author: CULLEN, Commissioner.

text:
    R. A. TAPP, Executor of the Estate of R. L. Tapp, Deceased, et al., Appellants, v. Connie Ann REYNOLDS et al., Appellees.
    Court of Appeals of Kentucky.
    May 22, 1964.
    Rehearing Denied Nov. 20, 1964.

      Warren B. Miller, Dixon, Nichols & Nichols, Madisonville, for appellants.
    Charles B. West, Ulvester Walker, Henderson, for appellees.
   CULLEN, Commissioner.

Appellees Connie Ann Reynolds, Naomi Lee Pinkston and Bobbie Ed Metz were awarded judgments against the estate of R. L. Tapp, deceased, declaring their rights in respective amounts of $2,000, $1,000, and $2,000. A motion by the executor of the estate for an appeal was sustained.

The claims of the appellees arose out of a will jointly executed by R. L. Tapp and his wife, Virgie, in 1943. The substance of the will was as follows:

Clause I. R. L. and Virgie each willed to the other, for life, with power of encroachment for living' expenses, “all” of his-her estate.
Clause II. They jointly willed, at the death of both, $1,000 to Naomi Lee Pinkston for life with power of encroachment for support, and with remainder to her children.
Clause III. They jointly willed, at the death of both, $2,000 in trust for Bobbie Ed Metz for his life, with remainder to Naomi and her children.
Clause IV. Virgie alone willed $2,-000 to Connie Ann Reynolds Metz in trust for her education, R. L. Tapp and another person being named as joint trustees.
Clause V. They jointly willed $100 to a cemetery fund for perpetual care of their cemetery lot.
Clause VI. They jointly willed the remainder of their property in trust for their son R. A. Tapp for life, with remainder to Naomi and her bodily heirs.

Virgie died in 1944. R. L. qualified as administrator with the will annexed. In his final settlement of her estate, in 1944, R. L. reported that he had paid to himself, as sole heir, the net balance of her estate amounting to $4,300.

In 1953, R. L. executed a new will, revoking the 1943 will. In the new will he left substantially all of his estate to his son, R. A. Tapp. R. L. died in 1959 and the new will was admitted to probate. Shortly thereafter Connie Ann Reynolds brought the instant action, for a declaration of rights, against the administrator of the estate of R. L., also naming Naomi Lee Pinkston and Bobbie Ed Metz as defendants. The later two cross-claimed for a declaration of their rights. Judgment was entered declaring that Connie was entitled to $2,000 from the estate and that the estate was impressed with a trust in favor of Naomi and Bobbie in accordance with the terms of the 1943 will.

As concerns Connie’s claim, it is our opinion that the clear meaning of the 1943 will is that Virgie was bequeathing $2,000 for the education of Connie, out of Virgie’s estate, to take effect immediately upon Virgie’s death and to take precedence over the general bequest of “all her property” to R. L. for life. This has to be the meaning because Virgie named R. L. as one of the trustees for Connie. The contention of the appellant that the will intended Connie’s trust to be effective only upon the death of R. L., and then only if R. L. had not used up for his living expenses the estate left to him by Virgie, is not acceptable.

R. L. must be considered to have taken the proceeds of Virgie’s estate subject to the trust created by Virgie’s will. Whether R. L. had the right to revoke the joint will as to his estate is of no significance as concerns Connie’s rights.

Whether the instant action by Connie be treated as an equitable action to surcharge the settlement of Virgie’s estate, or simply an action to enforce a trust, is in our view not important. We find no merit in the appellant’s contention that in order to surcharge a settlement the complaint must state in so many words that such relief is being sought.

The action by Connie is not barred by limitations because she was a minor at the time Virgie’s estate was settled; R. L. died before five years had elapsed from the date she became of age; and the action was-brought within the year after his death See KRS 413.170(1) ; 413.180(3).

The appellant maintains that the action should have been dismissed because, prior to bringing her suit, Connie did not present a verified claim to the administrator of R. L.’s estate in accordance with KRS-396.010 and 396.020. The record shows that, she did file a claim with the county court, on which a hearing was held at the request of the administrator, and we think that was a sufficient compliance with the statutes. Furthermore, we are not convinced that the statutes impose a requirement of presenting-a claim as a condition of bringing an action in equity to enforce a trust or to obtain, other equitable relief. Cf. Boreing v. Farris, 127 Ky. 67, 104 S.W. 1022.

It is our conclusion that the judgment in favor of Connie is correct.

As concerns the judgment for Naomi and Bobbie, the appellant contends, that the joint will of 1943 was not proved to have been a contractual joint will, and, therefore R. L. had the right to revoke it. In our opinion the will on its face disclosed that it was contractual, under the principles, stated in Watkins v. Covington Trust & Banking Company, 303 Ky. 644, 198 S.W.2d 964. Accordingly, under the Watkins case and others, such as Gilliam v. Gilliam, 306 Ky. 102, 206 S.W.2d 199, although R. L. could revoke the will his estate would be impressed with a trust in favor of the legatees under the will. The remedy of Naomi and Bobbie, as legatees under the joint will, was to seek the aid of a court of equity to enforce the trust. They were not required to appeal from the county court judgment probating R. L.’s new will. The trust exists against R. L.’s estate and it makes no difference whether, at the time of R. L.’s death, any of Virgie’s estate remained in his hands.

The contention is made that Naomi and Bobbie were required to present a verified claim to the administrator of R. L.’s estate as a condition of seeking equitable relief in the courts. The same contention was made as to Connie’s claim and the same answer, hereinbefore given, applies.

It is our conclusion that the judgment in favor of Naomi and Bobbie is correct.

Connie’s motion for a cross-appeal was granted but she did not perfect it in accordance with RCA 1.080.

The judgment is affirmed.


source: Caselaw Access Project

author: WADDILL, Commissioner.

license: Public Domain

text:
    Vicki Gail Parard DeCOURLEY et al., Appellants, v. Josie Marie TUCKER et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.
    Robert P. Woods, Gray, Woods & Cooper, Lowell T. Hughes, Ashland, for appellants.
    J. G. M. Robinson, Caldwell & Robinson, Nickell, Fanning & Rose, Ashland, for appellees.
   WADDILL, Commissioner.

The question presented'by this-appeal is. whether the trial court correctly construed the will of Lydiá Pfirard (1) as devising no> ■ remainder interest in' certain real estate -to the appellants and (2) as authorizing the appellees to sell this property.

The provisions of testatrix’s will which give rise to this controversy read:

“I also give to my said daughters one-fourth each of my real property, wheresoever situate which I may own or have the right to dispose of at my death, and to my grandsons, Gene W. Parard and Toussaint W. Parard the remaining one-fourth to be held in trust by my said three daughters for the use and benefit of my grandsons, Gene W. Parard and Toussaint W. Parard, such part to be under the full charge, control and management of my said trustees, * * *. I give my said trustees full power to sell and dispose of said property, * * *. If .any of my heirs should die possessed of any of the real estate herein devised, the same .shall revert to the. heirs of my blood then living to be divided among them equally, share and share alike.”

Testatrix died on January 3, 1940, and the real- property devised by her has not been disposed of by the beneficiaries -of her will. A daughter, Catherine Watson, died intestate in 1960 leaving as her only heirs, appellees William and Whitfield Watson. A grandson, Toussaint Parard, died testate in 1961 survived by his widow and sole devisee, appellee Helen Parard, and two daughters, appellants Vicki DeCourley and Cheri Parard. These appellants contend that, by virtue of the last quoted sentence of the will, they are now the owners of an interest in the real property devised to Catherine Watson and Toussaint Parard.

Prior to our decision of April 23, 1948, in Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, 17 A.L.R.2d 1, it was the rule in this state that where property is devised to one absolutely with unlimited power of disposition and by a subsequent provision of the will the testator undertakes to- devise whatever may be left at the first taker’s death, the limitation over is void and the first taker acquires a fee simple title, Walker V. Butler, 284 Ky. 179, 144 S.W.2d 210; Gwinn v. Gwinn’s Adm’r., 287 Ky. 795, 155 S.W.2d 227. The Hanks case abolished this rule; however, as to any testator who died before April 23, 1948, that case is inapplicable. Stewart v. Morris, 313 Ky. 424, 231 S.W.2d 70. Chilton v. Meeks, Ky., 288 S.W.2d 350.

Since testatrix died in 1940 the trial court correctly held that under the terms of her will the fee simple title had vested at that time and the appellants DeCourley and Parard have no remainder interest.

The appellant, Watson Realty Company, contends that the trial court erred in determining that the trustees could sell the beneficiaries’ interest in' this property. This appellant asserts that certain provisions of the will indicate a contrary intent. We agree with the trial court that the provisions of the will specifically authorize the trustees to sell this property for the beneficiaries.

The judgment is affirmed.


text:
    William R. KINMON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.

      William R. Kinmon, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

William R. Kinmon, serving a life sentence in the penitentiary under a conviction of armed robbery, moved the trial court for a new trial (RCr 10.06) on the ground of newly discovered evidence and for vacation of his sentence (RCr 11.42) on the ground that he did not receive a fair trial because he was tried jointly with a codefendant, one Clyde Collier. The court overruled the motions without a hearing. Kinmon has appealed.

Two eyewitnesses testified on the trial that Kinmon and Collier committed the robbery. Collier testified that he was not at the scene. Kinmon did not testify but his wife attempted to establish an alibi for him. Kinmon’s alleged newly discovered evidence consisted of an affidavit by Collier stating that he and a woman companion committed the robbery and that Kinmon did not participate in it.

