text:
    W. C. RAU, Jr., Appellant, v. Mrs. Bernice CHRISTY, Individually and as Independent Executrix of the Estate of Ross Christy, Deceased, Appellee.
    No. 4262.
    Court of Civil Appeals of Texas. Waco.
    Oct. 15, 1964.

      Markwell, Stubbs, Decker & Dalehite, Galveston, Bob Owen, Alvin, for appellant.
    Barker, Barker & Coltzer, Galveston, fqr appellee.
   WILSON, Justice.

Judgment in this non-jury trespass to try title case was rendered for appellee as plaintiff and cross-defendant.

Appellant Rau was the record owner of an undivided one-half interest in the land in question, the other one-half interest being owned by his kinsmen, the Junemanns. Appellee Christy became a tenant of the land under lease from the Junemanns for the two-year period, 1946 to 1948, according to the unchallenged finding of the trial court. There is nothing in the record to show he was not thereby a tenant also of Rau, who was a tenant in common. In 1948 one of the Junemanns, as agent, was named grantee in deeds from the other Junemanns to their “right, title and interest” in the land, and he thereupon executed a deed to the tenant Christy purporting to convey the entire title. Appellee Christy asserts title by adverse possession under the five and ten year statutes.

It is Christy’s position that the conveyance to him by Junemann, who was actually in the position of a cotenant, purporting to convey the entire common property, when followed by actual adverse possession, amounts to a disseizin of the other coten-ant, appellant Rau; and that the recording of the conveyance followed by possession constitutes notice to Rau of repudiation of the cotenancy. Such decisions as Republic Production Co. v. Lee, 132 Tex. 254, 121 S.W.2d 973, 978 and cases there cited are relied on.

This rule is inapplicable where the grantee’s original entry is as a tenant. In the latter situation the recording of the deed and possession by the tenant “would not be evidence of an adverse holding, or the repudiation of the tenancy.” Udell v. Peak, 70 Tex. 547, 7 S.W. 786, 788. See Houk v. Kirby Petroleum Co., Tex.Com.App., 65 S. W.2d 496, 499; Achille v. Baird, Tex.Civ.App., 361 S.W.2d 439, writ ref. n. r. e.

If Christy’s possession is regarded as a continuation of his original tenancy, he was tenant of all cotenants, including Rau, and he was not permitted to set up title in himself until notice of termination or repudiation of the tenancy is given to the landlord. Killough v. Hinds, 161 Tex. 178, 338 S.W.2d 707, 709; Vasquez v. Meaders, 156 Tex. 28, 291 S.W.2d 926, 929; Robinson v. Smith, 133 Tex. 378, 128 S.W. 2d 27. If he is regarded as having succeeded to the status, rights and duties of the Junemanns as Rau’s cotenant, yet having entered as a tenant, Christy was required also to first show notice of repudiation of the cotenancy relationship. In the absence of actual notice, as here, constructive notice to the other cotenant must consist of acts of such clear and unequivocal nature and notoriety and be so distinctly hostile to his rights that the intention to disseize is clear and unmistakable. Poenisch v. Quarnstrom, Tex., 361 S.W.2d 367, 370; Phillipson v. Flynn, 83 Tex. 580, 19 S.W. 136.

Appellant says there is no evidence to support the court’s findings to the effect that constructive notice of repudiation and the required adverse possession was established, and that he was entitled to judgment. He says, also, the evidence is insufficient.

Appellee points first to what is termed public knowledge of Christy’s claim of ownership. Testimony of this came from six witnesses who testified that Christy had told them he had bought the land, or was its owner. These included two who were Christy’s employees, one who was his neighbor across the road, one who was his partner in a hay business, another, a weekly visitor whose relationship was “closer than ordinary friendship.” Only one of these attempted to estimate the time at which Christy made the asserted statements. The evidence, in our view, falls far short of the required showing of notoriety.

Christy’s “activities” are suggested as constituting conduct from which constructive notice may be inferred. The building of a barn is relied on. The bam was not on the land in suit, but was built on adjacent land. The building of a fence is urged. It replaced an older one which “wasn’t too good a fence.” These acts were inconsistent neither with tenancy nor possession which is presumed in right of common title for the joint benefit of all tenants in common. Killough v. Hinds, 161 Tex. 178, 338 S.W.2d 707, 710; 11-A Tex.Jur., Cotenancy, Sec. 31, p. 517; 15 Tex.Jur.2d, Sec. 28.

