author: BLAIR, Judge.

text:
    Emil SAMBORSKI, Plaintiff-Respondent, v. Nelson PRICE, Defendant-Appellant.
    No. 24601.
    Kansas City Court of Appeals. Missouri.
    June 19, 1967.

      Albert J. Yonke, Kansas City, for appellant.
    Hutson & Van Horn, Don Hutson, Kansas City, for respondent.
   BLAIR, Judge.

Assault and battery. Emil Samborski sued Nelson Price for striking him in the face with his fist and injuring him and prayed for $1,000.00 actual damages and $5,000.00 punitive damages. The trial was to a jury and the result was a verdict and judgment for $500.00 actual damages and $2,500.00 punitive damages. Price appeals.

The sufficiency of the evidence to support the verdict and judgment stands unquestioned and a brief statement of the facts leading to the occurrence will suffice. Price was a business representative of a union of which Samborski was a member in good standing. Samborski attempted over a long period of time to obtain work through the union and failed. His financial circumstances were at a low ebb and he sought and found work on his own. Several days after he began this work he was accosted on the job by Price who reprimanded him for obtaining work, on his own and not through the union. Samborski defended his action on the ground that the union had not obtained work for him and that he had a family he had to support. As the saying goes, one word le,d to another and Price struck Samborski in the face with his fist. Samborski presented evidence of various serious consequences of this blow, among which was a concussion that caused him to have severe headaches for a long period of time.

A single question is presented by Price on this appeal. His point relied on is that the trial court erred “in Permitting Plaintiff’s Counsel, in His Final Argument, to Argue the Element of Punitive Damages When That Element Had Not Been Argued in Plaintiff’s Opening of the Final Argument and Had Not Been Mentioned in Defendant’s Argument, for the Reason That It Was Highly Prejudicial and Defendant Was Denied the Opportunity of Arguing That Plaintiff Was Not Entitled to Punitive Damages.” The allegation of error in his motion for a new trial is identical in all legal substance.

The fault of Price’s contention is that it simply cannot withstand comparison with the record. After outlining in his opening statement the facts on which Samborski relied to obtain a verdict and judgment for $1,000.00 actual damages and $5,000.00 punitive damages, his counsel then said “It is on the basis of these facts that he complains. A man doing his job, struck in the face, injured thereby, and now he must come to court and seek from you the justice he requires. This will be the case for the plaintiff. He seeks by way of compensatory or actual damages the sum of $1,000.00 for the blow, the bills, the pain, the hurt, the interference with his normal activities. He seeks by way of what are known as punitive damages for the fact it was a wrongful act, the fact that a man has a right to enjoy his job, his work, peacefully without being interfered with by some one who comes in and unlawfully strikes him, the sum of $5,000.00, and the plaintiff is ready to present his evidence to you.”

In his opening argument, Samborski’s counsel first fully argued actual damages and then argued at length the reasons he believed the evidence justified an award of punitive damages. He did not restate the amount of $5,000.00 he had clearly told the jury in his opening statement that Samborski was seeking and he said nothing indicating that he had receded from the $5,000.00 figure. He stated no amount. In his argument, Price’s counsel also argued punitive damages. He did not mention any amount, but he said “Now, they talk about tactics, that you should bring in a verdict, to warn Mr. Price that he shouldn’t hit anybody, and make an example, and so forth. Now, the reverse is true.” Obviously directing his argument to both actual and punitive damages, he immediately followed these statements by arguing that Price did not strike Samborski and, even if the jury should find he did, the blow was a trifling one provoked by Samborski causing him no injury and entitling him to no damages at all. In his closing argument Samborski’s counsel again argued actual damages and then said “Now, as to the matter of punitive damages. The union movement — ”. Counsel for Price objected on the ground “that the amount of damages was not mentioned in the opening part of the argument, and was not mentioned in the defendant’s argument, and I submit it is improper for him to argue damages at this point.” (Emphasis supplied) This objection was overruled. Counsel for Samborski then re-argued the reasons he believed the evidence justified an award of punitive damages and then in a single sentence stated “And as I told you in the beginning of this case, he seeks (punitive) damages in the amount of $5,000.00.” Counsel for Price took no action at the time this statement of the amount was made. He did not enter an objection or ask that it be stricken or that the jury disregard it or that counsel for Samborski be reprimanded.

On this record it must be manifest that Price’s contention in this court that Samborski’s counsel did not argue for an award of punitive damages in his opening argument is baseless. Just as baseless is his argument that his own counsel did not argue against an award of punitive damages. Therefore Samborski’s counsel had the right to argue for punitive damages in his closing argument as he had done in his opening argument. Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, 716,

Although neither Price’s motion for new trial nor his point relied on, which last we have quoted verbatim, complains that Samborski’s counsel mentioned the amount of $5,000.00 claimed as punitive damages only in his closing argument, the argument in his brief is devoted to demonstrating that mentioning that amount in the closing argument was prejudicial and reversible error. Civil Rule 79.03, V.A.M.R. provides that allegations of error, in order to be preserved for appellate review, except questions enumerated in the rule and not relevant here, must be presented to the trial court in a motion for a new trial. This rule is mandatory. Gosnell v. Gosnell, Mo. App., 329 S.W.2d 230; C & O Distributing Co. v. Milner Hotels, Inc., Mo.App., 305 S.W.2d 737. Civil Rule 83.05 provides that the brief for appellant shall contain “The points relied on, which shall show what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, * * ” This rule is not merely technical and appellate courts should enforce it except when cogent reasons of justice warrant waiving noncompliance. No such reasons are present in this record. Browning v. City of Poplar Bluff, Mo.App., 370 S.W.2d 179. Reading his motion for a new trial and his point relied on, we believe no one would conclude that his real complaint is that the amount claimed for punitive damages was not mentioned in the opening argument but was allowed to be mentioned in the closing argument. For these reasons alone we will not disturb this judgment.

There are other reasons for an affirmance. Even if we were to consider Price’s motion for a new trial and his point relied on as sufficient, the objection made by Price’s counsel when Samborski’s counsel began his closing argument on punitive damages, and this was the only objection made, was much too broad and far from sufficiently specific to warrant us in convicting the trial court of error in overruling it. The gist of the objection was that no argument at all relating to punitive damages could be made because the amount claimed had not been mentioned in the opening argument. As observed, counsel for Samborski in his opening argument had presented at length Samborski’s reasons for claiming punitive damages without mentioning an amount and he was entitled to make the same kind of argument in closing. Objections to argument of counsel must be specific and they are insufficient when they do not call the attention of the trial ■court to the specific ground on which they are based. Stephens v. City of Eldorado Springs, Mo.App., 190 S.W. 1004, 1005; Kent v. L. B. Price Mercantile Co., Mo. App., 17 S.W.2d 983, 984. Where an objection is made to all of an argument, some of which is proper, the objection does not suffice to lodge reversible error in the record merely because a portion of the argument is improper. Fennell v. Illinois Central Railroad Co., Mo.App., 383 S.W.2d 301, 307; Minor v. Lillard, Mo., 306 S.W. 2d 541, 548; Sullivan v. Hanley, supra, 347 S.W.2d 1. c. 716. For this reason the trial court was entirely justified in overruling the only objection made.

Civil Rule 4.22, we recognize, declares “It is not candid or fair for the lawyer * * * where a side has the opening and closing arguments to mislead his opponent by concealing or withholding positions in his opening argument upon which bis side then intends to reply.” Greathouse v. Wolff, Mo.App., 360 S.W.2d 297, 301. We believe that Price’s counsel was not misled in this case. All concerned in the trial knew from the beginning the amount •claimed as punitive damages. As observed, Samborski’s counsel ended his opening ■statement by telling the jury clearly that, in addition to $1,000.00 actual damages, Samborski wanted it to award him $5,000.00 as punitive damages. He neither withheld the amount of punitive damages sought or misled anybody regarding it. Nothing occurred during the trial to indicate that Samborski or his counsel had receded from this position. To us it is wholly unreal to argue that Price’s counsel did not know Samborski’s counsel was arguing for the $5,000.00 he had claimed for Samborski as punitive damages in his opening statement when he presented his reasons for an award of punitive damages in his opening argument, even though he did not restate that amount. Viewing the facts of this case we do not believe that Samborski’s counsel violated Civil Rule 4.22.

There is no settled rule for deciding the question with which we are dealing. Each case must be ruled on its own facts when the question arises. Shaw v. Terminal Railroad Ass’n of St. Louis, Mo., 344 S.W.2d 32, 37, 93 A.L.R. 2d 265; Sullivan v. Hanley, supra, 347 S.W.2d l.c. 716. On different facts the Supreme Court has discussed this question twice. In Goldstein v. Fendelman, Mo., 336 S.W.2d 661, 666, an action for personal injuries, the conduct of counsel in failing to cover his entire case in his opening argument was condemned, although the cause was not reversed due to the failure of the defendant to enter a proper objection. There counsel for the plaintiff did not mention any amount he claimed as damages in his opening argument and in his closing argument used “a large cardboard” on which he wrote the amounts he asked the jury to award for each of the 14 items of damage totaling $77,735.00. Of this conduct the court said “(W)e consider it unfair and improper to permit plaintiff’s counsel to do this for the first time in his closing argument, when defendant’s counsel had made no argument as to amount.” We are firmly convinced that Goldstein is not applicable here and we have discussed it only to distinguish it and to present it as a demonstration of a true violation of Civil Rule 4.22. In the present case, in neither the opening nor closing argument was there an attempt to outline and value any elements of punitive damages which were claimed to constitute the total of $5,000.00 originally mentioned in the opening statement and finally mentioned in the closing argument. The substance of both arguments was only that the assault was malicious and unprovoked and made on a man whose only offense was honestly striving to earn a living in employment which he had obtained on his own and which the union over a long period had failed to obtain for him.

