author: HOGAN, Judge.

text:
    Gale STOCKTON, Plaintiff-Appellant, v. Sandra Stockton GUTHARY, Defendant-Respondent.
    No. 8586.
    Springfield Court of Appeals. Missouri.
    May 4, 1967.

      W. H. Pinnell, Pinnell & Monroe, Mon-ett, for plaintiff-appellant.
    Royle Ellis, Cassville, for defendant-respondent.
   HOGAN, Judge.

This appeal is taken from an order of the Circuit Court of Barry County modifying the child custody provisions of a divorce decree. The child involved is Katrina Stockton, who must now be nearly six years old. By reason of circumstances which shall presently appear, Katrina has been in the actual custody of her paternal grandparents. The trial court has resolved this controversy by awarding custody of the child to her mother, giving the grandparents custody for a period of one week beginning July 15 and November 15 of each year until she reaches “school age,” and thereafter for the month of July in each year. The father has appealed.

On March 26, 1963, Gale Stockton, the father and appellant, was divorced from Sandra Guthary, the mother, who is respondent here. The action was tried in the same court before the same judge who entered the judgment appealed from. The divorce decree recites that both parties appeared, that the cause was taken on the pleadings and proof, and that the court found for the plaintiff, Gale Stockton. Custody of Katrina, then eighteen months old, was awarded to her father.

On September 2, 1964, Mrs. Guthary filed this motion to modify the custody provisions of the original decree, alleging in substance that since the original order was entered she had remarried and established a home, and could now care for and maintain her child; that since March 8, 1963, the father had been convicted of a felony, had served a sentence in the Arkansas State Penitentiary, and was unfit to have custody of the child; and finally, that Katrina had never actually been in her father’s custody, but had been with his parents. The motion concluded with the usual allegation that a change of custody would be in the child’s best interest. The father’s responsive pleading admitted formal matters but denied everything else, and set up affirmatively that Mrs. Guthary was morally unfit to have custody of the child, that she had no interest in the child, and had failed to provide any care for the child since the divorce. Mr. Stockton admitted that actual custody of the child had at all times been in the paternal grandparents.

On April 21, 1965, the trial court heard this case. Briefly, the evidence was that Katrina had been in the home of Mr. and Mrs. G. B. Stockton, the grandparents, since February 1963. The grandparents lived on a 40-acre farm three miles southeast of Purdy, Missouri. The grandfather was 59 years old, the grandmother 56. Mr. G. B. Stockton was using the land he owned, which included another 40-acre tract, for milk cows. He had nine cows, and also did “upholstery work.” The grandparents have a four-room house on their farm which they and Katrina occupy. There is no evidence about the physical environment in which they live nor their financial circumstances, and very little concerning their health. It was the grandparents’ testimony, supported by several neighbors, that Katrina is happy, healthy and well cared for. When they were asked about having had actual custody of the child, the grandfather answered, “Well, he [the father] didn’t want to take her away. He said that he was going to leave her there with us.” The grandmother testified the child’s father had said “ * * * he wanted to leave her there because we were attached to her and took good care of her.” The record also indicates that Katrina has become strongly attached to her grandmother and calls her “Mommy” and “Grandma” interchangeably.

Mrs. Guthary, the child’s mother, testified that she was 21 years old on March 8, 1965, and that since her divorce she had married Harold Guthary, her present husband. At the time the motion to modify was filed, she and Mr. Guthary lived at Cassville, Missouri, but by trial time they had established a home at Fayetteville, Arkansas, and intended to remain there. Mr. Guthary was employed by a milk company and earned “about $300.00 a month.” Mrs. Guthary and her husband lived in a rented duplex, but owned their own furniture. They were the parents of a child, referred to simply as a “baby 4½ months old.” Mrs. Guthary testified that when she lived in Missouri she had visited Katrina at the grandparents’ home on an average of once a month and occasionally more often. Mrs. Guthary explained her inability to take Katrina earlier by stating that when she was divorced she was only eighteen, was unemployed, and had no place to take her child.

Mr. Harold Guthary, the mother’s present husband, testified that he and his wife were married June 29, 1963. Mr. Guthary was 24 years old, able-bodied and willing to work. He estimated his monthly earnings to be $280.00 to $300.00 per month. He was willing to take Katrina into his own home and support her, saying that he “* * * would treat her as if she was may own.”

Gale Stockton, Katrina’s father, was present at this hearing but did not testify. Through the interrogation of others, and by documentary evidence, it was established that in March 1964 he had been convicted of two felonies involving fraudulent checks in Arkansas, and had served a term in the penitentiary. Mr. Stockton no longer resided with the grandparents, but had remarried and had a home of his own near Fairview, Missouri. He had made no effort to remove Katrina to his new home, but his mother testified that occasionally he and his present wife “ * * * come out there [to the grandparents’ farm] to take her to church or- somewhere.” Since his release from the penitentiary, the father has received “30 days” “on a check” in Barry County, but his present wife “paid him out.” Gale and his present father-in-law now “work in the sawmill.” As indicated, Gale has said he intends, if awarded custody, to leave the child with his parents.

One or two more specific matters were developed and should be mentioned. In support of his allegation that Mrs. Guthary was unfit to have custody of the child, Mr. Gale Stockton produced a witness who had been the proprietor of a rooming house where Mr. Guthary lived on May 18, 1963, and for sometime thereafter. This witness testified that Mr. and Mrs. Guthary lived together in one of her apartments in Monett before June 29, 1963, but told her they were married. Both Mrs. Guthary and her present husband vigorously denied that their pre-marital relation had been improper. Mr. Guthary stated that he met his present wife “sometime around the first of the year” in 1963, and that because he worked at night Mrs. Guthary was, as their courtship continued, at his apartment “a big part of the time during the day,” and “ * * * she would come over * * and fix supper and we would eat supper and watch TV sometimes for a while, and then I would leave and go to work.” Mrs. Guthary testified that during the period involved she had actually been living with her parents at Exeter, Missouri.

The appellant also undertook to show that Mrs. Guthary had actually shown very little interest in Katrina while she was with the grandparents. The grandfather testified that Mrs. Guthary “at the first * * * came around pretty good,” but “she got to where her visits were a little farther apart * * * and this last year she just made it three or four times, if that many.” He added, however, that “sometime just before Christmas or around the first of the year” Mrs. Guthary had come to see Katrina several times, and “came back two or three times the next week” and he had told Mrs. Guthary “she would have to cut down.” Mrs. Guthary’s testimony was, in effect, that although the grandparents had not prevented her from visiting Katrina, they had discouraged her. Her testimony was that “until we moved to Arkansas” she had gone regularly to see her child “every two weeks or once a month or something like that.” This is far from being a complete recitation of all the evidence, but it indicates the kind of situation we have before us.

Both parties have briefed a number of points, of necessity comparing the situation at hand with adjudicated cases, but we consider it unnecessary and probably imprudent to take up and consider each of the separate points individually. The welfare of the child is the prime consideration in any adjudication of its custody, and the rights and claims of the contending parties, even parents, are matters of secondary importance. In re Shepler, Mo., 372 S.W.2d 87, 90-91 [2]; In re Duncan, Mo., 365 S.W.2d 567, 571, 4 A.L.R.3d 1270, 1275; Ex parte De Castro, 238 Mo.App. 1011, 1015, 190 S.W.2d 949, 951 [1] [2]. Beyond that, however, the precedents establish no fixed and unyielding principles; taken as stating rules of law, the cases dealing with child custody defy orderly comparison and analysis, and we will attempt none here. Each case must be evaluated and resolved on its peculiar facts, rather than in terms of academic rules. With this in mind, we have set to one side certain technical considerations. It is true, as the respondent suggests, that the grandparents are actually strangers to the action, and that they have neither any right to litigate a motion to modify a decree of divorce, nor any enforceable rights in Katrina’s custody by reason of their past actual custody. In re Duncan, supra, 365 S.W.2d at 570[1], 4 A.L.R.3d at 1274; Wakefield v. Thorp, 365 Mo. 415, 425, 283 S.W.2d 467, 473 [13]; Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841, 844-845. If one divorced parent has been awarded custody, but by consent of that parent or through the force of circumstances the child is in the actual custody of third parties, and the other parent seeks to recover custody, then the contest should be litigated in habeas corpus or by the appointment of an amicus curiae to represent the child’s interest, In re Duncan, supra, 365 S.W.2d at 570-571[2] [3, 4], 4 A.L.R.3d at 1274-1275, and we do not mean to rule otherwise. All the same, our Supreme Court has made it quite clear that if the parent to whom custody was originally granted is unavailable or uninterested and does not oppose the motion to modify, then the trial court should inquire, rather than rely on presumptions, if the custodial fitness of the surviving or remaining interested parent is questionable. In re Shepler, supra, 372 S.W.2d at 90-91 [2]; In re Duncan, supra, 365 S.W.2d at 570-571[2] [3, 4], 4 A.L.R.3d at 1274-1275. Undoubtedly the trial court may place a child with third parties if its welfare is best served by doing so, LeClaire v. LeClaire, Mo.App., 352 S.W.2d 379, 382[4]; Testerman v. Frederich, Mo.App., 323 S.W.2d 522, 525-526[2]; McCoy v. Briegel, Mo.App., 305 S.W.2d 29, 38-39[18, 19]; Shepard v. Shepard, Mo.App., 194 S.W.2d 319, 328[12, 13], and without approving or impliedly sanctioning the intrusion of third parties in actions to modify divorce decrees, we will consider the case on its merits.

