text:
    Tommy FARRAR, Plaintiff-Respondent, v. Irene MOORE et al., Defendants-Appellants.
    No. 8619.
    Springfield Court of Appeals. Missouri.
    May 31, 1967.

      Wangelin & Friedewald, Poplar Bluff, for defendants-appellants.
    Ted M. Henson, Jr., Poplar Bluff, for plaintiff-respondent.
   TITUS, Judge.

The capacity to sue, be sued, or be a party appellant or respondent, reposes only in persons in being. 67 C.J.S. Parties §§ 6 and 30. Without being advised when the event occurred, the Notice of Appeal herein states one of the appellants is “now deceased.” A continued reading hereof will reveal this, unfortunately, is the least of our problems.

Item one of the acutely abridged transcript given us concerns some undisclosed cause of action resulting in a default judgment entered August 19, 1963, by the Magistrate Court of Butler County in favor of the plaintiff-respondent, Tommy Farrar, and against defendants-appellants, Sarah and Irene Moore. The judgment provides “that the plaintiff have and recover of and from the defendants the property described in plaintiff’s petition.” The transcript entry following the judgment is prefaced by: “And thereafter to-wit: On the same day an execution was issued,” which would cause surmise “on the same day” referred to August 19, 1963. However, the execution set forth was issued by the Circuit Clerk of Butler County under date of December 21, 1965,- on a $600 magistrate judgment plaintiff is said to have obtained against defendants August 19, 1963, a transcript of which had been filed in the Office of the Circuit Clerk (presumably pursuant to V.A.M.S. § 517.770) “on the _ day of _ A.D. 19_” Although the sheriff was commanded to “have the money before our said Circuit Court at the January term thereof, to be held on the 22nd day of March next,” the return attests the writ was not executed until “the 23rd day of May, 1966, by having failed to collect any amount on this execution. Therefore, I am returning this writ as not satisfied.”

The third transcript item is a Magistrate Court order of December 13, 1965, which recites: “Wherefore, it is considered ordered, adjudged and decreed by the Court that the Execution issued by the plaintiff in this case be quashed, the Court having no jurisdiction in the matter.” This, or a copy thereof, was filed December 14, 1965, with the Circuit Clerk.

Under date of December 18, 1965 (according to the fourth transcript entry), defendants’ counsel subscribed and swore to the truth and correctness of a Motion to Quash Execution “heretofore issued in this cause.” The motion, filed in the Circuit Court December 21, 1965, averred execution should be quashed because the judgment on which it was based “is void for lack of jurisdiction of the subject matter in that the subject matter purports to be exempt property of surviving spouse; that the Estate of Plaintiff’s decedent spouse was probated * * * and that Plaintiff did not file Application for Exempt Property in the Probate Court * * * in accordance with Section 474.250 V.A.M.S. * * * and that jurisdiction of the alleged subject matter was and still is in the Probate Court * * * instead of the Magistrate Court.” No evidence was offered on the motion which was overruled May 10, 1966. When defendants’ motion for new trial or for judgment was overruled, this appeal followed. Our chances at comprehension were abbreviated when this appeal was submitted to us without oral argument and miscalculations expressed in the briefs do not mollify our mystification.

The lone point contained in appellants’' brief is the abstract declaration “The Circuit Court erred in overruling defendant’s motion to quash, lack of jurisdiction appearing on the face of the record.” Contrary to V.A.M.R. 83.05(e) the brief does not direct us to that portion of “the face of the record” which supposedly shows lack of jurisdiction, it does not advise us whether it is the Magistrate Court, the Circuit Court, or perhaps both courts that lack jurisdiction and it does not describe the particular kind of jurisdiction allegedly lacking. In searching further in the brief, appellants’ argument seems to the effect the Magistrate’s December 13, 1965, order rendered the Magistrate’s August 19, 1963,-judgment void.

“Jurisdiction” is a loosely employed term but generally it is of three kinds, i. e., of the subject-matter, of the person, and to render the particular order or judgment which was given. Crockett Oil Company v. Effie, Mo.App., 374 S.W. 2d 154, 157; City of Phoenix v. Greer, 43 Ariz. 214, 29 P.2d 1062, 1064(4). Jurisdiction of the subject-matter relates to a court’s power over the general class of cases to which the particular case belongs and does not mean simple jurisdiction of that certain issue or case then before the court. Musick v. Kansas City, S. & M. Ry. Co., 114 Mo. 309, 21 S.W. 491, 492; St. Louis & S. F. Ry. Co. v. Lowder, 138 Mo.. 533, 39 S.W. 799, 800; 23A Words and Phrases, Jurisdiction of the Subject-Matter, pp. 215-229. As we are not told the cause of action which is involved, we have no way of knowing if the courts had jurisdiction of the subject-matter. Averments' contained in appellants’ motions and brief do not prove themselves. School Dist. No-80 of Christian County v: School Dist. No. R-l of Christian County, Mo.App., 258 S.W.2d 258, 259(1); E. C. Robinson Lumber Company v. Lowrey, Mo.App., 276 S.W. 2d 636, 644(21). Consequently, we cannot accept appellants’ claim “the face of the record” reveals lack of jurisdiction or that the Magistrate Court lacked jurisdiction of the subject-matter, especially when they technically mean “jurisdiction over things,” i. e., jurisdiction over the particular property or chattels (whatever it or they may be) that are involved in the cause of action (whatever it may be). Restatement, Conflict of Laws, § 98, Comment a, p. 150.

The December 13, 1965, order of the Magistrate Court does not declare the August 19, 1963, judgment to be void. The order simply quashed “the execution issued by the plaintiff” because the court “had no jurisdiction in the matter.” Using the term as an all-inclusive expression, as is common practice, a court may lack jurisdiction or may exceed its jurisdiction as regards issuing writs of execution in many ways unrelated to the validity of the judgment upon which the writs are predicated. Errors may occur in issuing writs on satisfied judgments or against a defendant whose property cannot be taken in execution, or against a defendant who died prior to the teste of the writ or at an improper time or in an improper form. 1 Freeman on Executions, 3rd Ed., § 73, pp. 282-285. “Of course, an execution based on a void judgment is a nullity and should be quashed on motion,” McDougal v. McDougal, Mo. App., 279 S.W.2d 731, 738(16), but on the meager information presented we cannot say it affirmatively appears from the record the judgment is void.

Without reckoning with V.A.M.S. § 517.910 (applicability of which we need not decide) respondent urges that a Magistrate Court cannot quash its own executions, and in its brief says an issue on appeal “arises from the fact that the Magistrate Court * * * did not quash an execution issued out of the Magistrate Court but rather quashed an execution issued out of the Circuit Court * * * [and] a Magistrate Court cannot interfere with an execution issued out of the Circuit Court.” While we do not know what execution the Magistrate intended to quash by the December 13, 1965 order, we can only conclude respondent errs in matching the Magistrate order-with the December 21, 1965, Circuit Court execution as the latter was not issued until eight days after the order of the Magistrate Court had been made. Defendants’ motion to quash execution was “subscribed and sworn to” on December 18, 1965, or three days before the issuance of the Circuit Court execution. We assume this was not prepared for direction at the Magistrate execution already quashed, but rather upon knowledge and in anticipation a Circuit Court execution would issue on or about December 21, 1965. It has been said a respondent by failing to file a brief indulges a practice condemned by the courts. Hunter v. Schwertfeger, Mo.App., 407 S.W.2d 606, 608(1). In this instance, however, and because of the transposition treatment given the various entries concerned, the lack of a respondent’s brief herein could have served as a blessing in disguise.

It cannot be ascertained from the transcript or the briefs the relationship existing between plaintiff and defendants. We do not know the nature of the cause of action nor the type of “property” concerned therein. Given full sway, our imaginations could become pregnant with a host of likely possibilities on all probable aspects capable of being involved in this case. But such undertakings would amount to nothing more than foraging in futility and would not provide us with the facts necessary to obtain a final conclusion with any degree of reasonableness, fairness and accuracy. The parties involved, both the “quick and the dead,” are undoubtedly well aware of the facts which have not been imparted to us and which are most necessary for our purposes. Rule 83.13(c) provides that “[ujnless justice requires otherwise, the [appellate] court shall dispose finally of the case on appeal.” Justice, however, cannot be served in this fashion when any final disposition we might make would of necessity be predicated, to a great part at least, upon conjecture. State of Missouri ex rel. State Highway Commission v. Hill, Mo.App., 373 S.W.2d 666, 668(1, 2). It is appellants’ duty to cause a transcript on appeal to be filed which contains, “in chronological order” (V.A.M.R. 82.14[a]), “all of the record, proceedings, and evidence necessary to the determination of all questions to be presented.” V.A. M.R. 82.12(a) and (b); V.A.M.S. § 512.-110, subds. 1 and 2. This was not done and we are unable to ascertain what final judgment would be just. New or further proceeding on this particular matter in the Circuit Court would not be required to determine appellants’ claim for if the “judgment is really void any kind of a proceeding to cancel it would be proper.” McCoy v. Briegel, Mo.App., 305 S.W.2d 29, 34(2). Accordingly, the appeal herein is ordered dismissed.

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

      I. Preliminary recitations found the value of the undescribed property to be $600, but the judgment nowhere awards such sum, or any other sum, to the plaintiff. A judgment does not reside in the mere recitals or findings preceding it and is not affected by them. 49 C.J.S. Judgments § 71a, p. 189; Coonis v. Rogers, Mo.App., 413 S.W.2d 310, 313(4). Had this been a replevin action, we would expect the judgment to conform to the requirements of V.A.M.S. § 533.380, which this judgment does not.


source: Caselaw Access Project

author: STEINFELD, Judge.

license: Public Domain

text:
    BLAIR FORK COAL COMPANY, Appellant, v. Nina Jean BLANKENSHIP et al., and Workmen’s Compensation Board et al., Appellees.
    Court of Appeals of Kentucky.
    June 23, 1967.

      Maxwell P. Barret, Reeves, Barret & Cooper, Hazard, for appellant.
    Arzo Carson, Oneida, Tenn., Courtney C. Wells, Wells & Wells, Hazard, Joe M. Agee, Lafollette, Tenn., J. Keller Whitaker, Workmen’s Compensation Board, Frankfort, for appellees.
   STEINFELD, Judge.