Counsel for Price does not cite or rely on Goldstein. His sole reliance is on Shaw v. Terminal Railroad Ass’n of St. Louis, supra, 344 S.W.2d l.c. 36, an action for personal injuries. Counsel for the plaintiff in that case, in his opening argument, “discussed in detail the question of liability, the evidence supporting plaintiff’s theory of negligence, and the credibility of plaintiff’s witnesses”. He did not mention the plaintiff’s injuries or the damages claimed. When he concluded his opening argument, he told the jury that he would develop “some other points” later. Immediately counsel for the defendant made a specific and proper request that the court require counsel for the plaintiff to argue “all of his points”, including damages “or anything else” in his opening argument. This request was refused and the entire argument on injuries and damages was allowed to be concealed and withheld until the closing argument. The Supreme Court held this to be reversible error saying “In our present case not only was the statement of the amount claimed withheld for the concluding argument, but the entire argument on injuries and damages was so withheld. This was done knowingly, and after full and complete warning. * * * It is not practicable to lay down a hard and fast rule governing all cases, in all their varying circumstances ; we do not attempt to do so here. But we do hold, here and now, that the party having the affirmative of the issues in a suit such as this may not, after full notice and warning, withhold all argument on the vital questions of injuries and damages; we further hold that the trial court abused its discretion in permitting this argument in the reply, and that, under the circumstances of this case, the error was prejudicial.” Obviously the Shaw case is no authority for a reversal under the circumstances in this case, for at the very outset Samborski’s counsel informed Price’s counsel, the court and the jury of the amount Samborski was claiming as punitive damages.

We carefully say that we are ruling this case as an individual one and only on its own facts and we are not declaring a rule applicable to all other cases.

The judgment is a just one on the whole record and our duty is to affirm.

It is so ordered.

All concur.


source: Caselaw Access Project

author: STEINFELD, Judge.

license: Public Domain

text:
    Eunice HATFIELD, Appellant, v. Grace HATFIELD et al., Appellees.
    Court of Appeals of Kentucky.
    June 30, 1967.
    Davis Williams, Munfordville, Walter A. Baker, Wilson, Baker, Herbert & Garmon, Glasgow, for appellant.
    Glay E. Maggard, Wilson & Maggard, Munfordville, for appellees.
   STEINFELD, Judge.

G. W. Hatfield and his wife, Grace, lived on a farm with their five children. In 1946 their son, Willard, married Eunice (the appellant herein) and he brought her home. The other Hatfield children married and moved away. Willard and Eunice worked on the farm and sometimes found employment elsewhere. They helped care for Mr. and Mrs. G. W. Hatfield until Mr. G. W. Hatfield died on January 7, 1962. On February 9, 1962, Grace and her other children with their respective spouses conveyed the farm to Willard and Eunice by a deed which contained the following:

“ * * * that for and in consideration of the sum of One ($1.00) Dollar and other good and valuable considerations, cash in hand paid, and the further consideration of the services that the Parties of the Second Part rendered to G. W. Hatfield during his lifetime and have rendered and promise and agree to hereinafter render to Grace Hatfield, a part of which consideration consists of the following services: To provide a comfortable home for Grace Hatfield at any and all times that she desires to reside in the home of Willard and Eunice Hatfield; to provide her with the necessary food and clothing when she resides in their home and to care for her in sickness and health providing necessary doctor and drug bills when she resides in their home and hospital care, if it is necessary to take her from their home to a hospital, and to pay her burial expenses, * * * ”
⅝ * * * *
“To have and to hold unto the Parties of Second Part, their heirs and assigns forever, provided that the terms and conditions above provided for and the consideration enumerated above does not fail.”

Grace continued to live on the farm until late 1963 when she entered a nursing home. Upon her release she' went to live with another son and never resumed her residence at the farm.

On May 5, 1964, the grantors to that deed sued Willard and Eunice to cancel it. They claimed that the grantees had failed to fulfill the obligations imposed upon them. Eunice denied any failure on her part and stated that she has always been ready, willing and able to perform all of the obligations imposed upon her. She counterclaimed alleging that she had performed all types of household and farm services and that she had nursed and cared for G. W. Hatfield and his wife. She demanded that the court dismiss the complaint and alternately that in the event the deed should be canceled she have judgment for $8,-250.00.

Issues were joined and after hearing much testimony the lower court made findings of fact, reached conclusions of law and adjudged that the deed be canceled. It found “that the only real consideration for the” deed was the promise “To provide a comfortable home for Grace Hatfield at any and all times that she desired to reside in the home of Willard and Eunice Hatfield. To provide her with necessary food and clothing when she resided in their home and to care for her in sickness and health providing necessary doctor and drug bills when she resides in their home and hospital care, if it is necessary to take her from their home to a hospital, and to pay her burial expenses.” It held that there had been a failure to comply, but that Eunice had rendered valuable personal services to G. W. and Grace Hatfield. It adjudged that she was entitled to recover of Grace and all her children “ * * * the sum of $240.00 per year, not to exceed five years before the filing of this action for services rendered to G. W. Hatfield and Grace Hatfield during the life of G. W. Hatfield and the further sum of $180.00 per year for services rendered to Grace Hatfield from the date of death of G. W. Hatfield to October 1963.”

Eunice has appealed but there was no cross-appeal. It is of interest to note that on April 14, 1964, Willard sued Eunice for divorce and that in the court below and in this court he did not defend or resist the efforts of his family to set aside the deed.

Following the death of Mr. G. W. Hatfield domestic difficulties arose between Eunice and Willard and Grace became very dissatisfied. The evidence is replete with controversy between all members of the family. There was ample evidence before the court below on which it found that the provisions and considerations enumerated in the deed had failed. There was also substantial evidence to show that Eunice, in anticipation of becoming the owner of a ½ interest in the farm rendered valuable services to her father-in-law and her mother-in-law for many years. The Chancellor found the facts. CR 52.01. It is not for this court to conclude differently unless the findings are clearly erroneous. Krauss Wills Co. v. Publishers Printing Co., Ky., 390 S.W.2d 132; Black Motor Co. v. Greene, Ky., 385 S.W.2d 954; 7 Kentucky Practice, Clay 103. They were supported by substantial evidence and must stand. Massachusetts Bonding and Insurance Co. v. Huffman, Ky., 340 S.W.2d 447.

Appellant complains because the court below limited the recovery on her alternate claim for compensation to services rendered within five years of the filing of the complaint. She relies upon Troxel v. Childers, 299 Ky. 719, 187 S.W.2d 264 and Benge’s Adm’r v. Fouts, 163 Ky. 796, 174 S.W. 510 on her assertion that “her cause of action for services rendered to Mr. and Mrs. Hatfield did not accrue until the death of Mr. Hatfield on January 7, 1962.” These cases stand for the rulé that where an oral promise is made to pay for services for a lifetime the cause of action does not accrue until the promis-sor’s death, and the statute does not begin to run until the cause of action accrues.

In this case there was not even an apparent cause of action until efforts were made to take away from Eunice the title to the real estate which had been conveyed to her. When the action was filed she promptly asserted her counterclaim to which appellees interposed the defense of limitations. We hold that “ * * * the plea of limitations will not prevail against the right of the defendant to assert by way of counterclaim transactions connected with and growing out of the matter that was the basis of the suit.” Lewis v. Kash, 239 Ky. 117, 38 S.W.2d 978.

Eunice also complains that the amount she was awarded was not reasonable compensation. The lower court heard proof on this subject. It does not appear to us that the decision reached was unreasonable. Certainly his findings were not clearly erroneous, therefore, they will not be disturbed. Logan v. Logan, Ky., 409 S.W.2d 531.

The judgment is affirmed insofar as it cancels -the deed and fixes the amount of recovery for the period after May 5th, 1959. It is reversed with directions to adjudge the amount which Eunice shall recover for services rendered for the years before May 5th, 1959.

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

      I. Mrs. Grace Hatfield died November 26, 1965.


author: CLAY, Commissioner.

text:
    Vada J. WALDEN, Appellant, v. Joe H. JOHNSON et al., Appellees.
    Court of Appeals of Kentucky.
    April 21, 1967.
    Rehearing Denied Aug. 29, 1967.

      William E. Allender, Duncan & Allender, Bowling Green, for appellant.
    Douglas Carter, Paul Carter, Abe P. Carter, Tompkinsville, for appellees.
   CLAY, Commissioner.

In this habeas corpus proceeding, wherein appellant sought to obtain possession of Timothy Paul Johnson, a six-year-old child who was residing with appellees, the writ was denied. The case presents a most unfortunate controversy between the child’s paternal aunt (appellant) and his paternal grandparents (appellees), and involves unusual circumstances.

The child’s parents resided in Indiana and he was born there. His mother died in 1961. His father died February 10, 1966. Three days later appellant brought the child to Monroe County, Kentucky, for the burial of his father there. Appellees assumed control of the child and refused to permit appellant to take him back to his former home in Indiana.

Two days later in Indiana the father’s will was probated. In that will he appointed appellant as guardian of his child. The following day an Indiana probate court appointed appellant guardian “to take physical custody of said minor child” and she immediately qualified as guardian.