Kinmon’s and Collier’s convictions were not based on Collier’s testimony on the trial but were in spite of it. There is little reason to believe that a jury would give Collier’s new story, that Kinmon was not there, any more credence than the jury on the trial gave his original story that he (Collier) was not there. The rule is that in order for newly discovered evidence to support a motion for new trial in a criminal case it must be of such decisive value or force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial should be granted. Jennings v. Commonwealth, Ky., 380 S.W.2d 284; Ferguson v. Commonwealth, Ky., 373 S.W.2d 729. The evidence in the instant case falls far short of reaching that quality. The situation in Mullins v. Commonwealth, Ky., 375 S.W.2d 832 was entirely different, for there the witness who claimed to have perjured herself on the trial was a principal witness for the prosecution. '

Kinmon’s claim that he was treated unfairly by being tried jointly with Collier has no merit. The affidavits submitted in support of this claim were by two persons who did not show that they ' were present at the trial or had any knowledge of what.took place at the trial; they did not. set' forth any instance of unfairness but merely gave their opinion that “had he been tried separately the verdict would have been more just and proper.” KinmOn himself does not point but any respect'in'which the joint trial was unfair. A defendant has no constitutional fight to. a separate trial, so even if there were .a.showing of-some'specific prejudice from being tried jointly there would have to be presented an extreme -case of unfairness to warrant relief under RCr 11.42, which requires a showing of grounds that would subject the judgment to collateral attack.

In his brief on appeal Kinnion claims a right to relief on the grounds that the evidence on which he was convicted was obtained by an illegal search, that he had “incompetent counsel who failed to properly represent him,” and that he “has been denied equal protection and due process of law.” These grounds not having been presented in the motions below will not be considered here. Even if properly presented for consideration they would have to be classed as factually unsupported, vaporous allegations insufficient to require a hearing. See Jennings v. Commonwealth, Ky., 380 S.W.2d 284.

The order overruling the motions is affirmed.


author: DAVIS, Commissioned

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Will YATES et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., C. E. Skidmore, Dept, of Hwys., Frankfort, for appellants.
    Holland G. Bryan, Paducah, for appellees.
   DAVIS, Commissioned

In this condemnation proceeding the ap-pellees were awarded judgment for $8,000 pursuant to jury verdict. Appellant challenges the judgment on two grounds: (1) The evidence fails to support the verdict, and (2) erroneous admission of evidence that market value had been diminished because of limitation of access to the highway.

The original tract from which the right of way is being acquired contained 25 acres. It had frontage of about 775 feet on a state maintained gravel road, known as the Ross Ferry Road. The taking is of 6.17 acres off the entire frontage; the depth of the taking is about 270 feet on average. At the time of the taking there existed one roadway from the tract to the Ross Ferry Road; this entrance was located at the northeastern corner of the land. Incident to the taking, the appellant has provided an entrance from the newly built limited ac■cess Highway (U.S. 62) which “ties in” to the entrance as it formerly existed.

At the time of taking, the 25-acre tract was unimproved; the surface of the land was thickly wooded. Topographically, the front portion of the original tract abutted the Ross Ferry Road in such manner that an entrance road from the tract to the highway could have been made at any point along the frontage. As noted, however, only one such entranceway was in existence at the time of taking. After the taking, a cut averaging 26 feet in depth runs along the new frontage of the land remaining.

For appellees it was shown that although the 25-acre tract had not been cleared or cultivated at the time of taking, it nevertheless had potential as a subdivision site. Indeed, the witnesses for appellees said that the highest and best use of the land was for development of residential or commercial sites. The waters of Barkley Lake, presently being developed, will reach a point slightly west of the subject property. The city limit of relocated New Kuttawa is also near appellees’ land; the shopping center site in New Kuttawa is 1075 feet ■from appellees’ property.

The old Ross Ferry Road will dead-end at the water’s edge of Barkley Lake. The new construction for U.S. 62 is to be a limited access four-lane project; however, present construction plans are limited to two lanes, lying nearest to appellees’ land. The testimony of appellee Yates and the witnesses he presented lays heavy emphasis on the fact that prior to the taking access to the Ross Ferry Road could have been had at- any point along the 775 feet of frontage. Appellant moved for the exclusion of the portions of testimony of' appraisal witnesses which attributed dainage by reason of loss of access. The trial court overruled such motions and permitted the evidence to be considered by the jury.

It is settled that affording reasonable access to the highway system will preclude a property owner’s claim for damages for .depreciation in. value of- his land, asserted because an existing more convenient road has been closed. Dept. of Highways v. Jackson, Ky., 302 S.W.2d 373.

In Com., Dept. of Highways v. Carlisle, Ky., 363 S.W.2d 104, the reasonable access principle was reaffirmed. Moreover, in Carlisle we pointed out that access to the highway system is subject to control under the police power of the state. It was there recognized that the exercise of the police power must be a reasonable one, and the exercise of such power is to be tested by measuring the benefit to the owner against the hazard and danger to the traveling public. It was also noted in Carlisle that such weighing of benefit to the owner against hazard to the public is to be done on the basis of the present use of the property — not a prospective use. Inasmuch as the use of appellees at the time of taking was by one entranceway, serving an inactive, unoccupied woodland, we deem the Jackson and Carlisle rules controlling here. Therefore, appellees were not entitled to recoup any diminution in market value occasioned by restriction of access — if the remaining access to the highway system is a reasonable one.

Appellee Will Yates testified that the new access road provided to him is on a “right smart grade” — a “pretty steep grade” —whereas the former entrance was virtually level and at grade with the old road. However, none of the witnesses for ap-pellees undertook to relate their opinions of damage for loss of access to the situation of the entranceway, but based their opinions on loss of frontage access. Apart from this slight displeasure with the grade of the entrance, no attack is made on its adequacy; there is no showing that the entrance provided is unreasonable.

The trial court committed reversible error in failing to strike the evidence putting loss of access as a damage factor. Com., Dept. of Highways v. Tyree, Ky., 365 S. W.2d 472.

This view of the case makes is unnecessary to consider whether there was sufficient evidence to support the verdict.

Appellees point out that the jury viewed the prémises, hence the verdict should be weighed in light of such view. Our attention is directed to Bailey v. Harlan County, 280 Ky. 247, 133 S.W.2d 58; City of Winchester v. Spencer, Ky., 352 S.W.2d 929; Com., Dept. of Highways v. Heath, Ky., 354 S.W.2d 752, and cases of like import. However, we do not consider those cases ruling here. Clearly the jury’s view of the premises could not correct the error of their being permitted to receive the evidence relating to loss of access. This is particularly true in light of the court’s rulings allowing such evidence in face of appellant’s objections.

The judgment is reversed for proceedings consistent with this opinion.


text:
    James BARNES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.

      James Barnes, pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

This is an appeal from an order of the Campbell Circuit Court overruling the motion to vacate the 10-year sentence of imprisonment imposed on James Barnes following his conviction of attempted rape of an eight-year-old child.

Appellant was convicted at the April, 1963, term of the Campbell Circuit Court. His motion to vacate, filed on December 4, 1963, sets forth seven grounds, five of which are allegations of error occurring during his trial and are therefore insufficient to warrant a hearing under RCr 11.42. Tipton v. Commonwealth, Ky., 376 S.W.2d 290. The other two grounds are: (1) Denial of the right to counsel of his own choosing, and (2) 'inadequacy of representation by court-appointed counsel-.

The answer of the Commonwealth’s Attorney stated that, prior to his trial, appellant had informed the circuit court he was indigent and had asked that counsel be appointed to represent him. Appellant then filed a 'reply in which he denied these statements and asserted that the court had “discharged” his employed counsel. An order of record of the circuit court shows that on March 27, 1963, appellant informed the court he was unable to employ counsel and that Charles Wagner and Richard Nelson, practicing attorneys, were appointed to defend him. The record further reveals that on April 11, 1963, appellant was arraigned, pleaded not guilty to the charge against him and informed the court he was ready for trial.

Appellant has not attacked the verity of the circuit court’s order showing he represented to the court that he was unable to employ counsel. The mere allegation that the court had “discharged” his attorney is not 'sufficiently specific to raise an issue under RCr 11.42 in view of the above-mentioned order.

With reference to appellant’s claim of inadequacy of representation at his trial he states insufficient facts to disclose wherein the court-appointed attorneys failed to perform their duty in his behalf. Consequently, we will presume no dereliction of duty on their part.

Under this state of the record the circuit court properly overruled the motion to vacate.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Orville Oscar DUBLIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 25, 1964.
    Rehearing Denied Nov. 20, 1964.

      Robert B. Reed, Paducah, for appellant.
    John B. Breckinridge, Atty. Gen., Joseph Nagle, Asst. Atty. Gen., Frankfort, James M. Lassiter, Commonwealth’s Atty., Murray, for appellee.
   CLAY, Commissioner.

Appellant was convicted under KRS 434.-220(1) of converting to his own use the proceeds of a check for approximately $300, made payable to him for the specified purpose of paying the balance of an indebtedness on an automobile traded to him. Appellant’s brief violates material provisions of RCA 1.210 and it is difficult to discern the grounds of this appeal.

Appellant does not contend that the conversion of the proceeds of a check cannot constitute a criminal offense under the statute. See Commonwealth v. Weddle, 176 Ky. 780, 197 S.W. 446. He takes the position that since the indebtedness of the prosecuting witness constituted a lien on the automobile sold to him, she could not suffer a loss. We cannot follow this argument. The proceeds of the check was money of the prosecuting witness held in trust by appellant to'satisfy a legal obligation of hers. The existence of the lien did not relieve ‘ her of personal liability, nor did it shield appellant from the charge of conversion,

Appellant’s claim that he unsuccessfully sought to carry out the trust was not believed by the jury. There is no merit in the argument that appellant had no criminal intent when the check was given to him since the criminal intent may be found from the circumstances when he converted the proceeds to his own use.

Some complaint is made of the instructions (which we do not find in the record)) but no specific error is pointed out.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Edgar McDANIEL, Appellant, v. Rose Marie McDANIEL, Appellee.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.

      George Bailes, Cincinnati, Ohio, for appellant.
    Isaac Turner, Hyden, for appellee.
   MONTGOMERY, Judge.

Edgar McDaniel appeals from a judgment denying his motion to vacate a judgment of divorce in which the custody of Pamela, his then two-year-old daughter, was •awarded to her mother, Rose Marie.