The evidence establishes Christy began using the land as a tenant for use in operation of a dairy in 1945. He continued to so use it until 1952. It was then farmed by him with other land for five years, and was thereafter used for pasturage of livestock. These are the purposes for which the land had always been used. There is nothing about this use which could constitute notice of repudiation of tenancy or claim that his possession was not in right of common title. If Christy’s acts “are susceptible of explanation consistent with the existence of the common title then such acts cannot be such as to give constructive notice to the cotenants out of possession.” Todd v. Bruner, Tex., 365 S.W.2d 155, 160. See Killough v. Hinds, above.

Payment of taxes by Christy is urged. “Possession and payment of taxes on the property do not constitute the assertion of an adverse right.” Todd v. Bruner, above; Poenisch v. Quarnstrom, Tex., 361 S.W.2d 367, 369; Phillipson v. Flynn, 83 Tex. 580, 19 S.W. 136; Alexander v. Kennedy, 19 Tex. 488, 496.

The sole circumstance of “non-claim” by Rau, under these conditions, will not manifest notice of repudiation, in our opinion. He resided over 200 miles from the land at all times. He first learned of the deed to Christy in 1959, three years before institution of this suit. He testified that in 1936 one of the Junemanns, his uncle, asked him what he intended to do with the property, and he “told him nothing at the present time. He said, ‘let’s leave the property together, because it would be worth more as a larger tract.’ ” After his discharge from the military service in 1947 Rau again talked to his uncle, a cotenant, and inquired whether anything had been done with the property. He was told, “No, nothing.” In Moore v. Knight, 127 Tex. 610, 94 S.W.2d 1137, relied on by appellee, there was evidence of nonclaim in the face of inconsistent acts for 44 years. In Illg v. Garcia, 92 Tex. 251, 47 S.W. 717, also relied upon, the period was 41 years.

There is no other evidence pointed to, or which we find that Rau did not claim the interest of a tenant or tenant in common in the property. Appellee asserts Christy was never a tenant of Rau. There is no evidence to support the assertion. The burden of proof on these issues rested upon appellee; not on appellant. Phillipson v. Flynn, 83 Tex. 580, 19 S.W. 136, 138.

In our opinion there is no evidence to support the findings relating to notice. The judgment is reversed, and judgment here rendered that appellee take nothing, and appellant have judgment on his cross-action for an undivided one-half interest in the land in controversy.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    Victoria KENDRICK et al., Appellants, v. Clyde FIELDS, Doing Business as Hyfi Coal Company et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.
    Rehearing Denied Dec. 18, 1964.
    V. R. Bentley, Pikeville, for appellants.
    Baird & Hays, Pikeville, for appellees.
   MONTGOMERY, Judge.

The Workmen’s Compensation Board denied Victoria.Kendrick et al. relief on December 3, 1963. A petition for review was filed on January 20, 1964. This petition, as amended, was dismissed because it had been filed more than twenty days after the Board’s order had been made. On appeal Victoria Kendrick et al. say that no copy of the Board’s order was ever received, and urge other grounds for reversal, which are not considered.

KRS 342.275 provides that * * * a copy of the award shall immediately be sent to the parties in dispute.” KRS 342.285 governs the taking of an appeal from the Board’s award to the circuit court and provides that “ * * * either party may, within twenty days after the rendition of such final award or order of the board, by petition appeal to the circuit court * *

The language of the statute is plain as to the time in which to appeal. The time within which a petition for review must be filed is mandatory, and if it is not complied with the circuit court acquires no jurisdiction. Carnahan Oil & Refining Company v. Miller, 232 Ky. 78, 22 S.W.2d 430; Department of Highways v. Matney, 290 Ky. 440, 161 S.W.2d 617. See Commonwealth Dept. of Highways v. Crutchfield, Ky., 365 S.W.2d 102, for computation of time.