There are many factors to be considered in determining what award of custody will best serve a child’s interest. We would not undertake to enumerate or assign relative importance to the considerations which are to be taken into account, although some courts and commentators have done so. Though the question of child custody should not be determined solely upon technical presumptions of parental fitness, In re Shepler, supra, 372 S.W.2d at 90-92 [2] [3], still our courts have always considered that a natural parent’s custody best serves the child’s interest unless it appears that the parent is unfit, incompetent or unable to care for the child, of unless the welfare of the child manifestly calls for a different disposition under the circumstances shown. B.S.P. v. W.W.W., Mo.App., 411 S.W.2d 834, 837 [4]; Yount v. Yount, Mo.App., 366 S.W.2d 744, 749 [9]; R_ v. E_, Mo.App., 364 S.W, 2d 821, 829 [6]; I_ v. B_, Mo.App., 305 S.W.2d 713, 719[4], and cases collected, marginally note 5. Further, it has been traditional experience that the interest of a. very young child is best served by being in its mother’s custody, provided she is able to care for the child and provided her character and conduct is such that she is a suitable custodian. R_ v. E_, supra, 364 S.W.2d at 829[6]. In this case, these considerations weigh heavily in favor of an award of custody to Mrs. Guthary.

To be sure, certain factors of the case militate against such an award. The moral fitness of the person seeking custody of a child is a proper matter for consideration, M_ v. M_, Mo.App., 313 S.W.2d 209, 212[1]; Hurley v. Hurley, Mo.App., 284 S.W.2d 72, 74[4]; 2 Nelson, Divorce and Annulment, Section 15.04, pp. 169-170, and the appellant’s evidence, taken as true, indicates that Mrs. Guthary behaved most imprudently, if not downright adulterously, during her courtship with her present husband. The appellant also produced some evidence indicating that on occasion, before her divorce, Mrs. Guthary was a somewhat inattentive and self-indulgent mother. Assuming, however, that Mrs. Guthary was guilty of adultery before her present marriage, she would not be disqualified as custodian of her child unless her character and conduct was such that her child would probably be subject to substantial immoral and debasing influences in her mother’s home, Yount v. Yount, supra, 366 S.W.2d at 748-749[7] [8], and no such evidence appears here. Also to be considered is the fact that Mrs. Guthary intends to take her child to Arkansas; it has often been said to be “against the policy of the law” to award custody in such a way as to place the child permanently out of the state. I_ v. B_, supra, 305 S.W.2d at 719[6]. Nevertheless,, this is not an insurmountable obstacle when such an award appears to be in the child’s best interest. Good v. Good, Mo.App., 384 S.W.2d 98, 99-100. In addition, some serious consideration must be given to the fact that Katrina is now living in the only home she has ever known, with adults to whom she is bound by strong ties of affection and basic trust. The child should be spared, if possible, the emotional trauma of sudden and final separation from this environment.

All this discussion merely indicates the dilemma inherent in this kind of ■case. It serves no useful purpose to state that we feel a heavy sense of responsibility for the welfare of the child, although we ■do, nor to say that we have considered the whole evidence carefully, though we have. The picture presented by the whole evidence is somewhat unsatisfactory because we have ■no clear idea of the day-to-day environment in which the child now lives or will live if she goes with Mrs. Guthary. Taking the child from her grandparents permanently at this time involves uprooting her from the •only home and parents she has ever known and, to some practical extent, placing her beyond the court’s jurisdiction. On the other hand, when a contest for custody involves a choice between a natural parent and third parties, our courts have been unwilling, as we say, to discard their traditional belief that the best interest of a very young child is served by being placed in the custody of the natural parent, unless the natural parent is a wholly unsuitable custodian. Nothing in the record before us indicates that Mrs. Guthary is an unsuitable custodian of her child. In addition, many intangible factors go into a trial court’s decision in a child custody case— matters which the cold record before us does not present. It has repeatedly been said that in cases of this kind the appellate court •should defer to the findings of the trial ■court unless it is firmly convinced that the welfare of the child requires some other disposition. C_ v. B_, Mo.App., 358 S.W.2d 454, 461 [4]; I_ v. B_, supra, 305 S.W.2d at 720-721[8, 9]. We cannot say that the trial court’s disposition of Katrina’s custody is either in conflict with the preponderance of the evidence or an abuse of discretion. The judgment is therefore affirmed.

STONE, P. J., and TITUS, J., concur.

      . See, e. g., Lewis & Tockman, The Status of the Missouri Law in the Troubled Area of Child Custody, 27 Mo.L.Rev. 406, 419-453 (1962); Comment, Alternatives to “Parental Right” in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 151, 152-160 (1963).

      . E. g., see Nye v. Nye, 343 Ill.App. 477, 99 N.E.2d 574, 576-577 [5, 6] ; Ross v. Pick, 199 Md. 341, 86 A.2d 463; 2 Nelson, Divorce and Annulment, Sections 15.01 to 15.21, pp. 165-203 (2d ed. 1945); Comment, supra, 73 Yale L.J. 151.


source: Caselaw Access Project

author: STONE, Presiding Judge.

license: Public Domain

text:
    Ronald Kirk LAWSON, Plaintiff-Appellant, v. E. L. LAWSON, a sole trader d/b/a Farmers Feed and Supply Company, and Western Casualty and Surety Company, a corporation, Defendants-Respondents.
    No. 8615.
    Springfield Court of Appeals. Missouri.
    May 2, 1967.

      Frieze & Crandall, Carthage, for plaintiff-appellant.
    Edward G. Farmer, Jr., Joplin, for defendants-respondents.
   STONE, Presiding Judge.

In this proceeding under the Missouri Workmen’s Compensation Law [V.A.M.S. Chapter 287], claimant Ronald Kirk Lawson filed a claim for benefits on account of personal injuries said to have resulted from an accident on August 13, 1963, when he slipped and fell to the ground as he “was going over the side” of a truck which he and one Grimmett were loading with feed from a boxcar on railway tracks near the retail feed outlet in Carthage, Missouri, owned and operated by claimant’s father and alleged employer, E. L. Lawson, a sole trader doing business as Farmers Feed and Supply Company, whose liability under the Compensation Law was insured by Western Casualty and Surety Company. Claimant, then fifteen years ten months of age, was working during the summer vacation' between school terms. From the outset of this proceeding, the basic issue has been as to whether or not he was an “employee” of his father within the contemplation and meaning of the Compensation Law. Section 287.020(1). Upon hearing, the referee found that claimant was an “employee” and made an award of compensation and medical benefits. On the insurer’s application for review [Section 287.480], the Industrial Commission concluded that he was not an “employee” and accordingly entered a final award denying compensation. The final award having been affirmed upon claimant’s appeal to the Circuit Court of Jasper County, he brings the problem to us.

We extract the pertinent facts from the testimony of claimant and his father, the only two witnesses. Claimant resided with his parents on a farm west of Carthage; and, after the close of the 1962-63 school year, he worked on that farm with his paternal grandfather for about one and one-half months. When his older brother who had been working at the feed outlet entered military service during July 1963, claimant began to work there, although not every day. He agreed with employer’s-insurer’s counsel that “it was sometimes just two or three days a week, or three or four days a week” but added that he worked “anytime [my father] needed me.” “If we weren’t doing anything,” he “sometimes left [the feed outlet] in the middle of the afternoon.” Although readily acknowledging that “some weeks [claimant] didn’t work every day at the store,” the father insisted that “I didn’t excuse him very much . he did pretty well fill-in all the time; there wasn’t too many days he missed.”

The father “had no arrangement with [claimant] to pay him any wages,” paid no “regular compensation” to him, did not enter his name on any payroll record, and did not report him as an employee for the withholding of income or social security taxes or for the computation of premiums by Western Casualty, the father’s insurer. The father and claimant agreed that the only payments by the former to the latter were (in claimant’s words) “just my regular allowance,” the frequency and amount of those payments being indeterminable upon the record. However, the father stated that “he [claimant] did just about anything that we needed to do” — “he was active in mixing feeds and the delivery of feeds”; and, when asked “what kind of work” he did at the feed outlet, claimant said “everything” including the mixing and delivery of feed, loading products intocus-tomer’s vehicles, and unloading boxcars of grain. To the inquiry “who directed his [claimant’s] work,” the father replied, “I did.” According to the father, claimant “did similar or like work” to that done by two male employees, each of whom was paid $80 per week; and, after claimant’s accident, the father “replaced the boy [claimant]” with another male employee who was paid $70 per week.

The parties have briefed and discussed extensively the general rules applicable to appellate review in workmen’s compensation cases, and it may be well to dispose of that subject first. Since many of the cases cited in the briefs were decided prior to adoption of the Missouri Constitution of 1945, we note that Article V, Section 22, thereof worked a change in the scope of review and the effect to be attributed to findings of fact by the Industrial Commission [Shrock v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812, 814(2)], and that the cited constitutional provisions imposed upon reviewing courts the duty to determine whether the award of the Commission is “ ‘supported by competent and substantial evidence upon the whole record.’ ” Wood v. Wagner Electric Corp., 355 Mo. 670, 674, 197 S.W.2d 647, 649. See V.A.M.S. § 287.-490, subd. 1(4). This does not mean that either the circuit court or this court should substitute its own judgment on the evidence for that of the Commission; but it does authorize a reviewing court to set aside the findings and award of the Commission if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and award. Corp. v. Joplin Cement Co., Mo. (banc), 337 S.W.2d 252, 258(5); Conley v. Meyers, Mo., 304 S.W.2d 9, 10(2); Johnson v. Simpson Oil Co., Mo.App., 394 S.W.2d 91, 93(1).

Because this has been discussed in the briefs, we also observe that apparently the issue concerning instant claimant’s status as an employee vel non presents a question of law [Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 1007, 82 S.W.2d 909, 913 (7); Saxton v. St. Louis Stair Co., Mo. App., 410 S.W.2d 369, 375(4)], although this “ ‘seems academic rather than substantial’ ” in view of the present scope of appellate review. Shrock, supra, 358 S.W.2d at 814. Furthermore where, as in the case at bar, there was no material conflict in, or dispute concerning, the facts bearing upon claimant’s status as an employee vel non, the resolution of that issue became a question of law and the Commission’s determination thereof is not binding on the reviewing court. Corp, supra, 337 S.W.2d at 258(7), and cases there cited.