On July 2, 1962, a judgment was entered in this action by which Rose Marie was granted a divorce and given the custody •of Pamela and of Loretta, then three years •old. Edgar was ordered to pay $10 per week for Pamela’s support.

The complaint and deposition of Rose Marie taken on June 30, 1962, were filed on that date. The judgment also bore that date, as well as a waiver of service of summons and notices purporting to bear the signature of Edgar and to have been witnessed by Robert and Bobby Collett, relatives of Rose Marie’s. Appellant attacks the judgment by his motion to vacate on the grounds that there was no service on appellant and- that appellee did not possess the proper residence requirement for suit. He contends that he did not sign a waiver of summons and that appellee was a resident of Ohio.

An examination of the record affords ground for holding that appellee may have perpetrated a fraud on the court. The rule is that a divorce judgment procured by fraud and perjury as to residence may by a direct attack be set aside as void even though the party obtaining the divorce has remarried and innocent parties may be affected. Logsdon v. Logsdon, 204 Ky. 104, 263 S.W. 728; Crowe v. Crowe, 264 Ky. 603, 95 S.W.2d 251; Kirk v. Kirk, Ky., 240 S.W.2d 598. The compelling reasons for the rule are fully discussed in the Logsdon opinion. Cf. Moran v. Moran, 281 Ky. 739, 137 S.W.2d 418, wherein the Logsdon rule is misstated.

The rule stated would appear to be a proper basis for setting aside so much of the judgment as awarded the custody of Pamela to her mother. Since the custody of Pamela is the sole issue raised by appellant, consideration of the appeal will be so confined.

Following the making of the motion to vacate, proof was taken from which the Chancellor found, among other findings, that appellee married John W. Dillon on July 12, 1962, immediately following the divorce; that she was pregnant at the time of the finding on January 25, 1963; that she and her new husband were living in a house by themselves; that her husband earned $150 per week; and that they were getting along well. Upon these findings, the Chancellor concluded that there had been no proof of improper conduct on the part of appellee since her remarriage and denied the motion in so far as it sought to set aside the custody order. In effect, the Chancellor treated the matter as a reconsideration of the custody order and decided to make no change in it in view of the evidence of changed conduct on the part of appellee. Doubtless the' ruling may have been 'induced by the rule that the courts favor 'granting‘the custody:of young female children to the mother. Polivick v. Polivick, Ky., 375 S.W.2d 683.

However much the Court might be inclined to condemn the judgment by reason of the apparent fraud and perjury, the welfare of the child should control here despite the unusual circumstances shown. Byers v. Byers, Ky., 370 S.W.2d 193. The Chancellor has a wide discretion in such matters. Williams v. Williams, Ky., 338 S.W.2d 689. Under the circumstances the discretion of the Chancellor will not be disturbed. Should there be a sufficient change of condition, as the Chancellor noted, the custody question may again be reconsidered.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Hovious DAVIDSON et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Reed D. Anderson, Dept, of Highways, Frankfort, for appellant.
    Seth T. Boaz, Wm. H. Parham, Mayfield, for appellees.
   DAVIS, Commissioner.

Appelleesj Hovious Davidson and his wife, Mary, sued Commonwealth of Kentucky, Department of Highways, and Graves County alleging that their property had been damaged by reason of the construction of a highway in front of it. The Davidsons based their claim on the assertions that appellee Graves County and appellant had misrepresented the height of the fill to be constructed in front of their property, thereby inducing them to execute deeds for the right of way.

The jury absolved appellee Graves County, but returned verdict for $2,000 against appellant. The appeal is here pursuant to KRS 21.080 and RCA 1.180.

Appellant presents these points as bases for reversal: (1) The Davidsons are es-topped by the deeds granting right of way; (2) KRS 177.060 precludes this action against the Department of Highways; and (3) the evidence was not sufficient to sustain the verdict.

In 1952 the Department of Highways, through an official order of its Commissioner, authorized reconstruction of the Folsomdale-Boaz road in Graves County. The order authorized and directed the Fiscal Court of Graves County to obtain the required right of way for the construction, according to widths and alignments shown by the official plans. This procedure was as prescribed by KRS 177.060; the cited statute, with exceptions not here pertinent, imposes on the county “all cost of acquiring any necessary land or right of way for primary road purposes.” The same statute states “ * * * and all damages incurred shall be paid by the county.”

- Graves County appointed a committee to attend the details of acquiring the r-ight of way. The Davidsons stated that representations were made to them by some personnel of the acquisition committee to the effect that the height of the fill in front of their property would not exceed eighteen inches. The Davidsons had operated a rural grocery store on the lot involved. They testified that prior to the new construction access from the road to their store was easy. After the construction, the height of the fill in front of their store ranges from four to five feet. The extent of this fill makes it impracticable (without substantial outlay of money, say the Davidsons) to provide a suitable en-tranceway from the newly built road to the store.

By deed dated March 10, 1953, the David-sons conveyed to the Commonwealth, for use of the Department of Highways, the right of way for Parcel 32; the parcel encompassed a strip of land thirty feet from the center line of the road, along the entire front of the Davidson’s lot. The deed was executed without any monetary consideration, but recites that it is made “in consideration of the benefits to be derived” by the grantors from the construction of the road. The deed also contains this language:

“The description of the parcel conveyed by this deed is drawn from the plans of the proposed road on file at the office of the Department of Highways in Frankfort, Kentucky, and this conveyance is made in contemplation of the construction and maintenance of said road according to said plans, which are hereby made a part of this deed.”

A second deed was executed by the Davidsons to the Department, dated February 5, 1957, for which $18 monetary consideration was paid. The second deed transferred title to Parcel 32-A, described as an additional 25 feet in width adjoining Parcel 32, for a portion of its length. The second deed also contained the same language just quoted from the first deed.

Mrs. Davidson testified that she signed the deed (doubtless the first one) and her testimony shows:

“Q. Why did you sign it?
“A. Well, the blue print was laid out on my ice cream counter and showed to me that the fill would only run from fifteen to eighteen inches at the railroad on down to four feet at the creek.”

It is to be noted that her testimony is not clear as to just who represented to her that the fill would be no more than four feet high at the creek — the western corner. Neither does she say that the actual plans which were presented in evidence by appellant are different from the plans exhibited to her.

Appellant showed by an engineer that the road has been constructed according to the plans. The plans bear date of 1952; there is a complete absence of showing that the' plans as introduced in evidence vary in any way from the original plans. In fact, there is no showing that the plans before the jury are not the original plans.

In Com., Dept, of Highways v. Litteral, Ky., 319 S.W.2d 458, this court recognized the principle of estoppel by right of way deed as it pertains to claims for “consequential injury” resulting from construction of the road. To the same effect are Meyer v. Jefferson County, Ky., 305 S.W.2d 536, and Com., Dept. of Highways v. Geary, Ky., 254 S.W.2d 477.

Paducah Box and Basket Co. v. Com., Dept, of Highways, Ky., 344 S.W.2d 608, presented a problem more nearly analogous to the case at bar than the decisions just cited. Two material differences between the case at bar and Paducah Box and Basket Co. are readily apparent: (1) In the Paducah Box case the Department admittedly changed the plans, leaving the claimant’s land much lower than the original plans; (2) there was no claim of fraud or misrepresentation in the Paducah Box case. Yet, in Paducah Box no recovery was al-lpwed the claimant.

We are mindful of the line of cases affording recovery as “condemnation in reverse,” pursuant to •§§ 13 and 242 of Kentucky Constitution, e. g. Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161; 8 Ky.Dig., Eminent Domain However, we do not consider that theory applicable here. The “reverse condemnation” principle rests on the premise of the taking, destroying or injuring of property by the sovereign without any color of right or title so to do. In the case before us the Commonwealth has done nothing beyond that which the right of way deeds authorized. It has constructed the road according to the plans, just as specified by the deeds. Thus, there has been no taking, destruction, or injury to the Davidsons’ property other than authorized by the deeds — hence, there can be no “condemnation in reverse.”

This court has written that the doctrine of sovereign immunity precludes action against the Department of Highways for breach of contract in the absence of statutory authorization for such action. Foley Construction Co. v. Ward, Ky., 375 S.W.2d 392. The same cloak of immunity extends to the redress sought here — whether it be styled a breach of contract, or whether it be regarded as an action sounding in tort. Since the action fails as a “reverse condemnation” procedure, the doctrine of sovereign immunity forecloses the claim against the Commonwealth and its Department of Highways.

No specific plea of immunity in bar of the action was made by the Department of • Highways. However, the answer did assert that the complaint failed to state a claim upon which relief may be granted. We need not decide whether CR 8.03 requires pleading immunity as an affirmative' defense. The immunity is such that it may not be waived, except by legislative action. Ky. Constitution, § 231. Certainly the constitutional mandate would be of small stature if its precepts could be “waived” by any state officer or agent other than the general assembly. Cf. Kentucky State Park Comm. v. Wilder, 256 Ky. 313, 76 S.W.2d 4.

The appellees, Hovious and Mary Davidson, did not perfect an appeal from the judgment absolving Graves County from liability. We do not consider the propriety of that phase of the judgment.

The judgment is reversed with direction to enter judgment dismissing the claim against Commonwealth of Kentucky and Department of Highways.


author: STEWART, Judge.

text:
    Lansing BUCKLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.
    J. Ervin Sanders, Sanders & Redwine, Pikeville, for appellant.
    Robert Matthews, Jr., Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort,. Thomas Ratliff, Commonwealth’s Atty.,. Pikeville, for appellee.
   STEWART, Judge.

Lansing Buckley was convicted as a third offender of illegally possessing alcoholic beverages in local option territory for the purpose of sale. See KRS 242.230(1) and KRS 242.990(1). He was given eighteen months in the penitentiary, and he appeals-from the judgment entered.

Before the trial Buckley moved to suppress the evidence obtained by reason of a search of his house and premises on the ground that the affidavit upon which the search warrant was based was defective. The trial court overruled the motion.

