author: PALMORE, Judge.

text:
    Leroy FREDERICK, Appellant, v. Bert T. COMBS, Governor of Commonwealth of Kentucky, Appellee. George GUGEL, Appellant, v. Bert T. COMBS, Governor of Commonwealth of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1962.
    J. D. Buckman, Jr., Frankfort, for appellants.
    John B. Breckinridge, Atty. Gen., Robert L. Montague III, Asst. Atty. Gen., for ap-pellee.
   PALMORE, Judge.

Acting in accordance with KRS 63.100, Hon. Bert Combs, Governor of Kentucky, separately charged George Gugel and Leroy Frederick, Chief of Police and Chief of Detectives, respectively, of the City of Newport, with neglect of duty and appointed a special commissioner to hear the cases and submit his findings and recommendations. While the proceedings were pending before the commissioner both of the respondent officers retired pursuant to the civil service ordinances of Newport. Gugel’s retirement was compulsory by reason of . age. Frederick’s was voluntary. For the purposes of the argument here it may be conceded that their offices were vacated by those actions.

Following their retirement each of the appellants moved the commissioner to dismiss the proceedings as moot, and they elected to stand or fall on this point, without the introduction of further evidence, by stipulating that no question would be raised as to sufficiency of the proof to sustain the ouster charges. The commissioner overruled the motions and submitted his findings, recommending that the appellants be disqualified from holding any office in this state for a period of four years. KRS 63.990. The Governor thereupon issued executive orders confirming the findings. The concluding paragraphs of the respective orders are as follows:

“During these proceedings, the said Leroy Frederick has resigned from his office as Chief of Detectives of the City of Newport. Since the finding of fact warrants his removal from office, I hereby direct that all the provisions and penalties of the statutes involved shall be applicable to the said Leroy Frederick the same as though he had been removed from office.”
“During these proceedings, the term of office of the said George Gugel, as Chief of Police of the City of Newport, expired. Since the finding of fact warrants his removal from office, I hereby direct that all the provisions and penalties of the statutes involved shall be applicable to the said George Gugel the same as though he had been removed from office.”

The questions raised on appeal from these executive orders do not require us to consider the evidence. They involve only the authority of the Governor to conduct the ouster proceedings, particularly after the respondents had retired from office, and to enter orders that literally did not remove the appellants from office but had the effect only of invoking the 4-year disqualifications under KRS 63.-990.

The first contention is that because the appellants held their respective offices subject to the provisions of KRS 95.440 et seq. the method of removal set forth in KRS 95.450 was exclusive. These statutes are the police and firemen’s civil service laws for second and third class cities. Under KRS 95.450 the authority to hear and act upon charges against police and firemen, including the power of dismissal, is vested in the city legislative body, and it is provided that a member of the system may be reprimanded, dismissed, suspended or reduced in grade or pay “only after charges are preferred and a hearing conducted as provided in this section.” KRS 95.450(1).

The substance of KRS 95.450(1) originated in the following sentence of Ch. 28, § 2, subsec. 4, Acts of 1920: “No officer or member of the police force or fire department except as provided in this act, shall be reprimanded, removed, suspended or dismissed * * * until written charges have been made or preferred against him, and a trial had as herein provided.” It was carried forward verbatim by reenactments in 1926 (Ch. 132, § 2, subsec. 3) and 1932 (Ch. 116, § 1) and was modified to its present form with the adoption of the Kentucky Revised Statutes in 1942.

Section 227 of the Constitution originally conditioned the removal of certain named officers upon their conviction of misfeasance, malfeasance or “willful neglect of discharge of official duties.” By an amendment adopted in 1919 the following language was added:

“Provided, also, that the General Assembly may, in addition to the indictment or prosecution above provided, by general law provide other manner, method or mode for the vacation of office, or the removal from office of any sheriff, jailer, constable or peace officer for neglect of duty, and may provide the method, manner or mode of reinstatement of such officers.”

This amendment was carried into effect by Ch. 49 of the Acts of 1924, which was repealed and superseded by Ch. 142 of the Acts of 1926, now KRS 63.100 et seq. Section 8 of the latter act says that it “shall be liberally construed, its purpose being to provide a remedial procedure for the enforcement of the 1919 amendment of section 227 of the Constitution of this Commonwealth.”

The first sentence of KRS 63.100 says, “A peace officer guilty of neglect of duty shall be removed from office in the manner prescribed by KRS 63.100 to 63.-130.” The act makes no exceptions for peace officers who are or may be subject to removal under KRS 95.450 or any other law, and the history of the respective statutes under discussion does not indicate that any exceptions ever were intended. Though counsel cites text out of certain opinions to the effect that the power of a city legislative body under KRS 95.450 is “plenary,” in none of those cases was this question before the court. Indeed, if there were any room to say that one of the statutes excludes the other, KRS 63.100 might have the better of the argument.

■ There is sound reason why no peace officer should be excepted from the application of KRS 63.100. The people of the whole state have an interest in the peace and good order of every individual community within it. Out of the common law comes the analogous principle that a single bawdy house is a public nuisance, and not just a neighborhood problem. It is a public nuisance even if the neighborhood in which it exists approves of it. In fact, it is hardly possible for vice and corruption to flourish very long without the indulgence of the local community, and a remedy resting exclusively with the legislative body of that community could not be adequate protection to the rights of the public as a whole. Wisely, therefore, the people of Kentucky have reserved that responsibility by committing it to the wisdom and discretion of their chief magistrate.

The second argument is that when the appellants vacated office with the consent and approval of the city council, the body having authority to appoint their successors (cf. KRS 63.010), the proceedings against them became moot. The case has been ably and well presented, and we have duly considered the authorities submitted on both sides. However, the particular question is of first impression in this jurisdiction. In arriving at an answer we must rely at last upon our own sense of what is right, proper and sound. That criterion tells us in no uncertain terms that an officer against whom ouster proceedings are pending can no more be allowed to' evade,, by relinquishing office, any of the substantial consequences attached by law to an adverse determination of the matter than a defendant in a suit for both compensatory and punitive damages could be permitted to end the action by payment of the compensatory amount alone. In this case KRS 63.990 attaches a 4-year disqualification to the removal, which ' not only is a substantial consequence, but may be even of more importance than the ouster itself, depending on the attendant circumstances. It is unnecessary, therefore, that we consider what might be the law if a removal from office were the only object of such an action. This case is clear. The proceedings under KRS 63.100 were not and could not be rendered moot by any change in the employment status between the appellants and the City of Newport. Cf. Brooklyn Audit Co. v. Department of Taxation and Finance, 1937, 275 N.Y. 284, 9 N.E.2d 930; Recall Bennett Committee v. Bennett, 1952, 196 Or. 299, 249 P.2d 479; and Ferguson v. Maddox, 1924, 114 Tex. 85, 263 S.W. 888, 893.

The last point is that the statutes under which the Governor acted gave him no power except to remove the appellants from office, and that his orders not only failed to do this but expressly recognized that the respective offices already had been vacated. Such a construction sets words above facts and principles, and it is untenable. As we have said above, the actions had a substantial purpose beyond mere removal of the officers, and the executive orders were couched in terms of those further consequences. This was entirely appropriate. The Governor chose not to question the legal efficacy of the resignations, as he might conceivably have done, but elected instead to concede it, recognizing that so much of the purpose of the proceedings had been accomplished in fact. We think it would be utterly unreasonable to give this realistic approach the ultimate effect of reducing the whole matter to a useless farce.

The orders are affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Will BLEVINS, Appellant, v. Zona BLEVINS, a Widow Woman, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 7, 1960.
    Rehearing Denied March 23, 1962.
    W. C. Dabney, Monticello, for appellant.
    R. B. Bertram, Monticello, for appellees.
   PER CURIAM.

This is a motion for an appeal from a judgment of the Wayne Circuit Court.

The record has been considered and we find no prejudicial error.

The motion for an appeal is denied and the judgment is affirmed.


author: STANLEY, Commissioner.

text:
    KENTUCKY TRANSPORT CORPORATION, Appellant, v. Bobby SPURLOCK, by His Committee, Polly Spurlock, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1961.
    Rehearing Denied March 23, 1962.
    O. J. Cockrell, Jackson, Earl B. Rose, Beattyville, for appellant.
    James S. Hogg, Jackson, for appellee.
   STANLEY, Commissioner.