Shortly thereafter she made an abortive trip to Kentucky to obtain the child. On March 2, 1966, the appellee grandmother was appointed guardian by the Monroe County Court. On March 16, 1966, this habeas corpus proceeding was commenced.

The trial court, we think properly, recognized that this proceeding involved only the question of the right to immediate possession or control of the child. See Chamblee v. Chamblee, Ky., 248 S.W.2d 422. At the hearing the court would not allow the introduction of evidence on the question of ultimate custody. The judgment does not disclose the basis of the trial judge’s ruling, although the record indicates it was his opinion that the welfare of the child played some part and that “guardianship does not carry with it custody”.

Perhaps in no other field is the law so uncertain and flexible as in that involving the custody of children. In Chamblee v. Chamblee, Ky., 248 S.W.2d 422, an attempt was made to distinguish between the types of proceedings wherein a party asserts the legal right to immediate and temporary possession and those proceedings of an equitable nature where a court is called upon to decree a more permanent placement of the child best serving its ultimate welfare. Due to differing factual situations which involve such matters as change of residence or domicile, long lapse of time,-and conflicting custody awards, the procedural distinctions are not always maintained. However, where the facts present a clear-cut issue as to which of two competing parties has the legal authority to have a child in his possession, we think this issue properly may be resolved in a'habeas corpus proceeding wherein the legal right is enforced. This is such a case (and was so treated by the trial court). The question involves a determination of which state had jurisdiction of this child at the time this suit was filed.

It cannot be disputed that the child’s domicile was in Indiana. This is determined by the domicile of the last surviving parent. Garth v. City Sav. Bank, 120 Ky. 280, 86 S.W. 520; Johnson v. Smith, 94 Ind.App. 619, 180 N.E. 188; and 32 A.L,R.2d 865. Other things being equal, the courts of Indiana would have jurisdiction to make a custody award, and the fact that the child was temporarily residing in Kentucky in no way affected that jurisdiction. As said in 9 A.L.R.2d 442:

“Where there is no outstanding judicial award of custody by a foreign court, the courts are unanimous in holding that even though the children may be physically without the state, power in the court exists to make an award of custody of children domiciled within the state.”

See also Callahan v. Callahan, 296 Ky. 444, 177 S.W.2d 565; Shippen v. Bailey, 303 Ky. 10, 196 S.W.2d 425; Abbott v. Abbott, 304 Ky. 167, 200 S.W.2d 283.

This child’s domicile continued in Indiana after the father’s death. An Indiana court, whose jurisdiction is not questioned, by a valid order appointed appellant as guardian. That court followed the express wishes of the last surviving parent in making this appointment and we believe those wishes (expressed by the person most interested in the child’s welfare) should, except for most compelling reasons otherwise, be respected by our Kentucky courts. Therefore, as of February 15, 1966 (the date of the order), appellant had the legal right to possession and control of this child. We can discover no ground on which to adjudge that appellees acquired a better right.

It is not contended that the March 2 order of the Monroe County Court appointing the appellee grandmother as guardian accomplished this. See Griffin v. Harmon, 35 Ga.App. 40, 132 S.E. 108. The argument is that because the child was physically present in this state, the trial court had full power to make an independent custody award in the interest of its best welfare, and that the grandparents have a right of custody superior to that of a statutory guardian. We do not think either of these propositions is sound under the circumstances existing in this case.

As we have before intimated, the nature of this proceeding limited the issues involved. This is not a proceeding to determine the ultimate custody of the child. As we have also noted, the trial court would not permit evidence on this issue.

Ignoring the procedural aspects, it is questionable that any Kentucky court could or should properly undertake to determine the ultimate custody of this child. While we are fully aware of the extreme jealously with which states guard their right to control infants, this authority should be exercised only when a state has acquired a recognizable parens patriae interest in the child predicated upon bona fide residence or domicile.

We do not believe that the temporary presence of Timothy in Kentucky was sufficient under the circumstances shown to give this state what may be termed custodial jurisdiction of the child. He was brought here to attend a funeral and was kept here a month by his grandparents. This did not convert him into a bona fide Kentucky resident, much less change his domicile. It would simply lead to chaos if every state in which an infant set foot asserted exclusive jurisdiction to determine his custodial destiny. See Wells v. Andrews, 60 Miss. 373; and 9 A.L.R.2d 434. It would not make sociological or legal sense.

This case is clearly distinguishable from the recent case of Brengle v. Hurst, Ky., 408 S.W.2d 418. That was a habeas corpus proceeding to enforce an Indiana judgment awarding custody of two children to the father. The custody of the children had formerly been awarded to the mother and she and the children had lived in Kentucky for five years. We recognized that the mother and the children had in good faith established a residence in Kentucky (actually domicile). Kentucky had acquired a parens patriae interest in their welfare and this state was not required to give full faith and credit to the Indiana judgment. In effect the decision stands for the proposition that since the children were domiciled in Kentucky, Indiana had lost jurisdiction to determine the matter of custody and therefore the father had no legal right of possession. This really ended the habeas corpus aspect of that case (although the opinion suggested a possible further hearing in the Kentucky court on the question of the childrens’ ultimate custody). In all other cases we have examined where the trial court went into the question of the child’s best welfare and its ultimate custody, jurisdiction was assumed on the ground that the child was a bona fide resident of, or domiciled in Kentucky.

As we have pointed out, since the child had only a temporary residence here, the state of its domicile had the prior right to place it with the statutory guardian nominated by the father. Without going into the question of full faith and credit, we believe as a matter of comity our Kentucky courts should enforce this valid order of a sister state court. Certainly it does not constitute “an improper infringement on the interests” of this state, as was determined in Brengle.

We find no merit in appellees’ contention that the appellee grandparents have a superior right to that of the child’s statutory guardian. They rely upon Fletcher v. Lip-pert’s Guardian, 251 Ky. 469, 65 S.W.2d 450, and Ridgeway v. Walter, 281 Ky. 140, 133 S.W.2d 748. Those cases are clearly distinguishable. Both were equity proceedings. In both the child involved was domiciled in Kentucky. In both the statutory guardian was a stranger. None of those features is present in the case before us.

Since the entry of the Indiana order appointing appellant statutory guardian, no change of circumstances has created any legal right in appellees to the custody of this child. Nor do we think the circumstances would justify a Kentucky court in assuming jurisdiction to determine the matter of ultimate custody (which the trial court did not undertake to do). We recognize Indiana’s superior jurisdictional interest which created in appellant the better legal right to immediate possession of this child.

The judgment is reversed, with directions to enter a judgment for appellant directing appellees to surrender Timothy Paul Johnson to her.

WILLIAMS, C. J., and HILL, MIL-LIKEN, OSBORNE, PALMORE and STEINFELD, JJ., concur.

MONTGOMERY, J., dissents.


text:
    Roy BARNES et al., Appellants, v. John J. JACOBSEN et al., Appellees.
    Court of Appeals of Kentucky.
    June 30, 1967.

      Asa M. Rouse, Walton, for appellants.
    Robert F. Greene, Burlington, Franklin P. Hays, Skaggs & Hays, Louisville, William P. McEvoy, Florence, for appellees.
   STEINFELD, Judge.

This is an appeal from a judgment declaring various rights with respect to a bond issue to finance the construction of a waterworks system in Boone County, Kentucky.

Several years ago a water district was formed for Boone County. KRS Chapter 74. Recently the Board of Commissioners decided and acted to issue $2,200,000.00 of bonds to enable it to build a waterworks system for that area. The bonds were to bear date of April 1, 1967, and to mature in varying amounts from April 1, 1972, to April 1, 2007. On January 19, 1967, the Commissioners filed with the Boone County Court their final report containing the information required by KRS 74.130. On that date the court accepted the report and directed that notice be published. KRS 74.140. The notice appeared in the Boone County Recorder on January 26, 1967. It stated the place of the hearing and that it would occur on February 10, 1967.

No one excepted to the report or objected at the hearing. KRS 74.140. The court entered judgment confirming the report and there has been no appeal from or attack on the judgment except in these proceedings.

The circuit court declared that the issuance of the bonds for the purpose indicated was authorized by Chapters 58 and 74 of the Kentucky Revised Statutes. The law is well settled that bonds for such public improvements may be issued. Mid-dendorf, et al. v. Jameson, et al., 265 Ky. Ill, 95 S.W.2d 1057; Theobald, et al. v. Board of Com’rs of Buechel Water Dist., et al., 288 Ky. 720, 157 S.W.2d 285.

On March 9, 1967, the members of the Board of Water Commissioners and the Board of Health of Boone County, the ap-pellees, sued in the Boone Circuit Court seeking a declaration of rights. KRS 418.040; CR 57. They named as defendants Roy and Lucille Barnes, individually and as representatives of the class of all present and future citizens, residents and taxpayers of the Water District. CR 23.01. Issues were joined on the questions adjudicated by the circuit court and which we discuss in this opinion. That court declared the rights of the parties and now before us is an appeal raising only three questions.

It is contended that the judgment of the Boone County Court entered February 10, 1967, confirming the report of the Commissioners is not final and is subject to modification. The lower court approved the class action and held that “The Judgment entered by the Boone County Court on February 10, 1967, is now final and can not be appealed from.” We agree. Ryan v. Commissioners of Water District No. 1 of Kenton County, et al., 220 Ky. 822, 295 S.W. 1023.

The report stated and the county court judgment determined that the anticipated revenue from water service charges to users would be sufficient to pay expenses of operation and retire the bonds and that a very substantial saving in interest costs could be effected by the district agreeing to classify the real estate of users and agreeing to make assessments to the extent necessary to meet any deficit in paying the interest and principal on the bonds.

