author: RUARK, Judge.

text:
    Raymond GARBEE, Plaintiff-Appellant, v. Patricia Ann Garbee TYREE, Defendant-Respondent.
    No. 8463.
    Springfield Court of Appeals. Missouri.
    Feb. 16, 1966.

      Bussell, Hough & Greene, Joe C. Greene, E. Mitchell Hough, Springfield, for plaintiff appellant.
    Parker F. Moon, Springfield, for defendant respondent.
   RUARK, Judge.

This is another insolvable problem presented by an appeal from an order modifying custody of two boys, aged respectively five and three at the time the motion was filed, and a year older when the case was tried on its merits.

In 1962 the father, Raymond Garbee, filed suit for divorce and custody against his wife Patricia. Decree of divorce was granted the wife on her cross-bill, and custody of the two children was split between the mother and father in alternating three-month periods until (in the future) September 1, 1964, after which the father should have custody during the school months and the mother during the summer months, with reasonable rights of visitation in both parties; the father to pay twenty-five dollars per week for support while the children were in the custody of the mother. On November IS, 1963, the mother, Patricia, filed motion to modify as to custody (the contents of this motion will be described in some detail hereafter). Raymond filed answer and cross-motion to modify. The judge who had heard the issues in the divorce case having disqualified, the evidence in this case was heard by special judge, the Honorable H. A. Kelso, on August 8, 1964. Then, on application of the father, the hearing was recessed and continued until October 28, 1964, at which time it was resumed. On December 17, 1964, the court rendered its decree, the substance and effect of which was to reverse the periods of custody so the mother has the children during the school months and the father takes them during the summer months, with additional provisions for visitation and temporary custody during holidays. The father has appealed.

The transcript is replete with repeated objections and arguments of father’s counsel. We will consider the technical points raised in the appellant father’s brief, but first we must set forth generally the conditions as they existed at the time the divorce was granted as we gather from hither and yon in the transcript.

Here we remark that the mother was somewhat restricted in the showing of prior conditions. It is true that the judgment of a court having jurisdiction as to divorce becomes res adjudicata as to divorce; and the award of custody therein made is a conclusive adjudication in respect to the fitness and unfitness of the parents in respect to the over-all conditions then, existing. Custody can later be changed only by proof of other further or different circumstances which call for such change. The reliance on the plain record does not always give a true picture of the conditions existing at the time of the original award. Often a number of grounds and a number of incidents are set forth in the pleadings. The trial judge does not usually make a finding of facts, and sometimes, as here, the judge who hears the motion to modify is not the one who heard the original case. Of course (in a motion to modify) the original case (and the facts involved) cannot be retried and rehashed (Derringer v. Derringer, Mo.App., 377 S.W.2d 513, 515), but it often is necessary to permit the showing in a general and limited way of the circumstances and character of the parties as they existed at the time of decree in order to furnish a basis for determining whether there has been a material change affecting the welfare. The original decree of divorce having been granted the mother on her cross-bill, it necessarily follows that she was the innocent and injured party and that the father was the wrongdoer in some one or more of the matters charged in her cross-bill. McCoy v. Briegel, Mo.App., 305 S.W.2d 29, 35. But that in itself is not the sole criterion in awarding custody. Paxton v. Paxton, Mo.App., 319 S.W.2d 280.

As to the circumstances existing at the time of the original decree: The younger boy had been born what is termed mongoloid. The mother was suffering from a condition which the doctors refer to as a post-partum psychosis — a mental illness which sometimes follows the birth of a child. The father and mother were separated ; she was unemployed and without means and was living with her parents in a nearby town. Her father was in the habit of getting on extended drunks and was of limited means. There is little, if any, evidence as to circumstances of the father at the time of the divorce.

One of the appellant father’s assignments is error in overruling his motion to dismiss the mother’s motion to modify. This motion to modify set forth allegations in respect to her remarriage, the occupation and salary of her present husband, her present living quarters, ability to maintain, support, and educate the children, attendance in church and kindergarten, and the further allegation that she had continued her medical treatment and that her present psychiatric condition was such that she was able to maintain herself at all times.

The basis of the attack is that the motion to modify did not contain any allegations of change of condition rendering “the principal custodian” unfit. We do not find in the transcript any such motion to dismiss. If there was in fact such a motion, and if the appellant intended to preserve any error because of its overruling, it was his duty to see that it was contained in the record. We do find that at the start of the trial the appellant (verbally) made what he calls a “renewal” of his motion to dismiss, and after a few pages of argument the court permitted the mother to amend her petition to insert an allegation that the modification would be for the best interests of the children. All this was after the appellant had filed his cross-motion to modify praying for full custody. In this cross-motion he made several allegations in regard to his ability to support and care for the children and concluded with the statement that “plaintiff has, without exception, demonstrated his stability and ability to care for said children and to see that they are appropriately raised in love and affection and that the defendant has consistently demonstrated to the contrary.” It would seem to us that if the wife’s motion did not put conditions in respect to father’s fitness in issue, he himself by answering over and in his own cross-motion made such an issue. See Nunnink v. Nunnink, Mo.App., 257, S.W. 832(4).

It is true that the motion to modify is an independent proceeding and must state a “claim for relief,” which necessarily involves a change of circumstances bearing on the welfare of the child. Wood v. Wood, Mo.App., 378 S.W.2d 237, 239; Wilton v. Wilton, Mo.App., 235 S.W.2d 418, 419; Olson v. Olson, Mo.App., 184 S.W.2d 768. But a child whose custody must be adjudged is in some respects a ward of the court (McCoy v. Briegel, supra, Mo. App., 305 S.W.2d 29, 35), and the public has some interest (S. v. G., supra, Mo.App., 298 S.W.2d 67, 74). For this reason the courts have been inclined toward considerable liberality in construing the pleadings which involve the welfare of a child, and strict technicalities are swept aside (Gianformag-gio v. Gianformaggio, Mo.App., 341 S.W.2d 293; Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458); and the welfare of a child is not to be decided upon any “legalistic presumption” (In re Shepler, Mo., 372 S.W.2d 87) for the obvious reason that a child should not be permitted to suffer because of the ineptness of one lawyer or the acumen of another. But regardless of the foregoing, we think the change of conditions over-all necessary to state a cause of action is one which calls for a change of custody, and this change of condition can apply to one or both of the parents. In some cases the change of condition is one which primarily affects one parent while that of the other is relatively unchanged.

Another of appellant’s technical assignments is error in permitting the mother to file an amended petition (motion to modify) and in refusing father’s motion to strike the amended motion or the evidence received prior to such amendment.

On September 16, 1964, the mother filed her amended motion to modify in which she elaborated somewhat on her remarriage,. the then employment of her present husband, and her home facilities. It then made allegations in respect to the father, the principal of which was that under his custody the children were frequently left with two elderly aunts and deprived of the companionship of the father, that the younger child was retarded, and that there were no adequate schools for such (retarded) children in the father’s community; that such child was being treated as a helpless invalid without opportunity to advance. It then added charges against the husband such as profanity, excessive use of intoxicating liquor, uncontrollable temper, and some abuse of the children. The father’s motion to strike charged that such amended pleading interjected issues not theretofore presented and at variance with evidence already adduced, that the new petition interjected elements which were defectively absent in the first motion, that the father was surprised by the new matter, and that the father’s right to appeal was jeopardised by the amendment. Trial was not resumed until October 28th, over a month after the filing. If the appellant was surprised, he had considerable time to recover from that surprise. As we have stated, the father by his own cross-motion had already put his fitness in issue.

The mother’s husband had changed employment (due to the general severance of brakemen by all railroads) since the filing of the first motion. This had necessitated a change of work location and address, and the change was pleaded (see Supreme Court Rule 55.55). She had also testified as to the adverse condition of the children when received back into her custody and the particular condition of the “retarded” child and necessity for special training. (See Supreme Court Rule 55.54).

The court should be liberal in permitting amendment to pleadings. Ordinarily such is a matter at the discretion of the trial judge, and his action in allowing amendments will not be disturbed in the absence of palpable abuse. Maniaci v. Luechtefeld, Mo.App., 351 S.W.2d 798, 801; Pender v. Foeste, Mo., 329 S.W.2d 656, 659. We fail to see how such amendment substantially prejudiced the appellant either in the trial court or on appeal. It was not a departure and did not introduce a new cause of action. We say again that in cases involving the welfare of the children we are not impressed by picayunish technical objections. It is obvious that attorneys for appellant were seeking to prevent inquiry into things which might be unfavorable to their client. We do not criticize them for trying, because they were representing their client; but it is the duty of the trial court, and this court, to attempt to get at the conditions which affect that welfare. We give such technical considerations short shrift.

Yet another of appellant’s assignments is in reference to the testimony of one Dr. Hulstra. The contention is that the court erred in admitting the testimony of the doctor as to the present condition of the movant mother. In order to understand this, some background must be given.

