author: HUNTER, Judge.

text:
    Roy L. KAHN, Appellant, v. Harold B. LOCKHART, Universal Underwriters Insurance Company, and State Farm Mutual Automobile Insurance Company, Respondents.
    No. 24164.
    Kansas City Court of Appeals. Missouri.
    April 5, 1965.
    Motion for Rehearing and for Transfer to Supreme Court Denied June 7, 1965.

      Thaine Q. Blumer, Kansas City, for appellant.
    C. Thomas Carr, of Sheridan, Baty, Markey, Sanders, Edwards & Carr, Thomas E. Deacy, Jr., Edward W. Mullen, Deacy & Deacy, Kansas City, for respondents.
   HUNTER, Judge.

This is an appeal from the judgment of the Circuit Court of Jackson Countj' in favor of two insurance company garnishees and against Roy L. Kahn. The case was tried to the court without a jury upon a stipulation of facts, and the questions presented there and here concern the coverage provided by the insurance policies of garnishees. Our duty is to review the case upon both the law and the evidence as in suits of an equitable nature and to enter or direct such judgment as justice requires. We are not to set aside the judgment below unless it is clearly erroneous. Civil Rule 73.01, V.A.M.R.

On April 24, 1956, about 12:30 a. m., at 31st and Van Brunt Boulevard in Kansas City, Harold B. Lockhart was involved in an automobile collision with Roy L. Kahn which resulted in a $4,000 personal injury judgment against Lockhart. At the time of the collision Lockhart, who was an employee of Rudy Fick Ford, Inc., but was on his own personal business, was driving a 1949 Ford automobile.

Lockhart was the owner of a policy of liability insurance issued by garnishee State Farm Mutual Automobile Insurance Company with a policy period from February 3, 1956, to July 25, 1956. This policy described the insured automobile as a 1949 Mercury. Also, at the time of the collision Rudy Fick Ford, Inc., was the owner of a policy of liability insurance issued by garnishee Universal Underwriters Insurance Company. We will discuss these two policies in some detail later.

Pertinent to the issues is the history of the acquisition and use by Lockhart of the two automobiles. According to the stipulation the 1949 Ford came into his possession in the following manner: “(a) Defendant, for some time prior to the collision above referred to, was a mechanic employed by Rudy Fick, Inc., a corporation, engaged in the automobile sales and service business in North Kansas City, Missouri, and a licensed automobile dealer in the State of Missouri.

“(b) Rudy Fick, Inc., took said 1949 Ford automobile in as a trade from Richard A. Webb, Route 2, Cowgill, Missouri, on, or several days before, October 20, 1955, and the said Richard A. Webb delivered to Rudy Fick, Inc., a Missouri certificate of title to said 1949 Ford automobile showing upon the face thereon the name of the owner as ‘Richard A. Webb’ and signed upon the reverse side by the said Richard A. Webb; that the name of the new owner was left blank on said certificate of title; that Richard A. Webb’s signature was not notarized at that time.

“(c) Thereafter a purchase order dated October 20, 1955, was signed by defendant to purchase said automobile from Rudy Fick, Inc. as a used car for the total cash selling price of $150.00 * * *; on October 21, 1955 the car invoice * * * was issued by Rudy Fick, Inc., to Lockridge Garage, Harrisonville, Missouri;

“(d) That on October 20 or October 21, 1955, Rudy Fick, Inc. delivered to defendant and defendant took possession of said 1949 Ford automobile and paid Rudy Fick, Inc. the sum of $150.00 and Rudy Fick, Inc. gave him the aforesaid certificate of title; it was the intention of Rudy Fick, Inc. and of the defendant that the defendant be the owner of the said automobile in all respects'from that time forward; that defendant then drove said 1949 Ford automobile to Mayview, Missouri; that defendant did not thereafter drive the automobile until after April 16, 1956; that although said automobile was in need of repairs, it was driveable;

“(e) That on December 16, 1955 Dora G. Anderson, an employee of Rudy Fick, Inc. notarized the signature of Richard A. Webb appearing on the reverse of the certificate of title to said 1949 Ford automobile; that the name of the new owner of said automobile remained blank;

“(f) That prior to April 24, 1956 (the date defendant collided with plaintiff) defendant was the owner of a 1949 Mercury automobile, Motor No. 9CM111081; that said automobile was insured by garnishee State Farm Mutual Automobile Insurance Company as hereinafter described; that on April 16, 1956, defendant’s Mercury automobile was damaged in a collision; the fact of this collision was reported to State Farm Mutual Automobile Insurance Company prior to April 24, 1956; that said Mercury was sold by defendant for salvage prior to April 24, 1956;

“(g) That between April 16, 1956 and April 24, 1956 defendant repaired the above referred to 1949 Ford automobile at May-view, Missouri, and at Rudy Fick, Inc., in North Kansas City, Missouri; that between April 16, 1956 and April 24, 1956 defendant commenced to drive said 1949 Ford automobile.”

We first examine those portions of garnishee State Farm Mutual’s policy which appellant claims provide coverage to Lock-hart. The policy provides: “The company * * * agrees with the named insured * * * I (1) To pay all damages which the insured shall become legally obligated to pay because of (A) bodily injury sustained by other persons * * * caused by accident arising out of the ownership, maintenance or use * * * of the automobile.

“III. Automobile Defined, (a) * * * ‘automobile means: * * * (3) Temporary Substitute Automobile * * * an automobile not owned by the named insured, * * * while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.

“IV. Use of Other Automobiles. * * * . if during the policy period such named insured * * * owns an automobile covered by this policy * * * such insurance as is afforded by this policy under coverages A, * * * with respect to said automobile applies to any other automobile

“(c) Insuring Agreement IV does not apply:

(1) To any automobile owned by, registered in the name of * * * or furnished for regular use to * * * the named insured * * ”.

Appellant contends that the certificate of title Lockhart received to the 1949- Ford was incomplete in that it did not list him as owner and was not notarized; that it remained incomplete in that it was not filled in as to the name of the purchaser, and therefore, Lockhart was not the legal owner of the automobile, nor its registered owner.

Appellant is correct in his contention that Lockhart was driving a non-owned automobile at the time of the collision. Section 301.210 RSMo 1959, V.A.M.S. makes any purchase or sale of a motor vehicle unlawful, fraudulent and void “unless at the time of delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof. * * * ” By the express provisions of this statute no title passes to the purchaser of a used automobile in Missouri unless the seller’s certificate of title, properly endorsed and acknowledged before a notary public is transferred to the purchaser at the time of the delivery of the vehicle or at least sufficiently soon to be considered a part of the contemporaneous or continuous transaction. Sabella v. American Indemnity Company, Mo.Sup., En Banc, 372 S.W.2d 36; Comment, Titles to Used Automobiles in Missouri, 28 Mo.L.Rev. 121. We need not explore Lockhart’s right or authority to complete the certificate of title by filling in his name as purchaser for he had failed to do this for the many months from the date of his alleged purchase, up to and including the date of the accident. See, Pearl v. Interstate Sec. Co., 357 Mo. 160, 206 S.W.2d 975.

Appellant further reasons that since on the date of the collision Lockhart was driving a non-owned automobile instead of and in place of his 1949 Mercury automobile which had been damaged by a collision which had been reported to State Farm Mutual, the quoted provision III, sub-paragraph (a) (3), which provides coverage on a non-owned automobile while temporarily used as a substitute applies.

A discussion of the meaning of the word “temporary” is to be found in Little v. Safeguard Insurance Company, Louisiana, 137 So.2d 415, 419: “The word ‘temporary’ has no fixed meaning in the sense that it designates any fixed period of time. It is a word used in contra-distinction to permanent. * * * ”

“Plaintiffs alsu cite Fleckenstein v. Citizens’ Mutual Automobile Insurance Co., 326 Mich. 591, 40 N.W.2d 733, in Which the court said:

“ ‘In construing the expression “temporary use” as employed in defendant’s insurance policy, the meaning most favorable to plaintiff must be accepted. Pastucha v. Roth, 290 Mich. 1, 287 N.W. 355. As commonly accepted ‘temporary’ is an antonym of “permanent.” Plaintiff’s use of the Chevrolet was either temporary or permanent. The record would not justify conclusion as a matter of law that plaintiff’s use or his intended use of the Chevrolet was permanent. * * *

Our duty is to determine from the stipulated facts and their reasonable inferences whether or not the particular use of the Ford was temporary within the intendment of the liability insurance policy. Central Nat. Insurance Co. of Omaha v. Sisneros, D.C., 173 F.Supp. 757; Lewis v. Bradley, 7 Wis.2d 586, 97 N.W.2d 408; Canal Insurance Company v. Paul, 51 Tenn. 446, 369 S.W.2d 393 (used substitute car for six weeks); Annotation, 34 A.L.R.2d 936, 950; Densmore v. Hartford Accident & Indemnity Co., D.C., 221 F.Supp. 652.

It is apparent from the stipulation that the 1949 Ford at the time Lockhart acquired it for $150 was in need of repairs and, inferentially, was not in ordinary operable condition. While he drove it from Rudy Fick, Inc., to his home he did not drive it thereafter for six months and until after his Mercury had been destroyed and disposed of as junk. He then had some repairs made on the Ford and for the first time began using it. Within less than six days of that, he had the collision in question. Since he was not its owner he was not entitled to obtain a state license for it. There is no evidence he was making any effort to get title to it or to get a state license for it or taking any action to indicate his use of it was other than temporary and occasioned by the destruction of his Mercury automobile. As a reasonable inference from the related facts we find Lockhart at the time of the April 24, 1956 accident was driving “an automobile (Ford) not owned by the named insured (Lock-hart) * * * while temporarily used as a substitute for the described automobile (Mercury) when withdrawn from normal use because of its * * * destruction” and was therefore within the intended coverage of the policy.

Garnishee State Farm Mutual also contends that Insuring Agreement V of the policy which defines the policy period provides the policy “applies to * * * accidents * * * provided the described automobile is owned, maintained and used for the purposes stated in the declarations” caused the policy to terminate when Lock-hart sold the Mercury for salvage. This contention is not sound. The policy itself in quoted Section III (3) provides for temporary substitute automobile coverage when the described automobile is withdrawn from normal use because of loss or destruction. The Mercury was withdrawn by destruction and it is wholly unreasonable to construe the policy to mean a destroyed automobile may not be disposed of as junk or that if it is a forfeiture of the policy results. The intent expressed in Agreement V insofar as it applies to Agreement III is that the insured must have at least some time during the policy period owned the described automobile and the described automobile when so owned must have been withdrawn from normal use because of breakdown, repair, servicing, loss or destruction and an automobile not owned by the named insured be temporarily used as a substitute for it. This same contention that garnishee unsuccessfully advances has been rejected in other cases.