The appeal is from a judgment for $40,-000 for personal injuries sustained by Bobby Spurlock in an automobile accident which occurred about midnight on September 20, 1958, on highway No. 15 in Breathitt County. After the suit was filed, Spurlock was adjudged an incompetent by reason of serious brain injury, and the case was prosecuted by his committee.

A full statement of the evidence is required as justification for sustaining the appellant’s contention that there was an absence of credible evidence to support the verdict of its negligence and that the evidence proved clearly the plaintiff was solely negligent.

The background and the foreground of the picture are clear, but the center is confused and distorted. In other words, the significant beginning and the tragic ending of the accident are clearly revealed, but the evidence of the critical intervening event is discordant and self-contradictory.

Earlier in the evening deputy sheriffs had stopped an automobile being driven by young Spurlock, who was accompanied by James Haddix. Officer Johnny Bush testified that Haddix was arrested for drunkenness and taken to jail, but Spurlock showed no evidence of intoxication. Haddix asked Spurlock to take his car home and to get his father to come and get him out of jail. At the jail Haddix asked the officers to see if Spurlock had taken his car home. They investigated and found that he had not. Whether Bush and other deputy sheriffs went out especially to look for Spurlock or to patrol the highway generally is not clear. Sometime during the night they saw Spurlock going south from Jackson in Haddix’s car. He went into Perry County and bought several cans of beer. The accident occurred while Spurlock was on the road going northwardly towards Jackson, somewhere near the village of Clayhole. At the point the highway is cut out of the hillside and is bordered on the west by a cliff. On the east is an embankment leading down to Troublesome Creek, which runs parallel with the highway. Here Fugate Creek enters Troublesome and the Fugate road crosses it and enters the highway. A short distance north of this point the highway makes a rather sharp curve to the west. On the east side at that point, between the highway and the creek, were several buildings and some stacks of lumber.

It is certain that Spurlock’s automobile ran off the east, or right-hand side of the highway, as if he had “straightened out” the curve. It went down the embankment for 100 or 125 yards, knocked over two stacks of lumber, then rolled over. Spur-lock suffered serious injury. Five cans of iced beer and a stick of dynamite were found in the wrecked car.

When the plaintiff, Bobby Spurlock, was called as a witness, the defendant objected on the ground of his adjudged mental incompetency and because he was being offered as an exhibit to get the sympathy of the jury. The court permitted him to testify under leading questions. It would appear that the court should have ruled he was an incompetent witness. See City of Covington v. O’Meara, 133 Ky. 762, 119 S.W. 187; Wigmore on Evidence, §§ 492, 494. It is enough to say, however, that the young man’s brief examination revealed such confusion in his recollection that in our review of the evidence his testimony must be disregarded as untrustworthy.

The plaintiff’s case rested largely on the testimony of Deputy Sheriff Johnny Bush, He testified that Spurlock passed him “at the upper end of the straight line” (apparently the south end) of the road; the appellant’s tractor-trailer truck was ahead of him “about a foot or so” over the center line; Spurlock “went to pass him and .he blowed his horn or blinked his lights, I won’t say which, maybe both, and he got two wheels' off the pavement to pass and this truck swung over and then swung back and I don’t know what happened then.” The truck was going 35 or 40 m. p. h. and Spur-lock “about SO or 55.” As Spurlock started to pass the truck, said the witness, its driver pulled over to the right and then back to the left of the center line, so “there wasn’t room for a bicycle more than to pass.” The witness could not see whether the car and truck collided. He stopped on the side of the road where Deputy Sheriff James Hudson was parked and told Hudson “to see if you can stop that car; we are supposed to pick it up.” Hudson “took out,” and Deputy Sheriff Kilburn “came out in his car and followed on through.” It is not shown where these officers were located in relation to the scene and no explanation is offered why all of this was being done when Bush had just seen Spurlock crowded off on the left side of the road by the truck. The three officers went on and found the truck stopped on the side of the road around the curve. When they asked the driver if he was having trouble, he replied that “a car went over the hill.” The officers then went down to the wrecked automobile.

Reverting to the accident, Bush testified, "I know he [the truck driver] crowded him off on the left side, but I don’t know what happened on the right side.” In the course of cross-examination, Bush insisted, first, that Spurlock was “fixing to pass when he got off the road,” and then that he “was passing” the truck when it pulled over to the left side of the highway. This would have put the car over against the cliff. He offered no explanation as to why it came about that Spurlock’s car went off the right-hand side of the highway and down the embankment.

The hostility and impatience manifested by the witness on cross-examination and his inconsistent and contradictory answers greatly weaken the probative value of his evidence. Moreover, about two weeks before the trial Bush made a statement to the defendant’s attorney, O. J. Cockrell, as to how the accident happened. It was taken down by a stenographer, and the accuracy of her notes was confirmed by Bush when she read them back to him. On this occasion, according to the testimony of Mr. Cockrell and his stenographer and the transcript of the notes, Bush stated, among other contradictions, that Spurlock was “driving about 60 miles an hour around that curve about that time and he passed me and an A & P truck [appellant’s] was in front of me and he passed that, and I saw him go around the curve and at the time there was plenty of room to pass the A & P truck and it was on its side of the road. Bobby Spurlock’s car, when he came around me, went off the road on the right-hand side of the road and in the direction we were both traveling, and the left wheels were on the shoulder of the road and was that way when it started around the truck and then as it was going around the truck there was plenty of room for it to go by and then he went on down the road.”

Bush denied making such statements to Mr. Cockrell and his stenographer. They testified he did and produced the statement. While the contradictions contained in the statement have no independent testimonial value, they ring true and add to the cumulative record of the incredulous story of Spurlock’s car having been crowded over against the cliff on the left side of the road, whereas it had certainly run off the embankment on the right side.

Deputy Sheriff Hudson testified that he was parked on the side of the road when the defendant’s truck passed traveling in the center of the highway, Spurlock “dodged off the left-hand side of the road making about fifty-five to sixty miles an hour and started to go on around, and when he got about half way around the truck there was two or four feet between them at that point and at that time I did not see the front of the truck and Johnny Bush pulled in front of me blocking my view and he told me to try to catch that car. He said this was the same car that we had been told to look for.” The witness did not see the car leave the highway. He testified that the tracks of Spurlock’s car were on the right shoulder of the road and ran from 100 to 110 feet “along the edge of the bank and then went over the hill 125 yards before striking the stacks of lumber.” This witness and other officers examined the automobile and the truck and found no sign on either that indicated they had touched.

The driver of the defendant’s truck was introduced by the plaintiff, stating it was for the purpose of cross-examination, although he was not a party to the suit. He identified the ownership of the truck and his employment. He was asked concerning signals that Spurlock may have given before passing him, and stated the first he knew of Spurlock trying to pass was when his headlights were reflected in the truck’s mirror. On examination by the defendant’s counsel, the witness stated the car passed the truck safely on the straight stretch of road and went out of sight around the curve. He came in sight of it again, and saw Spurlock’s automobile skid and go over the embankment on the right side.

The defendant’s motion for a directed verdict was overruled. It then introduced two state troopers, Robert Franklin Dees and Donald Goebel, who had arrived at the scene soon after the accident. They' found automobile tracks only on the dirt or berm on the right side of the road where the car had left the paved surface and gone over the embankment. There is contradiction whether the three deputy sheriffs then present, Bush, Hudson and Kilburn, stated to the troopers that no one had seen the accident.

The foregoing is the full story. Always the force of testimony depends on its strength to evince the truth of a matter in the light of all the indubitable circumstances and conditions. In the present case such light overshadows the testimony of Bush and Hudson that Spurlock was crowded over to the left of the defendant’s truck in passing, notwithstanding the physical fact that his car ran off the right-hand side at or near a curve in the highway. In short, the testimony tending to show negligence on the part of the defendant is not evidence which has the quality of proof, consisting of “fact and reason co-operating as co-ordinate factors” and inducing conviction of the truth, which is a generally recognized definition of probative evidence. Globe Indemnity Co. v. Daviess, 243 Ky. 356, 47 S.W.2d 990, and many later cases, among them Coney Island Co. v. Brown, 290 Ky. 750, 162 S.W.2d 785; Couch’s Adm’r v. Black, 301 Ky. 24, 190 S.W.2d 681; Thornberry v. Smith, Ky., 346 S.W.2d 727. Doubtless, natural sympathy of the witnesses for the young man who had suffered so tragically had great influence on their memories.