It appears from the (frequent and extended) arguments and objections of counsel in the trial court that the mental condition of Patricia (the mother-movant) was a disputed matter in the trial of original divorce case. In that case the wife’s counsel had agreed with husband’s counsel that the wife would submit herself to examination by a physician of father’s choosing and that the report of such physician would be accepted in lieu of the doctor’s testimony. The mother was examined by Dr. Hulstra, a psychiatrist selected by the father’s counsel. On the motion to modify, by agreement of counsel, the mother again submitted herself to Dr. Hulstra for examination. At trial of this case, her counsel called on father’s counsel for the doctor’s report. Father’s counsel conceded there was an agreement that the mother would permit herself to be examined but denied there was an agreement that the report would be received in evidence. Furthermore, he stated he had never received the doctor’s report. His statement was, “Dr. Hulstra and I on several occasions did confer about his findings but he and I finally resolved the situation to where he was going to muddle up the thing with a lot of antecedent things and we just concluded that we would just drop it and I paid his bill.” The mother’s counsel then obtained a copy of the questioned report from a member of the clinic with which Dr. Hulstra was associated and attempted to read it in evidence. Father’s counsel objected. The court indicated that he was not going to make a choice between the veracity of attorneys and excluded the report. The set-to as to the doctor’s report occurred on September 8. Thereafter trial was recessed, continued, and again resumed on October 28, and Dr. Hulstra appeared as a witness for the mother. He testified that he had examined her on September 13, 1962, and again on December 16, 1963, at the request of father’s counsel; and he had again examined her on September 26, 1964. He testified that on the first examination he found that, “it remains to be seen if the patient would be able to maintain herself when under stress.” That on the first examination the mother was found to be suffering from post-partum psychosis which involved the birth of a child with a disorder, but on the later examinations he found that she had now recovered from that illness and it was not likely to recur. On these subsequent examinations he found her well-oriented and with no evidence of thinking disturbance, that she held up well under stressful circumstances, and (to use our words in lieu of more lengthy medical jargon) the wife was normal, with some slight residue of fear of men. He understood the situation in regard to the mongoloid child and emphasized the fact that such condition would require a great deal of effort and patience. He was asked if she was not suffering from any psychotic disturbances which would render her unfit to have minor children in her custody and care. The father’s objection to this last question was (we think erroneously) sustained. The doctor was testifying from a paper which he said was a copy of a report dated January 2, 1964, addressed to father’s counsel. He thought the original of the report had been mailed to father’s counsel. He said his diagnosis was based on talking with the mother, family history, past history, present history, and present illness. He did not administer any treatment. Father moved to strike the doctor’s testimony because he was not the treating physician; and that is the complaint on this assignment.

The only case cited in support of this contention is Schears v. Missouri Pacific Railroad Co., Mo., 355 S.W.2d 314. The situation covered in that case is so different that we do not feel we should extend this lengthy opinion by distinguishing it. Obviously the means and methods used in diagnosis by an expert on mental illnesses are not the same as those used by a physician who undertakes to diagnose the results of an alleged traumatic injury. In this case, the very purpose of the doctoras diagnosis was to determine her mental condition. In fact, the testimony of father’s counsel was that he caused the mother to be examined by Dr. Hulstra not because he was concerned with the mother’s health but because “I was interested in refuting the allegation that her condition had improved.” He got that diagnosis by an expert. Obviously he would have used it had it been favorable to his contention. He is now in a poor position to say that the doctor was not qualified to express an opinion ; and we would be in a poor position to attempt to proscribe by judicial edict the methods used by psychiatrists in evaluating their patients and making their diagnoses. But even if the testimony of Dr. Hulstra were not competent, the result in this case would not be changed. The mother proved her recovery and return to normalcy by other medical evidence, and there was none to the contrary. A mother having been once mentally ill and then incapable of full-time custody of her children is not thereby forever debarred from custody. See Patterson v. Patterson, Mo.App., 375 S.W.2d 614; R. v. E., supra, Mo.App., 364 S.W.2d 821.

The final and we think the only worthwhile contention raised by the appellant is that the change of conditions affecting the welfare of the children was not such as to compel a change in custody. Even in this contention we are confronted with a technical approach which we will first dispose of. The trial court filed a short memorandum. It said in substance that he found there was nothing wrong with either of the homes and that the children might be well reared in either; however, “under the doctrine of Paxton v. Paxton, Mo.App., 319 S.W.2d 280, it would seem to me that the mother is entitled to custody of the children.” His decree, however, did not give the whole custody to her. It placed custody in her during the school year. Appellant takes the reference to the Paxton case as creating a presumption in favor of the mother and then sets out to knock that presumption down by stating this is a case where the court had previously granted “principal custody” to the father, and that consequently the presumption runs the other way. In support he cites Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364, and similar cases. The Paxton case holds many things (as will be noted from a mere glance at its seventeen headnotes). But we will assume that here the trial judge intended to say that both parties and both homes were suitable, but under the whole circumstances he had concluded that the children belonged with the mother. The statement that “all things being equal, the courts are more inclined to feel that the proper place for young children is with the mother” runs through all of the decisions. Of course all things never are exactly equal. What is intended is that if young children are involved and choice is difficult, then in ordinary circumstances the mother is favored. This is not a presumption of law; it is a recognized fact of life based on human experience. We agree with the remark of Bailey, a former judge of this court, “Psychology is a wonderful thing, but it cannot take the place of a mother’s love. Nothing can.” Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458, 463.

Of course, if the trial court had by its previous order found the mother “unfit” to the extent of excluding her from custody, there was necessarily a finding which negated any assumption that welfare of infant children would be served by leaving them with her. We do not believe that an award dividing the custody (as was the original award in this case) necessarily negated the “fitness” of either party (see Patterson v. Patterson, Mo.App., 375 S.W.2d 614, 621).

But the person who seeks the change nevertheless has the burden of showing that different circumstances exist by reason of which the welfare of the children will be materially promoted and enhanced by change in custody. What are the circumstances? It was agreed that the living conditions in both the present homes are suitable. The father lives in a rural community near Billings in the home of his parents, and we believe in a wholesome atmosphere. He and his parents are of good reputation and go to church regularly. The father is regularly employed in Springfield and drives back and forth to work. He makes approximately ninety dollars per week, goes to work at three in the afternoon and gets off around eleven p.m. Sometimes after work he goes to the apartment of a girl friend and drinks coffee. Sometimes he stops on his drive back to Billings and drinks a bottle or two of beer. The grandfather has business and farm interests and is not regularly at home during the daytime. Quite obviously the regular daily burden of care of the two children is thrown on the paternal grandmother, who is in good health except for occasional headaches. However, the father has the benefit of the help of two unmarried aunts who live about a half-mile away. One of these is a fifty-seven-year-old school teacher who has had some courses in the teaching of retarded children. From “time to time” she spends some time with Jeffrey, the mongoloid, in helping him to talk; “He repeats after me,” working with picture books, story books, and different things. Often, in his off hours, the father goes to his own farm a mile and a half distant from the home of his parents where he now lives and attends to his livestock and farm duties. Sometimes, when he thinks it will be safe, he takes one or both of the children with him.

The mother has remarried. At the time of her marriage, her husband was a' Frisco brakeman, but he was “severed” in the general lay-off of employees with less than ten years’ seniority. He now works for a life and accident insurance company in Kansas City. He has a guaranteed salary of six hundred dollars per month. However, (and this gives us pause) the present husband has two children by a former marriage. They are not in his custody, and he is paying one hundred fifty dollars per month for their support. He and the mother have purchased a mobile home which is fifty-six feet long and ten feet wide with two bedrooms. The trailer park in Kansas City where they now live has a place to play and a number of families with children, and the children, with their parents, play there. The trailer park is a neighborhood in itself. There is school and a supervised playground within two blocks. The present husband is fond of the children and wishes them to live with him and the mother as a family unit. When the children are with them, Douglas, the older boy, always asks the blessing at the table. The mother says that when the children are returned for her period of custody, the older boy seems confused and inclined to return to thumb-sucking, and the younger child makes no effort to talk until she starts working with him again.

There is conflict in the testimony as to the personal characteristics of the father. There was some evidence, from source not the mother, to indicate that he is high-tempered, impatient, and sometimes inclined to the use of profanity in the presence of the children. There has been some difficulty and unpleasantness in exchange of custody. The trial court, who heard the evidence, was in better position than we to judge the extent of the difficulty and the person who should be blamed for it. There is also some slight evidence to indicate a certain (at least outward) coldness, or perhaps we should say lack of demonstrative affection, of the father with the children. The father made the point of testifying that, during periods of custody of the mother, she had had Jeffrey, the mongoloid, in the hospital four times, whereas it had not been necessary at all during the periods of the father’s custody. Yet the evidence shows that this child suffers from physical defects in addition to his retarded condition. One trip to the hospital was necessary because he was suffering from internal bleeding; another occasion was a trip to a hospital in St. Louis to see a specialist concerning an operation on the child. This was on the advice of the local physician.

There are schools for children such as Jeffrey in Kansas City. There are not shown to be any in the vicinity of the home of the father.

In cases of this kind we defer to the judgment of the trial court as to disputed questions of fact. This because he is in a better position to judge the sincerity of the witnesses than we are. We agree with the trial court that both parties are “fit” parents. We think it clear that the mother is passionately devoted to these children. The doctor, in testifying, emphasized that patience would be a necessity in rearing the younger child. The daily care and teaching will necessarily rest in one instance on the mother, and in the other on the grandmother, with some part-time assistance from the willing great-aunt. We have no doubt that they are of the highest character. We have the special circumstance of a retarded child who will require more or less constant supervision and patience and continued special medical treatment. See Perr v. Perr, Mo.App., 205 S.W.2d 909, 913. While argument can be made pro and con with good reason, we are inclined to agree with Judge Bailey that no one can take the place of the mother. It is a difficult situation, and no solution in regard to custody can be entirely satisfactory. Had the trial court decided the issues the other way, we would probably have affirmed; but he had the advantage of being able to judge intangibles which do not appear in the printed record. We therefore affirm.

STONE, P. J., and HOGAN, J., concur.

      . S. v. G., Mo.App„ 298 S.W.2d 67(8); Davis v. Davis, Mo.App., 192 S.W.2d 41 (6); 27 MLR 406, 428 et seq.

      . This we understand to be a type of mental retardation which is present at birth. This condition can sometimes be helped by training but cannot be cured.

      . Gianformaggio v. Gianformaggio, supra, Mo.App., 341 S.W.2d 293; West v. West, 94 Mo.App. 683, 687, 68 S.W. 753, 754; R. v. E., Mo.App., 364 S.W.2d 821.