Appellants sought to avoid the rule by showing that neither they nor their attorney had been notified of the order immediately after its rendition. On this factual issue, the court found that neither petitioners nor their counsel had received a copy of the order, and further found that the order of the Board, dated December 3, 1963, had been mailed immediately by the Board to counsel for the petitioners and that this met the statutory requirements. The petition was then dismissed as having been filed too late.

Under Jones v. Davis, 246 Ky. 293, 54 S.W.2d 681, appellants argue that the failure to receive the notice excuses them. Jones v. Davis does not so hold. It does say that it is presumed that the Board discharged its statutory duty and that a party cannot be deprived of an appeal by a failure of the Board to discharge such duty, but in this case, on testimony heard by the court, it was found that the Board had performed its statutory duty.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    Ted BLAIR, Appellant, v. CITY OF PIKEVILLE et al., Appellees.
    Court of Appeals of Kentucky.
    June 5, 1964.
    Rehearing Denied Dec. 18, 1964.

      Joe Hobson, Prestonsburg, V. R. Bentley, Pikeville, for appellant.
    James P. Ramsey, Dan Jack Combs, Hobson & Stephens, O. T. Hinton, Pike-ville, for appellees.
   DAVIS, Commissioner.

Appellant Blair asks reversal of a judgment of the Pike Circuit Court denying his claim for damages against appellees, City of Pikeville and its contractor, Mitchell Preston. The appellant’s damage suit arose when appellee city, through its co-appellee Preston, constructed a sewer line over appellant’s Lots 40, 41 and 42 of T. J. Williamson Addition to the City of Pike-ville.

Appellant attacks the adverse judgment on these grounds: (1) The easement under which the city claims is invalid; (2) it was error to direct a verdict for the city; and (3) the court erred in the instructions given and in refusing the instructions offered.

Appellant acquired title to the three lots in question in 1932; at that time there was a residence on the property. In the chain of appellant’s title was a deed executed by T. J. Williamson which contained the following provision:

“There is reserved and excepted to T. J. Williamson, heirs and assigns and the City of Pikeville, the right to install and maintain a public storm and sanitary sewer over and through said lot, allowing connection to the second party.”

It was not until 1957 that the appellee city undertook to exercise any right it had under the quoted deed provision.

By his complaint, appellant charged that during 1957 and 1958 the city, through its contractor, Preston, while constructing a road-way or sewer line over, through and across appellant’s lots, “wrongfully, wil-fully, wantonly, oppressively, and maliciously” cut down and destroyed various trees, fences, hedges, arbors, flowers, plants, concrete steps, complete water system, water lines, gas lines, plumbing and fixtures of appellant. Additionally, appellant charged that the activities of the appellees had damaged his residence building, including damage to its interior, roof and foundation. Appellant further claimed that his outbuildings and sidewalks had been damaged incident to the acts of appellees, and laid his claim for damages in the sum of $10,000.

At the conclusion of all the evidence the trial court directed a verdict in behalf of the appellee city, but submitted the question of appellee Preston’s liability to the jury. The trial court’s instructions informed the jury that appellee Preston had a right to construct the line, but that liability should be imposed upon him if he constructed the sewer “in an intentional, wilful and wanton manner, and thereby damaged” appellant’s property. The court further instructed the jury that if it believed that appellee Preston performed the work according to the contract and pursuant to the plans and specifications, “in a careful and prudent manner,” he was not liable for any damage. The jury returned its verdict for appellee Preston.

It is the contention of appellant that the city took nothing by the provisions of the deed just recited, and to support that view appellant relies upon the cases holding that a reservation or exception in favor of a stranger to the deed is void or inoperative. Appellant urges that his view is fully supported by Beardslee v. New Berlin Light & Power Co., 207 N.Y. 34, 100 N.E. 434, Ann. Cas.1914B, 1287; Flynn v. Fike, 291 Ky. 316, 164 S.W.2d 470; Slone v. Ky. W. Va. Gas Co., 289 Ky. 623, 159 S.W.2d 993; and Allen v. Henson, 186 Ky. 201, 217 S.W. 120.