The hard truth of the matter is that this verdict, rendered by ten jurors, is so flagrantly against the weight of the evidence that it can be accounted for only as having been rendered through intense sympathy for the unfortunate young man. ' Perhaps also a very bad and prejudicial instruction concerning the defendant’s duties was a contribution. We need not go into that or the question of contributory negligence.

We have always recognized it to be the province of the jury to weigh the evidence. At the same time we recognize that where there is no evidence of probative value, as may be determined by the court, to support a cause of action or a defense or to support a verdict, the court should direct a verdict accordingly. Nugent v. Nugent’s Ex’r, 281 Ky. 263, 265, 135 S.W.2d 877; Wadkins’ Adm’x v. Chesapeake & O. R. R. Co., Ky., 298 S.W.2d 7. Such is this case.

The defendant moved for a judgment notwithstanding the verdict on the ground of the failure of the trial court to grant its motion for a directed verdict. CR 50.02. Since we are of opinion that the evidence did not warrant the verdict, we reverse the judgment and direct that the court now sustain the motion for a judgment notwithstanding. L. & N. R. Co. v. Taylor, Ky., 290 S.W.2d 608; Hoskins v. Hoskins, Ky., 316 S.W.2d 368.

Judgment reversed.


author: STEWART, Chief Justice.

text:
    KNOTT COAL CORPORATION et al., Appellants, v. Hillard SMITH, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1962.
    Rehearing Denied March 23, 1962.
    Harry C. Campbell, Pikeville, for appellant.
    C. W. Napier, Hazard, Cordell H. Martin, Hindman, for appellee.
   STEWART, Chief Justice.

The question that is determinative of this appeal is whether there was substantial evidence of probative value introduced which supports the finding of fact of the Workmen’s Compensation Board that appellee, Hillard Smith, did not have an occupational disease that came within the purview of the Workmen’s Compensation Act. See KRS Chapter 342.

Smith filed his application for compensation on May 26, 1958, upon the ground that he had become totally and permanently disabled by silicosis which was contracted while in the employ of appellant, Knott Coal Corporation.

The three doctors who testified for Smith at the hearing gave varied opinions as to the nature of his ailment. One stated he had emphysema and mild pneumoconiosis; another diagnosed his condition to be an-thrasilicosis; and another called it bronchitis and emphysema. The two doctors who testified for Knott Coal Corporation said unequivocally that Smith had emphysema. All the doctors agreed that he was totally and permanently disabled and the Board so held, finding the cause of the disability to be emphysema. The Board ruled emphysema was not an occupational disease within the purview of the Act and dismissed Smith’s claim. Another reason for denying his claim was also relied upon by the Board but we need not give any consideration to this.

The circuit court in reviewing the proceeding when Smith appealed to it reversed the Board’s finding, ruling that Smith’s disability was the result of silicosis due to his exposure to silica dust while working in the mine of the Knott Coal Corporation. The case was ordered remanded to the Board for an award consistent with its holding. This appeal is from the judgment of the trial court.

The rule to be followed in reviewing compensation cases has been stated many times. See Volume 19 (Part 2) of Kentucky Digest, Workmen’s Compensation, @=51939. It is that any finding of the Board on a question of fact will not be set aside on an appeal to either circuit court or the Court of Appeals if there is any substantial evidence of probative value to support it.' In this case, there was ample evidence of this character in the record to uphold the Board’s decision. The medical evidence as noted above is self-explanatory and affords an adequate basis for the Board’s finding.

Wherefore, the judgment is reversed with directions that it be set aside and a new one be entered confirming the order of the Board.


author: BIRD, Chief Justice.

text:
    BANNER TRANSFER COMPANY et al., Appellants, v. Foster OCKERMAN, Commissioner of Department of Motor Transportation, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.
    Rehearing Denied March 23, 1962.
    Stanley B. Mayer, Louisville, for appellants.
    John B. Breckinridge, Atty. Gen., George L. Willis, III, Frankfort, Earl C. Franken-berger, Louisville, Robert H. Kinker, Rudy Yessin, Frankfort, for appellees.
   BIRD, Chief Justice.

In 1932 the Kentucky General Assembly passed an Act regulating trucks for hire and requiring that such operation be conducted under certificates of public convenience and necessity. (Acts 1932, c. 99).. It exempted local cartage operations.

Between 1932 and 1954, divers persons and companies engaged in local cartage operations free of regulation. There were so many of these operations in Louisville and other cities, and the business became so competitive, that the Legislature at its 1954 Session passed an Act authorizing the Department of Motor Transportation to regulate the local cartage business and requiring the operators to obtain certificates of public convenience and necessity. It provided, however, for the issuance of such certificates to those who were in operation on December 31, 1953, and who filed their applications with the Department prior to January 1, 1956. This Act became effective on June 17, 1954. Therefore, all local cartage operators had from June 17, 1954, to January 1, 1956, to file their applications for a certificate of public convenience and necessity under the “grandfather” clause. After January 1, 1956, (the critical date) any applicant could file for a local cartage certificate but it was required to show public convenience and necessity.

The pertinent part of the 1954 Act reads as follows:

“Any person engaged, as of December 31, 1953, in the operation of a local cartage business as defined by KRS 281.010(20), shall, upon application before January 1, 1956, and upon the approval of the department, be entitled to such certificate or certificates of such type or types as defined in this Chapter to cover their local cartage operations as of December 31, 1953. In the event the department does not approve such application, the applicant shall be entitled to a hearing.” Acts 1954, c. 188, § 6-

Thereafter at the 1958 Session of the General Assembly, subsection (4) of KRS 281.665 was repealed and re-enacted to read as follows:

“Any person operating a motor vehicle exclusively engaged in the transportation of property for hire between points within a city or between such city and its commercial area, as of December 31, 1953, or who has purchased such an operation which was being so operated, upon filing a verified application, supported by documentary evidence showing that said operation has been actual and continuous since said date, upon approval of the department, pursuant to a hearing, shall be entitled to such local cartage certificate or certificates, as the proof may warrant.”

It will be noted that the critical date of January 1, 1956 was eliminated and no other date was placed in its stead. It only provided that if the applicant had been operating in local cartage on December 1, 1953, and had been in actual and continuous operation since that date, it would be entitled to a certificate. Both sections pertain to the “grandfathering” of local cartage operations.

This action was brought by local cartage operators who took advantage of the “grandfather” clause of the 1954 Act before the critical date of January 1, 1956, for the purpose of testing the constitutionality of the 1958 Act. The 1958 Act was declared valid and the plaintiffs appeal. Their complaint is clearly stated in appellants’ brief as follows:

“These appellants have certain vested rights conferred upon them under the 1954 Act of the Legislature, which is, in effect, a contract or franchise. The 1958 Act takes away from them this vested right, this contract or franchise, and permits others, who, through neglect or some other reason, failed to qualify under the 1954 Act.”

Assuming that a contract does exist as contended, it must be remembered that Section 3 of the Kentucky Constitution reserves the power in the State to revoke, alter or amend. This reserved power,- however, is not without limits. It will not be exercised to destroy or substantially impair rights vested under the State’s grant. Ayers v. Burley Tobacco Growers Cooperative Ass’n, Ky., 344 S.W.2d 836. Let us look at the right granted under the 1954 Act. The plaintiffs had the right, under the Act, to carry on a cartage operation without having to secure a certificate of convenience and necessity from the Department of Motor Transportation along with other operators who were engaged in that business on December 31, 1953.

That is exactly the same right that they have under the Act of 1958. We must therefore join the trial court in holding that there has been no destruction or impairment of the right created under the Act of 1954 and we find it unnecessary to further discuss the nature of the right.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Bernard ALVEY et al., Doing Business As Alvey Brothers Lumber Company, Appellants, v. Olin W. KERN et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 2, 1962.
    Rehearing Denied March 26, 1962.

