 269 P.2d 544, it was held by the Supreme Court of Oregon that a statute imposing a privilege tax of $50 per annum on every coin-in-the-slot device, enacted in the exercise of the state’s power to tax, did not prevent the City of Portland from adopting an ordinance prohibiting the ownership, operation and use of any coin-in-the-slot device, which was aimed not only at devices of a gambling nature but also at machines that did not provide pay-off or free play, notwithstanding that the ordinance, if enforced, would diminish the state’s revenue.

In Grigsby v. Mitchum, 191 Kan. 293, 380 P.2d 363, the Supreme Court of Kansas determined that a city ordinance prohibiting issuance of a pinball license to one who had paid a current $250 federal occupational tax for the privilege of operating a coin-operated amusement or gaming device, and requiring revocation of such license if á federal gaming stamp was issued, was not unreasonable or arbitrary and was within the legislative power of the city.

It .should be pointed out that Oregon and Kansas, as well as Kentucky, have enacted legislation 'making gambling illegal within :th'eir boundaries. Also, Oregon and Kansas, like Kentucky, have statutes which have b'den. interpreted to mean that a pinball machine which does not pay off in money or tangible property, but only gives free games, is'-’nót a- gambling device. Wé believe the opinions''of the Oregon and "Kansas courts of last resort are sound and persuasive when considered, in connection with the subject under discussion.

A careful reading of KRS 137.340 through KRS 137.410 will convince one the Commonwealth went no further in the enactment df these provisions than to impose “an excise tax for the privilege of engaging in the business of selling entertainment or amusement * * * by means of coin machines” and that this tax should be measured by the number of machines a person shall operate. So far as these statutes are concerned it appears obvious the Commonwealth’s sole interest in the machines and their owners is limited to the matter of receiving from each owner an annual fee of $10 for each machine he possesses. See KRS 137.360. No provision of KRS 137.340 through KRS 137.410 purports to remove coin-operated devices from regulation by municipalities.

It is common knowledge that pinball machines may be operated in various ways and, even though they may be fashioned to pay off only in free games for those who make a certain score, they can easily be adapted or converted to gambling purposes. In Grigsby v. Mitchum, cited above, this relevant statement appears: “It is an established principle of law that articles which lend themselves to illegal uses are subject to the police powers of the state and municipalities.”

The issue presented for determination, so far as we have been able to ascertain, has never been passed upon by this Court. In Hargett v. Kentucky State Fair Board, et al., 309 Ky. 132, 216 S.W.2d 912, it was stated: “Careful scrutiny is always given to an exception to a general statute, and especially is this true when there is an exception permitting the carrying on of an activity generally declared to be against public policy.”

KRS 84.010(1), which enumerates the general powers given to a city of the second class, and Owensboro falls in this class, states that the inhabitants of such a city “may govern themselves in all fiscal, prudential and municipal concerns by ordinances and resolutions not in conflict with the Constitution or statutes of this state or of the United States.” KRS 84.190(2) expressly grants to second-class cities the authority to license, tax, regulate or suppress “ * * * instruments used for public amusements * * *.” (Emphasis added.) A pinball machine would certainly be denominated an instrument used for public amusement.

We therefore conclude the City of Owensboro, not only under its inherent police power but also under a specific statute, was fully empowered to enact the challenged ordinance. We find no violations of appellees’ rights under either the Kentucky or the Federal Constitutions.

Wherefore, the judgment is reversed with directions that appellees’ complaint be dismissed.

PALMORE and WILLIAMS, JJ., dissenting.

PALMORE, Judge

(dissenting).

I concur in the opinion of the majority that neither KRS 436.230(5) nor the licensing provisions of ICRS Chapter 137 prevent a city, in the reasonable exercise of its police power, from prohibiting the use of machines that are readily adaptable to gambling purposes, without regard to whether they are actually so used. However, I do not believe that the possession of a federal gaming stamp is a valid basis for classification.

26 U.S.C.A. § 4462(a) (1) and (2) divide coin-operated amusement or gaming devices into two defined categories. If the device comes within the definition of subsection (2) the tax is $250. Otherwise it is $10. 26 U.S.C.A. § 4461. The Treasury Department’s interpretations of the statutory definitions are set forth in the form of examples or illustrations in its detailed regulations. See Federal Tax Regulations, § 45.4462-1. It is quite possible that a real question will exist as to whether a particular machine does or does not fall within the definition of subsection (2), and in that event the owner may reasonably decide to pay the $250 tax instead of taking the risk of violating the law. A taxpayer stands to lose big in an unsuccessful showdown with the Internal Revenue Service.

In this case the complaint says there was a difference in opinion between the appellants and the IRS office as to whether the $250 stamp was required for the machine in question, and that the $250 was paid under protest. It may be that the appellants were entirely correct in their position, but in all probability it would have been impracticable for them to litigate it. It is unreasonable to deprive them of the privilege of using the machine on the sheer basis of their having chosen to pay the tax.

Had the ordinance actually set forth a definitive classification along the lines of 26 U.S.C.A. § 4462(a) (2) and prohibited the use of machines falling within that classification; it would not have been objectionable. But in its present form, which makes the IRS or its local agent the effective arbiter, it seems to me that it is arbitrary and in violation of Const. § 2.

In fact, I am inclined to believe that a state or local law prohibiting an otherwise lawful activity solely on the basis of the affected party’s having obtained a federal tax stamp covering that activity may very well violate the equal protection and due process clauses of the 14th Amendment of the U. S. Constitution.

WILLIAMS, J., joins in this dissent.

      . Which embraces machines that “may” be used for gambling.


author: PALMORE, Judge.

text:
    DEBY COAL COMPANY and the Subsequent Claim Fund, Appellant, v. Millard CALDWELL, Appellee.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.
    Rehearing Denied Dec. 11, 1964.