Of course, the Industrial Commission, or for that matter any fact-finding administrative agency, passes upon the credibility of witnesses and may decide a claim solely upon a finding of lack of credibility of uncontradicted and unimpeached testimony. Scott v. Wheelock Bros., 357 Mo. 480, 484, 209 S.W.2d 149, 151(3); Smith v. Smith, 361 Mo. 894, 901, 237 S.W.2d 84, 89(5); Arnold v. Wigdor Furniture Co., Mo., 281 S.W.2d 789, 796. See Norman v. State Department of Public Health and Welfare, Mo.App., 283 S.W.2d 143, 146(4). But there is no indication that the Commission’s finding as to instant claimant’s status at the time of accident was based on disbelief of the testimony of either claimant or his father. Cf. Sanderson v. Producers Commission Ass’n., 360 Mo. 571, 578, 229 S.W.2d 563, 567. Rather, it appears that the Commission simply regarded such testimony as insufficient to justify or permit a finding that claimant was an “employee” within the meaning of the statutory definition of that term, to wit, “[t]he word ‘employee’ as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election . . . .” V.A.M.S. § 287.020(1).

A distinguished writer in this field opines that “[t]he definition of the term ‘employee’ . . . has probably produced more reported cases than any definition of status in the modern history of law” [1A Larson, Workmen’s Compensation Law, § 43.10, p. 623], and certainly Missouri courts have had their fair share of this category of cases. However, our task is simplified to some extent by virtue of the fact that opposing counsel and the Industrial Commission (although disagreeing as to whether the case supports instant claimant’s position) alike recognize the significance and importance of the same Missouri case, namely, Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, that being the first and principal case cited in both briefs on the issue as to claimant’s status and the only case discussed in the six-page opinion (captioned “Additional Findings of Fact and Conclusions of Law”) handed down by the Industrial Commission. Hence, we examine that case in some detail.

Defendant Harker, the owner of several thousand acres of land who desired to have the timber thereon cut and sawed into merchantable lumber, purchased and placed thereon five sawmills ready for use and then contracted with five individuals, each of whom was to operate one of the sawmills at his own expense as an independent contractor, hiring and paying his own help. One of those independent contractors was William Pruitt, who employed three men at $2 per day and, with the help of his three sons, one of whom was claimant Ronie Pruitt, then sixteen years of age, operated a S'wmill. Claimant Ronie was “working for his father on account of that relation and not under any contract of employment, express or implied. His father was entitled to his services without compensation, and none was promised. [Ronie] was not working for wages, but was living with and being supported by his father .... He was, however, doing the work of an adult, for which [the father] was paying others $2 per day” and defendant knew, when she contracted with the father to operate the sawmill, that Ronie “would make a hand for his father at this work.” 328 Mo. at 1209, 43 S.W.2d at 772.

When, after sustaining an injury at the sawmill, claimant Ronie sought to recover benefits under the Compensation Law from defendant Harker, her first contention was that, since she had only three persons in her direct employ or on her payroll, she was a minor employer and not subject to the Law. Sections 3302(b) and 3303, RSMo 1929; now V.A.M.S. §§ 287.050(2) and 287.090, subd. 1(4), as amended Laws 1965, p. 399. However, the court pointed to Section 3308 (a), RSMo 1929 [now V.A.M.S. § 287.040 (1)], providing that “[a]ny person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.” (All emphasis herein is ours.) And defendant Harker was held to have been, for the purposes of the Compensation Law, (1) a major employer [Sec. 3302(a), RSMo 1929; now V.A.M.S. § 287.050(1)] “by counting these operators of the sawmills and their employees as being employees of the defendant” [328 Mo. at 1206, 43 S.W.2d at 771] and (2) the statutory employer of claimant Ronie, “although [he] was employed by William Pruitt [his father], an independent contractor,” since “defendant, as the one having the work done on her premises, [was] liable as employer to the employees of the contractor, though an independent one.” 328 Mo. at 1206, 43 S.W.2d at 771.

Defendant Harker further contended that claimant Ronie “was not an employee even of William Pruitt [his father], one of the independent contractors . . . and consequently was not directly or indirectly an employee of the defendant.” 328 Mo. at 1209, 43 S.W.2d at 772. Answering, the court said: “We may readily agree that under the general law the relation of employer and employee did not exist between William Pruitt and his minor son . . . ; that no contract of employment, express or implied, existed, and that William Pruitt did not in fact and was under no legal obligation to pay plaintiff for his work . . This case does not, however, involve the question of liability for wages between [claimant Ronie] and his father. The act . . . is, as its name indicates, a workmen’s compensation act rather than an employees’ compensation act. That [claimant Ronie] was a workman engaged in work covered by this act, we think, is clear, whether the strict relationship of employer and employee existed or not.” After quoting the statutory definition of “employee” [V.A.M.S. § 287.020(1)], the court continued: “The term 'employee’ is thus given a broad meaning and includes every person ‘in the service of any employer’ and is not confined to those ‘under any contract of hire,’ express or implied, but also includes those performing service by ‘appointment or election’ .... ‘The word “employee” shall also include all minors who work for an employer, whether or not such minors are employed in violation of law, and all such minors are hereby made of full age for all purposes under, in connection with, or arising out of this chapter’ . . . . In cases arising under the Compensation Act, minors are deemed emancipated by operation of law.” Finally, the court emphasized “[t]his act should be liberally construed as to the persons to be benefited.” 328 Mo. at 1209-1210, 43 S.W.2d at 772-773.

To us, it is clear that the very language of the governing statute [now V.A.M.S. § 287.040(1)] would not have permitted imposition of liability upon defendant Harker as statutory employer in Pruitt, supra, without a finding that, for the purposes of the Compensation Law, claimant Ronie was an employee of his father, and it is no less plain from the opinion that the court did find and declare that claimant Ronie was such employee. However, we need not rely upon our own judgment as to the substance and import of the holding in Pruitt, supra, for less than five years later the same division of our Supreme Court epitomized and explained that holding in Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 1005, 82 S.W.2d 909, 911-912: “In that case [Pruitt, supra] the minor son of an independent contractor was injured while working gratis for his father in the latter’s enterprise. This court held that the minor was an employee of the father by appointment, engaged in carrying on the father’s independent work then in progress, and therefore in the father’s service as a workman and entitled to compensation. The status of employee and what constitutes the same was the primary question under consideration. It is apparent that in determining such status any one making the appointment and receiving the services necessarily stands in the correlative relation of employer. No interpretation was given, or necessary, of the word ‘service’ used, for that is a term having much the same legal connotations as the term ‘employee.’ The son was held to be within the purview of the act because he was a workman of his father in like manner as his adult coworkmen. So the essential terms of the act were not broadened by construction, but were harmonized, and the word workman was held to he synonymous with the term ‘employee/ and ‘service’ was marked as the distinguishing feature of each alike.”

Furthermore, the court stated in Maltz, supra, 336 Mo. at 1006, 82 S.W.2d at 912(2), that “the framers of the act had in mind the law of master and servant and the relationship, duties, rights, and limitations arising out of the same,” and that “[t]he relationship is bottomed upon services . . . to be rendered by the servant—whether by that name, or one synonymous, as workman or employee . . . —to the other, whether as master or employer, and is peculiarly characterized by right of control vested in the latter.” In determining whether the master-servant relationship exists in a given situation, the right of control is the “test often applied” [Hammonds v. Haven, Mo., 280 S.W.2d 814, 818(6), 53 A.L.R.2d 992] and the element “most frequently referred to” [Dean v. Young, Mo., 396 S.W.2d 549, 553] and “really essential” to the relationship. 35 Am.Jur., Master and Servant, § 3, p. 445. And, as we have seen, the employer-employee relationship contemplated by the Workmen’s Compensation Law likewise “is peculiarly characterized by right of control vested in the [employer].” Maltz, supra, and cases cited marginally in note 7. See also Nabors v. United Realty Co., Mo.App., 298 S.W.2d 474, 477(2); 1A Larson, Workmen’s Compensation Law, § 43.10, 1. c. 624. In short, it is said that only two facts are necessary to an employer-employee relationship under the Compensation Law, namely, “one, that the claimant was in the service of the [alleged employer], and, two, that said services were controllable” by the latter. Saxton, supra, 410 S.W.2d at 375.

We are mindful that, in the case at bar, the alleged employer (the father) paid no “wages” or “regular compensation” to claimant (his son) and that the latter received only his “regular allowance.” But even as the master-servant relationship may exist notwithstanding the fact that the servant neither expects nor is entitled to receive any compensation [Lajoie v. Rossi, 225 Mo.App. 651, 654-655, 37 S.W.2d 684, 687 (7); Kiser v. Suppe, 133 Mo.App. 19, 25, 112 S.W. 1005, 1007; Jones v. Goodson, 10 Cir., 121 F.2d 176, 179(3); 56 C.J.S. Master and Servant § 2e, 1. c. 39], so payment of wages or compensation, although usually incident to an employer-employee relationship, is not always an essential element thereof. Pruitt, supra, 328 Mo. at 1209-1210, 43 S.W.2d at 772-773; Schultz v. Moerschel Products Co., Mo.App., 142 S.W.2d 106, 109. See Nabors, supra, 298 S.W.2d at 476-478.

All of this is not to suggest that, in the performance of every trivial or occasional act of assistance by a minor child in connection with a parent’s business operation, such child becomes an “employee” within the contemplation and coverage of the Compensation Law. But the uncontra-dicted and unimpeached testimony in this case was to the effect that, although instant claimant did not work every day, he nevertheless made a hand as a workman in his father’s business so that, after his accident, he was “replaced” by another male workman who was paid $70 per week; that claimant was “in the service of” his father [V.A.M.S. § 287.020(1)], i. e., he was engaged in the “performance of labor for the [father’s] benefit” [Langley v. Imperial Coal Co., 234 Mo.App. 1087, 1092, 138 S.W.2d 696, 698; Webster’s New International Dictionary (2nd Ed.), p. 2288]; and that such service was both controllable and controlled by the father. With no indication of disbelief of that testimony by the fact-finding agency, the Commission’s conclusion that claimant was not, at the time of his accident, an “employee” within the contemplation and coverage of the Compensation Law is not supported by competent and substantial evidence upon the whole record and cannot stand.

