author: PALMORE, Judge.

text:
    Orville FANNIN et al., Appellants, v. David L. DAVIS et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.

      John C. Anggelis, Anggelis, Collis & Bunch, Lexington, for appellants.
    William A. Young, Frankfort, J. Blaine Nickell, West Liberty, for appellees.
   PALMORE, Judge.

In Fannin v. Davis, Ky., 385 S.W.2d 321, 323 (1964), a judgment dismissing certain claims asserted in behalf of the taxpayers of Elliott County against several of its officers and former officers was “reversed for consistent proceedings.” Further proceedings in the circuit court culminated in another dismissal of the claims, whereupon the plaintiffs again appeal to this court.

Though it may not dispense with the necessity of reading our previous opinion in order to understand this one, we shall briefly recapitulate the proceedings to date.

' In 1953 the appellant Orville Fannin was elected as one of the justices of the peace (hereinafter called magistrates) for Elliott County. In 1955 he and a group of citizens and taxpayers of the county brought this action against the county judge, county clerk, county treasurer, county attorney, all magistrates who had served since January of 1950, the sheriff who had served from 1950 through 1953, the jailer, and other parties including the sureties of those defendants who had executed official bonds. The relief sought was recovery of various sums alleged to have been illegally expended from the county’s funds.

Another suit filed later by the county attorney in behalf of the county against Fannin, in which Fannin counterclaimed and asserted a third party complaint against most of the same parties named as defendants in the first suit, was consolidated with the pending action.

The major items in controversy, and upon which relief was denied in the first judgment, were as follows:

1.Salary increases paid out of the Road and Bridge Fund (hereinafter R & B) to the county judge ($300), county attorney ($450), county clerk ($75) and jailer ($100.02) during the first six months of 1950.

2. $4800 paid to the county judge as that portion of his salary paid out of R & B at the rate of $100 per month during his term of office from 1950 to 1954.

3. The following sums allowed and paid to the county judge and magistrates out of R & B for services performed or materials furnished by or through them in connection with work on the county road system :

Judge Davis 218.92

Squire Miller 2620.34

Squire Ison 519.00 •

Squire Maggard 276.00

Squire Binion 1084.80

Squire Kitchen 107.00

4.Expenditures in excess of amounts budgeted:

Year GF (General Fund) R & B Totals

1949-50 $1684.85 $ 1339.20 $ 3024.05

1950-51 2685.32 2840.72 5526.04

1951-52 1208.58 8129.16 9337.74

1952-53 1214.53 4974.15 6188.68

1953-54 2908.21 492.88 3401.09

$9701.49 $17,776.11 $27,477.60

5. Transfers from the R & B Bond Sinking Fund to GF totalling $10,155.56 over the fiscal years 1950-51 through 1953-54.

6. Attempted exoneration of several tax assessments.

7. $2640.27 paid to the sheriff without proper fee-bills.

8. $27,286.90 paid without specific authorizing orders.

9. $13,911.25 paid for road work without supporting affidavits and certification as required by KRS 179.400. (All of these payments are included also in Item 8, above.)

10. $12,000 paid to the Peoples Bank of Sandy Hook in satisfaction of an unauthorized loan to the county.

11. $12,000 paid to Whayne Supply Company for the acquisition of road machinery. (This was the $12,000 borrowed from the Peoples Bank, Item 10 above.)

On the first appeal this court expressed the opinion that the denial of recovery on items 5, 6, 7, 10 and 11 as enumerated above was correct. No reference was made to items 2 and 9, and a review of the appellants’ brief on that appeal indicates they were not argued. Under the rule that an adjudication settles not only those errors relied upon for a reversal, whether mentioned in the opinion or not, but also all errors “lurking in the record” which might have been but were not expressly relied upon, rejection of the claims represented by the latter two items must be considered as having been approved on the first appeal. City of Louisville v. River Excursion Co., 253 Ky. 95, 68 S.W.2d 792, 795 (1934).

With respect to the remaining items in controversy, it was stated in principle that if the facts and figures were correct the county was entitled to recover from the persons who had received the illegal payments and from the county treasurer, the members of the fiscal court, and their respective sureties. It was pointed out, however, that duplications were bound to exist, and the cause was remanded “with directions that a thorough audit be made of the fiscal years involved and that the case be judicially reconsidered in the light of such an audit.”

Upon return of the proceedings to the circuit court a sharp difference in opinion developed as to the proper construction to be given the opinion and directions issued by this court. The plaintiffs, who had appealed and secured a reversal, contended that the authority of the trial court was limited to an audit for the purpose of eliminating duplications, following which they were entitled to a judgment for the corrected amounts. The defending parties, placing considerable stress on the direction that the case be “judicially reconsidered” and upon other excerpts from our opinion, took the position that all questions of liability remained open for redetermination on the basis of the whole record as supplemented by the audit. To complicate the problem, the Elliott County court house had burned to the ground in 1957, and most of the records necessary to a real audit had been destroyed in the fire.

Acceding to the defendants’ suggestion, and over the plaintiffs’ objection, the trial court on February 3, 1966, entered an order directing the fiscal court of Elliott County to conduct an audit of the county’s fiscal affairs for the years 1950 through 1954 and, if possible, to ascertain the answers to certain specified questions concerning receipts and disbursements. The fiscal court submitted its report on September 8, 1966, which consisted of a copy of a resolution unanimously adopted by it on September 2, 1966, together with a statement that the questions propounded to it by the circuit court could not be answered with any greater certainty than as set forth in the resolution.

The resolution recited by way of preamble that the fiscal court had examined the depositions given by the county court clerk in the first (and only) trial of this proceeding, had interrogated under oath “a very substantial number and representative cross-section” of the persons shown to have been recipients of the allegedly unauthorized expenditures, and had likewise examined persons who had been members of the fiscal court during the period under inquiry, from all of which investigation it concluded that (a) there had been no fraud, unjust gain, bad faith or improper motives on the part of any official of Elliott County in connection with the transactions in question, (b) the county had received a full measure of value in goods and services for all of the expenditures, and (c) although there may have been departures from statutory procedures, all payments “were made for the purpose for which the encumbent Fiscal Court of Elliott County could properly have expended the public funds and revenues of the county.” Following this preamble the resolution concluded as follows: “the Fiscal Court of Elliott County does hereby approve, ratify and confirm the expenditure by any and all of the public officials of Elliott County holding office during the years 1950 through 1954, inclusive, of any and all the public funds and revenues of Elliott County in the expenditure and disbursement of which such public officials participated in or during any of the years last mentioned.”

In its findings of fact the trial court accepted as correct the factual conclusions reached by the fiscal court. Relying on Flowers v. Logan County, 138 Ky. 59, 127 S.W. 512 (1910), and Land v. Lewis, 299 Ky. 866, 186 S.W.2d 803, 159 A.L.R. 601 (1945), it determined that the fiscal court’s ratifying action on September 2, 1966, was valid and absolved the defendants of all liability. Judgment was thereupon entered dismissing the complaint, and this appeal followed.

We find the judgment to be manifestly in error. It ignores the guiding principles of substantive law stated in our first opinion and is based upon a procedure that we do not regard as consistent with the first mandate. Acknowledging the imprecision and possible ambiguities in our own attempt to provide guidance upon remand of the case, we are of the opinion nevertheless that when an audit was directed the obvious meaning was that it be conducted by or under the supervision of the trial court, with the right of participation by the litigants, at least through exceptions and appropriate hearings. It was inappropriate, in any event, to refer the matter to the fiscal court, which if it was at all subject to the orders of the circuit court was nonetheless a real party in interest in the litigation, and whose members, as successors in office to several of the defendants, could hardly be expected to conduct a judicially disinteresetd investigation of their predecessors.

As a matter of fact, the conclusions reached by the fiscal court in 1966 were not essentially different from or founded upon more substantial evidence than those reached originally by the trial court in 1957. The 1966 resolution added one thing alone, and that was the attempted ratification of any and all irregular expenditures made during the period theretofore in litigation.

