text:
    Lynn VAUGHN and Marlene Vaughn, Plaintiffs-Appellants, v. GREAT AMERICAN INSURANCE COMPANY, a corporation, Defendant-Respondent.
    No. 8311.
    Springfield Court of Appeals. Missouri.
    April 6, 1965.
    Rehearing Denied May 5, 1965.

      James E. Reeves, Ward & Reeves, Ca-ruthersville, for plaintiffs-appellants.
    Adolph K. Schwartz, St. Louis, James A. Vickrey, Caruthersville, for defendant-respondent.
   HOGAN, Judge.

This action was brought on a fire insurance policy issued to the plaintiffs by the defendant insurer. The defendant pleaded cancellation of the policy prior to the occurrence of the fire, and the trial court, to whom the case was tried, found that the policy had been cancelled at the insureds’ request before the loss occurred. The plaintiffs appeal.

The facts material here are that in February 1961, the plaintiffs purchased a fire insurance policy covering the contents of a rented dwelling near Gibson Bayou, in Pemiscot County. The house is described as a family dwelling, and the issuance of the policy and payment of a year’s premium by the plaintiffs is admitted. There seems to be no question that the policy was in force on November 3, 1961, a day before the fire in question occurred.

Sometime before the loss occurred, Mr. Vaughn decided to move to Memphis, Tennessee, though he promised to “stay on the job” at Steele, Missouri, until the “first of the year.” About the first of September, Mrs. Vaughn and the plaintiffs’ daughter moved to Memphis, and shortly thereafter the plaintiffs purchased a house there. Part of the contents of the Gibson Bayou dwelling was moved to the plaintiffs’ new home, though there is a dispute as to what was removed and what was left in Missouri. Mr. Vaughn continued to occupy the Gibson Bayou dwelling during the week, but spent his weekends with his family in Memphis. About the first of November, someone broke into the Gibson Bayou house, and Mr. Vaughn inquired of the defendant’s agent whether the burglary coverage of his policy provided reimbursement for the items taken. He was advised that it did not. On Friday, November 3, either because he was dissatisfied with the coverage or because he believed that there was no longer enough property remaining at Gibson Bayou to make it worthwhile to maintain the insurance, Mr. Vaughn took the policy to the defendant’s local agent and requested that it be can-celled. On Saturday, November 4, the house and its contents were totally destroyed by fire. The defendant refused to investigate or adjust the loss, claiming that the policy had been cancelled, and this action followed. Inasmuch as this is a court-tried case, it is our duty to review the cause both upon the law and the evidence, and to defer to the judgment of the trial court unless it is clearly erroneous. Rule 73.01(d), V.A.M.R.; Nye v. James, Mo.App., 373 S.W.2d 655, 661 [9],

Several matters were fully developed by the trial evidence, but the principal issue on this appeal is whether the process of cancellation had been fully completed when the loss occurred, and we have directed our attention to that issue. The appellants’ three main points in this case are: first, that the evidence does not show either an unequivocal present intent on the insureds’ part to cancel the policy, or any refund of the unearned premium, both of which are necessary elements of cancellation; second, that the local agent who accepted the policy for cancellation was only a soliciting agent without authority to receive and act upon a request for cancellation; and finally, that since Marlene Vaughn was a party to the contract but neither requested nor acquiesced in the cancellation, the attempted cancellation was a nullity.

So far as the policy itself is concerned, it is a so-called “standard” fire insurance policy with an extension of coverage endorsement. It was sold and issued to the plaintiffs by the Garrett Insurance Agency of Steele, Missouri, for a term of three years beginning February 25, 1961, and was admittedly in force on November 3, 1961. The policy provides for cancellation by either party in the following language:

“This policy shall be cancelled at any time at the request of the insured, in which case this Company shall, upon demand and surrender of the policy, refund the excess of paid premium above the customary short rates for the expired time. This policy may be can-celled at any time by this company by giving to the insured a five days’ written notice of cancellation with or without tender of the excess of paid premium above the pro rata premium for the expired time, which excess, if not tendered, shall be refunded on demand. Notice of cancellation shall state that said excess premium (if not tendered) will be refunded on demand.”

The issuing agency was the Garrett Insurance Agency, which then consisted of two partners, Mrs. Marcella Garrett and her son, Robert S. Garrett, who is also referred to as Bob, or Bobby. Both partners had equal authority in the management of the agency. There is a considerable amount of record evidence concerning the agency’s powers and duties as the defendant’s representative, and its methods of operation were developed in some detail. For the moment, it is sufficient to say that the record shows the Garretts had authority to accept risks, write insurance, countersign policies, and collect premiums for the defendant, and that the policy was issued and received by them for cancellation in the ordinary course of their business.

On Friday afternoon, November 3, Mr. Vaughn went to the Garrett Agency. He took the policy with him “and asked for Bobby and he wasn’t there, so I gave the policy to Mrs. Garrett and told her that I— ‘Just cancel the thing’; I didn’t have any burglary coverage on it; looked like what I needed more than I needed the fire coverage, and she says, ‘Well, are you sure that you want to cancel it? ’ and I said, ‘Well, just have Bobby call me.’ Rather than go into the whole thing with her and all that kind of stuff, I told her to just have Bobby to call me.” When he was asked to go over this sequence of events on cross-examination, Mr. Vaughn stated that he “personally requested the cancellation,” and that “in essence” he had said to cancel the policy and “have Bobby call me.” He did not ask for a refund of the unearned premium at that time because “that is what I was going to talk to Bobby about. * * * ”

Mrs. Garrett’s recollection of the Friday conversation with Mr. Vaughn was that he had brought the policy in and had said, “We have moved to Memphis and I don’t need it any longer. I don’t have enough property out there to keep it in force.” It was Mrs. Garrett’s recollection that Mr. Vaughn said, “If there is a return premium you can hand it to Bob sometime.” Mrs. Garrett was positive that Mr. Vaughn had said, “Cancel this policy.” It is clear, we would add, that Mrs. Garrett did not tender the refund until after the fire loss had occurred.

While we can agree with the appellants that cancellation of a fire insurance policy by the insured requires a clear and unequivocal present intent to cancel, 29 Am. Jur. Insurance, Section 402, p. 751, we cannot agree that Mr. Vaughn’s actions could be called either equivocal or subject to misinterpretation; nor do we think, as the appellants argue, that payment or tender of the unearned premium by the insurer was a condition precedent to cancellation of this policy by the insured. It is true that a number of cases decided in this jurisdiction hold that if the insurer itself seeks to cancel a fire insurance policy it must tender the unearned premium to effect a valid cancellation. However, it seems obvious to us that any consideration of the subject must be made in light of the specific policy provisions involved, and in any event, it is not the insurer’s right to cancel which is called in question here, but that of the insured. The policy in this instance provides that it shall be cancelled at any time at the request of the insured. By its execution of the policy, the insurer has agreed to this in advance. Though we are not called upon and do not attempt to define the insured’s right of cancellation in theoretical terms, it seems to us that the insured is simply given the power to terminate the contract at any time, and that neither the consent of the insurer nor any action upon its part is necessary to effect the cancellation. When Mr. Vaughn surrendered the policy and requested that it be cancelled, he had done all that he could do. In our view of the matter, the contract was then at an end. In short, the request itself effected the cancellation, though the insurer became the insured’s debtor as to the unearned premium.

The appellants also argue that the Garrett Agency was only a soliciting agency and as such had no authority to receive and act on the insured’s request for cancellation. The respondent answers that the Garrett Agency was rather an “issuing” agency with full powers to act for and bind the insurer. The appellants’ contention is really that the cancellation could not be considered complete until the request was received and acted upon by the insurer. Again, we think the appellants’ view of the matter cannot be sustained.

There is considerable record evidence dealing with the Garrett Agency’s methods of doing business. We consider it unnecessary, however, to restate all this evidence in detail, for while the Garretts’ agency contract does not expressly confer any authority to cancel insurance policies, it does indirectly refer to cancelled liability; and although the agreement itself grants authority in terms to “receive and accept proposals for * * * contracts of insurance,” as the appellants say, still it is clear to us that so far as the defendant insurer was concerned the Garretts had authority to accept risks, write insurance, countersign policies, and collect premiums. This made them “general agents” of the defendant insurer and not merely “soliciting agents,” so far as those terms are applicable in this case.

We do not believe, on the other hand, that the authority of the Garretts to receive and act upon requests for cancellation depends upon their status as “general agents” or “soliciting agents” for the insurer. It is true that those terms have a commonly accepted meaning, Corder v. Morgan Roofing Co., 355 Mo. 127, 138, 195 S.W.2d 441, 445 [1], but the distinction between a “general agent” and a “special agent” is often vague and imprecise and “can not be marked with exactitude.” Restatement (Second), Agency § 3, comment a (1958). In this case, we think the Garrett Agency had the implied authority to accept a notice of cancellation. The law does not require that notice of cancellation be given to the insurer itself rather than the agent, and the possibility of cancellation was one of the things contemplated by the parties to this contract when it was executed. The Garrett Agency was shown to be authorized to attend to all the defendant’s ordinary business in the locality where they operated. When policies of the sort involved here were desired, one or the other members of the agency obtained the location and description of the property, and then the agency would “ * * * figure according to the rates-in [the] rule books the cost of the premium and how it [would] be paid.” The term of the policy was then agreed upon by the agent and the prospective insured, and the agency would then “write the policy, sign the contract, deliver it to the insured and collect the money for it and pay the company, less the commission due. * * * ” The insurer would then receive a copy of the policy. The evidence also shows that while they have no express directions on the subject, the Garretts have developed and used a standard procedure in dealing with cancellations, and that procedure was followed here.