The only Missouri case (other than Pruitt, supra) cited to this point in employer’s-insurer’s brief is Knupp v. Potashnick Truck Service, Mo.App., 135 S.W.2d 1084, rejecting a claim by a so-called student truck driver, which is offered by counsel as relevant authority here on the unjustified and mistaken premise (so we think) that “viewing the evidence in its most favorable light for the claimant, the most that could be said would be that claimant was an apprentice or student employee in his father’s business.” Of the five foreign cases cited in employer’s-insurer’s brief, four patently could have no persuasive force here. In the fifth case [Caldwell v. Caldwell, La.App., 55 So.2d 258 (1951)], there was a serious question as to the credibility of the minor claimant and his father, the alleged employer. 55 So.2d at 265-267. On the other hand, instant claimant’s brief directs us to Harry Crow and Son, Inc. v. Industrial Commission, 18 Wis.2d 436, 118 N.W.2d 841 (1963), which is in complete accord with the holding of our Supreme Court in Pruitt, supra, and with our holding in this case. However, cases from other jurisdictions usually are of scant value in proceedings under our Compensation Law, because of differences in statutory provisions and judicial interpretations thereof [Baldwin v. Gianladis, Mo.App., 159 S.W.2d 706, 708], and certainly there is, in the case at bar, no need to seek or rely upon foreign authority.

In their effort to sustain the final award denying compensation, employer’s-insurer’s counsel present the further “point” that-“the Industrial Commission might very well have based its award upon the additional reason that there was no convincing medical evidence that the fall relied on by [claimant] . . . was actually the cause of the disability for which compensation was claimed.” Claimant sought, and the referee awarded, compensation for permanent partial disability of the right leg at the hip level. The medical evidence showed that such permanent partial disability as claimant might have in that member was the result of “a slipped caputal femoral epiphysis” or, in more understandable terms, a slipping of “the growth center of the head of the femur.” Employer’s-insurer’s theory is that this occurred when, as claimant was walking on crutches three days after application of a cast immobilizing his right knee, he lost his balance and fell because (as claimant explained) “I got my crutches caught in some kind of hole or something.”

For the purposes of this opinion, it will suffice to say that, in our view of the evidence, different inferences reasonably might have been drawn and different conclusions fairly might have been formed on this disputed issue of fact as to whether claimant’s “slipped caputal femoral epiphy-sis” was caused by the accident of August 13 or by claimant’s subsequent fall on crutches. But regardless of whether the Commission “might very well” have found that the accident of August 13 was not “actually the cause of the disability for which compensation was claimed,” it neither reached nor ruled this disputed issue of fact but denied compensation on the sole ground that claimant was not an “employee” of his father — a conclusion predicated (as the Commission’s written opinion discloses) upon a misconception of the holding in Pruitt, supra. In these circumstances, we have no authority to make an initial finding on this disputed issue of fact [V.A.M.S. § 287.490; State ex rel. Randall v. Shain, 341 Mo. 201, 108 S.W.2d 122, 128(7, 8); Burgstrand v. Crowe Coal Co., 333 Mo. 43, 62 S.W.2d 406, 409(9); Teague v. Laclede-Christy Clay Products Co., 331 Mo. 147, 52 S.W.2d 880, 882(1)] and no right to declare as a matter of law that there was no causal connection between the accident of August 13 and claimant’s alleged permanent partial disability. Meintz v. Arthur Morgan Trucking Co., 345 Mo. 251, 258, 132 S.W.2d 1010, 1014; O’Neil v. Fred Evens Motor Sales Co., Mo.App., 160 S.W.2d 775, 779 (9); Schmidt v. Adams & Sons Grocer Co., Mo.App., 377 S.W.2d 564, 566(2).

Furthermore, employer’s-insurer’s point under discussion completely ignores the obtruding question as to whether or not such disability as may have resulted from claimant’s subsequent fall on crutches was a compensable consequence of the accident of August 13. “An injury following a second incident or accident may . . . be the legitimate consequence of the first accident if it results from or is contributed to by a condition brought about by the first accident. Whether this is so is also a question of fact for the Commission, to be determined from all the facts and circumstances in the case.” Oertel v. John D. Streett & Co., Mo.App., 285 S.W.2d 87, 97(2). Otherwise stated, “‘injuries which follow as legitimate consequences of the original accident are compensable, and such accident need not have been the sole or direct cause of the condition complained of, it being sufficient if it is an efficient, exciting, superinducing, concurring, or contributing cause; thus it is immaterial whether or not a disability results directly from the injury or from a condition resulting from the injury.’ ” Manley v. American Packing Co., 363 Mo. 744, 749, 253 S.W.2d 165, 169(3). See Wilson v. Emery Bird Thayer Co., Mo.App., 403 S.W.2d 953, 958(7, 8); 1 Larson, Workmen’s Compensation Law, §§ 13.00 to 13.12, inch, pp. 192.59 to 192.77, inch

Of course, upon rehearing the credibility of the witnesses and the weight of the evidence will be for the Commission [Francis v. Sam Miller Motors, Mo., 282 S.W.2d 5, 12(3); Yancey v. Egyptian Tie & Timber Co., Mo.App., 95 S.W.2d 1230, 1231(2)], and nothing herein should be misconstrued as suggesting what the Commission’s findings and award upon rehearing should be. Smith, supra, 361 Mo. at 898, 901, 237 S.W.2d at 87, 89(5); State ex rel. Melbourne Hotel Co. v. Hostetter, 344 Mo. 472, 126 S.W.2d 1189, 1192(3); Williams v. Laclede-Christy Clay Products Co., Mo. App., 227 S.W.2d 507, 509(1). However, we are in no doubt but that, upon the record before us, the final award of the Industrial Commission denying compensation and the judgment of the Circuit Court of Jasper County affirming that award should be set aside and for naught held, and that the cause should be remanded to said circuit court with directions to remand it to the Industrial Commission for further proceedings not inconsistent with this opinion. Accordingly, it is so ordered.

HOGAN and TITUS, JJ., concur.

      . This has been reiterated in several Missouri cases. See Patton v. Patton, Mo., 308 S.W.23 739, 746; Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 718, 142 S.W.2d 866, 870(6); Chambers v. Macon Wholesale Grocer Co., 334 Mo. 1215, 1225, 70 S.W.23 884, 888; Schultz v. Moerschel Products Co., Mo.App., 142 S.W.23 106, 109; Priede v. George Lytle, Inc., 235 Mo.App. 64, 71, 127 S.W.2d 40, 44.

      . V.A.M.S. § 287.020(1); Sommers v. Hartford Accident & Ind. Co., Mo.App., 277 S.W.2d 645, 649(7).

      . To the same effect, see Pratt v. Reed & Brown Hauling Co., Mo.App., 361 S.W.2d 57, 62; Stout v. Sterling Aluminum Products Co., Mo.App., 213 S.W.2d 244, 246(2); Baldwin v. Gianladis, Mo.App., 159 S.W.2d 706, 708(4); 99 C.J.S. Workmen’s Compensation § 60b, p. 265. More generally, see V.A.M.S. § 287.800, as amended Laws 1965, p. 412; Patton, supra note 1, 308 S.W.2d at 746; Thompson v. Otis Elevator Co., Mo.App., 324 S.W.2d 755, 758(4); Friede, supra note 1, 235 Mo.App. at 73, 127 S.W.2d at 45 (5).

      .“Appointment” is defined as “[a] directing or ordaining,” and “ [designation, command, order, direction” are listed among its synonyms. Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 977, 162 S.W.2d 628, 632 (a workmen’s compensation proceeding); Webster’s New International Dictionary (2nd ed.), p. 132.

      . “Service” has been defined as the “performance of labor for the benefit of another.” Langley v. Imperial Coal Co., 234 Mo.App. 1087, 1092, 138 S.W.2d 696, 698 (a workmen’s compensation proceeding) ; Webster’s New International Dictionary (2nd Ed.), p. 2288. See Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918, 922-923(11).

      . For other judicial statements concerning the holding in Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, see Patton, supra note 1, 308 S.W.2d at 746; Ellegood, supra note 4, 236 Mo.App. at 976-977, 162 S.W.2d at 632; Schultz, supra note 1, 142 S.W.2d at 109; Friede, supra note 1, 236 Mo.App. at 71, 127 S.W.2d at 44.

      .These statements are quoted with approval in Rutherford, supra note 5, 336 Mo. at 1179, 82 S.W.2d at 922-923; Soars, supra note 1, 346 Mo. at 718, 142 S.W.2d at 870; Yoss v. Merchants Dairy Co., Mo.App., 373 S.W.2d 662, 665.

      . In Supornick v. Supornick, 175 Minn. 579, 222 N.W. 275, 277(2) (1928), a minor volunteering brief and uncompensated service was not an “employee” under a Minnesota statute specifically providing that “only those are employees who ‘perform a service for hire’ and to whom some ‘employer directly pays wages.’ ” One of the stated reasons for denial of benefits under workmen’s compensation acts in three eases [Aetna Life Ins. Co. v. Industrial Accident Commission, 175 Cal. 91, 165 P. 15, L.R.A.1918F, 194 (1917); Holt County v. Mullen, 126 Neb. 102, 252 N.W. 799(3) (1934); Estes v. Estes, 15 N.J.Misc. 305, 191 A. 107(2, 3) (1937)] was the fact that, in each instance, claimant was an un-emancipated minor. In Missouri, minors are emancipated by statute “for all purposes under, in connection with, or arising out of” the Compensation Law. V.AM.S. § 287.020(1).


text:
    Ted William FARMER, Who Sues by His Mother and next Friend, Elizabeth Farmer, Appellant, v. George W. PEARL, Sr., and George W. Pearl, Jr., Appellees.
    Court of Appeals of Kentucky.
    May 12, 1967.