In McKee v. Exchange Insurance Assoc., 270 Ala. 518, 120 So.2d 690, where the insured was involved in an automobile accident while using his mother’s automobile as a substitute for his own which had been destroyed some four months earlier, the court ruled the insured’s use was a temporary use entitling him to coverage. The court stated, loe. cit. 692, “Apparently, the court below took the position that since the described automobile was no longer owned by Clark after its destruction there could be no substitution for such car. With this position we cannot agree.”

In Freeport Motor Casualty Co. v. Tharp, 338 Ill.App. 593, 88 N.E.2d 499, the insured’s automobile broke down completely because of a crack in the engine block and was sold by the insured as junk. In holding that this sale did not terminate coverage under the “temporary use of substitute automobile” clause the court stated, loe. cit. 500, “Forfeitures of insurance contracts * * * are not favored in the law, and unless the right to such forfeiture is clearly shown no forfeiture may be invoked. Scott v. Inter-Insurance Ex., 352 Ill. 572, 186 N.E. 176.”

Having determined that Lockhart was provided coverage under Insuring Agreement III, we need not rule appellant’s contention that Insuring Agreement IV, “Use of Other Automobiles” provides coverage. It is noteworthy, however, that Insuring Agreement IV does provide coverage to Lockhart unless it should be determined the Ford was “furnished for regular use to * * * the named insured. * * * ”

Appellant Kahn contends that garnishee State Farm Mutual is estopped to raise any defense it claims under its policy by participating in the trial even though it has obtained from appellant a reservation of rights agreement. Having decided for appellant Kahn on other grounds we do not reach or rule this contention.

We proceed to determine the coverage question involved in garnishee Universal Underwriters Insurance Company’s policy. It is garnishee’s contention its policy does not afford any coverage because Rudy Fick, Inc., did not become the owner of the 1949 Ford automobile and had no insurable interest therein. The stipulation reveals that at the time Rudy Fick, Inc., obtained the 1949 Ford from Richard A. Webb on or a few days before October 20, 1955, it received Richard A. Webb’s certificate of title to the Ford but this certificate of title was not acknowledged by any notary public as called for in the assignment form, and the name of the new “owner” was left blank, and it was not until December 16, 1955 that Dora G. Anderson, an employee of Rudy Fick, Inc., notarized the signature of Richard A. Webb. Rudy Fick, Inc., never filled in nor had filled in its name as new owner, this space being left blank.

As earlier mentioned, by mandate of Section 510.310, no title passes to the purchaser of a used automobile unless the seller’s certificate of title, properly endorsed and acknowledged before a notary public, is transferred to the purchaser. In speaking of this requirement in 28 Mo. L.Rev. 121, loe. cit. 127, the author stated, “The situation where the seller endorses his certificate, but leaves the space for the assignee’s name blank and does not acknowledge his signature before a notary prior to delivery to the purchaser, is an all too common one, particularly where the purchaser is a dealer and for various reasons prefers to have the title 'in blank’. This problem has given rise to much of the litigation over automobile titles in Missouri, because of the express statutory requirement that the certificate be properly assigned and acknowledged before delivery in order for title to pass to the purchaser. The position of the Missouri Supreme Court is that there is no such thing as ‘substantial compliance’ with this title law — either the provisions are complied with or they are not.”

In Pearl v. Interstate Securities Co., supra, 206 S.W.2d loc. cit. 978, our Supreme Court En Banc stated, “Section 8382 requires for a valid sale of a used automobile that the holder of the certificate of ownership must endorse thereon an assignment in the form prescribed by the Commissioner. The statute does not require an acknowledgment before a notary, but the form prescribed includes such an acknowledgment. We think that the statutory authority was broad enough to authorize the Commissioner to require an acknowledgment as a part of the assignment form he was required to prescribe.” * * “For dealers, the Commissioner is authorized to make forms differing from those used for individuals. Documents in evidence show such forms, so that when a dealer is the buyer, while he must take an assignment directly to himself, he may make a reassignment direct to his vendee without getting a new title certificate in his own name as required in the case of sales between individuals. Instead the new certificate may be issued direct to the dealer’s vendee.

“Plaintiff did obtain the title certificates with assignments thereon signed by each owner at the time the cars described therein were delivered to him as Section 8382 required. However, plaintiff did not fully comply with the statute because he did not have the assignment of the certificates to him by the holders completed in the form prescribed by the Commissioner which included an acknowledgment before a notary. He had only an unacknowledged assignment, and this was not sufficient to vest the legal title in him.” * * * Nor would he or anyone else have had the right to fill in the name of Security as assignee from the holders because he was the buyer and Section 8382 required the assignment to be made to him. To do so would be a misdemeanor. Sec. 8404(d), R.S. 1939, Mo.R.S.A. Nevertheless, he had implied authority to fill in his own name because it was the intention of the parties that the same be made to him. National Bond & Investment Co. v. Mound City Finance Co., Mo.App., 161 S.W.2d 664. Since a notary would not always be immediately available when an agreement for a sale is made, surely the buyer should have a reasonable time to complete the assignment by obtaining the seller’s acknowledgment.” To the same effect, see State ex rel. Payne v. Wilson, Mo.App., 207 S.W.2d 785; Jacobson v. M. B. Thomas Auto Sales, Mo.App., 234 S.W.2d 813.

Applying the rule of the Pearl case, supra, to the instant situation it is clear that Rudy Fick, Inc., never obtained title to the 1949 Ford. Sabella v. American Indemnity Company, supra; Haynes v. Linder, Mo.App., 323 S.W.2d 505. Rudy Fick, Inc., never filled in its name as transferee. It did not obtain a notarized acknowledgment while it possessed the Ford car. It obviouly intentionally avoided the mandatory requirements of Section 510.310 by its actions, and it was not until weeks after Rudy Fick had “sold” the Ford to Lockhart that the certificate, still blank as to the transferee’s name, was notarized.

It is the settled rule that it is not necessary that the insured, Rudy Fick, Inc., have an insurable interest in the automobile insofar as liability insurance is concerned. Haynes v. Linder, supra; Hall v. Weston, Mo.Sup., 323 S.W.2d 673.

Turning to those provisions of garnishee Universal Underwriter’s Policy relied upon by the parties, the January 31, 1956, endorsement states: The “Business of the named insured is Automobile Sales and Service”. * * * “(1) Owned automobile — • an automobile owned by the named insured; (2) Hired automobile — an automobile * * loaned to, the named insured * * * not owned by or registered in the name of (a) the named insured.” * * * “ * * * such insurance as is afforded * * * applies to the hazard defined below, subject to the following provisions: A. Hazard Defined. The * * * use of the premises for the purpose of an automobile dealer, repair shop, * * * and all operations necessary or incidental thereto * * * and the ownership, maintenance or use of any automobile in connection with the above defined operations, and the occasional use for * * * non-business purposes of (1) any automobile owned by or in charge of the named insured and used principally in the above defined operations, * * (Emphasis ours). * * * “B. Definition of Insured * * * The unqualified word insured includes the named insured and also includes * * * (2) Any * * * employee * * * while using an automobile covered by this policy * * * provided the actual use of the automobile is by the named insured or with his permission.”

Our first question is whether Lock-hart comes within the policy definition of an “insured”. Since Lockhart was an employee using an automobile that Rudy Fick, Inc., had obtained in the course of its used automobile dealer business and Lockhart was driving it with the permission and consent of Rudy Fick, Inc., we deem Lock-hart was an “insured’" under the policy. Rudy Fick, Inc., although not the owner c f the car, had received it under circumstances permitting it to permit another to use it. Haynes v. Linder, supra. As stated in the Sabella case, supra, loe. cit. 40, “when the seller delivers a motor vehicle to the buyer without delivering to him the certificate of title, he is permitting the buyer to use the vehicle * * * until title passes to him.”

The second question is whether Lockhart’s use of the Ford came within the hazards insured against. Since Rudy Fick, Inc., did not own the Ford, for coverage to apply the automobile must be “in charge of the named insured and used principally in the above defined operations.” It is our view that the Ford was not “in charge of the named insured” within the meaning of the policy. At one time, October 20, 19SS, Rudy Fick had been “in charge of” the Ford, having just obtained it from its owner, Richard A. Webb. However, in the course of its business Rudy Fick, Inc., on October 21, 1955 had given what it intended as irrevocable possession of the automobile to Lockhart and Lockhart had been in such possession for six months and until April 24, 1956. During that time non-owner Rudy Fick, Inc., was not in the process of transferring or having the title transferred to Lockhart; and had nothing to do with the car. While the giving of possession or the lending, of a car for any reasonable or ordinary period by a dealer to a potential purchaser or to one in the process of purchasing would not change the status of the dealer to one not “in charge of the automobile” within the meaning of the policy, the present circumstances are such as to make it unrealistic to find as a fact from such evidence that the Ford was “in charge of” Rudy Fick, Inc., within the intendment of the policy terms and we do not do so.

Additionally, while the Ford was obtained by Rudy Fick, Inc., as a trade-in and was there for resale, and thus was “used principally in the above defined operations”, i. e. “automobile dealers”, it is highly questionable that one could reasonably view the car as having remained in the general status of being used principally in the Rudy Fick, Inc., automobile sales and service business some six months after it had been disposed of by Rudy Fick, Inc., to Lockhart. The evidence before us fails to convince it was still so principally used. This is a question on which Kahn as plaintiff has the burden of proof and we find he failed to carry that burden of proof.

Appellant Kahn cites Rivas v. Killins, Mo.App., 346 S.W.2d 698, as authority for holding the Ford was used principally in the car dealer’s business operations. However, the automobile there involved was a part of the car dealer’s stock of cars for sale and remained such even though it was being temporarily used by another. The Rivas case facts are so different from ours that it is neither controlling nor persuasive of the instant case.