As has been pointed out, it is seldom that the specific directions given by a principal include all the acts he expects his agent to do, or refrain from doing, and all specific directions include by implication the authorization to do what is reasonably necessary to accomplish the principal’s purpose. Restatement (Second), Agency § 35, comment b; 1 Mechem, Agency, § 715, pp. 502-503 (2d ed. 1914). We cannot escape the conclusion that when the insurer executed the policy it had in view that the insured might wish to cancel it, and discharge of the insurer’s obligation to accept notice of cancellation was as much a part of the insurer’s business purpose as receiving notice of a loss, or performance of any of the other provisions of the insurance contract. In our view, independent of any express provision of the contract of agency, the Garretts had authority to receive notice of cancellation as a necessary incident to their authority to conduct the insurer’s business, and notice to them was as effective as notice given directly to their principal. Johnson v. Maryland Casualty Co., La.App., 151 So. 95, 96 [3]; cf. State Farm Auto. Ins. Co. v. Miller, supra, n. 5, 194 Va. 589, 74 S.E.2d at 148 [2],

The final point presented by the appellants is that the cancellation was not effective because Marlene Vaughn was a party to the contract and she neither requested nor acquiesced in the cancellation of the policy. The real issue presented on this point is, of course, whether Mr. Vaughn was acting as his wife’s agent in surrendering the policy and requesting its cancellation.

The parties have not cited, nor has our independent research disclosed, a case from our own jurisdiction precisely similar on the facts, and we must therefore he guided by the general principles of law of agency relating to husband and wife. The appellants do not dispute that Mr. Vaughn was acting as his wife’s agent in procuring the policy; what they question is his authority to request and obtain cancellation without her express consent.

The record evidence on this point, which consists almost wholly of Mrs. Vaughn’s testimony, indicates that such business as the Vaughn family had (of this kind) was attended to by Mr. Vaughn. Though Mrs. Vaughn requested that her husband obtain the policy — “because the wiring was bad in the house” — and later inquired about the policy, Mr. Vaughn himself procured the insurance and paid for it from his own funds, in which Mrs. Vaughn apparently had no interest. The personal property remaining at the Gibson Bayou home was left in the care of Mr. Vaughn, and the other probative evidence on this point indicates that, at the time in question, Mr. Vaughn attended to the family’s business affairs while Mrs. Vaughn, in her words, “* * got three-and-a-half a day, three meals and a half of a bed.”

While the evidence is not as fully developed or as satisfactory as it might have been on this aspect of the case, we think the trial court could reasonably have concluded that in requesting cancellation Mr. Vaughn was acting as his wife’s agent. We agree that neither husband nor wife has the power to act as the other’s agent merely by virtue of the marital relation, but the fact that a husband is habitually permitted by the wife to attend to some of her business affairs — which to us is the sense of Mrs. Vaughn’s testimony — furnishes some basis for finding that he is authorized to attend to all of her business affairs. Restatement (Second), Agency § 22, comment b, p. 94. In this case it is reasonably inferable that Lynn Vaughn was in charge of the property remaining at Gibson Bayou (regardless of the ownership of that property), that he procured and paid for the insurance on it, that he selected the kind of insurance to be obtained, that he retained the policy after it was issued, and that he generally managed the family business affairs. Though such evidence would not be conclusive on the point, we cannot say the trial court was clearly in error in finding Mr. Vaughn to be his wife’s agent in cancelling the policy. Trundle v. The Providence-Washington Ins. Co., 54 Mo.App. 188, 195-196 [4]; cf. Singer v. Charter Oak Ins. Co., 22 F. 774.

Since no clear error appears upon the record presented, the judgment is affirmed.

RUARK, P. J., and STONE, J., concur.

      . Brown v. Presidential Fire & Marine Ins. Co., Mo.App., 24 S.W.2d 206, 207 [2]; Dubinsky v. Hartford Fire Ins. Co., Mo.App., 196 S.W. 1045, 1048 [4]; Payne v. President, etc., of Ins. Co. of North America, 170 Mo.App. 85, 88, 156 S.W. 52, 53; Chrisman & Sawyer Banking Co. v. Hartford Fire Ins. Co., 75 Mo.App. 310, 316.

      . Ireland v. Manufacturers and Merchants Indemnity Co., Mo.App., 298 S.W.2d 529, 533-534 [5]. For a discussion of the various types of cancellation clauses, see Genone v. Citizens Ins. Co. of New Jersey, 207 Ga. 83, 60 S.E.2d 125, 128-129; Anno., 16 A.L.R.2d 1200, 1202 (1951); Comment, Cancellation of Insurance Contracts, 13 ArkX.R. 360, 368-370 (1959). Admittedly, there is a conflict of authority where the so-called “standard” cancellation provision is involved. Anno., supra, 16 A.L.R.2d at 1203.

      .Parsons & Arbaugh v. Northwestern Nat. Ins. Co., 133 Iowa 532, 110 N.W. 907, 908; Eicker-Woodland Co., Inc. v. Buffalo Ins. Co. of N. Y., 198 La. 38, 3 So.2d 268, 271-272 [4, 5]; Farmers’ Store of Wheaton, Inc. v. Delaware Farmers’ Mutual Fire Ins. Co., 240 Minn. 170, 59 N.W.2d 889, 893 [8]; Gately-Haire Co. v. Niagara Fire Ins. Co., 221 N.Y. 162, 116 N.E. 1015, 1016-1017, 1019; Crown Point Iron Co. v. Aetna Ins. Co., 127 N.Y. 608, 28 N.E. 653, 655, 14 L.R.A. 147; Camden Fire Ins. Ass’n v. Jennings, Tex.Civ.App., 93 S.W.2d 530, 531-532; State Farm Mut. Automobile Ins. Co. v. Pederson, 185 Va. 941, 41 S.E.2d 64, 67 [2], Cf. McCormick v. Travelers Ins. Co., 215 Mo.App. 258, 275, 264 S.W. 916, 922-923 [8], involving a life insurance policy.

      . Bennett v. Royal Union Mut. Life Ins. Co., 232 Mo.App. 1027, 1044, 112 S.W.2d 134, 145-146 [23] [25]; Bergerson v. General Ins. Co. of America, 232 Mo.App. 549, 554, 105 S.W.2d 1015, 1018 [7, 8]; Gaines v. Berkshire Life Ins. Co., 228 Mo.App. 319, 323, 68 S.W.2d 905, 907 [4, 5]; 29 Am.Jur. Insurance, § 151, pp. 550-551.

      . Manhattan Life Ins. Co. v. Allison, 100 Colo. 1, 64 P.2d 1265, 1266 [1]; Insurance Commissioner v. People’s Fire Ins. Co., 68 N.H. 51, 44 A. 82, 83 [1]; Victory Ins. Co. v. Schroeder, 167 Okl. 516, 30 P.2d 894, 895-896 [1]; State Farm Mut. Auto. Ins. Co. v. Miller, 194 Va. 589, 74 S.E.2d 145, 148 [1].


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Bradford UNDERWOOD et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.
    As Modified on Denial of Rehearing June 4, 1965.

      John Swinford, Wayne W. Fitzgerald, Cynthiana, for appellants.
    Robert Matthews, Atty. Gen., Frank D. Berry, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

The appellants, Bradford and Emma Underwood, are husband and wife. They were jointly indicted, tried and convicted of violation of ICRS 434.010. Bradford Underwood received sentence of imprisonment for seven years; Emma’s sentence was fixed at imprisonment for five years.

In their joint appeal appellants assign the following claimed errors: (1) A separate trial should have been granted for. Emma pursuant to RCr 9.16; (2) the court failed to properly instruct the jury as to the limited purpose of the proof of other crimes; (3) the court erroneously instructed the jury; and (4) the evidence was insufficient to support the verdict, and directed verdict of acquittal should have been given.

Bradford Underwood was employed as a milk truck driver by Kentucky Cardinal Dairies, Inc. from 19SS until April, 1963. In the course of his work Bradford collected milk from various farmers along the milk route. The milk was hauled in conventional milk cans; the average weight of a full can of milk is approximately 85-87 pounds. Bradford delivered the milk so collected to the dairy plant in Cynthiana, where the milk was weighed and tested by other employees of the dairy. If such tests reflected that the milk was sour, dirty or otherwise unsatisfactory, the dairy refused to accept the milk. In such cases of rejection, Bradford would rehaul the milk to the producer from whom it had been obtained.

Bradford’s compensation, paid entirely by the dairy, was $7.00 per day plus 400 per thousand pounds of milk hauled. Neither he nor the shipper of rejected milk received compensation for such milk.

In April, 1963, a change was made in the relationship between Bradford Underwood and the dairy. From and after that date he furnished his own truck chassis, equipped with a body furnished by the dairy. Underwood no longer drew any salary, but his compensation was fixed at 400 per hundred pounds of milk delivered; the money for the payment was deducted from the gross proceeds due the shippers, so ultimately the shippers were paying Underwood for the hauling after April, 1963.

In February, 1960, Bradford Underwood began to deliver shipments of milk to the dairy in the name of producer J. C. Wise. The prosecution showed that Kentucky Cardinal Dairy, Inc. had issued many checks payable to J. C. Wise for milk. In round figures, the aggregate of the checks so issued to J. C. Wise was $2,487 for 1960, $2,442 for 1961, and $2,729 for 1962. There was no shipment to Kentucky Cardinal from J. C. Wise after December 31, 1962.

However, it was shown that J. C. Wise’s name began to appear as a milk shipper to the Kraft Foods Company cheese plant in nearby Owenton on February 2, 1963. Eleven checks from Kraft to J. C. Wise were introduced in evidence; they hear dates beginning February 28, 1963, and ending August 15, 1963, and cover amounts aggregating $1,139.45. The final check was for shipments of milk in the name of J. C. Wise on July 16th and 17th, 1963. No shipment from J. C. Wise was received by Kraft after July 17, 1963.

The specific charge contained in the indictment is that “On and between the 1st day of July, 1963, and the 15th day of July, 1963 * * * the * * * defendants committed the crime of unlawfully and fraudulently converting to their own use a quantity of raw milk of the value of $183.84 which was the property of the Kentucky Cardinal Dairies, Inc. * * The item of $183.84 was related to a check payable to J. C. Wise, issued by Kraft Foods, dated July 30, 1963; the check covered payment for milk received by Kraft from the shipper known to it as J. C, Wise during the period July 1st through July 15th, 1963.

The prosecution’s theory of the case is that J. C. Wise is nonexistent, and that in truth the name is simply an alias for appellant Bradford Underwood. The inference drawn by the prosecution from the circumstances is that Underwood systematically poured off a portion of milk from the milk cans of various shippers; that he consolidated such poured off milk into cans he then delivered, first to Kentucky Cardinal — then to Kraft — all in the fictitious name of J. C. Wise.

