author: RUDDY, Presiding Judge.

text:
    STATE of Missouri ex rel. Clarence AUBUCHON et al., Relators, v. Douglas L. C. JONES, Judge of Division No. 5 of the Circuit Court of St. Louis County, Missouri, Respondent.
    No. 31611.
    St. Louis Court of Appeals. Missouri.
    April 20, 1965.

      Schurr & Inman, Robert L. Inman, Clayton, for relators.
    George E. Murray, Clayton, for respondent.
   RUDDY, Presiding Judge.

This is an original proceeding filed in this court wherein relators seek to compel the respondent, Honorable Douglas L. C. Jones, Judge of Division No. 5 of the Circuit Court of St. Louis County, Missouri, by our writ of mandamus, to permit rela-tors to intervene in an annexation proceeding pending before respondent. Our alternative writ of mandamus was issued on relators’ petition and respondent has filed his return to said alternative writ.

Relators in a motion filed by them have moved for judgment on the pleadings, thereby admitting all facts well pleaded in the return. All allegations of the petition and the alternative writ properly pleaded and not denied by respondent in his return are admitted to be true. State ex rel. Bliss et al. v. Grand River Drainage Dist. et al., 330 Mo. 360, 49 S.W.2d 121, l.c. 124; State ex rel. William R. Compton Co. v. Walter, 324 Mo. 290, 23 S.W.2d 167, l.c. 173; State ex rel. Berg et al., v. Thompson, Mo.App., 256 S.W.2d 566, l.c. 567. This leaves only questions of law for our determination. It is alleged in relators’ petition, by reference to an exhibit attached, and in the alternative writ that the relators “are inhabitants and owners of real estate in the unincorporated area that plaintiff seeks to annex.” This allegation is not denied by respondent; therefore, it is admitted.

Other facts disclosed by the pleadings show that on October 6, 1959, the City of Fenton, Missouri, a municipal corporation, instituted its action for annexation of three parcels of land described in the annexation petition, which parcels were adjacent and contiguous to the City of Fenton, Missouri. In the annexation proceeding 28 individuals, owners of land in the parcels involved, were named as defendants and were alleged to be representative of the class of persons owning land in the area sought to be annexed. These defendants were duly served with summons and upon failing to answer an interlocutory judgment of default and inquiry was granted against them on November 12, 1959, thirty-seven days after the annexation suit was filed. None of the present relators was named as a defendant in the original action.

On November 26, 1959, sixty-one individuals filed a joint motion to set aside the interlocutory judgment of default and inquiry and asked that they be permitted to intervene in the annexation proceeding. Thereafter, on or about November 30, 1959, the interlocutory judgment of default and inquiry entered November 12, 1959, was set aside and said 61 individuals were permitted to intervene in the annexation proceeding. Thereupon, said intervenors filed a responsive pleading. Among those permitted to intervene on this date were Glen E. Biehl and Mrs. Glen (Marguerite) Biehl, his wife; Robert J. Perry and Mrs. Robert (Ida) Perry, his wife. On-the same day the above individuals were permitted to intervene, St. Louis County, a municipal corporation, and James H. McNary as Supervisor of said County, were permitted to intervene in said cause and filed their responsive pleadings to the annexation petition. On March 27, 1962, plaintiff (City of Fenton) in the annexation proceeding filed an amended petition reducing the number of tracts sought to be annexed from three (3) to two (2).

On April 6, 1962, plaintiff filed a motion to dismiss as to certain named intervenors and defendants inasmuch as the property of which they were owners and residents was no longer sought to be annexed. At the time the aforesaid motion was filed a notice to hear said motion on April 19, 1962, was filed, on which day the said motion was duly heard by respondent and submitted to said respondent. On September 24, 1962, respondent found that said named intervenors and defendants were no longer interested in the subject matter of the annexation proceeding and their names were ordered stricken as defendants and intervenors. Said defendants and intervenors, so dismissed and stricken on said date did not have responsive pleadings to the amended petition on file at that time. On April 18, 1962, prior to the time of the entry of the court’s order dismissing certain defendants and intervenors, the attorney for all intervenors was permitted to withdraw as counsel for all intervenors. At the time counsel for said intervenors withdrew from the case he filed in the proceedings the following court memorandum: “With leave of court the undersigned attorney for Intervenors Orville Hendricks, et al., withdraws as counsel for Intervenors, a copy of this memorandum being mailed to each of the inter-venors.” Prior to the time permission was granted counsel to withdraw, no pleading had been filed by counsel on behalf of intervenors to the amended petition, nor were intervenors advised that an amended petition had been filed. St. Louis County and James H. McNary as County Supervisor filed several motions to plaintiff’s amended petition, which motions were never taken up or submitted to the court. On September 18, 1962, St. Louis County and James H. McNary, as Supervisor of St. Louis County, withdrew as irrtervenor defendants and dismissed their pleadings in the annexation proceeding.

On September 24, 1962, the date the trial court found that certain named in-tervenors and defendants were no longer interested in the subject matter of the annexation proceeding and their names were ordered stricken and the annexation proceeding dismissed as to them, the court entered an interlocutory judgment of default and inquiry as to the remaining defendants and intervenors for their failure to file pleadings to plaintiff’s (City of Fenton) amended petition. Thereafter, there was no further inquiry by the court and none sought by plaintiff and no final judgment of annexation was entered.

On December 10, 1962, approximately 2Yz months after the entry of the interlocutory judgment of default and inquiry as to the remaining defendants and inter-venors, the relators in the instant case filed their motion to intervene, accompanied with their proposed answer to the amended petition and a motion to set aside the interlocutory judgment of default and inquiry previously entered.

Relators’ motion to intervene and to file said answer and to set aside the interlocutory judgment of default and inquiry was denied by the respondent on the 23rd day of April, 1963. At the time of the filing of the instant mandamus proceeding the interlocutory judgment of default and inquiry had not been reduced to final judgment.

The present relators who sought to intervene in the court below numbered 75. Among the 75 who seek intervention in the proceedings below are Glen E. Biehl, Marguerite Biehl, Robert J. Perry and Ida Perry, who were among the 61 individual intervenors who were permitted by the trial court to intervene on November 30, 1959.

Relators in their motion to intervene, filed in the trial court below, alleged that they are inhabitants and owners of real estate in the unincorporated area that plaintiff (City of Fenton) seeks to annex and are fairly representative of the class consisting of the majority of inhabitants and owners of real estate in said unincorporated area. It is further alleged in said motion to intervene that the relators have an interest in the controversy between the City of Fenton and those presently joined as defendants and intervenors and that they (relators) will be bound by a judgment in the action.

It is further alleged that the representation of their interest by existing parties in the proceeding is inadequate and that their defense to the proceeding has questions of law and fact in common with plaintiff’s petition. They further allege that if permitted to intervene they will not unduly delay or prejudice the adjudication of the rights of the parties thereto. We see no need to recite the allegations of the proposed answer that accompanied their motion to intervene, nor is it necessary to recite the allegations contained in their motion to set aside the interlocutory judgment of default and inquiry.

It is admitted in the return of respondent that the interlocutory judgment of default has not been reduced to final judgment. In his return respondent denies that relators have no remedy other than mandamus, “in that Glen E. Biehl, Marguerite Biehl, Robert J. Perry, and Ida Perry, were all Intervenor-Defendants in default in the original law suit, and Have their right to appeal upon final judgment thereon, should such judgment be adverse to their interest; * * It is further alleged in said return that the “Relators were part of a group or organization, chose their own cpurse of action opposing this suit from the time of its filing in September of 1959, as shown by the transcript of' the testimony of the only two Relators who appeared in Court to testify on this last motion to intervene on February 1st, 1962. They were aware of this action from its inception and certain individuals connected with their organization were the original Intervenor-Defendants. These individuals now being in default, these additional proposed intervenors from the same group, including four (4) of the original defaulting intervenors, are presently attempting to delay this action, by coming in some four (4) years later.”

It is further alleged by respondent in his return that relators were not entitled to intervention as a matter of right, in that they failed to make timely application for intervention. It is further alleged by respondent in his return that he could not have exercised any discretion in favor of relators in that their motion to set aside the default was not timely filed, no good legal reason was shown for the default, relators failed to show that they had exercised due diligence, and relators failed to show that they had a meritorious defense.

At a hearing held before respondent, subsequent to the filing of the motion to intervene, two of the relators testified that they lived in and owned land in the area that the City of Fenton is proposing to annex by the existing proceeding and that they were aware of the annexation proceeding from its beginning and knew that it had been pending approximately four years. They testified that they were not named as defendants in the original proceeding and that they joined an organization and signed a petition to oppose the annexation. Certain named individuals within the organization to which they belonged intervened in the proceeding and counsel was retained to represent them as representatives of the class. It was their understanding that the lawyer engaged was still representing them and they did not learn otherwise until “the last part of November/’ prior to the filing of the motion to intervene on December 10th, 1962. After learning that they were not represented by a lawyer in the annexation proceeding, they retained the lawyers who are now representing relators in this mandamus proceeding.