Though our first opinion sent the case back for a further proceeding, the fact that the judgment was reversed could have had but one meaning, which was that on the evidence as it then stood the trial court’s denial of recovery to the plaintiffs was erroneous except, as aforesaid, for those items expressly approved or not mentioned. All of the expenditures in question, both as to amount and manner in which paid, had been pleaded and specifically proved. The defendants had not offered any substantial countervailing testimony. They sought to avoid liability on the theory that they had acted honestly and in accordance with the customary practices theretofore prevailing in Elliott County, that the expenditures had been made for lawful purposes, and that the county had got its money’s worth. Testimony to that effect, in general terms, was in the record on the first appeal.

Our comment that “we have no evidence before us which in any respect informs us whether this money was spent, in the many instances testified to by the county court clerk, for a lawful county purpose” necessarily rejected, as insufficient to rebut the prima facie case established by the plaintiffs, defensive testimony stating in general terms that all of the expenditures made during the several years in question were expenditures that could properly and legally have been authorized in the first place. Hence the most that could reasonably have been inferred from our first opinion was that through further audit some amount of effective rebuttal might and probably would be established. In the ordinary case a defendant would not be given such consideration. His failure to refute the plaintiff’s prima facie case in the time and manner provided in the trial proceeding would be held final and fatal. In this instance, however, mindful of the circumstance that the irregularities committed by the defendants were the product of ineptitude rather than moral delinquency, and reluctant to see them subjected to any more personal liability than reasonably required by the law, we directed a further audit.

A meaningful audit, says the trial court, cannot be made. And surely it is time for an end to this long and vexatious controversy. The evidence in the record today is the same as it was before, with the additional fact of the fiscal court’s ratifying resolution of September 2, 1966. We now look to that evidence to determine the relief to which the plaintiffs are entitled as a matter of law.

Item 1. The salary increases for the first six months of 1950 were illegal, and so held in the first opinion. Cf. 385 S.W.2d at pp. 324, 325. Plaintiffs are entitled to recovery from the four recipients in the amounts above set forth.

Item 3. Same comment. Cf. 385 S.W. 2d at p. 325.

Item 4. Plaintiffs are entitled to recovery of $27,477.60, subject to credits for duplication, as follows:

(1) The county treasurer (Adkins), county judge (Davis), and magistrates Kitchen, Miller, Ison, Maggard and Binion and their respective sureties are liable jointly and severally for expenditures in excess of the budget during the term of office from 1950 to 1953, inclusive, totalling $24,076.51, subject to the following credits:

(a) Recovery of the payments listed in Item 1, totalling $925.02, will reduce the R & B budgetary overexpenditure for the fiscal year 1949-50 by that amount.

Fiscal year Warrant No. Amounts
1949-50 2462 (Davis) $ 50.00
2453 (Kitchen) 12.00
2454 (Ison) 16.00
2498 (Ison) 18.00
2456 (Miller) 12.00
2468 (Miller) 6.00
2499 (Miller) 30.00
2455 (Maggard) 6.00
2433 (Binion) 27.80
2473 (Binion) 6.00 $ 183.80
1950-51 2655 (Davis) 79.64
2940 (Davis) 50.00
2968 (Ison) 65.00
2401 (Binion) 106.50
2660 (Binion) 65.25
2990 (Binion) 12.00
378.39
1951-52 3241 (Davis) 15.40
3048 (Kitchen) 95.00
3047 (Miller) 126.00
3218 (Miller) 30.00
3045 (Maggard) 36.00
3129 (Maggard) 198.00
3042 (Binion) 318.33
3071 (Binion) 171.25
3216 (Binion) 75.00 1,064.98
1952-53 3612 (Davis) 23.88
3455 (Ison) 420.00
3449 (Miller) 300.00
3478 (Miller) 300.00
3636 (Miller) 225.00
3655 (Miller) 92.00
3772 (Miller) 100.00
3796 (Miller) 200.00
3484 (Maggard) 36.00
3453 (Binion) 389.17
3485 (Binion) 8.00 2,094.05
1953-54 3870 (Miller) 381.00
3909 (Miller) 100.00
3966 (Miller) 718.34 1,199.34

(c) Our first opinion having held that the transfers from the R & B Bond Sinking Fund to GF were not illegal, cf. 385 S.W.2d at p. 327, they have the effect of reducing the GF budgetary overexpenditures in the following amounts:

Fiscal year Overexpenditure Credit Balance
1949-50 $1,684.85 $ $1,684.85
1950-51 2,685.32 2,000.00 685.32
1951-52 1,208.58 3,040.00 None
1952-53 1,214.53 2,615.56 None

(d) Recovery of the sums hereinafter held collectible under Item 8 will reduce the budgetary overexpenditures as follows:

Fiscal year GF credit R & B credit
1949-50 $ 275.00 $1793.75
1950-51 579.40 7621.40
1951-52 3772.99
1952-53 3965.01

(2) The county treasurer (Adkins), county judge (Davis), and Magistrates Cox, Skaggs, Lyons, and Binion and their respective sureties are liable jointly and severally for expenditures in excess of the budget during the year 1954 (last half of fiscal year 1953-54), totalling $3,401.09, subject to the following credits:

(a) $2,500.00, representing that portion of the R & B Bond Sinking Fund transferred to R & B during the fiscal year 1953-1954.

(b) Recovery of the sums hereinafter held collectible under Item 8 will reduce (and hence eliminate) the budgetary overexpenditures for the fiscal year 1953-1954 as follows:

GF credit: $973.76 R & B credit: $4,355.67

Item 8. Of the total figure of $27,286.90 paid out between March 20, 1950, and December 23, 1953, without formal authorization, we find that $1,388.-13 represents duplication of payments recoverable under Item 3, $503.00 represents payments to the sheriff which our first opinion held were not illegal, cf. 385 S.W. 2d at p. 328, $25.00 has been repaid by V. H. Redwine, and $1,281.94 represents expenditures that the evidence failed to prove invalid. These deductions, totalling $3,198.07, leave a balance of $24,088.83, for which the defendants Adkins, Davis, Kitchen, Miller, Ison, Maggard, Binion, and their respective sureties are jointly and severally liable.

From a recapitulation of the foregoing figures it will be noted that a complete satisfaction of the claims listed under Items 1, 3 and 8 will more than offset, and thus eliminate, all of the liability for budgetary overexpenditures in Item 4 excepting GF for fiscal years 1949-50 and 1950-51 and R & B for fiscal year 1951-52.

In the brief for appellees it is contended that the ratifying action by the fiscal court on September 2, 1966, brings Item 8 squarely under the principle of Flowers v. Logan County, 138 Ky. 59, 127 S.W. 512 (1910), that expenditures which would have been proper had they been duly authorized in advance may be ratified and made valid by the governmental body that could have authorized them in the first place. Without considering the question of whether such a ratification would be timely and effective under the facts of this case, we are of the opinion that there is a significant difference between the two cases. As already stated herein, there was evidence in the record on the first appeal in the form of blanket, generalized statements that all of the expenditures in question were made for lawful and proper purposes, and the original judgment so found. Our opinion is that this type of evidence is not sufficient to sustain a ratification. It will be observed that in the Flowers case Squire Flowers had reported to the fiscal court from time to time and had accounted in detail for “every dollar” he had expended in the county’s behalf. “The burden was upon appellant to show a proper application of the money. No presumption is indulged in his behalf under such circumstances. * * * With the burden imposed on him to show satisfactorily the proper expenditure of the money, appellant has done that to the satisfaction of the trial court and to this court.” 127 S.W. at p. 514. The record in this case contains nothing that resembles such an accounting.

In view of the time this proceeding has been in the hands of the courts we are of the opinion that it would be inequitable to allow interest prior to entry of final judgment as herein directed.

The judgment is affirmed in part and reversed in part with directions to enter a new judgment in conformity with this opinion.

All concur.

      . The figure of $160.02 appearing in 385 S.W.2d at p. 325 is a typographical error.

      . This is the figure developed by the proof, though in the first opinion it appears as $27,484.40. Cf. 385 S.W.2d at p. 325.

      . The $8,955.58 figure given in the first opinion apparently is in error. Of. 385 S.W.2d at p. 327.

      . 386 S.W.2d at p. 326, referring to item 8.

      . The treasurer’s report for October of 1950 is not in the record. Of the five invalid warrants issued during that month we have identified three as paid out of R & B (Nos. 2669, 2671 and 2672) and have credited the others (Nos. 2670 and 2673) to GF.