The affidavit, made by a constable irt Pike County on information and belief, reads, in part:

“(1) That Ernest Hylton stated he bought a half-pint on 9-í5-’63, or (2) that he was on the 21 day of Sept., 1963, reliably informed by Ernest Hylton, a reputable citizen of Pike County, Kentucky, that liquor is now stored and being sold in violation of the local option on the above described premises which are located in Pike County, Kentucky, a territory where the local option law is now in full force and effect and that said Lansing Buckley has the reputation of being in the liquor business.”

Commonwealth v. Davenport, Ky., 366 S.W.2d 171, a recent case, considered language very similar to that above quoted and held the affidavit insufficient because it failed to relate how and when the facts recited were observed.

In the case at bar the affidavit for the search warrant averred illegal possession of alcoholic beverages as an ultimate fact but it did not state the manner in which the observation was made.

The alleged purchase by Ernest Hylton of a “half-pint on 9-15-63” is an incomplete ambiguous statement; such a purchase could have been milk or orange juice or some other harmless substance. We are left to guess what it was.

It follows the affidavit was insufficient to support the search warrant, and the evidence obtained by the search was inadmissible.

Wherefore, the judgment is reversed.


text:
    J. Roger CAUDILL and Claude Brown, Appellants, v. The CITIZENS BANK, Appellee.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.

      Lewis A. White, Mt. Sterling, Thomas R. Burns, Morehead, for appellants.
    E. M. Hogge, Lester Hogge, Morehead, for appellee.
   CLAY, Commissioner.

Appellee plaintiff sought and was granted a judgment enjoining appellant defendants from obstructing a private driveway over which the former claimed an easement. The controversy involves the construction of a deed and questions of evidence.

Plaintiff owns a hank on Main Street in the City of Morehead. Immediately to the rear of this property is a driveway generally paralleling Main Street, which extends from Hargis Avenue on the west to an alley on the east (the alley intersects Main Street). Plaintiff claims an easement to use this driveway for its full length from Hargis Avenue to the alley. Defendants deny plaintiff’s right to use the Hargis Avenue portion of the driveway.

All of the property facing on Main Street in this area was at one time owned by one Blair. He conducted a business thereon known as the Morehead Lumber Company. This company had constructed and maintained the driveway from Hargis Avenue to the alley.

In 1954 the Blairs conveyed to plaintiff a 50 foot lot on Main Street. The deed contained the following provision:

“Also as a part of the consideration herein the parties of the first part do hereby grant and let unto the party of the second part an easement over the private driveway of the Morehead Lumber Company, to be not less than sixteen feet in width, and to be located, and determined as to width, by the parties of the first part, but located so that the party of the second part, its successors or assigns, may have ingress and egress to and from the rear portion of the lot of land hereby conveyed to either Hargis Avenue or to the alley leading to Main Street.” (Our emphasis)

In 1961 plaintiff erected a batik building on this lot (and an adjoining one which they had acquired from another grantee of the Blairs). Bank customers used both the Hargis Avenue and alley entrances to drive in behind the bank and use its parking lot.

In 1961 the Blairs conveyed to defendants the balance of the Blair property. That deed undertook to define the easement theretofore granted plaintiff (in the 1954 deed) as being 16 feet wide and extending from plaintiff’s west property line to the alley. If the easement was properly so restricted it cut off plaintiff’s access to Hargis Avenue.

It is defendants’ contention that the easement originally granted was an optional one to be determined by the grantors, and that in the deed to them the grantors had elected to limit the easement to the alley approach. This contention is based on the wording in the deed creating the easement, which used the words “either Hargis Avenue or to the alley”. (Our emphasis) It is argued that plaintiff was entitled either to an easement from the rear of their property to Hargis Avenue or to the alley, but not to both.

It is contended by defendants that the language of the deed is free of ambiguity. They maintain that the use of the words “either” and “or” clearly creates alternatives. That is true, but the language must be examined in context to determine if the alternatives are exclusive. The word “either” may be used to designate two alternatives, both of which may be utilized. See Webster’s New International Dictionary, 2d Ed.; cases cited under the heading “Either” in Vol. 14, Words and Phrases, Perm.Ed., page 179. Similarly the word “or” may be construed as authorizing both of two specified uses. Boland v. Byrne, Mo.App., 145 S.W.2d 755.

It will be observed that these terms in the deed were used to modify “ingress” and ■“egress”, not the word “easement”. The language may reasonably be construed as descriptive of the approaches to the driveway rather than limitations on its use. That is exactly what the Missouri court held in the last case above cited.

Coupled with the right of the grantors to determine where the easement is “to be located”, the words we have heretofore discussed raise substantial questions as to what the parties actually intended. Considering the fact that a well marked pass-way was already in existence, the meaning of the term “located” is susceptible of •different meanings. It could mean, as defendants contend, that the grantors could fix a new terminus; or as plaintiff contends, that the grantors only had a right to change the course of the passway by shifting the north-south boundaries. We find a- rather clear case of ambiguity.

Since the language creating the easement is not certain in meaning and is susceptible of different interpretations, it was proper to consider evidence concerning the intent of the parties, their subsequent acts, and the circumstances surrounding the execution of the deed. Sword v. Sword, Ky., 252 S.W.2d 869; 20 Am.Jur., Evidence, section 1147 (page 999).

The parties do not raise the question as to whether the ambiguity in the deed is “latent” or “patent”. Our more recent cases involving the construction of instruments have likewise ignored this problem. See Swearingen v. McGee, 303 Ky. 825, 198 S.W.2d 805; Sword v. Sword, Ky., 252 S.W.2d 869; Williams v. Williams, Ky., 259 S.W.2d 53; Hammon v. Kentucky Central Life & Accident Ins. Co., Ky., 289 S.W.2d 726. It may be observed the modern tendency is to admit parol evidence even in cases where the uncertainty may be classified as- “patent”. See 20 Am.Jur., Evidence, section 1146 (page 1009), section 1158 (page 1011); - Jones, Commentaries on Evidence, 2d Ed., Vol. 4, section 1547 (page 2828) ; Jones on Evidence, 5th Ed., Vol. 2, section 489 (page 943) ; 102 A.L.R. 287. In any event, we deem the uncertainty of the language in this instrument (which may be said to involve both latent and patent ambiguities) to be such that parol evidence was properly admissible as an aid to the proper construction of the language used.

There was substantial evidence to support the finding of the Chancellor that plaintiff was granted an easement extending from Hargis Avenue to the alley. It is consistent with a fair interpretation of the language used. It also shows a course of conduct for several years after the granting of the easement (including maintenance and repair) which was consistent with the right claimed by the plaintiff. See Cincinnati, New Orleans & Texas Pac. Ry. Co. v. Barker, Ky., 247 S.W.2d 943.

Defendants contend the testimony of certain witnesses with respect to statements made by one of the Blairs, prior to the execution of the deed, was incompetent as hearsay. However, these statements fall within the category of “verbal facts” which constitute one of the many exceptions to the hearsay rule. 20 Am. Jur., Evidence, section 664 (page 557). These statements were not incompetent as hearsay because they were not introduced to prove the truth of what was said. When examining a transaction of this nature, statements made by the parties thereto are admissible if relevant to- the establishment of the nature of the transaction. Wells v. Wells, Ky., 346 S.W.2d 33.

It is unnecessary for us to determine whether, assuming the grantors had a right of election to limit the scope of the easement, they had not abandoned that right by failure to exercise it within a reasonable time.

We find no error in the proceedings or the decision of the Chancellor.-

The judgment is affirmed.


author: W. R. GENTRY, Special -Commissioner.

text:
    Thomas Lee HAINLINE, Appellant, v. James B. HUKILL and Ora L. Hukill, Appellees.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.
    Morris B. Borowitz, Louisville, for appellant.
    Boehl, Stopher, Graves & Deindoerfer, Joseph E. Stopher, A. J. Deindoerfer and William P. Swain, Louisville, for appellees.
   W. R. GENTRY, Special -Commissioner.

This litigation involves a collision between two automobiles, occurring on the Clark Memorial Bridge -which crosses the Ohio River at Louisville, Kentucky.

Thomas Hainline, appellant and plaintiff below, was operating his automobile north across the bridge in its east lane. The Hainline vehicle was struck in its rear by an automobile owned by the appellee, Mrs. James Hukill, but being operated by her husband, also an appellee, both of whom were defendants below.

As a result of the collision the appellant brought suit against the appellees for the purpose of recovering damages alleged to be due as a result of the negligent operation of the Hukill automobile. The issues were joined by an answer of appellees denying negligence and pleading, by way of defense, contributory negligence on the part of appellant. On the trial of the case a jury returned a verdict in favor of the appellees. The lower court, following the verdict, dismissed the complaint and this appeal followed.

For reversal, the appellant suggests the trial court erred in not sustaining his motion for a directed verdict at the conclusion of the evidence, and by improperly instructing the jury as to the duties required of appellant.

While the facts of the case are simple, they are in dispute. In substance, the appellant contends that as he was crossing the bridge he applied the brakes of his vehicle, thereby activating its tail lights, and brought it to a gradual stop for the purpose of picking up a “hitch-hiker”; that before applying the brakes he observed the road to the rear of his automobile but saw no traffic; that at the time of the collision his vehicle was stopped for the indicated purpose.

In substance, the operator of the Hukill vehicle claimed he was following the Hain-line automobile a distance of two or three car lengths,- at a speed of about 25 to 3t) miles per hour; that appellant, without any warning except the activation of the tail lights, applied the brakes of his vehicle, bringing it to a sudden stop; that he observed the rear lights of appellant’s car but was unable to avoid the collision.

It also appears from the evidence there was nothing on the bridge at the time of the collision to obstruct the progress of the Hainline automobile.

It is obvious from all the testimony that the evidence presented questions of fact which required the court to submit the case to the jury. Hence, there is no merit to appellant’s claim that he was entitled to a directed verdict or a judgment notwithstanding the verdict. KRS 189.380(3) prohibits the sudden stopping of a motor vehicle without giving an appropriate signal of the intention so to do. If the jury believed from the evidence that appellant failed to meet this duty it was justified in finding for appellees.