In support of this theory the commonwealth showed the checks heretofore mentioned. A bank teller testified that he had cashed twelve checks, dated July 15, 1962, through December 31, 1962, all payable to-J. C. Wise and all drawn by Kentucky Cardinal Dairies. The teller said that the man whom he knew as J. C. Wise, and for whom he cashed the checks was, in fact, Bradford Underwood. The banker said that he recalled that Bradford Underwood (known to him only as J. C. Wise) had endorsed at least one of the checks in the banker’s presence.

Additionally, there was documentary evidence reflecting that checks emanating from the Kraft Company, payable to J. C. Wise (including the check of $183.84 dated July 30, 1963) were credited into the bank account of Bradford Underwood at Harrison Deposit Bank — not the bank where he had cashed the checks from Kentucky Cardinal.

It was shown that the butterfat content of the “Wise” milk ranged well above the average butterfat content of other milk produced in the same area. The commonwealth draws the inference from this that Underwood was drawing the cream off the top of the various cans in “producing” the “Wise” shipments.

Another significant circumstance was the absence of “Wise” milk shipments during periods when Underwood was on vacation —coupled with the complete “drying up” of the “Wise” herd after July 17, 1963, the last day Underwood “made his haul.”

The Kraft milk route driver testified that he had first learned of the desire of J. C. Wise to become a shipper to Kraft when he had a telephone call from a man who identified himself as “J. C. Wise.” The Kraft man never did see J. C. Wise, nor was he able to find out anything about him in the neighborhood where the milk was picked up. In fact, nobody could identify this “Wise” man.

However, appellant Emma Underwood (who worked in the laboratory at Kentucky Cardinal) did see the Kraft driver on two occasions. These were the occasions when the final two Kraft checks payable to J. C. Wise were delivered to her. When she obtained the last check, posing as the daughter of Wise, as the witness tells it: “I asked her how come they quit milking, and she said her dad was getting too old and couldn’t get anybody to help him, so he was going to quit and sell out and move to town and I asked her how far did they live up that road and she said Bridge Street in Cynthiana, that’s all.”

There were certain other incriminating circumstances, including evidence relating to Bradford Underwood’s stopping the milk truck with marked regularity at a spot somewhat distant from any house or barn — ■ with each stopping being accompanied by noises suggesting that milk cans were being moved about within the truck.

Bradford Underwood took the stand and categorically denied everything. Mrs. Underwood did not testify.

Emma Underwood made timely motion that she be granted a trial separate from the trial of her husband. The motion was overruled, and Emma assigns this ruling as reversible error. RCr 9.16 has changed Kentucky’s former rule of separate trial as a matter of right, which was extended under former Criminal Code of Practice, § 237. In Hoskins v. Commonwealth, Ky., 374 S.W.2d 839, the rule was adopted that “the mere fact that evidence competent as to one defendant but incompetent as -to the other may be introduced is not alone sufficient to establish such prejudice as to require the granting of separate trials. Ordinarily there must be some additional factor, such as that the defendants have antagonistic defenses, or that the evidence as to one defendant tends directly to incriminate the other, e. g., one defendant’s admissions directly implicate the other.” In Hoskins we held that there was no showing of such prejudice as to require separate trials. We think the same situation prevails in the present case. For Emma Underwood it is argued that her “defense” was “antagonistic” to Bradford’s, since he took the stand and she did not. It is our view that this is not the quality of antagonistic interest as would require separate trials, even it if could be said to be antagonistic at all. We hold that the lower court correctly denied the motion for separate trials.

Appellants next challenge the convictions ' on their assertion that the trial court did not instruct the jury as to the limited purpose of the proof of other crimes. Throughout the trial appellants did object to every reference to “Wise” checks and other actions related to the “Wise” transactions that related to any date not between July I and July IS, 1963. The trial court consistently overruled these objections. However, there was one occasion — and only one — upon which counsel for appellants asked the trial court to admonish the jury as to the limited effect of the evidence of prior transactions. As soon as that request for admonition was made, the court gave an appropriate admonition. We find the admonition to be sufficient, since it clearly apprised the jury that it could consider such evidence as it might go to show a common plan or scheme of operation “if you believe it does so show, and for no other purpose.” As a matter of fact, the exception to the general rule against receiving evidence of other offenses also relates to identity, in this case there was a sharp issue as to the identity of J. C. Wise — and his “daughter.” The evidence of other activities in the general plan did touch directly on the identity as to each of the defendants. Moreover, the novel means of the commission of the crime, according to the prosecution’s theory — is another basis for the admission of the evidence. See Wharton’s Criminal Evidence, 12th Ed., Vol. 1, § 235, wherein it is said:

“Evidence of an independent and separate crime is admissible when such evidence tends to aid in identifying the accused as the person who committed the particular crime under investigation. Evidence of other crimes is thus admissible to establish the identity of the defendant in prosecutions for arson, burglary, robbery, bribery, crimes involving fraud, forgery, violation of liquor laws, and sex crimes.
“When a crime is committed by novel means or In a particular manner;, the proof of other distinct crimes may be admitted for the purpose of identifying the accused as the perpetrator thereof. In order, however, for evidence of another crime to be admissible to prove the identity of the accused, there must be such a logical connection between the crimes that the proof of one will naturally tend to show that the accused is the person who committed the other.”

Therefore, the admonition given by the trial court could have pointed out the additional considerations of identity and novelty that could have been given to the evidence. Failure to include these elements did not prejudice the appellants, but was more favorable to them than a complete admonition would have been. It should he recalled that these appellants are not asserting that it was erroneous to admit the evidence of other crimes, but that the trial court failed to give a proper admonition. We hold that in light of the admonition given there is no merit in the contention. See Rogers v. Commonwealth, 264 Ky. 187, 94 S.W.2d 345, and cases compiled in 6 Ky. Digest 2, Criminal Law, <®::’824(8).

We are unable to accept the arguments advanced for appellants respecting their attack upon the instructions given. Although we have catalogued appellants’ challenge of the instructions as one, they have advanced three assaults upon the instructions, which we condense to two, as follows:

First, it is insisted that there was a fatal variance between the indictment and proof, so that the proof warranted an instruction for the offense denounced by KRS 434.220, but not the offense condemned by KRS 434.010. It is recalled that the indictment charged the conversion of milk, of the value of $183.84, “which was the property of the Kentucky Cardinal Dairies, Inc.” Since the milk was scheduled for delivery to Kentucky Cardinal, but was, according to the prosecution’s theory, diverted to the Kraft company, it is reasoned that Kentucky Cardinal suffered nothing, particularly as it did not pay for any milk it did not receive. KRS 355.2-401, a part of the Uniform Commercial Code, deals with the passage of title of personal property under conditions similar to those at bar.

It is our view that, for the purposes of prosecution under KRS 434.010, when the shippers delivered their milk to Bradford Underwood for delivery to Kentucky Cardinal, it was equivalent to delivery to Kentucky Cardinal for purpose of passage of title under the UCC provision cited. The fact that a right of rejection remained in the dairy merely strengthens this conclusion, since the UCC provision recites that the rejection under such conditions “revests” title in the seller. KRS 355.2-401(4). Although it is true that Kentucky Dairies did not pay out money for the milk diverted to Kraft, yet the milk was already the property of Kentucky Dairies and Underwood had no authority to appropriate it to his own purposes.

The next complaint as to the instructions is addressed to the form of Instruction No. 1 and to its inapplicability to appellant Emma Underwood. The instruction is necessarily somewhat involved, but there is no difficulty in understanding it, and we cannot feel that the jury could have been misled by the instruction. The chief complaint against the instruction has to da with its repeated use of the phrase “that they, or either of them” in referring to the two appellants. It was proper to so instruct. Moreover, by Instruction No. 4 the trial court told the jury: “if upon the whole case you have a reasonable doubt of the defendant, or either of them, having been proved guilty, or of any fact necessary to establish their guilt or the guilt of either of them, then you shall find them, or him or her about which you have such reasonable doubt, not guilty.” The instructions are to be read and considered in their entirety; we think it is plain that there was no basis for complaint as to the form and substance of the instructions. 1, Stanley’s Instructions to Juries, § 40.

Although it is not proper to instruct that a mere aider and abetter may be convicted as a principal (cf. Broughton v. Commonwealth, 303 Ky. 18, 196 S.W.2d 890; Macom v. Commonwealth, 302 Ky. 136, 194 S.W.2d 169), in this case there was evidence, not required to be detailed here, tending to show that Emma did in fact sometimes accompany Bradford on his milk runs, and from which the jury reasonably could infer that she participated as a perpetrating principal vis-a-vis a mere aider and abetter. See Waggner v. Commonwealth, 298 Ky. 153, 182 S.W.2d 661.

The judgment is affirmed as to each appellant.


author: CULLEN, Commissioner.

text:
    Claude Morris CRAIN, Appellant, v. Curtis JONES, Next Friend of Harold Curtis Jones, Carroll D. Arnold, a Minor, and Isaac Arnold, Appellees. Morris CRAIN, Appellant, v. Carroll D. ARNOLD and Isaac M. Arnold, Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.
    As Modified on Denial of Rehearing June 11, 1965.

      Pat Rankin, Stanford, for appellant.
    'James F. Clay, Danville, for appellee Arnold.
    Robert M. Spragers, Lebanon, for appel-lee Jones.
   CULLEN, Commissioner.

The appeals are from judgments in actions growing out of an automobile collision.

The automobiles of Claude Morris Crain and Carroll Arnold collided. Harold Jones, passenger in the Arnold car, sued Crain and Arnold. Crain and his wife (who was a passenger in his car) sued Arnold, who counterclaimed against Crain seeking contribution or indemnity on any recovery against Arnold in favor of Mrs. Crain. The cases were tried together. The jury returned a verdict awarding Jones $5,567.17 against Arnold and $10,567.17 against Crain; awarding Mrs. Crain $11,500.00 against Arnold; and denying recovery to Crain on his claim against Arnold. The court entered judgments in favor of Jones and Mrs. Crain pursuant to the verdict, and also entered judgment awarding Arnold $7,666.67 against Crain by way of contribution on Mrs. Crain’s recovery (the court being of the view that the apportionment ratio applied by the jury on Jones’ claim should be applied in allowing contribution on Mrs. Crain’s claim). The judgment dismissed Crain’s claim against Arnold.