We have omitted other allegations in respondent’s return which questioned our authority in this mandamus proceeding to consider the respondent’s refusal to set aside the interlocutory judgment of default and inquiry. This question needs no determination inasmuch as relators admit that their right to have the interlocutory judgment of default and inquiry set aside is not before this court. The only relief relators seek is the right to intervene in the annexation proceeding. However, respondent in his first point contends that he correctly denied relators’ application to intervene because more than thirty days had elapsed after the entry of the interlocutory judgment of default and the filing of rela-tors’ application to intervene and that because more than thirty days had elapsed after the entry of the interlocutory judgment of default, respondent says he was without jurisdiction to set aside such interlocutory judgment and, therefore, had no jurisdiction to permit relators to intervene. In support of this contention respondent cites Civil Rule 75.01, V.A.M.R.; State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916; Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1, and State ex rel. Iannicola v. Flynn, 239 Mo.App. 721, 196 S.W.2d. 438. The cases of State ex rel. Conant v. Trimble, supra, and State ex rel. Iannicola v. Flynn, supra, involve final decrees and judgments of divorce. In the case of Wooten v. Friedberg, supra, the judgment involved was a final decree for specific performance. None of these cases involved an interlocutory judgment for default and inquiry. Civil Rule 75.01 provides that the trial court retains control over judgments during the thirty day period after entry of judgment and may vacate, reopen, correct, amend or modify judgment for good cause within that time. Also, within that time the court may order a new trial on its own initiative for any reason for which it might have granted a new trial on motion of a party. Under this Rule the judgment becomes final at the expiration of thirty days after the entry of such judgment, if no timely motion for new trial is filed. (See Civil Rule 82.05.) The interlocutory judgment of default and inquiry entered by the court on September 24, 1962, was entered pursuant to Civil Rule 74.045 (§ 511.110 RSMo 1959, V.A.M.S.) which authorizes an interlocutory judgment of default against a defendant who shall fail to file his answer or other pleading within the time prescribed by law or the rules of practice of the court. Such a judgment is not the same as a final judgment, as was discussed in the cases cited by respondent. Under Civil Rule 74.-05 (§ 511.120 RSMo 1959, V.A.M.S.) “Such (interlocutory) judgment may, for good cause shown, he set aside at any time before the damages are assessed or final judgment rendered, upon such terms as shall be just.”

In the case of Kallash v. Kuelker, Mo.App., 347 S.W.2d 467, the trial court entered an interlocutory judgment of default against the defendant on May 10, 1960. On May 25, 1960, the defendant not appearing and being still in default, the trial court upon a further hearing assessed the plaintiff’s damages and entered a default judgment against defendant in the sum of $12,-500. On June 21, 1960, the defendant filed a motion for “a new trial” or for an order vacating the default judgment, including the interlocutory judgment of default and inquiry entered May 10, 1960. On June 24, 1960, the trial court held a hearing and on that day ordered the interlocutory default decree of May 10, 1960, and the default judgment of May 25, 1960, assessing damages, to be vacated and for naught held. In discussing the nature and scope of the appeal, we said: “The ‘judgment heretofore entered in this action’ must be considered to be the default judgment entered May 25, 1960, assessing the damages. That judgment, subject only to the control over it by the court for 30 days (Civil Rule 75.-01), was the only final judgment then entered in the cause. ‘A [final] judgment is the final determination of the rights of the parties,’ * * *." (347 S.W.2d l.c. 469). In answering a complaint of the plaintiff, wherein it was contended that the trial court had no authority to set aside the interlocutory judgment and proceeding, after pointing out the provisions of Civil Rule 74.05 (§ 511.120, supra), we said: “The fact that the court in its order of June 24, 1960, vacating the default judgment of May 25, 1960, included the interlocutory judgment of May 10, 1960, as prayed in defendant’s motion to vacate the judgment, does not affect the situation since no appeal was taken from that feature of the order and no appeal could have been taken for want of a final order, and further, the order setting aside the interlocutory judgment was in fact and still is prior to any final judgment assessing the damages as required by Section 511.120.” (347 S.W.2d l.c. 472). Also, see O’Connell v. Dockery et al., Mo.App., 102 S.W.2d 748.

In further support of his contention that he was without jurisdiction to permit intervention after the judgment of default had been entered, respondent cites the case of State ex rel. Simons v. Wilcox, Mo.App., 224 S.W.2d 392. In that case the application to intervene was filed after a hearing on the merits and a final judgment was entered. The court after finding that the action was no longer pending and that the issues had been judicially determined and a judgment rendered thereon, said: “In our opinion, the judgment herein had become final and, there being no action then pending before respondent, he had no authority to entertain the motion of Peterson to intervene.” This case offers no support to respondent because, as in his other authorities, it involves a final judgment.

We need not rule the question whether respondent was correct in his refusal to set aside the said interlocutory judgment because, as pointed out, this question is not before us. We have discussed it in order to show that the interlocutory judgment of default and inquiry was not a final judgment and that said interlocutory judgment is no bar to respondent’s jurisdiction to entertain relators’ motion to intervene.

Relators contend they have an absolute right to intervene by virtue of Civil Rule 52.11, V.A.M.R. (§ 507.090 RSMo 1959, V.A.M.S.), the pertinent parts of which are as follows:

“(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * * (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action * * *.
* * * * * *
“(c) Motion to Intervene and Practice in Intervention. (1) A person desiring to intervene shall serve a motion to intervene upon all parties affected thereby. The motion shall state the grounds therefor, and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.”

These provisions should be construed liberally to permit broad intervention. This is in accord with the spirit of the code. State ex rel. Duggan v. Kirkwood, 357 Mo. 325, 208 S.W.2d 257, 2 A.L.R.2d 216; National Surety Corporation v. Fisher, Century Indemn. Co., Mo., 317 S.W.2d 334, 339. Paragraph (a) of Civil Rule 52.11 gives an unconditional right to intervene when the representation of the applicant’s interest by existing parties “is or may be” inadequate and the applicant “is or may be” bound by a judgment in the action. Intervention under this provision is now made an absolute right which was, in part, discretionary prior. State ex rel. Duggan v. Kirkwood, supra; State ex rel. Farmers Mutuals Automobile Ins. Co. v. Weber, 364 Mo. 1159, 273 S.W.2d 318, 321; Carr, Missouri Civil Procedure, Vol. 1, § 70, p. 226; Innis, Speiden & Co. v. Food Machinery Corp., D.C., 2 F.R.D. 261. Since paragraph (a) of Civil Rule 52.11, supra, gives an absolute right to intervene to a person who brings himself within the terms of this paragraph, the trial court has no discretion in the matter. If a trial court should wrongfully deny a person application to intervene, the court can be compelled to permit intervention. The applicant having a legal right to intervene but denied this right by the trial court, mandamus is a proper remedy to afford relief to the applicant. State ex rel. Duggan v. Kirkwood, supra.

Therefore, if relators can show that they have (1) an “interest” in the pending annexation proceeding, and (2) that the representation of such interest “by existing parties is or may be inadequate,” and (3) that they “are or may be bound” by a final judgment in the annexation proceeding and have filed a timely application to intervene, then they have an absolute right to intervene.

In the case of State ex rel. Farmers Mutuals Automobile Insurance Company v. Weber, supra, the court defined the word “interest” as used in the intervention statute, as follows: “ ‘Interest,’ generally, means a concern which is more than mere curiosity, or academic or sentimental desire. One interested in an action is one who is interested in the outcome or result thereof because he has a legal right which will be directly affected thereby or a legal liability which will be directly enlarged or diminished by the judgment or decree in such action.” (273 S.W.2d l.c. 321). The above definition when applied to the relators in the instant mandamus proceeding leaves no doubt that they do have an interest in the annexation proceeding and the result thereof. If plaintiff annexes the area in which these relators live, they will come under and be subject to the regulatory and other ordinances passed by the municipality. Likewise, they will become legally liable for the payment of taxes and licenses that may be incurred by reason of revenue ordinances passed by the municipality. We think relators will either gain or lose by the direct operation of the judgment that may be rendered in the annexation proceeding and that their interest has an origin in the proceeding as brought by the plaintiff.

Respondent contends that the representation of relators’ interest in the annexation proceeding by the existing parties is adequate. In support of this he says that the group to which the relators belong selected some 60 of their number (class) including 4 of the intervenors now in the case to act as their representatives. He says relators considered this representation adequate to the course of the litigation up to December 1962 and that no purpose could be served by enlarging the number of inter-venors when they are admittedly representative of the same group (class). It takes no more than a cursory glance at the record in this case to conclude that the original defendants joined by plaintiff in the annexation petition and the subsequent in-tervenors and their attorney have failed to represent the interests of the class and the present relators in this action. At the time relators sought to intervene in the court below all of the existing defendants and in-tervenors were in default for failure to file a responsive pleading to plaintiff’s amended petition. The interlocutory judgment of default entered against them had the effect of precluding any answer or defense by the defaulting defendants and existing inter-venors. This left the class they were supposed to represent without representation. Relators who sought to intervene in the court below were actually members of the class sued although they were not made defendants at the time of bringing the action.

The record in the case, as heretofore outlined, is proof that the class sought to be represented by relators in their application to intervene has not been adequately represented by the existing parties.

It needs no discussion to show that the relators and the class they seek to represent will be bound by a judgment in the annexation proceeding. This is obvious from the very nature of the proceeding itself which is a class action and so styled by the respondent in his return. All of the re-lators and other owners of land in the area sought to be annexed will be bound by the annexation if the action is decided in favor of the plaintiff municipality.