      John W. Beard, Humphreys, Jones, Beard & Rummage, Owensboro, for appellants.
    Wells T. Lovett, Thacker, Sweeney & Lovett, Owensboro, for appellees.
   MONTGOMERY, Judge.

Bernard and Robert I. Alvey, doing business as Alvey Brothers Lumber Company, appeal from a judgment in the sum of $6,-468.21 in favor of Olin W. Kern and his wife, Mary. The Kerns had sued for recovery of damages under a written contract. The Alveys recovered $168.21 on a counterclaim, from which there is no appeal.

In April 1957, appellants entered into a written agreement with the appellees for construction of a dwelling house in Owens-boro. The contract price for the lot and completed house was $24,400. Appellees took possession on September 17, 1957.

On December 27, 1957, appellees sued appellants to recover $8,400 for a failure to perform the contract to construct the building in a good and workmanlike manner according to the plans and specifications. Appellees claimed to have proved nine instances of such failure.

Appellants contend that: (1) Their motion to make the complaint more definite and certain should have been sustained; (2) they were forced into trial without time for adequate preparation; (3) the trial court erred in admitting and rejecting evidence; (4) the damages are excessive and there was no competent evidence by which to measure the damages and to support the verdict; and (5) the verdict was the result of passion and prejudice.

Appellants moved for a definite statement by appellees as to particular violations of the contract claimed. CR 12.05. They contend that they were unable to frame a responsive pleading because of the vagueness of the complaint. After the motion was overruled, appellants filed an answer and counterclaim, the substance of which was a denial of any violation of the contract and an allegation of proper performance.

The purpose of the motion for a more definite statement is to enable a party to frame a responsive pleading. When the party cannot reasonably determine the true nature of the claim or defense, the motion should be granted. The matter rests largely in the discretion of the trial court to construe the rule to accomplish substantial justice. Clay, CR 12.05.

In considering the correctness of the trial court’s ruling, it is pertinent to recall that appellants took the deposition of Olin W. Kern by way of discovery. The information sought to be obtained by the motion was disclosed in this deposition. Inasmuch as no further pleading was filed by appellants after the deposition was taken, it must be considered that appellants had determined that they had enough information for the purpose of their pleading. Hence, the error in the ruling, if any, was harmless.

The same conclusion is reached as to appellants’ contention that they were forced into trial without time for adequate preparation. On March 24, over appellants’ protest, the case was set for trial on April 17, approximately three and one-half months after the complaint had been filed. No motion for a continuance was made. They complained that they were unable to take the deposition of Kern’s wife by way of discovery. Because of illness, her deposition was not taken when Kern’s deposition was taken. However, it was taken and filed immediately before trial. Considering the similarity of their testimony so given and the failure of appellants to show any inability to prepare for the trial attributable to the early trial date, there is no error.

Appellants urge that the trial court erroneously permitted appellees’ counsel to ask leading questions concerning the amount of damages. The discretion of a trial court in allowing leading questions is not reviewable except in a plain case of abuse. Foutz v. Hacker, 200 Ky. 233, 254 S.W. 744. The dereliction is not considered sufficient to constitute the denial of a fair trial.

Complaint is also made that appellants should have been permitted to introduce testimony concerning the type of louvers used in the construction of another house. This contention is founded on the following handwritten statement under the heading “Miscellaneous” appearing at the end of the contract, to-wit: “This house to be built as near as possible the same as house of Charles Daniels.” By avowal, appellants offered to show that the louvers which were installed and about which ap-pellees complained were the same size and shape as were installed in the Daniels house. They did not conform, however, to the specifications of the contract.

Appellees insist that the Charles Daniels house reference was to the quality and workmanship rather than to any specification or specifications. The reference is ambiguous. To sustain the contention of appellants, they would have been permitted to show any or all of the specifications of the Daniels house, which does not seem to be what the parties could have intended and which would have rendered unnecessary and useless the many specifications set forth in the plans and contract. The trial court was correct in denying evidence with reference to the Daniels louvers.

Lastly, appellants contend that there was no competent evidence on which to measure and support the verdict and that the damages awarded were excessive and the result of passion and prejudice. The trial court instructed the jury that if the defendants failed or refused to perform the contract substantially according to the plans and specifications and in a good and workmanlike manner they should find for the plaintiffs in the amount of the difference, if any, between the value of the building as constructed and what it would have been if it had been constructed according to the contract. The court properly instructed the jury. Totten v. Stewart, Ky., 286 S.W.2d 539; Speith v. Helm, 301 Ky. 451, 192 S.W.2d 376; Nance v. Patterson Building Company, 140 Ky. 564, 131 S.W. 484, 140 Am.St.Rep. 398. Appellants do not complain of the instruction.

Kern testified concerning the nature of the defects. He introduced three building contractors, a real estate man, a lumber man, and the man who did the grading in his yard, all of whom testified in corroboration. The evidence showed that the actual construction differed from the plans and specifications or failed to meet the standard of workmanship therein required in regard to a footer or foundation for the basement walls, the pouring of the basement walls, supporting columns and footers, the base for the chimney, fireplace, and hearth, the stone veneer front of the fireplace, the louvers already mentioned, certain walls, the ceramic tile in the bathrooms, and the floors. Several of the defects were not repairable and amounted to a substantial failure to follow the plans and specifications. Upon joint motion of the parties, the jury was permitted to view the premises. Kern testified that the damages amounted to $8,400. Robert Richeson, a builder, testified to the same amount of damages. Under this proof and the instruction given, the jury was justified in awarding appellees damages in the net sum of $6,300. There is nothing in the record to justify any conclusion that the verdict was the result of passion and prejudice.

Judgment affirmed.


author: WILLIAMS, Judge.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Lillian F. THOMPSON, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1961.
    Rehearing Denied March 23, 1962.
    H. R. Wilhoit, Grayson, for appellant.
    Creech & Cox, Ashland, for appellee.
   WILLIAMS, Judge.

On June 1, 1957, appellant, the Travelers Insurance Company, renewed a group life insurance policy covering employees of the General Telephone Company of Kentucky. Appellee, Lillian F. Thompson, an employee of the telephone company, was issued a certificate of insurance with total coverage of $7,200. Appellee quit work in October, 1957, and thereafter filed claim for total disability. The claim was denied and appellee filed suit on the insurance policy. A jury found for appellee and the judgment provided that permanent total disability benefits in the amount of $7,200 be paid in accordance with the provisions of the policy. From that judgment this appeal is prosecuted.

The insurance policy sued on provides in part as follows:

“If any employee shall furnish the company with due proof that, while insured under the Group Life Policy and before having attained the age of sixty, he has become wholly disabled by bodily injuries or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, * * *.”

This is a nonoccupational policy, thus it is incumbent upon appellee to prove total disability to engage in any occupation albeit the gain or profit to be derived therefrom must be something substantial rather than nominal. Mutual Life Ins. Co. of New York v. Bryant, 296 Ky. 815, 177 S.W.2d 588, 153 A.L.R. 422. Appellant insists ap-pellee failed to prove such disability while insured under the policy.

Appellee, who was 51 years of age at the time she quit working, had been a switchboard operator for 31 years. During the last eight years of employment her medical history shows — 1949 operation for appendicitis and on female organs, 1952 back trouble for which a back brace, bed board and physical therapy were prescribed, also treatment by an orthopedist, 1955 and 1956 treatment for stress incontinence, 1957 operation by gynecologist for second degree cystocele, second degree rectocele and stress incontinence. She continued to work until shortly before the last operation and has not worked any since.

Although it is questioned by appellant it is readily apparent to us that if appellee became disabled she did so while insured under the group life policy. It is equally apparent that if disability exists it was caused by disease. The only question remaining is whether the jury had before it sufficient evidence to find the appellee wholly disabled and permanently prevented from engaging in any employment for wage or profit.