      Reeves, Barret & Cooper, J. W. Craft, Jr., Hazard, Paul Rhem, Versailles, for appellant.
    Denver Adams, Robert Muncy, Hyden, for appellee.
   PALMORE, Judge.

Deby Coal Company and the Subsequent Claim Fund appeal from a judgment of the Leslie Circuit Court raising from 50% to 100% the degree of permanent disability for which the Workmen’s Compensation Board had awarded compensation to the appellee, Millard Caldwell.

Caldwell suffered a ruptured interverte-bral disc while working at hard labor in the company’s coal mine. The injured nucleous was thereafter removed by surgery. Two physicians testified in substance that he is totally and permanently disabled to do heavy manual labor. For the defense, an orthopedic surgeon and the neurosurgeon who had performed the operation estimated his permanent disability from 10% to 25’%.

During the course of the medical testimony the opinion was expressed that Caldwell had a nondisabling degenerative disc condition prior to the accident which contributed to the degree of his disability existing thereafter. Hence the Subsequent Claim Fund was made a party defendant. KRS 342.120. Pursuant to KRS 342.121 the Workmen’s Compensation Board appointed Dr. K. Armand Fischer to examine Caldwell and directed, among other things, that he determine “the total percentage of permanent disability which plaintiff now suffers to his body as a whole” and the extent to which the disability is attributable solely to the accident.

Answering the specific questions submitted to him by the board, Dr. Fischer estimated that Caldwell has “Fifty percent partial permanent disability to the body as a whole,” 10% being attributable to a preexisting congenital defect and 40% to the accident. On the basis of this report the board set aside its referee’s finding of 100% permanent disability suffered wholly from the accident and awarded compensation on the basis of 50% permanent disability, apportioning 40% against the employer and 10% against the Subsequent Claim Fund.

The problem in the case -arises from the fact that Dr. Fischer’s report employs the word “disability” in terms of general physical impairment rather than the claimant’s capacity to perform the type of work demanded by his occupation. See Leep v. Kentucky State Police, Ky., 366 S.W.2d 729, 731 (1963), in which a precisely similar misconception occurred.

The prefatory portion of Dr. Fischer’s report, describing the examination and setting forth his findings, concludes with the following paragraph:

“It is my opinion that the patient should lose some weight and I believe that he should have a spinal fusion, which would lower the percentage of his disability and allow him to do moderately hard work again. Under the present circumstances he could do only light work." (Emphasis added.)

In view of this unequivocal statement it is beyond cavil that in Dr. Fischer’s opinion Caldwell will be unable, unless there is further surgery, to do even moderately hard work, much less to do the kind of work required by his calling. Under the definition set forth in Clark v. Gilley, Ky., 311 S.W.2d 391 (1958), and E. & L. Transport Company v. Hayes, Ky., 341 S.W.2d 240, 84 A.L.R.2d 1102 (1960), and followed in Leep v. Kentucky State Police, Ky., 366 S.W.2d 729 (1963), this means that he is totally disabled. It cannot be gainsaid that in an occupation requiring strenuous physical labor a half man is no man.

The appellants contend that regardless of Dr. Fischer’s report the board’s findings were sufficiently supported by the testimony of the other doctors. However, in accordance with KRS 342.121(4), which requires that the award conform to the findings and conclusions of the medical report in the absence of an application for review, the board’s action was predicated exclusively on Dr. Fischer’s report. If a KRS 342.121 report is incomplete or inconclusive the board has no alternative but to fall back on the evidence in the case. Cf. Shuman Co. v. May, Ky., 327 S.W.2d 14, 16 (1959); Mary Helen Coal Corp. v. Anderson, Ky., 262 S.W.2d 841, 843 (1953). But in this case, when construed as it must be construed to make sense, the report is neither inconclusive, incomplete, nor ambiguous.

The circuit court correctly adjudged that the report conclusively required a finding of 100% disability, but erred in apportioning the award 40% against the employer and 60% against the Subsequent Claim Fund. The necessary import of Dr. Fischer’s report is that one-fifth’ of the disability results from the pre-existing congenital defect and four-fifths from the accident. Hence the award should be apportioned 80% against the company and 20% against the Subsequent Claim Fund.

To the extent that the judgment directs an award for total permanent disability it is affirmed. On the apportionment issue it is reversed with directions that the award be apportioned in accordance with this opinion.

      . Caldwell did file an application for review, demanding in effect that it be construed to mean that his disability was 100%. The board reviewed the report but declined to give it such a construction.


author: STEWART, Judge.

text:
    KAUFMAN’S OF KENTUCKY, Appellant, v. Ethel WALL, Appellee.
    Court of Appeals of Kentucky.
    Nov. 6, 1964.

      Lively M. Wilson, Stites, Peabody & Helm, Louisville, for appellant.
    Ben Mazin, Harry L. Hargadon, Louisville, for appellee.
   STEWART, Judge.

This appeal involves the question of whether a discharge in bankruptcy, under the circumstances herein mentioned, defeats the right to a set-off interposed to diminish' a recovery sought for damages due to an alleged injury following an accident.

The facts, which are not in dispute, show that "appellee,'Ethel Wall, came into the store in Louisviile of Kaufman’s of Kentucky, appellant herein, on November 10, 1961, ostensibly to do some Christmas shopping. As she was leaving she caught her heel in an open electrical outlet in the floor and allegedly injured her back. The next day when she called appellant to assert her claim of personal injury and to inquire if it was interested in settling her claim she was told no consideration would be given to her demand. Within a period of some 30 to 60 days subsequent to the accident she ran up an account with appellant in the amount of $1157.01.