The action of the Commissioners was consistent with that judgment in that they classified all real estate and provided as follows:

“All of the real estate in such District is hereby classified into Class 'A and Class B. Class A is and shall be all real estate in the District which abuts on a water line of the District, except such real estate, the owners of which have paid the tap-in connection charge of the District prior to the filing of the assessment roll in the office of the Boone County Court Clerk pursuant to KRS 74.150. Class A real estate is that which will receive a tap-in connection while the water system is being constructed, without a tap-in connection charge being made, the expense of same being paid from the proceeds of the bonds to be issued by the District. Class B is all other land in the District, including that referred to above, the owners of which pay the .tap-in connection charge.”

Another issue is whether the district has the legal right to authorize revenue bonds for the construction of a waterworks system with a provision that if the revenues are insufficient to meet minimum requirements under the bond ordinance, the district will make an assessment against all property owners abutting on the water lines who have not paid a tap-in connection charge to the district prior to the filing of the assessment roll in the office of the Boone County Court Clerk. KRS 74.130. The reason for this exemption is that the owners of real estate who “ * * * have paid the tap-in connection charge * * * will have paid an amount equal to the benefits from water service resulting to such real estate, with the result that it will receive no benefit it has not fully paid for.” It was also provided that such assessment, if required, will be made in proportion to the assessed values of such property for ad valorem taxation purposes at the time the assessment is made.

Theobald, et al. v. Board of Com’rs of Buechel Water Dist., et al., supra, stands for the proposition that a water district may agree to levy against property in the district from time to time within the limits provided by law if such action shall be necessary to provide for payment of the principal or interest. The lower court so adjudged and we see no reason to depart from the law above stated.

An issue is raised as to whether the tax may be imposed upon the basis of assessed values as distinguished from on a front foot or square foot basis. KRS 74.130 provides in part: “The commission shall examine the real estate in the district that may be affected by the proposed water system, and classify it into five classes according to the benefit it will receive from the construction and operation of the water system.” Here the Commissioners used only two classifications which is authorized by KRS 74.130(2). The proof showed that the two classifications used were based upon primary and secondary benefits “to conform to existing conditions.” We consider this proper.

Appellants argue that if assessments become necessary they must be made either in proportion to the front footage of the property abutting upon the water line, or according to the areas of such properties. The statute does not make that a requirement. The report and judgment made it clear that the assessment will be in proportion to benefits. Krumpelman v. Louisville and Jefferson County Metropolitan Sewer District, Ky., 314 S.W.2d 557. Evidence was introduced which convinced the circuit court and convinces us that the method used by the Commissioners for assessment is in proportion to the benefits to the real estate. “[L]atitude within the framework of the statutes and Constitution” is required if units of government are to solve financial problems. McCoy, et al. v. City of Florence, Ky., 409 S.W.2d 511. We hold that this method complies with the law. Robertson v. City of Dan-ville, Ky., 291 S.W.2d 816.

In 1960 the Board of Health adopted a regulation pursuant to KRS 212.230(1) (c) which provided that no private sewage disposal system should be installed without a permit first having been obtained from the Boone County Health Department. It stated the conditions upon which the permit would be issued. Appellants question the validity of that regulation. The evidence showed the present population in the district and the expected substantial increase in population. There was testimony that presently septic tanks, cesspools and privies exist throughout the county and that a large percentage of the cisterns and wells which are being used are not free from contamination. It showed that contamination of any water supply may result from seepage of sewage into the ground. As the population becomes more dense the danger to health will be increased. Ordinances regulating matters affecting public health (Shaeffler v. City of Park Hills, Ky., 279 S.W.2d 21) and requiring the installation of modern facilities have been approved. Nourse v. City of Russell-ville, 257 Ky. 525, 78 S.W.2d 761; City of Louisville v. Thompson, Ky., 339 S.W.2d 869; Cassidy, et al. v. City of Bowling Green, et al., Ky., 368 S.W.2d 318.

The Boone County Board of Health obtained its power from KRS Chapter 212. It was authorized by KRS 212.230(1) (c) to “Adopt, except as otherwise provided by law, such rules and regulations not in conflict with the rules and regulations of the State Board of Health, as may be necessary to protect the health of the people * * * ”. Public health is a proper subject of legislation. District Board of Tuberculosis Sanatorium Trustees for Fayette County, etc. v. City of Lexington, 227 Ky. 7, 12 S.W.2d 348. We hold that such delegation of police power is not contrary to law. 39 C.J.S. Health § 10, p. 824. The regulation is valid. Weber City Sanitation Comm. v. R. G. Craft, 196 Va. 1140, 87 S.E.2d 153. 39 C.J.S. Health § 2, p. 811.

In City of Covington v. Sanitation District No. 1 of Campbell, Ky., 301 S.W.2d 885, we cited the case of Sanitation District No. 1 of Jefferson County v. Campbell, Ky., 249 S.W.2d 767, and reaffirmed our decisions that “ * * * matters of sewage disposal are subject to the police power of the state * * * ”. This concept is so firmly established that it is no longer open to question.

The regulation also provided that “In the event a public water supply abuts the property, connections shall be made and private systems shall be prohibited.” The Boone County Board of Health was a party plaintiff in the action below and it contended that this regulation was valid, which contention was resisted by the appellants herein. The lower court adjudged and declared that the provisions of the regulations to which we have just referred “ * * * are valid, legal and enforceable to the extent that they forbid any person, firm or corporation to install or to continue in effect a private sewage disposal system without first having obtained a permit from the Boone County Health Department and in providing that in the event a public water supply becomes available and abuts the property, connections shall be made and private systems shall be prohibited.” We agree. City of Louisville v. Thompson, supra; Nourse v. City of Russellville, supra.

Finding no error in the judgment of the lower court the same is affirmed.

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


text:
    FERGUSON CONTRACTING COMPANY, Inc. and the Fireman’s Fund Insurance Company, Appellants, v. CHARLES E. STORY CONSTRUCTION COMPANY, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.

      Carmol D. Cook, Hartford, Henry O. Whitlow, Waller, Threlkeld & Whitlow, Paducah, for appellants.
    H. H. Lovett, Jr., Lovett & Lovett, Benton, for appellee.
   STEINFELD, Judge.

Charles E. Story Construction Company was the prime contractor for grade and drainage work on a section of highway to he constructed in Marshall County by the Department of Highways of the Commonwealth of Kentucky. Story subcontracted a part of the work to Ferguson Contracting Company, Inc. and part to other subcontractors. On January 19, 1960, The Fireman’s Fund Insurance Company, on behalf of Ferguson, executed a bond in favor of Story to insure the performance of the provisions of that subcontract. Claiming that Ferguson had failed to perform as agreed Story sued Ferguson and Fireman’s Fund for $13,925.93 and interest. After considering the evidence the circuit court entered judgment for $9,088.71 against both defendants and they have appealed. Story has not filed a cross-appeal.

Before construction began Ferguson entered into contract with Lowe Construction Company to do the work it had agreed to perform for Story. In April 1960 Ferguson and/or Lowe began construction as contemplated. However, before the end of May 1960 the Department of Highways ordered work stopped because Story had subcontracted to others more of the work than was permitted by the general contract. About June 2, 1960, to induce the Highway Department to permit it to resume the work, Story made certain representations under oath to, and agreements with, that Department as follows:

(a) That it had rented the grading equipment from Ferguson and that it would pay the operators of this equipment.

(b) That it would submit certified copies of payroll which would show the name of each employee (with certain exceptions), his occupation and rate of pay.

(c) That it would make available for inspection by the Highway Department all canceled checks and invoices pertaining to the payment of wages and payment for material.

(d) That by a bill of sale Lowe had conveyed to Ferguson the equipment being used on the project.

The contract between Story and Ferguson was never canceled and there was no alteration as to the work to be performed by Ferguson.

Work was resumed and Story began to pay the employees of Ferguson and to pay for materials which Ferguson used. Story paid nothing to Lowe. Up until November 19, 1960, Story made settlements with Ferguson based upon completed work but Story failed to withhold 5% retainage according to a provision of the contract secured by the bond. In checking the amount and quality of work performed on the project the Department of Highways never checked or calculated separately the work performed which originally was subcontracted to Ferguson.

The work was not proceeding to the satisfaction of Story. On August 24, 1960, it wrote a letter to Ferguson and sent a copy to the Fireman’s Fund in which it complained of slow progress and threatened to terminate its agreement with Ferguson as of August 29, 1960. On September 9, 1960, Story wrote to Fireman’s Fund informing it that the work which Ferguson had agreed to do was approximately 70% complete and that the job was going much better. Among other things, that letter stated “We don’t think you have any problems although if any come up we will let you know.”

Fireman’s Fund contends that no other written notices, demands or complaints of any kind were made by Story to Fireman’s Fund until after the project had been completed. However, Mr. Charles E. Story testified that he had some telephone conversations with Fireman’s Fund during the year 1961 but he did not recall any such conversations in 1960 after the letter above referred to was written. No evidence was presented which contradicts this testimony. There was evidence that Fireman’s Fund was kept informed of the problems which Story was encountering with Ferguson but that Fireman’s Fund ignored these communications and made no investigation.

In 1961 the project was completed and Story had difficulty in settling with the Department of Highways. Story made claim of Ferguson and of Fireman’s Fund for sums allegedly expended by Story for payrolls and materials, which Story contended should have been paid by Ferguson. Ferguson denied liability and contended that its personnel and Lowe’s personnel and equipment performed the contract and that at no lime did Story take over the work.