Appellant also argues that by an ordinance of the City of Louisville he was permitted, at the time and place of the collision, to stop his vehicle for the purpose of picking up a passenger; that the portion of the bridge where the collision took place was in the City of Louisville and should therefore be treated as a city street rather than a public highway. There is no basis for this claim because the instructions did not prohibit appellant from stopping for that purpose, but required him not to do so suddenly, without signal.

The instructions did not embrace the term “appropriate signal” contained in the statute. This omission was more favorable than unfavorable to the appellant. Reason dictates that no matter what strained construction is placed on the statute, a motorist cannot suddenly apply his brakes, relying only on tail lights as a warning to closely following motorists and without otherwise regarding the safety of such motorist, for the sole purpose of aiding a pedestrian and be said to exercise ordinary care for his own safety and the safety of other traffic, or to he operating his vehicle in a careful manner.

As to appellant’s claim of error in the instructions: The jury was instructed it was appellant’s duty “to exercise, for his own safety, ordinary care to so operate his automobile so as not to bring it into collision with other vehicles, and not to bring his automobile to a stop suddenly, without giving signal of his intention so to do, and to keep a lookout for other vehicles.” The appellant does not object to the “sudden stop” duty placed upon him, but does object to the remaining duties.

The objection of the appellant to the duty of exercising ordinary care for his own safety, as well as to avoid a collision, overlooks two basic elements of the case. The first is, the defense to his claim was a plea of contributory negligence. Therefore, if he failed to exercise ordinary care for his own safety, as well as to prevent the collision, no matter how negligent the appellees might have been, appellant cannot recover. The second is, KRS 189.290 placed a duty on appellant to operate his vehicle in a careful manner, with regard for the safety of other vehicles.

The appellant next complains of the lookout duty placed upon him by the instructions and cites in support thereof Long v. Scheffer, Ky., 316 S.W.2d 375, and intimates that under that case it was error for the court to place .a lookout duty on appellant. The Long case does not hold, as a matter of law, that there is no duty on a motorist to observe what is to his rear. All the court stated in the Long case in this regard is as follows:

“We know of no legal requirement that the driver of a vehicle must keep a lookout behind, but even if defendants’ driver was in this or some other respect negligent * * *

Usually, the duty of lookout implies to look ahead, but it seems the use of the term “lookout” in the court’s instructions and under the facts .of this case amounted only to a choice of expression, and certainly could not have confounded the jury. In Slate v. Witt, 188 Ky. 133; 221 S.W. 217, this Court approved an instruction which placed upon the operator of a vehicle being followed by another the duty to exercise ordinary care to learn of the presence of the other vehicle. The usual method of performing this duty is by the use of the rear view mirror with which automobiles are required to be equipped. KRS 189.130. If a motorist has no duty of lookout for following traffic, then what is the purpose of KRS 189.130? Surely the jury did not construe the lookout duty as requiring the appellant to see what was to his rear by observing only what was ahead.

In Holder Motor Co. v. Davidson, Ky., 243 S.W.2d 926, this Court stated:

“Due undoubtedly to decisions rendered by this court from time to time, a conscientious trial judge hesitates to write into his instructions a simple, original, non-technical statement of the essential duties governing liability. Perhaps our system is much.at fault, and overemphasis is placed upon technicality and form rather than substance. A trial court should be encouraged, however, particularly in automobile cases, to limit the issues to those fundamental questions which arise out of the distinctive conditions developed by the evidence * * *

It appears the trial court’s instructions in this case admirably complied with the quoted suggestion. Not only is this true, but the instructions complained of tersely stated the “law of the road” of this case as defined in Short v. Robinson, 280 Ky. 707, 134 S.W.2d 594:

“[T]he ‘Law of the Road’ which is custom or practice which has become crystallized into an accepted system of rules regulating travel on the highways.”

It cannot be said that because the court used the term “lookout” rather than the phrase “ordinary care” to learn of the presence of a closely following vehicle, the instructions were so prejudicial as to require a reversal. Assuming arguendo that the instructions were technically incorrect, which we hold they were not, such is not ground for reversal where the rights of the losing party are not substantially prejudiced. Weaver v. Brooks, Ky., 350 S.W.2d 639; Rules of Civil Procedure, 61.01, 61.02.

Finding no error which is substantially prejudicial to the appellant we recommend that the judgment be affirmed.

The opinion is approved and the judgment is affirmed.


author: MOREMEN, Judge.

text:
    Fred B. WELLER et al., Appellants, v. Joe McCAULEY, Mayor, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.

      Robert J. Watson, Middlesboro, for appellants.
    Grant F. Knuckles, Pineville, H. F. White, Middlesboro, Cecil Wilson, Glasgow, for appellees.
   MOREMEN, Judge.

This is a taxpayers’ action against the governing body of Middlesboro, the electric plant board of that city and others to prevent further proceedings for purchase or condemnation of electrical facilities of Kentucky Utilities pursuant to KRS 96.550 et sequitur (commonly termed “TVA Act”). The circuit judge, upon motion, dismissed the complaint on the ground that it failed to state a claim upon which relief could be granted. Appellants tendered an amended complaint and moved that it be filed. The circuit court again found no basis of relief and overruled the motion. Appellants have appealed.

It was alleged in the complaint that the appellees had not negotiated in good faith for the purchase of the property. Subsection (1) of KRS 96.580 reads in part:

“Provided, however, that before a board or municipality shall have authority to condemn an existing electric plant under the provisions of this Act (KRS 96.550 to 96.900) or to enter upon the construction of any duplicating facilities under the provisions of this Act, the board shall notify the owner of the existing electric plant, hereinafter referred to as the owner, in writing of its desire to purchase the plant or that portion thereof located or situated within said municipality and of its desire to enter into an agreement as to the value thereof. If no fair and reasonable price and terms of purchase and sale shall be agreed upon between the board and the owner within sixty (60) days after the aforesaid notice has been given the owner, and if either party desires that further efforts to determine a fair price and terms of purchase and sale be made, a board of appraisers consisting of two members shall be appointed, one by the board and the other by the owner. Such appointments shall be made within thirty (30) days after the expiration of the time given the board and the owner to agree upon the value of the existing electric plant, or that part thereof which the board desires to purchase.”

It is alleged that on December 20, 1961, a letter was sent to the Kentucky Utilities Company by the electric plant board’s individual members in which was stated their desire to purchase all of Kentucky Utilities property located within the corporate limits of the city of Middlesboro, and their further desire to enter into an agreement as to the value of the property. It is averred that prior to or subsequent to the passage of the ordinance creating an electric plant board no study had been made by the members of the common council or the board to determine the value of the property or even to identify the property which they desired to purchase, and that at no time after sending the above mentioned letter to the Kentucky Utilities Company did any agent of the electric plant board or any individual member thereof make an offer to purchase or attempt to negotiate for the purchase of this property. It is stated that no step was taken between the date of the letter of intent (December 20, 1961) and February 20, 1962, when Mr. Jack P. Jenkins, chairman of the electric plant board, mailed a letter to the Kentucky Utilities Company which stated that the board had appointed Mr. C. M. Stanley to the board of appraisers.

We are of opinion that dismissal of appellants’ complaint was erroneous. Under CR 12.02 a court should not dismiss for failure to state a claim unless the pleading party appears not to be entitled to relief under any state of facts which could be proved in support of his claim. See Clay, Kentucky Practice, CR 12.02, Comment 8. Under the facts stated the appellant clearly ■ put in issue the question of good faith negotiation under the statute.

If the evidence adduced shows that ap-pellees were content to send only a notice of their intent to purchase and do nothing during the sixty day negotiation period and then to send a letter appointing an ap-' praiser, we believe negotiation, as contemplated by KRS 96.590, was not had. This statute sets up even more elaborately the terms for negotiation than does the statute in most condemnation proceedings. In analogous condemnation proceedings the inability to contract or agree is a condition precedent to the use of the power of eminent domain. Commonwealth Dept. of Highways v. Cardinal Hill Nursery, Ky., 343 S.W.2d 842. In fact, the TVA Act specifically outlines the methods of preliminary negotiations. A city must notify the owner in writing of its intent to buy and if a fair and reasonable price in terms of purchase cannot be agreed upon, appraisers may be appointed. We believe proof should have been heard on this issue.

The complaint also attacks the ordinance enacted February 12, 1962, which reads in part as follows: “That a line of credit for the city of Middlesboro be established at the National Bank of Middlesboro to the utility board, and that the city of Middlesboro underwrite a- loan not to exceed the amount of $12,500.” KRS 96.730, which deals with the matter of preliminary •expenses in connection with the acquisition •of an electric plant, provides that all expenses incurred by the board or the governing, body of the municipality “may be paid out of the general fund of said municipality not otherwise appropriated, or from any other available fund.” Appellants concede that the payment from any existing fund would be proper, KRS 96.730, but contest the use of the city’s credit as a method of lending money to the electric board. We agree. The language of the Act appears to contemplate existing funds and the city should be held to the terms of the Act.

We have heretofore stated that the circuit court dismissed the complaint on the ground that it did not state a claim upon which relief could be granted. Appellees, in their motion to dismiss, raised two other points which were not passed upon by the court. No cross-appeal has been taken, but these same points again have been raised in appellees’ brief. In view of the fact that this case will be remanded, we will discuss them briefly.

It is contended, first, that appellants who are citizens and taxpayers of the city of Middlesboro have no right to prosecute this action. We have held that they have. Norrell v. Judd, Ky., 374 S.W.2d 192; and Kentucky Utilities Co. v. Ginsberg, 255 Ky. 148, 72 S.W.2d 738.

Appellees next contend that the complaint is barred by a limitation set out in KRS 96.670, which reads:

“Any action challenging the validity of any ordinance electing to operate under this Act (KRS 96.550 to 96.900) or any election resolution, bond resolution, or election adopted or held hereunder, shall be brought within sixty (60) days from the date on which such ordinance or election resolution or bond resolution was adopted or election held, as the case may be, and, if not brought within such time, shall be forever barred.”