Appellee instituted an action against appellant on January 26, 1962, for damages growing out of the mishap. On March 7, 1962, after filing this action, which was after the indebtedness alluded to had been incurred, appellee filed a petition in bankruptcy. She listed her cause of action against appellant as an asset of her estate and the indebtedness she owed appellant as a liability. She was permitted to, and did, prosecute this cause of action in her own name following her discharge in bankruptcy, which latter event occurred September 24, 1962.

By an appropriate pleading in this action, appellant sought to set off the amount of the indebtedness appellee had incurred against any recovery she might receive. Appellee admitted the amount of the debt but pleaded her discharge in bankruptcy as a bar to its allowance as a set-off.

On March 20, 1963, appellee obtained a verdict of $2000. The trial court decided as a matter of law that appellant was not entitled to any credit on the judgment. This appeal is from the judgment refusing to allow the set-off.

Appellant does not contend it could in a separate action recover $1157.01 from appellee for the reason that the discharge in bankruptcy would effectively bar such an action, but it does contend the discharge does not prevent the use of the indebtedness as a set-off against the judgment secured by appellee. Appellant argues the discharge in bankruptcy should operate as a shield against an affirmative recovery by it, not as a sword to enable appellee "to take an undue advantage of it.

So far as we have been able to ascertain the question presented has never been before this Court. Other jurisdictions, however, have given due regard to the point and have ruled, under facts analogous to those in the case at bar, that while a bankruptcy proceeding, prosecuted to a successful conclusion, may discharge a person from personal liability as to a debt listed therein, such a discharge does not prevent the creditor from using the debt as a set-off against any recovery sought by the bankrupted debtor against the creditor.

The rationale of the cases which permit a debt to be used as a set-off, even though no affirmative recovery could be had, is stated in the case of Leach v. Armstrong, 236 Mo.App. 382, 156 S.W.2d 959. In that case the plaintiff, who was indebted to his father in the amount of $1800, filed a petition in bankruptcy and the debt to his father was discharged. Later his father died and the plaintiff filed an action to enforce partition of his father’s estate and to receive a one-fourth interest therein. The three defendants, who were the other heirs, pleaded the discharged indebtedness as a set-off against any claim the plaintiff might have against the estate.

It was pointed out there that the reason and purpose of the Bankruptcy Act, 11 U.S.C.A. § 1 et seq., is to relieve from liability for debt an insolvent person who has brought himself within the purview of the Act. That court found nothing in the context of the Act that indicates any intention to create out of the debt that has been extinguished an asset that will add greater purchasing consideration to the bankrupt than he would have had if he had not taken benefit of the Act.

The Leach case decided the amount of indebtedness from which the deceased’s son was relieved of liability by the bankruptcy discharge was rightfully chargeable to the son, so as to diminish or extinguish the interest which the son would have otherwise received.

A similar result was reached in the case of In Re Morgan’s Estate, 226 Iowa 68, 283 N.W. 267, where the testator died after a legatee had filed a petition in bankruptcy and scheduled a debt owing to the testator, and the legatee was subsequently discharged. The sole question raised was whether the executor was entitled to set off the debt, previously discharged in the bankruptcy proceeding, against the legatee’s share in the testator’s estate. It was held the legatee still owed the debt to the testator’s estate, although the right to enforce its payment by a direct action was destroyed by the discharge in bankruptcy.

The rule stated in the foregoing cases was adhered to in New York Credit Men’s Adjustment Bureau, Inc. v. Bruno-New York, Inc., D.C., 120 F.Supp. 495, and Gill v. Richmond Co-op. Association, 309 Mass. 73, 34 N.E.2d 509. In the latter case, a judgment against the plaintiffs had been discharged in a bankruptcy proceeding, but that fact “did not prevent its use as a set-off” by the defendant against an as-signee to whom the plaintiffs’ cause of action against the defendant had been assigned.

We conclude appellant should not have been deprived of its set-off against ap-pellee’s tort claim.

Wherefore, the judgment is reversed for consistent proceedings.


author: WILLIAMS, Judge.

text:
    Richard P. GHOLSON, Appellant, v. Joyce GHOLSON, Appellee.
    Court of Appeals of Kentucky.
    Nov. 6, 1964.

      David R. Reed, Tyler C. Bourne, Pa-ducah, 'for. appellant.
    Robert Hines, Jr., Joseph S. Freeland, ■Paducah,, for 'appellee.
   WILLIAMS, Judge.

This is an appeal from an order of the McCracken Circuit Court dismissing a husband’s petition for modification of a divorce judgment granting custody of the children to the wife.

The order .appealed from was entered as the result of a motion for summary judgment. Summary judgment was not appropriate here because the court necessarily had to make a factual determination regarding change of conditions. However, both parties have treated the order as if it were made pursuant to a motion ,to submit, and we' shall do likewise.

Three depositions were taken by the husband; his own, that of a friend of his former wife, and that of her housekeeper. They show that the former wife lived in an apartment where she kept her three children. The housekeeper stayed with the children during the day while their mother worked, and stayed with them in the evening when their mother went out. The former wife went out on dates fairly often. On one-occasion she went to Memphis with a man named Kleet where they stayed in the same motel. Another time she met him in St. Louis where they stayed in the same hotel. No improper relations were admitted by Kleet.

The husband visited on many occasions with the children and their mother. He would occasionally baby-sit with the children when the mother went out in the evening, and apparently had several of his meals with them. Twice he called his wife when he knew her to be in the apartment of another man and she willingly talked to him on the telephone. It' .was his wish that the two could be remarried and, as recently as two weeks prior to filing the petition for modification, he had asked her to marry him.