      . The appellant Fannin also was a member of the fiscal court during 1954, but there is no claim against him pending in this court.

      . Davis, $23.88 (No. 3612) ; Kitchen, $95.00 (No. 3048); Binion, $171.25 (No. 3071); and Miller, $1098.00 (Nos. 3636, 3655, 3772, 3796, 3870 and 3909).

      . Hutchinson, $1102.14 (Nos. 2638, 3160 and 3161); W. D. Rice, $29.80 (No. 3238); Watt Waggoner, $50.00 (No. 3665); Chester Stephens, $50.00 (No. 3667); and Roy Kidd, $50.00 (No. 3668).


source: Caselaw Access Project

author: DAN M. GRIFFITH, Special Commissioner.

license: Public Domain

text:
    UNION CARBIDE CORPORATION, Appellant, v. KENTUCKIANA SALES CO., Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 19, 1968.

      Herman E. Frick, William B. Cohen, Louisville, for appellant.
    Jerry A. Lloyd, Edwin Abraham, J. Leonard Walker, Samuel Steinfeld, Alan T. Slyn, Louisville, for appellees.
   DAN M. GRIFFITH, Special Commissioner.

The question presented by this appeal is whether the appellant, Union Carbide Corporation, obtained a valid execution lien against the assets of one of the appellees, Kentuckiana Sales Company, Inc., by execution upon property of Kentuckiana after a temporary receiver for it had been appointed by the Jefferson Circuit Court.

The lower court held that the lien asserted by Union Carbide Corporation was not valid, and from that judgment this appeal was taken.

The facts are that Kentuckiana Sales Company, Inc., had been in a struggling financial position for some time prior to November 26, 1965, when a complaint was filed by Hamilton Watch Company, Inc., and four other substantial creditors of Kentuckiana for the appointment of a receiver. The complaint set out that the assets of Kentuckiana were insufficient to satisfy its creditors and that Kentuckiana was unable to pay its debts as they matured. The complaint further alleged that in June 1965 a creditors’ committee was appointed for Kentuckiana, that a proposed credit arrangement had thereafter been made, but that said arrangement had not been accepted by the creditors. The complaint further set out that unless a custodial receiver was immediately appointed to take care of all of the assets of Kentuckiana its assets would be dissipated and wasted, and the creditors of the appellee would be wholly without remedy. It was further alleged that at least thirty or more of the creditors of Kentuckiana had filed collection suits in various courts of Jefferson County and that there were at least eighty creditors who had not been paid. A list of such creditors, setting out the details concerning the legal actions filed by thirty of them, was attached to the complaint. The complaint set out that it was necessary for an immediate custodial receiver to be appointed pendente lite to take charge of the assets of Kentuckiana so that the assets would be protected and would be distributed among its creditors according to law.

Upon filing of the complaint, the plaintiffs moved upon the grounds set forth in the complaint for the immediate appointment of a custodial receiver for the appel-lee’s assets and property for the purpose of safely keeping said assets and property pending further order of the court. The motion was sustained and a receiver appointed. The order set out that the Judge of the First Division of the Court, to whom evidently the case was assigned, was absent, and that the order would be entered by the Judge of the Third Division. The order is as follows:

“Until an order is entered by the Judge of the First Division herein the Custodial Receiver will physically receive all monies for the sale of merchandise at the Kentuckiana Sales Co., Inc. and keep it safely until further orders of this Court and he shall be given the keys to the business house at 511 W. Main Street and he alone shall have the power of opening and closing the doors of this business, until further orders of the Judge of the First Division of this Court.
It appearing that there is time available on the docket of the First Division at 11:00 A.M. Tuesday, November 30, 1965, this case is assigned at that hour for further consideration by the First Division.
The Custodial Receiver, F. Richard Holzknecht, is authorized to procure fire and theft insurance on the stock and merchandise in the amount of $100,000.-00.
The bond of the Custodial Receiver is fixed at $15,000.00.
Entered this 26th day of November, 1965.”

Thereafter, on November 30, 1965, an order was entered appointing the same person who had been appointed custodial receiver as receiver of Kentuckiana Sales Company, Inc., and directing the receiver to take charge of the business and operate it.

On November 26, 1965, the date of the appointment of the custodial receiver in the action, the appellant, Union Carbide Corporation, had obtained judgment against Kentuckiana for the sum of $8,-520.51. On November 27, 1965, the day after the custodial receiver was appointed, Union Carbide Corporation had a writ of execution issued by the Clerk of the Jefferson Circuit Court to the Sheriff of Jefferson County. The sheriff levied the execution on assets of Kentuckiana on November 29, 1965.

The lower court ruled that the levying of the execution after the custodial receiver had been appointed would not serve to give the appellant, Union Carbide Corporation, a valid lien against the property. The lower court held that at the time the levy was made the property of Kentucki-ana was in the custody of the court and that the appellant could not, after the property came within the custody of the court, be allowed to put itself in a preferred position over other creditors by levying upon the property.

The appellant vigorously argues that the custodial receiver was nothing more than a custodian and that it was free to perfect an execution lien in the interim between the filing of the complaint and appointment of the custodial receiver and the appointment of a permanent receiver.

We believe, however, that a proper interpretation of the order of the Jefferson Circuit Court appointing the custodial receiver requires a finding that the court took possession of the property of Kentuck-iana at the time of the appointment of the receiver. That from that time forward the property was in custodia legis and the receiver had complete dominion over the property for the benefit of all the creditors. The keys to the real property in which the personal property attached was stored were delivered to the receiver by order of court at the time of his appointment. We think it is clear that the court intended for the receiver to then have possession of the property, and we so find.

Since the possession of the property in question was in the custodial receiver, the appellant, Union Carbide Corporation, was powerless to perfect its lien after the appointment of the custodial receiver. See Jennings v. Fidelity & Columbia Trust Company, 240 Ky. 24, 41 S.W.2d 537; Clark on Receivers, Volume 1, page 238, Section 148.

The judgment is affirmed.

All concur except STEINFELD, J., who did not sit.


author: CULLEN, Commissioner.

text:
    J. B. FAULKNER, Sr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 19, 1968.

      John Y. Brown and William H. McCann, Brown, Sledd & McCann, Lexington, Earl F. Ashcraft, Irvine, for appellant.
    Robert Matthews, Atty. Gen., Howard E. Trent, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

J. B. Faulkner appeals from a judgment sentencing him to a term of ten years and one day in the penitentiary pursuant to a verdict finding him guilty of voluntary manslaughter. We are reversing the judgment because of errors which in cumulative effect deprived the appellant of a fair trial.

Faulkner owned a restaurant, filling station, grocery store, rooming house and rental house, and was building a dwelling, on property on a dead-end road. One Robert Hayes rented the rental house from him. On an afternoon in August 1965 Robert Hayes, his brother Richard Hayes, and one Lonnie Strange drove up in an automobile and stopped in front of the rental house. At that time Faulkner was in the area of the new dwelling under construction. An exchange of gunfire occurred in the course of which Faulkner’s shots killed all three of the men in the car. The evidence for the state was that Faulkner initiated the shooting. Faulkner’s evidence was that the three men opened fire on him and he was forced to shoot in self-defense with two pistols which he had on his person. A number of alleged eyewitnesses (some of whose presence was denied by others) gave conflicting accounts of the shooting, some supporting the Commonwealth’s version and others supporting Faulkner’s version. On this appeal Faulkner does not argue that the evidence was insufficient to sustain the conviction, but he complains of numerous alleged errors and prejudicial influences.

On the ground that the time of the making of the alleged threats was not shown with certainty, wherefore the court could not determine whether they were too remote to be relevant, the court directed the jury not to consider certain testimony by Faulkner as to threats made by the deceased men, to kill Faulkner, prior to the day of the shooting. As we read the testimony it is reasonably clear that the threats were made within a week before the day of the shooting; in fact, the witness said so in specific words three times in his testimony.

On the same ground the court refused to admit testimony concerning a shooting incident in the past in which the deceased men had “shot up” Faulkner’s store, and as a result of which Faulkner caused warrants to be issued against the men. Again as we read the testimony (in the record by avowal) it is reasonably clear that the previous incident occurred within three years of the day of the fatal shooting.