The principal contention that seems to be urged by respondent in his return and in his brief is that relators’ application to intervene was not timely. In support of this contention respondent points to the interlocutory judgments of default and inquiry granted and seems to assume that the relators were aware of these defaults and that the laxity and lack of diligence on the part of the defendants and previous intervenors and their attorney should be visited upon the instant relators because, as respondent says, the relators were aware of the pendency of this action but assumed that others were acting on their behalf and in their interest. The weakness of this argument, as we view it, is that the laxity and lack of diligence of the defendants and the previous intervenors cannot be laid at the door of the relators. It is because of this laxity and lack of diligence and inadequate representation that they now seek to enter the case and protect their interests and that of the class. We conclude that the application to intervene was filed timely.

In State ex rel. Duggan v. Kirk-wood, supra, the case had been pending 17 months, and a week before the case was set for trial relators sought to intervene. The court, after pointing out that there was no showing that the position of the parties to the original suit was changed to their detriment by the filing of the application of intervention, held that intervention could not be denied upon the ground that the application was not timely. There is no showing in the instant proceeding that the position of the plaintiff in the annexation suit will be changed to its detriment by the filing of relators’ application to intervene. In the case of State ex rel. Duggan v. Kirkwood, supra, the Supreme Court cited the case of Innis, Speiden & Co. v. Food Machinery Corp., supra, in support of its decision. In holding the application timely, the court said in the Innis case: “I cannot conclude upon consideration of all the circumstances that the application for intervention is not timely. While the case is nearly four years old it was not set for trial until the day upon which the application for intervention was made.” (2 F.R.D. l.c. 265). In the instant case the annexation proceeding pending in the trial court has never been set for trial or for the taking of evidence despite the fact that the annexation proceeding has been pending since October 6, 1959. Courts have been very liberal in permitting interested persons to intervene and become parties so that complete justice may be done and especially should this liberality be practiced where relators are members of the class which was originally sued, and, as said in City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4, to this extent their rights may be broader than those of a true intervenor.

Finally, respondent contends that the allegations in the tendered pleadings regarding “the Interest of the parties” (relators) are not well pleaded and “thus cannot be considered in determining the interest of the parties.” We are not sure what respondent means in making this contention. Re-lators have shown through well pleaded allegations in their petition and in respondent’s return that they have an interest in the annexation proceeding as we have here-inbefore held. Respondent claims relators must show they have a meritorious defense, citing Gorzel v. Orlamander, Mo., 352 S.W.2d 675. In that action, after a default judgment was rendered, defendant filed a motion to set aside the default and said motion was denied. On appeal, the Supreme Court said: “We are also of the opinion that the motion itself is insufficient, in that it failed to allege any facts showing that defendants had a meritorious defense to the action.” (352 S.W.2d l.c. 678). In that case the court held that the facts constituting the proposed defense must be set forth in detail so that the court may judge whether it is meritorious and sufficient.

Paragraph (c) (1) of Civil Rule 52.11, supra, does require the motion to intervene to be accompanied by a pleading setting forth the claim or defense for which intervention is sought. Relators when filing their motion to intervene in the lower court accompanied it with an answer to the first amended petition of the plaintiff. An examination of this answer shows well pleaded allegations of fact which, if supported by competent evidence at the hearing on the merits of the annexation proceeding, could prove a bar to plaintiff’s right to annexation of the territory involved. This contention is ruled against respondent.

We conclude that relators have an abolute right to intervene in the annexation proceeding and that our alternative writ of mandamus heretofore issued should be made peremptory as to all of the rela-tors except Glen E. Biehl, Marguerite Biehl, Robert J. Perry and Ida Perry. We exclude the last four named individuals, who are named as relators in the instant proceeding, because they were among the 61 intervenors permitted to intervene November 30, 1959, and are now parties in the case, however, subject to the interlocutory judgment of default and inquiry entered against them.

Therefore, the alternative writ of mandamus heretofore issued is made peremptory as to all relators, except the four named, and we discharge the alternative writ of mandamus heretofore issued as to relators, Glen E. Biehl, Marguerite Biehl, Robert J. Perry and Ida Perry. It is so ordered.

WOLFE and ANDERSON, JJ., concur.


source: Caselaw Access Project

author: WOLFE, Judge.

license: Public Domain

text:
    Georgia CRONIN, (Plaintiff) Appellant, v. NORTHLAND BOWLING LANES COMPANY, a Corporation, (Defendant) Respondent.
    No. 31734.
    St. Louis Court of Appeals. Missouri.
    April 20, 1965.

      William R. Kirby, St. Louis, for appellant.
    William K. Stanard, II, St. Louis, Carter, Bull, Baer, Presberg, Lee & Stanard, St. Louis, of counsel, for respondent.
   WOLFE, Judge.

This is an action for damages arising out of personal injuries alleged to have been sustained by the plaintiff when she fell in defendant’s bowling alley while bowling. A jury returned a verdict for the defendant, and from the judgment on the verdict the plaintiff prosecutes this appeal.

The plaintiff was a member of a bowling league which bowled on Friday nights at the Northland Bowling Lanes, owned and operated by the defendant. Her league started bowling at 6:45 p. m., but on April 15, 1960, the date of the occurrence here considered, the plaintiff did not arrive at the alleys until 7:00 p. m. Two alleys had been reserved for the league, and on this night they were alleys No. 17 and No. 18. The other members of the league who had arrived on time had started bowling at 6:45.

The plaintiff was 33 years of age at the time, and had been bowling for twelve or thirteen years. She testified that when she arrived her team was in the “third frame”, and she was allowed to play until she caught up so she would be bowling in the same frame as the others. She had her own bowling shoes and her own ball. She started bowling on alley 17 and experienced no difficulty. She then moved to alley 18. She stated that she had a four-step approach in the delivery of the bowing ball, and that on the last step she would slide with her left foot for a distance of about one and a half or two feet. She said that when she made her first approach on alley 18 and started her slide, her left foot stuck and she fell forward.

As she fell she released the ball, and fell to her hands and knees. She got up and went back to the bench, and then returned to the place where she had fallen to examine the alley. She said that she could not see anything on it, but that when she knelt down and felt the area she could feel a clear, sticky substance that blended with the floor. She said that when she fell she experienced a jarring in her hands and knees and back. She stated that she reported her fall to a man named Frank at the desk.

Three of her teammates were called as witnesses by the plaintiff. One named Esther Woodworth testified that both alleys 17 and 18 were very sticky. She said that everybody was falling down. She was asked if there was any foreign substance on the alleys, and she answered, “It wouldn’t be nothing, the alleys were just sticky. I do not know whether it’s humidity or what it was but they were sticky where you couldn’t slide at all.” She said there were quite a few evenings like that.

Another member of the team testified that she noticed the alleys were sticky as soon as they started to bowl. She said that she noticed this condition before in other alleys, and added, “But usually they will clean the alley when you tell them about it.” She said that she talked to a boy at the desk about it but said nothing to the plaintiff before the plaintiff started to bowl.

The third member of the team to testify stated that this stickiness was widespread on both 17 and 18. She said that she reported the condition to Mr. Bass, the manager, before the plaintiff arrived, and asked him to do something about it. She said that after the plaintiff fell, “they came and wiped the alley off and gave them some talcum to use on their shoes.” The plaintiff continued to bowl the remainder of the evening, but claimed to have jarred her back and hurt her hands and knees when she fell. But no point is raised relating to the injuries alleged to have been sustained.

The defendant called a Mr. McClaren to the stand. He testified that he was manager of the bowling lanes at the time in question. He said that a maintenance man was employed who cleaned the alleys with a duster and then buffed the lanes and cleaned off the approaches. He worked from 1:30 a. m. to 9:00 a. m. Two hours later in the morning a porter would drag the lane approaches with a duster, and then at 3:00 p. m. and again between 5:30 and 6:00 p. m., and between league plays at 9:30. The porter carried steel wool with him to remove any foreign substance, such as crushed crayon or rubber marks made by the heels of shoes.

On the evening in question two men were on duty. One was Frank Bass, the assistant manager who worked from 5:30 until 2:00 a. m. His duties were to maintain and clean the establishment, to serve customers, and to see that the leagues started on time. On duty with him was a man named James Blubaugh. His job was to take care of the public by giving out rented shoes or to help them in bowling, scoring, or any other like matter. He had the duty to keep the approaches clean if they had any substance on them.

The manager testified that on April 15, 1960, during the time in question, he was not approached by any of the ladies with complaint that one or both of the approaches in alleys 17 and 18 were in an unsatisfactory condition. He was informed later that the plaintiff had fallen on alley 18. He went to the alley and looked at it very carefully, and felt it with his hand. He examined it and had there been any colorless or sticky foreign substance, he would have been able to detect it. But he saw nothing. When he went to the alley, the plaintiff was in the area, and she made no statement as to what caused her to fall. James Blubaugh had no recollection of anyone complaining about the alley being sticky. The manager, who had no personal knowledge of the incident, stated that sometimes air-conditioning would have an effect upon the lanes, and if they noticed it, it would be immediately corrected.

As stated, there was a verdict and judgment for the defendant. The plaintiff-appellant raises but two points, and both have to do with instructions given.