The circuit court -apparently did not see any change in conditions in the behavior of the wife. He may have concluded that the husband did not really feel the wife was an improper person to have custody of the children by virtue of the fact he kept attempting to remarry her. We do not know what prompted his conclusion, but we are convinced that the proof is not sufficient to declare it clearly erroneous.

Judgment affirmed.


author: WADDILL, Commissioner.

text:
    Lester IDOL et al., Petitioners, v. W. R. KNUCKLES, Judge of the Bell Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Nov. 6, 1964.

      William A. V/atson, Watson & Watson, Middlesboro, for petitioners.
    Glenn W. Denham, Middlesboro, for respondent.
   WADDILL, Commissioner.

The Urban Renewal and Community Development Agency of the City of Mid-dlesboro instituted an action in the Bell Circuit Court to condemn petitioners’ property in accordance with KRS 99.420. By answer the petitioners challenged the right of the Agency to take their property and thus far no hearing on this issue has been asked or held. Meanwhile, the Agency has demanded under the provisions of KRS 99.420(9) that the court enter an interlocutory judgment awarding to it the possession, use and control of this property.

Petitioners now seek an order from this Court prohibiting respondent from entering an interlocutory judgment prior to a hearing and determination of the issue raised by petitioners’ answer. They urge that if the interlocutory judgment is entered at this time they will be denied due process of law afforded them by Sections 2, 7 and 14 of the Constitution of Kentucky, and by the 5th and 14th Amendments to the Constitution of the United States because their property will have been taken and irreparably damaged prior to any determination whatsoever that the Agency has the authority to condemn it. ■

We observe that the constitutionality of KRS, Chapter 99, generally has been upheld by this Court but questions relating to its proper execution and administration were specifically reserved. Miller v. City of Louisville, Ky., 321 S.W.2d 237. We must now decide a procedural question arising under the condemnation section of this chapter.

Upon the record and an oral hearing before this Court it is apparent that petitioners seek to be heard on the public need for and use of their property. A determination of necessity by the municipal authorities is ordinarily conclusive and only in unusual circumstances will the judiciary inquire into the question of necessity. Louisville & N. R. Co. v. City of Louisville, 131 Ky. 108, 114 S.W. 743, 24 L.R.A.,N.S., 1213. Whether the property proposed to be condemned will be put to a public use is a proper subject for judicial determination. Spahn v. Stewart, 268 Ky. 97, 103 S.W.2d 651.

Subsection (5) of KRS 99.420 provides in part:

“ * * * Any issue raised in the answer or other pleading filed, putting in issue the right of the agency to condemn the property shall be promptly heard and decided by the court, without a jury. * *

This subsection specifically entitles the petitioners to a hearing in the circuit court. However, the Agency contends that the circuit court is required to enter an interlocutory judgment pursuant to the provisions of subsection (9) of this statute even though the issue raised by petitioners’ answer has not been heard. If this contention were upheld it would permit the taking, and possible damage, of petitioners’ property before any hearing and determination of the right to condemn as provided by subsection (5). We do not believe that the legislature intended such an illusory determination of this right. We will not ascribe to these subsections a meaning which will produce an absurd result. Board of Barbers etc. v. Mayo State Vocational School, Ky., 259 S.W.2d 452. A proper construction of them requires that if, prior to the entry of an interlocutory judgment under. subsection (9), the issue of the right of the Agency to condemn is timely and properly raised, as in the instant case, it shall be heard and determined before entry of a judgment awarding the Agency the' possession, use and control of the property being condemned.

Wherefore the respondent is prohibited from entering an interlocutory judgment prior to a hearing and determination of the issue raised by the answer.

Prohibition granted.


text:
    Joe HOPKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 6, 1964.
    J. Ervin Sanders and Sanders & Redwine, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Thomas B. Ratliff, Pikeville, for appellee.
   PALMORE, Judge.

Joe Hopkins has been convicted and sentenced to two years’ imprisonment on an indictment for carrying concealed a deadly weapon. KRS 435.230. The principal ground of his appeal is that he was prejudiced by the trial court’s refusal to grant him a continuance.

The indictment was returned on November 13, 1963. On November 18, 1963, an order was entered forfeiting his bail bond for failure to appear. On December 30, 1963, judgment was entered on the bond forfeiture, and at the same time Hopkins applied for and was admitted to bail on another bond. This application was made in his behalf by Hon. J. Ervin Sanders, an attorney. The next entry in the record is a motion for continuance made on April 7, 1964,--ánd'signe>d by M-r. Sanders. It recites that the trial was set for April 15, 1964, and asks a continuance until the next term of court. The ground for continuance had to do with some impropriety in the selection of jurors for the April term of court. On the same day, April 7, 1964, the motion was sustained and the case continued until the next term.

The case was called for trial on May 18, 1964, at which time Hopkins again moved for a continuance, and at this juncture we must rely for information on the contents of his verified motion, since the Commonwealth did not submit a counter-affidavit. It appears that there were three other indictments pending against Hopkins, two of which had grown out of the same circumstances as the concealed weapon charge and the other (for storehouse breaking) had been returned some time earlier. All four were set for trial on the same date. The Commonwealth elected to try the concealed weapon case, whereupon Hopkins moved for a continuance on the ground that he had assumed the storehouse breaking case (Indictment No. 137) would be tried first and was not prepared to go to trial on the concealed weapon charge (Indictment No. 263).

The verified motion for continuance recites that Hopkins had never employed and was unable to employ counsel to defend him on indictments 262, 263 and 264, but had employed and paid him only in connection with indictment 137; that his father, McKinley Hopkins (surety on his bail bond), had employed Mr. Sanders to file his application for bail and previous motion for continuance; that he had not caused his witnesses to be subpoenaed; that in the event of a continuance George David Hopkins and Mick Johnson would appear as witnesses and substantiate his defense that in view of the size of the pistol he was carrying at the time of the alleged crime it would have been physically impossible to conceal it in his pants pocket as charged by the prosecution witnesses; and that the reading of the affidavit would not -have the same effect as if the witnesses were present in court.- ■

It is recited also in the motion that the court proceeded to appoint Mr. Sanders to defend Hopkins and gave him less than an hour to get ready.