      . Custody was later changed because of disobedience and disrespectful attitude toward the court and its authority in removing child outside the jurisdiction of the court. Green v. Perr, Mo.App., 238 S.W.2d 924.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Gene PARSLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.
    See also Ky., 400 S.W.2d 203.
    Gene Parsley, pro se, for appellant.
    Robert Matthews, Atty. Gen., David Murrel, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Gene Parsley, a prisoner in Eddyville, appeals from the order denying his motion to vacate the judgment of conviction for which he is imprisoned. The RCr 11.42 motion was overruled without a hearing.

Parsley asserted two grounds upon which he deemed himself entitled to the relief: (1)That he was not afforded counsel at his examining trial, and (2) a witness for the prosecution furnished an affidavit in which the witness admits that her testimony identifying Parsley as the perpetrator of the crime was mistaken and erroneous.

The offense for which Parsley was convicted and is now imprisoned was rape. His sentence was imprisonment for life. The prosecution for rape was before this court twice. See Parsley v. Commonwealth, Ky., 321 S.W.2d 259, and Parsley v. Commonwealth, Ky., 306 S.W.2d 284.

The trial judge properly denied the instant motion without a hearing, because the only allegations of the motion reflect that the motion is without merit. Maggard v. Commonwealth, Ky., 394 S.W.2d 893; Maye v. Commonwealth, Ky., 386 S.W.2d 731.

The bare allegation that counsel was not furnished at the examining trial is not a basis for relief under RCr 11.42. There was no allegation of any prejudice flowing from that circumstance. Carson v. Commonwealth, Ky., 382 S.W.2d 85, cert. den., 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed.2d 825.

As appears from the opinion in the second appeal, 321 S.W.2d 259, the same question as to newly discovered evidence was adjudicated which Parsley now advances as a basis for relief under RCr 11.42. Newly discovered evidence is not a ground for relief under RCr 11.42 anyway. Bell v. Commonwealth, Ky., 395 S.W.2d 784.

The judgment is affirmed.


text:
    Gene PARSLEY, Petitioner, v. Honorable B. Robert STIVERS, Judge, Laurel Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    March 4, 1966.
    See also, Ky., 400 S.W.2d 202.
    Gene Parsley, pro se.
   DAVIS, Commissioner.

The petitioner invoked the original jurisdiction of this court seeking an order directing the respondent, as presiding judge of the Laurel Circuit Court, to furnish a record of proceedings on petitioner’s motion to vacate a judgment of conviction, filed pursuant to RCr 11.42.

The record sought has been furnished. The present proceeding has become moot and is, therefore, dismissed.


author: MONTGOMERY, Judge.

text:
    KENTUCKY UTILITIES COMPANY, Appellant, v. L. B. BRUNER et al., Appellees.
    Court of Appeals of Kentucky.
    March 4, 1966.

      Stoll, Keenon & Park, Lexington, Henry C. Cox, Lancaster, for appellant.
    James F. Clay, Danville, for appellees.
   MONTGOMERY, Judge.

Kentucky Utilities Company appeals from a judgment awarding L. B. and Gladys Bruner $3,250 as damages for condemnation of an easement for the transmission of electric energy across the Bruner property. Appellant contends that the verdict is not supported by sufficient evidence of probative value and that it is excessive.

Appellees’ property is located on U. S. Highway 27 about 1½ miles south of Lancaster and consists of approximately 19 acres. It is bounded on the west by the highway, on the south by the Wilson May property, on the east by the Louisville & Nashville Railroad track, and on the north by a private road. The improvements on the property consist of a two-story frame dwelling, a small cabin, a small barn, and other small outbuildings. At the time of taking the property was used for agricultural purposes and as a junk yard.

The easement crosses the back portion of the farm approximately 600 feet from the center of U. S. Highway 27 and is near the Louisville & Nashville Railroad track. It encompasses an area 100 feet wide and 517 feet long and contains 1.19 acres of land. There are two pole structures located on the easement. Each pole structure consists of two poles with a crossarm. The pole structures are located along the center line of the easement. The two poles in each structure are 10 feet 6 inches apart. Each of the four poles has an approximate diameter of 12 to 18 inches. The taller pole in each structure is 65 feet high while the shorter pole is 55 feet high. Eaeh structure has a crossarm that is 25 feet long. There are three transmission wires strung on the crossarms of the two structures. At the lowest point the wire is 31 feet above the ground. The transmission lines carry 69,000 volts.

The easement is not located near the residence on the farm but is near the rear of the farm. Appellees retained the right to cultivate, fence, build roads over, or use the lands covered by the easement for any other purpose that does not conflict with the operation of the transmission lines. The only limitation is that buildings cannot be constructed on the easement area. The only interference with the present use of the property is that caused by the physical presence of the four poles. There are no other structures or buildings of any type located on the easement property and there are no guy wires or anchors.

The appraisal witnesses testified to the following values:

Before Value After Value Difference

Owens $ 14,250 $ 13,500 $ 750

Story 18,350 18,000 350

Layton 38,000 20,000 18,000

Lane 40,000 to 20,000 to Approximately 20,000

42,500 25,000

Owens and Story testified for appellant. Layton and Lane testified for appellees. Neither of the appellees testified.

For the appellant it was shown that an adjoining 25-acre tract of land with better improvements had sold for $25,000, or $1,000 per acre. Also, a 76-acre tract of land located between the Bruner property and Lancaster had sold for $50,000, or approximately $645 per acre. Another sale described as comparable was for 22.58 acres sold at slightly less than $700 per acre. It was further shown that the Bruner property was not suitable for residential subdivision purposes because of its proximity to the railroad and stockyard and because the residential development of Lancaster had been toward Lexington and Richmond and away from the Bruner property.

For the appellees it was shown that the best use of the property would be for residential subdivision purposes and that it was also suitable for commercial or industrial uses. Sales testified to as comparable were of several tracts consisting of 1 to 4 acres and ranging in price from $2,500 to $5,000. No objection was made to this testimony on the basis of incomparability.

In Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, the rule is stated thus:

“If, however, the jury gives the evidence more weight and value than the maximum it is entitled to, the appellate court has power to set aside the verdict either on the ground of palpable excessiveness or on the ground that it is not sufficiently supported by the evidence.”

See also Commonwealth, Department of Highways v. Aylor, Ky., 399 S.W.2d 723 (decided February 25, 1966).

Layton and Lane, testifying for ap-pellees, affixed the damages at $18,000 and approximately $20,000, respectively. Such testimony is clearly and obviously so extravagant and unreasonable as to be an affront to common sense and ordinary intelligence. The assessed value of this entire property for taxes was $3,650; thus, the evaluations of damages for an easement of 1.19 acres made by the appellees’ witnesses are between five and six times the assessed value for taxes of the entire 19 acres. The assessed value was only slightly more than the award made. It is not unusual for a landowner’s neighbors and friends to testify to exaggerated land values in a condemnation proceeding, but the testimony here exceeds the bounds of neighborliness and, by its extravagance, has lost its probative character. As such it is insufficient to support the verdict.

About the only interference with ap-pellees’ use of their land was the four poles placed thereon. Under the circumstances here the award of $3,250 for the easement is papably excessive. East Kentucky Rural Electric Cooperative Corp. v. Phelps, Ky., 275 S.W.2d 592; Salt River Rural Electric Cooperative Corp. v. Thurman, Ky., 275 S.W.2d 780.

Judgment reversed.


author: MILLIKEN, Judge.

text:
    John David ELLIOTT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.

      John David Elliott, pro se.
    Robert Matthews, Atty. Gen., Robert Preston, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

This is an appeal of a judgment denying relief in an RCr 11.42 action to vacate the appellant’s March, 1965, judgment of conviction of the offense of storehouse breaking for which he was sentenced to three years’ imprisonment.

The trial court granted the appellant’s motion to appear in person at the hearing on his RCr 11.42 action, and thoroughly considered the grounds advanced for vacating the judgment of conviction. The gist of the matter is that Elliott was indicted on January 6, 1965, arraigned on January 28, 1965, when he was represented by counsel of his selection, and his trial set for February 17, 1965. On the latter date employed counsel withdrew from the case, the trial court appointed counsel to represent Elliott, and re-set the trial for March 8, 1965. On the same day (February 17, 1965) Elliott consulted at length with his appointed counsel, announced that he was going to Florida and went, and did not return to Kentucky until Sunday night, March 7, 1965, the night before his trial.

The record discloses that Elliott’s only possible defense (since he admitted breaking into the storehouse) was that he was too drunk to know what he was doing at the time. The trial court submitted that defense to the jury under a proper instruction, but the jury found Elliott guilty. On the RCr 11.42 hearing it was shown that appointed counsel went out of his way to interview all known witnesses during Elliott’s absence in Florida, and that appointed counsel had had considerable experience in the field of criminal law while serving in the Judge Advocate’s section of the Army, and had successfully defended several persons in both State and Federal Courts since his release from military service.

It is obvious that Elliott had competent counsel at his trial, that everything possible was done to prepare a defense for him, and that his appointed counsel exercised good judgment in not objecting to a rather mild argument of the Commonwealth’s Attorney, “don’t give this boy a year,” an argument which was so temperate that it could not have been unduly persuasive or prejudicial •while an objection to it might have irked the jury.

The judgment is affirmed.


author: DAVIS, Commissioner. MONTGOMERY, Judge

text:
    Joe GREEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.

      Fritz Krueger, Somerset, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

On October 19, 1959, the appellant, Joe Green, entered a guilty plea to an indictment charging him with illegal possession of liquor for purpose of sale in local option territory. The indictment contained the charge that appellant had been convicted of the same type offense on two prior occasions. Pursuant to the guilty plea, a jury fixed his punishment at confinement in the penitentiary for one year. KRS 242.990(1). Appellant filed a motion and grounds for new trial on the day the verdict was rendered (October 19, 1959); the filing of the motion for new trial was noted of record by order which concluded: “ * * * and the court takes time on passing on same.”