Since, as to both items of evidence, the time was shown with sufficient certainty, and the time was not remote, it was error to exclude the evidence. As to remoteness see Banks v. Commonwealth, 277 Ky. 647, 126 S.W.2d 1122; Hemphill v. Commonwealth, Ky., 379 S.W.2d 223; Gambrel v. Commonwealth, 241 Ky. 39, 43 S.W.2d 335. In fact, in its brief on this appeal, the Commonwealth practically admits that the exclusion of the evidence was error. The Commonwealth argues only that the exclusion was not prejudicial, a point which we shall consider in the conclusion of this opinion.

In addition to the above errors the appellant complains of remarks and actions of the Commonwealth’s attorney, and of the trial judge, which he says deprived him of a fair trial.

On numerous occasions the Commonwealth’s attorney referred to the killing as a “murder.” When the defense counsel was cross-examining a Commonwealth witness in an effort to establish that he had removed some guns from the deceased men’s car after the shooting, the Commonwealth’s attorney, in an objection, said “That is just a cock and bull story they have fixed up.” When a witness for the defense who claimed to have been present at the shooting was testifying, the Commonwealth’s attorney interjected comments to the effect that the witness could not have seen certain things because “he was not there to see.” On another occasion the Commonwealth’s attorney sarcastically commented that a one-eyed witness, who previously had testified, could see what the witness then on the stand said he did not see. When the defense introduced a certain witness, the Commonwealth’s attorney, in an “aside” to the jury, said “There is another windbag that won’t tell the truth.” In cross-examining that witness, the Commonwealth’s attorney three times accused him of lying, and was abusive in his treatment of the witness. Later he referred to this witness as “our old friend,” obviously in sarcasm. He mentioned, in the course of examining a witness, that the Commonwealth’s attorney of Wolfe County (in which county the killing had taken place but from which there had been a change of venue) was “conspicuously absent from this court,” and he brought out the fact that the absent attorney had represented Faulkner in the trial of a civil case. In cross-examining a defense witness he asked whether the witness had ever been convicted of a felony, and upon receiving a negative answer he kept repeating the question in a manner calculated to discredit the witness.

The defense counsel made objections in all of the instances above mentioned and on three occasions moved that a mistrial be declared. The latter motions were overruled. Some of the objections were sustained, some were overruled, and some were ignored. Several times the court admonished counsel on both sides to cease “hollering and bellowing,” and requested that they observe “legal ethics.” On one occasion the court sharply directed one of the defense attorneys to sit down, with the comment, “We know you are a great big lawyer, and a noted lawyer and a good lawyer, but I can’t have you taking charge of this court.” The circumstances as indicated by the record did not seem to warrant this treatment.

Upon reading the record of the trial of this case the conclusion is inescapable that the Commonwealth’s attorney pursued a course of action deliberately calculated to cause the jury’s decision to be influenced by improper factors. In this he overstepped the bounds of propriety and fairness which should characterize the conduct of a prosecuting attorney.

As stated by the Supreme Court of the United States in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, and quoted with approval by this court in Edwards v. Commonwealth, 298 Ky. 366, 182 S.W.2d 948 at 951, the prosecuting attorney :

“* * * is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the •servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

It being obvious early in the trial that the Commonwealth’s attorney was embarking upon a course of impropriety, the trial court should have invoked firm measures to bring this course of conduct promptly to a halt, and to cause the trial to proceed in an orderly and fair manner. Occasional weak admonitions were not enough. It is the duty of a trial court, and it has ample power, to command decorous and fair conduct of the trial attorneys. And this power may and should be exercised without a showing of impatience or personal animosity, or the use of critical adj ectives.

It is our conclusion that the trial of this case was permitted to get out of hand to such an extent as to be unfair, and prej-udicially so. The errors mentioned at the outset of this opinion in the exclusion of evidence are part of the overall picture of unfairness, and it is unnecessary for us to decide whether those errors alone would have been prejudicial.

We deem it necessary to comment on one further alleged error. In cross-examining one of the Commonwealth’s eyewitnesses, defense counsel asked whether the witness had previously been convicted of a felony. Upon receiving an affirmative answer, counsel then asked whether Faulkner had been the prosecuting witness in that conviction. The court would not permit the question to be answered. We think the question was proper as it could have shown animosity or bad feeling on the part of the witness against Faulkner. See Parsley v. Commonwealth, Ky., 306 S.W.2d 284. However, the exclusion in the instant case was not prejudicial because an avowal by the witness showed that Faulkner had not testified against the witness but had been subpoenaed by the witness to testify for him.

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


author: CLAY, Commissioner.

text:
    KENTUCKY POWER COMPANY, Appellant, v. John BAYES, as Next Friend of Barbara Bayes, etc., Appellee.
    Court of Appeals of Kentucky.
    Jan. 19, 1968.
    John M. Williams, Gray, Woods & Cooper, Ashland, Smith, Reed, Yessin & Davis, Frankfort, for appellant.
    Sam F. Kibbey, Ashland, for appellee.
   CLAY, Commissioner.

This is an appeal from a judgment awarding plaintiff appellee damages for injuries suffered by her horse when it ran into a guy wire supporting a pole erected by defendant appellant. Though many other questions are raised, in our opinion the trial court erroneously overruled defendant’s motion for a directed verdict.

Defendant’s guy wire and pole were located on the private property of Charles Gee, which fronts on a highway. Between the pole and the right of way Gee had erected a four-foot fence. Plaintiff lived across the highway and her horse was kept there. One night the horse escaped from its stall, crossed the road and entered the Gee property, either through a gap in the fence or an open gate. Becoming frightened for some reason, the horse bolted toward the fence and ran into the guy wire, causing its injuries. The wire was not protected by a wooden or metal guard as is customarily used (or required) when such a wire is so located as to create a hazard to the traveling public.

The key to this case is the duty, if any, owed by defendant to the plaintiff. Since the guy wire was located on the private property of Charles Gee, defendant’s duty was the same as Gee’s would have been if he had created the condition. (We would have a different question if Gee were the injured party.) As a general rule the owner of land has no legal obligation to keep his premises safe for the trespassing animals of others. 4 Am.Jur.2d, Animals, sections 139, 140.

Plaintiff invokes the general duty of a landowner, who erects or maintains an instrumentality, not to expose to danger those members of the public he could reasonably apprehend might be endangered thereby. Reliance is placed on Raines v. East Tennessee Telephone Co., 150 Ky. 670, 150 S.W. 830, wherein it was held that the defendant would be liable to a member of the traveling public when an exposed guy wire was “placed so near a highway as to endanger persons traveling thereon”. In that opinion it was pointed out that “duties arise out of particular circumstances”, such as the “peculiar situation of his property and its openness to accident” which would give “reason to apprehend danger”. Obviously the principle enunciated and followed in that case is not applicable here because the facts put the present case in an entirely different category.

Since a four-foot fence separated the pole and guy wire from the right of way no members of the traveling public were exposed to this instrumentality, nor could defendant reasonably apprehend they would be endangered by it. Consequently, if plaintiff has a cause of action, it must be based on some other relationship which would impose upon defendant the duty to protect plaintiff’s horse from this hazard.

There is no showing that the property owner Gee had given the plaintiff permission to use: his property for the convenience of her wandering horse. (No livestock was kept in this field.) The fact is, the horse was a trespassing animal and defendant’s duty to the plaintiff was no greater than the duty to any other trespasser. That duty was only to refrain from inflicting wanton or willful injury upon her or her horse (which would include setting a trap). Chesser v. Louisville Country Club, Ky., 339 S.W.2d 194. The mere maintenance of an exposed guy wire on private property does not constitute a violation of such duty.

The case of Muir v. Thixton, Millett & Co., 119 Ky. 753, 78 S.W. 466, is directly in point. There plaintiff’s horse strayed upon private property and fell into an open cistern. It was held that defendant was entitled to a directed verdict because a landowner has no duty to make his premises safe for the benefit of the owners of domestic animals permitted to run at large. (The question of “attractive nuisance” was considered in that case but we have no semblance of such question here.)