Crain has appealed from the judgments, asserting as his principal contention that as a matter of law he was free of negligence and therefore the court erred in overruling his motions for a directed verdict and for judgments notwithstanding the verdict.

The Crain and Arnold automobiles were proceeding in opposite directions on a city street in Danville, approaching an intersection with a cross street. They collided in the intersection. Arnold testified that he was intending to make a left turn but that he had not executed the turn and had not crossed the center line of the street when his car was struck by the Crain car. He did not testify in positive terms that the Crain car was on the wrong side; he said only that he had remained on his right side. Jones testified that he did not know whether Arnold had turned across the center line before the collision. The testimony of the Crains was that Arnold turned suddenly into the path of their car, which was on its right side of the street. The driver of an automobile which passed through the intersection immediately in front of the Arnold car said the collision occurred just as she was passing out of the intersection and so close behind her that she thought at first her car had been hit.

The street on which the cars were trav-elling makes a jog at the intersection. The curb lines west of the intersection are several feet farther south than the curb lines east of the intersection. Thus, in order to pass through the intersection, a car going in either direction is required to angle to the left.

The principal damage to the Crain car was at the left front corner, whereas the Arnold car’s damage was in the center of the front. (In fact, Arnold testified that he was “sure” that the left front fender of Crain’s car struck his car “right in the center of the front.”) The nature of the damages to the cars clearly shows that either the Crain car was angled to its right or the Arnold car was angled to its left when they collided. Because of the offset at the intersection, and the presence of the car ahead of the Arnold car, it would have been physically impossible for the Crain car to get into a position so that its left front corner would hit the Arnold car in the front center if the Arnold car was completely on its right side of the street and was parallel with the center line, as Arnold claimed (he said he had not started to make his left turn).

The inescapable conclusion from the nature of the damage to the cars and the above related circumstances is that the collision occurred in the Crain car’s lane of traffic, with the Arnold car angled across in a turning movement.

Further strong proof that the accident happened that way is found in the testimony that substantially all of the debris from the cars was in the Crain car’s traffic lane.

Since there was no evidence at all that Crain was on the wrong side of the street, other than the inference arising from Arnold’s testimony that he at all times remained entirely on his right side, and since that testimony under the proven circumstances could not have been true, the claim that Crain was on the wrong side of the street was not a basis upon which an issue of Crain’s negligence could properly be submitted to a jury.

The appellees maintain that the jury was entitled to find Crain negligent in failing to keep a proper lookout and in failing to have his car under control. However, there is no evidence that the Arnold car’s turning movement was made a sufficient period of time before the collision so that Crain, exercising proper lookout and control, could have avoided the collision. Arnold said he never crossed the center line; the Crains said he turned abruptly and directly in front of them, after they were in the intersection. It is true that Arnold said his left turn signal was flashing and he was signalling a left turn with his arm, and Crain said he did not see those signals, but we do not conceive that had Crain seen the signals he would have been put on notice that Arnold was contemplating a suicidal turn in front of the Crain car when it was only a few feet away.

It is our opinion that the trial court erred in overruling Crain’s motion for judgments notwithstanding the verdict. Crain was entitled to judgment relieving him of any liability on Jones’ claim and of any liability to Arnold by way of contribution on Mrs. Crain’s claim. Also, he was entitled to judgment on his claim against Arnold, establishing Arnold’s liability and providing for future determination by a jury of the amount of damages.

The judgments are reversed with directions to enter judgments in conformity with this opinion.


author: HILL, Judge.

text:
    Edd STILTZ, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 14, 1965.

      Robert L. Dowell, Edmonton, for appellant.
    Joseph Martin, County Atty., Edmonton, Robert Matthews, Atty., Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

Appellant was arrested in Metcalfe County, Kentucky, June 27, 1964, for reckless driving. A search of his automobile disclosed eight cases of beer. He was tried in magistrate’s court July 11, 1964, on a charge of possessing alcoholic beverages in dry territory for the purpose of sale. On October 7, 1964, he was tried in the same court on a charge of reckless driving. Both cases were appealed to circuit court where, on November 12, 1964, he was again tried on illegal possession of intoxicants, found guilty and given a fine of $100 and 30 days in Jail. He appeals.

Still pending and never tried in the circuit court is the reckless driving charge.

We reverse this case on the authority of Taylor v. Commonwealth, Ky., 386 S.W.2d 480 (1965); Lane v. Commonwealth, Ky., 386 S.W.2d 743 (1965); and Thomason v. Commonwealth, Ky., 322 S.W.2d 104 (1959), wherein it is said:

“Where an original and separate charge based on the offense for which the accused was arrested is pending in a court and subsequently the accused is charged in another court of a separate offense, no evidence which was obtained solely as a result of a search made after the arrest for the initial charge is admissible in the trial of the second offense until the offender is found guilty in the first court.”

Appellee maintains appellant did not give the trial court an opportunity to rule on the validity of the search, and he thereby waived the question. First at the beginning of appellee’s evidence, and then at the conclusion, proper motion was made by appellant to suppress the evidence obtained by the search. We conclude this met the requirements of RCr 8.14.

Dissatisfaction is finally expressed with the indictment, in that, it did not conclude with “against the peace and dignity of the Commonwealth of Kentucky,” as required by our Constitution. Inasmuch as we are reversing this case for a new trial, no doubt the indictment may be amended before another trial.

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


author: WILLIAMS, Judge.

text:
    Calvin HOLBROOK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 14, 1965.

      Charles S. Sinnette, Ashland, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for appel-lee.
   WILLIAMS, Judge.

Appellant Calvin Holbrook was charged with violating KRS 186.050, found guilty of the charge in the Greenup Circuit Court, and was assessed a fine in the amount of $80.00. He moves for an appeal in this Court.

The pertinent portion of KRS 186.050(4) provides that a farmer owning a truck having a gross weight of 24,000 pounds or less may have it registered as a farm truck and obtain a license for $4.50. The penalty for violation of that section is a fine of not less than $10 nor more than $100. Appellant was apprehended while driving a farm truck which was 15,000 pounds overweight.

The Commonwealth proved the truck was licensed by and belonged to Walter Callihan. The statute is aimed at the owner of the vehicle and no one else. The Commonwealth has failed to prove that appellant Calvin Holbrook owned the vehicle which he was driving, and, consequently, has failed to make a case against him.

The motion for appeal is sustained, and the judgment is reversed.


text:
    Clarence N. HOFFMAN, Executor of the Estate of Harry J. Hoffman, Appellant, v. RUSSELL FEDERAL SAVINGS & LOAN ASSOCIATION et al., Appellees.
    Court of Appeals of Kentucky.
    May 14, 1965.

      W. H. Dysard, Dysard, Johnson & Welch, Ashland, Oscar Sammons, Green-up, for appellant.
    Charles M. Daniels, Greenup, for appel-lees.
   ROBERT O. LUKOWSKY, Special Commissioner.

On March 9, 1956 Harry Hoffman opened Investment Share Account No. 1-594 in the Russell Federal Savings and Loan Association. In opening the account he executed a “joint holders share account card.” The account was opened in the names of (Mrs.) Sibbia E. Hoffman or Harry Hoffman. Mrs. Hoffman, the mother of Harry, did not execute the account card.

The card contained, among other things, the following language:

“The undersigned hereby apply for membership and for an investment share account. * * * and for the issuance of evidence of the membership in the approved form in the joint names of the undersigned as joint tenants with the right of survivorship and not as tenants in common(Emphasis supplied.)

On March 9, 1956 Harry deposited $6,-000 in the account and certificate number 736 was issued in the names of Mrs. Sibbia E. Hoffman or Harry Hoffman. On July 5, 1956 Harry deposited $5,000 in the account and certificate number 748 was issued in the names of Sibbia Hoffman or Harry Hoffman. On February 7, 1958 Harry deposited $9,000 and certificate number 868 was issued in the names of Sibbia Hoffman or Harry Hoffman.

On February 14, 1959 (Mrs.) Sibbia E. Hoffman died testate. Her will made no reference to this account or to these certificates and it contained no residuary clause. Apparently, after her death, the Association was originally willing to pay over the funds represented by the account and the certificates to Harry if he supplied them with a release of inheritance tax lien. Harry failed to do this and thereafter an issue as to the ownership of the account and the certificates arose.

On October 21, 1961 Russell Federal Savings and Loan Association filed a petition for declaration of rights in which it asked the Greenup Circuit Court to determine whether the funds represented by the account and certificates should be paid to Harry individually or to the heirs at law of Sibbia Hoffman. The heirs at law of Sib-bia Hoffman were her surviving children and the children of her deceased children. Two of her children filed answers that the funds belonged to Harry. The remaining children and grandchildren filed an answer asserting the funds were the property of the estate of Sibbia E. Hoffman and, consequently, should come to her heirs at law.

The deposition of Harry Hoffman was taken as if on cross-examination on February 5, 1962 and in chief on April 4, 1962. At the time of the taking of these depositions he was over sixty years of age. During the pendency of this action and prior to its decision by the Greenup Circuit Court Harry J. Hoffman died testate and the action was revived as to him in the name of Clarence N. Hoffman, Executor of his estate.

All of the facts in regard to the ownership of this money and the relationship between Harry and his mother must be drawn from his depositions. The testimony of other witnesses primarily established nothing but kinship. In his depositions Mr. Hoffman was permitted by the parties to tell the facts as he understood them. No objections were made to his testifying and no witness contradicted the things that he said.

When Harry was two years old he was crippled and he carried this affliction throughout the remainder of his life. In 1946 he suffered a nervous breakdown. During most of his life he worked in his father’s store. He started when he was five years of age at a rate of six cents a day and gradually advanced his earnings to the sum of $2 per day. He was unable to support himself exclusively from his own efforts, although he did accumulate some money and bonds of his own.

All of the other children married and left the ancestral home. Apparently two of the children answered the siren call of John Barleycorn. Harry never married and lived his entire life in the ancestral home with his father and mother. For the last eighteen years Harry left his mother only when he was confined to the hospital.