Garnishee Universal Underwriters Insurance Company also contends the trial court did not err in entering judgment for it because Lockhart failed to give it notice of the subject collision and notice of the filing of suit against him until two years and eleven months after the collision occurred and over two years after suit had been filed, and that such failure breached the notice and co-operation provisions of the policy which were a condition precedent and entitled garnishee to deny liability under the policy. Having ruled that Garnishee Universal Underwriters Insurance Company’s policy does not cover the subject collision it is unnecessary for us to consider this contention.

Accordingly, the judgment in favor of Garnishee Universal Underwriters Insurance Company is affirmed; the judgment in favor of Garnishee State Farm Mutual Automobile Insurance Company is reversed; and the cause is remanded with directions to the trial court to enter judgment in accordance with this opinion for appellant Kahn and against garnishee State Farm Mutual Automobile Insurance Company.

All concur.

      . While it is no part of the record before us, and we do not consider it, it is nonetheless interesting to be advised during oral argument that the Ford had a Rudy Fick dealer’s license on it at the time of the accident.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    CITY OF ST. MATTHEWS, Appellant, v. Frank OLIVA (Oliver) et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.
    As Modified on Denial of Rehearing July 2, 1965.
    J. W. Jones, Louisville, for appellant.
    Samuel Steinfeld, Harry Lee Meyer, Steinfeld & Steinfeld, Louisville, for ap-pellees.
   CULLEN, Commissioner.

The City of St. Matthews appeals from a judgment which in effect requires the city to rezone, from a residential classification to a commercial classification, a tract of land in the city owned by the appellees Frank and Angeline Oliva.

This action was brought originally in 1960. A judgment was entered in November 1961 directing the city to rezone the property. An appeal was taken by the city from that judgment and by opinion (unpublished) dated November 2, 1962, this Court reversed the judgment. Upon remand of the case the circuit court, over objections of the city, retried the case, hearing new evidence, and entered another judgment, which is the one now before us.

The opinion on the former appeal contained no directions as to future disposition of the case; it ended simply with the words “Judgment reversed”. However, the official mandate issued in the case recited that the judgment was reversed and the case was “remanded for proceedings not inconsistent with the opinion herein.” The circuit court interpreted the mandate as a direction (or at least permission) to hold a new trial. The appellant contends that the opinion and mandate, construed together, clearly contemplated that no new trial be held but that judgment be entered dismissing the complaint.

The reason stated in the opinion on the former appeal of this case for reversing the judgment was that the appellees had “failed to show in a clear and convincing manner that'the action of the appellant was arbitrary, unreasonable, or capricious.” Nothing of an unusual or special nature was involved ; it was a simple case of a failure of the plaintiffs, after a full and fair trial, to produce enough evidence to sustain their claim.

The well settled rule in this jurisdiction is that upon reversal of a judgment in an “equity” (nonjury) case the case will not be remanded for a retrial or for taking of further proof unless there are special exigencies or circumstances indicating that the “ends of justice” require such a remand. See Young v. Cumberland County Educational Society, 183 Ky. 625, 210 S.W. 494, 6 A.L.R. 135; Texas Co. v. Commonwealth, 303 Ky. 590, 198 S.W.2d 316; Stephenson v. Burton, Ky., 246 S.W.2d 999.

It is contended by the appellees that there were special exigencies or circumstances in this case in that the law concerning the burden of proof in zoning cases was changed during the pendency of this case. They claim that on the first trial they relied upon the rule in Boyd v. Louisville and Jefferson County Planning and Zoning Commission, 313 Ky. 196, 230 S.W.2d 444, but that the Court in its opinion on the first appeal in this case departed from that rule and subsequently, in American Beauty Homes Corporation v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450, expressly overruled Boyd. There is no merit in the contention because the rule in Boyd was based solely on the statute governing zoning in Louisville and the unincorporated areas of Jefferson County. The Boyd rule never did apply to zoning in a fourth-class city.

The appellees maintain that Preece v. Woolford, 200 Ky. 604, 255 S.W. 285, stands for the proposition that where this Court remands a case for “proceedings consistent with this opinion” the trial court has discretion whether to retry the case or to enter judgment. However, an examination of the opinion in the Preece case shows that the discretion of the trial judge to retry was limited io cases presenting some special reason or justification for a retrial. The opinion closes with this significant language (255 S.W. at 287) :

“We would not be understood as approving a course of practice that would permit the trial court to reopen a case for the reception of cumulative evidence after the reversal of the judgment rendered upon a full hearing of the merits upon full proof taken by both parties and a due submission made * *

As hereinbefore stated, there were no special equities involved in the case on the first appeal suggesting a need for a retrial. The case had been fully and fairly tried and the plaintiffs had been given their day in court. The opinion on the first appeal contained nothing to suggest even remotely that a new trial should be held; therefore, there was no occasion to construe the direction of the mandate, for proceedings consistent with the opinion, as a direction to do anything other than enter a judgment consistent with the opinion, that is, a judgment dismissing the complaint.

The trial court erred in retrying the case.

The judgment is reversed with directions to enter judgment dismissing the complaint.


author: WILLIAMS, Judge.

text:
    HARLAN COUNTY BOARD OF SUPERVISORS, etc., et al., Appellants, v. BLACK STAR LAND COMPANY, Appellee.
    Court of Appeals of Kentucky.
    June 18, 1965.

      Robert Matthews, Atty. Gen., William S. Riley, Asst. Atty. Gen., Larry A. Carver, Dept, of Revenue, Frankfort, James C. Brock, County Atty., Harlan, for appellants.
    James S. Greene, Jr., Greene & Foster, Harlan, for appellee.
   WILLIAMS, Judge.

The Harlan Circuit Court determined the fair market value of certain land owned by the appellee to be $50,000 as of January 1, 1963. As was customary in that county at that time, the court applied a 30 per cent assessment ratio to the fair market value and entered a judgment fixing the assessed value for tax purposes as of January 1, 1963, in the sum of $20,000. This appeal results.

This case was tried prior to Russman v. Luckett, Ky., 391 S.W.2d 694, decided June 8, 1965. The only question in this case, therefore, involves the manner in which the court determined the fair market value.

Appellee Black Star Land Company is the owner of certain real property in Harlan County which, at the time it was purchased, was underlaid with 600,000 tons of mineable coal. The property was purchased in 1960 for $50,000. In 1961 a lease was entered into with a third party wherein the lessee agreed to pay a royalty of 25 cents per ton for all coal mined. Prior to the January 1, 1963 assessment, about 100,-000 tons of coal had been mined and the merchantable timber had been removed from the property.

For the years 1961 and 1962 appellee had assessed its property for $17,000. In each of those years the Harlan County Board of Supervisors raised the assessment, and upon appeal to the Kentucky Tax Commission it was set at $20,000 and no further appeal was taken. In the year which we have under consideration ap-pellee again assessed its property for $17,-000. The Harlan County Board of Supervisors increased it to $124,000, and the Kentucky Tax Commission affirmed the increased assessment. Upon appeal to the Harlan Circuit Court, prosecuted under KRS 133.120(4) as it read prior to a 1964 amendment, the court heard the case and entered judgment fixing the assessed valuation at $20,000 as heretofore stated. (The appeal was considered in accordance with directions of this Court for the Harlan Circuit Court to “try and determine the tax matter,” Harlan County Board of Supervisors v. Hill, Ky., 382 S.W.2d 859, [1964]).

The Harlan Circuit Court found as a fact that the purchase of the property by ap-pellee in 1960 was a fair and voluntary sale, and that from 1960 to 1963 the fair market value of the property remained unchanged. Appellants admit that the best evidence of fair market value is the price •the property brought at such a sale, but they insist that the most recent sale is reflected by the lease of the coal. Multiplying the royalty payments per ton by the known tonnage of the coal, a greater value than the 1960 purchase price is reached. Consequently, say the appellants, the most recent sale reflects a higher value than that placed on the property by the Harlan Circuit Court, and the judgment is erroneous because of failure of the court to consider the latter value to the exclusion of the former value.

The determination of fair market value is a difficult task, and, except in rare circumstances, the final decision is at best an educated estimate. Comparable sales and the sale of the identical property are at best factors which enable the determining body to make an enlightened estimate. Passage of time, depletion of assets, and many other variables may tend to change the value of property. Sale price is perhaps the best evidence but is not absolute evidence of fair market value.

The Harlan Circuit Court in its finding of fact took note of and considered the coal lease. It also took cognizance of the income which was derived from the property during the year 1962. Having considered those elements alongside the evidence offered by appellee, the court found that the former was not sufficient to rebut the appellee’s proof that the fair market value of the property on January 1, 1963, did not exceed $50,000. The court was not bound to accept any other figure as the final determinable factor in arriving at fair market value.

Up to this point we have considered the coal lease as if it were an outright sale of the minerals. Appellants take the position that it serves the same function as an outright sale, and, consequently, should be so considered. Three cases are cited by appellants to substantiate that argument. Trimble v. Kentucky River Coal Corporation, 235 Ky. 301, 31 S.W.2d 367 (1930), involved an outright sale of minerals. The other cases, Kennedy v. Hicks, 180 Ky. 562, 203 S.W. 318, 319 (1918), and Wakenva Coal Co. v. Johnson, 234 Ky. 558, 28 S. W.2d 737 (1930), involve long-term leases.

We had occasion to examine a coal lease in Head v. Little, 312 Ky. 10, 226 S.W.2d 322 (1950), which is more in point. The language in that’lease did not purport to convey title to the coal, nor does the language in the lease under consideration here. In each case only the right to mine the coal on payment of a royalty is given. The only interpretation, we said, which can be given the instrument is that it is a lease of the coal and not a conveyance thereof. It was pointed out in that case that, if the title to the coal was actually conveyed to the lessees, then they would be liable for the ad, valorem tax assessed against the coal in place. Where the contract merely gives the right to mine the coal, the title does not vest in the lessee until after it is mined.

Technically then, the Harlan Circuit Court was not comparing two sale prices of the same property but was comparing the sale price which it found to be fair and voluntary with a lease consideration for the property. A lease fairly entered into may be considered as a factor in determining fair market value in the same manner as a sale, but the weight which shall be attributed to either will depend in each case upon the circumstances attendant thereto.