The jury heard testimony of doctors who said appellee could not perform the duties which she had previously performed and could not perform any gainful work. The surgeon who performed the last operation said her activity must be limited, which he said means, “They have to breathe and walk and they have to do other menial tasks to live, but, certainly no excesses in activity.” On the other hand, appellant introduced testimony of a doctor who did not believe she was totally disabled. Thus there was a conflict of evidence which was within the province of the jury to reconcile. Equitable Life Assurance Society of United States v. Austin, 255 Ky. 23, 72 S.W.2d 716. In order to recover on a nonoccupational disability provision it is incumbent upon the insured to show disability to perform any work which may yield gain or profit, and he may not restrict proof only to the work he has previously performed. However, it is not error to show that he is disabled from performing his previous work. Occidental Life Insurance Co. of California v. Harvey, 312 Ky. 661, 229 S.W.2d 466. The question of insured’s disability, the extent thereof, its beginning and continuation, are for the jury to determine. Prudential Insurance Co. of America v. Alsobrook, 266 Ky. 442, 99 S.W.2d 210.

Here there was ample proof to sustain the verdict of the jury.

Appellant also suggests the judgment should he reversed because it allows recovery of the maximum amount, whereas the insurance policy provides for installment payments. The point was not raised in circuit court and may not he raised for the first time on appeal. To avoid possible confusion we note the judgment does not direct recovery of a lump sum, hut provides for payment in accordance with the provision of the policy. The appellant is amply protected by the policy provisions should conditions change in the future.

The judgment is affirmed.


text:
    W. E. VENTERS et al., Appellants, v. Edna H. REYNOLDS, Appellee (two cases). Edna H. REYNOLDS, Appellant, v. W. E. VENTERS et al., Appellees.
    Court of Appeals of Kentucky.
    June 2, 1961.
    Rehearing Denied. March 23, 1962.

      O. T. Hinton, Hinton & May, Pikeville, for W. E. Venters and Lloyd Childers.
    L. C. Farley, Charles E. Lowe, Francis M. Burke, Pikeville, for Edna H. Reynolds.
   MONTGOMERY, Judge.

The three separate appeals here involve the litigation resulting from the execution of a lease by Edna H. Reynolds to W. E. Venters and Lloyd Childers, hereinafter referred to as lessor and lessees, respectively. The records have been consolidated for consideration. Various questions have been presented which will be considered chronologically in so far as is possible.

Lessor executed a written lease agreement dated September 17, 1953, by which she leased a lot to lessees for a period of five years with the right to extend for an additional fifteen-year period. The lot was located on the outskirts of Pikeville. It fronted on U. S. Highway 23. The rent was $75 per month. The lease prohibited any subleasing except by the written consent of the lessor.

Lessees were automobile dealers. They owned a smaller lot adjoining the leased lot. Shortly after the execution of the lease, lessees purchased a similar business which included a modern garage building and showroom located a short distance from the leased lot. They moved their business to this building and proceeded to drain and fill in the two unimproved lots for use as a used car lot. The cost of this improvement to the leased lot was disputed.

By a written instrument dated January 10, 1955, lessees permitted one Victor Tackett to use the front portion of the leased lot. The written instrument embodied an oral agreement under which Tackett had erected a drive-in restaurant. The instrument was recorded in the Pike county court clerk’s office on May 18, 1955.

Tackett opened the drive-in restaurant on Election Day in November 1954 and operated it as such, with a large neon sign erected in front bearing his name and the words “Drive-in Restaurant.” Lessor lived within a few hundred feet of the restaurant. She admitted that she knew Tackett was operating a restaurant but made no complaint at that time.

Sometime in 1955 lessees erected an addition to the restaurant. About a month before the January 29, 1957 flood, the restaurant building and its contents were seriously damaged by a fire. Repairs were made and business was resumed in due course. Another fire in February 1957 totally destroyed the building and contents, Tackett collected the insurance on the part of the building erected by him, and lessees collected the insurance on the addition built by them.

Under the agreement with lessees, Tackett paid rent to them, which was increased when the addition to the building was added. Tackett stopped paying rent when the building burned. Lessees paid the monthly rental called for under their lease to lessor from the beginning of the lease up to and including February 16, 1957, all of which was accepted by the lessor.

On January 21, 1957, lessor filed an action in which she sought to recover damages for failure of lessees to erect a building on the lot and sought to have the lease cancelled or forfeited for breach of covenant against subleasing without her consent. The first claim has been abandoned. By amendment, lessor sought to collect other damages and to share in the proceeds of the insurance money collected.

After the filing of the action, lessees tendered rental checks each month, which lessor did not attempt to cash until after a judgment had been rendered in January 1958. Lessees then stopped payment on the checks and, apparently, neither party has made any beneficial use of the lot since January 1958.

The Chancellor found that the lessees violated the terms of their lease by subletting a portion of the leased premises to Tackett, that the sublease was terminated by the destruction of the building by fire, and that the breach of the lease agreement was "not such as to require a forfeiture of the lease.”' The judgment denied a forfeiture or cancellation of the lease but awarded lessor $1,470 in damages. The failure to adjudicate any other claims for damages in the action is not presented.

Lessees appeal from this judgment and urge that: (1) The Tackett agreement was an assignment instead of a sublease; (2) a breach of covenant or restriction against subleasing did not entitle lessor to a forfeiture or cancellation of the lease; (3) lessor’s acceptance of rent constituted a waiver of any right of forfeiture or claim for damages; and (4) it was error to award the $1,470 damages.

The written instrument executed by lessees and Tackett by its terms indicates that it was intended as a sublease rather than an assignment. It is twice referred to therein as a sublease and twice as a lease and uses the words, “let, lease and demise.” There is no language used to indicate that an assignment was intended.

The particular words employed are not necessarily determinative of the nature of the instrument. An assignee in whole or in part under a lease is liable to the landlord for the payment of rent, while a sub-lessee is liable only to the lessee. Consolidated Coach Corporation v. Consolidated Realty Co., 251 Ky. 614, 65 S.W.2d 724.

Both parties rely on Cities Service Oil Co. v. Taylor, 242 Ky. 157, 45 S.W.2d 1039, 1040, 79 A.L.R. 1374, in which an assignment of a lease and a subletting are defined and distinguished thus:

“The distinction depends upon the quantity of interest that passes by the transfer, and not upon the extent of the premises involved. An assignment transfers the entire interest in the leasehold, or, if the assignment be merely pro tanto, it passes the entire interest in such part of the demised premises.
“A subletting is a grant of a portion of the term, with some reversion- ' ary interest in the sublessor.”

Under- the agreement, Tackett made monthly rental payments to lessees, who retained the right to extend the lease with lessor for an additional term. Lessees collected additional rent for the addition to Tackett’s building. The Tackett agreement reserved to lessees a right of reentry and possession for a breach of covenant in default of payment of rent.

The entire interest of the lessees to the portion of the lot involved did not pass to Tackett, and the lessees retained certain reversionary interests and collected the rent payable. Under the definitions given, it is concluded that the Tackett agreement was a sublease instead of an assignment. Bowling v. Garber, 250 Ky. 137, 61 S.W.2d 1102; Coleman v. Owens, Ky., 254 S.W.2d 341.

The subleasing of a portion of the -lot without the consent of the lessor constituted a ground of forfeiture at the option of the lessor. The acceptance of rent from the lessees with knowledge that the sublease covenant had been violated, as the lessor here must have known, was, in effect, a waiver of her right to insist on a forfeiture or cancellation of the lease. Sale v. Smith & Nixon Co., 147 Ky. 146, 143 S.W. 737; Miller v. Tutt, Ky., 264 S.W.2d 649. Cf. Miller Dairy Products Co. v. Puryear, Ky., 310 S.W.2d 518, wherein lessor was held not to have waived the right to declare a forfeiture by previous acceptances of late rental payments. See also Citizens Fidelity Bank & Trust Co. v. Norfleet, Ky., 252 S.W.2d 54, in which the Cities Service Oil Company decision was approved.

In the second appeal, lessor questions the failure to forfeit the lease. This has been treated as a cross-appeal in which no merit is found for the reasons stated.

The lessor was awarded the sum of $1,470 as damages against lessees as the difference in the rentals collected by lessees from Tackett and the rental paid by lessees to lessor. Nowhere in lessor’s complaint, which was twice amended, was any such claim presented. The judgment is silent as to the theory on which such recovery was permitted.