He managed the affairs of his mother for several years prior to the death of his father because of the illness of his father. After the death of his father he managed his mother’s affairs for some twenty-three years prior to her death. He stated he did this because his father told him to always be good to his mother and see that she did not want for anything. During the years he lived with his mother and after his father’s death it is clear that he did his best to look after her welfare.

His father left his mother approximately $26,000. In addition to that his mother had some property of her own which she acquired from her husband by inter vivos gifts. The evidence discloses that she was generous to all of the children other than Harry and we will hereafter discuss her relationship with him. At the time Harry’s father died Mrs. Hoffman had a personal bank account in her name only, which was closed shortly after the death of the elder Hoffman and a bank account was opened in the joint names of Harry and his mother. Mrs. Hoffman was uneducated and Harry attended to all of her affairs, including her income from the sale of property and rental of real estate. These receipts were deposited in the joint bank account. At least at one period of time Harry maintained a separate bank account in his name only.

Mrs. Hoffman sold a farm for $2,500, a house at West Russell for $2,900, and two old shacks across the railroad for $8,000. She turned this money over to Harry and it was placed in the joint bank account. Harry testified that he placed money of his own in the joint bank account, although specific sums and sources were not identified or remembered by him. The deposits which represent the investment share account and the certificates were made by Harry’s drawing checks on the joint bank account.

Harry did not hesitate to acknowledge that these and other sums of money were turned over to him by his mother. He, in effect, stated repeatedly that these sums were given to him absolutely and that he and his mother both considered that they became his property. His testimony indicated that his mother wanted to give him everything but that he would not take it. He stated repeatedly that when his mother gave him money she made it clear that he could do as he pleased with it.

Harry maintained that it was his idea to transfer the money from the joint bank account to the Russell Federal Savings and Loan Association so that it could earn interest and so that if anything happened to him the money would revert to his mother. Certainly, his execution of the account card would accomplish this. According to Harry’s testimony his mother knew all about the money deposited in the bank account and in the savings and loan account.

Based upon these facts and the opinion of this court in Hays v. Hays’ Adm’r, Ky., 290 S.W.2d 795, the trial court found and concluded that the funds represented by the savings and loan account and the investment certificates were the property of the heirs at law of Sibbia E. Hoffman, because of the failure of Harry Hoffman to prove that the funds received by him from his mother were inter vivos gifts and to prove personal contribution to the deposits in the savings and loan association.

It is from a judgment effectuating these findings and conclusions that the executor of the estate of Harry Hoffman appeals.

CR 52.01 enjoins us not to disturb the findings of fact of the trial judge unless they are clearly erroneous and to give due regard to the opportunity of the trial court to judge the credibility of the witnesses. The crucial testimony in this case was presented to the trial court by depositions. Consequently, we feel a certain elasticity in our examination of this case. Clay’s, Kentucky Practice, CR 52.01, Comment 9.

There is no doubt that the relationship between Harry and his mother was close and confidential. Inter vivos gifts, asserted after the death of the donor, are regarded with suspicion. In considering the close and confidential relationship between mother and son, we must not lose sight of the fact that it is natural and normal for people, whether they be young or old, to make gifts to persons with whom they are close and in whom they repose confidence.

There is no evidence in the record establishing that Mrs. Hoffman did not intend to make a gift to Harry. The record shows that she was generous with all of her other children. There is no reason to believe that she would not be generous to Harry, who was ill, closest to her and had served her in her declining years. Brewer v. Allhands’ Administrator, 251 Ky. 178, 64 S.W.2d 469. The evidence further discloses that to the end of her life Mrs. Hoffman, while uneducated, was a bright and sprightly woman who had not lost control of her faculties and senses. Harry was freely permitted to testify concerning his transactions with his mother. He continually stated that she repeatedly expressed the intention that he have the monies that she turned over to him, as his own. There is no evidence to contradict this. There is no evidence to contradict Harry’s statement that his mother was fully advised of all of his activities with these funds. His explanation that his mother did not sign the account card because he was primarily interested in her having the money if something happened to him is credible. There is nothing unusual in a person to whom a gift is made wanting that gift to revert to the donor at his death, if the donor is the person who is closest to him and the most natural object of his bounty. The record does not show that Mrs. Hoffman ever claimed or attempted to exercise dominion over these funds after she turned them over to Harry.

In the last analysis we see no reason why the trial court should have placed so low a probative value on Harry’s evidence. In doing so it ignored the fact that this evidence was uncontradicted both by testimony and circumstances and misapplied the rule in Hays v. Hays’ Adm’r, supra. We are of the opinion that Harry proved that the funds represented by the investment account and certificates were received by him from his mother by an inter vivos gift and that, consequently, these funds became his property and, after his death, the property of his executor.

We recommend that the judgment herein be reversed and that this case be remanded to the Greenup Circuit Court, with directions to enter a judgment finding the $20,-000 represented by the investment account and certificates to be the individual property of Harry Hoffman and that his executor is now entitled to said sum.

The opinion is approved by the court and the cause is reversed for entry of a judgment consistent with this opinion.

      . To tlie extent that it held a gift must be proved when the owner of money deposits it to a joint hank account, the Hays ease was overruled in Saylor v. Saylor, Ky., 389 S.W.2d 904 (decided April 30, 1965). In this case, however, since Mrs. Hoffman did not participate in the creation of the account, the transfer to Harry of money that originally was hers can be upheld only on the gift theory.


text:
    Katherine Louise KAENZIG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 14, 1965.
    David Van Horn, Lexington, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

This is an appeal from a verdict and judgment of the Fayette Circuit Court finding the appellant, Katherine Kaenzig, guilty of voluntary manslaughter and fixing her punishment at confinement in the State Penitentiary for four years.

The appellant contends that in a murder prosecution, where the evidence points to self-defense, the court’s failure to give a self-defense instruction is reversible error.

Before this argument can be considered, we must determine whether the appellant has preserved the alleged error for review. Appellant did not object to the instructions at the time, nor did she move for a new trial. In Piper v. Commonwealth of Kentucky, Ky., 387 S.W.2d 13, this Court refused to determine whether the trial court erred in failing to instruct on involuntary manslaughter since appellant did not object to the instructions at the time nor raise the question by motion and grounds for a new trial. See also Hartsock v. Commonwealth of Kentucky, Ky., 382 S.W.2d 861. Stewart v. Commonwealth of Kentucky, Ky., 389 S.W.2d 910 (rendered April 30, 1965) is directly in line with the Hartsock and Piper cases.

The judgment is affirmed.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. J. S. DARCH et al., Appellees.
    Court of Appeals of Kentucky.
    May 14, 1965.
    Robert Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Jarvis Allen, Pikeville, for appellant.
    H. M. Shumate, Shumate, Shumate & Flaherty, Irvine, for appellees.
   STEWART, Judge.

This highway condemnation proceeding was instituted in the Lee County Court by the Commonwealth of Kentucky, Department of Highways, against J. S. Darch and two other persons, the landowners, and thereafter appealed to the Lee Circuit Court. The judgment entered at the first trial was reversed by this Court in Commonwealth, Department of Highways v. Darch, Ky., 374 S.W.2d 490. The property sought to be condemned is fully described in the opinion in that case.

A second trial resulted in a verdict of $40,000 for the property condemned, and this appeal is from the judgment entered. Reversal is urged because: (1) The trial court erred in admitting incompetent evidence ; (2) the verdict is palpably excessive, as it is not supported by evidence of probative value; and (3) the landowners’ attorney used tactics during the trial to discredit appellant’s attorney and its witnesses which tended to and did prejudice the jury against appellant. The first two contentions will be considered together, as they tend to produce a common result.

A wide gap exists between the appraisal amounts stated by appellant’s witnesses and those testified to by appellees’ witnesses. The former, two in number, estimated the difference in market value of the property in litigation immediately before and immediately after the taking at $16,805 and $16,-150, respectively. Five witnesses who testified for appellees fixed this difference at figures ranging from $50,000 to $65,000.

Appellant’s two witnesses based their estimates upon three fairly recent sales of property comparable as to location and land area. One of these sales was a brick and title building 75' x 90/ on a lot 75' x 100' in size. One story was completed and a second story with apartments was one-third finished at the time it was transferred. The sale was consummated on May 1, 1958, by A. J. Kinkaid to Lafayette Murray and the purchase price paid was $31,500. One of ap-pellees’ witnesses, J. M. Mahaffey, admitted the building on the Murray property was more valuable than the buildings on the land condemned. He stated he placed a market value of $50,000 on the property taken because he believed its location warranted his doing so.

Appellant’s witnesses also testified to a sale of property on March 5, 1960, from W. T. Bumgardner to J. M. Wolfinbarger, as being comparable in most respects to the property taken. This was the sale of a two-story building on Main Street near the post office and the courthouse, in Beattyville. The lot on which the building is situated is 45' x 90', and the sale price was $20,000.

A third sale which these witnesses used as comparable in location and area to the parcel acquired by appellant from appellees was that of a vacant lot on Main Street where a new post office is now located. The sale of this lot was made on February 19, 1961, for $9700.

The pictures of appellees’ property, which are filed as exhibits, show that on the portion of the land taken was a frame store building, conceded to be fifty or sixty years old, that was being used as a hardware store. Behind the store and attached to it were two wooden buildings in a poor state of repair. Also to the rear of the store was a small-sized concrete storage shed of recent construction.

Of the five witnesses testifying for appellees, one was J. S. Darch, a part owner of the land condemned. When asked how he arrived at his opinion of the fair market value of the land, he stated: “I am basing my figures on what it is worth to me. By the footage that I have there, and I told you that that was sixty five thousand dollars, the difference in my property before and after the taking.” It was pointed out in the first appeal of this case that Darch’s recital of what his property was worth to him was an improper basis for establishing its market value in a condemnation case. See 374 S.W.2d 490, 492. Appellant’s motion to strike this testimony should have been sustained.

Another of appellees’ witnesses, Dillard P. Tipton, was unable to state the dimensions of the land taken by appellant. Jesse M. Tharp, called to testify for appellees, was also confused about the amount of land condemned. Henry L. Jones, who lived in another county, based his $50,000 valuation of the property taken, in part, on an examination of the property as he passed it in going through Beattyville and, in part, from questioning others who were familiar with it.