Dow Blankenship, an employee of Blair Fork Coal Company, died in the mine during working hours. The cause of his death prompted this controversy. The Workmen’s Compensation Board which held that his death was compensable was affirmed by the lower court. From that judgment this appeal was taken.

Blankenship worked for Blair Fork as a loader operator. On December 8, 1964, when he left home at approximately 7:00 a. m. to go to the mines he was in apparent good health. He reported for work about 8:00 a. m. and shortly thereafter he and Roscoe Brummitt went to certain machinery and attached a motor or tram to pull it out of the mine. The machinery was trammed on ties because the top of the mine was low. After moving the machinery about 380 feet they came to a water hole which was approximately 9½ inches deep and 40 feet long. Blankenship and Brummitt had been at the water hole approximately thirty minutes blocking the machinery through the water hole when a fuse blew out on the motor or tram and Brummitt left to go to the telephone to inform the dispatcher of the trouble. When he returned, which was around 11:00 a. m., he saw Blankenship’s body lying on the floor on the opposite side of the machinery from where he had left him. He had been gone approximately 20 minutes.

Near the machinery was a trolley wire which carried the power to operate motors in the mine. This wire was only 40 to 42 inches from the bottom of the mine and approximately 16 or 17 inches from the side of the machinery. When Brummitt left Blankenship he was on the side of the machinery opposite the wire, but when he returned Blankenship’s body was on the wire side of the machinery. His body was mostly under water but his head was not submerged. There was no power connection on the machine except when it was hooked to the trolley pole and the trolley pole had been removed prior to the time Brummitt left- to make the phone call. Blankenship was dead but there were no wounds or burns of any kind on his body.

Witnesses who had worked with Blankenship a short time before the date of his death stated that he appeared to be in good physical condition.

Donald Lewis testified that he was in a separate part of the mine approximately 2,000 feet from the place where Blankenship was working and that at approximately 11:00 a. m. the lights in the section where Lewis was working went out and stayed out for two or three seconds. Lewis admitted that he did not know what caused the flickering of the lights but the chief electrician testified that if Blankenship came in contact with the trolley wire it could not cause lights to go out because the human body did not have enough resistance to cause a short circuit. He stated that it was a frequent and daily occurrence for lights to dim and go out momentarily from overloading the circuit with machinery. He admitted, however, that there was sufficient electricity in the line to have killed Blankenship if Blankenship had come into contact with it. He expressed the further opinion that if Blankenship had come into contact with the wire and had been a conductor he would probably have been burned although this did not happen on every occasion.

No autopsy was made but the death certificate stated that the cause of death was electrocution. No one was present when Blankenship died. A physician who examined the deceased stated that he had no idea what caused the death.

With only these facts before it the Workmen’s Compensation Board held that “The inescapable conclusion is that he met his death by electrocution arising out of and in the course of his employment * * It awarded to the widow and children the benefits authorized by the Act. Contending that the award was clearly erroneous on the claim that the evidence did not support the findings made by the Board the employer appealed to the Perry Circuit Court which affirmed the Board. The employer concedes that the only question now before us is, was there evidence of such substance and relevancy as to support the finding of the Board.

KRS 342.005(1), a section of the Workmen’s Compensation Act, provides in part as follows: “It shall affect the liability of the employers subject thereto to their employes for a traumatic personal injury sustained by the employe by accident, * * * arising out of and in the course of his employment, or for death resulting from such accidental injury * * * To obtain an award the burden is on the employee or his representatives to present to the Board evidence of sound probative value showing that the claim comes within the provisions of the statute. A. C. Lawrence Leather Co. v. Barnhill, 249 Ky. 437, 61 S.W.2d 1.

A claim for compensation under the Workmen’s Compensation Act may be established by circumstantial evidence “* * * when the facts and circumstances detailed are so related to each other, that an inference of liability may be fairly drawn and without being based merely upon guess or surmise.” Wisconsin Coal Corporation v. Haddix, 280 Ky. 676, 134 S.W.2d 232. “The proof, it is true, may be direct, presumptive, or circumstantial, but legal proof, nevertheless, it must be.” Nar-done v. Public Serv. Electric and Gas Co., 113 N.J.L. 540, 174 A. 745.

KRS 342.004 requires liberal construction of the law to carry out the intent and purpose of the act. However, that statute does not require liberal construction of the evidence or dispense with the duty of presenting the required proof. Smith v. Klarer Company, et al, Ky., 405 S.W.2d 736; Wells v. General Electric Co., Ky., 318 S.W.2d 865; A. C. Lawrence Leather Co. v. Barnhill, supra. Even without a liberal construction, “The surrounding circumstances may give rise to a prima facie presumption that the disablement or death resulted from an accident, so as to be com-pensable.” 58 AmJur. 857, section 436. See Anno. 120 A.L.R. 683 for cases from which inference that death of the employee arose out of and in the course of the employment authorized recovery.

The death certificate was “prima facie evidence of the facts therein stated” but was not conclusive. KRS 213.190. Brown v. American Radiator and Standard Sanitary Manufacturing Co., Ky., 346 S.W. 2d 713. The information upon which it was prepared was no more definite than that furnished to the Board in these proceedings. The Board rejected the certificate, therefore, the employer was not prejudiced by its introduction.

The evidence as a whole created a justifiable inference that the death resulted from accident and injury. Kentucky Power Company v. Kilbourn, Ky., 307 S.W. 2d 9. Therefore, “ * * * this presumption will prevail unless overcome by evidence.” Phil Hollenbach Co. v. Hollen-bach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524. See Anno. 12 A.L.R.2d 1306. When one of two reasonable conclusions may be drawn from the evidence the finders of fact may choose. Schuster v. Steedley, Ky., 406 S.W.2d 387. The Board is the finder of fact. Kentucky West Virginia Gas Co. v. Ritchie, Ky., 402 S.W.2d 704. It reached the conclusion that the employee "met his death by electrocution arising out of and in the course of his employment.” Hornsby v. International Harvester Company, 310 Ky. 208, 220 S.W.2d 401. The evidence was sufficient to support the award. Jonas Miller & Sons v. Risner, Ky, 407 S.W.2d 125; Consolidation Coal Co. v. Branham, et al, 243 Ky. 780, 49 S.W. 2d 1035.

The circuit court, and this court should not, and will not disturb the decision. Jonas Miller & Sons v. Risner, Ky, 407 S.W.2d 125. Rogers v. Deposit Service Corporation, Ky, 410 S.W.2d 621.

The judgment is affirmed.

WILLIAMS, C. J, and HILL, MILLI-KEN, PALMORE, and MONTGOMERY, JJ, concur.


author: CLAY, Commissioner.

text:
    LIBERTY NATIONAL BANK & TRUST CO, etc. Appellant, v. Jack E. RAINES et al. Appellees.
    Court of Appeals of Kentucky.
    May 12, 1967.

      Harry L. Hargadon, Hargadon, Harga-don, Lenihan & Harbolt, Louisville, for appellant.
    Victor W. Ewen, Jones, Ewen, MacKen-zie & Peden, Louisville, for appellees.
   CLAY, Commissioner.

Appellant represents a six-year-old child who was seriously injured when struck by an automobile driven by appellee Raines. After a trial the jury returned a verdict for appellees. On this appeal the only questions raised concern the correctness of the instructions given.

A brief résumé of the facts is necessary. Appellee Raines, accompanied by a passenger, was driving west on Walnut Street, near 29th Street, in the City of Louisville. Walnut Street in this area is four lanes wide, with the outer lane on each side available for, and extensively used for parking. The neighborhood is residential, and it being a summer day, there were adults and children in the yards and on the sidewalks in the general area.

Cars were parked “all up and down” the curb lane as Raines approached. It is un-contradicted that the injured child ran or “darted” from between two of these parked automobiles into the path of appellees’ automobile. While there is some question concerning the distance between the two parked automobiles, the evidence is convincing that the child emerged from a point near the front of a Buick (headed west) as appellees’ car passed it.

Raines testified he did not observe the child before the moment of impact. His passenger did see the child shortly before the accident and when she screamed he applied his brakes. The car stopped almost at the point of impact. Another witness, driving behind Raines, had also seen the child just before he was struck. It is clear the witnesses who saw the child did not observe him until just as he emerged from behind the front of the Buick. No one saw him on the sidewalk or elsewhere in the street. However, other children were present in the area and were observed by Raines and other witnesses.

The first instruction about which a question is raised is as follows:

“(e) If you believe from the evidence that the defendant, Jack E. Raines, saw, or by the exercise of ordinary care could ..have seen that the infant plaintiff, Elzie Thompson, Jr., was. in such position relative to the path of his car, as he operated it in a westwardly direction on Walnut Street, that the defendant, Jack E. Raines, in the exercise of ordinary care should have anticipated that the plaintiff, Elzie Thompson, Jr., would get in the path of said car, or so near thereto as to be in danger of being struck by said car, then it was the defendant’s further duty in the exercise of ordinary care, to have anticipated that the plaintiff would get in the path of said car, or in a position of danger of being struck by said car, and to operate said car so as to avoid striking said Elzie Thompson, Jr.”

This instruction imposed on Raines a duty in addition to the usual duties of a motorist. Yet it was conditioned upon his seeing the infant plaintiff or anticipating his independent actions. It is contended, and we believe with merit, that Raines’ duty was not so limited because of the presence of other children.

It is generally recognized that motorists are required to exercise special care (which is reasonable care under the circumstances) when driving in areas where vehicular traffic may endanger children in or near the street or highway. There is an extensive note on this subject in 30 A.L.R.2d, page 5. In Kentucky this duty to children has many times been recognized. See Roselle v. Bingham, 242 Ky. 496, 46 S.W.2d 784; Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897; Lever Bros. Co. v. Stapleton, 313 Ky. 837, 233 S.W.2d 1002; Potts v. Krey, Ky., 362 S.W.2d 726; Mackey v. Spradlin, Ky., 397 S.W.2d 33; Thomas v. Gates, Ky., 399 S.W.2d 689; Modern Bakery, Inc. v. Brashear, Ky., 405 S.W.2d 742. In substance the applied principle is that where the motorist is aware, or should be aware, of the presence of children in or near a street or highway, he is charged with knowledge of their careless propensities to run into the path of moving vehicles, and with this knowledge he is required to bring his automobile under closer control to avoid striking any such child. The larger the number of children in the immediate area, the greater would be the potentiality of danger, and a higher degree of care would be in the realm of reasonableness.