Fireman’s Fund disclaims liability for the reason that it was never notified of the representations and new agreements listed above and because Story and Ferguson materially changed the manner of performance of the contract after the bond was executed. It charges that this was done for the sole benefit of Story without notice to it and without its consent.

Fireman’s Fund argues that the changes made by Story and Ferguson were detrimental to it. It cites New York Indemnity Co. v. Hurst, 252 Ky. 59, 66 S.W.2d 8, 94 A.L.R. 864 and Inland Navigation Co. v. American Surety Co. of New York, 190 Ky. 504, 227 S.W. 809, from which latter case we quote:

“It is fundamental that any agreement or dealing between the creditor and the principal in an obligation of debt, which essentially varies the terms of the contract, without the consent of the surety, will release the surety from liability. * * * When his contract is changed without his knowledge or authority, it becomes a new contract and is invalid, because it is deficient in the essential element of consent. And it has been held that it is not of any consequence that the alteration of the contract is trivial, or even that it is clearly for the advantage of the surety, if it appears that it varied his responsibility, and was without consent. It is the surety’s right to determine for himself what is, or is not, for his benefit.”

Story counters by insisting that the work was the same and that the bookkeeping arrangement was no different than if it had engaged a bookkeeping service. It insists that the changes in arrangement were minor and therefore did not release Fireman’s Fund. It argues that these changes did not vary the provisions which affected the surety, and being a paid surety it was not released. United States Fidelity and Guaranty Co. v. Travelers’ Insurance Machine Company, 167 Ky. 382, 180 S.W. 815; American Surety Company of New York v. Noe, 245 Ky. 42, 53 S.W.2d 178.

The surety’s contention must be tested under the law as it applies to a bond executed by one engaged in the “surety business”. “(T)he rule of strictissimi juris, which originated to protect accommodation endorsers on fixed and precise obligations, does not extend to contracts such as the one in question.” Simmons Const. Co. v. Powers Regulator Co., Ky., 390 S.W.2d 901.

The circuit court found that there was a change in the bookkeeping procedure but that this was not a material alteration of the contract between Story and Ferguson that would have any effect whatsoever on the surety. One engaged in the surety business is not released from liability on a bond which it signs when the alteration of the contract was not material, did not affect the substance of the contract and did not increase the risk or responsibility of the surety. United States Fidelity and Guaranty Co. v. Travelers’ Insurance Machine Company, supra.

“A departure from the terms of the contract will not have the effect of discharging a compensated surety unless it appears that such departure has resulted in injury, loss, or prejudice to the surety, there must be a material variance. It has been said that to allow compensated surety companies to collect and retain premiums for their services, graded according to the nature and extent of the risk, and then to repudiate their obligations on slight pretexts which have no relation to the risk, would be most unjust and immoral, and would be a perversion of the wise and just rules designed for the protection of voluntary sureties. As it has been otherwise expressively stated, the modern day surety company must show some injury done before it can be absolved from the contracts which it clamors to execute.” 50 Am.Jur. 1115, Suretyship, section 321.

The surety has failed to show injury caused by the modification. We find nothing to indicate that the trial court was in error in holding that the surety was not detrimentally affected by the changes made.

Fireman’s Fund charges that Story’s failure to notify it of the default of Ferguson was a breach of a duty owed by Story to Fireman’s Fund and that this breach released Fireman’s Fund from all obligations under the bond. It fails to point out from what source this alleged obligation arises.

The surety company seeks to invoke the doctrine of promissory estoppel to support its contention that Story had a commitment to notify Fireman’s Fund as to any default of Ferguson and having failed to do so it cannot recover. It cites Floyd v. Christian Church Widows and Orphans Home of Kentucky, 296 Ky. 196, 176 S.W.2d 125, 151 A.L.R. 1230. The law stated in that case is not applicable to the facts now before us.

Story says that it was only required to exercise reasonable diligence to serve notice on the surety and cites Allen County v. United States Fidelity and Guaranty Company, 122 Ky. 825, 93 S.W. 44 and Warden v. Addington, 131 Ky. 296, 115 S.W. 241.

Whether there was an obligation to give notice of default is not germane to our decision because the circuit court found that Fireman’s Fund had timely and adequate notice that Ferguson had failed in its responsibility after which the surety company took no action. While this question is properly raised on appeal (CR 52.03), it is our opinion that there was sufficient evidence to support this finding, therefore, we will not disturb it. CR 52.01. Southern R. R. Co. v. Kelly Const. Co., Ky., 406 S.W.2d 305.

Story claimed that it was entitled to recover 7% for profit and 8% for overhead. The circuit court disallowed profit but adjudged it entitled to 10% for overhead. Both appellants contend that overhead should not have been allowed and cite Tri-State Developers, Inc. v. Moore, Ky., 343 S.W.2d 812, in which we held that a “supervisory charge” should not have been included in a judgment. We do not interpret the allowance made in the case before us to include anything except that which was necessary to complete the contract. There was testimony that normal overhead usually runs about 8% but the lower court said that “as this job was so complicated and the bookkeeping so great, the court is increasing that amount to 10% in allowing a 10% overhead.” Allowing 2% excess overhead in lieu of profit was not prejudicial error as claimed by Fireman’s Fund.

Finally it is claimed that the allowance to Story of certain additional items was erroneous. The contention is that the bookkeeper had no personal knowledge as to specific items and relied upon notations on invoices and various sources of hearsay. Similar contentions are asserted as to other witnesses. The transcript of evidence convinces us that no error was made by the court below. Time Finance Co. v. Beck-man, Ky., 295 S.W.2d 346. Also see 17 A.L.R.2d 235.

The circuit court considered many items and allowed 52 of them. It also examined credits and approved 18 for work that “was performed on Ferguson’s portion of the contract” and ordered credit given for 7 payments of cash. ,The appellants request that we re-examine many of these claims. In Burke v. Burke, Ky., 416 S.W.2d 724, 726 (decided June 16, 1967) we said:

“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.”

It is the province of the trial court to find facts and evaluate the testimony. The scope of review is to determine if there was sufficient, competent evidence to support the judgment. Creech v. Miniard, Ky., 408 S.W.2d 432. Unless the findings are clearly erroneous we will not hold to the contrary. CR 52.01. We have found nothing that convinces us that the findings of the trial court were clearly erroneous.

The judgment is affirmed.

All concur except OSBORNE, J., who was not sitting.


author: WADDILL, Commissioner.

text:
    Lora WOOLUM, Appellant, v. MINERS MEMORIAL HOSPITAL ASSOCIATION et al., Appellees.
    Court of Appeals of Kentucky.
    June 30, 1967.

      William Murphy Howard, Harlan, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, Grant F. Knuckles, James S. Wilson, Pine-ville, J. Keller Whitaker, Workmen’s Compensation Board, Frankfort, for appellee.
   WADDILL, Commissioner.

Contending that she is totally, permanently disabled, Lora Woolum appeals from a judgment confirming an award of the Workmen’s Compensation Board which allowed her ten per cent partial, permanent disability.

Mrs. Woolum, fifty-nine years of age, was employed as a kitchen helper by the ap-pellee, Miners Memorial Hospital Association. On September 8, 1962, she was attempting to place a tray of bottles on an elevator which would carry them to a lower floor. The tray allegedly struck the edge of the elevator causing her to jerk away from it and sustain injuries in the area of her neck. Mrs. Woolum was examined and treated by several physicians who found stiffness and pain in her neck, left arm and shoulder.

At the hearing of her claim before the board a general medical practitioner testified that, although she had sustained a traumatic injury, she had developed a severe psychogenic overlay, a term used to indicate complaints that are more exaggerated than warranted by the physical findings. He further testified she is unable to perform her duties as a kitchen helper. The two physicians testifying on behalf of the employer stated, in effect, that her ailments had developed over a period of years and were due to a combination of cerebral arteriosclerosis and an emotional disorder described as agitated depression. They were of the opinion that her condition was not related to an accident but that she was unable to perform her previous employment duties.

Pursuant to Mrs. Woolum’s motion under KRS 342.315 the board appointed a neuro surgeon to examine her. This physician testified that he found some minor objective disorders and opined that “much of what she demonstrates is hysterical.” He further found that she has a five to ten per cent partial, permanent disability but that she is able to return to work.

Notwithstanding the testimony of the board-appointed physician that she is only partially disabled, Mrs. Woolum contends the board erred in failing to find that she is totally, permanently disabled. In support of this contention she argues that in view of the fact that her employer’s medical evidence tends to establish she is totally disabled the only issue before the board was whether her disability was caused by a work-connected injury. Since the board found she sustained such an injury, she argues that it was compelled to further find that she is totally, permanently disabled.

While the board is not bound by the findings of a physician appointed under KRS 342.315, such evidence has as much weight as other medical evidence introduced in the case. Lewis v. United States Steel Corporation, Ky., 398 S.W.2d 490. Under the testimony of the board-appointed physician the board was authorized to find that Mrs. Woolum has sustained only ten per cent partial, permanent disability. Apparently she failed to convince the board that her disability was any greater than that found.

The judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    J. D. ROBERTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.
    Thomas F. Manby, Jr., Clark, Manby & Williamson, LaGrange, for appellant.
    Robert Matthews, Atty. Gen., George Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   OSBORNE, Judge.

This is an appeal from a judgment convicting appellant of grand larceny and fixing his punishment at confinement for one year in the penitentiary.