The first assignment of error goes to a verdict-directing instruction offered by the defendant and given by the court and designated as Instruction No. 4, which was as follows:

“You are instructed that even though you may find and believe that there was some sticky substance on the floor of defendant’s premises that caused plaintiff to fall, the defendant would not be liable on that account, unless you further find from the preponderance of the evidence that such sticky substance had been on the floor for a sufficient length of time for the defendant, in the exercise of ordinary care, to have discovered it, and, thereafter to have removed it, or to have warned plaintiff of its presence.
“In this connection, you are further instructed that if the condition of the floor was open and obvious, and that plaintiff and defendant had an equal opportunity to know of said condition, then plaintiff is not entitled to recover and your verdict should be for the defendant Northland Bowling Lanes Company.”

It is first contended that the instruction is erroneous because of the phrase, “unless you further find from the preponderance of the evidence that such sticky substance had been on the floor for a sufficient length of time for the defendant, in the exercise of ordinary care, to have discovered it, and, thereafter to have removed it, or to have warned the plaintiff of its presence.”

The complaint against this is that it eliminates actual knowledge by the defendant from the jury’s consideration, and if the defendant knew of a sticky substance on the alley, it would not be liable under such instruction. There is no evidence or contention that the substance was placed there by the defendant. Neither can it be logically said that the defendant company can discover that which it knew. Therefore, the instruction indirectly negates actual knowledge.

The instructions must all be considered together. The plaintiff’s main verdict-directing instruction predicated liability on the defendant if it “ * * * knew or by the exercise of ordinary care would have known of the presence of such sticky substance on the approach of said lanes. * * * ” We do not believe that the jury would be in any way confused by the phraseology of Instruction No. 4. It was defendant’s contention that its employees had never been informed by the plaintiff or others that the alley was sticky. The defendant was entitled to an instruction on the facts favorable to it and the law under those facts. Wilson v. Miss Hulling’s Cafeterias, Inc., 360 Mo. 559, 229 S.W.2d 556; Perry v. City of St. Louis, Mo.App., 344 S.W.2d 661.

Complaint is also leveled at another paragraph : “In this connection, you are further instructed that if the condition of the floor was open and obvious, and that plaintiff and defendant had an equal opportunity to know of said condition, then plaintiff is not entitled to recover and your verdict should be for the defendant North-land Bowling Lanes Company.”

It is contended that for the plaintiff to have had an equal “opportunity” she would have had to have an equal “duty” This appears to us to be a non sequitur as it is applied to the facts before us. We are cited to a number of cases which are merely restatements of the general principles of law as they apply to the facts in each case. All of the Missouri cases cited are distinguishable upon the facts. But the plaintiff seems to rely chiefly upon Davanti v. Hummell, 409 Pa. 28, 185 A.2d 554. That case involved some visible wax upon the floor about the size of a silver dollar, and the court stated in that opinion : “ * * * there would be a duty on the part of a bowling alley owner to make certain that the runway is smooth and clear of obstruction just before a bowling game is to begin * * To compel one to make certain of safety is not our law, nor do we believe it to be the law of Pennsylvania, for in the same opinion the writer states: “Charging the owner of premises with constructive notice of something he cannot see would obviously be unfair and unjust, but there is no contention in the case at bar that the object which caused the plaintiff to fall was invisible.”

In the case before us plaintiff herself stated that the sticky spot of which she complained was invisible. Her witnesses testified that both alley 17 and alley 18 were sticky, and the plaintiff herself bowled on 17 before her fall on alley 18.

We are also cited to Burns v. Goldammer, 38 Ill.App.2d 83, 186 N.E.2d 97, where there was a wad of gum on the approach. The court held that a submissible case was made. The third case was Spote v. Aliota, 254 Wis. 403, 37 N.W.2d 31. This case had to do with loose boards on the approach which caused nails to project upward for a quarter of an inch when the boards were stepped upon. There the court held a jury case was made.

None of these cases appear to have gone beyond the reasonable care required of the operator of the alley. We cannot go beyond that here, and the plaintiff cannot contend for any higher degree of care than that which she instructed upon. The same instruction as the one under consideration was held by this court to be proper in Hewitt v. Katz Drug Co., Mo.App., 199 S.W.2d 872. It was approved by the Supreme Court in Smith v. Alaskan Fur Company, Mo., 325 S.W.2d 740.

We hold that the giving of the instruction was not prejudicial, and the point raised is without merit.

The next point asserted relates to the burden of proof instruction. It should be stated that this case was tried before January 1, 1965, the date when the use of Missouri-approved jury instructions became mandatory. In cases tried after that date, the only burden of proof instruction that may be used is 3.01 M.A.I., except “in those rare cases where the proof must be clear, cogent and convincing.”

We therefore consider the instruction before us under the law at the time it was given.

The instruction is as follows:

“You are instructed that under the law of this case, the defendant was not an insurer of plaintiff’s safety while in its establishment but, on the contrary, the burden is upon the plaintiff to prove by the preponderance or greater weight of all the credible evidence that she fell and was injured as a direct and proximate result of negligence on the part of the defendant in the manner and particulars set out in other instructions given to you. Unless you find and believe that the evidence preponderates in favor of the plaintiff on the issue of negligence, your verdict should be for the defendant Northland Bowling Lanes Company.
“By the term ‘preponderance or the greater weght of all the credible evidence’, as that term is used in these instructions, is meant such evidence as you may believe to be more worthy of belief than that which is offered in opposition thereto.”

Complaint is leveled at the phrase, “You are instructed under the law of this case, the defendant was not an insurer of plaintiff’s safety * * That is the law as stated in Harbourn v. Katz Drug Company, 318 S.W.2d 226, l.c. 229; Main v. Lehman, 294 Mo. 579, 243 S.W. 91, l.c. 93. But plaintiff states that the mere fact that a statement is found in the opinion of the Appellate Court does not authorize its inclusion in an instruction. With this we are in full accord, and so held in Anderson v. Glascock, 271 S.W.2d 243, l.c. 248. However, it is also true that it is not necessarily error to give a correct statement of law, somewhat abstract in nature, unless it is confusing and misleading and therefore prejudicial. Detrich v. Mercantile Trust Company, Mo.Sup., 292 S.W.2d 300. The phrase here as used was cautionary in effect. The only logical meaning the jury could draw from it was that the defendant was not liable for the injuries suffered by the plaintiff because of her fall unless defendant’s negligence caused the fall.

In Morris v. E. I. DuPont de Nemours & Co., 351 Mo. 479, 173 S.W.2d 39, the rule is set out as to cautionary instructions, and states l. c. 42: “Unless they state an incorrect or inapplicable rule of law, or unless there appears to have been an abuse of discretion by the trial court, appellate courts do not order reversals because of them except under most unusual circumstances.”

We do not believe the court could be held to have abused its discretion by including the phrase above quoted.

The criticisms which the plaintiff raises as to the rest of the instruction are those frequently made by the courts concerning burden of proof instruction. We are cited to no cases holding an instruction such as the above erroneous, nor do we find it to be so. It was objections such as raised here which brought about the adoption of instruction 3.01, M.A.I.

As we previously stated, we are obliged to decide this case upon the law as it existed at the time the case was tried, and nothing we have said herein relates to the instructions now required to be given.

For the reasons set out above, we affirm the judgment of the Circuit Court.

RUDDY, P. J., and ANDERSON, J., concur.


author: PALMORE, Judge.

text:
    Adrian M. SAYLOR, Jr., Administrator, etc., Appellant, v. Kathleen B. SAYLOR et al., Appellees.
    Court of Appeals of Kentucky.
    April 30, 1965.

      William A. Watson, Watson & Watson, Middlesboro, for appellant.
    A. E. Funk, Jr., E. P. Nicholson, Jr., Mid-dlesboro, for appellees.
   PALMORE, Judge.

This is a declaratory judgment action to determine the ownership of a bank savings account. The facts are stipulated. The contest is between the administrator and the widow of Adrian M. Saylor. The trial court found in favor of the widow, and the administrator appeals.

The account was opened by Mr. Saylor on March 19, 1962, with the deposit of $6,540.-65 derived from the sale of government bonds owned exclusively by him. The pass book issued by the bank to Mr. Saylor on March 19, 1962, was made out in the names of “Mr. or Mrs. Adrian M. Saylor,” and the bank’s ledger eard for the account was established and thenceforth maintained in the names of “Adrian M. Saylor or Kathleen B. Saylor.” Kathleen is the widow.

At the time the account was established Mr. Saylor signed an “authorized signature” card made out in the names of “Mr. & Mrs. Adrian M. Saylor.” Two check marks below indicated that two signatures were contemplated, but Mrs. Saylor never signed the card. The form of the card was designed for an individual account.

On June 15, 1963, Mr. Saylor deposited $2,132.60 of his own money in the account, and the deposit was entered in the pass book. There were no other deposits, and for purposes of this opinion it may be assumed that there were no withdrawals whatever, prior to the death of Mr. Saylor on May 15, 1964.

The question is whether the balance of the account at Mr. Saylor’s death is payable wholly to the administrator, wholly to the widow, or half to each. The trial court held it was a survivorship account, passing wholly to the widow.

It is recognized in this state that a person may by depositing his own money in the names of himself and another create the equivalent of a tenancy in common or a tenancy by the entirety, depending upon his intent. Gellert v. Busman’s Adm’r, 239 Ky. 328, 39 S.W.2d 511 (1931); Armstrong’s Ex’r v. Morris Plan Industrial Bank, 282 Ky. 192, 138 S.W.2d 359 (1940); Bishop v. Bishop’s Ex’x, 293 Ky. 652, 170 S.W.2d 1 (1943). As in the case of other intangibles such as bonds or stock certificates, the right gratuitously conferred on the other party is recognized and is enforceable on the theory of third party beneficiary contract. It is not necessary that such a contract be supported by a consideration moving from the beneficiary, and it is not necessary that a “gift” be proved. To the extent our opinion in Hays v. Hays’ Adm’r, Ky., 290 S.W.2d 795 (1956), held otherwise it is overruled.