While this court has recognized that the presence of children on or near a street or highway may call for greater caution on the part of the motorist, the question has usually arisen in those cases where the defendant has asserted a right to a directed verdict. In none of our cases have we held that this circumstance requires a special instruction particularizing this duty. In our opinion such a special instruction is not required, though it properly may be given if it adequately defines such duty.

The presence of children is simply a circumstance (with many variable ramifications) which may bear upon the issue of reasonable care. We think that this factor is fairly encompassed in the ordinary instruction outlining the general duties of a motorist. The preceding instructions given by the trial court in the present case required defendant Raines to exercise ordinary care to avoid striking pedestrians on the street; to have his car under reasonable control; to keep a lookout for persons in front of him or so near thereto as to be in danger of collision; and to drive in careful manner, at prudent and reasonable rate of speed, with due regard for the safety of pedestrians and the use of the street. In addition, ordinary care was defined as that usually exercised by ordinarily careful and prudent drivers to avoid injury to a child under circumstances like or similiar to those shown by the evidence in this case.

It is apparent that the duties prescribed in the above instructions adequately encompassed all pertinent considerations which should enter into the jury’s determination of whether or not Raines exercised reasonable care in the operation of his automobile. The presence of children was but one of the circumstances bearing on this issue and it was in the same category as the presence of parked automobiles or other traffic conditions which affected, or would reasonably affect, the manner in which a prudent motorist should operate his automobile. To emphasize this particular condition by a special instruction was not necessary.

Attention is called to Farmer v. Pearl, Ky., 415 S.W.2d 358 (this day decided), wherein we held that in defining “ordinary care” in a case somewhat similar to this one, while it is proper to make special reference to the child involved, it is not reversible error to fail to give such instruction.

Had the trial court adequately covered the scope of the particular duty which may have arisen because of the presence of children, we would not find that the giving of the instruction constituted reversible error. However, in restricting the jury’s consideration to the presence of this particular plaintiff, it excluded the presence of other children which may have required extra caution under the circumstances. Since the instruction unduly limited the duty of defendant Raines, it constituted prejudicial error to present this aspect of what constituted reasonable care in that form.

Appellant’s next contention is that appellees were not entitled to a “sudden appearance” instruction. We do find the instruction given on this theory was somewhat defective in form. It did not require the plaintiff to appear from a “concealed position” near the path of the vehicle, which we held to be required in a proper “sudden appearance” instruction in Thomas v. Gates, Ky., 399 S.W.2d 689. In addition, the instruction incorporated a “last clear chance” theory, which we do not find warranted under the facts of this case. Without deciding whether these defects would constitute reversible error, on another trial if the instruction is given, the propriety of which we will hereafter discuss, it should be in proper form.

Appellant contends the instruction should not have been given in any form for the reason that it is not required in those cases where the motorist is not keeping a proper lookout, citing Dixon v. Stringer, 277 Ky. 347,126 S.W.2d 448, and Dr. Pepper Bottling Co. of Kentucky v. Hazelip, 284 Ky. 333, 144 S.W.2d 798. Those cases are distinguishable on the ground that the injured child was in a position where he could and should have been timely observed. Based on a mathematical calculation, it is argued that Raines could and should have seen this child when 92 feet from the point of impact, but this contention flies in the face of the positive testimony of every eyewitness to the accident. All of the evidence is to the effect that the child darted from a place of concealment in front of a parked car. No one had but a momentary glimpse of him while he was moving from that position. That is the precise type of situation which we have heretofore recognized as justifying a “sudden appearance” instruction.

It is finally contended by appellant that the “sudden appearance” instruction should not be given in any case. The point is made that this instruction is in the same category as that of “unavoidable accident”, and in the recent case of Sloan v. Iverson, Ky., 385 S.W.2d 178, we seriously questioned the necessity or propriety of such a latter instruction in an automobile collision case.

It must be admitted that the “sudden appearance” instruction has presented many difficult problems. As far back as 1939, in Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448, this Court was raising questions about the propriety of such an instruction. As pointed out in that opinion, while the instruction originated in cases involving children (in 1908), it gradually crept into cases involving adults. The opinion vigorously condemns the whole doctrine as disregarding fundamental principles, and the instruction is characterized as “dubious” and “superfluous”. Without rejecting the theory entirely, that decision attempted to limit it to those cases where the driver was keeping a reasonable lookout and there was no plea of contributory negligence. See also Dr. Pepper Bottling Co. of Kentucky v. Hazelip, 284 Ky. 333,144 S.W.2d 798.

In 1966, because of the continuing difficulty of determining under what circumstances the “sudden appearance” instruction should be given, we noted that the law was still in a state of confusion. Thomas v. Gates, Ky., 399 S.W.2d 689. In that case we set forth the motorist’s duty to anticipate the propensities of small children, and we held the “sudden appearance” instruction should be limited to the emergence of a child from a “concealed position near the path of the vehicle”. That opinion reflects another attempt to restrict the application of the doctrine.

We have carefully reconsidered this matter. It is our opinion the “sudden appearance” instruction properly may be given in such a case as we have before us, but only if a special instruction is given which particularizes the motorist’s duty when children are present. It should be given in no other type of case since the defense of contributory negligence would present this ground of exoneration.

The requirement that a motorist exercise special caution when children are present, imposed by a specific instruction, does not make him an insurer of the safety of the children. As to children seven years old and younger, he does not have the defense of contributory negligence. See Williamson v. Garland, Ky., 402 S.W.2d 80. Yet there are times when the precipitant act of the child should exonerate the motorist from liability. In fairness to such defendant, in the proper case, we think his defensive theory should be submitted to the jury in the form of a “sudden appearance” instruction.

As we have before intimated, the instruction should be given only in a case where a child seven years of age or younger is injured by a motor vehicle and there is proof that such child moved from a concealed position into the path of such vehicle.

A further limitation is that such instruction should not be given unless the trial court instructs on the particular duty of the motorist when children are present.

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

All concur.


author: PALMORE, Judge.

text:
    William BURKE, Appellant, v. Addle Keaton BURKE, Appellee.
    Court of Appeals of Kentucky.
    June 16, 1967.

      Francis Dale Burke, Pikeville, for appellant.
    Frank K. Warnock, J. D. Atkinson, Sr., Greenup, for appellee.
   PALMORE, Judge.

William and Addie Keaton Burke, the parties to this proceeding, were married in 1958. Both were in their fifties, and each had been married before. Addie’s previous husband had died intestate leaving a 147-acre farm, upon which Addie and William resided until 1962, when it was partitioned between Addie and her son, the son receiving the portion on which the residence was located. Addie and William came to a parting of the ways in 1963, whereupon she sued for and was granted a divorce on the ground of cruel and inhuman treatment, KRS 403.020(3) (b). William’s counterclaim for a divorce on similar grounds was denied. Both appeal from the provisions of the judgment relating to property restoration and alimony.

At the time of the marriage Addie had $6,890.28 in a bank account and, she says, $735 in cash. She also owned, in addition to her interest in the farm, other real estate and various personal property. William owned several houses and lots, some promissory notes and, he says, $4,300 in cash. Except for the division of the farm, Addie still owns the real estate she had in the beginning. William has sold some of his parcels and bought others. During the marriage he earned about $20,000 as an employe of the Norfolk and Western Railway Company. Addie was not employed. When the separation occurred they had two joint bank accounts, one in the amount of $14,863.63 and the other in the amount of $11,361.00. Addie withdrew the larger of these amounts and re-deposited it in her own name.

From the evidence it is not possible to trace the flow of cash during the period of the marriage, particularly with respect to the property and income of the husband. The method of restoration chosen by the chancellor was to credit Addie with the equivalent of what she had in the beginning, plus cash received during the marriage to which she was entitled in her own right, charge her with the $14,863 plus $2,-000 allowed to William for improvements made by him on her house, and give William what was left. The net result was a balance of $3,121.68 owing from William to' Addie, and a restoration of various items of personal property to the respective parties. The approach being fundamentally sound, the result must be upheld unless its factual content is clearly erroneous. CR 52.01.

The gross sum of money to which the chancellor found Addie entitled was $19,-805.28, representing the following items:

1. Bank account at time of marriage $6,890.28-

2. Interest on $6,890.28 at 4% for five years 1,378.00

3. 1949 Ford truck 300.00

4. Cash 300.00

5. Cattle 2,400.00

6. Two mules 125.00

7. Proceeds of fire insurance policy 3,000.00

8. Owelty received in division of farm 2,000.00

9. One-half of gross farm income 2,977.00

Total $19,805.20

We have carefully reviewed each and every one of these items against the evidence, and find that some could have been less and others could have been more. For example, a tractor was purchased for $3,600 out of the $6,890.28 bank account. The chancellor could have credited Addie with $3,290.28 and left her in possession of the tractor, but obviously he took her word, as he had the prerogative to do, that she loaned William the $3,600 and the tractor is his. The interest represents what would have been earned by the $6,890.28 if William had never entered the picture. The $2,400 allowed for cattle is less than it could have been. She said she owned 27 head of cattle appraised at $3,180 and he sold them. He denied it, but the chancellor decided to believe her. If they were worth $3,180 it would not be unreasonable to assume, in the absence of further evidence, that they brought that much when sold. She said the gross farm income during the marriage came to about $5,940. The judgment allowed her half that amount. He said they lost money on the farm every year, but the law does not oblige the fact-finder to believe it. In the absence of specific evidence of the expenses, and of the agreement (if any) between the parties as to how they were to be allocated, we cannot say that the finding was clearly erroneous. And so on.

In reviewing the analysis and disposition of complicated or numerous accounts it is not a practical function of this court to undertake a de novo and detailed analysis of its own. We can look only to the extent necessary for a determination of whether manifest injustice has occurred. If the over-all result does not seem clearly erroneous, we are not disposed to pick it apart and adjust the particular pieces that may be. Were we to do so in this instance, the final result would not be far different from what the chancellor decided. We hold that his findings were not clearly erroneous.

The evidence was amply sufficient to justify the charge of $2,000 against Addie for improvements made on her house by William. It could have been more, and it could have been less.