The lawyer who had been “employed and paid” to represent Hopkins on indictment 137 was the same Mr. Sanders who on April 7, 1964, signed his motion for a continuance on indictment 263 “until the next term of court.” We cannot hear him say now that he was not really representing Hopkins in this case. It is not that we question his word, for we know his integrity, but the orderly process of justice forbids such an imposition on the trial court. If Mr. Sanders was not Hopkins’s lawyer in this case he should not have signed his papers. If he did not in April expect the case to be tried at the next term he should have asked a continuance until some other time, or moved that the Commonwealth, be required to elect sufficiently far in advance to enable defendant to prepare accordingly. Otherwise, the trial court was entitled to presume he would be ready in each of the cases set for trial. And if he was not ready the fault must be held his own.

Each case of this sort must be decided on its own peculiar facts. None of the decisions cited in the briefs are sufficiently similar to be dispositive. It is our opinion that in this instance the defendant and his counsel had ample and reasonable opportunity to prepare for trial and that the trial court did not abuse its discretion in refusing to grant a further continuance.

It is contended also that the evidence was not sufficient to support the conviction, but the case is so clear that no useful purpose would be served by discussing the question.

A further point is made to the effect that in proving the commission of the offense charged the Commonwealth was permitted to show facts which may have constituted another crime (e. g., assault and -battery, flourishing a deadly weapon, etc.). . However, nothing was permitted to be shown that was not an integral and necessary incident to proving the main charge, and the jury was duly admonished. Cf. Morgan v. Commonwealth, Ky., 310 S.W.2d 281 (1958).

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    Robert A. TINNELL, Sr., Administrator of the Estate of Paul Raymond Tinnell, Deceased, Appellant, and Robert A. Tinnell, Sr., Administrator of the Estate of Robert A. Tinnell, Jr., Deceased, Appellant, v. COMMERCIAL CARRIERS, INC., a Corporation, Ezra Newton and Hickman Woodring, d/b/a Woodring Motor Company, Appellee.
    Court of Appeals of Kentucky.
    Nov. 6, 1964.
    Walker & West, Henderson, for appellants.
    King, Deep & Branaman, Henderson, for appellee.
   MOREMEN, Judge.

Robert A. Tinnell, Sr., lost his two sons in an automobile accident and, as administrator of their estates, brought suit against appellee, Hickman Woodring, doing business as Woodring Motor Company, and others, in which he sought to recover damages. Thereafter, the Henderson Circuit Court entered a summary judgment in favor of Hickman Woodring. Although summary judgment was entered in behalf of other defendants, this appeal is taken only from the judgment in favor of appellee, Hickman Woodring, doing business as Woodring Motor Company.

On July 13, 1959, Robert A. Tinnell, Jr., purchased a 1957 model used car from ap-pellee. The appellee reconditions used automobiles before resale. A written warranty was issued to Tinnell, Jr., which covenanted briefly that the automobile was in good running condition for normal use; it further agreed to give a fifty per cent discount on labor and a twenty-five per cent discount on parts for thirty days or for a thousand miles, whichever event occurred first. It was specifically stated that the warranty was in lieu of all others either express or implied.

On August 5, 1959, Tinnell, Jr., returned the automobile to appellee for adjustment of the brakes and, during the same month, he drove the automobile to Michigan and back to attend a summer military camp, There is also some evidence to the effect that he again took the automobile to appel-lee for further repairs thereafter, but ap-pellee’s records do not reflect such action. Some time about the middle of November, Robert Tinnell, Sr., the father, drove the automobile in question and he testified that in an emergency he was forced to apply the brakes and that “the front end locked and I just stopped.” He told his son he thought that appellee had not fixed the brakes properly. On November 20, 1959, Tinnell, Jr., took the automobile to the Schmidt Service Station which specializes in wheel balancing and front end aligning. One of the employees of the service center testified and, although his deposition is unsatisfactory, it apparently indicates that he examined the automobile in the presence of Tinnell, Jr. and told him that some of the parts were defective. However, they did not attempt to repair the automobile.

On the afternoon of the following day, Robert Tinnell, Jr., with his brother, Paul R. Tinnell and Mrs. Paul Tinnell, drove from Henderson toward Evansville, Indiana, where Tinnell, Jr., worked. It was the purpose of his brother and sister-in-law to use the car after leaving him at his place of work. This was about eight-thirty or nine o’clock in the evening. Mrs. Paul Tinnell was the sole survivor in the Tinnell automobile. She stated that on their way to Evansville they encountered another automobile in front of them traveling in their lane. When they would attempt to pass it, it would speed up, thus preventing them from passing. It would then slow down causing them to reduce speed. Evidently this racing or passing game continued for some time. When they reached the edge of the bridge they saw that the car had stopped on the bridge. She stated that the driver of their automobile hit the brakes and the car started sliding or turning. As to the operation of the brakes, she testified:

“Q. When Robert Tinnell applied the brakes on the 1957 Oldsmobile in which you were riding did they operate? A. They went on real fast and threw right on.
“Q. What do you mean by saying they threw right on? A. I mean he just put them on and they applied real hard.
“Q. Did they apply with any sudden jerk or jolt? A. No, they just slammed right on.”

The car collided with a trailer truck loaded with new automobiles. The driver of the truck died also.