On Sunday evening, March 13, 1966, about 10 p. m., appellant was apprehended by a police officer of LaGrange, Kentucky, on the lot of Southern States Cooperative. At the time he was apprehended he was operating a pick-up truck without lights. It was loaded with approximately 100 steel fence posts belonging to the cooperative. When apprehended, appellant informed the officers that he had previously made arrangements with the management to take the posts. Later investigation proved this statement to be false. He now contends that his conviction should be set aside because the complaint originally issued charging him with the offense was not executed before a magistrate and therefore the circuit court lacked jurisdiction. He also insists that he was entitled to an instruction upon the offense of taking property without felonious intent as denounced by KRS 433.240. It is our opinion that appellant is wrong on both counts. He was tried under an indictment which he does not contest. The fact that his arrest might have been illegal does not affect his subsequent conviction. Many persons have the false belief that one who is unlawfully arrested can never be tried for the crime. This seems to be appellant’s position. The correct rule in S Am.Jur.2d, Arrest § 116 (1962) is as follows:

“The fact that an original arrest may have been unlawful does not affect the jurisdiction of the court, nor is it a ground for quashing the information. And it does not preclude trial of the accused for the offense.”

See also Ker v. People of State of Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421. And Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541.

Appellant’s second contention that he was entitled to an instruction on an offense of an unlawful taking under KRS 433.240, we find without merit. There are no circumstances in this record under which the jury could have believed that the appellant had the right to take the posts. The offense was larceny or nothing. Since appellant’s theory did not warrant the instruction there was no error on the part of the trial court in failing to instruct. See Wombles v. Commonwealth, Ky., 317 S.W. 2d 169.

The judgment is affirmed.

All concur.


text:
    Frank L. MYERS and City of Louisville, Appellants, v. Mary Anne ABLE, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.

      Marshall B. Woodson, jr., Robert L. Dur-ning, Jr., Woodson, Barker & Durning, Louisville, for appellants.
    Raymond C. Stephenson, Hottell, Stephenson & Burke, Louisville, for appellee.
   WADDILL, Commissioner.

The City of Louisville and one of the members of its fire department, Frank Myers, appeal from a judgment awarding ap-pellee, Mary Anne Able, $5,000 for personal injuries sustained by her when a city-owned fire truck driven by Myers struck the car she was driving. Appellants contend that the court erred in overruling their motion for a directed verdict and in instructing the jury.

Appellants argue that: (1) The provisions of KRS-189.320 and Louisville General Ordinance 331.22 give emergency vehicles (KRS 189.011(1) (a)) the right of way and appellee’s violation of them constituted contributory negligence, (2) they were not negligent because the due regard for the safety of the public required by these legislative enactments, was satisfied by the appellant, and (3) the evidence to support the finding of liability lacks sufficient probative value when contrasted with a preponderance of evidence showing no negligence of Myers.

Shortly before noon on January 4, 1964, appellee was driving east on Garland Avenue at about 20 mph. She entered the intersection of Garland Avenue with 34th Street pursuant to a green traffic signal and was struck by appellants’ fire truck which was headed south on 34th Street. The collision occurred in a residential neighborhood where certain houses tended to limit the visibility of traffic at this intersection. There is a conflict in the evidence as to whether the truck’s siren was sounded as required by KRS 189.390(6), whether appellee exercised proper care before reaching the intersection and whether the speed of the truck was reasonable in the circumstances.

Appellants’ argument that as a matter of law their truck had the right of way is subject to the qualifications pointed out in Gasparac v. Castle, Ky., 330 S.W.2d 111, thusly:

“ * * *. The provision exempting an emergency vehicle from ordinary traffic regulations confers no absolute immunity upon the driver, for it is based on the prescribed conditions. Nor does the preferential status relieve the driver from the duty of having due regard for the safety of other people lawfully using a street or highway. The duty is measured by the danger to be apprehended. Notice and warning to persons required to yield the right of way is essential, and a reasonable opportunity to yield or get out of the way is necessary before they become chargeable with the obligation to give preference to the emergency vehicle. There must be strict observance of the conditions which will exempt an emergency vehicle. When a driver has the preferred right of way, he must be especially alert when he intends to run a red traffic light at a busy street intersection and must take care commensurate with the serious consequences that might follow his failure to do so. He should remember that other drivers have the right to assume that the red light signal will be obeyed by him unless duly and timely warned to the contrary. * *

In the present case whether appellee should have yielded the right of way at the intersection and whether the fire truck was operated with due regard for the public’s safety at that time are issues raised by the conflicting testimony. The trial court properly decided that the evidence on appellee’s behalf had sufficient probative value to take the case to the jury.

The pertinent facts and issues of this case cannot reasonably be distinguished from those in City of Louisville v. Chapman, Ky., 413 S.W.2d 74. Furthermore, the instructions are identical to those which were criticized in that case.

In the instant case Instruction (1) (d) required each driver “to observe traffic regulations * * This instruction was incorrect because KRS 189.320 and 189.390(6) give emergency vehicles the right to disregard traffic regulations at intersections when due regard for the safety of the public is observed. By Instruction (4) the jury was told that Myers had the duty to operate the fire truck with due regard to the safety of the public. However, these instructions were faulty in that the jury was not instructed that Myers had a right to run the red light by exercising due regard for the safety of the public. City of Louisville v. Chapman, supra. This error requires a reversal of the judgment.

In the event of a new trial, if the evidence is substantially the same, the trial court will accordingly revise the instructions. The judgment is reversed, with directions to grant appellants a new trial.

All concur.


text:
    Delaney (Laney) GIBSON et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.

      A. E. Cornett, Denver Adams, Hyden, for appellants.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

The three appellants were convicted of rape and sentenced to life imprisonment. On appeal their only claim of error is that the trial court abused its discretion in denying a continuance.

The defendants were arraigned on November 16, 1966. At that time two competent lawyers were appointed to represent them and the case was then assigned for trial on November 22. On November 22, counsel filed a motion and affidavit for a continuance. This affidavit stated in substance that counsel had been engaged in trials of cases (in the same court) on November 16, 17, 18, 19 and 21; that they had not had the time nor the opportunity to confer with defendants and make preparations for the trial; and that they had not had an opportunity to interview the prosecuting witness.

In response the Commonwealth’s attorney stated that appellants had not requested permission to consult with their counsel nor had counsel requested permission to consult with them; that counsel was not actively engaged in the trial of other cases at all of the times mentioned in the affidavit; that a transcript of testimony of the prosecuting witness before the grand jury was furnished to counsel on November 16; and that on November 21 one of appellants’ counsel advised the Commonwealth’s attorney in the presence of the court that he knew of no reason why he would not be ready for trial the following day. The trial court denied a continuance.

In considering the question of abuse of discretion, it is necessary to examine and weigh the peculiar circumstances in each case. Commonwealth v. Creech, 313 Ky. 140, 230 S.W.2d 622. The nature of the case is important. While appellants were charged with a serious crime, the issue involved was rather narrow and clear-cut. As shown at the trial, the principal question was one of credibility. The prosecuting witness testified she was forcibly raped by the appellants acting jointly. They admitted picking her up and transporting her in an automobile, and their defense was that she willingly went along with them and that no act of sexual intercourse took place.

In appellants’ affidavit for a continuance there was no allegation that appellants could obtain other witnesses to aid in their defense. As a matter of fact, their defense was well presented, and there is no indication in the record that counsel could have done more had additional time been granted. See Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377.

The trial judge doubtless took into consideration the fact that the witnesses for the prosecution resided in Ohio and they had been brought a long way for the trial. He also must have considered the fact that appellants were represented by two experienced lawyers. It of course was the duty of these lawyers to bestir themselves to prepare for a trial of which they had adequate advance notice. Their request for delay must be based on something more than convenience.

The end sought is a fair trial. Johnston v. Commonwealth, 276 Ky. 615, 124 S.W.2d 1035. As said in Hood v. Commonwealth, 303 Ky. 686, 198 S.W.2d 793, 796:

“This court has consistently recognized that the right of one standing accused of a crime to be represented by counsel carries with it the right of himself and counsel to have reasonable time to prepare for trial. But there is no showing here that delay would have been of any advantage to appellant or to his counsel in preparation of his defense, and, in the absence of such showing, it is manifest that the court did not err in overruling the motion for continuance.”

On the record before us we do not find an abuse of discretion.

The judgment is affirmed.

All concur.


author: EDWARD P. HILL, Judge.

text:
    Roy Lee SIGLER, Appellant, v. Little I. RALPH, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.

      John B. Anderson, Owensboro, for appellant.
    Joseph R. Flaherty, Bratcher, Rummage, Beard & Flaherty, Owensboro, for appel-lee.
   EDWARD P. HILL, Judge.

At the conclusion of appellant-plaintiff’s evidence the trial court directed a verdict for appellee-defendant, Little I. Ralph, in the former’s suit for damages alleging assault and battery. This appeal followed.

Appellee Little I. along with the people of Daviess County in July 1965 celebrated the sesquicentennial of the county’s founding. Overalls, beards (sometimes false) and large black hats were in vogue for the men. For the women, the mini-skirt was lengthened to the ankles.

On the day in question, Little I. Ralph, wearing overalls, a black hat, and a false beard and barefoot, dismounted from his mule, hitched it up, and entered the front door of the jail. He conversed with the jailer, Billy Pence. At this time, appellant Roy Lee Sigler was an occupant of the jail, having been placed there because of his inability to pay his fine for drunkenness. He was a frequent inmate of the jail, having made some seventy-five involuntary visits to the jail the twelve months before the celebration. He was often treated as a trusty and allowed to roam at will in and around the jail.