Both parties are dissatisfied with the alimony award, which was $3,000. William’s contention that Legel v. Legel, Ky., 382 S.W.2d 870 (1964), limits alimony to the estate accumulated by the husband during the marriage is not well taken. That limitation applies only in the class of cases in which the wife is at fault and the divorce is granted to the husband, but in view of her indirect contribution to the husband’s estate through performing the duties of a housewife she is entitled to alimony out of the estate accumulated by the husband during the marriage. Cf. Carter v. Carter, Ky., 382 S.W.2d 400 (1964); Hall v. Hall, Ky., 380 S.W.2d 231 (1964). Suffice it to say that the corpus of the husband’s estate in this case is enough to bear $3,000. Another important consideration, made so by the alimony statute itself, KRS 403.060(1), is the sufficiency of the wife’s estate. Goldstein v. Goldstein, Ky., 377 S.W.2d 52, 54 (1964). The record indicates that Addie’s estate is not inconsiderable, possibly equal to William’s, and that William’s earning power is virtually ended. Under the circumstances we cannot say the allowance is inadequate.

Addie complains also that after the master commissioner had filed his report but prior to entry of the judgment her motion for leave to take further evidence, supported by an affidavit to the effect that William had settled a personal injury claim against the railroad company for over $20,-000, was overruled. This, of course, was a matter within the sound discretion of the chancellor, and we are not persuaded that it was abused. Moreover, these parties having been married but five years, and during the evening years of their lives, Addie has not been so damaged or reduced in circumstances or prospects as to require any more alimony out of monies that presumably are payable or have been paid to William as compensation for damage to or destruction of his earning power.

The judgment is affirmed on both the appeal and cross-appeal.

All concur.

       Boot.


author: PER CURIAM.

text:
    KENTUCKY STATE BAR ASSOCIATION, Complainant, v. HENRY VOGT MACHINE COMPANY, Inc., and H. A. Zachari, Respondents.
    Court of Appeals of Kentucky.
    June 9, 1967.
    E. Gaines Davis, Jr., Smith, Reed, Yessin & Davis, Charles S. Cassis, Frankfort, for complainant.
    John E. Tarrant, Richard W. Her, Bullitt, Dawson & Tarrant, Louisville, for respondents.
   PER CURIAM.

The Kentucky State Bar Association charged the respondents, Henry Vogt Machine Company, its agents and employees, and H. A. Zachari, with unauthorized practice of law.

It is stipulated that on August 28, 1962, respondent, H. A. Zachari, who was not then and is not now a licensed attorney but who was director of personnel for Henry Vogt Machine Company, appeared for respondent, Henry Vogt Machine Company, at a hearing before a referee of the Unemployment Insurance Commission, an administrative agency, in the matter of Carl Miller v. Henry Vogt Machine Company, and that at the hearing, H. A. Zachari objected to a motion, examined and cross-examined witnesses. The parties further stipulated that these actions, as above described, were innocently performed but they do constitute the unauthorized practice of law.

The special commissioner, who heard the case, has recommended that the respondents be found guilty of the unauthorized practice of law and that they be held in contempt of this court. It was further recommended that respondents be permanently enjoined from making legal objections in hearings before referees of the Unemployment Insurance Commission and from examining or cross-examining witnesses in such hearings.

Counsel for the respective parties to this proceeding have approved this recommendation.

This court being sufficiently advised confirms the recommendations of the special commissioner. Accordingly it is ordered by this court that the respondents, H. A. Zachari and Henry Vogt Machine Company, its employees, and any representatives who are not licensed attorneys, are permanently enjoined from making legal objections in hearings before referees of the Unemployment Insurance Commission and from examining or cross-examining witnesses in such hearings.

Respondents are ordered to pay the costs of the proceedings.

All concur.


author: MILLIKEN, Judge.

text:
    Juanita BRUNDAGE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 23, 1967.

      Sam G. McNamara, Hazelrigg & Cox, Frankfort, for appellant.
    Robert Matthews, Atty. Gen., Joseph Eckert, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

Appellant, Juanita Brundage, was indicted on fifteen counts of statutory embezzlement by an employee under KRS 434.010 and found guilty on seven. The total amount found to have been taken was $418.95. The sentence was fixed at one year in prison on each count. Her sentence was suspended except on two counts which were to be served concurrently.

Appellant was the secretary, bookkeeper and general office manager of the Louisville Erecting & Rigging Company, Inc. In the course of her employment she filled ■out the majority of the checks issued by the •corporation which were then signed by one of its officers. The payroll and other bills for the corporation were paid pursuant to this procedure. The jury found that she had made out checks to pay for her personal expenses such as repairs, tires and insurance for her automobile, that she had cashed checks made out to employees of the corporation after their endorsements had been forged, and retained the proceeds of a ■check she had made out to herself.

Appellant urges several grounds for reversal, the first of which is that she lacked the criminal intent required for embezzlement and contends that an affirmative instruction setting out this theory of defense should have been given. During her testimony she alleged that the general manager of the corporation approved each expenditure by her for the payment of her personal indebtedness and that the proceeds of all of the checks made out to other employees whose endorsements were forged were returned to the general manager pursuant to his instructions.

The applicable rule of law in answer to appellant’s contention is found in Reynolds v. Commonwealth, Ky., 257 S.W. 2d 514 (1954). There it was stated that “where the instruction submitting the Commonwealth’s theory of the case is couched in such language the ordinary juror can easily understand, and its negative (raised by the usual reasonable doubt instruction) completely and adequately covers the defense of accused, it is not necessary to give an affirmative instruction embodying his theory.” See, also, Botkins v. Commonwealth, Ky., 394 S.W.2d 586 (1965). Here, no error was made in regard to the instructions. By reference each instruction contained a reasonable doubt clause as to whether appellant “unlawfully, fraudulently, and feloniously appropriated or converted” the money to her own use. The terms “fraudulently convert” and “fraudulently appropriate” were defined in the instructions as “the deceitful, intentional appropriation of the money of the corporation without right or without belief of right.”

Appellant next contends that she was improperly tried under KRS 434.010 (embezzlement by officer, agent or employee of corporation), but should have been tried under KRS 434.050 (obtaining money, property or signature by false pretenses) or under KRS 433.170 (larceny). Appellant argues that she did not have possession of the checks or proceeds but only mere custody, and if she did have possession of the checks or proceeds, the possession was not lawfully acquired as required for a conviction under KRS 434.010 (for embezzlement or conversion as defined in Runyon v. Commonwealth, Ky., 393 S.W.2d 877 (1965); Roberson’s New Kentucky Criminal Law and Procedure, 2d Ed., Sec. 897, p. 1117). Appellant’s contention is that an agent or employee of a corporation cannot be guiity of embezzlement of his principal’s property if he has formed the intent to appropriate it before it comes into his possession. This contention was expressly rejected in McGlothen v. Commonwealth, 310 Ky. 48, 219 S.W.2d 1003 (1949), where it was held that the subtle distinctions between lawful possession and custody were not applicable in view of the comprehensive provisions of KRS 434.010, the Court saying:

“ * * * Under this statute it is immaterial when the accused conceived the purpose of appropriating the property. The essential element is that the property came into his possession by virtue of his agency. While embezzlement and larceny are generally regarded as separate and distinct offenses, Morgan v. Commonwealth, 242 Ky. 713, 47 S.W.2d 543, yet the two crimes frequently overlap. In attempting to determine whether a particular crime was larceny or embezzlement, the courts have made subtle distinctions between lawful possession and custody, but in view of the comprehensive provisions of our statutes such distinctions are inapplicable. See annotation in 146 A.L.R. 514. Under the statute an employee of a corporation is guilty of embezzlement if he fraudulently converts to his own use or the use of another property of the corporation which has come to his possession or has been placed in his care as employee.”

See, also, 88 A.L.R.2d 688.

Appellant’s other complaint is that the trial court erred in failing to sustain a motion to dismiss the jury when evidence had been heard suggesting other alleged offenses that the defendant had committed subsequent to the return of the indictments upon which she was being tried. In particular the evidence complained of is as follows:

“Q. (Directed to the general manager of the company) Now, has there been additional information in this case discovered by you or any of your employes since the indictment was returned in April up until now?
“A. Many, many accounts.”

The question did not ask whether any additional offenses had been committed, but only whether any additional or pre-rise — information had been discovered to support the present charges, and the answer does not impress us as being prejudicial. Moreover, it could be considered competent as tending to show intent, guilty knowledge or scheme. Davis v. Commonwealth, Ky., 399 S.W.2d 711 (1965); Shirley v. Commonwealth, Ky., 378 S.W.2d 816 (1966).

The judgment is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    BOARD OF EDUCATION OF LEXINGTON, Kentucky, Appellant, v. Gladney HARVILLE et al., Appellees.
    Court of Appeals of Kentucky.
    June 16, 1967.

      William E. Sloan, Wylie & Sloan, Stoll, Keenon & Park, Lexington, for appellant.

      Lasserre Bradley, B. L. Kessinger, Jr., Harbison, Kessinger, Lisle & Bush, Lindsey W. Ingram, Jr., Lexington, for appellees.
   WADDILL, Commissioner.

This is an appeal from an order dismissing an action for declaratory judgment in a proposed school merger for the reason that no justiciable issue is presented.

The Board of Education of Lexington (hereinafter referred to as city board) and the Board of Education of Fayette County (hereinafter referred to as county board) entered into an agreement March 20, 1967, providing for merger of the city and county school districts. This agreement, by its terms, will be effective when the tax rates of the city and county school districts are equalized. As expressed in their written agreement the two boards are uncertain as to whether they have chosen a valid method to equalize their tax rates. Hence, this action seeking a declaratory judgment was instituted by the city board and city taxpayers against the county board and county taxpayers.

Prior to the 1965 amendment to KRS 132.010 (and related statutes) both boards were levying the maximum ad valorem tax under KRS 160.475(1). The city school district had no special tax levies in effect but the county school district had voted two levies totaling 82 cents under KRS 157.440 and 160.477. See Fayette County Board of Education v. White, Ky., 410 S.W. 2d 612.