The same principle has been applied even if the owner of the animal may be classified as a “mere licensee”. In Tennessee Valley Authority v. Stratton, 306 Ky. 753, 209 S.W.2d 318, the plaintiff was fox hunting on TVA property with the permission of the owner. His prize foxhound fell into an open well partly obscured by vegetation. It was held that a licensee must take the premises as he finds them and the landowner owes only the duty to refrain from committing some “wilful act of injury”.

We cannot distinguish an open cistern or well from an exposed guy wire except that the former are infinitely more dangerous. The defendant owed no duty to protect plaintiff’s horse from this hazard. Consequently there was no negligent breach of duty to the plaintiff. For an enlightening annotation on liability for the maintenance of guy wires under various circumstances, see 55 A.L.R.2d 178.

In the absence of a common law duty, plaintiff argues that defendant breached a regulatory duty. It appears that the Public Service Commission had adopted a National Electric code standard which provided:

“The ground end of all guys attached to ground anchors exposed to traffic shall be provided with a substantial and conspicuous wood or metal guard not less than eight feet long.” (Emphasis added.)

It is perfectly obvious, and plaintiff’s own expert witness testified, that a guy wire in a fenced rural field would not be “exposed to traffic” and consequently the regulation would not apply.

Having been unable to find any violation of a duty owed by defendant to the plaintiff, we conclude the defendant was entitled to a directed verdict.

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

All concur.


author: OSBORNE, Judge.

text:
    W. T. GRANT COMPANY, Appellant, v. INDIAN TRAIL TRADING POST, INC., and F. W. Woolworth Co., Appellee.
    Court of Appeals of Kentucky.
    May 5, 1967.
    Rehearing Denied Feb. 16, 1968.

      Leo T. Wolford, Eugene B. Cochran, Louisville, Robert J. Kelly, New York City, Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, for appellant.
    James W. Henricks, Marshall, Cochran, Heyburn & Wells, Louisville, Robert E. Friedrich, New York City, M. Brooks Senn, R. Lee Blackwell, Bullitt, Dawson & Tar-rant, Louisville, for appellee.
   OSBORNE, Judge.

The issues tried by the circuit court in this proceeding arose out of the consolidation of two actions. One, an action by the Indian Trail Trading Post, Inc., v. W. T. Grant Company, which was a petition for a declaration of rights and for an injunction. The other, a proceeding by W. T. Grant Company against Indian Trail Trading Post and the F. W. Woolworth Company, to prohibit them from the construction of a building and for damages. The issues, which are now before us, evolve from these actions and are as follows:

1. Was there a valid and binding lease contract between W. T. Grant Company and the Indian Trail Trading Post?
2. Did Indian Trail Trading Post and F. W. Woolworth Company, in the construction of a building in the Indian Trail Trading Post Shopping Center, violate the terms and conditions of this lease ?

The trial court disposed of these questions by holding that there was a valid lease between the parties and that the Indian Trail Trading Post and the F. W. Woolworth Company did not violate the lease. W. T. Grant Company appealed from that portion of the judgment holding the lease was not violated. Indian Trail Trading Post, Inc., and F. W. Woolworth Company appealed from that portion of the trial court’s judgment which held that there was a valid lease between the parties. The facts surrounding the issues, as we are able to glean them from the record, are as follows: In 1956, Indian Trail Trading Post, Inc., established on Preston Street and Indian Trail, in Louisville, a shopping center. The tract upon which the Center is located is triangular in form and is bisected by a rather large drainage ditch, which at the time was open. As the shopping center is laid out, there is a row of commercial structures across the east side of the lot. These buildings face in a westerly direction and immediately to their front is a considerable blacktopped area reserved for parking. West of the parking area there is located a drainage ditch and several plots designated on the plat as future building sites. The Center was first opened some ten years ago in October of 1957. Prior to the opening, Indian Trail had negotiations with the W. T. Grant Company relative to leasing to it a building located on the commercial row or eastern boundary line of the property. These negotiations commenced in August of 1956 and in September of the same year Indian Trail forwarded to the Grant Company seven copies of a plat of the shopping center. These were examined by the Grant Company and on October 24 of that year Grant forwarded three copies of a lease to Indian Trail for execution. On October 25, 1956, Joseph C. Dahlem, President of Indian Trail executed the three copies of the lease agreement and signed three plat plans and returned these to W. T. Grant Company, who on November 13, 1956, executed the lease and lease agreements which had been returned by Indian Trail. On September 25, 1956, Grant returned duplicate copies to Indian Trail. Indian Trail then, through the action of its Board of Directors, accepted the lease and lease copy and the plot plan which had been returned to it, delivering a copy to the Commonwealth Life Insurance Company which was holder of the first mortgage on the shopping center and recorded a copy with the Jefferson County Court Clerk. W. T. Grant Company occupied the premises in October of 1957, when the shopping center opened and still occupy the premises. Chief controversy in the above transaction, around which Indian Trail now contends there is no valid lease between the parties, is occasioned by the fact that the plat plan which was prepared by Indian Trail and forwarded to the W. T. Grant Company had upon its face these words:

“Dimensions and names subject to change according to tenant requirements.”

When the plat plans had been executed by W. T. Grant and returned to Indian Trail, the quoted legend had been stricken from them. Indian Trail contends that in accepting the lease and lease agreement and in placing them to record it did not notice that this had been crossed out, therefore there was no meeting of the minds. The trial court in its finding of facts and conclusions of law found that the changes were of such significance that Mr. Dahlem, as President of Indian Trail, was bound to have noticed them. The findings are as follows:

“According to the testimony, the lease, with the plot plan attached, and the lease agreement were mailed to Mr. Joseph C. D'hjilem for execution, and at this time the legend had not been altered nor had the approval stamp been placed on the plot plan. Mr. Dahlem, as President of the Indian Trail Trading Post, Inc., executed these documents and in some manner, the transmittal method not being clearly shown, returned them to W. T. Grant Company. At the time they were returned to Grant, the legend had not been altered nor had the approval stamp been placed on the plot plan. Upon receipt of these documents, they were executed by Grant by the authorized signatures being placed on the lease, lease agreement and on the approval stamp which had been placed on the plot plan by a representative of Grant. Thereafter, one complete executed set (duplicate) of the documents, consisting of the lease, with the plot plan attached, and the lease agreement, was received by Mr. Dahlem on or about November 14 or 15, 1956. When so received, these documents were held by him and with him they were present at a meeting of the Board of Directors of Indian Trail on November 26, 1956. Thereafter they were delivered to Mr. Robert P. Hobson and by him or a representative of his office were recorded in the County Clerk’s Office on November 30, 1956. A repetition of the chronology of the events leading up to the execution and recording of the agreements between the parties was to the Court of such significance that it was felt necessary.
“The Court notices that Grant did nothing nor said nothing to mislead Dah-lem, if in fact he was misled, into the acceptance of the lease, lease agreement and plot plan as changed. Indian Trail, by its possession from or about November 15, 1956, to November 30, 1956, without making any objection to any changes or alterations that were made to them. Furthermore, they accepted these documents, recorded them and not until years later did Indian Trail learn of these alterations and express dissatisfaction to Grant. No one contends that these changes or alterations in the instruments could not have been known by Indian Trail when they were received on or about November 14 or 15, 1956. All that was necessary for them to do was to look at them, and if the legend on the plot plan is of the importance as Mr. Dahlem, President of Indian Trail, gives to it, and this Court believes it is of such importance, then certainly he should have right then and there noticed this significant change. Not having done so and not having been lured into any false security or complacency by Grant, plaintiff is not in any position now to challenge the change in the legend (George Pridemore & Son v. Traylor Brothers, Inc., Ky., 311 S.W.2d 396; American Lumber & Mfg. Co. v. Atlantic Mill & Lumber Co., 3 Cir., 290 F. 632; Restatement of the Law of Contracts, 72(2)).
“It is the Court’s findings, therefore, that the ‘Lease,’ with the plot plan attached, and with the legend in its altered condition,' together with the ‘Lease Agreement,’ constitutes the rental arrangement between Grant and Indian Trail.”

With the foregoing findings, we concur. Most certainly Mr. Dahlem had an obligation to the business of which he was an official to make an examination of these documents before they were approved and placed to record. This was a material change and one that was obvious and in no way concealed. Indian Hills should not be heard after ten years to say that there was no contract between the parties and especially should they not' be allowed to deny the contract because of an oversight of their own chief official.