The accuracy of the quoted portion of the order is reflected in the fact that it was not until February 5, 1964, that any further order was entered in the prosecution. On the latter date the court entered an order overruling the motion and grounds for new trial; this order recited that Joe Green had been notified in person of the court’s ruling. No indication appears that appellant’s counsel was notified, although appellant was represented by counsel of record.

The next order in the proceedings was entered July 18, 1964, and is thus worded:

“It appearing to the court that the defendant Joe Green has been tried and convicted on this indictment and same is stricken from the docket.”

On September 21, 1965, a “Judgment of Conviction” was entered, in which it is recited that Joe Green was brought into court, informed of the nature of the indictment, his plea and the verdict, and asked if he had legal cause to show why judgment should not now be pronounced against him. No such legal cause being shown, the judgment provided for the imprisonment of appellant for one year, pursuant to the 1959 verdict.

This appeal challenges the legality of the judgment entered September 21, 1965. It is asserted that the undue delay in pronouncing sentence deprived the court of jurisdiction to enforce the sentence at all. This view finds support in a number of jurisdictions. See 97 A.L.R. 802, et seq., wherein the general rule is reiterated in supplementing an earlier annotation in 3 A.L.R. 1004:

“As stated in the earlier annotation, it is the duty of the court, on a conviction or plea of guilty, to impose sentence within a reasonable time; an indefinite postponement of sentence deprives the court of jurisdiction over the prisoner, and a subsequent sentence is without judicial authority and void, unless justifiable cause exists for the delay, or the delay is authorized by statute.”

It is observed in the same text, however, that in the absence of a statute requiring it, sentence need not be imposed at the same term of court at which the verdict or plea of guilty was had. 97 A.L.R. 806. In support of that proposition decisions of this jurisdiction are cited: Commonwealth ex rel. Attorney General v. Gresham, 196 Ky. 27, 244 S.W. 66; Turner v. Commonwealth, 209 Ky. 272, 272 S.W. 726; Dilley v. Commonwealth, 243 Ky. 464, 48 S.W.2d 1070.

The appellee places heavy stress on the just cited Dilley case. Some of the language of that opinion, not considered in context, appears to support appellee’s view that the court did not lose jurisdiction. The actual point before the court, and decided by the court, in Dilley was whether it was requisite that the sentence be pronounced at the term of conviction. In Dilley the court found that the sentence was actually pronounced during the same term the verdict was rendered. Although the opinion refers to “numerous” cases from this court ordering judgment upon a verdict “ * * * even years after the latter was returned and where the court by oversight had neglected to pronounce judgment” — none of those cases is cited. Our decisions dealing with the problem at hand are compiled in 6 Ky. 2 Digest, Criminal Law, <®=3977(3). Without undertaking an analysis of the cases there collated, it is sufficient to note that they recognize that delay in pronouncing sentence must be a reasonable delay— and that in most instances, the matter of delay was clearly one of mere oversight on the part of the court.

Appellee directs our attention to Pollard v. White, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393. There the Supreme Court, dividing five to four, held that Pollard was properly sentenced to imprisonment, nearly two years after the conviction. It appeared that the District Court had entered an order probating Pollard’s sentence, but the order of probation was void because inadvertently entered without Pollard’s presence. In sustaining the delayed imprisonment, Mr. Justice Reed, speaking for the majority wrote, in part:

“Whether delay in completing a prosecution such as here occurred amounts to an unconstitutional deprivation of rights depends upon the circumstances. See, e. g., Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950 [954]; Frankel v. Woodrough, 8 Cir., 7 F.2d 796, 798. The delay must not be purposeful or oppressive. It was not here. It was accidental and was promptly remedied when discovered.” Id., 352 U.S. 361, 77 S.Ct. 486, 1 L. Ed.2d 399.

We think the same may not be said of the delay in the case at hand. While we do not intimate that the delay was intended to be oppressive, we view it as purposeful — ■ not accidental. It is apparent that the trial judge knew appellant had not been sentenced as of the time of overruling the motion for new trial — and again when the case was stricken from the docket. Neither are we persuaded that the rationale of Barker v. Commonwealth, Ky., 385 S.W.2d 671, is applicable here. In Barker we recognized the rule to be that a defendant may not be heard to complain that he has not been afforded a speedy trial unless he has asked for a trial. Here the situation is different, in that the trial — all but the final sentencing — has been accomplished. We think it would be unrealistic to expect or require a convicted person to affirmatively urge the court to send him to prison.

It should be observed that KRS 439.270, in dealing with probation, requires that the probation period shall not extend more than five years. RCr 11.02 was applicable when appellant was sentenced in 1965. Former Cr.Code Section 283 was in force when appellant was convicted. The language of RCr 11.02, patterned after Fed.Crim. Rule 32(a), directs that the sentence shall be imposed “without unreasonable delay.”

KRS Chapter 439 prescribes a specific probation system. That system would he substantially frustrated if the trial courts undertook to inaugurate a sort of “off the record” probation by allowing a motion for new trial to pend indefinitely. A convicted person hardly would dare to demand that the trial judge rule on his motion for new trial — he would prefer to “let a sleeping dog lie” — even though the uncertainty of his status should hang over him as certainly as the sword of Damocles. To thwart that situation the legislature has wisely provided that the probation period may not exceed five years. There must be some time in which a convicted person may know he has satisfied his debt to society. Orderly procedure and due process demand that the sentence be pronounced “without, unreasonable delay.” Inasmuch as the present sentence was imposed more than five years after the conviction, we conclude that “unreasonable delay” appears.

The judgment is reversed, with directions to enter a new judgment discharging the appellant from custody.

MONTGOMERY, J., dissenting.

MONTGOMERY, Judge

(dissenting).

In brief, my reason for dissenting is that an accused who has raised no objection to or has acquiesced in, if not consented to, a delay is not entitled to go scot free, especially when he has pleaded guilty. I am concerned at holding such a judgment void.

Obviously the appellant consented to the arrangement of filing the motion for a new trial and the postponing of a ruling on it. The record discloses no objection at any time until he was called upon to serve the sentence to which he had pleaded guilty. The delay in ruling on the motion is not unreasonable when not objected to or is consented to or acquiesced in by the defendant.

The majority opinion says, “There must be some time in which a convicted person may know he has satisfied his debt to society.” The appellant here has done nothing to satisfy his debt to society — ■ he has been free for over five years. It is only when he is called upon to “satisfy his debt” that he objects. This surely cannot be called a satisfaction of his debt to society.


author: CULLEN, Commissioner.

text:
    John Henry WARNER and Robert G. Zweigart, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.

      Robert G. Zweigart, Maysville, for appellants.
    Robert Matthews, Atty. Gen., John Browning, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

John Henry Warner filed a motion in the circuit court under RCr 11.42 to vacate a judgment of January 1964 by which he was given a four-year sentence for carrying concealed a deadly weapon. The court appointed Attorney Robert G. Zwei-gart as counsel to represent Warner in the motion proceedings and held a full hearing, following which the motion was denied. Zweigart then moved the court for allowance of a fee, to be paid by the county or from some other public source, for his services in Warner’s motion proceedings. This motion also was denied.

We have an appeal by Warner from the order overruling his RCr 11.42 motion, and an appeal by Zweigart from the order overruling his motion for a fee.

On Warner’s appeal the only point argued is that he was denied effective assistance of counsel. This is on the theory that evidence of his carrying a concealed weapon was obtained by an illegal search, but counsel appointed to represent him on the trial did not advise him that the evidence could be excluded, and therefore he was misled into pleading guilty. The theory is not sustainable because, first, there was evidence on the hearing of the RCr 11.42 motion that Warner was fully and properly advised by his appointed counsel, prior to his plea of guilty, on the question of admissibility of the evidence obtained by the search; and, second, the circumstances of the search as developed on the hearing of the motion indicate that the search was legal.

Zweigart’s claim of a right to a fee for his services is predicated on the proposition that a court order requiring an attorney to represent an indigent defendant in a post-conviction proceeding constitutes a taking of the attorney’s property for which the government is required, under the Fifth Amendment to the United States Constitution, to compensate him.

The holding of the United States District Court for the District of Oregon in Dillon v. United States, 307 F.2d 445, supported the above proposition, but that holding was reversed, and the reasoning of the District Court was rejected, by the United States Court of Appeals for the Ninth Circuit in United States v. Dillon, 346 F.2d 633. The latter decision is in accordance with our views as hereinafter expressed, and it is well documented.

Traditionally, an attorney has been considered to be an officer of the court. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Beau-champ v. Cahill, 297 Ky. 505, 180 S.W. 2d 423; Sparks v. Commonwealth, 225 Ky. 334, 8 S.W.2d 397; 7 Am.Jur., 2d, Attorneys at Law, sec. 3, p. 45. The office, which a person enters upon by accepting a license to practice law, carries the obligation of performing certain kinds of services, among which has been the representation of indigent defendants in criminal cases. Powell v. State of Alabama, supra. Compensation is not an indispensable element of an office, and there is no general constitutional requirement that every officer be compensated. 42 Am.Jur., Public Officers, sec. 6, p. 884; 43 Am.Jur., Public Officers, sec. 340, p. 134. Thus the concept has been that an attorney who is required to devote his time and knowledge to the representation of an indigent in a criminal case is merely fulfilling an uncompensated duty of the public office which he chose to attain, and he is not in the status of a private citizen being deprived of property without compensation.