It was held in Russman v. Luckett, Ky., 391 S.W.2d 694, that all property in this state must be assessed at its fair cash value. Accordingly Lexington and Fayette County property assessments were adjusted upward and the tax rates were rolled back pursuant to KRS 160.470. The two boards have agreed that due to this change in the tax rates and a substantial difference in the assessment rates of the city and county prior to full assessment, the tax rate in the county school district is presently 5.6 cents higher than that in the city school district.

By the terms of the merger agreement the taxpayers in the city school district will, upon merger, become subject to the tax rate of the county board. However, it is contended that, since the 5.6 cents represents voted tax levies, a referendum in the city school district approving this increase is required to validate this portion of the merger agreement.

The first question for our determination is whether a justiciable controversy is presented. The trial judge observed that, while merger by agreement of the involved school districts is authorized by KRS 160.-040, in case of disagreement an independent school district desiring to become a part of a county school district may have the State Board of Education determine the conditions of merger. KRS 160.041. The trial judge dismissed the action as not a proper subject for a declaratory judgment since a statutory means of settlement is available and because he believed the equalization of tax rates as sought by the parties is a legislative function.

Civil Rule 57 states in part that the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. In applying this civil rule we have held that the availability of a statutory remedy does not ipso facto make declaratory relief inappropriate. Iroquois Post No. 229 v. City of Louisville, Ky., 279 S.W.2d 13.

The remedy provided by KRS 160.041, which is predicated on a refusal or failure to agree upon a proposition of merger, is unavailable in the instant action because as we read the agreement the parties have assented to the merger. They merely ask us to decide whether a referendum in the city school district is a necessary condition precedent to the imposition of a uniform tax rate throughout the merged school district. This is obviously a question requiring a judicial determination. It is the policy of this court to declare the rights of litigants when it concludes that the advance determination of a justiciable controversy will eliminate or minimize the risk of mistakes. Combs v. Matthews, Ky., 364 S.W.2d 647. These considerations exist here since confusion detrimental to the school system will undoubtedly result if the validity of a county board’s tax levy is subsequently challenged. It is apparent to us that this controversy justifies declaratory relief. 22 Am.Jur.2d, Declaratory Judgments, Section 11. In view of the exigencies heretofore observed we will decide this case upon its merits rather than remanding it for a formal judgment of the trial court. Hedden v. Hedden, Ky., 312 S.W.2d 891.

The special voted taxes mentioned herein are not general obligations. Therefore, that portion of KRS 160.040, requiring that such taxes “continue to be levied and collected over the same area” after merger, is inapplicable. Cf. Ranier v. Board of Education of Prestonsburg Independent School District, Ky., 273 S.W.2d 577. This court has previously decided that KRS-160.041 is supplementary to KRS 160.040 and therefore we must look to both of these statutes to ascertain the powers of the two districts in fixing the terms of a merger agreement. LaFollette v. Ovesen, 314 Ky. 535, 236 S.W.2d 457.

As we interpret these statutes and apply the case law applicable thereto, we conclude that, upon merger, the city school district “loses its identity and it is swallowed up and absorbed by the county district.” Board of Education of Pulaski County v. Nelson, 268 Ky. 83, 103 S.W.2d 691. Hence, all property owners in the county school district (including the residents of the former city school district) will be liable for payment of the county school tax and a referendum under KRS 157.440 and 160.477 is unnecessary. After merger the situation of the residents of the former city school district is analogous to that of property owners who automatically become liable for a voted indebtedness of a city upon annexation of their property. Lowe v. City of Bowling Green, Ky., 247 S.W.2d 386.

Our conclusion contemplates compliance by the county board with the provisions of KRS 160.470. All questions not specifically answered herein are reserved.

The judgment is reversed with directions to enter a new one approving the merger in accordance with this opinion.

All concur.


author: C. J. WADDILL, Special Commissioner.

text:
    Sallie Mae MORTON, Appellant, v. ALLEN CONSTRUCTION COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    June 23, 1967.

      James A. Crumlin, Louisville, for appellant.
    Michael A. Rowady, Winchester, John W. Morgan, Joseph L. Arnold, Allen, Duncan, Duncan & Arnold, Lexington, for ap-pellees.
   C. J. WADDILL, Special Commissioner.

Appellant Sallie Mae Morton was injured by stepping into an open manhole. Summary judgment was granted in favor of the appellees, Allen Construction Company and Construction Engineers, Inc.

Appellant was injured on September 27, 1963. For a considerable period prior thereto, appellees had been engaged in certain construction work, including that of...sidewalks, on Maple Street in Winchester. Appellant had observed that work was being done in the general area. The reconstruction of a sidewalk adjacent to the Kroger parking lot required that a manhole between eighteen and twenty-four inches in diameter be opened in the sidewalk. No cover had been put on this manhole at the time of the accident.

In her deposition appellant stated briefly that: she had gone to the Kroger store in a taxicab; while there she cashed her check, bought some groceries and then left the store; she walked over the Kroger parking lot, went between some parked cars, and stepped over a curbing (approximately five inches high and four or five inches wide) onto the Maple Street sidewalk; and she had proceeded along this sidewalk about five steps or ten to eleven feet when she walked into the open manhole. All of this occurred in bright daylight on a clear day. She had good eyesight and her view was unobstructed.

The above facts are shown by depositions in the record at the time the motion for a summary judgment was heard in the lower court. There is no evidence in the record or shown by affidavit to be available to contradict this testimony.

In J. C. Penney Co. v. Mayes, Ky., 255 S.W.2d 639, it was pointed out that one is not relieved of the duty to exercise ordinary care for one’s own safety and is not licensed to walk blindly into dangers which are obvious, are known to him, or would be anticipated by a person of ordinary prudence. Lachat v. Lutz, 94 Ky. 287, 22 S.W. 218, 15 Ky.Law Rep. 75; Lyle v. Megerle, 270 Ky. 227, 109 S.W.2d 598.

In the present case the danger was obvious. Also, appellant’s culpability was greater when we remember that she had observed that work was going on in this general area. Under the conditions then existing reasonable men could only conclude that an ordinarily prudent pedestrian should have seen and avoided this manhole, which had a diameter of one and one-half feet or more. It was conclusively established on the showing made in circuit court that appellant was guilty of contributory negligence as a matter of law by blindly walking into this large hole. Sutton v. City of Frankfort, Ky., 309 S.W.2d 344; Humbert v. Audubon Country Club, Ky., 313 S.W.2d 405; Pease v. Nichols, Ky., 316 S.W.2d 849; Wilkerson v. Story, Ky., 340 S.W.2d 453.

If as argued in her brief appellant’s size, shape, or weight interfered with her vision, this was known to her personally and required a commensurate degree of care on her part. However, the depositions show that her eyesight was good and that she saw the curbing, which was approximately five inches high and four or five inches wide.

Printed in the back of appellant’s brief we find “Appellant’s Exhibit A,” which purports to be an amended complaint alleging gross negligence on the part of the appellees but seeking no additional damages therefor. Appellant insists that the court erred in not permitting this amendment to be filed. Appellees contend that because of the depositions showing appellant’s contributory negligence, her attorney was attempting to circumvent CR 56.

If this alleged error were properly before us, we would be constrained to hold that on a hearing for summary judgment the allegations of the attorney in the pleading cannot supplant testimony in the record. Gevedon v. Grigsby, Ky., 303 S.W.2d 282, and cases cited therein.

The official transcript of the record showing the proceedings reveals that appellant filed a motion requesting permission to file an amended complaint. If such a pleading was tendered, there is no order making it a part of the record on appeal, nor does the official transcript of record contain any amended complaint tendered by appellant below. It follows that the purported “Amended Complaint’’ printed as “Appellant’s Exhibit A” in the back of her brief is not properly before this court. Therefore, we hold that appellant has failed to establish that the refusal of the circuit court to allow appellant to file an amended complaint was error.

The testimony in the record at the time the motion for summary judgment was heard conclusively showed that appellant’s case could not be submitted to a jury because she was contributorily negligent as a matter of law. If, the plaintiff in a negligence case is to resist successfully the defendant’s motion for summary judgment, the plaintiff must show in some way that there will be evidence upon the trial to create a genuine issue of fact. Payne v. B-Line Cab Co., Ky., 282 S.W.2d 342. Here, the depositions submitted on the motion for summary judgment furnished no basis for a belief that the appellant could produce evidence sufficient to make a triable issue of fact.

Judgment affirmed.

All concur.


author: CULLEN, Commissioner.

text:
    Julius A. GRAVES, Appellant, v. MERIT LAUNDRY AND DRY CLEANING COMPANY and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    June 16, 1967.
    George B. Ryan, Louisville, for appellant.
    William Kiel, Mayer, Cooper & Kiel, Louisville, J. Keller Whitaker, Workmen’s Compensation Board, Frankfort, for ap-pellees.
   CULLEN, Commissioner.

Julius A. Graves sought workmen’s compensation for alleged total permanent disability. The compensation board awarded compensation for a period of temporary disability but found that he did not have any permanent disability. On appeal to the circuit court judgment was entered affirming the order of the board which denied the claim for compensation for permanent disability. Graves has appealed to this court from that judgment.

During a period of seven weeks’ employment with the appellee Merit Laundry and Dry Cleaning Company, as operator of a “washer” in which clothes were cleaned by use of a chemical solvent known as perchloroethylene, Graves developed hepatitis. He was hospitalized and underwent a period of treatment following which the doctors declared him to be “clinically” cured. He then accepted employment in a different dry cleaning establishment as a “spotter,” in which he used only a steam iron and ammonia water. At the time of his workmen’s compensation hearing he was still in the latter employment having suffered no recurrence of the hepatitis.

There was medical testimony that the hepatitis which Graves had contracted was “industrial” or “toxic” and probably was caused by his contact with the perchloro-ethylene. The compensation board so found and on that basis awarded compensation for temporary disability extending to the time that he returned to work. That finding is not in question here.

Graves rests his claim to compensation for permanent disability on the testimony of his doctors that if he were to continue in employment which brought him in contact with perchloroethylene or a similar chemical solvent he would be in serious danger of again contracting hepatitis — that having once had the disease he is more susceptible to it. Hence, he argues, he is disabled from performing his usual occupation.