The plot plan of the shopping center referred to in our foregoing statement of facts contained four areas west of the drainage ditch marked for future use as building sites. Three of these were marked simply future buildings, the fourth was marked service station. The largest of the three is a rectangular figure slightly over 61,000 square feet in area. It is located nearly opposite the existing Grant store. Indian Trail has contracted with the Woolworth Company to construct, at this site, a building containing 109,000 square feet. This building would exceed the area contained in the site by 78%. The new building is to house a Woolco Department Store. W. T. Grant in its complaint asked the court to enjoin the construction of this building and asked for damages for breach of contract. The lease contract between Indian Trail and Grant in section 24ii provides:

“All store premises in the Shopping Center shall be constructed on the building sites labelled ‘Unit A,’ ‘Unit B,’ ‘Unit C,’ ‘W. T. Grant Future Addition,’ ‘F. W. Woolworth Future Addition,’ ‘Future Building’ and ‘Service Station’ shown on said Exhibit ‘A;’ and on no other portion of the area comprising the Shopping Center without the Tenant’s written consent; and * *

Woolworth and Indian Trail contend that the language in section twenty-four above quoted, “all store buildings shall be constructed ‘on’ the building sites * * * and on no other portion of the area” only requires that the construction shall be in that general locality and that to exceed the area designated on the plot plan does not violate this provision of the lease. The trial court agreed with this contention citing as its authority the definition of “on” found in Black’s Law Dictionary and several cases wherein various courts had held that the word “on” means at, near, or adjacent to.

We agree that the word “on” has many meanings with many shades and variations. To say that a picnic is to be held on the river implies that it is to be on the bank of the river and not necessarily on the river itself. To say that a person lives on a certain street is to mean that his house is adjacent to the street itself. We do not believe these authorities to be helpful in the solution of this problem and hasten to point out that section twenty-four states that future buildings shall be “on no other portion of the area” than those marked as future building sites. We believe this language to be sufficiently clear and unambiguous to indicate that all future buildings should be constructed upon that area designated for them and at no other place. This litigation evidences the failure of the appellants to accept the obvious meaning of the language contained in the lease agreement and their unwillingness to abide by the clear intention related by this language. We cannot accept the hypertechnical interpretation of the word “on” insisted on by Indian Trail and F. W. Woolworth Company. See Macy v. Wormald, Ky., 329 S.W.2d 212. We now come to a most difficult proposition which is presented by the fact that W. T. Grant Company brought this action to stop construction during its early stages. Construction has continued during the course of litigation and the building is now, insofar as we know, complete. Under this state of facts, the court properly could and would require so much of the building as lies outside the platted site to be removed. However, as we understand the position of W. T. Grant Company, it is not insisting upon removal; only that Indian Trail and F. W. Woolworth Company for the remainder of the lease to W. T. Grant Company be enjoined from using or utilizing so much of the building as lies outside the boundary lines. Certainly an injunction to this effect will not completely cover the damage which has been suffered by W. T. Grant Company. Woolco will be operating within a large building which will stand as an edifice to its “bigness,” far exceeding the size of the W. T. Grant Company. We believe that Grant has suffered damages over and above those that can properly be rectified by enjoining the use of that portion of the building outside the boundary lines.

For the foregoing reasons, the action of the trial court insofar as it permits the use of that portion of the building is reversed and Indian Trail Trading Post, Inc., and F. W. Woolworth Company are enjoined from using that part of the building as lies outside the boundary lines for the remainder of the W. T. Grant Company lease. Insofar as the judgment adjudges a valid and binding contract between the parties, it is affirmed. W. T. Grant should be allowed a trial upon its claim for damage.

The action is reversed upon the appeal and affirmed upon the cross-appeal. All concur.

STEINFELD, J., not sitting.


text:
    R. J. FANELLI, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 19, 1968.

      Daniel B. Boone, Arthur R. Samuel, Louisville, for appellant.
    Robert Matthews, Atty. Gen., Charles Runyan, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

R. J. Fanelli appeals from an order of the Jefferson Circuit Court overruling his CR 60.02 motion to vacate a judgment or judgments sentencing him to one year in prison on each of ten counts for violating KRS 61.190 (receiving profit on public funds) and fining him $900 on each of ten counts for violating KRS 432.350(2) [taking bribe]. See Fanelli et al. v. Commonwealth, Ky., 418 S.W.2d 740 (1967).

The convictions of Fanelli and two co-defendants were based on evidence that E. A. Sanson, a contractor, had paid them various sums of money as bribes in return for their having awarded public contracts. Sanson, indicted under KRS 432.350(1) for giving the bribes, has not yet been tried. The ground on which Fanelli now claims he is entitled to have his conviction vacated is that the Commonwealth has agreed to reduce the charges against Sanson to the common law misdemeanor of attempted bribery. Though it is not satisfactorily, established that this is true, we shall assume it so for purposes of our decision.

Fanelli argues that if Sanson is guilty of no more than attempting to give the bribes he, Fanelli, cannot be guilty of having accepted them, that he cannot be guilty under KRS 432.350(2) without Sanson’s being guilty under KRS 432.350(1). Reasoning from that proposition, he contends he will be denied due process and equal protection of the laws, as guaranteed by the 14th Amendment of the U. S. Constitution, if his convictions of the statutory felonies are permitted to stand while the alleged giver of the bribes is allowed to plead guilty and accept punishment for the lesser offenses.

Obviously a bribe cannot be accepted by one person without having been given by another. It does not follow, however, that the receiver cannot be convicted unless the giver also is convicted, and no authority to such effect has been cited for our consideration. Fanelli’s conviction by one jury of having taken bribes from San-son does not make it inevitable that another jury would convict Sanson of having given the bribes, nor can it reasonably be construed as a restriction upon the Commonwealth’s Attorney’s discretionary powers in conducting the proceedings pending against Sanson. Suppose, for example, the prosecution should conclude that for some reason or another it cannot prove its case against Sanson. So far as the law is concerned, Sanson is innocent until proved guilty beyond a reasonable doubt and so found by the unanimous verdict of a jury. The office of Commonwealth’s Attorney is a position of great trust and responsibility, because of its broad discretionary powers. One of these is the power of deciding what to recommend to the court in the way of amending or dismissing pending charges, or in the fixing of punishment in the event of a guilty plea.

It often happens that when one of two persons indicted for the same offense pleads guilty and the other stands trial they receive different sentences. The same is true even if both enter the same plea. If that constitutes unequal protection of the laws, then our whole system is awry. The fact is, however, that punishment is intended not merely to fit the crime, but to fit the individual as well. And so the law provides for different disposition of persons guilty of the same crime. When the prosecuting authority, with the acquiescence of the trial court, reduces a charge in return for a guilty plea the end result is nothing more complicated than the imposition of a lesser penalty. This does not, in our opinion, violate any constitutional rights.

The record before us on the instant appeal does not include a copy of the judgment or judgments sought to be set aside. Fortuitously, the record brought here on the previous appeal is still available and we have been able to unearth the necessary information from it. For future guidance in similar cases, however, it should be recognized that briefs are not a very satisfactory source of factual information for purposes of an appellate review.

Essentially, a motion under CR 60.-02 or RCr 11.42 to vacate or modify a judgment is a continuation or re-opening of the same proceeding that culminated in the judgment under attack. In some instances the grounds for the motion may be such that the record of the previous proceedings, other than the judgment itself, is not involved. In other cases it may be necessary that the record, or some portion of it, leading up to and supporting the judgment be considered in the proceedings on the subsequent motion, in which event it must be included in the appellate record to insure an adequate review. It is incumbent upon counsel to see that the record is sufficient for that purpose.