      Raymond C. Stephenson, Henry V. B. Denzer, Louisville, for appellant.
    James M. Graves and William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees.
   JAMES C. CARTER, Jr., Special Commissioner.

This is an action for injuries sustained by the appellant, a six-year-old child, when he darted from in front of a parked vehicle and collided with the side of an automobile driven by the appellee. The lower court entered judgment upon a jury verdict for the appellee and this appeal is prosecuted from that judgment.

The accident happened in front of appellant’s home on Kennedy Road in Jefferson County, Kentucky. Kennedy Road is a rather narrow residential street one block long and extending from east to west. The west end enters Dixie Highway in the form of a “T” intersection. Houses line both sides of the street which is about 20 to 22 feet wide. There are no sidewalks. Kennedy Road can be entered at the southeast end from Loney Lane, which runs north and south.

On Sunday morning, March 17, 1963, the date of the accident, the appellee was driving a 1962 Ford owned by his father. Other occupants of the car were his mother, his brother, and his sister. They were en-route to church.

The appellee proceeded down Loney Lane and made a left turn onto Kennedy. As he entered Kennedy, the appellee observed some children playing softball in the street about a quarter of the way up the block. His speed at that time was about 20 miles per hour. The kids waved and walked to the shoulder of the road. Appellee’s estimated speed as he passed these children was 15 to 20 miles per hour.

The appellant’s home is located about 25 yards east of Dixie Highway and some 500 to 600 feet west of the area in which the children were playing ball.

In front of the appellant’s home a car was parked on the south, or left, side of the street with two wheels on the shoulder and two wheels on the pavement. It was headed in a westerly direction, i.e., the same direction in which the appellee was traveling.

As appellee passed this parked automobile he was traveling on the right-hand side of the street and was beginning to slow down since he was approaching the Dixie Highway intersection. His speed was 15 miles per hour at the most.

Suddenly the appellant, a small child six years of age, ran from in front of the parked car and into the side of appellee’s car. The child darted out from no more than one or two feet in front of the parked car and the appellee testified that since his view of the child was totally obscured by the parked car, he did not see him until the moment of impact. The child struck the left side of the car near the front door hinge, about six feet from the front of the automobile.

The appellee applied his brakes immediately and came to a stop on the right-hand side of the road within 15 to 20 feet.

In addition to the appellee, witnesses to the accident included his mother, Mrs. George W. Pearl, Sr., his brother James and his sister Agatha Ann. Mrs. Pearl, who was riding in the rear seat behind the appellee, did not see the child at any time until the instant of impact. James, who was riding in the front seat, and Agatha Ann, who was seated to his rear, both saw the child playing in the front yard some distance away, but neither saw him emerge from in front of the parked car and neither saw the impact.

There is some question raised in the briefs as to whether the appellee was entitled to a directed verdict and to a sudden appearance instruction which was not given. However, since the jury returned a verdict for the appellee it is not necessary for us to resolve these issues.

The jury was instructed that it was the duty of the appellee to maintain a proper lookout and that if he failed to do so, he was negligent. No contributory negligence instruction was given, and the jury was told that if it found the appellee negligent, it would find for the appellant. The jury found for the appellee. In other words, the jury, after hearing all the evidence, found the appellee free from negligence. The judgment entered upon that verdict should be allowed to stand.

The appellant contends that the lower court committed reversible error in instructing the jury on the definition of “ordinary care.”

The appellant tendered the following ordinary care instruction:

“In these instructions the phrase ‘ordinary care,’ as applied to the defendant driver, means that degree of care usually exercised by an ordinarily careful and prudent person to avoid injury to a child of the size and apparent age of Teddy Farmer, under circumstances like or similar to those in this case. Negligence is the failure to exercise ordinary care.”

The Court refused this instruction and instead gave the instruction set out below:

“Negligence” is the failure to exercise ordinary care. “Ordinary care,” as used in these instructions, is that degree of care usually exercised by ordinarily careful, prudent persons under like or similar circumstances to those shown in this case.

We are aware that the tendered instruction insofar as it relates to the size and apparent age of the child has been approved by this Court in several cases. See 1 Stanley, Instructions to Juries, Sec. 109(5) 1957. However, even though such an instruction is proper, it does not necessarily follow that it is mandatory or that the refusal to give it is reversible error.

The size and apparent age of the child is merely one of the like or similar circumstances to be considered by the jury. The tender age of the appellant was stressed repeatedly throughout the trial, as well as in the opening and closing statements of counsel. It is not necessary to overload the instructions with reference to all the circumstances. The jury had heard the evidence and it knew what the circumstances were. It is axiomatic that a higher degree of care is required of one handling a rifle than of one handling a wooden cane, but the jury is not necessarily so instructed. The definition of ordinary care in negligence cases of this nature as “that degree of care usually exercised by ordinarily careful, prudent persons under like or similar circumstances” accurately informs the jury of the law.

We call attention to Liberty National Bank & Trust Co. v. Raines, Ky., 416 S.W.2d 719 (this day decided), in which the same holding is made.

Appellant also contends that the trial court prejudicially limited his voir dire examination of the jury panel.

A trial court has wide discretion in permitting or limiting the voir dire examination of prospective jurors in civil cases. Brumfield v. Consolidated Coach Corp., 240 Ky. 1, 40 S.W.2d 356 (1931). The record in the case at bar does not show that the trial court abused its discretion and certainly does not reveal reversible error.

Rule 1804 of the Jefferson Circuit Court Civil Rules provides that the court shall conduct its own voir dire examination of the jury panel by propounding eleven enumerated questions.

The voir dire by the court was extensive, and it not only complied with but exceeded the requirements of Rule 1804. When appellant’s counsel rose to conduct his voir dire he prefaced his remarks with the words: “As His Honor has stated * * The trial court, in a proper exercise of its discretion, asked counsel not to repeat what the court had already told the jury.

Next, appellant’s counsel made an effort to anticipate the court’s instructions, and he was properly restrained by the court.

The court then prevented counsel from asking the following question, “Have any of you read articles, periodicals, editorials, any material, pertaining to automobile accidents jury verdicts * * *?” Let’s suppose for a moment that the court had permitted counsel to pursue this inquiry and one or several of the jurors had replied in the affirmative. The next question would obviously be whether or not the exposure to such reading material would prevent the jurors from reaching a fair and impartial verdict, and this is the very question which both the court and counsel had previously propounded. The court in properly exercising its discretion felt that inquires about the jurors’ reading matter were unnecessary.

In Farrow v. Cundiff, Ky., 383 S.W.2d 119 (1964), this Court examined the depth of discretion exercisable by a trial court in limiting the voir dire.

In that case the court refused to allow plaintiff’s counsel to ask the jury if any of them had any “scruples or objections against returning a verdict for the full amount of the prayer if the law and the evidence justified it.” On appeal the plaintiff relied upon Temperly v. Sarrington’s Adm’r, Ky., 293 S.W.2d 863 (1956), wherein a similar question was held to be proper. This Court in effect ruled that the lower court could have, in its discretion, allowed the question, or, by the exercise of the same discretion, could have refused to allow it.

“We are of the opinion that had the question been asked and the court had refused an answer thereto that such would have been proper because the court has a wide discretion in permitting an examination on voir dire in civil cases. * * * Since the record reveals the efforts of the court to obtain a fair and impartial panel of jurors, we feel that appellant was in no wise prejudiced, nor did the court abuse its wide discretion in refusing counsel permission to ask the jury this question.” 383 S.W.2d at 120.

Finally, the appellant contends that the trial court erroneously sustained defense counsel’s objections to three questions propounded appellee by appellant’s counsel. We do not see any error — prejudicial or otherwise — in the court’s ruling on these three objections.

The judgment is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    T. E. VASSEUR et al., Appellants, v. Josephine ROSE et al., Appellees.
    Court of Appeals of Kentucky.
    May 19, 1967.

      Adrian H. Terrell, Burke B. Terrell, Terrell, Schultzman & Hardy, Paducah, L. M. Tipton Reed, Mayfield, for appellants.
    Francis T. Goheen, Paducah, Malcolm R. Boaz, Mayfield, for appellees.
   WADDILL, Commissioner.

A truck owned by appellant T. E. Vasseur and driven by his employee, appellant Stanley Vinson, Jr., collided with a vehicle driven by appellee Marcus Walker who was accompanied by Rufus Rose. Walker was injured and Rose was killed in the accident. The instant action was instituted by Walker and appellee Josephine Rose, administra-trix of the estate of Rufus Rose, against Vasseur and Vinson.

At the first trial of the case a directed verdict was entered for Vasseur and Vinson. This court reversed with directions to give an instruction under the principle of discovered peril. Rose v. Vasseur, Ky., 320 S.W.2d 608 (wherein appear the pertinent facts concerning the collision). The second trial resulted in a hung jury. At the third trial the jury found for Vasseur and Vinson but this court reversed because of improper and prejudicial remarks of the trial judge. Rose v. Vasseur, Ky., 358 S.W.2d 540. Upon a fourth trial of the case the jury awarded Walker $1,000 and the administra-trix of Rose’s estate $10,000. From the judgment entered on this verdict Vasseur and Vinson appeal. They contend that an instruction on discovered peril should not have been given, their counsel was forced to prematurely close his opening statement to the jury and improper and prejudicial testimony was admitted into evidence.