There are two difficulties with Graves’ argument. The first is that he did not establish that his usual occupation involved use of perchloroethylene or another chemical having the same propensities. The facts were that for 19 years immediately preceding his seven-week employment with the appellee he worked in a dry cleaning plant as a “spotter,” in which he used some chemicals which he identified only by trade names. He had no contact with perchloro-ethylene or any similar solvent during that time, and he suffered no health problem during that time. Prior to his employment with the appellee he had never used a “washer.” In his present employment as a “spotter” he does not come in contact with the chemicals that caused his hepatitis. Graves argues that he is disabled from following “all facets” of his sole trade as a dry cleaner, and from returning to the “type of work he was performing at the time of his disability,” but the simple truth is that for 19 years he had not been engaged in performing “all facets” of the dry cleaning trade, and the type of work he was performing during the seven weeks preceding his disability was not his usual work. His usual occupation was that of a “spotter” and the evidence does not establish that he is disabled from performing that occupation. It may be true, as Graves testified, that he was required to reject an offer of a job at $150 per week that would have involved contact with perchloroethylene, and was relegated to accepting a “spotter’s” job at only $85 per week, but this indicates only that the specialized work involving use of perchloro-ethylene, which had not been Graves’ usual work, is a special category of work which commands higher pay.

The second difficulty with Graves’ argument is that he failed to prove that the use of perchloroethylene or chemicals with similar propensities is so widespread among cleaning establishments as to substantially preclude his employment opportunities in dry cleaning work. He seems to think that this fact should have been taken for granted. On this point McDonald v. Goodwin Brothers, Inc., Ky., 379 S.W.2d 54, is controlling.

The judgment is affirmed.

All concur.


author: CHARLES M. ALLEN, Special Commissioner.

text:
    Glen M. BAXTER, Appellant, v. Nola TANKERSLEY, Administratrix of the Estate of Doyle Dean Tankersley, Deceased, and Harold W. Shuttleworth, Appellees.
    Court of Appeals of Kentucky.
    June 23, 1967.

      Elwood Rosenbaum, Rosenbaum & Sullivan, Lexington, for appellant.
    Walter Patrick, Ollie J. Bowen, Law-renceburg, W. Earl Dean, Dean & Dean, Harrodsburg, for appellees.
   CHARLES M. ALLEN, Special Commissioner.

Appellant Glen M. Baxter appeals from the judgment of the Anderson Circuit Court rendered pursuant to a jury verdict awarding damages against him in the sum of $8,948.75 to the estate of Doyle Dean Tankersley, deceased, and $300.00 to Harold W. Shuttleworth.

Appellant contends that his motion for a directed verdict should have been sustained or, in the alternative, that the trial court should have sustained his motion for judgment notwithstanding the verdict. His only other contention is that the trial court erred in receiving an allegedly inconsistent verdict of the jury.

On June 7, 1965 appellant was driving his 1960 Austin-Healey sports car east on U. S. Highway 62 at the point where it intersects with the Tyrone Road. At the point where the two roads intersect there was a stop sign located in the center of a triangular grassy plot, the base of which triangle measured 4 feet along U. S. 62 and the legs of which extended 7 feet on both sides into Tyrone Road. The stop sign was intended for traffic coming from Tyrone Road onto Highway 62. Highway 62 is approximately 34 feet in width at the point where it intersects the Tyrone Road, there being one lane for westbound traffic of approximately 12 feet in width and two lanes for eastbound traffic of 22 feet in width. The southern-most lane of Highway 62 is described by the witnesses as an approach lane and it contained some loose rock upon it on the date of the collision. Baxter's automobile was proceeding east-wardly at a rate of speed which he described as 62 miles per hour, and which witnesses not in his automobile but in the automobile of Shuttleworth described as being 65 to 75 miles per hour.

Shuttleworth was driving a Chevrolet on the Tyrone Road and was approaching U. S. 62 intending to make a left turn to Lawrenceburg, Kentucky, when the accident occurred. The witnesses to the collision violently disagreed as to the cause of the accident. According to appellant, when he saw Shuttleworth approaching U. S. 62, he assumed that Shuttleworth would stop at the stop sign. However, Shuttleworth did not do so but drove out onto the highway and into the lane in which appellant was traveling. Then appellant attempted to brake his car and to veer to the right in order to miss the Shuttleworth automobile. The left rear portion of appellant’s automobile came into contact with the left rear fender and back end of the Shuttleworth automobile and it then glanced off the Shuttleworth automobile, traveled across the triangular plot where the stop sign was located, and skidded 95 feet over a slight embankment and overturned at a J. T. S. Brown sign. One of the two passengers riding in appellant’s car, Tankersley, lost his life.

The witnesses for appellees insist that Shuttleworth stopped his automobile at the intersection of Highway 62 and the Tyrone Road. They insist that appellant’s car was coming at a high rate of speed, skidding sort of sideways, and that it crashed into Shuttleworth’s vehicle while it was still on the Tyrone Road.

It is the contention of appellant that despite the oral testimony of appellees’ witnesses, the physical facts are such that their testimony is without any probative value and that, therefore, the trial court should have directed a verdict in appellant’s favor. This claim is based upon the argument that it was a physical impossibility for appellant’s automobile to have struck the rear end of the Shuttleworth car if it was stopped as Shuttleworth claimed it was, even with the stop sign and with a very small portion of its front in the approach lane of U. S. 62. The contention is that Baxter’s automobile could not have hit the rear end of the Shuttleworth car at that location and then hit the stop sign and wind up at the J. T. S. Brown sign. It is further argued that the Shuttleworth car could not have ended up after the collision on the approach lane of U. S. 62 facing toward Lawrenceburg as it did without hitting the stop sign, whereas the proof showed that it did not hit the stop sign.

The crucial element in the decision of the jury no doubt was the testimony of Trooper 'Higgins of the State Police. He testified that the point of impact between the two automobiles was approximately 9 feet south of the approach lane of U. S. 62. He had examined the skid marks left by the Baxter car and found that they extended for 91 feet west of the point of impact and 95 feet east after impact was made. He determined that the Shuttleworth car was moved 18 feet by the impact and that it came to rest in the approach lane of U. S. 62 facing toward Lawrenceburg. When asked for an explanation as to how the Shuttleworth car could have come to rest at the point where it did, assuming that the point of impact to which he had testified was correct, without hitting the stop sign, he stated, “All I can say is it looked like it was far enough out in the road when it swung around it didn’t reach the stop sign, was out from the stop sign.” Since there was evidence that the Tyrone Road at the point of impact was 34 feet in width the jury could have reasonably inferred that Officer Higgins meant that the Shuttle-worth car was far enough out in the left lane of the Tyrone Road to avoid striking the stop sign when it was hit by the Baxter car.

We are of the opinion that the admitted physical facts and the verbal testimony of Officer Higgins, Shuttleworth, Wilson, and O’Nan are not so diametrically opposed as to make their verbal testimony unbelievable. Therefore, the case of Kentucky Transport Corporation v. Spurlock, Ky., 354 S.W.2d 509 (1961), and other similar cases cited by appellant are not applicable. Although the evidence strongly indicates that Shuttleworth’s car had pulled out into Highway 62 at least partially, and that this was the reason for Baxter applying his brakes and skidding as he did, this Court cannot disturb the findings as to the weight given to the testimony and other proof by the jury.

Appellant contends vigorously that the jury verdict is invalid, inasmuch as the nine jurors who signed the verdict fixing damages were not the same nine jurors who found that appellant was the sole cause of the accident. Appellant relies upon Section 248 of the Constitution, KRS 29.330, and CR 48, all of which require a less than unanimous verdict to be signed by all of the jurors who agree with the verdict. Appellant states that since only six of the jurors who signed the liability verdict also signed the damages verdict, the damages verdict was in fact signed only by six jurors.

Counsel for appellant failed to call the attention of the Court to KRS 29.335, which provides as follows:

“The verdict shall be written, signed by the foreman, and read by the clerk to the jury, and the inquiry made, whether or not it is their verdict. If more than one-fourth disagree, the jury must be sent out for further deliberation; but if no disagreement be expressed, and neither party require the jury to be polled, the verdict is complete and the jury discharged from the case.”

Appellant has cited several cases from foreign jurisdictions such as Clark v. Strain, 212 Or. 357,' 319 P.2d 940; Nelson v. Superior Court, 26 Cal.App.2d 119, 78 P.2d 1037; and McCauley v. International Trading Company, 268 Wis. 62, 66 N.W.2d 633. All of these cases hold that, where a jury is required to return a special and general verdict and the two verdicts are not signed by the same jurors, and where counsel for the objecting party has not waived the polling of the jury and made timely objection, the jury’s verdicts must be set aside.

It is the law in Kentucky, as in other jurisdictions, that failure to poll the jury waives irregularities in a jury verdict but does not waive a void jury verdict. See Davis v. Stone, 172 Ky. 696, 189 S.W. 937. That case points out the rule as to certainty and definiteness in a verdict and citing from 38 Cyc. 1877, points out that a verdict is bad which is so uncertain or indefinite as not to base a legal judgment thereon or is inconsistent and illogical.

In order to hold Baxter liable for all of the damages incurred by Shuttleworth and Tankersley’s estate, at least nine members of the jury who rendered the verdict for damages against Baxter had also to' render a verdict finding him to be the sole cause of the accident. Although the trial judge entered judgment on the date of the return of the verdict, apparently the form of the verdict was not made known to him on that date but two days later. This, seems a little odd in view of the fact that the judgment recites the two verdicts, but according to counsel for appellants this mistake must have resulted because the signatures of the members of the jury approving the verdicts were not read by the Court. Possibly the unfortunate mix-up was due to the fact that the verdict was returned late on Saturday afternoon, and to the further fact that the trial judge had no reason to anticipate under the instructions which he had given that there would be such a verdict as was returned here. Nevertheless, we believe that the verdict reached by the jury is void and a new trial shall be granted. See Davis v. Stone, supra, and Anderson’s Ex’x v. Hockensmith, Ky., 322 S.W.2d 489 (1959).

The judgment is reversed and the action remanded for a new trial.