CR 60.02 is available in both civil and criminal proceedings. Meredith v. Commonwealth, Ky., 296 S.W.2d 70S (1956); Howard v. Commonwealth, Ky., 364 S.W.2d 809 (1963). In a civil case, of course, the contents of the record on appeal are controlled by designation of the parties. CR 75.01. In criminal cases the circuit court clerk is required to certify and transmit “the entire record.” RCr 12.-56. Though brought under CR 60.02, this is a criminal proceeding, in which the clerk was required to certify and transmit “the entire record.” However, the rules do not make clear what is “the entire record” in a CR 60.02 or RCr 11.42 motion proceeding. From our observation it appears that most circuit clerks consider the record as a new one, beginning with the motion. If so, the motion should include a copy of the judgment to which it relates, because obviously it is the heart of the matter. Until such time as the rules are clarified in this respect, it is our opinion that the onus should lie upon the appellant to see that the circuit court clerk includes in the appellate record so much of the trial record leading up to and including the judgment as is necessary to an adequate review. This he may do by written request, with the same privilege and responsibility on the part of the appellee to see that, the record is complete from his or its standpoint.

The order overruling appellant’s motion is affirmed.

All concur.


author: CLAY, Commissioner. MONTGOMERY, Judge.

text:
    Edna BAKER, Administratrix of Estate of Glenn F. Baker, Deceased, Appellant, v. CASE PLUMBING MANUFACTURING COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 19, 1968.
    Charles G. Cole, Jr., Cole & Cole, Bar-bourville, for appellant.
    H. M. Tye, Barbourville, for appellees.
   CLAY, Commissioner.

In this motor vehicle collision case the trial court directed a verdict for the defendant at the conclusion of the opening statement made by the, attorney for the plaintiff appellant. The basis of the ruling was that appellant’s decedent was contribu-torily negligent as a matter of law.

The facts disclosed by the opening statement were that defendant’s tractor-trailer struck the automobile driven by the deceased after it had been driven out onto the highway from a parked position at a roadside fruit stand. The accident happened in the daytime, on a section of the highway which was straight for a distance of at least 1,000 feet in each direction from the point where the collision occurred. Appellant’s counsel stated that he would prove defendant’s tractor-trailer was traveling at a speed of up to 80 miles an hour, and that it skidded for a distance of 130 feet before striking the automobile (in which the driver lost his life), and that the automobile when struck was turning to the left and was in the left hand lane as the trailer approached. Counsel also stated that this was a residential area.

The statute involved is KRS 189.330(7), which provides:

“The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on the highway.”

It was the view of the trial judge that this statute imposed an absolute duty on the deceased to yield the right of way to defendant’s vehicle regardless of the speed of such vehicle, and regardless of any other circumstances. In support of this ruling the trial judge relied on Chambliss v. Lewis, Ky., 382 S.W.2d 207. That was an intersection case governed by a different statute, KRS 189.330(4), which requires a motorist to stop at the entrance of a through highway and yield the right of way to other vehicles which are approaching so closely “as to constitute an immediate hazard”. There the plaintiff driver had seen the approaching automobile driven by the defendant and had in effect tried to beat it across the intersection. Under those circumstances we held as a matter of law that defendant’s approaching vehicle was an immediate hazard known to the plaintiff, and that he “assumed the risk” in failing to yield the right of way. That case is somewhat inconsistent with Ramsey v. Deatherage, Ky., 342 S.W.2d 715, but in any event the ruling must be limited to the particular facts there involved.

The statute which governs the case before us, KRS 189.330(7), has been held in a number of cases not to impose an absolute duty to yield. Siler v. Williford, Ky., 350 S.W.2d 704, and cases cited therein.

The opening statement of plaintiff’s counsel did not detail all the circumstances involved in this tragic accident. We do not know (and may never know) whether the decedent driver looked in the direction of defendant’s approaching tractor-trailer. The distance and speed of that vehicle could possibly have been factors affecting his duty to yield.

In addition, the position of the decedent’s automobile on the highway when struck may be most significant on the issues of negligence and proximate cause. It is to be remembered that in the opening statement plaintiff’s counsel stated that defendant’s vehicle had swerved into the wrong lane at the time of the collision. While this may not have been negligence in view of the emergency (cf. Webb Transfer Lines, Inc. v. Taylor, Ky., there could - be an issue concerning defendant driver’s negligence in failing to continue in his proper lane. This circumstance also raises a possible issue of last clear chance.

Directed verdicts on an opening statement should be given only when counsel has made admissions that are fatal to his client’s case. Riley v. Hornbuckle, Ky., 366 S.W.2d 304. We do not believe the-statement that the decedent driver was struck by an approaching vehicle after he emerged from a private entrance onto a through thoroughfare is an admission of contributory negligence as a matter of law. Jury issues may develop when the plaintiff has put on her proof.

It is not suggested that a directed verdict for the defendant, after the introduction of evidence, would be unjustified. We simply do not know at this stage. We appreciate the position of the trial judge in terminating what appeared to be a useless trial, but on the particular opening statement before us, the directed verdict considerations were premature.

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

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

MONTGOMERY, J., dissenting.

DISSENTING OPINION

MONTGOMERY, Judge.

I cannot agree with the majority opinion.

On December 15, 1967, this court, in Webb Transfer Lines, Inc. v. Taylor’s Adm’r, Ky., construed KRS 189.330(7), the same statute involved here. The facts in the two cases are similar.

This quotation from that opinion is especially pertinent:

“Appellee contends that because the truck was on the wrong side of the road the truck driver was guilty of negligence as a matter of law. With this contention we cannot agree. Under the facts as shown here the only thing this proves is that the driver was doing everything within his power to miss the automobile which had suddenly blocked his lane of travel.”

This quotation supports the view of the trial judge, based on Chambliss v. Lewis, Ky., 382 S.W.2d 207, as expressed in the majority opinion, that the driver of the vehicle about to enter the highway had an absolute duty to “yield the right of way to all vehicles approaching on the highway.” Chambliss dealt with KRS 189.330(4), which says that “* * * the driver of a vehicle shall stop at the entrance to a through highway and shall yield the right of way to other vehicles which have entered the intersection from the through highway or which are approaching so closely on the highway as to constitute an immediate hazard, * * *.”

There is no difference in principle in the two sections of KRS 189.330. Both are for the purpose of assuring through traffic the right of way over vehicles entering upon the highway from an inferior highway, private road, or driveway. In Riggs v. Miller, Ky., 396 S.W.2d 69, this court said that the driver on the through highway can assume that another driver approaching a stop sign will observe it. Otherwise, the statute is rendered ineffective. In Manning v. Claxon’s Executrix, Ky., 283 S.W.2d 704, construing KRS 189.-330(5) on similar facts, the court said:

“Even assuming appellant’s driver was negligent in turning out of his lane, and thus reacting improperly to the emergency situation presented, the fact remains that the emergency was created by Clax-on’s negligent violation of his statutory duty not to pull out onto the highway in the face of a vehicle approaching so closely as to create an immediate hazard.”

The majority opinion indicates that the accident occurred at a place where the highway was straight for one thousand feet in each direction. In Couch v. Hensley, Ky., 305 S.W.2d 765, in which KRS 189.330(4) was involved, the court applied the rule in Vaughn v. Jones, Ky., 257 S. W.2d 583, holding that a driver pulling onto a highway “will not be heard to say that he looked but did not see an approaching car when it was right there in clear view.”

From the cases reviewed, KRS 189.330 was intended, and has been so construed, to mean that there is a duty on the part of a driver not to enter on a through highway until he can do so in absolute safety, and that his failure to do so in safety, in the absence of wanton or willful conduct on the part of the approaching driver, is an absolute bar to recovery. Any other holding destroys the very purpose of modern through highways and makes the entry on through highways a hazardous guessing game involving life and property.

The majority opinion is also wrong in holding the trial court in error for directing a verdict for the defendant at the close of the opening statement. The purpose of an opening statement is to allow the attorney for the plaintiff to outline the proof on which he expects to win his case. An opening statement, almost without exception, is stronger than the proof because it is a statement of the facts which counsel hopes to prove. This is indicated here by the counsel’s statement that appellees’ tractor-trailer was being driven at a speed up to eighty miles per hour. Counsel presents the most favorable view of his case in the opening statement. This is conclusively shown by the statement made to the court, .after the motion was made, that the evidence to be submitted by the plaintiff would be substantially the same as his opening statement. For this reason the suggestion expressed in the majority opinion that something more favorable may be shown by testimony has no merit.