We renounced the rule invalidating reservations to a stranger in Townsend v. Cable, Ky., 378 S.W.2d 806. Moreover, it is not believed that the rule would have controlled this case in any event, since Williamson was a party to the deed, and the reservation was to him." Obviously, by the terms of the quoted deed, Williamson reserved the easement, so it did not pass to appellant; we need not determine whether Williamson effectively dedicated the easement to the appellee city, since appellant has no interest in that matter, and there is no dispute between Williamson and the city.

It is noted that the easement did not contain language fixing its precise location, nor were details inserted fixing its width, depth or other specifications. In such circumstances, reason and authority dictate that the rights obtained by the dominant owner are those necessary for the reasonable and proper enjoyment of the easement. By parity of reasoning, the owner of the servient estate retains the right of full dominion and use of his land, except so far as a limitation of his right is essential to the fair enjoyment of the easement. Maxwell v. McAtee, 9 B.Mon. (48 Ky.) 20; 28 C.J.S. Easements § 75; Horky v. Ky. Utilities Co., Ky., 336 S.W.2d 588; 17A Am.Jur., Easements, § 112; Vol. 3, Tiffany on Real Property, 3rd Ed., § 803.

The principles involved were recognized in Louisville & N. R. Co. v. Pierce, Ky., 254 S.W.2d 943, in which it is said:

“Generally, the rule has been established that if an easement is granted or reserved in general terms which do not fix its location the owner of the serv-ient estate has the right in the first instance to designate the location of the easement. The right, however, must be exercised in a reasonable manner with due regard to the rights of the owner of the dominant estate.”

Thus, is may be said that the rights and duties of the dominant and servient owner are correlative; neither may unreasonably exercise rights to the injury of the other. Cf. Central Ky. Natural Gas Co. v. Huls, Ky., 241 S.W.2d 986, 28 A.L.R. 2d 621.

It is recalled that the appellant acquired the property in 1932, at which time a dwelling was already constructed. The easement had already been created, but not exercised. We think it is at once apparent that the city could not reasonably have demanded the removal of the residence from the lot —particularly in the absence of a showing that the easement could not otherwise be utilized. In our view, the construction of the residence on the servient lots was clearly an election by the servient owner that the easement be not located so as to unreasonably damage or interfere with the use of the residence. There is no showing in the record before us that the particular route of the sewer line was the only reasonable one which could have been selected by the dominant owner. It may not be said as a matter of law that the methods used were reasonable. It was shown that appellee Preston had considered it necessary “to block out a roadway for the line” in order to get machinery and materials to the site of the sewer line. Preston testified that he “had permission” (presumably from the city) to use any part of the right of way for storage of debris or rock or “what have you” until the sewer line was laid, “and then use the same stuff to refill the ditch.” Since there was no specific delineation of the right of way, it is difficult to understand how the city could have assumed to grant such authority to appellee Preston.

Neither the city nor Preston may be absolved from liability on the mere basis that the work was done without negligence according to plans and specifications. First, there must be a determination that the plans and specifications were in furtherance of a reasonable use of the easement, considered in light of the existing use of the property by appellant. It may not be doubted that had the plans required demolition of the residence, a serious question as to their being reasonable would have been presented. Only a difference in degree appears on a showing of damage to the structure rather than destruction of it.

Appellant urges that he is not required to show negligence. He asserts that the damages claimed arise from an unwarranted taking of his property by appellee city, without compensation, and predicates his right of recovery on § 242, Ky.Constitution. In support of this theory he relies upon City of Danville v. Smallwood, Ky., 347 S.W.2d 516; City of Newport v. Rosing, Ky., 319 S.W.2d 852; City of Cumberland v. Central Baptist Church of Cumberland, 305 Ky. 283, 203 S.W.2d 57; City of Covington v. Parsons, 258 Ky. 22, 79 S.W.2d 353; Jefferson County v. Bischoff, 238 Ky. 176, 37 S.W.2d 24; Perry County v. Townes, 228 Ky. 608, 15 S.W.2d 521; Floyd County, Ky. v. W. Va. Ky. Hardware & Supply Co., (6 Cir.) 59 F.2d 895; Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695.

Appellee city counters with the reasoning that the instant case is distinguishable from the cited authorities on the premise that those cases involved damage to an adjacent property owner, whereas in this case the city had a right on the property involved. We are unable to accept that argument. In the cited cases the sovereign had acquired a right of way; the same is true here. If the sovereign extends its activities beyond the acquired right of way to the damage of the abutting owner, it seems to us that there is a taking within the purview of § 242, Ky.Constitution.