In recent times a rapidly progressive broadening of views of the courts as to the stages at which indigents accused of crime (or even convicted of crime) are entitled to representation by counsel has resulted in a great increase in the amount of time and effort required to be devoted by the legal profession to this service. The demands of this service are reaching such proportions that the rendering of the service threatens to become a major function of the practice of law instead of a merely collateral responsibility of the office of attorney. The question properly has arisen whether the traditional concept, that the legal profession should furnish legal representation without compensation to the indigent, any longer is fair and just in its application — whether the burden has become such that society should no longer expect the Bar to carry it alone.

Congress has moved forward by making provision for compensation by the federal government to assigned counsel representing indigents in the federal courts. The Criminal Justice Act of 1964, 18 U.S.C. § 3006A. Some of the states have made provision for compensation for representation in the state courts; e. g., Wisconsin, Sec. 256.49 Stats.

In Kentucky, the Governor’s Task Force on Criminal Justice has studied the problem of legal representation for the indigent and has given consideration to a plan of state-paid compensation for assigned counsel.

While we think there is merit in the proposition that assigned counsel should be compensated we are not convinced that the point of time has arrived at which this Court should rule that the traditional concept of the duty of the attorney as an officer of the court to represent the indigent is no longer valid, and that the public treasury can be compelled by court order to make compensation. We think it is appropriate for the time to defer to legislative action.

The orders appealed from are affirmed.


author: MOREMEN, Chief Justice.

text:
    Ben W. McELWAIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.
    Laurence T. Gordon, Madisonville, for appellant.
    Robert Matthews, Atty. Gen., Robert D. Preston, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

Appellant, Ben W. McElwain, was indicted in the Hopkins Circuit Court for the armed robbery of a service station in Madi-sonville, Kentucky, on October 11, 1962. In December 1962, he was transferred to the Western State Hospital at Hopkinsville for a mental examination. Before the usual 35 day period of commitment had terminated, a request was made by the hospital that the time for observation and treatment be extended for an additional period of 35 days. This was granted. On February 19, 1963, the doctors at the hospital signed a certificate to the effect that in their opinion appellant was not mentally ill. This certificate, signed and sworn to by Drs. U. Appen and W. J. Kernohan, reads:

“Ben Wayne McElwain was admitted to Western State Hospital on December 27, 1962, under an order of Hopkins Circuit Court for a 35 day period of medical examination, observation and treatment. Affiants, staff physicians of and acting for the hospital, having examined the patient while hospitalized, certify that in their opinion the defendant is not a mentally ill or mentally defective person, and request his discharge from the hospital.”

Immediately following the arrest of appellant, the court appointed a competent defense counsel who conferred with appellant many times, both in the jail and at the hospital. His case came on to be tried on May 13, 1963, and, although we do not have before us the transcript of that trial, we do have a copy of the instructions given. The first instruction was a general one on armed robbery. The second instruction read as follows:

“The jury should consider the facts introduced in this case as to the defendant being drunk at the time that the offense stated in the indictment is alleged to have occurred for the purpose of determining his mental condition at said time and the motive which actuated him in the commission of the offense, if any was then committed by him, and if the jury believe from the evidence that at said time, by reason of drunkenness, defendant’s mental condition was such that he did not have the intention to take, steal or carry away from the person and in the presence of said Lawrence Buchanan, by putting the said Lawrence Buchanan in fear of bodily harm by the use or display of a pistol, a deadly weapon, said money and convert it to his own use and to permanently deprive the owners of their property therein, the Jury should find the defendant not guilty.”

Appellant was convicted and sentenced to life imprisonment.

In July 1965, appellant filed a motion under RCr 11.42 to have the judgment against him vacated on the ground that he was insane at the time of his trial and judgment. The court again appointed competent counsel to represent him in the proceeding ; a hearing was held on the motion, evidence heard and transcribed, and at the close of the hearing the court overruled the motion to vacate the judgment. From that order this appeal has been taken.

Appellant contends that at the time of his trial he did not have the capacity to comprehend the nature and consequences of the proceeding against him and to participate rationally in his defense, and reliance is had upon Commonwealth v. Strickland, Ky., 375 S.W.2d 701, in support of this contention.

After Strickland had been accused of a public offense and was awaiting trial he was committed to Central State Hospital on December 24, 1959, for a 35 day observation period. Thereafter, on February 11, 1960, he was adjudicated to be of unsound mind. In April of 1960, the medical authorities at the hospital where Strickland had remained since December 24, 1959, came to the conclusion that their original diagnosis of mental illness had been erroneous so they advised the circuit court that Strickland was able to stand trial. In May, Strickland withdrew his former plea of not guilty, pled guilty to the indictment and was sentenced to five years in the penitentiary. Later in a proceeding under RCr 11.42, the circuit court vacated the judgment on the ground that there should have been a formal inquest and restoration before he was tried and permitted to plead guilty. On the appeal in the RCr 11.42 proceeding it was held, in the absence of a hearing on Strickland’s mental capacity to plead after he had been adjudged of unsound mind, that he would be entitled, upon a post-conviction proceeding, to relief under RCr 11.42 upon a showing that at the time he entered his plea or was tried, he did not have sufficient mental competency to defend himself. The case was remanded for the purpose of hearing and determining the question of Strickland’s mental capacity at the time his guilty plea was entered.

The facts are quite different in the case under consideration because the court conducted a full hearing to determine the question of McElwain’s mental condition at the time of the first trial and on the motion to vacate the judgment. In the latter proceeding McElwain testified that he had experienced emotional disturbances while serving in the armed forces in Korea in 1960, and that he had received a general discharge from the army with a thirty per cent disability because of his nervous condition. He said he had very little’ memory of the conduct of his trial and that he did not recall how he had planned his defense with the attorney who represented him at the trial. His mother testified as to the strange behavior of her son and related incidents of his going outside "in the cold without his shoes on and of his becoming violent and having to be taken to the hospital at Ft. Knox. In most instances she was corroborated by her son, Jerry Mc-Elwain, who also testified. A letter was filed from an officer at the Valley Forge General Hospital at Phoenixville, Pennsylvania, in which it was related that appellant was in good physical health, but had severe emotional disturbances. The psychiatric report dated November 14, 1963, of a Dr. J. Wysocki of the Western State Hospital, was filed, which concluded as follows:

“Diagnostic impressions Schizophrenic reaction, schizoaffective type.
“Therapeutic Formulation: The definite need for psychotherapeutic assistance is to be emphasized; and a need for adjunctive therapies, such as vocational, occupational, or recreational therapies, and desirability of intermittent psychiatric consultation should provide the most effective treatment at this state of the individual’s psychotic reaction.”

The clerk of the Hopkins Circuit Court who testified in behalf of the Commonwealth read into the record various certificates which are described above, including the certificate of the doctors, which contains the opinion that the defendant was not mentally ill or defective, and a copy of the order of the court which released him from the hospital upon that certification.

A deputy sheriff testified that Dr. Appen, a psychiatrist from Western State Hospital had testified at the trial, but we have no transcript of what happened at the first trial.

The county attorney of Hopkins County at the time of the trial of McElwain on the charge of robbery, testified as follows:

“Q. I will ask you as an attorney for the Commonwealth whether or not there was at any time ever any suggestion by either the defendant or anybody in his behalf or his attorney that he was not capable or able to assist his counsel in the trial of the case? A. Not to my knowledge.
“Q. There was none to you, is that correct? A. No, I knew of none.
“Q. And you knew of none at all? A. Right.
“Q. I believe Mr. Frederick Nichols of Madisonvllle was his attorney at that time? A. Yes, sir.
“Q. Was there anything at all unusual about the trial to your knowledge or to your observation? A. Nothing unusual other than the psychiatrist testifying. That was the first time I remember a psychiatrist testifying in our court.
“Q. Did you notice anything unusual or peculiar about the defendant during the trial? A. No.

We are of opinion that the court did everything within its power to inquire into the mental capacity of appellant before the original trial and was well within its right to rely upon the psychiatrist who made the examination and certification at that time. We find nothing in the testimony of the witnesses produced in this RCr 11.42 proceeding which overcomes the definite proof that he was competent to stand trial. The report of Dr. Wysocki, which was made about seven months after the trial should not act retrospectively. It does not attempt to state what the condition of Mc-Elwain was previously. We are unable to find that appellant met the considerable burden that was upon him to show that the court failed to inquire into his state of mental health or failed to protect his constitutional rights.

Appellant next contends that a general instruction of insanity as an absolute defense should have been given the jury as well as the instruction of insanity by reason of drunkenness. It is indicated that the whole defense was based on the fact that appellant drank a large quantity of beer on his trip from Chicago to the place of the robbery — something like thirty or forty cans. The issue seems to have been as to whether his condition was such that he could not have had criminal intent or motivation. This was the question submitted to the jury. In any event, we have held that erroneous instructions are not proper bases for a proceeding under RCr 11.42. King v. Commonwealth, Ky., 387 S.W.2d 582.

Appellant was represented by skillful counsel at the trial and no appeal was taken.

We have concluded that the motion was properly overruled and the judgment is therefore affirmed.


text:
    Chester TROUTMAN, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.

      Wilbur Fields, E. Preston Young, Louisville, for appellant.
    Robert C. Hobson and William D. Grubbs, of Woodward, Hobson & Fulton, Louisville, for appellee.
   CULLEN, Commissioner.

Appellant, Chester Troutman, recovered judgment against Glynda Findley in the sum of $8,649.20 for damages sustained in an automobile accident. Troutman then brought action against appellee, Nationwide Mutual Insurance Company, seeking to recover the amount of the judgment from the appellee as alleged liability insurer of Mrs. Findley. The appellee denied that Mrs. Findley had any insurance with it covering liability on the Troutman claim. The trial court entered summary judgment against Troutman, from which judgment he has appealed.