As heretofore stated, the Harlan Circuit Court took into consideration both the lease and the income from the property. The court also took into consideration the 1960 sale of the property, the fact that 100,000 tons of coal had been mined before January 1, 1963, the fact that merchantable timber had been removed, and various other factors. We are not in position to say that the finding is clearly erroneous, and do say there is evidence of substance to support it. Consequently, the finding will not be disturbed. See Citizens Fidelity Bank & Trust, Co. v. Leake, Ky., 380 S.W.2d 264 (1964).

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    O. K. TIRE STORE #3, INC., Appellant, v. Adrian STOVALL, Appellee.
    Court of Appeals of Kentucky.
    June 18, 1965.
    Robert G. Breetz, Lively M. Wilson, Stites, Peabody & Helm, Louisville, for appellant.
    Donald B. Barnett, M. G. Snyder, Louisville, for appellee.
   MONTGOMERY, Judge.

Adrian Stovall recovered judgment of $2,308 against O. K. Tire Store #3, Inc., for personal injuries. The defendant’s motion for appeal has been sustained. RCA 1.180; KRS 21.080.

Stovall stepped backward into a five-gallon bucket of white sidewall tire cleaner containing lye and received burns to his leg. He had come to appellant’s place of business to make a payment on his account and to have checked an automobile tire which was leaking air. Appellant, as its name indicates, was engaged in the operation of a tire store where tires were sold, mounted, and serviced.

After paying his account appellee proceeded to the work area of the store where the tire inspection was being made by Donald Burris, appellant’s employee. By that time Burris had immersed the tire into a water tank and was in the process of rotating and checking it for air leaks. Appellee testified that Burris said that he was going “to put some water” on the tire and that he (appellee) then stepped backward and into the bucket containing the lye solution, causing the contents to splash up to his hip.

While appellee stood near the water tank, he said, he was a “foot to two foot” from the bucket. Appellee said that he had not seen the bucket prior to stepping into it, although he admitted that the bucket had been in open view.

Appellant’s employee testified that the bucket was black in color and that its location had not been changed during the time appellee was present until he stepped into it. He said that appellee passed one or two feet from the bucket when he came to watch the tire inspection. According to the employee, no attempt was made to splash water on appellee. Burris described the incident as follows:

“ * * * each time I would roll the tire over to see if I could find a bubble, seemed like he would step back a little bit.
“22 Uh-huh.
“A And each time I did this — rolled the tire, he stepped back a little bit, and he stepped a little bit too far and stepped over in the bucket.”

Appellee was an invitee. City of Madisonville v. Poole, Ky., 249 S.W.2d 133; Rojo, Inc. v. Drifmeyer, Ky., 357 S.W.2d 33.

In J. C. Penney Co. v. Mayes, Ky., 255 S.W.2d 639, the rule was stated thus:

“An invitee’s right to assume that premises which he has been invited to use are reasonably safe does not relieve him of the duty to exercise ordinary care for his own safety nor license him to walk blindly into dangers which are obvious, known to him, or that would be anticipated by one of ordinary prudence.”

From the testimony there was no action on the part of appellant or its employee, other than the rotation of the tire in the normal course of inspection, that caused appellee to put his foot into the five-gallon bucket. Again quoting from the J. C. Penney Company case, “ ‘Ordinarily, the question whether the injury was caused solely by the defendant’s negligence, or was contributed to by plaintiff, should be left to the jury, but where there is no conflict of evidence as to the manner of the injury, and when the facts show unmistakably that the injury resulted from an act of the plaintiff, which in law is in itself negligence, the court should not submit the question to the jury.’ ”

Under the testimony in this case the only negligence shown by the undisputed facts is that of the appellee in stepping backward into a hazard which he should have seen. A five-gallon bucket is a sizable article that would require some high stepping in order to put one’s foot into it. As was pointed out in Allen v. Dillman, Ky., 249 S.W.2d 23, “The duty to make reasonable use of faculties to observe and discover conditions of danger is included within the duty to exercise ordinary care to avoid injury.” To the same effect see Price v. T. P. Taylor Co., 302 Ky. 736, 196 S.W.2d 312; Humbert v. Audubon Country Club, Ky., 313 S.W.2d 405; and Leslie Four Coal Co. v. Simpson, Ky., 333 S.W.2d 498, 84 A.L.R.2d 728. Winn-Dixie Louisville, Inc. v. Smith, Ky., 372 S.W.2d 789, is distinguishable from this case since the invitee said that the cardboard box into which she stepped was hidden from view. Appellant’s motions for a directed verdict and judgment n. o. v. should have been sustained.

Judgment reversed with direction to enter judgment for appellant.


author: PALMORE, Judge.

text:
    Grace ANDERSON, Appellant, v. Paul ANDERSON, Appellee.
    Court of Appeals of Kentucky.
    June 18, 1965.
    Boyce G. Clayton, Prince & Clayton, Benton, for appellant.
    H. H. Lovett, Jr., Benton, for appellee.
   PALMORE, Judge.

Grace and Paul Anderson, the parties to this appeal, parted company after some ten years of marriage. Paul sued for and was granted a divorce. Grace’s counterclaim for alimony was denied, and she appeals.

At the inception of the marriage Paul owned a farm in Illinois, which he later sold for $16,000. He then bought a 299-acre farm in Marshall County, Kentucky, for $15,000. His estate now consists of that farm, five cows, $1,700 in money, and an interest in a farm tractor. It was stipulated that the farm is now worth $35,000.

Both parties had been previously married, and when she married Paul, Grace owned two houses at Hardin, Kentucky, and an interest in two houses and a mill at Benton, Kentucky. She still owns all of these except for one of the houses at Hardin, which has been sold. It was stipulated that the present value of her property aggregates $35,000.

The chancellor found Grace solely at fault in precipitating the divorce, in that she refused to live on the farm with Paul, preferring to remain at her home in Hardin where they had resided together until the time of the separation. Denial of alimony was premised on the sufficiency of Grace’s own estate.

Grace takes the position that under such cases as Coleman v. Coleman, Ky., 269 S. W.2d 730, 738 (1954), Snider v. Snider, Ky., 302 S.W.2d 621 (1957), and Pearson v. Pearson, Ky., 350 S.W.2d 141 (1961), and the other precedents therein cited, the wife is absolutely entitled to alimony unless she is wholly at fault and guilty of moral delinquency. Each of those cases, however, was one in which the wife did not have a substantial or adequate estate of her own. KRS 403.060(1) requires an allowance of alimony if “the wife does not have sufficient estate of her own.”

“In McDonald v. McDonald, 279 Ky. 688, 132 S.W.2d 49, we pointed out that the language of this statute is clear and that an allowance of alimony to the wife does not always follow as a matter of course * * *. The question, however, is what constitutes a sufficient estate under the circumstances shown in each individual case ? This a relative concept. The Chancellor must necessarily take into consideration the extent of the husband’s estate, his earning capacity, the social position of the parties, their accustomed standard of living, the reasonable needs of the wife, and other factors.” Furgerson v. Furgerson, 307 Ky. 394, 211 S.W.2d 161 (1948).

At the time the evidence was taken Grace was 48 years of age. She has a high-school age daughter from her previous marriage. She has always been a housewife and does not have any particular marketable skill. Paul’s age was not shown but it is quite obvious that he is not of tender years (for example, he has a 30-year-old son) and not in good health. Grace conceded that he has a heart condition and never was able to work much during the time of their married life together. The farm is operated for the most part by his son, and Paul has not been able to accumulate any earnings from it. There was no proof to suggest that he has sufficient earning capacity to pay periodic alimony or to repay a loan if he were required to raise a lump sum.

Grace receives $90 per month in rents from her property. During the marriage this money went into the expenses of the household, and they lived in her house. On the other hand, Paul spent $5,100 of his own in adding a room and making other permanent improvements to the house. The casual use of Grace’s money for living expenses does not, of course, entitle her to an award by way of property restoration vis-a-vis alimony. Legel v. Legel, Ky., 382 S.W.2d 870 (1964).

Considering the respective estates and earning capacities of these two parties it seems to us that one is about as well off as the other. We cannot say the chancellor’s determination that under the circumstances Grace has a sufficient estate of her own was clearly erroneous or an abuse of his discretion.

The judgment is affirmed.


text:
    KENTUCKY UTILITIES COMPANY, Appellant, v. Lee TERRY, d/b/a Laurel Stoker Coal Company, et al., Appellees.
    Court of Appeals of Kentucky.
    June 18, 1965.

      Robert M. Odear, Stoll, Keenon & Park, Lexington, William A. Hamm, Hamm, Taylor & Milby, London, for appellant.
    J. Milton Luker, Luker & Luker, London, for appellees.
   CULLEN, Commissioner.

The appellees, operators of a coal tipple which was destroyed by fire on the night of August 6, 1962, recovered judgment in the amount of $25,000 against the appellant, Kentucky Utilities Company, on a jury verdict finding that K.U.’s negligence caused the fire loss. The appellees had advanced two alternative theories of liability. One was that K.U. had negligently maintained in a defective condition the transformer and wires by which it supplied electric power to the tipple, as a result of which the fire was caused; the other was that, regardless of what caused the fire, there was negligent delay by K.U. in causing the electric current to be cut off, were it not for which the firemen could and would have put out the fire with little damage.

Appealing from the judgment, K.U. maintains that the evidence was not sufficient to create a jury issue on either theory of liability, and therefore the trial court erred in not sustaining K.U.’s motion for a directed verdict and its subsequent motion for judgment n. o. v. We agree.

From a transformer on a pole in K.U’s 4160-volt line across a main highway from the appellees’ tipple, service lines ran to a pole on the tipple premises on which there was metering equipment. From that pole, wires ran to a switch box on the tipple. The testimony for the appellees was that the fire started at the top of the tipple above the wires running from the meter pole to the switch box. (There was evidence for the appellant strongly indicating that in its early stages the main force of the fire was,, some distance away from the wires, at the other end of the tipple.)

The testimony for the appellees endeavored to show two different specific defects in K.U.’s equipment. The night watchman at the tipple testified that when the fire was first discovered he saw “the short ends” of some wires “connecting together” near the tipple. However, there was no evidence from any source that there was anything observably wrong with those wires before the fire.