It is suggested in lessor’s brief that lessor is entitled to the damages since “she might have demanded an increase in rental payment to her in consideration of her consent to such sublease.” No authority is cited by lessor to sustain this contention. The answer to the contention is that lessor was paid the rental to which she was entitled under the lease, that she waived the right to claim a forfeiture and the benefit of any such breach, as has been pointed out, and that no such claim was ever asserted prior to filing an action or in the pleadings of the action. The judgment is erroneous in the award of such damages.

On July 3, 1958, lessor sued lessees again and sought to recover accrued unpaid rentals from February 1957, possession of the property, damages for wrongful detention of possession, and cancellation of the lease. Lessees answered with a denial, asked that the action be abated pending determination of the appeal in the first action, and by counterclaim sought recovery of the cost of improving the lot and the loss of use of the profits therefrom. Judgment based mainly upon a stipulation was entered by which lessor recovered $1,500 as the balance of the unpaid rent for the five-year term. The court found that lessees by a failure to pay the accrued rent due on September 17, 1958, were not entitled to renew and extend the lease and adjudged the lease to be terminated.

The lease provided that the original term of five years should end on September 17, 1958, and that “the lessees shall have the right, option and privilege of renewing and extending this lease by fifteen (15) successive terms of one year each immediately after the said original term, which renewals shall be exercised by the lessees remaining on the premises until the 17th day of September of the year 1958, and otherwise abiding by the terms hereof, * * * no other notice of intent to renew said lease shall be required of lessee.” By a letter dated September 17, 1958, lessees tendered a check of $80 to cover rent for September 15 and 16, 1958, and for one month in advance beginning September 17, 1958, and gave notice of their intention to extend the lease. The tender was refused.

According to the stipulation, lessees on September 17, 1958, were in default in the payment of rent in the sum of $1,500. The trial court so found. Lessees contend that the continued insistence of the lessor upon forfeiture of the lease deprived them of the beneficial use of the premises and amounted to a breach of the covenant of quiet and peaceable possession, which was a constructive eviction and excused their failure to pay rent. Lessees admitted that they have remained in “technical possession” of the premises. To constitute a constructive eviction, the acts of the landlord must be such as will justify and warrant the tenant in leaving the premises and there must be an abandonment in fact. Estes v. Gatliff, 291 Ky. 93, 163 S.W.2d 273. Lessees cannot thus excuse their failure to pay rent since there was no actual surrender of the premises.

Such failure was in violation of the provision of the lease that entitled lessees to extend by “abiding by the terms” of the lease. Payment of rent was one of the terms lessees should have fulfilled as a condition precedent to exercise of their right to extend the lease. Annotation, 172 A.L.R. 1436.

There is no merit in the argument that the destruction of the restaurant building by fire excused lessees’ nonpayment of rent under KRS 383.170. The building destroyed was not leased by lessees from lessor. The statute did not apply.

The judgments and final orders involved in the three appeals are all affirmed except that part of the first judgment awarding Edna H. Reynolds the sum of $1,470 against W. E. Venters and Lloyd Childers which is reversed.


author: STONE, Presiding Judge.

text:
    Ardys Marie DAVIS, Plaintiff-Appellant, v. Harry Anderson DAVIS, Defendant-Respondent.
    No. 7964.
    Springfield Court of Appeals. Missouri.
    Feb. 17, 1962.
    Kearby & Calvin, Poplar Bluff, for plaintiff-appellant.
    Roy W. McGhee, Jr., Piedmont, for defendant-respondent.
   STONE, Presiding Judge.

This appeal brings before us another broken home involving not only abandonment by the parents of their marital vows to love, honor and cherish each other “till death do us part” but also disposition of their two innocent children whose custody is the sole remaining subject of dispute between the parents. Plaintiff Ardys instituted this action by the filing of her petition on January 21, 1960, in which she sought a divorce for alleged indignities [Sec. 452.010], custody of the two minor children, and monetary allowances for alimony, attorney’s fee and child support. Defendant Harry countered with a cross-bill in which he sought the divorce, likewise for alleged indignities, and custody of the two children. Following trial on July 8, 1960, the court granted Ardys a divorce and attorney’s fee hut no alimony, awarded care and custody of both children to Harry “during the months of September through May of each year” and to Ardys “during the months of June through August of each year,” and directed Harry to pay $80 per month child support during the months of June through August. No motion for new trial was filed by either party, and no appeal was taken in regular course. Rule 82.04; Sec. 512.050. Almost five and one-half months after judgment, towit, on December 20, 1960, Ardys (then represented by other counsel) sought a special order of this court allowing her to appeal under Rule 82.07. Also Sec. 512.060. Upon her sworn motion which cast the blame upon her trial counsel for failure to perfect an appeal in regular course and which contained numerous blunt and persuasive representations as to what the record would show (many of which were either unwarranted or exaggerated, as the subsequently-prepared transcript demonstrates), we granted the requested special order and Ardys’ notice of appeal was filed on January 5, 1961. Rule 82.07; Sec. 512.060.

Ardys married Harry on October 9, 1947, in Piedmont, Missouri. Their final separation was on December 12, 1959. During the interim, their conjugal course was interrupted by a prior divorce and remarriage and was punctuated by several separations. Ardys uncertainly hazarded an estimate of “two or three other” separations but volunteered that “I could be wrong” and suggested that “you could ask Harry,” while Harry, perhaps with a trace of bitterness, thought that “when I lost track it was around twelve times and there have been a few since then.” Of this fitful and intermittent union, the first child, David Eugene, was born on August 12, 1949, and the second, James Andrew, was born on August 9, 1955 (after the first divorce and remarriage), so the children are now about 12j4 and 6y2 years of age, respectively.

Ardys, the appealing party, presents only two “points” in her brief, towit, (1) “the trial court’s findings that plaintiff was the innocent and injured party and that the minor children were of tenders (sic) years entitled plaintiff to the custody of said children” and (2) “all things being equal in divorce suits custody of children must be granted to the wife, especially if they are young children.” There being no express findings in the judgment and decree nisi, Ardys’ first point obviously contemplates and depends upon the implied finding, inherent in and essential to any such general decree, that the party to whom the divorce is granted must have shown himself or herself (as the case may be) to have been the innocent and injured party. Simon v. Simon, Mo., 248 S.W.2d 560, 562(1); Freebairn v. Freebairn, Mo.App., 349 S.W.2d 486, 487 (3); McCoy v. Briegel, Mo.App., 305 S.W.2d 29, 35(9): But, to have con. eluded that Ardys was “innocent” (within the meaning of that term as employed in divorce cases), the trial court was required to find no more than that her conduct would not have entitled Harry to a divorce on his cross-bill, so no more than that is necessarily inherent in the implied finding- of Ardys’ innocence [Elgin v. Elgin, Mo.App., 301 S.W.2d 869, 872(3); Cadenhead v. Cadenhead, Mo.App., 265 S.W.2d 426, 436 (6); Dunlap v. Dunlap, Mo.App., 255 S.W.2d 441, 442(1); Politte v. Politte, Mo.App., 230 S.W.2d 142, 148; Rowland v. Rowland, Mo.App., 227 S.W.2d 478, 484 (3)]; and; in determining custody of the minor children, Ardys’ success in obtaining the di. vorce was not in the trial court, and is not here, a' decisive and controlling factor. L-v. N-, Mo.App., 326 S.W.2d 751, 754(3); Paxton v. Paxton, Mo.App., 319 S.W.2d 280, 288(10); McKenzie v. McKenzie, Mo.App., 306 S.W.2d 588, 591(3) For that matter, the transcript on appeal leaves us in grave doubt as to whether Ardys was the innocent and injured party and as to whether she should have had the decree; but, with no appeal by Harry and with Ardys’ counsel representing (albeit dehors the record) that both she and Harry have taken other spouses, our reluctance to compound trouble and tragedy for those helplessly involved in this marital melange, towit, not only the children born to the principals in this case but also those born to their present spouses in previous matrimonial ventures, has dissuaded us from setting aside the decree of divorce to Ardys and thereby leaving the parties in a bigamous fret and stew.