Appellant bases his right of recovery on the rule, first announced in Gaidry Motors, Inc. v. Brannon, Ky., 268 S.W.2d 627, to the effect that a dealer who undertakes to recondition used cars before resale owes to the public a duty to use reasonable care to discover defects and either to repair them or to warn the buyer of the existence of the defects. The rule is based on a duty imposed by the law upon one to foresee that his action or failure to act may result in injury to others. It should be noted in that case that the purchaser of the used automobile had driven it only a few blocks when the accident occurred. In Armour v. Has-kins, Ky., 275 S.W.2d 580, the Court held that the decision in the Gaidry Motors case must be narrowly confined. The opinion lists the facts common to both cases in which a submission to the jury was permitted. These facts are as follows:

1. defective brakes;
2. brakes whose defectiveness would have been easily ascertained or recognized by a qualified automobile mechanic.
3. which defect caused an accident resulting in personal injury immediately after the sale;
4. a buyer who relied largely on the judgment of the seller;
5. before a buyer had full opportunity to become aware of the defect; and
6. before change in the vehicle could be either caused or expected from usage.

The facts of this case fail to qualify under the above rules on several counts. The accident happened about four months after the sale; the buyer, who was described in the evidence as being a good automobile mechanic himself, had full opportunity to become aware of the defect — and, in fact, did believe that something was wrong with the brakes. There was no showing that he relied on the judgment of the seller. As was pointed out in Beardsley v. Broach, Ky., 310 S.W.2d 539, and Armour v. Haskins, Ky., 275 S.W.2d 580, car dealers are not insurers for the continuing safety of automobiles which they have sold. In addition, we find nothing in the evidence 'which indicates that defective brakes Were the proximate cause of this accident. It seems certain from the evidence that the driver, at the time, was engaged in racing another car on a very hazardous highway. We are of opinion that the trial court was correct in granting summary judgment.

Judgment affirmed.


text:
    H. H. PERKINS et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 6, 1964.
    Joe S. Feather, R. L. Brown, William Cox, Jr., Williamsburg, for appellants.
    Robert Matthews, Atty. Gen., David Murrell, Asst Atty. Gen., for appellee.
   PALMORE, Judge.

The appellants, Perkins, Owens and Barnett, were jointly indicted for and convicted. of illegally possessing alcoholic beverages in dry territory. KIRS 242.230. Each was fined $100, sentenced to 60 days in jail, and placed under a $1,000 peace bond for a period of 12 months. KRS 242.410 and 242.990. They appeal by notice and motion as authorized by KRS 21.-140(2) and RCr 12.52.

The ground on which we sustain the motion and reverse the judgment is that incriminating evidence introduced at the trial had been obtained by means of an illegal search. Const. § 10.

The search was made pursuant to -a warrant. The premises described in the warrant included a. 2-story structure on Kentucky Highway 26, near the outskirts of the city of Corbin, and an adjacent used car lot. The ground floor of the building was used as a grocery store and gasoline service station, and the upper story consisted of living quarters. There were a number of used cars on display in the lot at the time of the search, and the warrant directed that all motor vehicles on the premises be searched. The appellant Perkins was named in the affidavit and warrant as the person in possession of the property.

The raid was made by several officers under the direction of a lieutenant of the Kentucky State Police. When they arrived, the appellant Owens was seated at the wheel of a small Fiat automobile parked parallel with the highway at or near the dividing line between the public right-of-way and the property described in the warrant. So far as the evidence shows, this automobile was owned by Owens. It was not one of the used cars for sale and was not parked in the display line. The lieutenant dispatched one officer to search the Fiat while he and the others went inside the store, where the appellant Barnett was in charge. A goodly quantity of whiskey and beer was found in the Fiat. Nothing of note was discovered elsewhere on the premises.

The affidavit for the warrant was made by a state ABC agent on information given him by a state trooper at 9:00 A.M. on March 17, 1964, to the following effect:

“That from March 10,1964 to March 16, 1964 at various times of the day and night he observed an unusual amount of traffic, including taxi cabs, going to and coming from the above described premises and that from 2:00 P.M. to 3:00 P.M. on March 16, 1964 this type of traffic was still going to and coming from the above described premises and at this time on March 16, 1964 and at other times and dates he was so near the premises that he could and did observe this traffic.”

The affidavit did not state that either Perkins or the premises had a bootlegging reputation, nor did it suggest any circumstance other than the amount of vehicular traffic as probable cause for believing that alcoholic beverages were involved.

The Attorney General concedes that the affidavit was insufficient on its face to support a search warrant. Elliott v. Commonwealth, 216 Ky. 270, 287 S.W. 726 (1926). Cf. Litteral v. Commonwealth, 230 Ky. 573, 20 S.W.2d 457 (1929).

With respect to the search of Owens’s automobile, the evidence produced at the trial was not sufficient to justify a finding that Owens was a servant of or acting in concert with Perkins, the possessor of the searched premises Therefore, even if the warrant had been valid it did authorize the search of the Fiat.

The motion for appeal is sustained and the cause reversed for new trial with directions that if the evidence is the same a verdict be directed in favor of all the appellants.

      . The date on which the warrant was issued and executed.

      . Which fell on Monday.


author: CULLEN, Commissioner.

text:
    CITY OF BARDSTOWN, Kentucky, Appellant, v. LOUISVILLE GAS AND ELECTRIC COMPANY, a Corporation, and Public Service Commission of Kentucky, Appellees. The CITY OF BARDSTOWN, Kentucky, a Municipal Corporation, Appellant, v. PUBLIC SERVICE COMMISSION of Kentucky and Louisville Gas and Electric Company, a Corporation, Appellees.
    Court of Appeals of Kentucky.
    Nov. 6, 1964.
    J. Smith Barlow, City Atty., Bardstown, Cornelius W. Grafton, Grafton, Ferguson & Fleischer, Louisville, for appellant.
    Clifford E. Smith, Frankfort, Peter, Hey-burn & Marshall, Louisville, Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, John B. Breckinridge, Atty. Gen., J. Gardner Ashcraft, Asst. Atty. Gen., Frankfort, for appellees.
   CULLEN, Commissioner.