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY and PALMORE, JJ., concurring.


author: WILLIAMS, Chief Justice.

text:
    Rebecca Rose PROBUS, Appellant, v. Nettle BOHANNON, Willena W. Vincent and Noel Vincent, Appellees.
    Court of Appeals of Kentucky.
    June 23, 1967.
    E. R. Gregory, G. D. Milliken, Jr., Milli-ken & Milliken, Bowling Green, Daniel B. Boone, Louisville, for appellant.
    Charles H. Reynolds, Bell, Orr & Reynolds, Bowling Green, for appellee Bohan-non.
    William J. Parker, Harlin, Parker & Ricketts, Bowling Green, for appellees Vincent.
   WILLIAMS, Chief Justice.

On a clear afternoon appellant Rebecca Rose Probus and appellee Willena W. Vincent were involved in a head-on automobile collision at the crest of a hill on a graveled country road. Probus filed suit against Vincent for damages suffered as a result of the collision. Appellee Nettie Bohannon, who was a guest passenger of appellant Pro-bus, filed suit against Probus and Vincent for damages she suffered as a result of the collision. A jury in the Warren Circuit Court returned a verdict in favor of ap-pellee Bohannon against both Vincent and Probus in the amount of $10,000, to be paid jointly by each. The jury did not find for Probus in her suit against Vincent. Probus has appealed from the judgment entered pursuant to the verdict.

Nettie Bohannon was riding in the front seat of the Probus automobile on the right-hand side. Bohannon testified that Probus approached the hill where the accident occurred at a speed of about 30 to 35 miles per hour, driving in the middle of the road. Bohannon saw the Vincent car when it was four or five car lengths away and called out that Vincent did not see the Probus car. Bohannon testified that when she made that statement Probus turned her automobile to the right, slowed down somewhat, and left sufficient room on the left for another vehicle to pass. She also testified that neither party sounded a horn.

We will stop a recital of the facts at this point to consider appellant’s first argument that she was entitled to a peremptory instruction against Bohannon on the ground that Bohannon’s statements amounted to a judicial admission. Appellant quotes 31A C.J.S. Evidence § 270, p. 694, defining judicial admissions as “concessions or voluntary acknowledgments made by a party of the existence of certain facts.” The question then is, whether Bohannon admitted sufficient facts to preclude a recovery by her against Probus. Bohannon stated Probus turned her car to the right after discovering the Vincent automobile was approaching, and left sufficient room on the left side of the road for the Vincent car to pass. On the other hand, Bohannon testified that Probus was driving in the center of the road going up the hill, that she was traveling at a speed of 30 to 35 miles per hour, and that she did not sound her horn. It seems entirely reasonable that a properly instructed jury could have found Probus negligent for driving in the center of the road up a hill where she could not" see over the crest, for traveling at a speed of 30 to 35 miles per hour at that particular time and place, and for failure to sound her horn, as required by statute, KRS 189.410. Not considering evidence of any other witness, Bohannon testified concerning facts sufficient to take the case to the jury.

Appellant attempted to introduce pictures of the area taken approximately a year and a half after the accident occurred. At first the trial court would not permit the photographs to be introduced because they were not properly authenticated. The court stated in the presence of the jury that it did not appear that conditions were the same when the photographs were taken as when the accident occurred. Later during the trial the court permitted appellant to introduce the photographs over the objection of appellee. Now appellant is complaining that the court erred in first refusing to admit the pictures and stating his reasons therefor. The simple answer to this is that, before photographs may be introduced, they must be properly qualified, and it is the duty of the person seeking their introduction to present such qualifications. If he fails to do it, he cannot be heard to complain that the court refused to permit the introduction of the photographs and stated the reason why such permission was not granted. Robinette v. Commonwealth. Department of Highways, Ky., 380 S.W.2d 78 (1964).

The court gave standard instructions on the duties of each of the parties. We find no error in any one of them.

Appellant Probus maintains that she was entitled to a directed verdict in her suit against appellee Vincent. Probus’ testimony was that she was going up the hill at 10 or 15 miles per hour and that, as soon as she saw the Vincent car, she pulled as far as she could to the right, stopped, blew her horn, and left adequate room for Vincent to pass to her left. Probus further testified that the Vincent car was across the center of the road and continued on that side up to the point of the accident. Vincent, on the other hand, testified that she was driving on her side of the road at 20 to 25 miles per hour, that she first saw the Probus car when it was two or three car lengths ahead of her, that the Probus car was in the middle of the road, and that she applied her brakes and turned to the right immediately, but admitted she skidded some to the left in the loose gravel after applying the brakes.

The physical facts are that there were two ruts in this 16-foot country road, apparently caused by most traffic using the middle of the road. The two automobiles met on the gravel ridge between the ruts. After the accident the Vincent automobile was about 15 inches to the left of what would have been the center line had one been- in existence. It does not appear to us that the location of the automobiles after the accident is conclusive on the question of negligence. See Dixie Ohio Express Co. v. Vickery, 306 Ky. 171, 206 S.W.2d 821 (1947). The jury was instructed concerning the duties of both parties and had before it sufficient facts to have justified a verdict for or against either. Under the circumstances, it was not error to refuse to direct a verdict in favor of appellant.

Judgment affirmed.

All concur.


text:
    CENTRAL KENTUCKY DEVELOPMENT COMPANY, a Corporation, Appellant, v. Dan BRYAN, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 23, 1967.

      Elwood Rosenbaum, Rosenbaum & Sullivan, Lexington, for appellant.
    Weldon Shouse, Shouse, Barker & King, Richard S. Smith, Lexington, for appellees.
   CLAY, Commissioner.

This proceeding is an attack upon a zoning reclassification in Lexington which was upheld by the Chancellor. It involves a tract lying adjacent to and northeast of appellant’s cemetery on the Versailles Road. We have this day upheld a zoning reclassification of property adjacent to and west of the cemetery. Central Kentucky Development Company v. Knippenberg, Ky., 416 S.W.2d 745.

The land consists of 5½ acres heretofore divided into 12 building lots. In 1963 this property was zoned R-2, a residential usé authorizing duplex dwelling development. In 1966 the property was rezoned R-4, which would permit the erection of apartment houses. It is this change which is challenged.

Over the last three or four years there has been intensive development in this general area, which lies north of the Versailles Road, both within and outside the city limits of Lexington. As the trial court found: “It is now a high density residential and business area.” Subdivisions have grown rapidly, along with related commercial development.

In 1965 an area northwest of the cemetery was rezoned for a shopping center use. Surrounding areas have been recently rezoned from restrictive residential use to more high density residential use. The general planning seems to indicate that apartment dwellings play a proper part as a buffer zone between commercial (or other nonresidential development) and single family residential areas.

Appellant’s first contention is that the present application for a zone change could not be considered because the city legislative body within a year prior thereto had declined to follow the recommendation of the City-County Planning Commission (hereafter “Commission”). One of the Commission’s bylaws provided that in the event a petition for a zone change had been denied, a subsequent petition could not include the same area “until after the expiration of one year after the date of the Commission’s denial.” (Emphasis added.) The simple answer to appellant’s argument is that this bylaw, or regulation, governs the proceedings of the Commission, not the legislative body, and the Commission had not theretofore at any time denied a petition for a zone change of this area.

It is next contended we have here a classic example of “spot zoning.” It is true the tract involved is not large. However, we believe the zoning authorities properly could consider the substantial changes that had recently taken place in the surrounding area. This was recognized in Leutenmayer v. Mathis, Ky., 333 S.W.2d 774, and Hodge v. Luckett, Ky., 357 S.W. 2d 303. The rezoning of this land fits in with a practical plan of rezoning the general area.

It is finally contended the rezoning was not shown to be beneficial to the health, safety, morals and general welfare of the community. If rezoning bears a reasonable relationship to an orderly plan of zoning development, it must be held to constitute a proper exercise of the police power unless it is shown that the zoning authorities acted arbitrarily, capriciously or illegally. Leutenmayer v. Mathis, Ky., 333 S.W.2d 774. Appellant failed to establish that the zoning authorities had so acted.

The judgment is affirmed.

All concur.


text:
    CENTRAL KENTUCKY DEVELOPMENT COMPANY, a Corporation, Appellant, v. Julian W. KNIPPENBERG, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 23, 1967.
    Elwood Rosenbaum, Rosenbaum & Sullivan, Lexington, for appellant.
    J. Montjoy Trimble, Kincaid, Wilson & Trimble, Weldon Shouse, Shouse, Barker,. & King, Armand Angelucci, Robert F. Stephens, Asst. County Atty., Lexington,, for appellees.
   CLAY, Commissioner.

This is a declaratory judgment suit attacking a zoning plan adopted by the Fay-ette County Fiscal Court. A similar case involving other property in the area has. been this day decided. Central Kentucky Development Company v. Bryan et al., Ky.,. 416 S.W.2d 743. The Chancellor confirmed the action taken. Appellant requests-reversal of the judgment on the ground that the rezoning was arbitrary and unreasonable.

The property involved is a tract of approximately 22 acres abutting on and lying-north of the Versailles Road. This property had been zoned agricultural, but it is agreed' by both parties that such classification is no longer realistic. The land in this area has-become thickly populated and for practical purposes it is ideally suited for both residential and related commercial uses.

The Fayette County Fiscal Court, following the recommendations of the Fayette County Planning and Zoning Commission (hereafter “Commission”), adopted the following zoning plan:

9 acres classified Business 1 (which would permit development as a shopping center).
4 acres classified for professional office use.
8 acres classified Residence 4 (an apartment house classification).

Appellant’s property, which adjoins this tract on the east, is a cemetery.

The first contention is that the Commission exceeded its powers when it required the person requesting the zoning change to submit to it a proposed plan for the development of this area. It is said that this resulted in “conditional zoning”, which appellant contends is unauthorized. Without passing upon the validity of such zoning, there are three answers to appellant’s argument. In the first place, the Commission has power under KRS 100.350 to obtain any pertinent information which would assist it in determining upon a proper land use. In the second place, the particular proposed uses were not incorporated in the zoning plan adopted. In the third place, assuming the zoning plan placed improper restrictions upon the property owner, he would be the person aggrieved and not the appellant.

It is next contended the Commission acted arbitrarily when it did not follow an “Interim Land Use Plan” it had adopted in 1962. It was shown, however, that changing conditions had resulted in many departures from this overall plan since its adoption, particularly in the area here involved. Though the 1962 Interim Plan had recommended residential use, the appropriateness of commercial development along the Versailles Road had since become apparent, and it is not contended that the Commission was bound to follow the earlier plan.