Only appellant’s witnesses undertook to justify the valuations fixed by them by the use of other fairly recent sales considered comparable in most respects to the property taken. When appellees’ witnesses were confronted on cross-examination with the prices paid for such properties and asked to state why the property condemned was more valuable, their answers would sometimes border on the ridiculous. For instance, when J. M. Mahaffey was requested on cross-examination to give a reason why the brick and tile building, sold on May 1, 1958, by A. J. Kinkaid to Lafayette Murray for $31,500, was less valuable than the property condemned which he had appraised at $50,000, he replied: “I know that they just gave that property away.” Another witness, asked to compare the value of the new brick and tile building with that of the old frame buildings of appellees’, stated he simply believed appellees’ property was worth “twice as much.”

We conclude the high figures brought out by appellees’ witnesses are not borne out by the proof of the very witnesses who gave them. Stated differently, the quantum of probative value deducible from this proof is not adequate to support the verdict. Also the erroneous admission of considerable evidence in behalf of appellees, timely objected to but allowed to be considered, must be deemed to have had a cumulative prejudicial effect and afforded an improper evidentiary basis for the verdict. Therefore, we are of the opinion that a verdict of $40,000, when considered in the light of the entire record, is so palpably excessive as to shock the conscience at first blush. In such a case it becomes our duty to reverse. See Commonwealth, Department of Highways v. Williams, Ky., 383 S.W.2d 687, and Commonwealth, Department of Highways v. Lyons, Ky., 364 S.W.2d 336.

Another contention is that the trial judge erred in permitting counsel for appellees to make alleged prejudicial statements, both during the trial and when the case was being argued before the jury. Counsel for appellant did nothing more than interpose an objection and no action was taken by the bench. As the trial judge was not pressed for a ruling, each time, counsel must be presumed to have waived the matter about which complaint was made.

Wherefore, the judgment is reversed and remanded for further proceedings not inconsistent with this opinion.


text:
    Ronald EWING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 14, 1965.

      Wesley Bowen, Newport, for appellant.
    Robert F. Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Appellant was indicted and tried on a charge of maiming Robert Evans “by putting his eye out.” KRS 435.160. The jury found appellant guilty of the common law misdemeanor of assault and battery, and fixed his punishment at a fine of $500 and imprisonment in the county jail for twelve months.

Appellant presents three assignments of error: (1) the court should have directed a verdict of acquittal, pursuant to motions made at the conclusion of the case for the prosecution and after all the evidence was in; (2) the verdict is so palpably against the evidence as to require reversal; and (3) error was committed in receiving non-medical testimony relating to the loss of sight by the prosecuting witness.

On March 11, 1964, the appellant and the prosecuting witness, Robert Evans, were patrons of a beer tavern in Coving-ton known as “Jimmy’s Lounge.” The two men had not entered the tavern together, nor is there any indication that they had known each other, except casually.

According to the prosecuting witness, the appellant confronted him near the bar of the tavern and presented a pistol toward him in a threatening manner. Appellant accompanied the flourishing of the weapon with the admonition to Evans “if he (Evans) pulled his hand out of his pocket that he would kill him.” Thereupon, Evans undertook to depart the premises via a rear door. In this undertaking he was closely followed by appellant, and just after the two men had emerged from the building, appellant struck Evans in the face with the pistol, inflicting upon him a wound resulting in the loss of sight in his left eye.

Appellant’s version of the difficulty is that Evans had previously accosted appellant in the tavern; that Evans had used threatening language and asserted his physical prowess menacingly toward the fifteen to twenty patrons of the tavern, especially including appellant. Appellant said that he was fearful that Evans would carry out these generalized threats, and that he did draw the pistol on Evans and order Evans to leave. Expressing his fear that Evans would probably return and do him harm, appellant followed Evans as the latter made exit through the rear doorway. Just as Evans “wretched” for the door knob, appellant testified, Evans drew a knife and wheeled to stab appellant; at this juncture appellant smote Evans with the pistol, in his own necessary self defense. Evans then dropped the knife, which appellant picked up and placed upon a table. (Nobody else saw the knife thereafter.)

Evans, and other witnesses for the prosecution, specifically contradicted appellant as to the knife; Evans avowed that he was completely unarmed and had not made any threat toward appellant. From the foregoing summary of the evidence it is apparent that a jury issue was presented. Appellant was not entitled to a directed verdict, either at the close of the Commonwealth’s case or on the conclusion of all the evidence.

It is equally clear that the verdict is not palpably against the evidence. The jury had the right to accept the version of the prosecution. Indeed, the substantial preponderance of the evidence supports the theory of the Commonwealth. An appropriate self-defense instruction was submitted, but the jury did not believe that appellant had established his entitlement to acquittal on that ground. Since the appellant admitted striking Evans it was incumbent on appellant to excuse that action. Harvey v. Com., Ky., 318 S.W.2d 868; Monroe v. Com., Ky., 343 S.W.2d 143.

What we have said disposes of the first two points presented. We turn now to consideration of the final point, namely, that it was error to permit Evans to testify that the pistol blow induced the loss of his eye sight. In support of this argument the appellant presents Harvey v. Com., Ky., 318 S.W.2d 868; Jack v. Com., 222 Ky. 546, 1 S.W.2d 961; L. & N. RR. Co. v. Com., 231 Ky. 554, 21 S.W.2d 981, and Conley v. Com., 265 Ky. 78, 95 S.W.2d 1094. Also cited is 20 Am.Jur., Evidence, Sec. 858, p. 719. The burden of this contention is that it is not proper to permit lay testimony as to matters requiring expert or scientific training and skill.

Examination of the last three cases just cited (Jack v. Com., L. & N. RR. Co. v. Com., and Conley v. Com.) reveals that none of them is apposite to the situation at hand. In the Jack and Conley cases this court rejected evidence as to identifying bullets from firearms when offered by persons not skilled in ballistics. In the L. & N. case the question at issue had to do with what had caused the deepening of a ford across a stream. Non-expert witnesses were not permitted to express opinions as to the cause of the ford’s increased depth.

In Harvey v. Com., Ky., 318 S.W.2d 868, a deputy coroner had undertaken to describe the organs within the body of a homicide victim; the officer was not a doctor, nor did he possess any background of education or experience which could warrant his expression of medical opinion. The court held that it was proper to exclude the evidence from that witness. But in the same opinion the court held that the circumstances of the death from gunshot wound were such that no expert testimony was required. The pertinent language of that opinion is:

“Here Smith was shot near the middle of his body, immediately fell, was rushed to the hospital in an ambulance and died within less than an hour after he was shot. Therefore, any layman of average intelligence would know from his knowledge and experience that the bullet wound was the cause of death. In such circumstances it is not necessary to prove by a physician that the wound inflicted was the cause of death.” Ibid. 318 S.W.2d 870.

In the case before us Evans was competent to testify that he was struck in the eye; that during his entire life until that blow he had enjoyed normal vision in the eye, and that thereafter his vision was gone. Long ago a layman, called upon to explain how his sight had been restored, exclaimed, “ * * * one thing I know, that though I was blind, now I see.” John 9:25. Here we have the converse. It is our view that the evidence was competent. Cf. White v. Com., Ky., 360 S.W.2d 198.

It is suggested by appellant that even though the jury did not convict him of mayhem, the evidence that Evans had suffered the loss of sight was so prejudicial as to infect the verdict with reversible error. We do not agree. As noted, it is our view that the evidence was competent to establish the mayhem charge, and certainly the jury’s verdict of guilt as to the lesser offense may not be said to be tainted by its admission.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Harrison BARRETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 14, 1965.
    Buford A. Short, Short & Rose, Beatty-ville, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, David Murrell, Asst. Attys. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

Appellant was convicted of unlawfully possessing intoxicating liquor under KRS 242.230. He contends he was entitled to a directed verdict because of the failure of proof.

Five one-gallon jars of moonshine whisky were found buried 150 feet behind appellant’s house on property not owned by him but which he had at times used for gardening purposes. There was no other evidence connecting him with this liquor, although his reputation was shown to be bad.

The Commonwealth undertakes to distinguish Lorman v. Commonwealth, Ky., 269 S.W.2d 243; McBride v. Commonwealth, Ky., 279 S.W.2d 772; and Powell v. Commonwealth, Ky., 282 S.W.2d 340. They are not distinguishable in principle. This circumstantial evidence of possession was insufficient to support the verdict.

The motion for appeal is sustained and the judgment is reversed for consistent proceedings.


author: PALMORE, Judge.

text:
    SHELBY COUNTY BOARD OF EDUCATION, Petitioner, v. Coleman WRIGHT, Judge, Shelby Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    May 14, 1965.

      Charles E. Duncan, Duncan & Lehnig, Louisville, for petitioner.
    Kinsolving & Kinsolving, Shelbyville, Marion Rider, Frankfort, for respondent.
   PALMORE, Judge.

In this original proceeding before us the Shelby County Board of Education (hereinafter called the school board) seeks to prohibit the respondent, as Judge of the Shelby Circuit Court, from subjecting it to a new trial in a tort case.

The litigation in question involves two death claims and a personal injury claim against three defendants, one of whom is the school board. In the first trial, held in 1960, substantial verdicts were returned in favor of each of the plaintiffs against all three defendants, jointly and severally. One defendant, Palmer, did not appeal. The other two, being the school board and one James C. Hawkins, appealed the judgment to this court and after two rehearings a mandate was issued pursuant to a memorandum opinion affirming as to Hawkins and reversing with directions for a new trial of the claims against the school board.

The case against the school board was retried in October of 1964 and resulted in a hung jury. Upon the third trial in February of 1965 the jury returned a verdict in favor of the school board. The plaintiffs moved for a new trial, one of the grounds being that the trial court had committed prejudicial error in permitting the testimony given by Hawkins at the first trial to be read as evidence in the third trial (he did not appear in person at the third trial). The trial court sustained the motion on that ground, and it is from this action that the school board now asks relief.