The trial court, in directing a verdict after the opening statement, was following the mandate of CR 1 “to secure the just, speedy, and inexpensive determination” of the action. The trial judge’s decision was proper. Caplinger v. Werner, Ky., 311 S.W.2d 201.

For these reasons I respectfully dissent.


author: EDWARD P. HILL, Judge.

text:
    John Nelson INSKO, Appellant, v. Opal Lee CUMMINS et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 19, 1968.

      James A. Nolan, Ware, Bryson, Nolan & West, Covington, for appellant.
    John A. Diskin, Benton, Benton, Lue-deke & Rhoads, Newport, for appellees Opal Lee Cummins and Donald L. Cum-mins.
    Donald Johnson, Newport, for appellee Gerald Allen Blust.
   EDWARD P. HILL, Judge.

The verdict and judgment awarded ap-pellee Opal Lee Cummins $10,000 for personal injuries and her husband, Donald L. Cummins, $2,000 for loss of the companionship and consortium of his wife, Opal Lee, jointly against appellant John Nelson Insko and appellee Gerald Allen Blust. Only Insko appeals.

In a 1957-model Ford, in broad daylight on the afternoon of June 3, 1964, appellant John Nelson Insko was traveling south on U. S. 27 just north of its intersection with Alexandria Pike within the city limits of Cold Spring, Kentucky. Appellee Gerald Allen Blust was following Insko in his white 1955-model Cadillac. Anywhere from 50 to 200 feet north of the electric overhanging' signal light at the intersection, Insko slowed or stopped his Ford car in anticipation of striking a cyclist. Blust almost ran into the rear of the Ford but missed doing so by cutting his car to the right of the Ford so that when he stopped, his left front fender was within inches of and to the right of the right rear corner of the Ford. We estimate the distance mentioned above for the simple reason that we do not have the benefit of a map or drawing. The parties used a blackboard and the witnesses referred to points “right here” and “right there” on the blackboard in the trial court, which is of no earthly benefit here.

Insko said he slowed down when he saw the cyclist; Blust says Insko stopped. Really this point of conflict is unimportant. At any rate, when the cyclist turned off the highway, Insko proceeded on. After entering the intersection, Insko said he looked up, saw that the signal light was red, and immediately stopped. By this time Blust had turned his white Cadillac back into the line of traffic and was again following Insko. Apparently he was so close behind that when Insko stopped Blust ran into the rear of the Ford. Slight damages resulted to the two vehicles, but ap-pellee Opal Lee Cummins, riding in the rear seat of the Ford as a paying passenger, claims to have received a “whiplash” injury to her neck and back, resulting in pain, loss of time, and some permanent disability. Her total medical expenses amounted to $2,276.55, and she was off work for nearly two months.

The evidence is pretty clear that after the wreck the Ford was about 18 feet north of the signal light. Blust contends that Insko could not have seen the red light from this position. However, allowance must be made for the distance Insko traveled from the time he says he saw the red light until he placed his foot on the brake and came to a stop. So, it is clear from the record that Insko was anywhere from 18 to 36 feet north of the red light when he discovered the red stop signal.

There was credible evidence that a white cross mark, ten inches wide, was painted across the street some distance from the signal light. This distance was fixed at 50 feet by a policeman of the city of Cold Spring. Insko did not stop at this line possibly because of the distraction caused by the cyclist.

The jury found against both Insko and Blust.

Appellant Insko presents his grounds for reversal in four categories: (1) He argues that the trial court erred in overruling his motion to discharge the jury and continue the case when counsel for Blust asked a prospective juror on voir dire examination whether he was involved in “insurance” business in connection with his real estate business; (2) that he was entitled to a directed verdict; (3) that the verdict is excessive; and (4) that the trial court erred in allowing the Cumminses to reopen their case after their counsel had announced he had finished.

First we consider the question of whether there was prejudice against Insko by reason of the mention of “insurance” as contended by appellant. It should be noted that the question was asked by counsel for Blust, not by counsel for the Cumminses. The juror being interrogated at the time stated he was engaged in the real estate business, and then counsel for Blust asked the juror if he was also engaged in the insurance business. In Ashland Sanitary Milk Co. v. Messersmith’s Adm’r, 236 Ky. 91, 32 S.W.2d 727 (1930), we find a similar factual situation, except that in Mes-sersmith there was a little more reference to “insurance.” We said in Messersmith and repeat in the present case that: “We therefore hold that the trial court did not err in refusing to discharge the entire panel.” See also Wheeler v. Sullivan, 260 Ky. 814, 86 S.W.2d 1023 (1935).

Litigants have a wide latitude in the matter of voir dire examination of prospective jurors. Especially is that true in cities or urban areas where attorneys are not and cannot be acquainted with all the jurors. But insofar as bringing into the picture the fact that some party in litigation has insurance coverage, the attorneys are held to the utmost good faith. Usually this question of good faith, or lack of it, is one for the trial judge to determine in the exercise of sound discretion. Cf. Helton v. Prather’s Adm’r, 272 Ky. 574, 114 S.W.2d 1120 (1938).

Was appellant entitled to a directed verdict? In resolving this question we must disregard the negligence of Blust since he undoubtedly was guilty of fault as the jury found and he has meekly accepted the verdict.

In order to determine whether appellant was proven guilty of negligence, let us look further at all the circumstances. U. S. 27 at and north of the point of collision was a four-lane highway. It was reduced to a two-lane highway at the intersection mentioned above. An apparatus was embedded in Alexandria Pike, near the intersection with U. S. 27, that triggered both signal lights at the intersection so that traffic desiring to enter U..S. 27 might do so. Appellant traveled this highway weekdays on his way to work and must have been familiar with the situation. He crossed the white line north of the signal light, where he should have stopped. He proceeded on under circumstances hazardous to himself, to traffic entering from Alexandria Pike, and to traffic following him. All circumstances indicate that he must have made a sudden stop, which could have been a contributing cause of the accident. At any rate the jury so found, and we are reluctant to upset the jury’s findings.

It should be noted here in connection with the location of the “white line” mentioned above that Lt. Frank Kramer, a policeman of Cold Spring, testified the white line was located about SO feet north of the signal light. Blust testified it was 166⅜ feet north. Regardless of how far north of the signal light it was located or for what purpose, the fact remains that appellant In-sko was fast approaching a point of “no return” in the intersection when he suddenly applied his brakes and stopped.

It is concluded the question of Insko’s negligence was one for the jury and that the trial court did not err in overruling appellant’s motion for a directed verdict at the conclusion of all the evidence.

The adequacy or excessiveness of verdicts is always a difficult question.

In the present case, the jury had ample evidence from which to conclude that appellee Opal Lee Cummins sustained an injury at the time of the accident; that previous to the injury she was active, enjoyed life, and was athletic to the extent that she danced and bowled; she actually did some farm work in addition to helping with the housework after her regular working hours. She was confined in the hospital for about three weeks and was off work for nearly two months. Her medical expenses, to repeat, amounted to $2,276.55. Appellant made no effort to have her examined by a physician of his own choosing. Her habits, disposition, and personality underwent a change after her injury. She sustained from “15 to 25%” disability.

In the face of such evidence, we cannot say a verdict of $10,000 is excessive.

By the same token, we do not consider the $2,000 verdict in favor of Donald L. Cummins for loss of companionship and consortium to be excessive. Cf. Robenson v. Turner, 206 Ky. 742, 268 S.W. 341 (1925), and Wrenn v. Burch, Ky., 314 Ky. 844, 236 S.W.2d 924 (1951). Each case must rest upon its own facts. Roland v. Murray, Ky., 239 S.W.2d 967 (1951), and Bruner v. Gordon, 309 Ky. 29, 214 S.W.2d 997 (1948).

Appellant’s final ground for reversal questions the propriety of the ruling of the trial court in permitting the Cumminses to introduce a witness after announcing through with their evidence. We find no prejudice to appellant from this ruling of the court. Anyway it was within the sound discretion of the trial court to permit the introduction of the additional witness even after the Cumminses had closed their case. Cf. Western Union Tel. Co. v. Parsons, Ky., 72 S.W. 800, 24 Ky.Law Rep. 2008 (1903), and Hacker v. Rader, 309 Ky. 579, 218 S.W.2d 404 (1949).

The judgment is affirmed.

All concur.