Neither is appellee Preston absolved from all liability upon a showing that he complied with the plans and specifications without negligence. If the city acted unreasonably, thereby falling within the “reverse condemnation” theory of § 242, Ky.Constitution, then appellee Preston may not be relieved of liability just because he followed the plans. Chesapeake & Ohio R. Co. v. Wadsworth Elec. Mfg. Co., 234 Ky. 645, 29 S.W.2d 650; Terhune v. Gorham, 225 Ky. 249, 8 S.W.2d 431; Black Mountain Corp. v. Houston, 211 Ky. 621, 277 S.W. 993.

Upon anothefftrial, the court will submit to the jury whether the path and width of the easement selected by the city were reasonable. The jury shall determine whether the method of construction was reasonable. If that preliminary inquiry is resolved against the appellees, then the jury shall be instructed to award damages to appellant against the appellees, jointly and severally, as the jury may believe proximately resulted from the unreasonable activity.

Since appellant disclaimed reliance upon negligence as a basis for recovery, we refrain from expression of any view on possible liability of either appellee on that basis.

The judgment is reversed for proceedings consistent with this opinion.


author: WADDILL, Commissioner.

text:
    DISTRICT UNION LOCAL 227, AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, George Kaelin and Harvey Hatfield, Appellants, v. Leopold FLEISCHAKER, t/d/b/a Fleischaker Company, Appellee.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.
    Rehearing Denied Dec. 18, 1964.

      Herbert L. Segal, John F. Stewart, Louisville, for appellants.
    Marshall B. Woodson, Jr., Robert L. Durning, Jr., Louisville, for appellee.
   WADDILL, Commissioner.

Appellants, District Union Local 227, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, (hereinafter referred to as the Local), and two of its officers seek to reverse a judgment in favor of appellee, Leopold Fleis-chaker, d/b/a Fleischaker Company. The judgment was entered on a verdict awarding appellee $30,000 compensatory and $20,-000 punitive damages based upon its finding that appellants had unlawfully damaged ap-pellee’s meat packing business pursuant to a formed conspiracy.

The Local has represented appellee’s employees since 1945. During 1952, when appellants were attempting to organize the employees of F. B. Purnell Sausage Company, the officers of the Local sought to persuade appellee to cease supplying Purnell. When he refused to do so they became angry and told him, in substance, that he would regret his decision. Thereafter his relations with the Local became progressively worse with the result that his previously rising profits and sales began to decline sharply, his attempts to negotiate new contracts with the Local were unsuccessful and his plant was struck during 1959. This action was filed in December, 1959, to recover damages pursuant to KRS 437.110 and 120 and appellee’s business ceased operations the following September.

Appellants contend that the National Labor Relations Board, (hereinafter referred to as the Board), has exclusive jurisdiction of this controversy since it involves unfair labor practices. They rely on San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, wherein the jurisdiction of the California courts to grant damages arising out of an unfair labor practice was held to be pre-empted by the National Labor Relations Act, (hereinafter referred to as NLRA), even though the Board had declined to assert its jurisdiction. This so-called “no-man’s land,” wherein there was no forum that would grant redress to a party whose grievance fell short of the Board’s self-imposed jurisdictional standards and was nevertheless outside the reach of state tribunals, was soon the subject of congressional action. See Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv. L.Rev. 1086. Five months after the San Diego opinion was rendered, Congress amended the NLRA in an effort to remedy this situation. Pub.L. 86-257, Title VII, Sec. 701(a), 73 Stat. 519; Conf.Rep. No. 1147, U.S.Code Cong, and Adm.News, 1959, Vol. 2, page 2509. These amendments became effective on November 14, 1959, which was prior to the institution of this action and are therefore applicable to the instant case.

As amended in 1959, 29 U.S.C. § 164(c) now provides:

“(1) The Board, in its discretion, may, by rule of decision or by published rules adopted pursuant to the Administrative Procedure Act, decline to assert jurisdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction : Provided, That the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959.
“(2) Nothing in this subchapter shall be deemed to prevent or bar any agency or the courts of any State or Territory (including the Commonwealth of Puerto Rico, Guam, and the Virgin Islands), from assuming and asserting jurisdiction over labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction.”