The other defect was claimed to be in the transformer. There was testimony that several months before the tipple fire there had been a coal yard fire near the area of the transformer pole, which had given out great heat; that at the time of that fire oil had been seen to drip from the transformer; and thereafter the electric current to the tipple had been weak, of which fact K.U. had been notified several times. The problem here is that there was no testimony that a weak current, or the previous heating and loss of oil from the transformer, could cause the transformer or the wires to catch on fire. In fact, the only testimony on the question was to the contrary.

As pointed out in Kentucky Power Company v. Halcomb, Ky., 373 S.W.2d 725, there has been, in those cases in which liability of the power company for fire damage to a customer’s property has been upheld, a showing of an observed potentially dangerous condition existing before the fire, and a showing of notice to the company of that condition. For example, in Kentucky Utilities Co. v. White Star Coal Co., 244 Ky. 759, 52 S.W.2d 705, there was evidence of a defective condition of a transformer, known to the power company, which was shown to be capable of causing a fire; in Kentucky & West Virginia Power Company v. Elliott, 310 Ky. 496, 220 S.W.2d 964, there was evidence of uninsulated wires touching a house, the condition having existed for such period of time as to charge the power company with notice of it; in Kentucky Utilities Company v. Young, Ky., 247 S.W.2d 978; there was evidence of a defect in a meter, known to the company, which could have caused the meter to heat up and set fire to the wall to which it was attached; and in Kentucky Power Company v. Kilbourn, Ky., 307 S.W.2d 9, there was evidence of low voltage, persisting over a long period of time which caused motors to catch on fire from overheating.

In the instant case there is no evidence that the claimed defective condition of the transformer could have caused it or the wires to catch on fire or to emit fire. The fact that fire was seen along the wires and around the transformer is not proof that the fire originated from a defect in the transformer rather than from a short circuit at the tipple. There is no basis for inferring that the fire started at one point rather than the other. Particularly is this true because the appellees’ own evidence was designed to show defects both in the wires at the tipple and in the transformer.

The claimed “connecting together” of the wires near the tipple is not a defect chargeable to K.U. because there is no evidence that K.U. knew or should have known of the defect.

Since the fire seen running or dancing along the wires and around the transformer reasonably could have been attributable to the short circuit or “connecting together” of wires near the tipple, there is no basis for an inference that such running or dancing fire was caused by some other defect in the electric system. That would not be an inference, but mere speculation.

The evidence for the appellees showed no defect in the electrical system that could have caused the fire in the tipple, other than the “connecting together” of the wires near the tipple. There was no evidence that K.U. knew or should have known of that defect. Accordingly, it is our opinion that there was insufficient evidence to warrant a finding that negligence on the part of K.U. caused the fire in the tipple.

The alternative claim of the appel-lees was that there was negligent delay by K.U. in causing the electric current to be cut off after the K.U. employes had been summoned to the scene of the fire, as a result of which delay the firemen were prevented from effectively stopping the fire.

There was testimony by the appellees that when the K.U. employes arrived at the scene the fire was at an easily controllable stage and could have been put out with little damage had the current been cut off promptly so as to eliminate danger to the firemen from the electricity; however, the K.U. men did not have the right tools with them with the result that there was a long delay before the power was cut off, during which time the fire advanced beyond control.

We believe this testimony cannot be given any probative value because the firemen themselves, who arrived shortly before or simultaneously with the K.U. men, testified that when they arrived the fire already was beyond control and they could not have stopped it. We think the other witnesses’ estimates and evaluations of what the firemen could and would have done can be accorded no weight in the face of the firemen’s positive statements that they would not and could not have done it.

We conclude that the appellees did not produce sufficient evidence to support a finding against K.U. on appellees’ alternate claim.

The judgment is reversed with directions to enter judgment for the appellant in accordance with its motion for judgment n. o. v.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mrs. Sadie DEAREN, Appellee.
    Court of Appeals of Kentucky.
    June 18, 1965.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Harold K. Huddleston, Elizabethtown, for appellant.
    Robert M. Spragens, Lebanon, for appel-lee.
   PALMORE, Judge.

In connection with the reconstruction of Second Street in the City of Campbellsville the highway department condemned the greater portion of a lot owned by the ap-pellee, necessitating the destruction or removal of her house. The proceedings in county court took place prior to our opinion in Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963).

The award of the commissioners in county court was itemized as follows:

Total value of property taken $11,680
Damages and benefits to remaining property Easement and house 3,270
Total $14,950

The county court entered a judgment for $14,950. The Commonwealth filed its appeal to the circuit court on November 23, 1962. The property owner did not appeal. The trial in circuit court was held on January 22, 1964, in accordance with the principles and procedures set forth in the Sher-rod case, supra.

In the course of the trial both sides agreed that the highest and best use of the property was for commercial purposes and that the house added nothing to its value. The highest figure given in evidence for the use of a temporary easement was $250. The jury found that the fair market value of the property before and after the taking were, respectively, $15,000 and $1,000 and that the value of the temporary easement was $100. Their verdict awarded the owner $14,100.

Both before and after the case was submitted to the jury the Commonwealth moved that the allowable recovery be limited to $11,680 (the amount allocated by the county court commissioners to the value of the property taken) plus the temporary easement (which, after the verdict, was $100), on the theory that since the owner did not appeal from the county court judgment and did not show the house to be of any value she was restricted to the amount specifically awarded by the commissioners for the property taken.

The precise question has been decided adversely to the Commonwealth’s contention in the recent case of Commonwealth, Dept. of Highways v. Conley, Ky., 386 S.W.2d 750, 752 (rehearing denied March 5, 1965).

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Troy BROWN et al., Appellees.
    Court of Appeals of Kentucky.
    June 18, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Edmond H. Tackett, Pikeville, for appellant.
    Joe Hobson, Prestonsburg, for appellees.
   DAVIS, Commissioner.

The Department of Highways appeals from the judgment awarding appellees $6,000 in this condemnation suit. Two bases for reversal are asserted: (1) The court erred in permitting incompetent evidence, and (2) the verdict is excessive.

The land involved is a farm which contained about sixty acres before the taking. It lay on existing Ky. Highway 114 (Pres-tonsburg-Salyersville Road). The taking is of 3.74 acres of bottom land and encompasses a strip traversing the southern portion of the farm. The effect of the taking is to divide the bottom land (which had originally contained 10.28 acres) into two tracts containing 3.67 acres and 2.87 acres each. Also involved is a temporary easement of 0.12 acres. The new highway to be constructed on the acquired right of way will cross the area on a fill ranging from twelve to eighteen feet in height. Incident to the highway construction the channel of Middle Creek will be moved slightly farther away from the residence of appellees.

Without detailing each item of it, it is sufficient to observe that appellant contends that evidence of values given by witnesses for appellees was premised on non-compen-sable items, was supported by an improper comparable sale, and came from witnesses who did not demonstrate adequate knowledge of the farm to support their testimony. These things, appellant asserts, combined to cause an excessive verdict.

We find no merit in the arguments of appellant on this record. The alleged non-compensable item had to do with “circuity of travel,” and we have said that true “circuity of travel” is non-compensable. Cartee v. Com., Dept. of Highways, Ky., 374 S.W.2d 860, and cases there cited. However, the witnesses here did not relate their evidence to circuity of travel as such, but directed this evidence to the destruction of the farm’s unity. It was pointed out that the severed tracts of bottom land were comparatively small and their separation will adversely affect the overall market value of the unit. We think this is appropriate.

In reviewing the evidence we are satisfied that the witnesses evinced sufficient knowledge of the land to express value opinions. The mere fact that some of them would not say exactly the number of acres in the entire boundary (although they had been on the farm) does not ipso facto demonstrate fatal unfamiliarity with the subject matter.

Appellees’ witnesses testified concerning a sale of land which appellant asserts was not truly comparable. That there is a substantial difference in the subject land and the alleged comparable sale, was brought out before the jury. The jury had a right to know of this sale and adjust for the difference. Stewart v. Com. for Use and Benefit of Dept. of Highways, Ky., 337 S.W.2d 880.

The jury’s verdict was well within the range of the testimony. It may appear liberal, but it does not strike us at first blush as being so excessive as to indicate its having been rendered as the result of passion or prejudice.

This view of the case makes it unnecessary to consider appellees’ claims that the motion and grounds for new trial should have been stricken.

The judgment is affirmed.

HILL, J., not sitting.


text:
    Richard Franklin DRIVER, individually, etc., et al., Appellants, v. E. P. SAWYER, Appellee.
    Court of Appeals of Kentucky.
    June 18, 1965.
    Rehearing Denied June 25, 1965.
    James F. Kemp, Joseph R. Rubin, Richard M. Trautwein, Rubin & Trautwein, Bernard S. Goldstein, Asst. Director of Law of City of Louisville, J. W. Jones, City Atty. of St. Matthews, Louisville, for appellants.
    Charles Speed Gray, Louisville, for ap-pellee.
   CULLEN, Commissioner.

In an action for a declaration of rights brought by the county attorney of Jefferson County against appropriate defendants the circuit court entered judgment upholding the validity of: (1) Chapter 125 of the Acts of 1964 (KRS 67.125, 26.430, 26.530, 431.100), which provides for the imposition of a tax of $2.00 on each conviction in a criminal case (except for a parking violation) in any court in a county containing a city of the first class, the proceeds of which tax are to go to the county jail building fund; (2) Chapter 224 of the Acts of 1962 (KRS 67.450 to 67.555) which sets up a “holding company” plan for financing the construction of county buildings in any county; and (3) a specific plan of Jefferson County for the financing of a new county jail under the statutory “holding company” plan, pursuant to which the site for the jail would be conveyed by the county to the county building commission, the latter would erect a jail from the proceeds of revenue bonds, and the county would rent the jail on a year-to-year basis, using the proceeds of the criminal convictions tax as the source of the rent payments.

It is our opinion that the 1964 Act providing for the criminal conviction tax violates Sections 171 and 181 of the Kentucky Constitution.

The Act (see KRS 67.125) provides that from and after the adoption by the fiscal court of a resolution establishing a county jail building fund there “shall be levied” a tax of $2.00 on each conviction in a criminal case (except for a parking violation) in any court in the county, the proceeds of which tax are to go to the county jail building fund. The taxes collected on convictions in the circuit, quarterly and magistrates’ courts are paid first into the State Treasury and then transmitted to the county treasurer for the jail building fund. The taxes collected in municipal courts in any of the cities in the county are paid directly by the city to the county treasurer for the jail building fund.