The final argument is that the zoning change was not “in aid of the common good”. It is urged that there is already sufficient commercial and “high density” residential development in the area to satisfy the public need. This of course is the very question the Commission is authorized to decide. There was ample evidence to support its conclusion that the general welfare would be served by rezoning this tract as proposed and adopted. The presumption is that the Commission acted reasonably and properly. Hatch v. Fiscal Court of Fayette County, Ky., 242 S.W.2d 1018. Appellant failed to make any showing that the Commission acted unreasonably and arbitrarily. See American Beauty Homes Corp. v. Louisville, etc., Ky., 379 S.W.2d 450.

The judgment is affirmed.

All concur.


text:
    William N. WARD et al., etc., Appellants, v. Julian W. KNIPPENBERG et al., etc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 23, 1967.

      Elwood Rosenbaum, Rosenbaum & Sullivan, Lexington, for appellants.
    Donald P. Moloney, Moloney & Moloney, Robert P. Stephens, Asst. County Atty., Lexington, for appellees.
   CLAY, Commissioner.

This proceeding, in form seeking a declaration of rights and injunctive relief, is an attack upon a rezoning classification adopted by the Fayette County Fiscal Court. The plan was upheld by the Chancellor. Neighboring property owners appeal.

Appellant contends the Zoning Commission and the Fayette County Fiscal Court acted in excess of their statutorily granted powers and there was insufficient evidence to support the zoning change. For the scope of judicial review of administrative action in this field, attention is directed to Hatch v. Fiscal Court of Fayette County, Ky., 242 S.W.2d 1018, and American Beauty Homes Corp. v. Louisville, Etc., Ky., 379 S.W.2d 450. While the contention is made that the zoning authorities acted in excess of powers granted by the legislature, there is no such showing in this case except to the extent that arbitrary action may be said to violate this principle.

The zoning change converted approximately 12 acres in the Stonewall Subdivision on Clays Mill Road from a Suburban 1 classification to R-l and R-2 (duplex apartment) classifications, and approximately 10 acres from Suburban 1 to B-l. The latter classification authorizes a neighborhood shopping center, and it is this potential use to which appellants principally object.

In 1958 William K. Stoll purchased a 269-acre farm (to which additional acreage was later added) on the west side of Clays Mill Road in Fayette County. This land was purchased for the specific purpose of developing a residential subdivision, which would include a neighborhood shopping center and multiple-unit (apartment) dwellings. It was extensively so advertised. At that time there was in existence a land use plan (known as the Segó Plan) utilized by the Fayette County Planning and Zoning Commission (hereafter “Commission”) as an overall zoning scheme for Fayette County. This plan specifically reserved an area for a shopping center at the place now in controversy. Subsequently, in 1962, the Commission adopted a revised land use plan. Here again an area was reserved for a shopping center, but the proposed location in the Stonewall Subdivision was shifted farther into the interior. There can be no question that for several years the zoning authorities of Fayette County had planned a shopping center use in this subdivision area. It was part of a coordinated design to promote proper zoning objectives. See Hodge v. Luckett, Ky., 357 S.W.2d 303.

When the property was bought in 1958, it was zoned Agriculture 1. In 1959 an application was made to rezone the Stonewall Subdivision area from Agriculture 1 to Suburban 1, and at the same time an application was made to rezone a part of it for a shopping center and multiple-unit dwellings. Due to certain complications the Commission postponed action upon the shopping center and the apartment re-classifications, but the whole area was zoned Suburban 1. In 1964 the application for the shopping center and apartment classifications was renewed. After a hearing the Commission approved the application and the requested zoning was adopted by the Fayette County Fiscal Court in 1965. Due to a procedural defect, the rezoning was invalidated by the Fayette Circuit Court. Thereafter, in 1966, the application was again renewed and the rezoning plan in controversy was adopted.

In the face of this history of consistent planning by the subdividers and the Commission, and in the light of the careful consideration given to this plan by professional staffs, different Commissions, and different fiscal courts, it is difficult to understand appellants’ contention that the rezoning classification was illegal or arbitrary. The principal argument seems to be that the present location of the shopping center is not in the precise location shown on the 1962 land use plan and that it is unnecessarily close to another shopping center on the opposite side of Clays Mill Road in another subdivision.

With respect to the first proposition, it seems clear that a zoning agency is not bound to follow every detail of a land use plan. As we understand it, such a plan is simply a basic scheme generally outlining planning and zoning objectives in an extensive area. It is in no sense a final plan and is continually subject to modification in the light of actual land use development. It serves as a guide rather than a strait-jacket. In fact the Commission recommended, and the Fiscal Court adopted, the shopping center location in exactly the same spot where it was shown on the 1957 land use plan. We know of no reason why the Commission could not, in the light of the latest developments, decide which of two different locations in the same subdivision area would best serve immediate requirements.

The argument that there is another shopping center 1500 feet away is not in itself sufficient to indicate arbitrary action. There was evidence the shopping center in controversy had been planned for, was needed, and was economically feasible at the location fixed. Whether a better location could have been found in this subdivision is a matter that addresses itself to the wisdom of the zoning authorities. We cannot substitute our judgment or that of the neighbors for theirs. It is the function of these authorities to make such determination. We find nothing in this record to suggest that the selection of this site (with a buffer zone of apartment buildings between the shopping center and the surrounding single family residences) was not based upon proper considerations or was in any sense arbitrary or unreasonable.

In conclusion it may be observed that over a substantial period of time three different planning staffs, two differently constituted zoning commissions, and two different fiscal courts have considered and approved of this zoning change. It is not “spot zoning” because it has always been a part of this subdivision plan. Appellants have failed to demonstrate that the zoning authorities acted illegally or arbitrarily.

The judgment is affirmed.

All concur.


text:
    Jerry L. DANIELS, a minor over fourteen years of age, and Shirley Ross, Appellants, v. Joe Lee TACKETT, suing by his mother, etc., Appellees.
    Court of Appeals of Kentucky.
    June 23, 1967.
    Eugene C. Rice, Paintsville, for appellants.
    George Chad Perry, III, William B. Hazelrigg, Paintsville, for appellees.
   MILLIKEN, Judge.

The judgment appealed from awarded damages for personal injuries against appellants to appellee Joe Lee Tackett, a passenger in an automobile driven by appel-lee Billy Robinson, Jr., which rammed the appellants’ car in the rear.

The accident occurred soon after midnight the morning of August 31, 1964. Appellant Jerry L. Daniels, then a minor, was driving south on U. S. 23 in Johnson County towards Paintsville in an automobile owned by his mother, appellant Shirley Ross. U. S. Highway 23 is a two-lane road at this point. Daniels stopped (there is some question whether gradually or suddenly) in his lane in order to make a left turn into a service station for the purpose of turning around. Before he made the turn an automobile driven by Charles Edwin Houston passed to the left of appellants’ car. The automobile following the Houston car and driven by appellee Billy Robinson, Jr., ran into the rear of appellants’ automobile throwing his passenger, Tackett, against the windshield, severely cutting him about the face and head.

Before the evidence was submitted to the jury, and since no demand had been made in the pleadings of appellants for a jury trial, the trial court found that the evidence was insufficient to show any negligence on the part of Robinson and, therefore, dismissed appellants’ cross-claim for contribution and indemnity.

The proximate cause of the accident was either: (1) A sudden stop in the roadway by Daniels without adequate warning that he intended to make a left turn, (2) driving by Robinson at a greater speed than was reasonable and prudent, (3) Robinson not keeping a lookout ahead of him, or (4) a combination of the above. Robinson testified as follows:

“Q. 20. (Cross-examination) You said you could not estimate what your speed was. Could you have been going ninety (90) miles per hour?
“A. I could possibly have been, yes.”
“Q. 2. (Redirect) Now, you say you could have been doing ninety (90) miles per hour, but were you doing ninety (90) miles per hour?
“A. No, sir."

Although perhaps Robinson may not have been driving as fast as 90 miles an hour, this testimony indicated that he was driving in excess of the speed limit. The maximum speed limit prescribed by statute at the time of the accident was 50 miles an hour. KRS 189.390. Robinson admitted the next day to a policeman that he was driving approximately 70 miles an hour. The Daniels, Houston and Robinson cars had left the drive-in restaurant in that order within a mile of the site of the accident, and the Houston car was splattered with flying glass from the collision as it passed the Daniels car on the left.

In Jewell v. Dell, Ky., 284 S.W.2d 92 (1955), it was held that violation of the terms of a statute regulating traffic is negligence per se and imposes liability as a matter of law if it causes an accident. See, also, Bumpus v. Drinkard’s Adm’x, Ky., 279 S.W.2d 4 (1955); Nett v. Zellars, Ky., 353 S.W.2d 379 (1961). Robinson made an admission against his interest when he told a witness that the accident was his fault, but he testified that when he made that statement he was under the impression that any car which collided with another from the rear was automatically responsible as a matter of law. Since the car immediately in front of Robinson was able to avoid hitting Daniels, the rate of speed at which Robinson was driving was a factor to be considered by the jury in deciding the cause of the accident. It was Robinson’s contention that Daniels stopped so suddenly it was impossible to avoid hitting his car and that, furthermore, Daniels gave no signal of an intention to turn.

During the trial a state trooper testified that approximately twelve hours after the accident he was almost hit by a car driven by Daniels. The occurrence of this incident had no relevance to the accident which had occurred earlier, and it was prejudicial. It was insufficient to establish a pattern of reckless and wanton driving, and the jury should have been admonished to disregard it. Cf. Tingle v. Foster, Ky., 399 S.W.2d 475 (1966).

Appellants also should have been allowed to question appellees fully in regard to whether they had been drinking since this bore some relevance as to whether Tackett was contributorily negligent in riding with Robinson. Soard v. Rogers’ Adm’r, Ky., 332 S.W.2d 525 (1960). Robinson admitted he had two beers several hours before the accident, but claimed he had had none after that. Tackett denied that he had any intoxicants, but the trial court refused to admit testimony that he had been seen sipping beer at the drive-in.

We conclude that the judgment must be reversed, and that on a retrial of the case the jury should be permitted to determine the proximate cause of the accident— whether it was Daniels or Robinson or both who caused it, and to also determine whether Tackett was negligent in any way in riding with Robinson.

The judgment is reversed.

All concur.