Recognizing that Congress has vested the Board with the fullest jurisdictional breadth permissible under the Commerce Clause (N. L.R.B. v. Reliance Fuel Oil Corp., 371 U.S. 224, 83 S.Ct. 312, 9 L.Ed.2d 279), and assuming that the instant action is based in part on conduct arguably within the regulatory powers of the Board and that appellee’s business affected interstate commerce so as to bring it within the jurisdiction of the Board (29 U.S.C. § 160(a)), the determinative question for our consideration is whether the Board has declined to assert jurisdiction over a class of employers of which appellee is a member. See McCoid, Notes on a “G-Stringa Study of the “No-Man’s Land” of Labor Law, 44 Minn.L.Rev. 205.

By decisions of November 14, 1958, the Board established a $50,000 annual inflow or outflow standard for asserting its jurisdiction over non-retail enterprises (Siemons Mailing Service, 122 NLRB No. 13) and a $500,000 annual gross sales standard for asserting its jurisdiction over retail enterprises (Carolina Supplies & Cement Co., 122 NLRB No. 17). The propriety of such standards was recognized in the Reliance case, (supra), and in N.L.R.B. v. Carteret Towing Co., 4 Cir., 307 F.2d 835. In the absence of any revision of these standards after the effective date of the Sec. 164(c) amendment, we conclude that they are intended to determine whether the Board has exclusive jurisdiction to decide the issues in controversy. Comment, 108 U.Pa.L.Rev. 587 at 594—596; Cohen, Congress Clears the Labor No Man’s Land, 56 Nw.U.L.Rev. 333 at 342, ft. nt. 42.

Applying these standards to the instant case we observe that appellee was engaged in an essentially non-retail business. But when we seek to discover the effect of his business on interstate commerce by the outflow or inflow yardstick the record is practically silent. Appellants did show that one customer used a portion of ground beef, sold to it by appellee, in Indiana, but the total purchases were less than $4,000 per year. Even if we considered ap-pellee as a retailer, his gross sales were shown to have been substantially less than $500,000 since 1956. Under these circumstances it is apparent the Board has declined jurisdiction and the trial court properly held it had jurisdiction.

Appellants urge that they were entitled to a directed verdict on the ground that appellee failed to prove a claim against them. Appellee brought this action under common law conspiracy as implemented by KRS 437.110(2) which states as follows:

“No two or more persons shall confederate or band themselves together and go forth for the purpose of molesting, damaging or destroying any property of another person, whether the property is molested, damaged or destroyed or not.”

For a violation of this section, KRS 437.120 provides for actual and punitive damages.

There was testimony showing that, subsequent to the disagreement between appel-lee and the officials of the Local in 1952, the Local refused to discuss the terms of the renewal contracts it entered into with ap-pellee but did negotiate contracts with competitors of appellee which gave these com-pañíes a substantial competitive advantage in lower resultant labor costs. Also, on at least one occasion, the officers of the Local called a meeting of appellee’s employees during working hours thereby disrupting ap-pellee’s work schedule. Later, during a strike and picketing at appellee’s plant by the members and officials of the Local in 1959, appellee’s non-union employees were intimidated with threats and acts of personal violence, and acts of violence were committed against appellee’s business property. From the testimony showing this course of conduct the jury could reasonably conclude that the Local and its officials unlawfully conspired among themselves to force appel-lee out of business and in pursuance thereto did cause damage to his business property. United Const. Workers v. New Burnside Vencer Co., Ky., 274 S.W.2d 787; United Mine Workers of America v. Meadow Creek Coal Co., 6 Cir., 263 F.2d 52.

In connection with the above argument the Local insists that there was no proof of agency so as to make it responsible for the alleged wrongful acts of its officials. The officers of a union occupy a position of influence and responsibility and when they act by reason of their official capacities they do so as agents of the union. White Oak Coal Co. v. United Mine Workers of America, 6 Cir., 318 F.2d 591. In the instant case one or more officials of the Local were shown to have been involved in the aforementioned activities by which the appellee claims to have been damaged. The evidence is adequate to support the jury’s determination of the Local’s liability.