“The prevailing modern view is that a donee-beneficiary has a right of action to enforce a promise made for his benefit. In this respect, the courts so holding have rejected any requirement of consideration, privity, or obligation as between the prom-isee and the third person.” 17 Am.Jur.2d 739 (Contracts, § 311).

“In this jurisdiction a party beneficiary of a contract may look to the promisor directly and sue him in his own name to enforce a promise made for plaintiff’s benefit, even though he is a stranger, it being sufficient that there is a consideration between the parties who made the agreement for the benefit of the third party.” Traylor Brothers, Inc. v. Pound, Ky., 338 S.W.2d 687, 688 (1960). See also Restatement of Contracts, §§ 113, 135.

“It is not essential, in order to enable a third person to recover on a contract made and intended for his, benefit, that he knew of the contract at the time it was made.” 17 Am.Jur.2d 741 (Contracts, § 314). A fortiori, that Mrs. Saylor did not sign the signature card or otherwise participate in the establishment of the account is immaterial.

By his deposit of money a contract was created between Mr. Saylor and the bank. By causing the account to be established and maintained in the names of himself and his wife, in the absence of evidence to the contrary there is a rebuttable presumption that Mr. Saylor intended to and did make his wife a third party beneficiary of the contract. If the account had been opened and maintained simply in the names of “Mr. & Mrs. Adrian M. Saylor,” as appeared on the signature card, and there had been nothing else showing an intent that on the death of one the survivor should take the whole, this case would be governed by Gellert v. Busman’s Adm’r, 239 Ky. 328, 39 S.W.2d 511 (1931), in which it was held that such an account does not evince a contract of survivorship, but a simple cotenan-cy, the survivor taking half and the other half passing to the decedent’s estate.

In most states recognizing tenancies by the entirety in personal property “such a tenancy, absent proof of contrary intent, results where a joint bank account, in the conjunctive form, is opened in the names of husband and wife.” 10 Am.Jur.2d 337, 338 (Banks, § 373); Annotation, “Estates by entirety in personal property,” 64 A.L.R.2d 8, 83. This is contrary, of course, to Gellert v. Busman’s Adm’r, supra, holding that the conjunctive “and” creates the equivalent of a tenancy in common. With respect to accounts in the names of husband or wife, disjunctively, the authorities are divided. 10 Am.Jur.2d 338 (Banks, § 373); Annotation, “Estates by entirety in personal property,” 64 A.L.R.2d 8, 87 et seq. However, in Hensley v. Ball, Ky., 380 S.W.2d 279 (1964), we held (or intended to hold) that stocks and bonds issued in the names of one party “or” another pass wholly to the survivor, and the rule should be the same with respect to a bank account.

When a person deposits money to the account of himself “or” another he gives to the other person a broader authority, from which it seems to us that he intends a greater right, than would exist if the account were opened in the names of one “and” the other. The inference is that either may take it all, and if one can take it all before the death of the other, how is that right lost thereafter? Such a relationship with respect to a bank account is bound to proceed from a spirit of great trust, confidence, and usually personal love and affection. It is our belief that the average person who has a bank account in the name of himself “or” another expects the balance on hand at the death of one of them to become the absolute property of the other. We hold, therefore, that there is a rebutta-ble presumption of such intent.

In this case the pass book made out in names of “Mr. or Mrs. Adrian M. Say-lor” outweighs the signature card bearing the names of “Mr. & Mrs. Adrian M. Say-lor” for the simple reason that as between the two the pass book is the one Mr. Saylor is more likely to have noticed, since he kept it in his possession. That he did have it in possession, and used it in making a subsequent deposit, without suggesting a change in the manner in which the names appeared on it is the best evidence of how he intended them to appear. From the evidence stipulated the trial court came to the only reasonable conclusion, which is that Mr. Saylor intended the account to be in the names of “Mr. or Mrs. Adrian M. Say-lor.”

That Mr. Saylor did not have Mrs. Saylor sign the signature card may indicate that he did not wish her to make any withdrawals. If so, that circumstance is consistent with a purpose to give her the right of sur-vivorship, because otherwise there would have been no reason at all for him to establish a joint account.

The judgment is affirmed.

      . Cf. Marcum v. Marcum, Ky., 377 S.W.2d 62 (1964).

      . Cf. Hensley v. Ball, Ky., 380 S.W.2d 279 (1964).

      . Normally the printed portion of an authorized signature card should spell out the rights of the parties in a joint account, but, as we have pointed out, the card used in this instance was designed for an individual account.

      . Whether she could have done so anyway, by virtue of her interest in the account, is a question we are not called on to decide.


author: CULLEN, Commissioner. MONTGOMERY, Judge

text:
    Eugene HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 30, 1965.
    Clyde L. Stapleton, Jackson W. White, Lexington, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Joseph H. Eckert, Asst. Attys. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Eugene Harris was sentenced to life imprisonment upon a verdict finding him guilty of murder in having inflicted upon Frank Johnson a stab wound that caused Johnson’s death. On this appeal from the judgment of conviction Harris asserts as his sole ground of error the failure of the trial court to give an instruction on voluntary manslaughter.

The only evidence as to the circumstances of the stabbing was the testimony of the witness John Embry. (Harris took the stand but in his testimony he attempted to establish an alibi.) Embry said that he came out of a restaurant in Lexington and saw Harris and another man standing at the curb about ten feet away; Harris struck the other man in the stomach, and the man put his hand against his stomach and walked away; Harris walked away in the other direction; no words were uttered either before or after the striking.

Although Embry was an eyewitness of the striking of the blow by Harris (which from other, circumstantial evidence could be concluded to have been a stabbing blow with a knife), the circumstances related by Embry were so unusual that it reasonably could be inferred that the striking had been preceded (before Embry’s arrival) at least by a verbal, and perhaps by a physical, exchange between Harris and Johnson.

We think this case falls within the rule that if a reasonable inference can be drawn from the evidence that the defendant in a homicide case is guilty of a lesser crime than murder, instructions should be given consistent therewith. See Stanley v. Commonwealth, Ky., 380 S.W.2d 71; Combs v. Commonwealth, Ky., 378 S.W.2d 626; Pennington v. Commonwealth, Ky., 344 S.W.2d 407; Lee v. Commonwealth, Ky., 329 S.W.2d 57; Cottrell v. Commonwealth, 271 Ky. 52, 111 S.W.2d 445. We do not believe that the evidence points so clearly to the crime of murder as to exclude a reasonable inference that a lesser crime was committed. See Stanley v. Commonwealth, Ky., 380 S.W.2d 71.

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

MONTGOMERY, Judge

(dissenting).

I respectfully disagree with the majority opinion herein. The rule in alibi cases is that only an instruction on murder is given. The reason is that the accused’s defense is that he did not commit the murder because he was elsewhere. Certainly the accused, as here, does not claim that homicide was done “in sudden heat of passion, and upon provocation ordinarily calculated tó excite passion beyond control.” This does not submit any theory of defense held by the accused.

In Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58, it was specifically held that no manslaughter instruction should be given in a murder case where the defense was an alibi. See Barnes v. Commonwealth, 179 Ky. 725, 201 S.W. 318, and cases cited therein. In an alibi case there is no room for the accused to make inconsistent claims of alibi and provocation or excuse. The two defenses are mutually exclusive. If the accused claims that he was not present at the killing, he certainly cannot claim a defense based on factors that require his presence there. Thus, there was no possible basis for a manslaughter instruction in this case, and it should not be given on a new trial. Canada v. Commonwealth, 281 Ky. 641, 136 S.W.2d 1061; Davenport v. Commonwealth, 285 Ky. 628, 148 S.W.2d 1054; and Lee v. Commonwealth, Ky., 329 S.W.2d 57.

I, therefore, think that the majority opinion is wrong and is contrary to certain long-established rules of the law of homicide. See 10A Kentucky Digest, Homicide @=>300(9) and 309(3).

STEWART, J., concurs in this dissent.


author: WILLIAMS, Judge.

text:
    Alta M. SEAT, Appellant, v. EASTERN GREYHOUND LINES, INC., Appellee.
    Court of Appeals of Kentucky.
    April 30, 1965.

      Edwin O. Davis, Davis & Mahan, Louisville, for appellant.
    Robert P. Hobson, Woodward, Hobson & Fulton, Louisville, for appellee.
   WILLIAMS, Judge.

Appellant was injured in Illinois while a passenger on one of appellee’s buses. She filed suit in Jefferson County more than a year after the accident occurred. The one year Kentucky statute of limitations was pleaded by appellee and motion for summary judgment was sustained.

Appellant raises but one question, which she states as follows: Where suit is brought in Kentucky on a cause of action arising in another jurisdiction having a statute of limitations which would not have barred the action, is the action barred in Kentucky if the Kentucky statute of limitations has run before the suit was filed ?