The ordinances by which the city created the electric plant board for the purpose of acquiring the electric utilities system were passed on December 5, 1961, and on December 19, 1961. The complaint in this case was filed on March 19, 1962. However, the issue of negotiation does not involve the ordinances. It concerns the question of whether there was adequate negotiation under the terms of the TVA Act. Therefore KRS 96.670 has no application. The resolution purporting to pledge the credit of the city was adopted on February 12, 1962, and this complaint was filed on March 19, 1962, and was therefore within time. Consequently the limitation provision of KRS 96.670 does not bar this action on a motion to dismiss since the alleged facts must be taken' as. true. The question of the constitutionality of the statute has not been raised.

All questions not passed upon by this opinion are reserved. The judgment is reversed and the case remanded for proceedings not inconsistent with this opinion.

Judgment reversed.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mary Elizabeth HARKNESS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Phillip K. Wicker, Somerset, for appellant.
    E. B. Wilson, Pineville, for appellee.
   WILLIAMS, Judge.

The appellant,- Commonwealth of Kentucky, Department of Highways, brought condemnation proceedings in the Bell County Court seeking to condemn certain property owned by the appellee Mary Elizabeth Harkness, who had been adjudged to be an incompetent person. Her guardian ad litem filed his report stating he was unable to make any defense. The Commonwealth did not put on any proof showing the right to condemn. (The official order of the Department of Highways designating the property needed is conclusive of the public use of. the property. KRS' 177.082. The order was not filed.) Judgment was taken awarding the appellee $2,000 as compensation for the property taken.

The Commonwealth appealed to the Bell Circuit Court. On motion of appellee’s committee (who was appointed after judgment was rendered in the county court), the appeal was dismissed and the cause remanded to the Bell County Court. Although that was not the proper method by which to dispose of the appeal, we have considered the circuit court’s action as tantamount to an order of reversal.

The judgment of the county court was defective because the necessary affirmative allegations were not proved by the Commonwealth. CR 8.04 provides in part:

“ * * * Averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading, except that the following allegations must be proved:
“(1) Those against a person under any disability. ■* * *”

The incompetency of the appellee was known at the time the condemnation suit ■was filed, but the proceedings taken thereafter did not conform to the directions of CR 8.04.

The county court judgment here was voidable. Since it was reversed by the circuit court its cure had to be effected in the county court. To that end the Common;.wealth produced the official order designating the property needed and caused a second judgment to be entered in county .court. Appeal from that judgment was dismissed by the Bell Circuit Court, which is the subject of this action before us.

We have already shown that the Commonwealth proceeded properly in returning to county court and correcting the error made in the first judgment. After the aver-ments in the Commonwealth’s complaint were proved the county court correctly entered a-jsecond judgment. It had jurisdiction of the parties and of the subject matter.

The only question remaining concerns the failure of the Commonwealth to name the appellee’s committee in the statement of parties to the appeal to circuit court. KRS 177.087 provides that a statement of parties to an appeal shall he filed, and we held in White v. Commonwealth, Ky., 287 S.W.2d 625, that failure to name the necessary parties is cause for dismissing the appeal. Although CR 4.04(3) provides that service shall be made upon a person of unsound mind by serving his resident guardian or committee, if there is one known to the plaintiff, nevertheless the real party in interest is the incompetent person himself. The effect of that rule is not so extensive as to make the committee a necessary party to this action. Failure to name the committee in the statement of the parties to the appeal, therefore, was not fatal.

The judgment is reversed.


author: MILLIKEN, Chief Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Norris P. PARSONS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Paul E. Hunley, Dept, of Highways, Frankfort, for appellant.
    Robert R. R. Boone, Pineville, for ap-pellees.
   MILLIKEN, Chief Justice.

To obtain right of way for construction and relocation of Highway 119 between Pineville and Harlan, the Commonwealth of Kentucky, Department of Highways, brought proceedings under KRS 177.081 through 177.089 to condemn 7.41 acres of appellees’ land. The Commissioners awarded appellees $3,000 for land taken and $2,-000 for damages to the remaining property. The Commonwealth appealed the judgment, but the condemnees did not. Upon a jury trial in the Bell Circuit Court, the appel-lees were awarded $3,500 for the property taken and $1,500 for damages to the remaining property.

Appellees owned a 57-acre tract of steep woodland on the north side of existing Highway 119, and 0.26 acre of level ground on the south side of existing Highway 119. On the larger tract is situated a cemetery with access to existing Highway 119 by means of a gravel surfaced road. In relor eating Highway 119, the Commonwealth took from appellees a 7.41-acre east-west strip, approximately 7.15 acres being taken from the larger tract north of existing Highway 119'and 0.26 acre being taken in its entirety from the smaller tract south of existing Highway 119. In all, 7.15 acres were taken for a permanent right of way; .02 acre was taken for a temporary easement to construct an entrance; and 0.26 acre was taken in fee simple. Remaining after construction of the relocated Highway 119 are 45 acres to the north of the. new road and 5 acres south of the new road, the 5 acres being bounded by relocated Highway 119 and existing Highway 119. On the latter 5-acre tract is located the cemetery to which the state built a service entrance. No access road was built to the 45-acre tract north of relocated Highway 119.

Appellant contends that the appel-lees’ three witnesses were not qualified as expert valuation witnesses and that their testimony should have been subject to appellant’s motion to strike. Appellant objects to the testimony of Norris Parsons, the landowner, who had dealt in real estate in the community for over thirty years, because he did not give a basis for the figures l^e used to establish that the market value of the property was $25,000 before the taking and $12,500 after the. taking. Though his testimony is somewhat confusing because he gave a separate value of $700 for the 0.26-acre tract taken in its entirety, he was a qualified appraisal witness and his testimony was competent and of probative value.

Appellant takes exception to the testimony of Robert Hensley because he gave no basis to support his values. Robert Hensley owns property at Calloway where the appellees’ land is located. As- a member of the Board of Education, he has purchased several parcels of property for school construction sites, one site being 1,000 feet from the appellees’ property. Also, Robert Hensley has appraised property in the neighborhood for loans by the First Federal Savings & Loan Association. He established that he is familiar with the cuts and fills of the new road construction, that he has been over most of the property, and that he has bought and sold property in that area. Robert Hensley testified that the value of the property was $22,500 before the taking and that the property remaining after the taking is worth $10,-000. He apportioned the $12,500 difference to $7,500 for the land taken and to $5,000 for damages to the land remaining.

Appellees’ third valuation witness, Green Howard, who is a resident of the same community in which the appellees’ property is located, testified that he had been familiar with ’the Parsons’ property and that he, along with two other relatives, owns 200 to 300 acres adjoining the Parsons’ land. He had observed what property had been bringing during the last twelve years when there had been an active real estate market in the community.

We think Mr. Parsons and his witnesses were ’qualified to’ testify as to the market value of the land condemned and that their testimony was competent. The circumstances of the taking were such as to lend credibility to the testimony. Commonwealth, Department of Highways v. Tyree (1963), Ky., 365 S.W.2d 472, 477; Commonwealth, Department of Highways v. Fister (1963), Ky., 373 S.W.2d 720.

We are compelled to reverse so much of the judgment as exceeds in any particular the amount allowed the landowners by the Commissioners of the county court, because the landowners here did not appeal. Since the landowners obtained $500 more in the Circuit Court for the land taken than they were awarded by the Commissioners in the county court ($3,500 as compared to $3,000), we direct that the Circuit Court judgment be reduced $500 accordingly. In Commonwealth, Department of Highways v. Berryman (1963), Ky., 363 S.W.2d 525, we pointed out that the governing statute, KRS 177.087, limits the questions to be considered on appeal to the Circuit Court from the county court to those raised in the original exceptions or statement of the grounds of appeal and said:

“The jurisdictional question we have found to be decisive on this appeal was not raised by the Commonwealth. However, it is disclosed by the record, and we are bound to take cognizance of any defect that may invalidate the judgment under reyiew. ‘On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first of the reviewing court, and then of the court from which the record comes. This question cannot, so far as jurisdiction of the subject-matter is concerned, be waived by the parties or overlooked by the court It is, therefore, open for the consideration of the reviewing court ’ whenever it is raised by any party, or it may even be raised by the court of its own motion.’ ”

The jury followed the instructions of the court, found separately the amount allowed for the land taken and the amount allowed as consequential damage to the remainder and did not exceed the total amount awarded by the Commissioners; the jury merely allocated the total amount differently by reducing consequential damage by $500 and adding that amount to the basic limitation of $3,000 for the land taken. This the jury was not entitled to do. Commonwealth, Department of Highways v. Berryman, above.

The judgment is affirmed in part and reversed in part and the trial court is directed to enter judgment in accordance with this opinion — $3,000 for the land taken and $1,500 for consequential damage.


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    Alvis BAILEY, Individually, etc., et al., Appellants, v. GALLATIN COUNTY BOARD OF EDUCATION et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.
    Truett R. DeMoisey, Walton, Raymond R. Vincent, Florence, for appellants.
    Rodney S. Bryson, Covington, John G. Wright, Warsaw, Lindhorst & Dreidame, Cincinnati, Ohio, for appellees.
   MONTGOMERY, Judge.

Alvis Bailey and his infant son, David, sued the Gallatin County Board of Education to recover damages for injuries sustained by David. A verdict was directed for the defendants; hence, this appeal. The case turns on the question whether the proof for appellants shows any negligence on the part of the drivers of the school buses involved.