Appellants urge that this action cannot be maintained because the acts complained of constitute legitimate union activities under the state and federal constitutions. See Blanford v. Press Publishing Co., 286 Ky. 657, 151 S.W.2d 440. In the instant case the acts in question were found by the jury to be in furtherance of a conspiracy to damage appellee’s business and hence it cannot now be validly contended that these acts were committed to achieve a legitimate purpose of the Local or its members.

Appellants next contend that this action is barred by the statute of limitations. KRS 413.140 provides that actions for conspiracy shall be commenced within one year after a cause of action accrues. Appellants contend that appellee had a right of action upon the happening of each overt act and that no damages could be recovered for acts occurring more than one year before the filing of the instant action. It is the contention of the appellee that so long as damages flow, and this without regard to the time of formation or the commission of overt acts, the statute of limitations does not begin to run. We believe that a conspiracy which contemplates a series of overt acts is a continuing conspiracy and the statute does not commence to run until the last overt act performed in compliance with the objective of the conspiracy has been accomplished. Under this view the claim for damages was not barred by the statute since the last overt act occurred within one year of the filing of the action. Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570; also see, Schessler v. Keck, 125 Cal.App.2d 827, 271 P.2d 588.

The International Union, with which the Local is affiliated, and its officials were made defendants in this action in the circuit court. The Local contends that each defendant was entitled to three peremptory challenges, KRS 29.290. Whenever the defendants in an action have no antagonistic interests they constitute only one “party litigant” as that term is used in the statute. Cf. Roberts v. Taylor, Ky., 339 S.W.2d 653 and case cited therein. The trial court found that the interests of these defendants were not antagonistic. Since all the defendants asserted the common defense of no conspiracy, this finding was correct and the request for additional peremptory challenges was properly denied. Also, there is no prejudice shown by the sustaining of objections to some questions asked on voir dire as the parties were granted considerable latitude in testing the jurors’ qualifications.

The appellants contend that the admission of evidence showing acts of violence and property damage which occurred during the strike was error. The complaint specifically alleged that such acts were committed in furtherance of the alleged conspiracy. It is our opinion that the trial court properly permitted the introduction of this evidence as it was competent for the purpose of showing the existence of the conspiracy as well as the damage that was inflicted upon appellee’s business property.

Appellants contend the instructions did not adequately present the issues in the case. Four instructions were given, the first of which submitted the question of whether the appellants conspired to damage and did damage appellee’s business. The second instruction defined conspiracy. The third instruction stated the amounts of damage that could be awarded appellee and the fourth instruction stated that nine or more jurors could write a verdict. We have carefully read the instructions and find that they correctly and succinctly cover the law applicable to this case.

The award of $50,000 is not excessive since it was rendered pursuant to an instruction permitting a maximum award of $200,000 which latter amount was supported by testimony showing loss of profits and a decrease in the value of appellee’s business in excess of this amount.

Finally appellants complain that the verdict was reached by lot. The statements of two members of the jury were introduced in support of appellants’ motion for a new trial. Both of these jurymen stated that after the jury had agreed that appellants were liable for damages the jurors had averaged their initial impression of the proper amount to award as damages. One of these statements reflected the impression that this quotient was binding; the other, by the foreman of the jury, disclosed that this amount was merely used to begin their deliberations on the question of damages and it was thought to be higher than the final award. The trial court’s finding that the verdict was not arrived at by lot was amply supported by the latter statement. As was said in Murphy v. Cordle, 303 Ky. 229, 197 S.W.2d 242:

“ * * * where there is no antecedent agreement by the jury to be bound by the resulting quotient, or, independently, it adopts an amount equal to the quotient after it is ascertained, the verdict is good.”

See also Louisville & N. R. Co. v. Marshall’s Adm’x, 289 Ky. 129, 158 S.W.2d 137. We conclude the method employed by the jury in arriving at a verdict did not require the granting of a new trial.

We have considered each ground that has been urged by appellants and find no reversible error.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Earnest M. HORTON, Appellant, v. UNITED STATES STEEL CORPORATION and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.
    Rehearing Denied Dec. 18, 1964.