If this tax is to be considered as one imposed by the county, it violates Section 181 of the Kentucky Constitution because it is not a kind of tax that a county may levy. Ad valorem taxes and license taxes are the only kinds of taxes that a county may levy. Wiedemann Brewing Co. v. City of Newport, Ky., 321 S.W.2d 404.

If, on the other hand, the tax is to be considered a tax imposed by the state for county purposes, it runs squarely into the opening words of Section 181: “The General Assembly shall not impose taxes for the purposes of any county * * *.”

There remains only the possibility that the tax could be considered as one imposed by the state for state purposes; this being on the theory that a county jail is a matter of general statewide concern. But the tax cannot be sustained even under this view because by the clear mandate of Section 171 of the Kentucky Constitution a state tax must be imposed on a statewide basis. Here the tax is imposed only in one county. Actually it would be extremely difficult to treat the tax as a state tax because in reality the tax is imposed by the county by reason of the fact that the fiscal court makes the decision that puts the tax into effect; furthermore, the tax is collected only in the county and its proceeds are expended only in the county.

Cases such as Board of Trustees, Newport Public Library v. City of Newport, 300 Ky. 125, 187 S.W.2d 806, and Board of Trustees of Policemen’s and Firemen’s Retirement Fund v. City of Paducah, Ky., 333 S.W.2d 515, holding that the General Assembly may require a county or city to levy a tax for a purpose which is local in application but is of statewide concern, are of no help because, as hereinbefore pointed out, the tax here involved is of a kind that is not within the power of a county to levy for any purpose.

Also, cases sttch as Miller v. State Building Commission, 308 Ky. 249, 214 S.W.2d 265, holding that money raised by state taxes may be expended in a particular locality for a localized function if the purpose served is one of statewide concern, are not applicable because, as hereinbefore stated, a state tax cannot validly be levied in one county only, and in any event the tax here in question cannot reasonably be considered to be a state tax.

In simple truth, the situation is that the taxing resources of Jefferson County have proved inadequate to provide a suitable jail, which is a predominantly local facility. By the Act here in question, the General Assembly has sought to delegate to the county some of the state’s taxing power. That is exactly what Section 181 of the Constitution is intended to prevent. See Board of Trustees of Policemen’s and Firemen’s Retirement Fund v. City of Paducah, Ky., 333 S.W.2d 515.

It is suggested that somehow the Act could be validated by considering the imposition of the charge of $2.00 on each criminal conviction as being in the nature of costs or an added fine. It is not clear how even if so considered the charge, imposed only in one county, could be sustained. In any event, there is no possible justification for treating the charge as anything other than a tax because (1) it is expressly called a tax and (2) its plain, undisguised purpose is to produce revenue.

It appears that the proposed plan of Jefferson County for financing a new jail is dependent upon the validity of the criminal conviction tax. We having held that tax invalid, there remains no justiciable controversy with respect to the validity of the “holding company” statute and the features of the Jefferson County plan which involve that statute. Accordingly, it is inappropriate for any adjudication to be made in those regards.

The judgment is reversed with directions to enter judgment in conformity with this opinion.


author: STEWART, Judge.

text:
    J. D. JOHNSON, Elmer Jones and Bascom Reasor, Members of the City Utilities Commission, City of Corbin, Corbin, Kentucky, Appellants, v. Ralph REASOR and his wife, Viola Reasor, Appellees.
    Court of Appeals of Kentucky.
    June 18, 1965.

      H. M. Sutton, Sutton & Martin, Corbin, for appellants.
    R. Lee Brown, J. B. Johnson, J. B. Johnson, Jr., Williamsburg, for appellees.
   STEWART, Judge.

Ralph Reasor and his wife, Viola Reasor, sought in the Whitley Circuit Court an order to compel the city utilities commission of Corbin to furnish water and elqptric service for three houses owned by them. The houses are situated in a 65-acre subdivision located within the city limits of Cor-bin, a third-class city. The trial court directed that utility service be installed up to the property line of each house. This appeal is from the ruling of the trial court.

When the Reasors made application in May or June, 1964, for the service, the city utilities commission declined to grant their request unless the entire cost of constructing these extensions was paid by them. This was estimated at $3617.70. In a letter to Ralph Reasor, it gave as a reason for its refusal to install the lines at its expense a subdivision regulation, adopted October 18, 1959, by the city planning commission, which read as follows:

“Where public water supply, in the opinion of the planning commission, is reasonably accessible, the subdivider shall construct a complete water distribution system, including a connection for each lot and appropriately spaced fire hydrants * *

It is readily apparent this rule applies solely to the laying of water lines within a subdivision. It will also be noted that the right to rely upon it is posited, not in the city utilities commission, but in the planning commission of the city, an agency whose duties relate exclusively to zoning matters. So far as we can ascertain the city has never approved this regulation by ordinance. Furthermore, there is nothing in the record which denotes in any wise how the city utilities commission shall be governed in respect to furnishing electric facilities within such an area.

At a hearing before the trial court the proof established that the Reasors constructed a residence in the subdivision at sometime after 1962, and that the city utilities commission at its cost made water and electric service available to this house. It furnished the same free service to four other persons in the subdivision, these persons having purchased their lots from the Reas-ors and then had the houses built for themselves. Separate water lines were run in this subdivision to five other houses built by individual lot owners at no expense to them for the service.

There is evidence in this case that in one instance the city utilities commission extended cost free its water mains more than a thousand feet in order to provide water for one user. It was testified that another time, as late as 1962, a water line was constructed beyond the city limits to the farm of the then chairman of the city utilities commission, now the mayor of Corbin. This was also done at no outlay by the farm owner. The Reasors’ three new houses which the city utilities commission refused to provide with water and lights are located approximately five hundred feet from accessible city water; in fact they are on lots adjacent to the Reasor residence.

D. A. Marcum, who has been superintendent of the water system of Corbin for fourteen years, testified that if the Reasor lots with the new houses on them were owned by three separate individuals rather than by a subdivider, light and water installations would be supplied and the city utilities commission would defray the cost.

It has quite generally been held or recognized that a municipality exercises a discretionary function in deciding whether or not to extend its utility system to an entirely new section within its territorial limits, and it cannot be compelled to do so at the instance of a prospective consumer, at least if its basis for refusing is in any way reasonable and does not, therefore, involve any abuse of discretion or arbitrary or fraudulent action. However, there exists of course a basic underlying obligation of a city owning a general domestic utility system to supply impartially all applicants who are in substantially like position to those being served. See Annotation, 48 A. L.R.2d 1225.

In the light of the facts presented it will be observed the city utilities commission has not adhered to any fixed standards in making available water and electricity to users within the subdivision of the Reasors. It would seem, too, that neither the city nor the city utilities commission has ever legally adopted the regulation the latter purports to be guided by.

We believe the city utilities commission cannot follow, as it has done in the case at bar, a plan of making water and light service available cost free to individuals in a subdivision on the basis that they have constructed their own residences in this area and, in the next breath, pursue a scheme of charging all the expense for such utilities to a subdivider who has built a house or houses therein for sale. It is clear that, under such a system, persons who are similarly situated in the subdivision are not being treated alike.

The trial court correctly held the attempt to force the Reasors to pay all construction cost in order to obtain lights and water for their three houses subjected them to discrimination.

Wherefore, the judgment is affirmed.


text:
    James WETHINGTON, Appellant, v. Dorothy GRIGGS, Appellee.
    Court of Appeals of Kentucky.
    June 18, 1966.

      --
    E. H. Walton, Covington, for appellant.
    John J. O’Hara, O’liara & Ruberg, Cov-ington, for appellee.
    Charles S. 4dams, Covington, amicus curiae.
   WILLIAMS, Judge.

Appellant and appellee were involved in an automobile accident which occurred in Ohio on March 15, 1962. On February 19, 1964, suit was filed in the Campbell Circuit Court, more than a year after the accident, but less than two years after. Motion to dismiss the complaint was sustained in that court and from the judgment this appeal is taken.

KRS 413.140 provides a one-year statute of limitations for personal injury actions. The Ohio law in effect at the time this suit was filed provided a two-year statute of limitations. The question is, which statute of limitations shall apply.

The identical question was before us in Seat v. Eastern Greyhound Lines, Inc., Ky., 389 S.W.2d 908, where we said:

“A statute of limitations does not extinguish a legal right but merely affects the remedy, and the law of the forum controls remedies and procedures. Ley v. Simmons, Ky., 249 S.W.2d 808, 36 A.L.R.2d 563 (1952). The great weight of authority is that a statute admitting the bar of the law of another state does not so adopt the foreign law as to lengthen the limitation period otherwise prescribed at the forum. See Annotation, 75 A.L.R. 231. In the Ley case we concluded that in an action brought in this state to enforce a judgment of a court of another state whose statute of limitations was for a longer period than ours, the statute of limitations of Kentucky should govern.
“The same principle shall apply in an action on a tort committed in another state. If the statute of limitations in the foreign state is for a longer period of time than the statute provides in this state, then the law of Kentucky will prevail. If, on the other hand, the period of time provided by the statute in the foreign state is shorter than that provided in Kentucky, then KRS 413.-320 applies and the law of the foreign jurisdiction shall prevail. * * * ”

Applying the law of the forum, this action was brought too late and was properly dismissed.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Malcolm D. SHEPHERD et al., Appellees.
    Court of Appeals of Kentucky.
    June 18, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Edmond H. Tackett, Pikeville, for appellant.
    Joe Hobson, Prestonsburg, for appellees.
   DAVIS, Commissioner.

In this condemnation action the appel-lees were awarded $3,000; the Department of Highways seeks to reverse the judgment on these grounds: (1) Error in allowing witnesses for appellees to give value testimony based upon irrelevant and noncom-pensable factors; (2) error in permitting improper statements and arguments of counsel for appellees; (3) the verdict is excessive and not supported by competent and relevant evidence.

The property involved is situated on Kentucky Highway No. 114 (Prestonsburg-Salyersville Road) and before the taking had frontage of about 100 feet along that highway; it extended back from the road about 250 feet to Middle Creek. The residence of appellees is situated on the lot, facing the highway, and js not taken. The right of way acquired in fee simple is a parcel extending along the entire frontage of the lot having depth of 34 feet at one corner and 20 feet at the other. The taking comprises 0.06 acres. A temporary easement was required also; the easement contains 0.08 acres.