On October 21, 1960, David Bailey, then ten years of age and in the fifth grade of the Gallatin County School at Warsaw, was injured when he fell. The testimony is that another pupil grabbed David’s books on the way from the school building to the bus loading area. She entered her bus, which was not the one David rode, with his books. He entered the bus to get his books and another pupil shoved him back. David caught the handrail at the door of the bus but was shoved again. He missed the rail and fell. His head struck the tire of the bus and the blacktop surface of the loading area. He then returned to his bus where some pupils laid him down on the seat. He remained there until he left the bus at his home. ■ (

Arthur Riley, driver of Bus No. 11, on which the accident occurred, and Elmer Kidwell, driver of Bus No. 42, on which David rode, were not present at the time of the accident. Each driver was then engaged in the performance of other duties which required his presence elsewhere. Riley was the school janitor and at the time was banking the school furnace. Kid-well was a teacher and was then conducting a study hall. In their absence the teachers of the various classes were in charge of the children in the loading area. The evidence indicates that no teachers were present. Neither driver was sued.

It is alleged in the complaint that David’s-injury resulted from "the negligence and; carelessness of Bus Driver of Bus #11,. the agent, servant and employee of the-defendant herein, Gallatin County Board of Education while in the course and scope of his employment as agent, servant and employee of the Defendant * * By answer appellee denied liability and claimed governmental immunity.

Under the facts of this case, where both bus drivers were engaged in carrying out other duties away from the buses and were not engaged in operating the buses, the court properly sustained the motion for a directed verdict. Since recovery was sought on the basis of the alleged negligence of the bus drivers, it is not necessary to consider other questions raised.

Judgment affirmed.


author: PALMORE, Judge.

text:
    LAUNDRY OPERATING COMPANY, d/b/a Dixie Laundry & Dry Cleaning Company, Appellant, v. SPALDING LAUNDRY & DRY CLEANING COMPANY, Appellee.
    Court of Appeals of Kentucky.
    June 12, 1964.
    As Modified on Denial of Rehearing Nov. 20, 1964.

      Fielden Woodward, Kenneth L. Anderson, Louisville, for appellant.
    J. Royden Peabody, Jr., Carl L. Wede-kind, Jr., Louisville, for appellee.
   PALMORE, Judge.

This is an action by one laundry company against another for triple damages resulting from the alleged violation of KRS 365.-030(1). KRS 365.070(1). The plaintiff (hereinafter called Dixie) appeals from a summary judgment entered against it on the basis of pre-trial depositions, opening statement of counsel, and the testimony of its president and chief witness. It was agreed that no further or additional facts in support of the complaint would have been developed in the course of the trial. Hence the question on appeal is whether, admitting all that the plaintiff proved and said it could prove, a favorable verdict would have been authorized.

Dixie does laundry and dry cleaning only. The defendant company (hereinafter called Spalding), in addition to these types of work, also offers a linen service for industrial or institutional customers, in which clean linens are provided on a rental basis. In the summer of 1960 Spalding’s sales representatives, while engaged in an effort to extend its linen service business with local motels and nursing homes, solicited some of Dixie’s regular customers and, by way of an introductory offer, gave them two weeks’ free service. These customers thereafter switched to the linen service and ceased patronizing Dixie. Their business with Dixie had amounted to some $160 per week.

Dixie made a complaint to the Greater Louisville Laundry Owners Association, of which both parties were members, and the matter was brought up for discussion at a meeting of the association. Spalding admitted it had given the free service and promised it would not make any more such trial offers to customers of other laundries. According to Spalding, this gesture was made in order to keep peace, and was not intended as an admission that the practice was illegal or unethical.

Spalding’s discontinuance of the practice of giving two weeks’ free linen service to customers of its competitors did not, of course, effect a restoration of the customers already lost by Dixie.

KRS 365.030(1), part of the Unfair Practices Act enacted in 1936, reads as follows:

“Except as provided in KRS 365.040, no person engaged in business within this state shall sell, offer for sale or advertise for sale any article or product, or service or output of a service trade, at less than the cost thereof to such vendor, or give, offer to give or advertise the intent to give away any article or product, or service or output of a service trade, for the purpose of injuring competitors and destroying competition." (Emphasis added.)

The principal basis on which the trial court granted summary judgment dismissing the claim was that there was not sufficient evidence to support a finding that Spalding had intended to injure competitors and destroy competition. A second reason assigned for the dismissal was Dixie’s inability to prove its damages with sufficient exactitude (this being a suit for damages only).

Neither our research nor that of counsel for the respective parties has uncovered any precedents, foreign or domestic, that are particularly helpful in deciding the main question in the case. See, however, annotations at 118 A.L.R. 506 and 128 A.L. R. 1126. It seems to have been the feeling of the trial court that because Spalding bore no ill will toward Dixie, and was motivated primarily by a desire to. increase its own business rather than a specific purpose to injure Dixie, there can be no justifiable inference of a purpose to injure competitors and destroy competition. This, we believe, ignores the realities of life. ..There .are many instances in which, sales efforts may create new business where none existed before, but when a seller- of goods or services solicits the business of a customer whose acquisition he knows will result in a -loss of that customer by a competitors'the intent to bring about that loss is inextricable from the intent to effect a gain in business for the proselyter. They are one and- the same. “It may be presumed in a civil action that the natural and probable consequences of the act were intended by the actor.” Dikeou v. Food Distributors Ass’n, 107 Colo. 38, 108 P.2d 529, 534 (1940). In “Through the Looking Glass” we are told the walrus shed copious tears as he devoured the innocent oysters who had accepted his invitation to stroll along the beach. He meant them no harm, of course. He merely wished to eat them.

We do not suggest that a purpose to divert or capture a competitor’s business is wrong or unethical. It is perfectly legitimate so long as it is not carried out unfairly. The' legislature simply has declared it unfair to accomplish it • through giving away goods or services or selling them for less than cost.

In calling on- business establishments known to be customers of its competitors Spalding was bound to realize that the success of its efforts would result in loss and injury to the competitors. Hence the result was necessarily embraced within its purpose. It is contended, however, that the' intent to “destroy competition” is a separate element, different from the intent to injure competitors. Indeed, it was so stated in State, by Clark v. Wolkoff, 250 Minn. 504, 85 N.W.2d 401 (1957), though the opinion conveniently (and understandably) omits an explanation of the difference. In California, where the. law originated, the word “and” was later amended to “or,” thus eliminating this particular exercise in semantic gymnastics. Our opinion is that to the extent- a competitor is caused to lose business, competition is destroyed. It would hardly be in keeping with common sense- to hold that activities otherwise falling within the interdict of the statute would be proper so long as the intent of the guilty party is something short of a design to effect the complete destruction of competition. Considering the nature and policy of the statute, we think the expressions “injuring competitors” and “destroying competition” were intended to describe one thing rather than two, that is, a reduction of competition at the expense of a competitor.

The giving of free service to a competitor’s customer with the admitted object of obtaining that customer’s patronage is an obvious and flagrant violation of •the statute. To hold otherwise would defeat the unmistakable purpose of the law. Spalding having' admitted, by the deposition of its chief officer, the activities in question, it seems to us.that it was.in violation of KRS 365.030(1) as a matter of law, leaving for the jury the questions of causation and damages.

On the issue of damages Mr. Bruner, Dixie’s president, testified in substance that he had no cost- accounting system, but that his fixed costs were not affected by the loss of these few accounts and his variable costs amounted to 50% or less of gross sales. He estimated, therefore, that his damages amounted to at. least 50% of the gross sales lost. We cannot agree with Spalding that this testimony constituted insufficient evidence of “actual”-- damages for submission to a jury. The lack of a cost accounting system is not fatal. The allocation of “costs” to various products and services quite often is set up on an arbitrary basis anyway. Bruner knew that on his volume over and above the “break-even” point net profits ran about 50%. Our decisions in Jefferson Ice & Fuel Co. v. Grocers Ice & Cold Storage Co., Ky., 286 S.W.2d 80, 54 A.L.R.2d 1181 (1956) and Grocers Ice and Cold Storage Co. v. Jefferson Ice & Fuel Co., Ky., 311 S.W.2d 186 (1958), do not suggest that the accounting methods therein mentioned are exclusively requisite.

That Dixie’s income tax returns showed losses in previous years was evidence to be considered by the jury, but was not necessarily inconsistent with Bruner’s estimate that on the volume of business lost to Spalding Dixie’s out-of-pocket loss was approximately 50%. In fact, from the damage standpoint there is no difference between a decreased profit and an increased loss. We do not commend loose accounting, but at the same time are of the opinion that it would be unreasonable to make a precise accounting system an absolute requisite to a showing of damage to a business. It is our judgment that Dixie was entitled to have the amount of its •damage considered and assessed by the jury.

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

      . One of tlie customers gave testimony from -which the jury might have concluded that the transfer to Spalding’s linen- service resulted from dissatisfaction with • Dixie’s service rather than the free trial.


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    James PHIPPS, Suing by His Next Friend, A. L. Phipps, Appellant, v. Frank Phillip BISCEGLIA, Appellee. James PHIPPS, Suing by His Next Friend, A. L. Phipps, Appellant, v. Ken PATTERSON, Appellee.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.

      J. W. Jordan, Barbourville, for appellant.
    Charles G. Cole, Jr., Cole & Cole, Bar-bourville, for Frank Phillip Bisceglia.
    Robert R. R. Boone, Pineville, for Ken Patterson.
   MONTGOMERY, Judge.

James Phipps sued Ken Patterson and Frank Phillip Bisceglia to recover damages for personal injuries resulting from an auto collision. The jury awarded Phipps $1,000 in damages against Patterson alone. From the judgment entered Phipps appeals. He urges that the jury was improperly selected ; that as to Patterson the verdict was erroneous; and that as to Bisceglia a sudden emergency instruction should not have been given.

Phipps contends that the jury was improperly selected. After his counsel had struck three names from the jury list and returned the list, the clerk changed the list by deleting the name “Ella Mays” and substituting therefor the name “Ella Smith.” Ella Mays was an acceptable juror to appellant. Ella Smith was not. It is not urged that the claimed error was discovered after the trial. The record indicates that this objection was made for the first time in the motion and grounds for a new trial. Such an objection is too late. Crosthwaite v. Crosthwaite, 151 Ky. 364, 151 S.W. 945; Belcher v. Sandy Valley & E. Ry. Company, 207 Ky. 560, 269 S.W. 729; Lanning v. Brown, Ky., 377 S.W.2d 590.