Ardys’ second point, i. e., “all things being equal in divorce suits custody of children must be granted to the wife, especially if they are young children,” presents nothing for appellate review. Dansker v. Dansker, Mo.App., 279 S.W.2d 205, 209(4); Lockhart v. Lockhart, Mo.App., 271 S.W.2d 208, 209(1). It may be recognized as an abstract statement .of principle frequently found in similar language, although it should be noted that applicability of this principle is dependent upon “all other things being equal” [L- v. N-, supra, 326 S.W.2d loc. cit. 754—755(5), and cases collected in footnote 7] and that it is said to be particularly relevant where the custody of young girls is involved. McKenzie v. McKenzie, supra, 306 S.W.2d loc. cit. 591(6); Wilson v. Wilson, Mo.App., 260 S.W.2d 770, 776(7); Davis v. Davis, Mo.App., 254 S.W.2d 270, 274(6); Armstrong v. Armstrong, Mo.App., 185 S.W.2d 845, 847(4). However, there is no paucity of cases demonstrating that, where the best interests of minor children will be served thereby, custody will be awarded to the father. L- v. N-, supra, 326 S.W.2d loc. cit. 755(6), and cases collected in footnote 8; Tootle v. Tootle, Mo.App., 329 S.W.2d 218, 224. In fact, that was done in two of the three cases cited in Ardys’ brief. Thomas v. Thomas, Mo.App., 288 S.W.2d 689, certiorari denied 352 U.S. 873, 77 S.Ct. 98, 1 L.Ed.2d 77; Cadenhead v. Cadenhead, supra, 265 S.W.2d loc. cit. 436-437. In the final analysis, most of the commonplace truisms reiterated by rote in child custody cases are of scant assistance, for courts award custody not by application of academic principles but by ascertaining, insofar as is humanly possible, what will best serve and promote the welfare of the children involved. That is the only inflexible and unyielding, in fine the paramount and supreme, principle in custody cases. To that principle, all others must yield and give way; and, in its application, there must be no compromise or reservation. See cases collected in West’s Missouri Digest, Vol. 11, Divorce, ‘§~529S(1).

With an eye single to the welfare of David and James, we have read and pondered the transcript which, of course, we must take as it comes to us. Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2); Prentice v. Williams, Mo.App., 324 S.W.2d 466, 469(2). Since the court’s action in granting a divorce is not under review, the sorry connubial record of Harry and Ardys is of value only insofar as it bears upon the contested issue as to custody of the children [In re Krauthoff, 191 Mo.App. 149, 170, 177 S.W. 1112, 1120; Tootle v. Tootle, supra, 329 S.W.2d loc. cit. 223-224(6)]; and, with the books already bulging with innumerable marital histories reported in minute, tedious and repetitive detail and running the entire literary scale from lurid and racy on the one end to dull and insipid on the other, the instant record affords neither reason nor excuse for more than a summary of the circumstances of primary importance.

For more than ten years prior to trial, Harry (characterized by Ardys as “a hard working man”) had been employed regularly as a letter carrier working out of the Piedmont post office. His “take-home pay” from this employment was, at the time of trial, “$159.06 every two weeks,” and he had some additional income, relatively small and highly variable in amount, from part-time plumbing and electrical work. However, Ardys testified that, although she “didn’t like the idea of working” outside the home, “I had to do it,” and she quoted her husband as having said that “he would rather I didn’t, but if I wanted to, to go ahead.” Harry insisted that he had provided adequately for his family, that it was not necessary for Ardys to work, and that it was “her idea” to do so. In any event, Ardys was engaged, during most of her married life, in some character of house-to-house or customer solicitation such as the sale of greeting cards, hosiery, or “food plans.” At first, she averaged “maybe a couple of days a week” but “towards the last * * * I tried to put in five days a week.” Whatever her earnings may have been (as to which there was no definite or satisfactory proof), she said that most of it was used for family purposes. To the contrary, Harry stated that Ardys had spent her earnings “as she pleased, entertainment for herself and a few gifts for her friends,” and that, so far as he knew, none of it had been used to pay family expenses. We note parenthetically Ardys’ concession that “occasionally” she had purchased “gifts to cheer people up,” such as “a record player” for a “friend in Piedmont,” and her intriguing explanation that “I felt like that would be my tithe to God” — “only with my tithe did I buy gifts,” thus suggesting a novel and convenient, though perhaps theologically unorthodox and scripturally unapproved, avenue to nominal compliance with the Biblical injunction, “Bring the full tithes into the storehouse, etc.” Malachi 3:10. However, our primary interest in the general subject of Ardys’ employment lies not in these disputed areas, but rather in the undisputed fact, coming from the lips of both parties, that “part of the time” Ardys took the children with her while working and “part of the time” she left them with Harry’s mother or “another lady.”

Less than three years after the marriage in 1947, Ardys’ parents moved to Louisiana, and about 1955 they moved to Dagsboro, Delaware, where they resided at the time of trial. Ardys’ relatively frequent trips to visit her parents (she thought “on an average once every eight months” but the record as a whole suggests more frequently than that) were a major source of friction and trouble. Harry charged that Ardys was “emotionally unstable and * dependent on her father for guidance in all of her affairs.” Ardys said that hers was “a close family,” that she had visited her parents “on the advice of my physician on several occasions when my nerves became bad and I was run down,” that “I depended on my father a great deal for comfort and love,” and that “he had two heart attacks and I wanted to be near him.” On many of these trips, Harry did not accompany his wife. According to Ardys, her husband had visited her parents on only one occasion, that being when he had moved some of their personal belongings from Louisiana to Piedmont for storage. Harry’s version was that “I went once a year anyway, sometimes more often than that.” In either event, Ardys made a good many trips without her husband and, more importantly here, at least a number of trips without one or both of the children. Ardys remembered that Harry’s mother had kept James, the younger boy, “one time” and David, the older boy, “another time,” and that a neighbor had cared for David on another occasion. The neighbor, a witness for Harry, stated that about eighteen months prior to trial she had David “one time for five weeks and another time about two or two weeks and a half, and I have had them in and out several times” — “part of the time (Ardys) was working and part of the time she was at her mother’s.” Both Harry and his mother testified that “at times” Ardys took the children with her and “at times” she left them with the paternal grandparents in Piedmont.

Ardys asserted that her health was “excellent” at the time of trial. However, although we find no express admission of the charge that she was “emotionally unstable,” her testimony is replete with comments of which the following are representative, indicating the physical and emotional disturbances which had beset her. (See Baer v. Baer, Mo.App., 51 S.W.2d 873, 879, where the mother, although “of unquestioned good character,” was “temperamental and given to spells of anger and irritability.”) “I had pneumonia three times one year and twice another year and my lungs have developed a' chronic bronchitis since then. The doctor has told me my health could be very good, that the only thing I need is peace of mind * * After each birth, she was nervous, and “the doctor told me (I) needed a peaceful environment and I would be all right with a little love and affection.” She has been advised, so she said, to have no more children. After the birth of her second child, she “became hysterical from loss of sleep.” One of her major complaints against Harry was that, “instead of putting his arms around me and comforting me he shook me violently and told me, ‘shut up and stop that.’ ” That occasion (disputed by Harry) was the only alleged instance of physical abuse. Denying that she had refused to live with Harry in Piedmont, she quickly admitted that she had “expressed wishes very strongly that we both move”— “I was simply trying to get us together where we could find more in common and get away from the nervous environment I had.” We forego specific reference to other incidents, in discussion of which Ardys frequently injected comments about nervousness and medical care, that nothing may be recorded here concerning certain matters which reflect no credit upon either party.

Just what triggered the final separation on December 12, 1959, is not disclosed. Harry’s testimony indicated that he understood, when Ardys left on that occasion, that she intended to visit her parents “because of her father’s ill health” but that he did not know how long she would be gone. On the other hand, it is abundantly clear from Ardys’ testimony that she then contemplated a final separation. But again our primary interest lies not in ascertaining the precise cause of the separation or whether Harry then knew that Ardys had no intention of returning, but rather in examining what occurred then and thereafter as indicative of parental attitudes toward the children. Harry said that, at the time of final separation, Ardys “asked to take” only James, the younger boy, but that “I (Harry) didn’t want her to take him.” Ardys contended that she would have taken both boys but that her husband told her that “I (Ardys) was not taking the children” and that she left them because “I had no way of getting out of Piedmont with the children.” So, “I had this girl friend and her fiance to drive me to the airport” (at an undisclosed location) and both boys, then 10 and 4 years of age, were left with Harry. Protesting that she had not deserted her children, her trial explanation was that “I felt I would let the Lord and the law work it out, but I didn’t know it would take so long.”