While appellants concede that the adjudication made on the former appeal of a case ordinarily is the law of that case they ask that we reexamine the soundness of our former decision (320 S.W.2d 608) in light of our subsequent opinions in Young v. De Bord, Ky., 351 S.W.2d 502, and Dixie Ohio Express Co. v. Eagle Express Co., Ky., 346 S.W.2d 30. These opinions disclose no reason for us to depart from the rule which we expressed upon the first appeal of this case.

In the Young case a last clear chance instruction was not warranted because the facts did not disclose that the defendant truck driver had a clear chance to avoid the collision. Moreover, there was evidence that the truck driver did all he could to avoid the collision. In the instant case the road was straight and the visibility was good, hence Vinson should have seen that Walker’s vehicle was out of control for a distance of approximately 1000 feet; nevertheless, there is no evidence that he timely did anything to avoid the accident.

In the Eagle Express case the plaintiff’s vehicle was not out of control and did not cross the center line until it was 270 feet from the defendant’s truck. Under the facts of that case the driver of the latter vehicle had neither sufficient notice of impending danger nor a fair opportunity to avoid the collision, while in the instant case the question of discovered peril was properly submitted to the jury because there was evidence of such notice and opportunity.

Appellants next contend the trial court erred in refusing to permit their counsel to inform the jury in his opening statement that the only issue to be decided by it under the law of the case was whether Vinson should have discovered Walker’s peril in time to avert the collision. The trial court was of the opinion that the evidence could produce an issue other than that presented in the first trial so as to require the giving of an instruction different from that which was approved on the first appeal. We believe that no prejudicial error was committed even though the ruling of the trial court appears to us to be unusually restrictive. The record fails to support the further contention that counsel was forced to prematurely conclude his opening statement.

Appellants argue the trial court erred in refusing to instruct the jury that Walker was negligent as a matter of law. The answer to this contention is that the instruction given was the one approved by this court upon the first appeal which we are convinced was adequate upon the instant trial since the evidence was substantially the same on both trials. Bullens v. Mullins, Ky., 409 S.W.2d 161.

Finally, appellants contend that the widow of Rufus Rose was erroneously permitted to describe to the jury his physical appearance after the accident. This testimony was purportedly introduced to show the force of the impact between the colliding vehicles. We observe that the trial court sustained appellants’ objection when this character of testimony was pursued and there was no request made for any other relief. While there is a serious question whether an error has been preserved for appellate review, we have read this testimony and are of the opinion that it did not have any prejudicial effect.

The judgment is affirmed.

All concur.


text:
    Chester JACKSON et al., Appellants, v. Dillard METCALF, Appellee. Dillard METCALF, Appellant, v. Chester JACKSON et al., Appellees.
    Court of Appeals of Kentucky.
    March 17, 1967.
    Rehearings Denied June 22, 1967.

      See also, Ky., 404 S.W.2d 793.
    G. E. Reams, Harlan, for Chester Jackson et al.
    James S. Greene, Jr., Greene & Forester, Harlan, for Dillard Metcalf.
   WADDILL, Commissioner.

Chester Jackson and his wife appeal from so much of a judgment as denies them damages against Dillard Metcalf for trespass on a tract of land. The primary question is whether the Jacksons established title to the land on which Metcalf allegedly trespassed.

During 1959 Metcalf sold the commercial timber growing on a tract of land in Harlan County. The Jacksons claimed ownership of this tract and instituted this action to recover damages for the removal of timber by Metcalf’s vendee. Metcalf denied that the Jacksons owned the land. The trial judge sitting without a jury found that the Jacksons had not established that this tract was within the boundaries of their deed. His finding was based on the fact that in the patent from which the Jacksons trace their title the southeast boundary is located by a call to the “top of the ridge” which is stated to be 160 poles from a certain point whereas the trial judge found the top of the ridge to be only 114.9 poles from that point. Applying the rule that monuments prevail over distances he changed the call for 160 poles to 114.9 poles and concluded that the Jack-sons’ predecessors in title had never owned the land from which Metcalf sold timber.

After carefully considering the relevant maps and deeds we observe that the boundaries of this patent will not close unless this particular boundary extends 160 poles rather than 114.9 poles. This is apparent when the calls are read in reverse order. Stated another way, if this boundary is shortened from 160 poles to 114.9 poles the parallel boundary must be reduced the same amount to close the boundaries.

The rule of relative importance that courses and distances yield to monu-merits is not an inflexible one. Lainhart v. Shepherd, Ky., 246 S.W.2d 460. The primary object in cases such as this is to retrace the surveyor’s footsteps. Morris v. Jody, 216 Ky. 593, 288 S.W. 332. In the instant case to accept the monument (top of the ridge) over the distance (160 poles) and to properly close the boundaries necessitates ignoring two distance calls. Moreover accepting the call of 160 poles as the correct distance is in agreement with the contention of one of the Jacksons’ predecessors in title that this boundary extended to a “double poplar marked with a blaze.” See Creech v. Jackson, Ky., 375 S.W.2d 679. The evidence locates this poplar as being 160 poles from the point fixed in the patent. The finding that the one boundary is 114.9 poles is erroneous as we conclude that the ambiguous call “to the top of the ridge” must be reconciled with the remaining calls in the patent. See 12 Am.Jur.2d, Boundaries, Section 2.

Since we have concluded that the disputed area was conveyed by the patent we must determine whether this area has since been conveyed to the Jacksons. When the tract now owned by the Jacksons was conveyed in 1918, most of the boundaries were designated by reference to adjacent property. Specifically the southeast boundary in this deed runs “with John D. Shell’s line to E. T. Creech line” (the line commencing at the aforementioned double poplar). However, the boundaries of the John D. Shell tract do not extend to the E. T. Creech line thus giving rise to the dispute over the ownership of an area between the John D. Shell tract and the E. T. Creech line. If the boundary of the John D. Shell tract is followed to the original southeast boundary of the patent, it is then possible to follow the latter boundary to the E. T. Creech line. Since there was a mistake in the 1918 deed in that a relevant c .11 was obviously omitted we believe the grant- or’s intention will be fulfilled by assuming that from the John D. Shell line the boundary follows the southeast boundary of the patent to the E. T. Creech line at the aforementioned double poplar. Crider v. Crum, 233 Ky. 414, 25 S.W.2d 1009; 3 American Law of Property, Section 12.105 at page 413. To hold otherwise would require us to presume that the grantor in the 1918 deed intended to retain a small landlocked tract, a presumption we are not willing to indulge under the circumstances presented. 23 Am.Jur.2d, Deeds, Section 241.

The deed under which the Jacksons claim the disputed area contains a description identical to that in the 1918 deed. Since we construe this deed to include all of the area now in dispute the Jacksons were entitled to recover damages in this action for trespass.

A separate appeal has been perfected by Metcalf under RCA 1.180 and consolidated with the Jacksons’ appeal. On his appeal Metcalf seeks a reversal of so much of the judgment as grants the Jacksons $1296.17 damages for Metcalf’s trespass on a portion of the disputed tract which the trial judge found the Jacksons owned by adverse possession.

Three contentions for reversal are presented: (1) The Jacksons are not entitled to maintain this action against Metcalf; (2) the 5-year statute of limitations is a bar to the Jacksons’ action, and (3) the trial judge relied on an improper measure of damages.

With respect to his first contention Metcalf relies on York v. Hogg, 171 Ky. 599, 188 S.W. 663, for the proposition that a vendor is not liable for trespass where the trespass was committed solely by the vendee. However, in the instant action there was evidence that at the time Metcalf sold this timber he went upon the disputed area with the vendee and pointed out the boundaries within which timber should be cut and removed. When the vendor actively encourages the commission of a trespass he may be held liable for it. Allen v. Ferguson, Ky., 253 S.W.2d 8; 34 Am.Jur., Logs and Timber, Section 116.

It is next contended this action was barred by the five-year statute of limitations (KRS 413.120(4)) because there was evidence that the cause of action had accrued more than five years before the Jacksons filed their complaint. To the contrary, the testimony of the vendee and Chester Jackson shows that it did accrue within the five-year period. Apparently the trial judge accepted the latter evidence and under the conflicting evidence we will not hold that his ruling on the limitation question is in error.

Finally Metcalf contends the trial judge erred in using the value of the manufactured timber less the expense of manufacture as the measure of damages. The judge relied on the rule set forth in D. B. Frampton & Co. v. Saulsberry, Ky., 268 S.W.2d 25. Metcalf and the Jacksons agree this case is controlling but they disagree on how it should be applied in the instant action. In the Saulsberry case, supra, the Saulsberry Company claiming title to a 50-acre-tract sold the timber on it to the Frampton Company. The true owner notified Frampton before it cut the timber that he owned the tract. Later he sought damages from Frampton for its trespass and Frampton by cross-petition sought recovery from the Saulsberry Company under its general warranty deed. This court concluded that since Frampton cut and removed the timber with knowledge of the true owner’s adverse claim the proper measure of damages was the market value of the manufactured timber less the reasonable expense of manufacture. It further concluded the measure of damages against the Saulsberry Company under its warranty was the market value of the timber in the trees. The sole argument in the instant case is that Metcalf’s position is analogous to that of the Sauls-berry Company. There is no merit to this argument. Metcalf was sued, not for breach of warranty, but for trespass. His position is more analogous to that of Frampton. The trial judge did not err in refusing to base damages on the market value of the timber in the trees.

The judgment is affirmed as to the award of $1296.17 and is reversed as to the denial of damages for the removal of timber sold by Metcalf from the remainder of the disputed area. The case is remanded to the circuit court for further proceedings to determine only the further damages that the Jacksons should recover from Dillard Metcalf for the loss of their timber.

All concur.


author: EDWARD P. HILL, Judge.

text:
    Geneva STIVERS et al., Appellants, v. Bates SAMUELS et al., Appellees.
    Court of Appeals of Kentucky.
    May 19, 1967.

      Athol Lee Taylor, Thomas L. Waller, Taylor & Pike, Shepherdsville, for appellants.
    T. C. Carroll, Tom B. Givhan, Shepherds-ville; for appellees.
   EDWARD P. HILL, Judge.