We have appeals by the City of Bards-town from a judgment of the Franklin Circuit Court in two related (and consolidated) actions seeking to set aside orders of the Public Service Commission. One of the actions, brought by Louisville Gas & Electric Company (hereinafter “L. G. & E.”), sought to set aside an order granting Bardstown a conditioned certificate to construct a municipally-owned gas distribution system. The judgment held that the certificate had expired and become null and void by reason of failure to meet the condition -upon which it was issued. The other action, brought by Bardstown, sought to set aside an order denying the application ■of Bardstown for an order compelling L. ■G. & E. to furnish a supply of natural gas to Bardstown, for its proposed distribution system, from a pipeline owned by L. G. & E. which runs close by Bardstown. The judgment upheld the order denying the application.

We shall consider first the case involving the application for a gas supply from the L. G. & E. pipeline, since our decision in that case will control the other case.

L. .G. & E. is engaged primarily in the operation of a gas distribution system in Jefferson County. However, for a number of years it has owned and operated a pipeline running from east Kentucky to Louisville, and from that line it has sold gas at wholesale, under “wheeling” contracts, to another gas distribution company serving Shelbyville and Lawrenceburg. It also has sold gas at wholesale from that line to a gas distribution company serving West Liberty. It further has a franchise to operate a gas distribution system in Hodgenville, the gas for that system being supplied from a line connected with an underground gas storage field owned by L. G. & E.

In 1944 L. G. & E. applied for and obtained from the Public Service Commission a certificate to construct and operate an 8-inch gas transmission line running 65 miles from a connection with a major interstate pipeline of Tennessee Gas and Transmission Company at Calvary, Kentucky, to L. G. & E.’s mixing station in Louisville. The stated purpose was to obtain a needed additional supply ■ of gas for its distribution system in Jefferson County. This line, known as the Calvary line, runs within two miles of Bardstown, and it is the line from which Bardstown sought a supply of gas. The line has been used solely to transport gas purchased by L. G. & E. from Tennessee Gas and Transmission Company from the Calvary connection point to the Louisville mixing station, except that after the application of Bardstown for a supply of gas from the line was denied by the Public Service Commission, L. G. & E. applied for and was granted a certificate to bid for a franchise to operate a gas distribution system in Mount Washington (a small city near the north end of the Calvary Line), and it thereafter obtained the franchise and has commenced supplying gas to that system from the Calvary Line.

Under KRS 278.470 any company “receiving, transporting or delivering a supply of * * * natural gas for public consumption” is declared to be a “common carrier,” and the “receipt, transportation and delivery of natural gas into, through and from a pipeline operated by any such company” is declared to be a “public use.” Under KRS 278.501 such a company has the power of eminent domain. The primary argument by Bardstown is that L. G. & E., in its status as a common carrier in the operation of the Calvary line, possessing and having exercised the power of eminent domain, is impressed by law with- the obligation to sell gas at wholesale, from a tap-on connection at any point along its line, to any public distribution system having a need for the gas.

KRS 278.490 (which in the original legislative Act immediately followed the section now compiled as KRS 278.470) states' it to be the duty of a pipeline company to “receive, for transporation and delivery, from such pipes as may be connected -up with any main or tributary line, all .* gas’ that may be held and stored or ready for delivery” (subject to qualifications as to carrying capacity). This statute imposes upon the company only the duty of a carrier or transporter, and not the duty of a wholesaler or supplier.

We do not find in the authorities cited by Bardstown any basis for the proposition that the common law imposes upon a common carrier the duty of a wholesaler or supplier. In Producers’ Transportation Company v. Railroad Commission, 251 U.S. 228, 40 S.Ct. 131, 64 L.Ed. 239, the duty of the pipeline company was spoken of as a duty to “carry oil for all producers seeking its service” (our emphasis). In Pierce Oil Corporation v. Phoenix Refining Co., 259 U.S. 125, 42 S.Ct. 440, 66 L.Ed. 855, the holding was that the pipeline company was required to transport oil for a producer. Texas Co. v. Commonwealth, 303 Ky. 590, 198 S.W.2d 316, stands only for the proposition that a pipeline company carrying oil for public consumption is a common carrier; it does not purport to say that the company as such a carrier has any duty other than to carry or transport for any owner of oil who desires, that service. In Smith v. Kentucky Utilities Company, 233 Ky. 68, 24 S.W.2d 928, the electric power line from which it was held that K.U. must render service was a distribution line and not a. main transmission .line. Bedford-Bowling Green Stone Company v. Oman, 115 Ky. 369, 73 S.W. 1038, involved the duty of a railroad to render a particular carrier service; it did not suggest that a railroad company could be compelled to become a supplier or wholesaler of goods.

Since neither the statute declaring a pipeline company to be a common carrier, nor the common law, imposes upon a pipeline company the duty of a supplier, or wholesaler, such duty, if it exists, must b.e found in the statutes governing public utilities generally and providing for their regulation by the Public Service Commission, KRS 278.010 to 278.450.

We conceive that the duty of a public utility under the general public utility stat-ütes is to render adequate, efficient and reasonable service, KRS 278.030, within the scope or area of service provided for in. its certificate of convenience and necessity, KRS 278.020. It can be compelled to make any reasonable extension of its service facilities within its certificated scope or area of service, KRS 278.280(3).