Sigler came to the office of the jail to inquire of the jailer as to his kitchen duties. Little I. had just left the office to go to the rest room nearby. He was returning to the office when Sigler came in the front door. Sigler took about two steps inside when, according to Sigler, “Little I. Ralph rushed from the door on my left, pressed a gun against my body and fired. The blood gushed, Mrs. Pence ran and Bill jumps up and grabs me * * Sigler also testified: “He came from my left and I just saw a bulk shadow like. It all happened so quick. Just as he pressed the gun up against me, I kindly went back a little and the gun fired — well, it was red hot powder and wadding went into the bone here on my arm, three months ago.” Sigler was taken to the hospital where he was confined for about a week. His hospital bill was $180.

There was no evidence of any ill feeling between Sigler and Ralph; in fact, they hardly knew each other before this incident.

In keeping with the practice and spirit of the year 1815, the beginning of the period being celebrated in Daviess County, plaintiff instead of alleging carelessness averred the common law allegations of assault and battery.

The trial court was of the opinion that it was incumbent on plaintiff to prove hostile intent on the part of defendant in order to sustain an essential element of assault and battery and cited Perkins v. Stein, 94 Ky. 433, 22 S.W. 649, 20 L.R.A. 861, and that he failed to show such hostile intent. Thus, the directed verdict was required.

Defendant argues that assault and battery is semicriminal in nature evolving from the common law remedy of trespass and that “formed intention is an essential element of assault and battery.” To support his position he relies principally on Perkins v. Stein, 94 Ky. 433, 22 S.W. 649.

The Perkins case, supra, was decided in 1893 at a time when the “straitjacket” common law rules of civil procedure were in effect. Furthermore, in Perkins the only question presented was whether or not the cause of action survived the death of the injured party, and it has no application in the present case.

The present case was practiced by the attorneys in the trial court and was treated by the trial court under common law rules. A number of criminal cases were cited by appellee. In all of them the court announced the rule that in such cases malice must be proven or inferred from the circumstances. The requirement of proof of malice in assault and battery action in criminal cases is still in effect. But, in this case we are not dealing with a criminal case but with a civil action for damages.

While the plaintiff, now appellant, couches his allegations in terms of “assault and battery,” these terms do not require us to revert to common law rules of civil procedure. CR 8.01 provides:

“A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which he deems himself entitled.”

Let us, then, review the definition of assault and battery.

“ ‘An assault is an attempt or effort, with force and violence, to do a corporal hurt to another by striking at another in striking distance with or without a weapon, though the party striking misses his aim.
“ ‘A battery is any unlawful touching of the person of another, either by the aggressor himself, or by any substance set in motion by him.’ ”

So the pleader is simply alleging in the present case that Little I. made “an attempt or effort to * * * do a corporal hurt” to the plaintiff and that plaintiff was struck and injured thereby. Of course, it was unnecessary to allege that Little I. had any malice or unlawful intention. The allegation of assault and battery was enough so far as the pleading was concerned. So far as the proof is concerned, the cause of action depends upon an intentional laying of hands and could not succeed on negligence; nevertheless, the use of a firearm under these circumstances was enough to justify a jury in inferring intent.

In Koch v. Stone, Ky., 332 S.W.2d 529, this court recognized liability for the mere touching by one person of another. Also in Hatchett v. Blacketer, 162 Ky. 266, 172 S.W. 533, 534, this court recited that, “[mjoreover, the laying of hands upon the woman and squeezing her breast was a taking and detaining of her against her will”, and recovery was allowed.

In the instant case, the appellee did not testify, and the evidence is not clear as to the character or caliber of the weapon used by Little I. But there was evidence that whatever it was, it had a metal barrel and had a hot flash of fire that came from the metal barrel and entered appellant’s wrist along with some slugs. It is apparent that Little I. had arranged some blank cartridges for a 22-caliber pistol and wanted to have some fun. If he had kept his distance, it probably would have been all right. But any reasonably-minded person should know that even with blank ammunition it is reckless and dangerous to place the muzzle of a weapon so close to the person of another and that burned powder, concussion or any material used for wadding purposes is calculated to do serious injury.

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

All concur.

      I. Caldwell’s Kentucky Judicial Dictionary, Volume I, p. 262.


text:
    Justice WRIGHT, Appellant, v. The LOUISVILLE STORE OF RUSSELLVILLE, etc., Appellees. James WATERS and Ed Waters, etc. v. Justice WRIGHT. LIBERTY MUTUAL FIRE INSURANCE COMPANY v. Justice WRIGHT. The LOUISVILLE STORE OF RUSSELLVILLE, etc. v. Justice WRIGHT.
    Court of Appeals of Kentucky.
    June 30, 1967.

      G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, G. Sam Milam, Russell-ville, for Justice Wright.
    Jerry L. Moore, Bell, Orr & Reynolds, Bowling Green, for Harold Gray.
    William J. Parker, John David Cole, Harlin, Parker, Ricketts, Lucas & English, Bowling Green, for James and Ed Waters.
    Joe S. Wheeler, Henry Dickason, Rus-sellville, for Alvin Shifflett.
    Pollard White, White & Clark, Hopkins-ville, for Liberty Mutual Fire Insurance Company.
    William G. Fuqua, Russellville, David W. Gray, James E. Fahey, Louisville, for Louisville Store of Russellville.
   EDWARD P. HILL, Judge.

Justice Wright and Henry B. Edwards own adjoining buildings with an 18-inch common party wall located on Main Street and orTthe public square in the town of Russellville. On July 29 and 30, 1963^ the building of Wright was destroyed by fire. In the process of rebuilding the Wright building, the party wall tumbled and fell. The Louisville Store of Russellville, Kentucky (hereinafter referred to as The Louisville Store) tenant of Edwards, sued Wright and his contractors and subcontractors for damages to the merchandise of The Louisville Store and recovered a judgment for $20,000, from which Wright appeals.

The original suit was against Wright, Harold Gray, with whom Wright first contracted to remove the debris and construct another building, Alvin Shifflett, d/b/a Shifflett Construction Company, James Waters and Waters Construction Company. The Liberty Mutual Fire Insurance Company was later joined as a party defendant due to a controversy as to whether the loss sustained by The Louisville Store was the result of the fire or the result of the excavation. All these parties are now in this court either by direct or cross-appeals.

Plaintiff alleged negligence on the part of Wright and his contractor and subcontractors, and a large part of the arguments in the numerous briefs is devoted to law pertaining to the relationship of “independent contractors” and “master and servant.” Wright contends his contractor and subcontractors were independent contractors; and if not so, they were employees; and the exoneration of all other defendants (in event they were employees) by the jury ipso facto exonerated Wright. Illinois Cent. R. Co. v. Applegate’s Adm’x, 268 Ky. 458, 105 S.W.2d 153 and other cases are cited.

Although plaintiff alleged negligence in his original complaint, during the trial he sought permission to file an amended complaint charging that the predecessor in title of Wright and Edwards jointly owned the party wall; that the removal by Wright and his workers of the lateral support of the party wall constituted a breach of his implied duty to leave the wall undisturbed; and that Wright is responsible in damages even without allegation and proof of negligence. The trial court declined to permit the filing of this amendment. This we think was error.

Notwithstanding the refusal of the trial court to allow the filing of the amended complaint, the parties in their opening statements to the jury freely and without objection discussed the “party wall.” By agreement of all parties, a copy of a deed from Edward’s predecessor in title to Wright’s predecessor was filed in the record. This deed conveyed to grantee nine inches of land from grantors lot so that both parties owned the land under their respective halves of the party wall. The deed was dated January 1, 1891. It contained no provision with respect to the duties of the parties to protect the wall, but this was clearly implied. The Louisville Store in addition to moving for a directed verdict offered an appropriate instruction embodying this theory of its case, which was refused by the court. It is provided by CR 15.02 that: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”

We conclude plaintiff was entitled to a directed verdict, except as to damages, on the theory Wright breached his duty not to disturb the lateral support of the party wall. It is written in 40 Am.Jur., Party Walls, § 26, p. 501:

“A co-owner of a party wall may excavate upon his premises in and about the structure of the wall to any depth he chooses, provided he maintains the foundation of the support of the adjoining building as stable as it was before the excavation was commenced * * *. On the other hand, it has been held that a landowner who, by excavating within the limits of his own lot, weakens the structural support of his adjoining landowner in a common party wall, is liable for any resulting damage, notwithstanding he uses due care in excavating, or employs an independent contractor to perform the work." (Emphasis ours.)

In the recent case of City of Hazard Municipal Housing Commission v. Hinch, Ky., 411 S.W.2d 686, 689, this court said:

“The rule by which the release of the agent operates to release his principal is not available here since it was admitted that Forcum-Lannon, Inc., was an independent contractor.”

On the question of the proximate cause of the tumbling of the wall, there can be no doubt m the minds of reasonable men but that it resulted from the excavation, not the fire.

Although based upon negligence when it should have been founded upon the breach of duty not to disturb the party wall, the verdict of the jury shall stand.

The judgment is affirmed.

All concur.


author: OSBORNE, Judge. MONTGOMERY, Judge

text:
    Roy SALISBURY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.

      Burnis Martin, Prestonsburg, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   OSBORNE, Judge.