Of course, we cannot say whether or when Ardys invoked divine assistance but the record discloses that she first sought legal succor on January 21, 1960, when her petition in this action was filed. In the meantime, the Christmas season had come and gone with Ardys in Delaware admittedly having sent no Christmas gift or remembrance to either child or otherwise having communicated with them until her father was discharged from the hospital, apparently “sometime in January.” Her explanation of this was: “My father was in the hospital. I didn’t have any money. My father was on the verge of death. I didn’t have any money. After .Daddy got home I started sending them (the boys) a little money as I could, and I wrote to them and called them often, and Harry'was nice. He would always let me talk to them.” In this connection we note that, at the trial on July 8, 1960, Ardys stated her intention, if awarded custody of the children, to take them to her parents’ home described as a beautiful nine-room home with four bedrooms, and that both Ardys and her mother affirmed the financial ability and the enthusiastic willingness of the maternal grandparents to assist in caring -for the children, Ardys’ father being identified as a highly-educated man with “three degrees from the university” who “draws from a high bracket as a teacher” in the Dagsboro school system and receives a pension as a retired lieutenant colonel, a veteran of three wars. Without further factual tedium, the foregoing' will suffice to indicate our view that, commendable as was Ardys’ love and concern for her parents, the record evidence leaves us with a disappointed, disheartened, distasteful feeling that her love for her children, as manifested objectively by her conduct, was not of that sublime character which inspired one of our brethren (now departed) to exclaim that “(t)here is but a twilight zone between a mother’s love and the atmosphere of heaven.” Tuter v. Tuter, Mo.App., 120 S.W.2d 203, 205.

There being no appellate attack upon the fitness of Harry to have the custody of the children, we need not prolong this opinion by demonstrating such fitness from the record. However, it may not be amiss to add that the paternal grandparents (characterized by Ardys as “good people” — they “were very good to me and I learned to love them”) live in Piedmont and, at the time of trial, were caring for James, not then of school age, while Harry was at work; and that both of these grandparents, who appeared before the trial judge, evidenced their readiness and desire to assist Harry in rearing his boys. From the statement in Ardys’ brief that Harry has remarried, which we may accept as true for this limited purpose [Baker v. Baker, Mo.App., 274 S.W.2d 322, 327(19)], it is reasonably inferable that there is now a woman in the home who can supervise the children while Harry is gone.

All of this is not to say that everything pertaining to Ardys as a mother is figuratively black and everything pertaining to Harry as a father is figuratively white. From the judgment nisi, it is apparent that the trial court did not so find, and neither do we. For that matter, each parent in effect acknowledged, and we think sensibly and properly so, that the other was not unfit to associate with and to have partial custody of the children. Thus, Harry said that he would have no obj ection to the children visiting with their mother in Delaware, and Ardys conceded that Harry properly might have “partial custody,” agreed that “they should know- their father,” and volunteered that “I would be glad to make arrangements to fly them to the St. Louis airport and return for them there.” So, in their testimony the parties wisely recognized, and in his decree the trial judge appropriately applied, the common-sense principle that, where neither parent is unfit, the best interests of minor children will be served by an arrangement which will enable their association with both parents. Lewis v. Lewis, Mo.App., 301 S.W.2d 861, 863(5); Fago v. Fago, Mo.App., 250 S.W.2d 837, 842; Lambert v. Lambert, Mo.App., 222 S.W.2d 544, 548(6); Baer v. Baer, supra, 51 S.W.2d loc. cit. 879(11).

It would seem that, in the final analysis, the dispute here is as to which parent should be awarded major custody, i. e., custody during the school year. The decree under review leaves David, now 12½ years of age and in the seventh grade, with the same classmates and playmates he has known from infancy in a wholesome Ozark community having a population of 1,555 according to the 1960 United States census of which we take judicial notice. Varble v. Whitecotton, 354 Mo. 570, 190 S.W.2d 244, 246(4); State at inf. McKittrick ex rel. Martin v. Stoner, 347 Mo. 242, 146 S.W.2d 891, 894(11). David already has attained, and James is verging on, an age at which the guidance, direction, supervision and love of an understanding father are most needed. Lewis v. Lewis, supra, 301 S.W.2d loc. cit. 863; Fordyce v. Fordyce, Mo.App., 242 S.W.2d 307, 314; Green v. Perr, Mo.App., 238 S.W.2d 924, 927; Baer v. Baer, supra, 51 S.W.2d loc. cit. 879. Certainly, further tragedy should not be visited upon these children by separating them, but they should be permitted to continue as brothers in the same household sharing their childish joys and sorrows and benefiting from those natural ties of interest and affection which brothers have a •right to nurture and enjoy. L- v. N-, supra, 326 S.W.2d loc. cit. 757; Poor v. Poor, 237 Mo.App. 744, 167 S.W.2d 471, 477-478; Tuter v. Tuter, supra, 120 S.W.2d loc. cit. 205(4); Fisher v. Fisher, Mo.App., 207 S.W. 261, 262.

The reported cases are legion in which it has been declared that the findings of the trial court as to custody of minor children, although not binding upon the appellate court, are nevertheless not to be lightly regarded and easily disturbed, but that the appellate court should defer to such findings unless it is firmly convinced that the welfare of the children requires some other disposition. Tootle v. Tootle, supra, 329 S.W.2d loc. cit. 224(9); Ragan v. Ragan, Mo.App., 315 S.W.2d 142, 147(3), and cases collected in footnote 3. We think that principle of deference applicable in the case at bar, where the trial court had an opportunity to see and appraise the parties and their witnesses, and where a meticulous search and painstaking consideration of the transcript leaves us unable to say that the welfare of the two boys, whose lives already have been scarred by their parents’ failure, would be best served by some disposition other than that decreed nisi. Of course, the Circuit Court of Wayne County retains continuing jurisdiction, notwithstanding the award of minor custody to Ardys during the summer months, to modify the custodial provisions of the decree [Graves v. Wooden, Mo.App., 291 S.W.2d 665, 670(7); Middleton v. Tozer, Mo.App., 259 S.W.2d 80, 88(11); Conrad v. Conrad, Mo.App., 296 S.W. 196, 198(7)] upon sufficiently compelling proof of changed conditions prior to majority of the children or the death of one parent, whichever first occurs. Hayes v. Hayes, 363 Mo. 583, 589, 252 S.W.2d 323, 327(5); In re Wakefield, Mo.App., 274 S.W.2d 345, 347 (5); Schumm v. Schumm, Mo.App., 223 S.W.2d 122, 125(1).

In reviewing this issue of custody, we are acutely conscious that no judicial de■cree could be entered which would not engender sorrow in some interested party [Abel v. Ingram, 223 Mo.App. 1087, 1091, 24 S.W.2d 1048, 1049] and that no earthly power could recapture for these two boys the blessings of which they have been deprived by the pitiable failure of their parents’ marriage. Sanders v. Sanders, 223 Mo.App. 834, 839, 14 S.W.2d 458, 460. But, slight comfort though it may be “that we are in no way responsible for the causes which have unhappily brought about the situation with which we are confronted,” it may not be inappropriate to remind the adult principals, “(l)et those whose hearts are wrung remember this when, in their pain and tears, they realize the effect of this decree.” In re Krauthoff, supra, 191 Mo.App. loc. cit. 152, 177 S.W. loc. cit. 1113; Graves v. Wooden, supra, 291 S.W.2d loc. cit. 670.

Let the judgment and decree stand affirmed.

McDOWELL, j., and HUNTER, Special Judge, concur.

RUARK, J., not sitting.

      . All references to rules are to Supreme Court Rules, V.A.M.R., and all refer-enees to statutes are to RSMo 1959, V.A.M.S.