Prior to the taking the grade of the existing highway, at the center line, was about four or five feet above the bottom of the foundation of the residence. The new construction will result in raising the elevation at the center line an additional three and one half feet. The center line of the new construction will approximately coincide with the former center line. The right-of-way line, after the taking, will extend to within thirteen feet of one corner of the residence, and within 21 feet at the other corner. However, it was shown that the actual construction under present plans will be no nearer than 37 feet at one corner of the house, and 45 feet at the other.

The appellees adduced evidence indicating that by reason of the new construction the garage attached to the residence will not be usable; the appellant Department made no contrary showing.

The only value witness for the Department testified that the entire difference in the before and after values could not exceed $225. Several value witnesses for appellees fixed the difference in before and after values in sums ranging from $4,000 to $6,750. Cross-examination of the witnesses for appellees elicited from them that they had, in some instances, given consideration to non-compensable matter (e. g., the estimated cost of moving the television aerial). The witnesses opined that it likely will be necessary to move the house away from the road, and gave estimates of the cost of that. Under the circumstances of this case, we think there is no question but that the evidence just mentioned was incompetent; however, it is our view that the verdict reflects that the over-all impact of the erroneous evidence was not prejudicial. The witnesses for appellees did qualify themselves as acquainted with market values, and their evidence possessed sufficient probative value to support the verdict in our judgment. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472.

We have considered the Department’s assertions of prejudicial remarks made by counsel for appellees but fail to see any merit in them. No useful purpose would be served by detailed discussion on this phase of the appeal.

Upon review of the record, we are not able to say that the amount of the verdict is so great as to strike us at first blush as having been rendered as the result of passion and prejudice. It strikes us as liberal but not palpably excessive; in such a case we may not disturb the judgment based on the verdict.

The judgment is affirmed.

HILL, J., not sitting.


author: WADDILL, Commissioner.

text:
    JEWELL RIDGE COAL COMPANY, Appellant, v. Ed McDOWELL and Workmen’s Compensation Board et al., Appellees.
    Court of Appeals of Kentucky.
    June 25, 1965.

      Maxwell P. Barret, Reeves, Barret & Cooper, Hazard, for appellant.
    Cordell H. Martin, Hindman, Robert Matthews, Atty. Gen., Frankfort, Rudy Yessin, Edward L. Fossett, Smith, Reed, Yessin & Davis, Frankfort, for appellees.
   WADDILL, Commissioner.

This is an appeal from a judgment which vacates an order of the Workmen’s Compensation Board dismissing appellee McDowell’s claim against the appellant coal company for compensation. The judgment also directs the Board to reopen the case and permit the parties to take further medical testimony to explain or contradict the evidence of the physician appointed by the Board pursuant to the provisions of KRS 342.315.

Prior to our consideration of the questions raised by the coal company we will dispose of McDowell’s contention that the judgment is interlocutory and therefore not appealable. This contention is without merit because the judgment authorizes the Board to reconsider the merits of the case and to enter an award which would deprive the coal company of a substantial right it obtained by the Board’s former order. We hold that the judgment is final and appeal-able. Mullins v. Kentucky West Virginia Gas Company, Ky., 307 S.W.2d 169; Kenmont Coal Co. v. Clark, 294 Ky. 226, 171 S.W.2d 242.

The coal company contends that the circuit court erred in ordering the Board to reopen the case and permit the parties to introduce further testimony for the purpose of rebutting or supporting the testimony of the physician appointed by the Board.

The provisions of KRS 342.315 read in part:

“(1) The board, or any member thereof, may, upon the application of either party or upon its own motion, appoint not more than three disinterested and duly qualified physicians or surgeons to make any necessary medical examination of the employe and to testify in respect thereto. Such physicians or surgeons shall file with the board within fifteen days after such examination their joint report in writing. * * * ”

The Board’s order appointing Dr. Oscar O. Miller under this section was entered after it had sustained a motion for review under KRS 342.280 and upon a record reflecting a sharp conflict between certain medical experts concerning whether McDowell had contracted an occupational disease. Neither party to the proceedings objected to the appointment of Dr. Miller to conduct the examination. Following his examination of McDowell, Dr. Miller filed a comprehensive written report with the Board which contains his conclusions in these words:

“Negative for pulmonary tuberculosis; negative for cancer; negative for silicosis; negative for anthracosis. The findings are compatible with a moderate emphysema throughout both lungs.”

Thereafter McDowell moved the Board to set aside the order appointing Dr. Miller on the grounds that his medical report was not responsive to the Board’s order in that Dr. Miller failed to make findings as to “the plaintiff’s nature, cause, and probable duration of disability, if any.” Objection was also made that Dr. Miller “discussed the case with McDowell” and thus became informed as to “facts of the case,” and furthermore that copies of the medical report were not furnished to McDowell or his counsel and the evaluation is not a true independent evaluation of McDowell’s condition.

The Board passed the motion to the consideration of the case on its merits and gave all parties notice that a referee of the Board would take Dr. Miller’s deposition. The parties were present when Dr. Miller’s deposition was taken and counsel for McDowell cross-examined Dr. Miller but was unable to alter his opinion that McDowell did not have siliccsis.

McDowell filed a motion to strike Dr. Miller’s deposition from the record on the ground that “such procedure is arbitrary on the part of the Board due to the fact that McDowell has no way of rebutting the testimony here adduced by the Board by other competent physicians.”

Subsequently the Board overruled the motions made by McDowell and proceeded to decide the case. We quote from the written opinion of the Board concerning its findings:

“Upon the basis of the entire record, including the report and the deposition of Dr. Miller, the Board now finds that plaintiff [McDowell] has no compensa-ble disability and his claim is now dismissed.”

The circuit court took a different view of the case and found that “it was not necessary for the Board to appoint a physician, unless it would permit the parties a reasonable time after the filing of the report by the physician to take further medical proof to explain or contradict the evidence of the appointed physician.” The circuit court was of the opinion that, since the proof was conflicting as to whether McDowell had sustained a disability from an occupational disease within the meaning of KRS 342.316, it was error for the Board to delegate its fact-finding responsibility to the appointed physician.

The Board has the right to use its discretion in appointing one or more disinterested physicians to make a medical examination of a compensation claimant when a medical question is in controversy. KRS 342.315; Thompson v. Mayflower Coal Co., Ky., 379 S.W.2d 459. The statute also authorizes the appointed physician (or physicians) to file a written report of his findings and to testify with respect thereto. The Board complied with these provisions and neither the medical qualifications nor the impartiality of Dr. Miller was questioned. The mere allegation that Dr. Miller discussed the case with McDowell furnished no legal basis for striking Dr. Miller’s medical report or his deposition. The allegation that his report was not responsive to the Board’s order appointing him is contradicted by the medical report itself. The further allegations of error with regard to this report are of no significance since the parties had an opportunity to cross-examine Dr. Miller. Under this state of the record the Board did not err in considering Dr. Miller’s testimony. Hardaway Contracting Co. v. Mershall, Ky., 362 S.W.2d 491.

The contention that the Board should have permitted the parties an extension of time in which to take further medical testimony to rebut Dr. Miller’s deposition is also without merit. The record contains no motion or request of the parties to take further proof in the case. Nor was the Board required on its own motion to grant the parties an opportunity to introduce further medical evidence. In the absence of an appropriate showing that the medical report of Dr. Miller was erroneous we have no doubt that the Board did not abuse its discretion in bringing this controversy to a close.

It is also our opinion that the Board did not erroneously delegate its fact-finding responsibility to Dr. Miller. While it does appear that the Board came to the same conclusion as Dr. Miller this circumstance cannot be argued as a basis of error. Moreover, the record discloses that the Board made an independent finding upon its consideration of the entire record. The procedure followed by the Board, whether it accepted or rejected a disinterested physician’s opinion, has been approved by this Court. Holland v. Childers Coal Company, Ky., 384 S.W.2d 293. American Radiator & Standard San. Corp. v. Givens, Ky., 383 S.W.2d 690; Hardaway Contracting Company v. Mershall, Ky., 362 S.W.2d 491.

McDowell and his witnesses failed to convince the Board as a fact-finder that he was disabled from an occupational disease. Having failed in this effort and having failed to show any error as a matter of law, neither this Court nor the circuit court is authorized to vacate the finding of the Board.'

The judgment is reversed with directions to set it aside and to enter a new one upholding the order of the Board dismissing McDowell’s claim for compensation.


text:
    Silas DAVIS et al., Appellants, v. HARLAN EVERGLOW COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    June 25, 1965.

      Joseph K. Beasley, Harlan, for appellants.
    William R. Forester, Greene & Forester, Harlan, for appellees.
   MONTGOMERY, Judge.

Silas Davis appeals from a judgment that reversed an award of the Workmen’s Compensation Board against Harlan Ever-glow Coal Company adjudging Davis to be totally and permanently disabled by silicosis. On appeal Davis contends that Harlan Everglow was his last employer although he later worked three days for another employer and that the Board’s finding of disability before the subsequent employment should not have been set aside.

Davis had been employed as a coal miner over a period of 32 years and had been exposed to the hazard of silica-bearing dust in each mine. He is totally and permanently disabled by reason of silicosis.

Davis worked for Harlan Everglow from sometime in 1957 until May 11, 1961, when Harlan Everglow ceased operations by reason of a lease difficulty. In December 1961, Davis was refused employment by High-splint Coal Company following a chest X-ray. On December 16, 1961, he was employed by H. & N. Coal Company and worked three days. From Davis’ testimony it is uncertain whether his last employment was terminated because he told his employers of his silicosis condition or because he had pneumonia.

Following termination of employment with Harlan Everglow and H. & N., Davis applied for and received unemployment compensation benefits. In each application for benefits he stated his willingness to work and his availability for employment. On January 9, 1962, Davis received medical advice that he had silicosis.

KRS 342.316(12), in essence, provides that the employer where the claimant was last injuriously exposed to the hazards of the disease is alone liable. Disability is the other factor to be considered. In Gibson v. Blue Diamond Coal Co., Ky., 342 S.W.2d 698, it was held that disability, plus last exposure, constitutes the basis of the claim, regardless of prior exposures or manifestations of the disease.