We fully appreciate the vexation and expense that are unavoidable incidents of a re-trial, and we are particularly mindful of the degree of consternation felt by the school board at having its hard-won victory in this long, complicated and fiercely contested case snatched away on a tenuous and what may well be an untenable ground. Nevertheless, the granting of a new trial in this type of case has never been considered as final and appealable. Clay’s Kentucky Practice, CR 59.01, Comment 5, and CR 73.01, Comment 4. Resort to the inherent power of this court under Const. § 110 as a substitute for appeal is permitted only under exceptional circumstances in which great injury and injustice, irreparable by appeal, would otherwise result. Bender v. Eaton, Ky., 343 S.W.2d 799 (1961). In Collins v. Wells, Ky., 314 S.W.2d 572 (1958), granting a new trial when “the right of appeal may he preserved and held in abeyance pending a subsequent trial or final disposition of the case” was held not subject to prohibition. “Interminable delay” and economic disadvantage do not constitute “great and irreparable injury” within the context of the extraordinary relief this court will grant under Const. § 110. Ison v. Bradley, Ky., 333 S.W.2d 784 (1960).

It is our conclusion that the circumstances do not justify a departure from the principle that the right of eventual appeal from an order granting a new trial is an adequate remedy.

The relief sought by the petition is denied.


text:
    Marlow W. COOK et al., Appellants, v. William D. CHILTON, by and for the BOARD OF TRUSTEES OF the COUNTY EMPLOYEES’ RETIREMENT SYSTEM of the Commonwealth of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 14, 1965.
    Henry V. B. Denzer, Mark Davis, Jr., and E. P. Sawyer, Louisville, for appellants.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

The appeal is from a judgment holding valid, as to the incumbent county judge of Jefferson County, the provision of the Kentucky County Employes’ Retirement Law, contained in KRS 78.610, requiring members of the retirement system to contribute a percentage of their salaries to the system.

The Kentucky County Employes’ Retirement Law, KRS 78.510 to 78.880, was enacted in 1958. Jefferson County elected in 1959 to participate in the system. The effect of this election was that any person thereafter becoming an employe of the county automatically became a member of the system. KRS 78.540(1). This included elective officers such as the county judge. KRS 78.510(5).

Appellant Marlow W. Cook was elected as county judge in 1961 and took office in January 1962. At that time KRS 78.610 required an employe’s contribution of two and one-half percent of salary. Thereafter, effective in June 1962, the General Assembly amended the statute to increase the contribution rate to four percent. Judge Cook refused to make contributions at either rate, thus precipitating the instant lawsuit.

Judge Cook’s sole contention is that the statutory requirement of payment of contributions to the retirement system violates the prohibition of Sections 161 and 235 of the Kentucky Constitution against change of an elective officer’s compensation during his term.

Obviously the imposition of the original two and one-half percent contribution could not constitute a change in Judge Cook’s compensation during his term, because it was imposed before he took office.

As concerns the increase in the contribution rate to four percent after Judge Cook took office, we think the simple truth is that the pension contribution, though it literally and technically effects a reduction in monthly take-home pay, is not a change of compensation within the meaning of the constitutional provisions.

Under KRS 78.740 and 78.750, a member or his estate always will receive from the retirement system a minimum amount not less than the amount of his contributions to the system. However, this does not include interest on the contributions. Thus, a member possibly could suffer a detriment by being deprived for a period of time of the present use of the amounts required to be contributed. Of course in the great majority of instances a member will receive by way of benefits considerably more than he has contributed.

The purpose of constitutional prohibitions against reduction of an officer’s compensation during his term is to promote independence of the officer and to provide him a measure of security against improper pressures. See O’Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356. The obvious purpose of a pension system likewise is to promote independence and security. It would be a gross distortion of the meaning of the constitutional prohibitions to hold that they were intended to forbid a legislative act designed to achieve the very same obj ectives as the constitutional prohibitions.

Pension systems are designed to attract good men to public service and to encourage them to continue in that service, thus promoting the public interest by offering security to the officer. See Maybury v. Coyne, Ky., 312 S.W.2d 455. They are calculated to promote, rather than defeat, the purposes inherent in Sections 161 and 235 of our constitution. In our opinion it is a matter of no significance that in a few isolated instances, by chance of circumstances, the system might so operate as to subject an officer to a minor, incidental, financial detriment.

As concerns Wilson v. Marsh, 162 Neb. 237, 75 N.W.2d 723, which Judge Cook relies upon as supporting his contention, it is sufficient to say that we are not persuaded by its reasoning.

The judgment is affirmed.


text:
    Joe Raymond UWANIWICH, alias Joe Johnson, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 14, 1965.
    Joe Raymond Uwaniwich, pro se.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

The appellant, Joe Uwaniwich, is serving a life sentence pursuant to an armed robbery conviction in the Pike Circuit Court. The judgment was entered in 1939. This is an RCr 11.42 proceeding in which he appeals from an ,order overruling his motion to vacate.

The grounds alleged in support of the motion are that Uwaniwich was denied the effective assistance of counsel and that the instructions were improper in failing to authorize a penalty of 21 years. The trial court overruled the motion on the basis of the record, without a hearing. Cf. Oakes v. Gentry, Ky., 380 S.W.2d 237 (1965); Maye v. Commonwealth, Ky., 386 S.W.2d 731, 733 (1965).

On the second point Uwaniwich evidently confuses KRS 433.140 (armed robbery) with KRS 433.150 (armed assault with intent to rob). He was indicted for armed robbery under § 1159a of the Kentucky Statutes, from which KRS 433.140 is taken. The statute then as now prescribed but two alternative punishments, life or death. The 21-year option applied only under § 1160, now KRS 433.150. But in any event, erroneous instructions do not invalidate a conviction. Cf. King v. Commonwealth, Ky., 387 S.W.2d 582 (1965).

With respect to the question of counsel, the record shows that Uwaniwich pleaded guilty and two practicing attorneys of the Pike Circuit Court were appointed to represent him. There was no attempt to change the plea as then permitted by Criminal Code of Practice § 174 (and now permitted by RCr 8.10), and Uwaniwich does not now contend that he was not guilty. The Commonwealth elected to put on proof, and according to the record the jury heard arguments by counsel on both sides.

Uwaniwich was indicted at a special term of the grand jury on March 29, 1939, and was arraigned, tried and convicted on the same day. On the face of it, we are constrained to examine the circumstances very carefully. If there were anything else in this record to justify a suspicion that Uwaniwich was railroaded, we would reverse and direct a full hearing. But we do not find it. The very fact that counsel appointed to defend him argued the case to the jury indicates that the representation was more than perfunctory. That the whole thing was done in one day does not necessarily damn it. The administration of justice is supposed to be prompt. More often than not it is criticized because it is not prompt enough. Uwaniwich admitted he was guilty. What good purpose would have been served by delay ? In the absence of a motion for a continuance the presumption must be that counsel did not think one was needed. Cf. Maye v. Commonwealth, Ky., 386 S.W.2d 731, 733 (1965); Jones v. Commonwealth, Ky., 388 S.W.2d 601 (decided March 26, 1965).

It seems appropriate to conclude with a reminder that a judicial system exists “not only to exonerate the unjustly accused, but to convict the guilty.” '

The judgment is affirmed.

      .“We have frequently held that, following a plea of guilty, the Commonwealth may introduce evidence to increase the punishment to be inflicted, and the defendant may produce evidence in an effort to mitigate the punishment.” Commonwealth v. Howard, Ky., 287 S.W.2d 926, 927 (1956).

      . Editorial, “The Rights of the Guilty.” Wall Street Journal, April 26, 1965.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Winona SNYDER et al., Appellees.
    Court of Appeals of Kentucky.
    May 14, 1965.

      Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, C. E. Skidmore, Dept, of Highways, Frankfort, L. A. Faurest, Elizabethtown, for appellant.
    William P. Donan, Greenville, W. Gordon Her, Owensboro, for appellees.
   DAVIS, Commissioner.

The appellees obtained judgment for $20,-000 in this highway condemnation action. The Department of Highways asks that the judgment be reversed on the grounds (1) that prejudicial evidence was admitted from an unqualified witness, and (2) the evidence fails to support the verdict.

Appellees are the owners of a tract of land which contained 131.4 acres before the taking. The land lies on the east side of Green River at the boundary line separating Ohio and Muhlenberg counties. The appellant recognizes that a portion of the land is underlain with a seam of Western Kentucky No. 9 coal in merchantable quantity. There is some contrariety in the proof as to the total acreage of the coal deposit; there is also some difference in opinion as to whether some of the coal lies beneath such great overburden as to preclude its being extracted by the strip mine method.

There was no improvement on the land at the time of taking. The record is confusing as to just what public roadway afforded access to the tract prior to the taking, although there is no question that access to the navigable Green River was available to the land before the taking.

The right-of-way taken is for the West Kentucky Parkway; the right-of-way is a strip running in an east-west direction, containing about 14.34 acres. The taken strip substantially divides the original boundary in two equal-sized tracts. The West Kentucky Parkway is a non-access highway, and there is no provision for access between the severed tracts.

A mining engineer testified for the Department and expressed his opinion that the coal resting under overburden in excess of seventy feet could not be economically recovered by the strip mine method; it was the opinion of the witness that underground mining methods would be required to sever such heavily overlain coal. Witnesses for the appellees, experienced in mining procedures in the area, disputed this contention.

It was shown that the normal pool stage of the adjacent Green River is at 364 feet above sea level and that the elevation of the top of the coal seam ranges from ten to fifteen feet below that elevation. It was explained that this condition creates some risk in mining the coal, but would not preclude such mining.

The 14.34 acres of taken right-of-way include 1.79 acres of strippable coal and 7.0 acres of coal recoverable by underground methods (according to the Department’s evidence). Also in the taking are S.S5 acres under which no coal appears. An additional 1.38 acres of strippable coal will be lost because of its proximity to the new road and the requirement that it be left in place for lateral support of the highway; in the same manner another 1.75 acres of the deep mine coal will be unavailable.

It was shown that coal had been withdrawn from under six acres by deep mine methods more than fifty years ago. The precise location of that old works was not known to the witnesses for either side, although it is suggested for appellant that the six acres of coal may have come from under the seven acres of deep mine coal embraced in the right-of-way.