KRS 413.140 provides a one year statute of limitations for personal injury actions. Illinois Revised Statutes, Chapter 83, paragraph IS, provides a two year statute of limitations. Two Federal cases, Burton v. Miller, 6 Cir., 185 F.2d 817, and Albanese v. Ohio River-Frankfort Cooperage Corp., D.C., 125 F.Supp. 333, hold that, if a cause of action which arose in another state is not barred by the laws of that state, it is not barred in an action in Kentucky. This theory is based on some early Kentucky cases which were decided before KRS 413.-320 was amended in 1942. Smith v. Baltimore & Ohio Railway Company, 157 Ky. 113, 162 S.W. 564 (1914); Labatt v. Smith, 83 Ky. 599; John Shillito Co. v. Richardson, 102 Ky. 51, 42 S.W. 847 (1897); Gibson v. Womack, 218 Ky. 626, 291 S.W. 1021, 51 A.L.R. 773 (1927). The Federal court anticipated this Court would follow the prevailing rule the next time that statute came up-for consideration. That assumption was well founded.

KRS 413.320 provides:

“When a cause of action has arisen in another state or country, and by the laws of the state or country where the cause of action accrued the time for the commencement of an action thereon is limited to a shorter period of time than the period of limitation prescribed by the laws of this state for a like cause of action, then said action shall be barred in this state at the expiration of said shorter period.”

The effect of the statute is that the foreign statute of limitations shall prevail only when the time provided thereby is shorter than the period provided by the Kentucky statute of limitations.

A statute of limitations does not extinguish a legal right but merely affects the remedy, and the law of the forum controls remedies and procedures. Ley v. Simmons, Ky., 249 S.W.2d 808, 36 A.L.R.2d 563 (1952). The great weight of authority is that a statute admitting the bar of the law of another state does not so adopt the foreign law as to lengthen the limitation period otherwise prescribed at the forum. See Annotation, 75 A.L.R. 231. In the Ley case we concluded that in an action brought in this state to enforce a judgment of a court of another state whose statute of limitations was for a longer period than ours, the statute of limitations of Kentucky should govern.

The same principle shall apply in an action on a tort committed in another state. If the statute of limitations in the foreign state is for a longer period of time than the statute provides in this state, then the law of Kentucky will prevail. If, on the other hand, the period of time provided by the statute in the foreign state is shorter than that provided in Kentucky, then KRS 413.320 applies and the law of the foreign jurisdiction shall prevail. Insofar as the Smith, Labatt, John Shillito and Gibson cases (supra) are in conflict herewith, they are expressly overruled.

In this case KRS 413.320 does not apply. The Illinois statute provides for a two year period. In Kentucky the limit is one year. Applying the law of the forum, the action was brought too late and was properly dismissed.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    James (Gene) STEWART, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 30, 1965.
    J. E. Caylor, Somerset, Allen & Clontz, Mount Vernon, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant was convicted of a third violation of local option laws (KRS 242.230 and 242.990) and sentenced to serve one year in prison. In seeking reversal of the conviction he contends that the trial court erred in giving certain instructions to the jury which were not authorized by the evidence.

Before reaching the merits of the arguments of the parties we must determine whether appellant has preserved the alleged error for appellate review. This preliminary question arises since appellant did not object at the time the instructions were submitted to the jury nor did he state in his motion for a new trial any reason why the instructions were incorrect. The only allegation of error concerning the instructions is contained in his motion for new trial that “the court erred in the instructions given the jury.”

In Piper v. Commonwealth, Ky., 387 S.W.2d 13 (rendered February 12, 1965), RCr 9.22, 9.54 and 10.12 were construed to require claimed errors to be timely presented so as to afford the trial court an opportunity to rule upon the questions raised.

Since in the instant case the contentions of error are based upon insufficiency of evidence to support the given instructions, we conclude that the mere allegation the court erred, in instructing the jury was not sufficiently specific to apprise the trial court of the nature of the alleged error nor give it a chance to consider the merits of these contentions. Hence they are not preserved for review.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Ruth Coleman RATLIFF, Administratrix of the Estate of Lawson Ratliff, Deceased, Appellant, v. BIG SANDY COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    April 30, 1965.
    Dan Jack Combs, Ronald W. May, Pike-ville, for appellant.
    Francis M. Burke, Pikeville, for Conway Drilling Co.
    William J. Baird, Pikeville, for Big Sandy Co.
    Edward R. Hays, Pikeville, for Ratliff Elkhorn Coal Co. and Ratliff Coal Co.
   DAVIS, Commissioner.

Lawson Ratliff was killed by a landslide along a private roadway near the mouth of a coal mine where he worked. The appellant, as his administratrix, filed this wrongful death action, and appeals from the judgment below which dismissed her complaint after a pre-trial statement by her counsel of the facts proposed to be proven.

The fundamental bases upon which appellant rests her case are (I) that her decedent was a business invitee at the time he met his death; (2) that the appellees were grossly negligent in their failure to properly shore the face of the wall which crumbled; (3) that the decedent was not guilty of any contributory negligence, or (4) alternatively, that the defense of contributory negligence is not available because appellees’ negligence was wanton.

Appellee Big Sandy Company is a landholding company which had leased coal rights to the appellees, Ratliff Elkhorn Coal Company and Ratliff Coal Company. In turn, the two Ratliff companies contracted with decedent’s employer, C & E Coal Company, for the latter company to deep mine a portion of the premises held under lease from Big Sandy Company. By a later agreement, the Ratliff companies were authorized by Big Sandy to remove coal from the same seam by utilizing the auger method of mining. Pursuant to that agreement, appellees Billy J. Epling and Thomas Ep-ling, d/b/a Conway Drilling Company, proceeded to auger mine coal from the same seam being deep mined by decedent’s employer.

The drilling company (Conway) began the augering operation by drilling the first auger hole at a point about 135 feet from the driftmouth of the deep mine in which decedent was working. In proceeding with the augering process the drilling company removed the overburden from the coal seam and constructed a crude dirt road for the use of mining machinery, trucks and automobiles. As a consequence of this activity the coal was faced and a “high-wall,” ranging from 18 to 25 feet in height, was left above the coal seam. The roadway extended along the base of this high-wall, and at the time of the accident had been extended somewhat more than 1100 feet from its beginning point.

Employees of the C & E Company, including the decedent, necessarily used the roadway in going to and from their work in the deep mine. This usage was known to all of the appellees, according to the appellant’s theory of the case. On the date of the accident the decedent had come to work as a passenger in the automobile of a fellow employee. When he and the car owner went to the vehicle preparatory to driving home, it was found that the ear would not operate. The car owner-left the scene to seek repairs; decedent procured a container and expressed his intention of going to the base of the high-wall to obtain some coal for his personal use. No one observed decedent thereafter until his entombed body was removed from the earth and debris resulting from the avalanche when the high-wall gave way.

All of the appellees filed motions to dismiss the complaint for failure to state a claim upon which relief could be granted. CR 12.02. However, when the motions to dismiss came on for hearing the trial court called upon appellant’s counsel to state the proof he expected to develop on trial, and considered the matter as if being heard “in the nature of a pre-trial hearing.” (It is not clear whether this was deemed to be a pre-trial conference within the meaning of CR 16, or as if upon motion for summary judgment under CR 56, but the trial order recites that appellant’s counsel agreed to the procedure.)

In either event, the trial court requested appellant’s attorney to make a narrative statement of the facts he expected to adduce- in evidence; the statement is transcribed in the record and, for the purposes of this decision, is uncontroverted. In addition to the facts above set forth, the statement by counsel avers that the site of the accident was 176 feet from the center of the driftmouth of the C & E mine, and approximately ten or fifteen feet from the parked automobile in which decedent had expected to travel to his home.

Further factual assertions contained in the statement of counsel include these: that none of the appellees had taken any step to render safe the auger hole, either by covering the hole or in any other way; that the high-wall adjacent to the C & E mine, in a westerly direction ranged from eighteen to twenty-five feet in height above a forty-inch coal seam; no danger warning was posted along or about the high-wall; it was necessary for decedent, and other employees of C & E, to pass along the roadway at the point where the accident occurred; the width of the roadway or “bench” at the accident site was about 35 feet from the base of the high-wall to the edge of the fill; there was no absolute requirement that decedent walk or be at the foot of the high-wall, although there was no prohibition against his so doing; employees and employers at C & E mine “freely used this area”; decedent had been employed in the area for five months, and- knew of the existence of the high-wall; the high-wall was composed of rock, dirt and vegetation and was of irregular contour; since the date of the accident nearly all of the wall has collapsed.

The trial court expressed the view that the high-wall was of the usual and ordinary type in such operations; hence, there was no negligence in its maintenance. Moreover, the trial court expressed the view that even if it be determined that the high-wall was hazardous per se, the decedent’s estate is precluded from recovery by reason of contributory negligence and assumption of risk on the part of decedent. The trial court made no finding relating to whether he regarded decedent’s status as that of a business invitee or a mere licensee.

Under the circumstances of this record, we are impelled to the conclusion that it was erroneous for the trial court to summarily dismiss the appellant’s complaint on the bare basis of statement of her counsel as to intended proof.

It would appear that decedent’s status on the premises was as a business invitee. At least, we think it is not deducible as a matter of law that decedent’s status was that of a bare licensee, based upon the narrative statement of counsel.