Appellees Bates Samuels and Flora E. Samuels, his wife, plaintiffs in the trial court, brought this action to quiet title to their 123-acre tract of land in Bullitt County, joining as defendants Geneva Stivers, owner of land to the east, Earl Sansbury and his wife, Lidivina Sansbury, owners of land to the north, and Arthur Lose, Jr. and his wife, Dorothy Lose, owners of land to the south. Also named as defendants were all classes of unknown defendants, unknown children, unknown transferees, unknown assignees, and all defendants claiming or having any interest in the Samuels land.

A warning order attorney was appointed for the unknown parties. Mr. and Mrs. Lose then filed their answer and cross-claimed against Mrs. Stivers. Thereafter, plaintiffs filed an amended complaint joining as additional defendants the children of Geneva Stivers alleging that said children were joint claimants with their mother as devisees under the will of their deceased husband and father, Jessie Stivers. Five of the eight children were infants, and plaintiffs asked that a guardian ad litem be appointed. However, no such appointment was made.

An answer to this complaint as amended and to the cross-claim of the Loses, a counterclaim against the plaintiffs, and a cross-claim against the Loses were filed for Mrs. Stivers and her eight children by their attorney. Both the counterclaim and the cross-claim have been denied by proper pleadings.

After proof was taken over an extended period, plaintiffs moved for submission and for judgment as demanded in their complaint. Following this, the chancellor notified attorneys for the Samuelses, Loses, and Stiverses by letter that the plaintiffs should have their boundary lines established according to certain recent surveys designated Plaintiffs’ Exhibits B and C and title quieted, stating that the Stiverses could not “assert ownership because of weakness of another’s title but only on the strength of their title” and that the Stiverses “had failed to show a superior title to the disputed land.” Judgment without findings of fact or conclusions of law was entered declaring the Samuels and Lose boundaries according to their demands, restraining the Stiverses from claiming the land or going thereon as shown on Exhibits B and C, and continuing the cause for determination of damages. Thereafter on motion of the Stiverses, separate findings of fact and conclusions of law were entered. Again the only conclusion of law reached by the chancellor was: “The Court finds the law of this case to be title to real estate cannot be asserted because of weakness of another’s title but only on the strength of claimant’s own title.”

The testimony of the witnesses is not clear or to the point and is of little assistance to the court. This court is further hindered on this appeal by the generalities of the chancellor in his findings of fact and the lack of particular findings on which those generalities were based.

The records indicate parties to this appeal derived title to their respective lands as follows: (1) Appellees Bates and Flora E. Samuels by deed dated August 14, 1948, from Willie Lee Samuels and wife; (2) ap-pellees Arthur Lose, Jr. and Dorothy Lose by deed dated August 17, 1961, from Newt Currens, whose last name also appears in the record as “Kearns” and “Currnes”; (3) appellants Geneva Stivers and her children obtained their title through the will of Jessie Stivers, who died testate on January 22, 1958, said Jessie Stivers, deceased, having obtained title from George A. Martin by deed dated December 7, 1945.

It should be noted that title to and possession of the Samuels land has been in the Samuels family continuously for more than seventy years. It is also of importance that the Lose and Stivers lands were once parts of a common tract originally owned by S. B. Simmons and subsequently by Lula Cochran, who was the common grant- or of the separate tracts of Lose and Stivers. The deeds to these separate tracts from Lula Cochran are of special importance in this litigation as will hereafter be noted.

There are four plats in this transcript, to wit: (1) Plaintiffs’Exhibit B — N. T. Cur-rens tract of 116.46 acres based on a survey by Curtis Ochs, Jr., surveyor, on July 3, 1961; (2) Plaintiffs’ Exhibit C — Bates Samuels tract showing the division lines of the Samuels, Lose, and Stivers lands based on a survey by Curtis Ochs, Jr., surveyor, on April 3, 1961; (3) Plaintiffs’ Exhibit F, which is an exhibit taken from an older action styled Simmons v. Samuels and which purports to be a line survey by J. W. Stark, surveyor, dated November 8, 1894, indicating the location of the division line between Samuels and Simmons lands and which line is designated as line B-A, 136⅜ poles in length; and (4) an unsealed drawing by one of the Stivers children purporting to depict the boundaries claimed by Mrs. Stivers and her children.

The Samuelses and the Loses have agreed that the division line indicated as line B-A on Plaintiffs’ Exhibit F is now properly indicated on Plaintiffs’ Exhibits B and C as the 2254-foot line running S. 83° 30' W. The Samuels land would be north of this line and the Lose land south of it. The chancellor made no particular finding of fact concerning this line or any other of the disputed lines, except to conclude generally that the lines “have been established by the evidence as shown by Exhibits B and C and the description of the Samuels tract and Lose tract.” These descriptions, based on the surveys, are set forth in the pleadings and in the judgment.

On this appeal, the appellants seek a reversal of the judgment for the reason that: (1) No guardian ad litem was appointed for the five infant Stivers children; (2) there was no preliminary proof of accuracy of the plaintiffs’ surveys, Exhibits B and C; (3) the appellees have not shown that their lands are embraced within the boundaries of their surveys; (4) because of the lack of proof or the uncertainty thereof, the doubt should be resolved against the plaintiffs; (5) plaintiff must recover on the strength of his own title and not on the weakness of the defendants’ titles.

This court can find no merit to appellants’ contention that the surveys by Ochs should not have been considered for lack of preliminary proof of accuracy. In the first place, both surveys were received in evidence without objection, and the witness Ochs, a qualified surveyor, testified concerning them without objection. So far as this court can determine, their accuracy was not questioned prior to this appeal. For this reason, they should not be questioned now. We are, however, of the opinion that the surveys were admissible and that their accuracy as being surveys of what they purport to represent was proven. They were properly admitted to sustain the allegations of the appellees as to the proper location of the disputed boundary lines.

If there was an exhibit which was without any weight, it was the Stivers Exhibit 3, which was based on no accuracy whatsoever and was prepared by one without any qualifications or experience in the field of surveying or mapping.

Actually, the real issue on this appeal is whether there was sufficient proof on behalf of the appellees to justify the judgment of the trial court determining their boundaries as being those set forth on Plaintiffs’ Exhibits B and C.

There was proof for the plaintiffs in the trial court to establish certain beginning points, such as: The remains of a stump marking the original point B of the 1894 plat (Exhibit F); the tree markings to the east of said stump which indicated a west to east line; the testimony concerning debris remaining from a rotted wooden fence forming two lines of the Ochs survey, Exhibit C; the testimony of Ochs as to the line indicated that trees had been cut to these lines; the corner of the Sans-bury tract which all parties agreed as being evidenced by the marked poplar; and the testimony of the plaintiff Bates Samuels as to the use of the land within his side of said boundaries for timber cutting operations. Although the chancellor did not make specific findings on all the evidence, as should have been the case, still said evidence together with other facts in the rec.ord herein would justify a finding by the trial court that the two surveys, Exhibits B and C, were properly shown to accurately depict the boundaries between the lands of the parties to this appeal, which in effect is what the chancellor found. Findings of fact should not be set aside unless clearly erroneous (CR 52.01), and we do not find the findings to be clearly erroneous.

Before passing this point, it should be noted that when the land of Mrs. Stivers and her children was deeded on December 7, 1934, by Lula Cochran to George A. Martin, their predecessor in title, there was a provision in the deed excluding from the land conveyed that part of the Cochran land which had been conveyed to N. T. Currens and wife on March 28, 1934. This latter deed from Mrs. Cochran to Currens described the land conveyed as being all of the grantor’s land located south of the division line between Lizzie Samuels and Lula Cochran. Lula Cochran obtained her land from S. B. Simmons, and the division line was obviously the line referred to as line B-A running west to east as shown on Plaintiffs’ Exhibit F. This was the line also established by this court years before in Samuels v. Simmons, 44 S.W. 395, 19 Ky. Law Rep. 1686. Jessie Stivers took only that land which had been deeded to George A. Martin; consequently, Mrs. Stivers and her children have never had any right of legal ownership in any land adjacent to the south of the Samuels’ south line, which comprises the present land of Arthur Lose, Jr. and his wife. This fact must have been one basis for the chancellor’s legal conclusion that the Stiverses had offered insufficient proof to sustain their own title.

Finally, the appellants seek on this appeal to have the judgment set aside as to the five children of Mrs. Stivers, for whom no guardian ad litem was appointed. CR 17.03(3), which provides that no judgment should be rendered against an infant until the party’s guardian or guardian ad litem makes a defense or files a report that no defense is available, is mandatory.

At the time of the appointment of the warning order attorney for the “unknown” parties, the Stivers children were unknown so far as the pleadings were concerned. The report of the warning order attorney undertook to file a report on behalf of the “unknown defendants.” No mention was made in his report of the Stivers children.

It is concluded that those of the Stivers children who were under the age of twenty-one years on the date of the judgment were not properly before the court. As to them, the judgment must he reversed for such further proceedings as the parties may decide to pursue. The judgment is affirmed as to Geneva Stivers.

All concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Creel BROWN, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    May 26, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Sp. Asst. Atty. Gen., Department of Highways, Louis J. Amato, Catlett & Amato, Frankfort, for appellant.
    E. E. Hubbard, John S. Kelley, Fulton, Hubbard & Kelley, Bardstown, for appel-lees.
   WADDILL, Commissioner.

The Commonwealth of Kentucky, Department of Highways, condemned thirty acres of appellee’s farm for the purpose of constructing the Bluegrass Parkway, a limited access highway, as it passes through Nelson County. At the conclusion of the evidence the jury returned a verdict as follows:

BEFORE VALUE AFTER VALUE DIFFERENCE
$178,500 $140,000 $38,500

From a judgment accordingly entered the Commonwealth appeals contending that the verdict is excessive because it is not sufficiently supported by evidence of probative value.