The accident happened on January 11, 1963. In June 1962 Mrs. Findley had obtained from the appellee insurance company a six-month liability insurance policy which had an expiration date of December 21,1962, but which made provision for renewal upon payment in advance of subsequent premiums for renewal. The policy contained no provision for a grace period or for notice of cancellation at the end of the policy term. However, it did provide that prior to the expiration of the policy term the company would mail to the policyholder a “notice of the premium required to renew.”

In December 1962 the company mailed to Mrs. Findley the notice of premium required to renew, which was $31.10. She did not pay the premium because, she said in her deposition taken on motion for summary judgment, she “didn’t have the money.” On January 11, 1963, the day of the accident, Mrs. Findley notified the company’s local agent of the accident, and he told her that he believed her policy had expired. Nevertheless he phoned a report of the accident to the district office of the company. On January 15 Mrs. Findley mailed a check to the company in the amount of $31.10, bearing the notation “For payment on account of Pol. No. 63732023.” The company cashed the check. Subsequently, on February 6, a few days after having received a telephoned inquiry from Mrs. Findley’s husband, the company wrote her that the policy had been cancelled effective as of January 7. (The company had a voluntary practice of allowing a 17-day grace period, which practice, however, was not made known to the policyholders.) On February 25 the company mailed its check to Mrs. Findley in refund of the amount of her cashed premium check. She returned the check. The company then wrote her that they would deliver the money to her upon demand (which she never did make.)

The one immutable fact in this case is that the policy by its express terms expired on December 21, 1962. To give it new life so as to be effective on January 11, 1963, would require a finding either that there was in actuality a contractual renewal or that the company is estopped to deny that there was a renewal. No one contends that there was an express agreement of renewal, which leaves for consideration only the question of estoppel.

The policy did not provide for any grace period. Mrs. Findley was not told or in any way led by the company to believe that there was a grace period. She was not aware of the company’s voluntary grace period. While there is some mention in the record of a final “red notice” customarily given before cancellation of a policy there is no suggestion that Mrs. Findley had any reason to expect such a notice, or even that such a notice was given on termination (as distinguished from cancellation) of a policy. The company did nothing before the accident to lead Mrs. Findley to believe that the policy would continue in force beyond December 21. The mailing of the premium by Mrs. Findley on January 15 was not prompted by anything done by the company to indicate that such late payment might be effective; on the contrary it was done in the face of a statement by the agent that the policy was dead. The cashing of a check by the company and its delay in notifying Mrs. Findley of the termination of the policy and in refunding the amount of the check did not cause Mrs. Findley to change her position to her detriment or in any way create any equities in her favor. We find none of the elements of an estoppel in the facts of this case.

The most that can be said against, the company is that it was inept and somewhat less than brilliant in cashing Mrs. Findley’s check after it had received notice from its agent of the accident on January 11. But the mere cashing of the check is not a basis for imposing a contractual liability on the company. See Carden v. Liberty Mutual Insurance Company, 278 Ky. 117, 128 S.W. 2d 169.

The cases relied upon by the appellant (Kentucky Live Stock Insurance Co. v. Stout, 175 Ky. 343, 194 S.W. 318, and Glens Falls Insurance Company v. Elliott, 223 Ky. 205, 3 S.W.2d 219) holding that acceptance by the insurance company of the premium payment, with knowledge of a ground of forfeiture, estops the company from asserting forfeiture, are not in point because they deal with a situation in which the company is already contractually bound and is seeking to avoid the contract. In the instant case there was no contract when the premium check was cashed. For the same reason we find inapplicable Home Insurance Co. of New York v. Caudill, Ky., 366 S.W.2d 167, which holds that acceptance of late payment of a premium note estops the company from asserting a forfeiture of the policy for delinquency in payment of premium.

There is no merit in the appellant’s contention that the appellee’s general denial of having any contract of insurance with Mrs. Findley was not a sufficient pleading, and that the appellee was required to plead as affirmative defenses the various legal arguments relied upon by it to show that the expired contract had not been revived.

Likewise there is no merit in the appellant’s contention that the appellee, in order to treat as a tender its rejected offer to return the premium money to Mrs. Findley, was required to pay the money into court. No purpose would have been accomplished by such payment, because Mrs. Findley was not a party to the lawsuit.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Norman HACKWORTH et al., Appellees.
    Court of Appeals of Kentucky.
    March 4, 1966.

      Robert Matthews, Atty. Gen., H. C. Smith, Frankfort, Dept, of Highways, J. G. M. Robinson, Caldwell & Robinson, Ash-land, M. T. Quinton, Jr., Dept, of Highways, Madisonville, for appellant.
    John W. McKenzie, Ashland, for appel-lees.
   PALMORE, Judge.

This is the second appeal by the Commonwealth in a land condemnation against the appellees, Norman Hackworth and wife. On the first appeal a judgment in the amount of $24,000 was reversed because the trial court had not permitted a jury view and because witnesses for the Hack-worths had arrived at their valuation figures by improper methods. The question of whether the verdict was excessive was reserved without decision. See Commonwealth, Dept. of Highways v. Hackworth, Ky., 383 S.W.2d 372 (1964). On the second trial the jury made an award of $27,-929.

The property taken consisted of a new 6-room frame house and four acres of land on Kentucky Highway 180 near Cannons-burg in Boyd County. It was located in a desirable area near Boyd County High School and within 15 to 20 minutes by automobile to downtown Ashland. The house had a full basement, hardwood floors except in the kitchen, dining room and bath (in which the floors were covered with inlaid linoleum), coal furnace with forced air heat, hot water tank, deep well and water pump, septic tank, stone chimney and fireplace, and fully insulated walls and ceilings. The basement had a drive-in garage for two cars, served by a gravel driveway to the highway. Hackworth estimated the market value at $30,990. Four other witnesses testifying in his behalf ranged from $25,320 to $28,366. Two valuation witnesses appearing for the Commonwealth gave figures of $15,150 and $17,300.

Between the time of the taking and the time of trial the house was sold by the Commonwealth to Hackworth and was removed (except, of course, for the basement and foundation) to another location in the vicinity. A two-car garage and breezeway were added and several other changes were made. The Commonwealth took the position that the jurors should view the house inside and out at its new location and that the differences between its present and former conditions should be brought out in evidence. However, the trial court made a finding that there had been a “substantial change” in the house and that evidence of numerous alterations and differences would tend to confuse the jury, so the jurors were sent to view the relocated house but were not permitted to go inside. They were given photographs of the house in its original condition and location to take with them as the view was conducted, so that exterior differences could be readily observed.

The Commonwealth’s first contention is that it was error to permit a view under these circumstances without allowing the jurors to inspect the interior of the house and to receive evidence showing the inside changes.

In the first appeal of the case we were persuaded by the Commonwealth that the trial court ought to have allowed a view. So on the second trial the court felt impelled to do so, and now the Commonwealth complains that it was not enough of a view. However, had the record of the first trial contained the information that appears in this record, and had' the trial court made a finding- that by reason of changed conditions a view would not be helpful, or would be misleading, we would not have reached the conclusion that a denial of the view was an abuse of discretion. In other words, with the facts now before us in the record we are able to and do say that the trial court could properly have declined to permit any view whatever. The question .then arises, was there any prejudice in the limited view the court did permit ?

The answer to this question depends upon the essential purpose of the view. In this state, that purpose is to enable the jurors better to understand and weigh the evidence adduced in the court room. Commonwealth, Dept. of Highways v. Farra, Ky., 338 S.W.2d 696 (1960). What is observed by them in the course of the view is not evidence. Pierson v. Commonwealth, Ky., 350 S.W.2d 487 (1961). Hence it is not necessary that it be extended to minute details, especially when it reasonably appears that such an inspection might tend to confuse the jurors or lead them to consider matters outside the reach of the trial record. In this instance it seems very unlikely that a “windshield” view of the relocated house, whether it did or did not have some value for purposes of orientation, was prejudicial, and we therefore conclude that the trial judge did not abuse his discretion in allowing it.

During cross-examination one of the valuation witnesses for the Commonwealth, having said that he was acquainted with the four persons the Hackworths intended to use as witnesses for the same purpose, was asked the following question:

“Do you know enough about these men to tell the jury whether or not they know about the values of real estate ?”

The court sustained an objection to the question and cqmmented, “I am not going to have witnesses passing on another witness.” Counsel for the Commonwealth asked the court to admonish the jury not to consider the question, to which the judge replied, “He didn’t answer it. * * * I am going to tell them it is up to the jury to pass on the qualifications of a witness. I am not going to have one witness pass on the qualifications of another.” Counsel for the Commonwealth then moved to discharge the jury because the court had not in so many words admonished the jurors “not to consider the question.”

No doubt there are instances in which the nature and content of a question aré such that, even unanswered, it injects prejudice, but we are not by any means persuaded that this question falls in that category. In fact, it may not have been improper at all, but that is unnecessary to decide. Certainly it is not to be compared with the question, “Did your back get any better after the other two verdicts you got in this case?” asked of the plaintiff by his counsel in Stearns Coal & Lumber Co. v. Williams, 177 Ky. 698, 198 S.W. 54, 57 (1917), a decision cited in behalf of the Commonwealth on this appeal.

The witness Brooks Wells, a licensed real estate broker with ample experience in the vicinity of the Hackworth property, testified that in his opinion it had a market value of $27,500 at the time of the taking. He had never been inside the house prior to its relocation, but he was familiar with the property and observed the house while it was being constructed. The Commonwealth moved to strike his testimony because he had not inspected the inside of the building prior to or as of the time of the taking. We agree that this circumstance affected the weight of his evidence. Nevertheless, the testimony was competent and had probative value, and the fact that he did not see the inside of the house was not a sufficient ground for striking his evidence. This particular point was not discussed or decided in Commonwealth, Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714 (1961), and Commonwealth, Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851 (1963). See, however, Stewart v. Commonwealth for Use and Benefit of Dept. of Highways, Ky., 337 S.W.2d 880, 883 (1960), in which it was held that testimony directed to comparisons was not disqualified by reason of the witness’s not having made inside inspections of the property being compared. As we have said, this is a circumstance bearing more upon weight and credibility than on competence of the testimony. The same comment applies to the fact that the witness in question also was a defendant in a pending condemnation case.