Whelan v. Van Natta, Ky., 382 S.W.2d 205, and the authorities therein discussed, may not be said to rule the present case insofar as decedent’s status is concerned. In the present state of the record, there is not sufficient factual basis to warrant a summary holding that decedent’s invitation had ceased, or that he had gone to a point beyond the scope of the invitation. We think it may not be doubted that decedent enjoyed the status of business invitee while upon the premises for the purposes of performing his labors there; it seems equally clear that his same status prevailed while he was using the premises for the purposes of going to and from his place of work.

In 38 Am.Jur., Negligence, Section 100, p. 761, it is written:

“The law imposes upon the owner of a building the duty of keeping the approaches thereto in a reasonably safe condition for use by persons having business in the building, and he can be held liable for an injury sustained by one whom he has invited or induced to come upon the premises, where the injury was sustained as the result of an unsafe condition of the approaches.”

The rationale of that legal statement is equally applicable to the approaches to the site of the business invitation in the case at bar. Cf. 38 Am.Jur., Negligence, Section 130, pp. 790-791, in which this language is found:

“The duty which an owner or occupant owes to one using a way upon the premises by invitation is such that the owner or occupant cannot make exea-vations or leave unprotected openings so close to the line of way as to render travel thereon unsafe, without incurring liability to the invitee for an injury sustained by him from such dangerous condition. This does not mean, however, that an invitee can hold the owner or occupant liable for an injury received by him while deviating materially from the way covered by the invitation. It does mean that one who leaves a dangerous excavation on his property cannot avoid liability for injury to one who, coming upon the premises on business, is injured by falling into it, on the theory that it was not in the path which he was entitled to travel, if it was so close thereto that he could not transact his business without coming in such proximity to it as to render it perilous to him.”

It is our conclusion that the present record fails to support the proposition that decedent had so far deviated from the area of his invitation as to lose his status as business invitee. We are not to be understood as here ruling that he did occupy that status — rather that the question must be ultimately determined upon a fuller exposition of the factual background.

Neither do we believe that the present record warrants summary ruling as a matter of law that the decedent was guilty of contributory negligence, or assumption of risk, or both. He may have been, but there is not sufficient evidence here to sustain a conclusion as a matter of law that he was. Moreover, there is sufficient basis in the narrative statement of appellant’s counsel to warrant the inference, at least, that some or all of the appellees may have been guilty of wanton negligence. Assuming, without deciding, that decedent had been guilty of contributory negligence, this defense would not be available if the negligence of appellees (or any of them who may be found guilty of such negligence) was of that degree which may be considered wanton. Bickel v. Bennett, 267 Ky. 232, 101 S.W.2d 943. Cf. Prosser on Torts, 2d Ed., pp. 289-290, in which it is said:

“The same is true [contributory negligence is not a defense] of that aggravated form of negligence, approaching intent, which has been characterized variously as ‘wilful,’ ‘wanton,’ or ‘reckless,’ as to which nearly all courts have held that ordinary negligence on the part of the plaintiff will not bar recovery.”

We reiterate that we are not to be understood as here adjudicating that decedent was a business invitee, nor that he was free of contributory negligence or assumption of risk; neither is this opinion to be considered a ruling on our part that all or any of the appellees were guilty of negligence, ordinary or wanton. What we are deciding is that upon the record as now comprised, there is not sufficient factual basis to warrant the summary dismissal of the complaint; all other questions are reserved for appropriate action in light of more detailed facts.

The judgment is reversed for further proceedings consistent with the opinion.


author: DAN M. GRIFFITH, Special Commissioner.

text:
    Doris LaVerne RICHEY, Appellant, v. Frank Wesley RICHEY, Jr., Appellee.
    Court of Appeals of Kentucky.
    April 30, 1965.

      Allen R. Brown, Louisville, for appellant.
    Ralph H. Logan, Hardy, Logan & Tross, Louisville, for appellee.
   DAN M. GRIFFITH, Special Commissioner.

The primary question presented by this appeal is whether the trial court had the power to adjust the amount of periodic alimony payments agreed upon in a property settlement agreement which was incorporated into a judgment divorcing the parties. Our conclusion is that the agreed periodic payments were not subject to modification by the court and that the judgment of the lower court reducing such payments should be reversed.

On the 12th day of December, 1957, a judgment divorcing the parties to this appeal and incorporating a property settlement agreement reached by them was entered in the Jefferson Circuit Court. Some five years after the judgment was entered, the defendant moved the court to reduce the periodic payments of alimony as well as the child support payments provided for in the agreement. Invoking a rule of the Jefferson Circuit Court providing that the court may adjust the amount of payments of periodic alimony unless the order of the court providing for such payments provides otherwise, the court sustained the defendant’s motion for reduction and reduced the alimony payments from $55.00 per week to $30.00 per week and the child support payments from $18.00 per week to $15.00 per week.

The Separation Agreement between the parties is as follows:

“Comes the parties hereto, in person and by counsel, and agree that irreconcilable differences have arisen between them and they will never again live together as husband and wife and make this agreement in settlement of all property rights, rights of curtesy dower and maintenance of children between them:
“And now in consideration of the mutual promises of the parties hereto it is agreed by the parties hereto as follows:
“1. Defendant shall convey to plaintiff all of his right, title and interest in and to property known as 1308 Rufer Avenue, Louisville, Kentucky, and shall either liquidate a mortgage indebtedness thereon or to guarantee the payment of same together with solvent co-guarantor.
“2. Plaintiff shall have the care, custody and control of the three infant children of the parties hereto, i. e. Sue Ann Richey, born September 10, 1943; Judith Gail Richey, born September 23, 1946, and Donna Jean Richey, born April 19,1951, but defendant shall have the right of visitation with said children at reasonable times and under reasonable circumstances.
“3. Defendant shall pay to the plaintiff the sum of $130.00 per week for the support and maintenance of herself and three infant children aforesaid and shall be attributable as follows: $55.00 per week as alimony to plaintiff and $25.00 per week each, as maintenance to the infant children aforesaid.
“4. Defendant agrees to pay the costs of this action and a fee to plaintiff’s attorney.
“5. The parties hereto agree that this agreement may be filed and made a part of any judgment of divorce rendered between the parties hereto. Signed this 22nd day of November, 1957.”

A Supplemental Agreement of the same date provided that the plaintiff would claim no interest in a specified leasehold and that the defendant would hold the plaintiff harmless from any liability under said lease or in the operation of a pharmacy at the address.

As previously noted, the judgment divorcing the parties incorporated this agreement.

On the 16th day of April, 1959, the parties entered into what is designated, as the “Third Agreement.” This agreement provided for payment to the plaintiff by the defendant of the reduced sum of $77.00 per week. The agreement contained a clause which provided that the defendant- reserved the right to terminate it upon the emancipation of one or more of the parties’ children or remarriage of the plaintiff. It was further provided that if second party should terminate the agreement, the rights and duties of the parties would revert to and become fixed by the prior agreement.

On the 11th day of December, 1962, the defendant moved the court to reduce the alimony payments under the judgment entered and to reduce the maintenance payments thereunder. From the date of the judgment until the motion for reduction was filed, the defendant had married twice and had children by both of his subsequent wives. There is no question but that his then monthly income of $540.00 was hardly enough to provide for all the obligations he had assumed.

Finding changed circumstances, that the defendant had exercised his option to terminate the “Third Agreement” by making the motion for reduction in his payments, a conclusion not questioned by either party, and applying a rule of the Jefferson Circuit Court, hereinafter set out in full, the Chancellor reduced the child support payments to $15.00 per week for the only child then unemancipated and the periodic alimony payments to $30.00 per week. From this order of the Jefferson Circuit Court this appeal was taken.

The rule invoked by the Jefferson Circuit Court as authority for its decision provides that: “Rule 13.06—Agreements filed in domestic relations cases—Unless the order itself provides in specific terms to the contrary, all agreements between estranged husband and wife providing for periodic payments of alimony extending into the indefinite future when entered shall be subject to the power of the court from time to time to revise such payments should, in the discretion of the court, change of circumstances render such revision equitable.”

The appellant contends that the rule as applied in this action to reduce the agreed alimony payments conflicts with the substantive law of this state, abrogates a substantial contractual right of the plaintiff under her agreement with the defendant and is, therefore, invalid. It may be conceded that a rule of a circuit court must fall if it would modify the substantive law of this jurisdiction. 14 Am.Jur.Cts., Sec. 152 at Page 357.

The defendant takes the position that the circuit court rule is reflective of the law of this jurisdiction which he contends is that a court has the same power to adjust periodic payments of alimony provided for in a property settlement agreement incorporated into a divorce judgment as it has to adjust such payments where the order providing for them is not based upon a property settlement agreement of the parties.

We perceive the law to be that a judgment incorporating an agreement specifying periodic payments of alimony may or may not be subject to modification by the court depending upon the nature of the particular agreement involved. In 17A Am.Jur., Section 904, page 92, it is said:

“Questions relating to the construction, operation and effect of separation agreements between a husband and wife are governed, in general, by the rules and provisions applicable to the case of other contracts generally.”

With reference to the power of the court to modify such an agreement, it is announced in 166 A.L.R., page 693:

“It is held in the great majority of the cases that where the parties have made a written contract settling their property rights and this contract is approved by the court and is incorporated in the decree, it cannot be modified under the general power to modify a decree concerning alimony. Even where the agreement and decree provide that the husband shall make periodic payments to the wife, the majority of the courts hold that it is not a provision for alimony, and the decree cannot be modified, where the payments are in consideration of a transfer of property or are in consideration of the release of dower or other property rights.”