The statutes clearly contemplate that the scope and area of authorized service by a public utility are to be defined and limited by the certificate of convenience and necessity. (Of course the service could not be so limited as to make it in effect a private rather than public service; for example, a certificate for a pipeline could not be so limited as to exclude any duty of carrying for the public.)

In the instant case the certificate issued to L. G. & E. for the Calvary line authorizes only the construction and operation of a line from the connection with Tennessee Gas and Transmission line at Calvary to the “existing mixing station” of L. G. & E. in Louisville. We are of the opinion that-the limited terms of the certificate do not and could not relieve L. G. & E. of the duty of transporting gas over the line froiii Calvary to Louisville (and perhaps even to intervening points) for a producer or owner of gas tendering it at Calvary for transportation. But certainly the certificate does, and validly can, limit the service to carrying or transporting. It is our opinion that under the certificate L. G. & E. has neither the authority nor the duty to wholesale gas owned by it at points along the line. Since that kind of service is wholly beyond the scope of its certificate the Public Service Commission has no power to order the service.

Bardstown argues, however, that since L. G. & E. has undertaken to supply gas from the Calvary line to its franchised distribution system in Mount Washington it has held itself out to supply gas at wholesale from the line and thus has brought that kind of service within the scope of its service obligations. There are two answers to that argument. First, L. G. & E. obtained an additional certificate to operate the distribution system .in Mount Washington, and it may be considered that such certificate expanded its original pipeline certificate to that limited extent. Second, if it be considered that the original pipeline certificate was not so expanded, then L. G. & E. simply is acting illegally in supplying gas from the Calvary line to the Mount Washington distribution system, and such illegal action cannot furnish the basis for extending its authority and duties under the pipeline certificate.

Bardstown makes the further argument that since L. G. & E. wholesales gas, under “wheeling” contracts, from its East Kentucky pipeline to a distribution company serving Shelbyville and Lawrenceburg, L. G. & E. should be compelled to enter into a similar contract with Bardstown. (This proposition is suggested by Bardstown as an alternative to L. G. & E.’s being required to render straight out service from the Calvary line.) Under such a contract Bardstown would obtain through the Federal Power Commission an allocation of gas from Texas Gas Transmission Corporation, which has a pipeline running through northern Kentucky from which L. G. & E. obtains some of its gas supply. This allocation would be assigned to L. G. & E;, and the latter then would furnish an equivalent amount to Bardstown from the Calvary line. The object would be to furnish L. G. & E. at Louisville, through Texas Gas Transmission Corporation, a supply of gas to offset the amount taken from the Calvary line at Bardstown. It is argued that since L. G. & E. holds itself out as furnishing such a service from its East Kentucky line, it can be compelled to furnish the same kind of service from the Calvary line.

We think the answer to this argument is that whatever service L. G. & E. was or is authorized to render from its East Kentucky line depends upon the certificate of convenience and necessity under which that line was constructed and is operated. For all that is shown in this record the certificate for that line originally may have authorized such service or may have been extended by Public Service Commission approval of the service contracts. What was done with respect to service from that line is of no significance here, because L. G. & E.’s authority and duties in respect to the Calvary line depend upon the certificate for that line.

The view we have taken, in attaching controlling importance to the certificate, is we think consistent with an orderly and efficiently operable system of public utility regulation. Unless the scope or area of permissible (and compellable) service is confined by certificate the door is opened to endless controversy over service authority and obligation. Subject to the qualification hereinafter stated, our view also is consistent with the proposition supported by a number of authorities that the scope or area of service obligation of a public utility is limited to the extent of its profession, holding out or dedication of service. See State ex rel. Ozark Power & Water Co. v. Public Service Commission, 287 Mo. 522, 229 S.W. 782; California Water & Telephone Co. v. Public Utilities Commission, 51 Cal.2d 478, 334 P.2d 887; 43 Am.Jur., Public Utilities and Services, Sec. 22, pp. 586-588. The qualification is that under our view the scope or area of profession, holding out or dedication is fixed, not by what the utility actually chooses to do, but by the terms of the certificate of convenience and necessity.

It is our conclusion that the Public Service Commission had no authority to compel L. G. & E. to supply gas to Bards-town from the Calvary line, either directly or under a “wheeling” contract.

As concerns the judgment holding that Bardstown’s certificate had expired by its own terms, we think the ultimate holding is correct although we do not agree with the reason given by the trial court. The certificate was conditioned upon Bards-town’s obtaining from the Federal Power Commission an order directing L. G. & E. to supply gas from the Calvary line. At the time the certificate was issued the Federal Power Commission had jurisdiction over the Calvary line. However, through proceedings initiated by L. G. & E. under the “Hinshaw Amendment” to the Federal Natural Gas Act jurisdiction of the Calvary line was returned to the Kentucky Public Service Commission. Bardstown then filed the application with the Public Service Commission which we hereinbefore have discussed. Bardstown’s pending application before the Federal Power Commission, for an allocation from the Calvary line, accordingly was dismissed. The circuit judge construed the certificate as being strictly conditioned upon a Federal Power Commission allocation, and therefore he held that the dismissal by the Federal Power Commission terminated the certificate. We think the certificate reasonably should have been construed as being conditioned simply upon the obtaining of an allocation from whatever regulatory body had the power to make it, and therefore the certificate would have continued in force had Bardstown been able to obtain an allocation from the Public Service Commission. However, since Bardstown has not been able to obtain that allocation the certificate now has expired.

The judgment is affirmed.

      . The company serving Shelbyville and Lawrenceburg has an allocation of gas from Texas Gas Transmission Corporation. That allocation is assigned to L. G. & E. for delivery in Louisville for its system there. In turn, L. G. & E. furnishes an equivalent amount of gas, out of its East Kentucky pipeline, to Shel-byville and Lawrenceburg.