The verdict was as follows:

“We the jury find defendant Patterson, guilty for the accident and that he should pay $1,000.00, on hospital bill for James Phipps.”

Phipps insists that on such a verdict he should have been awarded damages covering pain and suffering, permanent injuries, and other medical expenses sustained by him.

There was evidence that Phipps had suffered permanent injury from a broken neck. He argues that the jury failed to follow the instructions of the court.

The rule in such cases is that where the jury disregards uncontroverted evidence as to elements of damage and the court’s instructions in regard thereto, a new trial shall be awarded because of the inconsistency of the verdict. Wall v. Van Meter, 311 Ky. 198, 223 S.W.2d 734, 20 A.L.R.2d 272; Biggs v. Toone, Ky., 244 S.W.2d 443; Smith v. Webber, Ky., 282 S.W.2d 346.

Appellee Patterson has not seen fit to file a brief. The appellant’s statement of the facts and issues is accepted as correct, and the judgment as to Patterson is affirmed on the issue of liability and reversed on the issue of damages. RCA 1.260(c) (1) and (2). Accordingly, Phipps is granted a new trial against Patterson in which only the issue of damages will be tried. CR 59.01; Scuddy Mining Company v. Couch, Ky., 295 S.W.2d 553; Carney v. Scott, Ky., 325 S.W.2d 343.

The court defined the duties of Bisceglia in driving his car and then concluded the instruction as follows:

“ * * * to travel on his right hand side of the highway unless you believe from the evidence that Ken Patterson suddenly -drove out of- the private driveway onto the highway and so near to the approaching Frank Phillip Bisceglia’s car that it was necessary or was believed by Frank Phillip Bis-ceglia, in the exercise of reasonable judgment to be necessary to turn to his left side of the highway in order to avoid a collision with the Ken Patterson car, even though the jury may believe from the evidence that turning to the left side of the highway under such circumstances was not the best or proper way to avoid the collision.”

Phipps complains that this instruction was not justified by the evidence.

Phipps and Bisceglia were each driving a car northwardly on U. S. Highway 25E, with Bisceglia’s car immediately in front. Patterson drove his jeep from a driveway on the east or right side of the highway onto the highway in a northward direction in front of the two oncoming cars. As Patterson was driving his jeep onto the highway, Phipps was attempting to pass Bis-ceglia, who swerved his car into the left lane to avoid Patterson’s jeep, and thus occurred the collision.

Phipps contends that Bisceglia was not entitled to the emergency instruction because Bisceglia had placed himself in a position of peril by not having his car under proper control while driving at a high rate of speed and by accelerating and attempting to pass the jeep pulling onto the highway. Phipps testified that he had pulled his car even with Bisceglia in the act of passing.

Bisceglia testified that he saw Patterson’s jeep parked to the right and perpendicular to the highway; that when about 100 to 150 feet away he sounded his horn and took his foot off the gas; that when he reached a point between 40 and 60 feet from the jeep it pulled out onto the highway in front of his vehicle; that at that time his vehicle was traveling in its proper lane and at less than 60 miles per hour; that he pulled to the left to avoid a collision with Patterson’s jeep; that he had about a second to avoid the collision; and that when he -turned to the left the left lane of the highway was-clear. His wife’s testimony corroborated his, as did the testimony in part of some other witnesses.

The testimony given in behalf of Bisceglia was sufficient to justify the instruction given. Edmiston v. Robinson, 293 Ky. 273, 168 S.W.2d 740; Berry v. Jorris, 303 Ky. 799, 199 S.W.2d 616; Pratt Fruit Company v. Sparks Bros. Bus Company, 313 Ky. 593, 233 S.W.2d 92; McCoy v. Carter, Ky., 323 S.W.2d 210.

The judgment is affirmed as to Bisceglia and as to the liability of Patterson but is. reversed and a new trial directed on the question of damages alone as to Patterson.


text:
    ASHLAND OIL & REFINING COMPANY et al., Appellants, v. Karen M. RICE et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.

      Gray, Woods & Cooper, John M. Williams, Reginald W. Becker, Ashland, for appellants.
    Nickell, Fanning & Rose, Ashland, for appellees.
   CULLEN, Commissioner.

The appeal is from a judgment determining title to a parcel of real estate upon the basis of a construction of the following provision of the will of Joseph B. Powell:

“ * * * I give devise and bequeath all the rest residue and remainder of my real estate both real and personal to my beloved wife Rebecca C. Powell to have and to hold to her my said wife so long as she lives or remains my widow and at her death to be divided equally between my three children namely Karen M. Rice William B. Powell and Nancy J. Compton in case any one of my children should die without issue then the estate to be divided equally between the heirs of my body.”

The three children survived the widow. William B. Powell subsequently died, leaving children, but before his death he conveyed his interest to his sister, Karen M. Rice. Nancy Compton later died, leaving a son to whom she previously had conveyed her interest, and he conveyed the interest to Karen. She is now an elderly widow with no children.

The circuit court held that thé limitation in the will with reference to death of any of the children without issue was restricted to their death prior to the termination of the mother’s life estate; that when the children all survived their mother they each acquired an indefeasible fee simple title to an undivided one-third of the estate; and that Karen M. Rice, by virtue of the devise to her of a one-third interest and the deeds to the other two-thirds interests, had good title such as to meet the obligation in her contract to convey title to the appellant Ash-land Oil & Refining Company.

Under the decisions in Harvey v. Bell, 118 Ky. 512, 81 S.W. 671 and Atkinson v. Kern, 210 Ky. 824, 276 S.W. 977, the decision of the circuit court is correct. However, the appellant points to the statement in St. Joseph Hospital, Lexington v. Dwertman, Ky., 268 S.W.2d 646, at 647, that:

“In * * * [the] cases above cited [including Harvey and Atkinson] it was recognized that the statute [KRS 381.080], insofar as it referred to real estate, must be construed to mean the death of the person mentioned at any time. * * * ”

Harvey and Atkinson laid down various , rules of construction applicable to-different, situations. The rule applicable where there is an intervening life estate, and a gift over upon death of the remainderman without issue, is that the limitation with reference to death without issue is restricted to the death of the remainderman before the termination of the life estate. (That is the situation we have here.) However, the rule where there is no intervening estate is that the reference to death without issue means death at any time.

In Dwertman there was no intervening estate, and the only question was whether the provision concerning death without issue meant death of the devisees before the testator’s death. The language hereinbefore quoted from Dwertman correctly stated the rule applicable to the situation in Dwertman. It was not intended and should not be construed,, out of context, as a departure from the rule stated in Harvey and Atkinson to govern situations where there is an intervening estate.

The judgment is affirmed.


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    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Hardy P. WIMAN et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Reed Anderson, Dept, of Highways, Paducah, for appellant.
    Seth T. Boaz, Mayfield, for appellees.
   MILLIKEN, Chief Justice.

The Commonwealth of Kentucky prosecutes this appeal because of the alleged commission of prejudicial errors during the jury trial of a condemnation action in the circuit court which resulted in an excessive verdict for the landowners. The jury awarded the property owners $4,000 for the land taken. The Commissioner’s award in the county court had been $6,000.

In 1959 the appellees purchased a four-acre tract in Graves County for $4,000. The land had a frontage of 480 feet on the Macedonia Road. The appellees used 140 feet of this frontage for a homesite and fenced off the undeveloped remainder of the tract. In 1961, in connection with the construction of the Macedonia service ramp being built in conjunction with the Mayfield Bypass, the Highway Department found it necessary to acquire an 80-foot right of way which severed appellees’ land, leaving a 140-foot frontage on the Macedonia Road west of the service ramp and a 260-foot frontage on the Macedonia Road east of the service ramp. In all, 0.84 of an acre was acquired by the Highway Department.

Appellant claims prejudicial error was committed by the introduction of inadmissible testimony, to wit: Attorney for appellees was permitted to show that ap-pellees’ tract had been condemned by the state on three prior occasions. While such testimony may be. immaterial and irrelevant because it shows no relationship to the market value as a result of the talcing'. We do not believe it was prejudicial.

Appellant further complains that appellees offered no facts in evidence to support their appraisal or their witness’ appraisal of the land taken from them. Concerning market value, Mr. Wiman testified as follows on direct examination:

“Q. What would you say was the reasonable value of your property immediately prior to the time they took this land for the highway ?
“A. Well, I really didn’t care anything about selling it, but I wouldn’t have took less than $15,500.
“Q. And what in your opinion is the reasonable value of it now or immediately after the taking?
“A. I would say around $9,000.”

He was not asked if he was familiar with real estate values in the vicinity, nor did he testify to any facts such as comparable sales to establish that he was. However, he did testify to the improvements he had placed on the land, such as grading, sodding, fencing and the planting of trees and shrubbery which served to indicate that the property was in better condition and worth more than it was when he purchased it in 1959.

Since the filing of the appeal in the case at bar, we have decided two cases which affect the principal question presented here. In Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, we held that though an owner of property is usually qualified to give opinion evidence as to its value because of the fact of ownership, the landowner could lose his qualification during the course of the trial if the basis of his opinion were shown to be improper. In Commonwealth, Dept. of Highways v. Fister, Ky., 373 S.W.2d 720, we examined the competency of the owner’s testimony as to market value of real estate when he possesses no qualifications other than ownership upon which to base his opinion. There, we held that the owner of condemned realty shall not be presumed adequately qualified to express an opinion of his property’s market value by reason of ownership alone but that he must initially establish his qualifications.

We think Mr. Wiman’s qualification to testify as to the market value of the property is doubtful and that the testimony he did offer was of little probative value, but we do not believe it was prejudicial in the circumstances. The testimony of a former highway employee and county judge of the county where the land was situated amply supported the verdict, and there is no question but that this witness was highly qualified to testify as to the market value of the property both before and after the road construction.

We conclude that the jury verdict was not unreasonable: and that the landowner’s testimony was not prejudicial.

The judgment is affirmed.