If the agreement constitutes a property settlement agreement as such, that is, is meant as a final settlement of the property rights and claims of the parties, or if it combines the elements of both alimony and property settlement without separating the amounts for each, the court is without authority to vacate such agreement and disturb the property rights thereby gained. When tested by this rule, the apparent conflict in the decisions is reconcilable.

In the case of Renick v. Renick, 247 Ky. 628, 57 S.W.2d 663, cited by both the plaintiff and the defendant, a divorce judgment was entered which incorporated an agreement of the parties for periodic payment of alimony. The husband subsequently moved for a reduction in the agreed periodic payments. The agreement of the parties provided that “It is stipulated and agreed that this instrument shall be treated and considered as a final settlement and adjustment of all property rights and money claims between the contracting parties. The party of the second part expressly renounces and relinquishes all further claims upon the party of the first part, or to his property wherever situated, including homestead and dower right; and on the other hand, the party of the second part hereby expressly relinquishes, quitclaims and disclaims all right, title or interest in and to any of the real or personal property of the party of the second part, wherever situated, excepting of course, those things provided for by this instrument, with respect to furniture, maintenance and insurance policies.” After a review of the cases, this Court reversed the lower court’s modification of the agreed payments and stated that it was without power to make a new contract for the parties simply because of a change in their circumstances. In this case a property settlement agreement in the true sense of the term was involved.

In the case of Turner v. Ewald, et al., 290 Ky. 833, 162 S.W.2d 181, the parties entered into a property settlement agreement providing for periodic payment of alimony. The agreement contained this provision :

“This agreement is in full settlement, satisfaction and compromise of any and all claims which either Mr. or Mrs. Ewald may hold against the other; and in the event of the death of either after this Agreement becomes operative, and while they are still husband and wife, the one surviving hereby waives all claims to curtesy, dower, homestead or distributable share in either the real or personal estate owned by the other.”

In this case the Court reversed the judgment of the lower court reducing the agreed payments of alimony. In its opinion, this Court observed that:

“There is conflict in the authorities as to whether an agreement between a husband and wife, pending divorce, and incorporated in a divorce decree renders the decree immune from subsequent modification where the agreement merely fixes the amount of the allowance to the wife for maintenance and support, but it is well settled in this jurisdiction that a decree embodying an agreement of the parties, which has the effect of a valid property settlement contract, cannot be modified.”

This Court found the particular agreement involved to be a property settlement agreement and reversed a ruling of the lower court reducing the agreed amount.

On the other hand, when a “property settlement agreement” incorporated in a judgment is in fact merely an agreed amount for the support of the wife, this Court has not hesitated to permit modification of payments upon change of conditions. In the case of Boehmer v. Boehmer, 259 Ky. 69, 82 S.W.2d 199, it was agreed between the parties that an amount of $10.00 would be paid by the husband per week as support and maintenance of both his wife and child. A reading of the case will show that the agreement therein involved was not a property settlement agreement in the proper sense of that term but was agreed allowance for support of the defendant’s wife and child. Therefore, it was quite properly held to be subject to modification upon change of circumstances of the parties.

The cases cited by the defendant do not support his position that the court retains power to modify the amounts of agreed periodic payments irrespective of the nature of the agreement providing for them.

In the case of Davis v. Davis, Ky., 347 S.W.2d 534, the only question involved was the propriety of a divorce judgment ordering a lump sum payment of alimony as well as periodic payments.

In the case of Cawood v. Cawood, Ky., 329 S.W.2d 567, the court refused to modify a judgment granting lump sum alimony. The dicta in that case to the effect that alimony payable in installments is subject to modification expresses the rule heretofore recited as applying where no valid property settlement agreement is involved. The case of Gann v. Gann, Ky., 347 S.W.2d 540, cited by the defendant, is not in point but the dicta therein supports the contention of the plaintiff. In the case of Davis v. Davis, supra, no written agreement was involved. For a collection of cases see Annotation in 166 A.L.R. at Page 675.

The determining question becomes, did the agreement entered into by the parties in this case, in fact, constitute or inseparably include a property settlement? We believe that the agreement in fact was a property settlement agreement and that the rule of the lower court as applied to it was invalid.

It will be noted that the preface to the agreement sets out that it is to be a settlement of all property rights, rights of curtesy, dower and maintenance. It appears to be that this agreement was intended by the parties to be final, and was in fact an adjustment of the parties’ property rights as distinguished from a provision for a mere right of support. The record does not reflect precisely what property rights the defendant gained pursuant to this agreement, but the relinquishment of any interest that the plaintiff had in a leasehold interest on which the defendant operated a drugstore was expressly provided. Having given up whatever right she had against the defendant in consideration for his agreement to pay her a monthly sum it seems to us that, as stated in Renick v. Renick, supra, it would be “transgressing the principles of justice” to permit the defendant to take full advantage of his agreement with the plaintiff, and after having enjoyed the rights he gained by virtue of said agreement, relieve himself of his obligation thereunder. It does appear from the record that the defendant is hard pressed to meet his many obligations with his present income. However, we do not think the plaintiff should be deprived of her contractual rights because of the frivolity of the defendant.

Rules of court are procedural. They cannot affect substantive law. However, Rule 13.06 of the Jefferson Circuit Court need not be construed as an attempt to deal with the vested rights of parties under a property settlement contract. The rule should be construed as embracing only those matters that by law are properly subject to adjustment and modification by the courts, and as inapplicable to the property settlement here involved.

We believe that the court correctly reduced the child support payments to $15.-00 per week due to change in conditions. It is well settled that no agreement of the parties can deprive the court of its jurisdiction in regard to the maintenance of a child. Ullman v. Ullman, Ky., 302 S.W.2d 849.

It is, therefore, recommended that the judgment of the lower court reducing the child support payments from $18.00 per week to $15.00 per week be affirmed.

It is further recommended that the judgment of the lower court be reversed insofar as it reduces the amount of periodic alimony below the sum of $55.00 per week, the amount payable according to the property settlement agreement of the parties, and that the judgment be modified consistent with this opinion.

The opinion is approved by the court and the judgment is affirmed in part and reversed in part, and that the judgment be modified consistent with the opinion.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Sannie BELK et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, James H. Lucas, Department of Highways, Bowling Green, for appellant.

      Aaron F. Overfelt, Bowling Green, for appellees.
   WADDILL, Commissioner.

In this condemnation action instituted pursuant to the provisions of ICRS 177.081 et seq. the jury awarded the appellee landowner $62,000 for the land and buildings taken and $1500 as damages to the remainder. In seeking reversal of the judgment the Commonwealth urges that the court erred: In permitting the jury to base its award upon appraisal testimony having insufficient probative value; in ruling upon admissibility of certain evidence and in instructing the jury.

Upon direct examination Earnest Miller and Robert Devasier testifying on the landowner’s behalf gave the following values of the property before the taking and the total damages caused thereby:

Before Value Damage

Miller $99,151 $71,325

Devasier 92,000 75,000

Upon cross-examination, when asked the worth of a hypothetical tract of land identical with that of the landowner’s remaining land, they testified as follows:

Miller $64,844

Devasier 51,600

When these latter amounts are subtracted from the value assigned to the tract before the taking upon direct examination, the total damages are:

Miller $34,307

Devasier 40,400

Both Miller and Devasier, who were skilled in professional appraisal techniques and were regularly engaged in land transactions in the Bowling Green area, qualified as expert valuation witnesses. The jury was thus entitled to give their opinions of damage great weight and apparently did so.

There was no attempt to explain the substantial differences in their opinions of damage reflected by their direct and cross-examinations. Because of these inconsistencies appellant moved to strike the testimony of these witnesses, which motion was overruled.

Ordinarily, a witness’ testimony ought not be stricken for a mere conflict in his testimony. West Kentucky Coal Co. v. Commonwealth, Ky., 368 S.W.2d 738. However, when the chief controversy is the amount of damages to be awarded and an expert witness gives opinions of the amount of damages which are glaringly contradictory, his status as an expert becomes so unreliable that his testimony should be stricken upon a proper motion.

We have concluded that the failure to sustain- the motion in the instant case constituted prejudicial error. We observe that the landowner’s valuation witnesses used the wrong approach in establishing damages and, in the event of a retrial, they should follow the procedure set out in Commonwealth v. Sherrod, Ky., 367 S.W.2d 844 and in Commonwealth v. Cardinal Hill Nursery, Inc., Ky., 380 S.W.2d 249.

The appellant contends that the trial court erred in permitting M. B. Williams to assign separate values to certain underground storage tanks used m conjunction with a service station located on the condemned land and also in instructing the jury on the measure of damages. We agree. In the event of a new trial the trial court shall sustain objections to placing separate values on individual factors (Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844) and shall be guided by our decision in Commonwealth, Department of Highways v. Priest, Ky., 387 S.W.24 302 (decided November 20, 1964) in formulating its instructions. The trial court also erred in failing to permit appellant to cross-examine the witnesses about the value of the tract after the construction of the new road had' been completed. Commonwealth, Department of Highways, v. Wood, Ky., 380 S.W.2d 73.

Furthermore we observe that if the evidence concerning the issue of the landowner’s property line is substantially the same upon retrial, it may be resolved by reference to our decision in Commonwealth, Department of Highways v. Conley, Ky., 386 S.W.2d 750 (decided November 25, 1964).

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