Prior to the institution of this condemnation proceeding appellees owned a 700-acre farm located approximately three miles east of Bardstown on a blacktop highway. The improvements on this property consisted of twenty three buildings of various types including a residence, horse barns, and other facilities commonly used in the operation of a livestock farm. None of the improvements was taken by the condemnation except a large pond.

The thirty acres condemned completely severed the property leaving 392 acres north of the parkway and 278 acres located south of it. The tract condemned is a mile long corridor 250 feet in width. All improvements except a tenant house and a tobacco barn are located on the northern tract. Appellant’s construction plans provide no access between the two separated parcels of land and to go from one tract to the other it is now necessary to travel seven and one-half miles.

The following summary reflects the witnesses’ estimates of value:

FOR APPELLANT
WITNESSES BEFORE VALUE AFTER VALUE DIFFERENCE
E. Baesler $122,500 $ 98,000 to cr O o
D. Rash $126,000 $100,500 to J_r Cr O o
FOR APPELLEES
Creel Brown $200,000 $140,000 $60,000
J. P. Downs $165,000 $110,000 $55,000
Everett Mudd $192,500 $135,000 $57,500

Appellee, Creel Brown, has owned and operated this farm since 1933. He testified, in effect, that the unity of his farm, with respect to its present use, is virtually destroyed and that the northern tract now has more farm buildings on it than are necessary to the practical operation of such a small tract. He stated that he was familiar with sales of farm land comparable to his property and he gave cogent reasons why the market value of his farm had been reduced by the construction of the parkway. We believe, as did the trial court, that he was sufficiently qualified to make estimates of value although he expressed his opinion in layman’s language rather than that of a professional witness. We have no doubt that his testimony was competent and had probative value.

J. P. Downs and Everett Mudd, two licensed real estate brokers who have sold approximately 90% of the farm property in Nelson County during the past sixteen years and whose qualifications are not challenged, stated that they are familiar with comparable sales and that, after considering all pertinent factors, the difference in the before and after value of this farm was $55,000 and $57,500, respectively. These estimates are reasonably consistent with the landowner’s estimate of $60,000 and such evidence obviously supports the verdict. Therefore we find no sound basis for the claim that the verdict is excessive.

The judgment is afirmed.

All concur.


author: CULLEN, Commissioner.

text:
    Richard Charles RUIP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 19, 1967.
    Richard Charles Ruip, pro se.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Richard Charles Ruip, who is serving a sentence in the Federal Penitentiary in Atlanta, Georgia, filed with the Jefferson Circuit Court in Kentucky a motion that a pending indictment against him be dismissed because the state had failed to afford him a speedy trial. The motion was overruled and Ruip has appealed.

Ruip has been in the Federal Penitentiary for a number of years. In 1963 he filed with the Jefferson Circuit Court a motion that he be given a speedy trial on the state indictment above mentioned. The motion was denied and on application to this Court for an order of mandamus the denial was upheld on the ground that under the circumstances he was not entitled to demand a trial on the state indictment. Ruip v. Knight, Ky., 385 S.W.2d 170. Nothing has occurred since that time to require the state to bring Ruip to trial. Accordingly, there has been no failure to grant him a speedy trial; hence no merit in the asserted ground for dismissal of the indictment.

The judgment is affirmed.

All concur.


author: CLAY, Commissioner.

text:
    Pete DAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 26, 1967.

      Pete Davis, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAY, Commissioner.

This is an appeal from an order overruling appellant’s motion under RCr 11.42 to vacate a judgment imposing a life sentence for murder. Appellant claims his constitutional rights were violated because he was not represented by counsel when he was being interrogated by police officers concerning this crime. During such interrogation he made an oral confession which was subsequently used against him on the trial. He had pleaded not guilty, and at the trial he was represented by two court-appointed lawyers.

While appellant was not granted a full hearing on his motion, the court considered part of the transcript of the proceedings during appellant’s trial. The question had there been raised as to the volun-tariness of the confession and an extensive hearing was had during the trial on this issue. The trial judge found that the confession was voluntary, and such issue (aside from the question of the right to counsel) cannot be relitigated in this proceeding.

Under the principles announced in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (decided June 22, 1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (decided June 13, 1966), appellant would have been entitled to counsel during his interrogation by police officers. Our only question is whether the rules laid down in those cases should be applied retroactively since appellant was tried prior to the date of the decisions. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the United States Supreme Court held that the guidelines prescribed in Escobedo and Miranda should not be applied retroactively. See also Smith v. Commonwealth, Ky., 412 S.W.2d 256. We find no error in the action taken by. the trial court in overruling appellant’s RCr 11.42 motion.

The judgment is affirmed.

All concur.


author: MILLIKEN, Judge.

text:
    Lesley Evan FOSTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 28, 1966.
    Certiorari Denied June 12, 1967.
    See 87 S.Ct. 2128.

      Stuart Lyon, David Kaplan, Louisville, for appellant.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen, for appellee.
   MILLIKEN, Judge.

When two Louisville patrolmen pulled alongside of his parked automobile about four o’clock on a July morning in a business district of the City, the appellant, Lesley Evan Foster, said he could not get his car started and got out and raised the hood. The patrolmen asked him to get back in his car and try to start it. He did and the motor started immediately, whereupon one of the patrolmen got out of the police car and walked over to the Foster car, saw an adding machine, a typewriter and a stapler on the back seat and, when asked where the articles came from, Foster and his companion, Rankin, said they did not know. When they got out of their car at the patrolman’s direction the inside lights of the car turned on and two pairs of gloves, a flashlight and some screw drivers were plainly visible on the floor of the front seat.

The officers arrested the two men for having burglary tools, and hauled them off to the police station in the patrol car along with the articles mentioned. The next day the pastor of the Franklin Street Baptist Church discovered its typewriter, adding machine and stapler were missing, and he later identified them at the police station. A back door of the Church had been wedged open leaving a dent in the woodwork the size of one of Foster’s screw drivers. To make a long story short, Foster was convicted of storehouse breaking and possession of burglary tools, and was sentenced to life imprisonment as an habitual criminal. On this appeal he claims that most of the evidence against him was inadmissible as the result of an illegal search, and also that the Commonwealth’s attorney violated his constitutional rights by commenting that no one took the witness stand for the defense.

We believe that the circumstances justified the officers in questioning Foster and Rankin, and that the answers elicited as well as the circumstances justified the arrest of the two men for having burglary tools in their possession. As said in Wilson v. Commonwealth (1953), Ky., 258 S.W.2d 497, regarding a somewhat similar situation:

“ * * * It is fundamental that a search may be made without a warrant in connection with a lawful arrest, and that incriminating articles connected with the crime and detected in the possession of the arrested person may be seized to be used as evidence against him. Turner v. Commonwealth, 191 Ky. 825, 231 S.W. 519. It is equally fundamental that the constitutional guaranty which affords protection from an illegal search does not prohibit a seizure without a search warrant where there is no need of a search; that is, where the objects sought are visible, open and obvious to anyone who even casually looks around.” (See, on the subject of search, Clark v. Commonwealth (1965), Ky., 388 S.W.2d 622, and Lane v. Commonwealth (1965), Ky., 386 S.W.2d 743.)

Foster’s previous convictions for similar felonies were established in an orthodox way — by presentation of the original court records by the deputy clerk of the court. Appellant questions the applicability of the records by asserting that they did not establish that he was the Lesley Evan Foster named in those court records. A similar contention was raised in Sullivan v. Commonwealth (1928), 222 Ky. 771, 2 S.W.2d 666, and the Court commented:

“ * * * The record evidence of the previous indictment, trial, and conviction of Charlie Sullivan for the same offense was read to the jury. It is true that no witness deposed that the Charlie Sullivan then on trial was the same Charlie Sulliven previously tried and convicted. However, the principle, ‘Identity of name is prima facie evidence of identity of person,’ has long prevailed in this jurisdiction. See Cates v. Loftus, 3 A. K. Marsh (10 Ky.) 202; Cobb v. Haynes, 8 B. Mon. (47 Ky.) 137; May et al. v. Chesapeake & O. Ry. Co., 184 Ky. 493, 212 S.W. 131. As applied in criminal cases, the principle was discussed at length in Belcher v. Commonwealth, 216 Ky. 126, 287 S.W. 550, in a case presenting the same facts exactly as here. Though no one in that case testified that the Arthur Belcher being tried was the same person who under that name had previously been convicted of possessing intoxicating liquors, it was held that identity of name was prima facie evidence of identity of person, and, there being no evidence to the contrary, the conviction was sustained. The opinion cites a formidable array of authority to support it.”

We think that the principle of “Identity of name is prima facie evidence of identity of person” is clearly applicable here, for the name of Lesley Evan Foster is not conspicous by the numerosity of its occurrence.

Complaint is also made that the Commonwealth’s attorney stepped across the line in commenting upon the failure of the defense to present any witnesses. This is what he said: “No witness has taken that witness stand to deny what’s contained in the official orders of this court, or what was said to the officer. So, enough of that.” What the prosecutor said was the truth, for nobody did. We do not think this comment focused the jury’s attention specifically on the defendant’s failure to take the stand in his own defense. In commenting that the appellant had failed to put any witness on the stand to prove that the Lesley Evan Foster involved in the previous convictions was not the instant Lesley Evan Foster, the prosecutor merely again said: “Now, get this, please, no witness has taken that witness stand to deny what’s contained in the official orders of this court * * We do not consider remarks like these equivalent to commenting on the defendant’s failure to testify in his own behalf so as to violate the principle in Griffin v. State of Cal. (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 1061, as a violation of the defendant’s right against self-incrimination, nor as violative of KRS 421.225 prohibiting comment upon a defendant’s failure to take the stand in his own defense. Anderson v. Commonwealth (1962), Ky., 353 S.W.2d 381.

We conclude that the appellant had a fair trial, and the judgment is affirmed.