The appellant was convicted of wilful murder and sentenced to death by the Floyd Circuit Court. This appeal is from the conviction. The facts surrounding the offense are as follows:

On April 23, 1964, near the village of Drift in Floyd County, Mallie Denny, Roy Denny, and Thomas Spencer Combs were in the process of marking a boundary line between property belonging to the Denny family and the Salisbury family. The line was being marked pursuant to an order of the Floyd Circuit Court and by personal directiqn of the judge of that court. They were working only a short distance from the Salisbury home. Sometime on the morning of the 23rd, Roy Salisbury along with his sister Darlene Martin and his father Tom Salisbury passed along the road near where the work was taking place. Some words were passed between the Salis-burys and the Dennys. Exactly what these words were is not made clear by this record. After the Salisbury family got to their home, according to a witness, C. B. Osborne, who was present and watched the entire transaction, Roy Salisbury returned to the spot where the line was being marked with a 12-gauge shotgun and, at close range, shot and killed all three of the people there engaged. The exact time of the shooting is not clear, however, the county officials were notified at their offices in Prestonsburg around six p. m. They immediately went to the scene and made an investigation. They found several shotgun shells upon the ground and talked with various witnesses who indicated that Roy Salisbury was the person who had done the shooting. The officials then proceeded to Roy Salisbury’s home. Finding that he was not present, they talked with his father and his sister and obtained the shotgun with which the crime was alleged to have been committed. This shotgun was later sent to the state laboratory and, after tests, was definitely identified as the gun which fired the shells found at the scene of the slaying.

The appellant stood mute at his arraignment, and did not take the stand in his own. defense. He now contends that the judgment should be reversed because of seven allegations of error.

1. He was indicted and tried for the slaying of Mallie Denny only and the trial court erred in allowing evidence relating to the killing of the other two persons at the scene.

2. The trial court erred in allowing introduction of photographs of the bodies of Roy Denny and Thomas S. Combs as they were found at the scene of the killing.

3. Error in permitting the county judge, Henry Stumbo, to testify as to what appellant’s sister told him shortly after the shooting.

4. Error of the trial judge in advising the parties in chambers relative to conversation which had taken place between the judge and victims of the offense relative to the lawsuit concerning the line.

5. Error in failure of the trial court to give an instruction on voluntary manslaughter.

6. Error in sentencing the appellant to death as this is a violation of the Constitution of the United States and the Constitution of Kentucky.

7. Error committed in the selection and seating of a jury from Pike county.

We find that allegations one, four and six are without merit and therefore they will not be further discussed in this opinion. As to allegation two, which involves the introduction of the photographs in evidence, we believe the photographs were properly introduced. All three of these persons were slain in one swift, violent act. It would be impossible to try this case without permitting the evidence to encompass the total act. Everything done upon the scene at the time of the slaying is relevant and the fact that two other persons were involved cannot possibly be excluded or ignored. The photographs were competent, as a part of the res gestae. The rule prohibiting the exhibition of inflammatory evidence to a jury does not preclude the revelation of the true facts surrounding the commission of a crime when these facts are relevant and necessary. Were the rule otherwise, the state would be precluded from proving the commission of a crime that is by nature heinous and repulsive. If evidence is otherwise competent, the fact that it is heinous or repulsive will not make it incompetent. Where the photographs revealed nothing more than the scene of the crime and the persons of the victims, they were not incompetent, Smith v. Commonwealth, Ky., 402 S.W.2d 686, Howard v. Commonwealth, Ky., 395 S.W.2d 355.

Appellant’s third allegation of error focuses upon a conversation between the county judge and appellant’s sister, Darlene Martin, shortly after the arrival of the county officials upon the scene.

After inspecting the scene, officials went to the home of the appellant and talked with his father, Tom Salisbury, who was amazingly uninformed about the entire transaction. The officials then talked with appellant’s sister about the death weapon. According to the testimony of Judge Stumbo, the following took place:

Q. 53 Did you question any other person there close to the scene?
A— We talked to his daughter. She came to the door pretty soon after we was talking to Tom there and Tom said he didn’t know anything about it, that he had been out to the barn, and I turned to her and I said, “Do you know anything about this trouble out here or do you know about any guns—”
BY MR.
MARTIN: (Counsel for Defendant) “Objection as to this conversation.”
BY THE
COURT: “Overruled as to this part of it.”
BY MR.
BURCHETT:
“All right, go ahead.”
“ * * * And I said ‘Do you know anything about where the gun is that was used out here’? And she said, ‘Yes, my brother told me about it and showed me where he put it and said he had shot those people out there this evening.’ ”
BY MR.
MARTIN:
(Counsel for defendant) “Objection to what somebody else told her and move to set aside the swearing of the jury.”
BY THE
COURT: “All right, overruled as to that.”

These statements by the judge were patently hearsay and as such inadmissible, especially the statement that appellant had told his sister that he shot them. See Kinder v. Commonwealth, Ky., 306 S.W.2d 265, and Galloway v. Commonwealth, Ky., 374 S.W. 2d 835. If this testimony was prejudicial, then certainly the conviction must be set aside. The testimony is prejudicial if it affected the substantial rights of the accused and the test to be applied is what effect the error had or may reasonably be taken to have had upon the jury’s finding. Echert v. United States, 8 Cir., 188 F.2d 336,26 A.L.R.2d 752.

The jury has found the defendant guilty under strong evidence. There was an eyewitness who, even though his credibility is questioned by the defense, stayed tenaciously by his story. The shotgun shells found at the scene were fired in appellant’s gun. Appellant, when he surrendered himself to the jailer, stated that he was “The guy who got in a little trouble up at Drift.” Even though several of the people who were in a position to know what happened at the time adopted the posture of the three monkeys, hear nothing, see nothing, say nothing, still the evidence is overwhelming that the appellant had to be the perpetrator of the crime. However, even though this be true, the appellant did nevertheless question the veracity of the eyewitness. We are unable to say what weight the jury gave Judge Stumbo’s testimony and what effect it might have had in their decision to impose the death penalty. Being unable to say this hearsay evidence did not affect the sentence imposed by the jury, we must necessarily conclude it was prejudicial.

Appellant’s fifth contention is the trial court should have given an instruction on voluntary manslaughter. We do not believe the testimony in this case as the record presently stands is sufficient to justify such instruction. Therefore, we conclude that the trial court properly excluded it.

The seventh contention is that the trial court erred in the selection of a jury from Pike county. RCr 9.33 provides the judge of the trial court, if satisfied after having made a fair effort that it will be impracticable to obtain a jury free of bias in the county wherein the prosecution is pending, may require the sheriff to summon a sufficient number of qualified jurors from some adjoining county in which the judge shall believe there is the greatest probability of obtaining an impartial jury. This rule leaves it entirely within the discretion of the trial judge as to what adjoining county is to be selected. We find nothing in this record to indicate that the judge abused this discretion.

The judgment is reversed.

WILLIAMS, C. J., and MILLIKEN, PALMORE, and STEINFELD, JJ., concur.

MONTGOMERY, J., dissents.

HILL, J., not sitting.

MONTGOMERY, Judge

(dissenting).

It has long been the law in this Commonwealth that a conviction will be set aside or a judgment reversed on appeal only for “any error or defect when, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced.” RCr 9.24, 9.26.

In Rutherford v. Commonwealth, 78 Ky. (1 Rodman) 639, 1 Ky.Law Rep. 410, it was held that the power of this court to reverse a conviction depends upon an affirmative showing by the defendant that an error appears on the record and that “the court must be satisfied, from consideration of the whole case, that the substantial rights of the accused have been prejudiced by the error complained of.” In the Rutherford case the accused claimed that he had been denied the constitutional right to confrontation when he was not permitted to accompany the jury to view the place of the alleged killing.

In the instant case the court is reversing a death sentence conviction because of a hearsay statement concerning a fact which had been well proven by an eyewitness who said that he saw Roy Salisbury go to his home, return with his gun to the place where Mallie Denny, Roy Denny, and Thomas Spencer Combs were, and then saw the accused at close range shoot and kill them. This testimony was unimpeach-ed and was fully corroborated by evidence concerning the identity of the shells found at the scene of the murders and of the gun, as well as was other testimony. There was no testimony to excuse or justify appellant’s conduct.

The hearsay testimony upon which the judgment is being reversed is the testimony of the county judge who said that the sister of the accused, in response to an inquiry concerning the whereabouts of the gun, said: “Yes, my brother told me about it and showed me where he put it and said he had shot those people out there this evening.”

Admittedly the statement was hearsay and it was error to admit it, but I cannot agree that it was prejudicial in view of the eyewitness testimony, unimpeached and corroborated. The accused has failed to show that his substantial rights have been prejudiced. The admission of the hearsay testimony was merely cumulative. The substance of the testimony had already been established beyond question. The rule of the Rutherford case was recently approved by this court on a similar question in McQueen v. Commonwealth, Ky., 393 S.W.2d 787. Under the facts of the case here the accused unquestionably committed three cold-blooded, deliberate murders. The death sentence was an appropriate punishment.

I am alarmed at the growing tendency of courts to reverse convictions such as this when the identity of the accused and his guilt have been established beyond question. Wedding v. Commonwealth, Ky., 394 S.W.2d 105, was another case of unquestioned proof of a heinous murder in which this court, by a four to three decision, reversed in a death sentence case. Harris v. Commonwealth, Ky., 389 S.W.2d 907, and Ky., 411 S.W.2d 924, is another example. Harris was successful in obtaining two reversals, and recently he obtained a dismissal of the prosecution against him. The basis, in my humble opinion, was not meritorious for either reversal. I could not agree that Harris’ substantial rights had been prejudiced. The tendency mentioned has a direct relationship to the increasing disregard for law and order and the resulting increase in the commission of crime. Prosecution without delay and sure punishment are the best deterrents to an increasing crime rate.

For these reasons I respectfully dissent.