The Commonwealth objected to the appellee Norman Hackworth’s valuation testimony on the ground he did not have sufficient qualification. Cf. Commonwealth, Dept, of Highways v. Fister, Ky., 373 S-W.2d 720, 723 (1963). He testified that he was a carpenter by trade, had bought and sold and built and sold houses in Boyd County, knew of other property sales in the area, understood the definition of “market value,” and by reason of his experience in those respects was familiar with and had an opinion as to the market value of his own property, which he placed at $30,990. Without belaboring the point, we conclude that he showed enough qualification to express his opinion.

The only other witness who evaluated the property as high or higher than the verdict was Henry Collinsworth, manager of the Federal Land Bank Association of Catlettsburg, who gave a figure of $28,366. The Commonwealth makes the novel argument that because Mr. Collinsworth has testified as a valuation expert in a number of highway condemnation cases that have been reversed by this court, somehow we ought to take judicial notice that he is not a credible witness. It is contended also that some significance should be accorded the fact that, for a reason not asked and thus not explained, he was not an authorized loan appraiser for the Federal Land Bank or its local association on June 26, 1961, the date of the taking. Again we find ourselves subjected to flyspecking. This witness had lived in Boyd County for over 20 years and had appraised hundreds of pieces of real estate, had bought and sold property himself, had known the Hack-worth property for a number of years and had observed the house as it was being constructed. It was his practice to keep himself advised of all property sales in the area in order to be abreast of trends and conditions in the real estate market. He had inspected the premises for appraisal purposes immediately before the taking and was thoroughly familiar with all details of the house. What more can be said? It is futile to go on.

The witnesses Montague and Williams, real estate brokers appearing for Hackworth, both appraised the property at $25,320. There was and is no question as to their qualifications, but the Commonwealth carps at their testimony because they did not use comparable sales and because upon cross-examination each of them proved to be of somewhat hazy memory on such items as sidewalks and gutters. These matters, of course, are relevant only with respect to the weight and credibility of their testimony. Moreover, since both Williams and the witness Brooks Wells, whom we have mentioned heretofore, said they were familiar with the comparable sale properties discussed by the Commonwealth’s valuation witnesses, and that none of them actually were comparable, we are not able to judge with any assurance the extent to which the Commonwealth’s testimony was supported by valid comparable sales either.

The last contention is that the verdict was excessive. It probably was, but in view of the competent supporting evidence we cannot say it was so flagrant and far out of line that it must strike reasonable men at first blush as having been given under the influence of passion and prejudice and in disregard of all credible evidence.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Minnie Sue ELLIOTT, Appellant, v. William E. ELLIOTT, Jr., Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.
    Francis M. Burke, .F. Dale Burke, Pike-ville, for appellant.
    E. R. Hays, Baird & Hays, Pikeville, for appellee.
   WADDILL, Commissioner.

Minnie Sue Elliott has appealed from a judgment contending that the trial court erred in failing to allow her alimony and in fixing an inadequate allowance for child support.

At the time of the trial appellant and appellee had been married almost 19 years and had four children ranging in ages from 9 to 16 years. Appellee receives wages of $125 a week plus about $400 a year royalty on a ½6 interest in a gas well. During 1960 appellee had purchased a $35,000 home. Appellee’s father co-signed a note to acquire funds for the down payment and the parties mortgaged the property to pay the balance of the purchase price. Appellee’s father has also furnished the $300 a month to meet appellee’s financial obligations on this house which, at the time of trial, totaled $31,437. So far as the record discloses neither party owns any other real property.

The judgment granted appellant a divorce, awarded her occupancy of the home place, gave her all household furnishings and custody of the four children, directed appellee to pay certain outstanding debts, to provide laundry and dry-cleaning for the family, to supply funds for medical and educational expenses of the children and to pay Minnie Sue:

“ * * * for the support of herself and the four children of the parties the sum of $300.00 per month, payable at the rate of $150,00 on the first and fifteenth days of each month, the first payment to be made on August 15, 1964, and on the first and fifteenth days of each month thereafter until the further orders of the Court.”

Appellant correctly urges that, since she was not found to be at fault in the breakup of the marriage, she is entitled to alimony. Hall v. Hall, Ky., 380 S.W.2d 231. However, as we construe the judgment appellant is given a cash allowance of alimony and an additional allowance of alimony in the form of occupancy of the former home place and ownership of the household furnishings.

During the trial appellee indicated he would be willing to pay the sum of $80 a week. Appellant contends that it was error to award less than this amount. After considering the evidence with respect to appellant’s present financial needs and ap-pellee’s ability to pay support and alimony, we cannot reasonably say the trial court abused its discretion in awarding $300 a month. In the event there is a change of condition with respect to the parties or their children, the trial court may reopen the case for a hearing.

The judgment is affirmed.


text:
    John A. WALSER, Trustee, Appellant, v. William M. GLENN et al., Appellees.
    Court of Appeals of Kentucky.
    March 4, 1966.
    J. Donald Dinning, E. R. Johnson, Louisville, for appellant.
    Cecil Davenport, Louisville, for appel-lees.
   PALMORE, Judge.

The appellees, William Glenn and wife, having obtained a verdict and judgment against the appellant, Walser, failed to respond to his motion for an appeal to this court, and the motion was sustained. KRS 21.080; RCA 1.180. They have failed also to submit a responsive brief on the appeal. Nonetheless, in spite of the summary procedures permitted by RCA 1.260 we have reviewed the record to determine whether it sustains the appellant’s brief. Our opinion is that it does.

The cause of action was for fraud and deceit in the sale of a residential building lot by Walser to the Glenns. Walser and his associates were real estate developers and were preparing a new subdivision for sale when, in late 1960, the Glenns asked if they could see what the lots were like. At that time they were advised that the development had not been completed, but in January of 1961 Walser permitted them to go out and look the property over and sent a man named Richards to show them the lot lines. After covering the entire subdivision they decided they liked Lot No. 6 because it sloped downward toward the back and had several trees on it. They noticed that some dirt fill had been put on the lots and, apparently in response to their inquiry in that regard, Richards told them “it was necessary to put this fill in to cover rock, because it was required that there be six feet of dirt over any rock in order to have a lateral system” for a septic tank. They bought the lot in February of 1961 and proceeded to construct a house on it. It developed that not enough of the lot had been filled in to accommodate the system of lateral lines determined by the Louisville and Jefferson County Department of Public Health to be necessary for the house, whereupon they were put to the expense of having more dirt hauled in and, in the process, lost some trees.

Without reaching such questions as whether Richards actually made a representation justifying the Glenns in assuming that all or substantially all of the lot had six feet or more of dirt covering the rock subsurface, whether in so doing he was acting with authority or ostensible authority from Walser, whether the representation really was an inducing factor in the consummation of the purchase, and whether the correct measure of damages was applied, all of which are raised in the brief, we are satisfied that the evidence in the case was not sufficient to justify a finding that Walser or Richards had the scienter necessary to a valid cause of action for deceit.

It is undisputed that Walser had contracted with an engineering firm for the layout and contour of the subdivision and with a firm of earth moving contractors for the grading and shaping of ground as planned and directed by the engineers. In August of 1960 a representative of the Department of Public Health wrote the engineers a letter advising that soundings indicated insufficient soil cover on several lots, including No. 6, and that a minimum of six feet would be necessary for all septic fields. In December, confirming a previous oral discussion, Walser wrote -the engineers a letter instructing them upon completion of the cut and fill work to make additional borings “as may be needed to assure * * * the Louisville and Jefferson County Board of Health that such fills meet with their requirements so that they may issue a clearance on the entire subdivision,” etc. This instruction was carried out, after which the engineering firm certified to the Board of Health by letter that there was six feet of cover, and the Board in turn approved the subdivision.

From our perusal of the record in this case it seems probable that a misunderstanding existed with respect to the area (as distinct from the depth) of the required dirt cover. For example, so far as the Board of Health was concerned it was necessary that there be six feet of dirt cover only in the area of the septic field, and not over every square inch of the lot.- The grading contractor testified that in filling in the various lots, measuring from the front lot line, he allowed 30 feet for set-back, 30 feet for the house, 20 feet for the general septic tank area, and 40 feet for the laterals. Both the engineering firm and the grading contractor were experienced in subdivision work. Unquestionably they were of the opinion that enough of the area of Lot No. 6 had been filled to a depth of six feet over the rock substratum to meet the requirements of the Board of Health. There is not an iota of evidence to suggest that Walser, who was relying upon their skill, judgment and veracity, did not also think so.

To establish actionable fraud, a misrepresentation must be made with knowledge of its falsity or under circumstances that do not justify a belief in its truth. Livermore v. Middlesborough Town-Lands Co., 106 Ky. 140, 50 S.W. 6, 13, 20 Ky.Law Rep. 1704 (1899); Church v. Eastham, Ky., 331 S.W.2d 718 (1960); Prosser on Torts, § 100 (pp. 699-670).

It is our conclusion that the trial court should have sustained Walser’s motions for a-directed verdict and for a judgment notwithstanding the verdict.

The cause is reversed with directions that a judgment he entered dismissing the action.


text:
    Kenneth J. TURNER, Appellant, v. INDUSTRIAL ERECTORS, INC., and Kentucky Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    March 4, 1966.
    John E. Wise, J. R. Bartholomew, Wise, Runner & Bartholomew, Louisville, for appellant.
    James M. Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees.
   WADDILL, Commissioner.