Later in W. M. Coal Company v. Campbell, Ky., 344 S.W.2d 794, it was pointed out “that the Workmen’s Compensation Statute, which provides payments for occupational diseases, contemplates that the workman may have contracted the disease in a substantial degree during prior employment.” It was held that the date of disability is the important and controlling factor in fixing liability as to various employers. In Bethlehem Mines Corporation v. Davis, Ky., 368 S.W.2d 176, it was held that an employee is not disabled within the meaning of KRS 342.316(2) “so long as a man is able to carry on his duties though he may suffer while doing it.” To the same effect are Stephens Elkhorn Coal Company v. Tibbs, Ky., 374 S.W.2d 504; Brock v. International Harvester Company, Ky., 374 S.W.2d 507; Alva Coal Corporation v. Trosper, Ky., 375 S.W.2d 406; and Lovell v. Osborne Mining Corporation, Ky., (decided June 11, 1965).

The facts are not in dispute and the question is one of law. Combs v. Gaffney, Ky., 282 S.W.2d 817. The inescapable conclusion resulting from the application of these rules is that Davis was not disabled at the time his employment with Harlan Everglow ceased. The determination reached by the Board that the compensable disability of Davis commenced while he was in the employ of Harlan Everglow is erroneous.

There is no merit in the suggestion by Davis that three days’ exposure is insufficient, in view of the holding in Childers v. Hackney’s Creek Coal Co., Ky., 337 S.W.2d 680, that there is no minimum time requirement for the period of exposure. It was held that in order to support a claim it was sufficient “only that the conditions were such that they could cause the disease over some indefinite period of time.” See Blue Diamond Coal Company v. Napier, Ky., 337 S.W.2d 879, to the effect that each exposure is injurious.

H. & N. had not elected to operate under the provisions of KRS, Chapter 342, Workmen’s Compensation, and Davis argues that H. & N. was not an employer within the contemplation of the Act. The language of KRS 342.003(1), (2), 342.005, 342.016, and 342.017 clearly indicates that employers other than those who elect to operate under the Act are also governed by it. The trial court correctly held that H. & N. was an employer within the meaning of Chapter 342.

The New York authorities submitted by Davis may be considered as inapplicable or not controlling in view of the many pertinent decisions of this Court.

Judgment affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Neva MARTIN, widow, et al., Appellees.
    Court of Appeals of Kentucky.
    June 25, 1965.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellant.
    Charles G. Cole, Jr., Barbourville, for appellees.
   DAVIS, Commissioner.

The Department of Highways asks the reversal of a judgment awarding appellees $7500 in this condemnation suit. No brief has been filed in behalf of appellees. Pursuant to RCA 1.260(c) (2) we reverse the judgment, since appellant’s brief reasonably appears to sustain such action.

As there likely will be another trial we direct attention to certain areas of error which occurred at the first trial and which should be avoided upon another trial:

Witnesses should not be permitted to testify as to offers to purchase the subject property, as testimony of that type is not admissible. Graves v. Winer, Ky., 351 S.W.2d 193; 8A Ky. Digest, Evidence, 0=113(16).

Witnesses should not be permitted to assert that the improvements remaining will face a “dilapidated” road, in face of the uncontradicted evidence that former U. S. Highway 25-E is to be maintained in front of the residence of appellees.

It was not proper to permit witnesses for appellees to express opinions as to possible water damage by reason of the construction in the absence of any showing of qualifications of the witnesses to know or accurately estimate whether such damage will occur.

No evidence should be permitted ■ relating to cracking of the walls and windows incident to blasting during construction.

Value to the owner, as distinguished from market value, is not a proper consideration. Com., Dept. of Highways v. Darch, Ky., 374 S.W.2d 490.

The judgment is reversed for new trial to be conducted consistently with this opinion.


author: CLAY, Commissioner.

text:
    The FRANKLIN REAL ESTATE COMPANY, a corporation, Appellant, v. Demart MUSIC et al., Appellees.
    Court of Appeals of Kentucky.
    June 25, 1965.
    Porter M. Gray, John M. Williams, Gray, Woods & Cooper, Ashland, for appellant.
    J. K. Wells, Wells & Wells, Paintsville, for appellees Demart Music, Laura Music, John B. Music and Nancy Music.
    Eugene Rice, Paintsville, warning order atty. for Elizabeth Music Ashley and others.
    Annie Bennington, pro se.
    Fannie Greenway, pro se.
    W. H. Music and Ivel Music, pro se.
    Leota Music Derossett and Tolba De-rossett, pro se.
   CLAY, Commissioner.

This is a declaratory judgment action in which the Chancellor determined that a certain instrument was a deed rather than a will and vested in the grantee a fee simple title to the real estate involved. These findings are challenged on this appeal.

In 1911 by “Deed of Conveyance” D. Mart Hager did “sell and convey” to Laura B. Music “and her children” a certain tract of land. There was a covenant of general warranty in the instrument and it recited a consideration of $3,000.

It also contained the following provision:

“The intention of this deed is to convey to the said Laura B. Music and her bodily heirs the foregoing described tract of land, which deed shall be in full force and effect at the demise of the said Grantor herein, D. Mart Hager.”

This instrument was acknowledged as a deed, was delivered and recorded.

It is contended that the last quoted portion of the instrument showed an intention to postpone the vesting of any estate until the death of the grantor and therefore the purported conveyance was testamentary in character and the instrument should be construed as a will. Such a construction would be contrary to the other language used and contrary to the dominant intent manifested, which is a determining factor. Glocksen v. Holmes, 299 Ky. 626, 186 S.W.2d 634.

The language in the instrument which ostensibly delays the full force and effect of its provisions may be construed as postponing the enjoyment of possession rather than the vesting of the estate. Hunt v. Hunt, 119 Ky. 39, 82 S.W. 998, 66 L.R.A. 180. We agree with the Chancellor that this is the proper construction of the somewhat ambiguous language and we think the controlling intent was to vest an immediate estate in the grantee (even though subject to a life estate in the grantor). This instrument simply cannot be construed as an intended will.

The caption of the deed recites the conveyance is to Laura B. Music “and her children”. Twice later in the instrument reference is made to Laura B. Music “and her bodily heirs”. It is contended that the deed must be construed as giving Laura only a life estate, with remainder to her children. It is our opinion that the reference to “children” in this particular deed must be construed in the same sense as “bodily heirs” and since such terminology would have created what was once recognized as an estate-tail, which by KRS 381.070 is converted into a fee simple, Laura took the estate in fee.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    Haskel E. “Billy” BENTLEY (alias Donald W. White), Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 25, 1965.
    Haskel E. “Billy” Bentley, pro se.
    Robert Matthews, Atty. Gen., Charles A. Runyan, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

Appellant filed a post conviction motion under RCr 11.42 contending that his conviction for obtaining money under false pretenses and issuing cold checks should be vacated on three grounds: (1) That the court was without jurisdiction, (2) that he did not have effective counsel, and (3) that he was forced to plead guilty.

The record shows that the trial court definitely had jurisdiction and that adequate counsel was appointed for him. The trial court did not grant a hearing on the post conviction motion because it found that there was no material issue of fact that could not be determined from the face of the record.

The judgment is affirmed.


author: HILL, Judge.

text:
    Kenneth DeSIMONE, Appellant, v. Genrose DeSIMONE, Appellee.
    Court of Appeals of Kentucky.
    June 25, 1965.
    R. Davis McAfee, Richard Remmers, Louisville, Charles M. Summers, Campbells-ville, for appellant.
    Clyde Williams, Jr., Campbellsville, for appellee.
   HILL, Judge.

This is an appeal by the father from an order raising monthly benefits for two children of these parties from $125 to $525. Motion to modify was made in the trial court on June 15, 1964, during the pendency of an appeal to this Court by the wife in the original suit, the opinion in which was rendered March 26, 1965, Ky., 388 S.W.2d 591 (1965).

The appellant first contends the trial court was without jurisdiction to determine the matter since there was an appeal pending. With this theory we cannot agree. The court may re-examine the question of custody or support at anytime on showing a change of conditions, regardless of the pendency of an appeal. It may, and sometimes does, require many months to determine a case on appeal.

Appellant next contends the total monthly allowance is grossly excessive and out of proportion to his income and ability to pay.

The two children concerned in this appeal are now aged ten and seven. The record in the case of Genrose DeSimone v. Kenneth DeSimone showed the father’s annual earnings at $4,000 due to the fact he was away from home attending postgraduate school. Based upon that income the trial court in the original action awarded $125 per month for the support of the two children. This award was affirmed by this Court.

It was shown on the trial of the motion for increase that the appellant’s earnings for a 10-month period from August 1, 1963 through May 31, 1964, were $44,000 and his net income $21,000. It was on this income and change of earnings that the trial court fixed the monthly payments at $525.

After the lower court ruled on the motion, appellant made motion that the court reconsider the question and lower the amount because appellant contended he neglected to show the court that his income tax had not been deducted in his estimate, and which would amount to approximately $6,000, leaving him $15,000 income for the 10-month period. To take the appellant’s own figures, he averaged $1500 per month during those 10 months, which would give him $18,000 a year income, which is four and one-half times his $4,000 income during the preparation of the original case. If we multiply the original allowance of $125 by four and one-half times, we arrive at a figure in excess of an amount allowed by the trial court. We do not mean to say this yardstick could be applied on and on in situations where greater incomes are involved. However, we cannot say that the monthly award in this case is grossly excessive. The trial court in matters of this kind is vested with a broad discretion which will not be disturbed unless such discretion is abused. Somerville v. Somerville, Ky., 339 S.W.2d 940 (1960); Meek v. Meek, Ky., 338 S.W.2d 398 (1960).

The testimony shows in this case that appellee earns $15,000 per year, herself, and it is urged that she should bear some of the burden of supporting her children or that, at least, her earnings should be considered in determining the monthly contribution of the father. This Court has not followed this reasoning. In Martin v. Martin, Ky., 251 S.W.2d 302 (1952), and Beutel v. Beutel, 300 Ky. 756, 189 S.W.2d 933 (1945), this Court held that the financial condition of the divorced wife may not be considered in determining the amount a divorced husband should contribute to the maintenance of his children.

The judgment appealed from is affirmed.