We have had occasion to be amazed by the wide range of evaluation evidence in the many condemnation cases which have crowded our docket in recent months, but we do not recall one in which the disparity is so marked as it is in the present case. We summarize the valuation evidence:

Appellant’s Witnesses

Before Value After Value Difference

$29,048 $23,448 $5,600

$33,246 $28,093 $7,105 (sic)

$23,000 $20,486 $2,514

$26,280 $24,400 $1,880

Appellees’ Witnesses

Before Value After Value Difference

$183,400 $13,100 $170,300

$ 75,000 $10,000 $ 65,000

$ 69,000 $11,500 $ 57,500

$ 90,000 $20,000 $ 70,000

$ 80,000 $23,000 $ 57,000

In its verdict the jury found the before value to be $40,000 and the after value to be $20,000; it accordingly awarded to the appellees the sum of $20,000 as the difference.

The first question raised by appellant relates to the qualification of the witness Clyde Brown, Jr. This witness had first stated the before value to be $183,400 and the after value as only $13,100, with the difference being $170,300. However, a full reading of his evidence discloses that he substantially amended his evidence so that he effectively testified that he meant to place a value of $1200 to $1400 per acre only on those acres having underlying coal; he had said that he considered that 27 to 30 such acres were in the original tract. During the course of Brown’s direct testimony the following occurred:

“Q27. In your business of buying and leasing coal, are you familiar with the coal values of coal lands values in Ohio and Muhlenberg Counties?
“A. I spent some two or three million dollars, I have been pretty good at it, I have made a lot of mistakes sometimes.
“Q28. But are you familiar with the value of this particular tract?
“A. Well I offered them $40,000 for it.
“Mr. Faurest: We object to that offer.
“Court: You will not consider what he offered, that is not proof.”

It was developed in the testimony of witness Brown that he had had wide experience in coal mining and in purchasing coal properties. Obviously the trial court correctly sustained the appellant’s objection to the statement that Brown had offered $40,000 for the boundary. (Hindsight might suggest that the appellant would have fared better by foregoing the objection, but that is not before us.) The witness told in great detail how he believed the coal could have been taken profitably from the land before the taking. He explained why he believed that the taking virtually destroys the coal value of the property. We are of the view that he was sufficiently qualified by training and experience to make the expressions of opinion he did, and that the court properly overruled appellant’s motion to strike his evidence. Com. Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, 475.

Neither are we able to find merit in appellant’s second contention. As heretofore mentioned, there was an amazing gulf between the values fixed by witnesses for the respective parties. Nevertheless, there was an abundance of evidence supporting the proposition that similar coal lands in the immediate area had sold for sums substantially higher than the amount allowed by the jury. We confess that the verdict appears to be quite liberal, but we are not able to say that it is so inordinately generous as to appear at first blush to have been rendered as the result of passion and prejudice. We do not detail the factors ascribed by witnesses for appellees as bases for their evaluations; it suffices to say that we have carefully examined the record and are impelled to the conclusion that the evidence for appellees is of sufficient probative value to sustain the verdict. Under these conditions we may not disturb the judgment. Com. Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, 478.

The judgment is affirmed.


text:
    Maceo DAVENPORT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 14, 1965.
    Maceo Davenport, pro se.
    Robert Matthews, Atty. Gen., George Rabe, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Maceo Davenport, a prisoner at the state penitentiary, appeals from an order of the Montgomery Circuit Court overruling his RCr 11.42 motion to set aside a judgment sentencing him to life imprisonment as a habitual criminal. KRS 431.190.

The motion alleged the following grounds: (1) Improper indictment, (2) Failure of the court to instruct on the whole law of the case, (3) Failure of the court to give written instructions, (4) Lack of evidence to corroborate the testimony of accomplices, (5) Refusal of the court to appoint counsel to defend, and (6) Noncompliance with KRS 203.340, which requires a mental examination for any person indicted as a twice-convicted habitual criminal.

The circuit court appointed two attorneys to assist the movant in this proceeding, and he was brought to Mt. Sterling for a hearing, following which the motion was overruled.

The gist of the criticism of the indictment seems to be that it was “without merit.” That is not a sufficient specification to raise an issue. Moreover, no defect in an indictment short of one that completely vitiates it affects the validity of the proceeding. Cf. RCr 6.06; Warner v. Commonwealth, Ky., 385 S.W.2d 77 (1964); Langdon v. Thomas, Ky., 384 S.W.2d 508 (1965); King v. Commonwealth, Ky., 387 S.W.2d 582 (1965).

Failure of the court to instruct the jury properly and in writing and insufficiency of the evidence to support a conviction are likewise errors that do not invalidate the judgment and are not reviewable in an RCr Í1.42 proceeding. Maye v. Commonwealth, Ky., 386 S.W.2d 731 (1965); King v. Commonwealth, Ky., 387 S.W.2d 582 (1965).

Neither does noncompliance with KRS 203.340 void the conviction. Etherton v. Commonwealth, Ky., 379 S.W.2d 730 (1964).

This leaves only the nonappointment of counsel to be considered. The right to counsel is, of course, absolute. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963); Williams & Sanders v. Commonwealth, 33 Ky.Law Rep. 330, 110 S.W. 339 (1908). It can, however, be waived, if the waiver is made “intelligently, competently, understandingly and voluntarily.” Bute v. People of State of Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986 (1948).

In this case the record shows and movant admits that the trial judge asked him if he wanted counsel and he replied that he did not. Our investigation, th*en, is directed to whether he waived counsel “intelligently, competently, understandingly and voluntarily.” Tanner v. Commonwealth, Ky., 375 S.W.2d 694, 695 (1964).

The trial was held in 1952. The movant theretofore had been convicted of housebreaking in 1944 and storehouse breaking in 1950. At the hearing on this motion to vacate he testified that in the 1944 case counsel had been appointed for him and had advised him to plead guilty because he would be placed on probation. Instead, he got two years and served 18 months of the sentence in prison. In the 1950 incident he listened to the blandishments of the prosecutor and, hoping for mercy, was confounded by another two-year sentence. He gave as his reason for declining an attorney in the 1952 case the fact that the only time he had ever had counsel “I done what he told me and it didn’t do me no good. So I just didn’t know if a lawyer would help me. I couldn’t see where he could help me out none, and I was with two other fellows at the time, two companions. They was tried the day before I was on the same charge. Both of them had a much worse record than I did. They was indicted — had three convictions in the same court, three different charges. One got two years, one got three years and I got life. So I couldn’t see where nothing could do me no good at the time.”

Movant had an eighth grade education in Bath County, Kentucky. He knew from his previous court experience and from the judge’s inquiry in the 1952 case now under attack that he could have an appointed counsel. We conclude from a reading of the testimony that he had enough intelligence and understanding to know what he was doing when he voluntarily elected to go to trial without a lawyer. The proper course for him now is to behave himself in such a manner that he can eventually be released on parole.

The judgment is affirmed.


text:
    James HALLAHAN, Jefferson County Court Clerk, et al., Appellants, v. E. P. SAWYER, Jefferson County Attorney, Appellee.
    Court of Appeals of Kentucky.
    May 18, 1965.
    Gerald Kirven, Louisville, Robert Matthews, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., Frankfort, for appellants.
    Cecil Davenport, Asst. County Atty., Louisville, for appellee.
   WILLIAMS, Judge.

This action was instituted in the Jefferson Circuit Court under the authority of KRS 418.020 and KRS 418.040. The sole question before the Court was whether HB 198 (1964, c. 53), by amending KRS 118.-040 extending the voting hours to 6:00 p. m., and fixing voting on Standard Time, applies to primary as well as other elections. The trial court held it did not; hence this appeal.

HB 198 reads as follows:

“AN ACT relating to voting hours. Be it enacted by the General Assembly of the Commonwealth of Kentucky: KRS 118.040 is amended to read:
“The polls shall be opened at 6 a. m., Standard Time, and kept open continuously until 6 [5] p. m., Standard Time, of the same day. Before receiving any ballots, the officers of election shall cause to be proclaimed that the election is opened.”

We take notice that the Legislature italicizes words which are added by amendment and places in brackets words which are deleted by amendment.

KRS 118.040 now reads as follows:

“The polls shall be opened at 6 a. m., standard time, and kept open continuously until 6 p. m., standard time, of the same day. Before receiving any ballots, the officers of election shall cause to be proclaimed that the election is opened.”

KRS 119.040 provides:

“The primary election for the nomination of candidates by political parties to be voted for at the next regular election shall be held on the first Tuesday after the fourth Monday in May of each year between the hours of 6:00 A.M. and 5:00 P.M., at the regular polling places in each election precinct.”

In order to effect a change in the voting time for primary elections it would be necessary to find that HB 198 amended by implication KRS 119.040. It is earnestly and ably argued by the appellant that the Legislature intended to change the voting hours of all elections, thereby avoiding confusion between general elections and primary elections.

In Dreidel v. City of Louisville, 268 Ky. 659, 105 S.W.2d 807 (1937), it was said:

“A statute may be repealed by the express provision of a subsequent statute or by implication when the provisions of the earlier and later statutes are repugnant to each other and irreconcilable, or when the subsequent statute covers the whole subject-matter of the former and is manifestly intended as a substitute for it. Exall v. Holland, 166 Ky. 315, 179 S.W. 241.
“It is a well-settled principle of statutory construction that repeals by implication are not favored and will not be declared except it be impossible to permit both statutes to stand. Louisville & N. R. Co. v. Jarvis, 87 S.W. 759, 27 Ky. Law Rep. 986.”

The same rules govern the construction of the amendment under consideration in this case.

Before a statute shall be considered amended by implication by a later statute, the two statutes must be repugnant to each other and be irreconcilable, or the later act must cover the whole subject of the earlier act.

The law pertaining to general elections is found in C. 118, Kentucky Revised Statutes. The law pertaining to primary elections generally is found in C. 119, Kentucky Revised Statutes. HB 198 specifically amended KRS 118.040, but made no reference to KRS 119.040. There are several dissimilarities between a general election and a primary election, and it cannot be said that holding the two at different hours is impossible. The fact that one statute provides certain hours for general elections does not cause it to be repugnant to one which provides different hours for primary elections. Although the title of HB 198 covers the whole subject, including primary elections, the body of the Act does not, so the “whole subject” rule is not applicable.

It is not apparent to us that the Legislature intended to change the voting hours of primary elections, else it would have amended that section of the statutes which specifically sets up primary election voting hours. Consequently, the polls at primary elections shall be opened at 6:00 a. m. and closed at 5:00 p. m. on standard time.

The judgment is affirmed.