This is an appeal from a judgment affirming an order of the Workmen’s Compensation Board which awarded appellant, Kenneth Turner, total temporary disability for 26 months (KRS 342.095) plus 25% permanent disability to the body as a whole (KRS 342.110). Appellant contends that the Board erred as a matter of law in failing to award him compensation provided for total permanent disability (KRS 342.095).

Appellant was .employed as a journeyman ironworker by appellee, Industrial Erectors, Inc., when he sustained a work-connected injury to his left leg. While the injured leg was being treated it became infected and required medical attention for a périod of 26 months. When he returned to work for appellee he received a greater hourly wage than before he was injured. Appellee’s superintendent testified that, since his reemployment, appellant has been assigned to duties which do not require much climbing or heavy lifting. Except for this curtailment and the addition of some supervisory functions, the character of the work he is now performing does not materially differ from that which he was performing before the accident.

The medical testimony shows that two physicians considered appellant totally disabled, while two other physicians testified that he could still perform the same work, including climbing and lifting, although he would have to be more cautious. The latter two physicians each placed his occupational disability at 25%.

Under this -evidence there is no sound basis for the contention that the Board erred as a matter of law in fixing the disability at 25% rather than 100%. Unlike the medical testimony in McCown v. Hellier Elkhorn Coal Co., Ky., 399 S.W.2d 719, (decided February 25, 1966), the physicians who stated that appellant’s occupational disability was 25% in the instant case confined their estimates to the lessening of his ability to perform his duties as an iron-worker. The opinion of the Board reflects that its finding was made after a careful consideration of the case and this finding is supported by the evidence. Apparently appellant failed to convince the Board that his disability was greater than 25%. We find no reason to reverse the judgment.

The judgment is affirmed.


text:
    Miles Buck THORNSBERRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.
    Miles Buck Thornsberry, pro se.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

This is an appeal from a 1965 judgment in an RCr 11.42 action refusing to vacate a 1958 judgment of conviction for murder. The appellant charges that his counsel refused to call certain witnesses to testify in his behalf at the murder trial and that his conviction was obtained through the known perjured testimony of one Clawson Gibson, Jr. The Commonwealth denied the charges.

The trial court found that the appellant was represented at his murder trial by a former Commonwealth’s Attorney of the Circuit who was known to be a competent lawyer; that two witnesses other than Gibson testified to the effect that the appellant was guilty of the murder charge; that the trial for murder had been transferred from Knott County, where the killing occurred, to Perry County, when -it was alleged a fair trial could not be had in Knott County on the charge; that the appellant had waived the three-day waiting period before imposition of the sentence which indicated the appellant was satisfied at the time that he had had a fair trial; and that no appeal was taken from his conviction.

On the RCr 11.42 hearing the trial court appointed counsel for the appellant, but refused to grant his request to be brought from prison to be present at the hearing on his RCr 11.42 motion. The record sustains the judgment of the trial court, for there is no indication in what way Clawson Gibson’s testimony affected the appellant at the murder trial, nor what Gibson’s testimony was. An RCr 11.42 action is no substitute for an appeal, or for a new trial, or for reviewing alleged errors at the trial, and when the record itself contradicts the appellant’s assertions as the record does here, it is manifest that the appellant received a fair trial on his murder charge. King v. Commonwealth (1965), Ky., 387 S.W.2d 582, and the cases therein cited.

The judgment is affirmed.


text:
    Lawrence GAUZE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.
    W. R. McCoy, Jr., Inez, for appellant.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Lawrence Gauze appeals from a judgment sentencing him to imprisonment for one year pursuant to a jury’s verdict finding him guilty of violating KRS 435.240 (3). Appellant presents four grounds for reversal, but we find it necessary to discuss only one of the grounds, namely, that the cited statute does not authorize prosecution for failure to obey a divorce judgment’s order to pay for child support in a situation in which the divorce judgment was entered before the effective date of the statute.

With commendable candor the Attorney General concedes that the statute does not authorize the instant prosecution. It is observed that KRS 435.240(3) specifically provides, in part:

“ * * * provided, that this paragraph shall apply only to judgments, decrees, or orders granted subsequently.”

The effective date of the pertinent statute was June 17, 1954. The divorce decree which directed appellant to make the child support payments, and upon which the prosecution was based, was entered December 9, 1949, more than four years before the statute became effective.

It is manifest that the statute, by its own terms, is not applicable.

The judgment is reversed with directions to enter a new judgment dismissing the indictment and discharging the appellant from custody.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Earl COTTRELL et al., Appellees.
    Court of Appeals of Kentucky.
    March 4, 1966.
    Robert Matthews, Atty. Gen., H. C. Smith, Frankfort, Joseph R. Huddleston, Bowling Green, Tildón H. McMasters, Elizabethtown, for appellant.
    Davis Williams, Munfordville, for ap-pellees.
   HILL, Judge.

The Department of Highways appeals from a $7,500 jury verdict and judgment for 10.76 acres of land taken out of appel-lees’ 92.5-acre farm located two miles south of Bonnieville in Hart County to be used in construction of a part of 1-65.

Only one witness testified for appellant. He fixed the before value of appellees’ farm at $13,480 and the after value at $11,-140 for a difference of $2,340.

Eight witnesses testified for the landowners, whose before values ranged from a high of $16,500 to a low of $14,606. They fixed after values between a high of $8,-937.50 and a low of $6,175. Of these eight witnesses, the lowest estimate of difference between before and after value was $6,000, and the highest difference was $9,712.50.

Appellant complains of four instances in which it is claimed the trial court erred in admitting or excluding certain testimony and complains that the verdict is excessive.

Before discussing the questions raised, it may be well to point out that of the 92.5 acres of the farm before taking 30 acres were tillable, 20 acres were rocky pasture land, and 41.5 acres were in woodland. Of the 10.75 acres taken, about 4 acres were tillable, 5 acres were pasture land, and 2.5 acres were woodland. Approximately 49.23 acres were completely landlocked. Included in the landlocked tract were about 7.3 tillable acres, 5 acres in pasture, and the balance in woodland.

First, appellant complains that its witness Crabtree was asked by counsel for appellees and was permitted to answer the following question over objection: “Now, if you had a 92½ acre farm like this Earl Cottrell farm you have been over and you had a 12 or 15 cow dairy on it, after you take off this 60½ acres and left him 32, it would be difficult to operate a dairy on such a farm, wouldn’t it?” To which witness replied : “Well, the only thing it would effect (sic) if you took off 12 acres of land that is suitable for pasture or grazing land or I mean the tillable land and the pasture land. It only took off five acres of pasture and 7 acres of tillable land. It would reduce your operation some, yes.” Testimony of this character is inadmissible under the rules announced in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S. W.2d 844 (1963). Crabtree placed no price on the factors referred to in the above question and answer. Sherrod states on page 854, “no price should be put on the individual factors.” We think this testimony was improper but not prejudicial.

Appellant next contends its witness Coons was improperly interrogated on cross-examination relative to drainage of water onto appellees’ remaining land after construction of the highway. Coons was asked: “Would you tell the jury if the state after the road was put in, is taking water from any other sources than those that water also came on Mr. Cottrell’s property from and putting it through those pipes?” His answer: “No, sir, we are still carrying the same water that fell on that property before. We are not picking up any additional water from any place else on this property. No channel changes.” Coons was also asked whether “The water comes out of these three pipes which you showed to the jury is the water that was going onto Mr. Cottrell’s property?” He answered: “Yes, that water was falling on his property before.” We do not consider this evidence prejudicial to appellant; in fact, it is beneficial to it. It shows there was no additional water discharged onto appellees’ property. We find no evidence in the record indicating a violation of the water rights announced in Wallace v. Schneider, 310 Ky. 17, 219 S.W.2d 977 (1949), cited by appellant.

Conceding that, in itself, it is not sufficient error to reverse, appellant argues that taken with other assigned errors the ruling of the trial court in failing to strike the testimony of Otis Highbaugh as to the after value of the landlocked tract was prejudicial and grounds for reversing the judgment.

Counsel for appellant asked Highbaugh specifically whether the landlocked tract had any “value to the man they are taking it from,” and he answered: “No value to the man they are taking it from.”

It should be noted this witness did not testify the landlocked tract had no market value. He was not interrogated on market value. He used a factor improper for determination.

The question to be determined is not what the landlocked tract was worth- to Cottrell but what it was worth at a fair market value. The evidence was improper but we doubt it was prejudicial to the point of justifying a reversal.

Appellant’s final blast at the evidence is as follows: “The trial judge erred in not permitting counsel for appellant to cross-examine appellees’ witnesses concerning the specific dollar amount they had allocated to improvements and land in arriving at their after values.” The Sherrod case, supra, refers to “damage factors” but does not stand for the proposition that a party may not cross-examine adverse witnesses on elements of damages in order to test their means of arriving at before and after values. Commonwealth, Department of Highways v. Cardinal Hills Nursery, Ky., 380 S.W.2d 249 (1964), specifically authorized such cross-examination. However, the question whether or not appellant could have elicited such answers oif cross-examination as would have weakened or destroyed any of the evidence given on direct-examination must go unanswered. Appellant had a right under CR 43.10 to interrogate the witness in the absence of the jury to determine whether his answers were beneficial to appellant and to move their admission to the jury in the event they were beneficial. Not having done so, he is in no position to complain of the ruling of the trial court sustaining objection to his questions. It is not shown or claimed in what manner appellant has been prejudiced by the ruling of the court.

Finally, it is said the verdict is excessive. It appears liberal, but we cannot say it is excessive under the rules announced in Commonwealth, Dept. of Highways v. Lyons, 364 S.W.2d 336 (1963).

The judgment is affirmed.