      C. W. Napier, Hazard, for appellant.
    William A. Rice, Harlan, for appellee.
   PALMORE, Judge.

The appellant, Earnest Horton, an employe of the appellee United States Steel Corporation, was laid off on May 24, 1961, incident to a reduction in force. On May 18, 1962, he filed a workmen’s compensation claim against the company alleging that he was totally and permanently disabled by reason of the occupational disease of pneumo-coniosis. According to the proof thereafter taken, he had been extensively exposed to the hazard of such a disease during a career of some 45 years in the coal mines, and the defendant company was the employer in whose service he was last injuriously exposed. See KRS 342.316(12).

Competent medical witnesses who had examined the appellant gave opinions amply sufficient to support a favorable finding and award. However, the board chose to believe the opinion testimony of defense experts to the effect that he did not have an occupational disease, and it so found. This determination having been affirmed on a review by the circuit court, he appeals to this court.

Testimony of defense experts that is essentially noncommittal will not justify the rejection of a claim supported by positive medical opinions. Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961); Bethlehem Mines Corporation v. Davis, Ky., 368 S.W.2d 176 (1963). However, when the opinion evidence is in direct conflict the board’s decision is conclusive. Roark v. Alva Coal Corporation, Ky., 371 S.W.2d 856 (1963).

For the record, we quote from the testimony of Drs. E. R. Gernert (Louisville) and John H. Skavlem (Cincinnati) as follows:

Question to Dr. Gernert: “Doctor, in your opinion, does this man have pneumo-coniosis or silicosis?”
Answer: “He does not.”
Question to Dr. Skavlem: “Doctor, in your opinion does this man have silicosis, or pneumoconiosis or any other occupational disease?
Answer: “No.”

The Roark case being indistinguishable from this, the same principle governs.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    LOUISVILLE AUTOMOBILE CLUB et al., Appellants, v. DEPARTMENT OF INSURANCE, Commonwealth of Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.
    Rehearing Denied Dec. 18, 1964.

      Stanley B. Mayer, Louisville, Mayer, Cooper & Kiel, Louisville, of counsel, for appellant.
    J. Donald Dinning, Oldham Clarke, Mc-Elwain, Dinning, Clarke & Winstead, Louisville, and .Watters & Donovan, New York City, of counsel, for appellee.
   CLAY, Commissioner.

This is an appeal from a judgment of the Franklin Circuit Court confirming an order of the Commissioner of Insurance, which approved a change of automobile liability insurance rates upon the application of a licensed rating organization. The principal contentions are that the Insurance Commissioner violated “due process” by proceeding without a public hearing, and his approval of the new rates was arbitrary, unreasonable and capricious.

This proceeding originated under KRS 304.627. On November 15, 1962 the National Bureau of Casualty Underwriters, representing 95 insurance companies writing automobile liability insurance in Kentucky, filed a request for approval of revised rates on private passenger cars, commercial cars and garages. On January 2, 1963 the Commissioner, acting through one of his agents, notified the applicant that its “filing” had been approved, and the new rates became effective on January 9.

Shortly thereafter the Louisville Automobile Club informally protested this action and the Commissioner scheduled a public hearing. Proof was taken before Hon. James W. Stites, a Special Deputy Commissioner appointed to conduct the hearing. He filed a complete and comprehensive report in which he found the new rates valid and proper. They were reconfirmed by a subsequent order of the Insurance Commissioner. On petition for review under KRS 304.050 the circuit court approved and affirmed this last order.

Appellants contend the original order approving these revised rates was void because no public hearing was held in advance of the approval. The statute, KRS 304.627(6), does not require a public hearing. It provides in part:

"The commissioner may, when he deems it to be in the public interest, hold a public hearing on any filing before said filing becomes effective * * * »

In April 1959 the Commissioner had promulgated a regulation which purported to require a public hearing on all rate filings (made by a rating organization) which proposed “an increase in the cost to the public of any insurance * * * ”. However, this regulation also provided:

“(c) The commissioner may, by proper notice, inform the rating organization making the filing within 10 days after the receipt thereof that no public hearing will be required concerning such filing.”

The regulation also provided that nothing therein should be construed to change or vary any law pertaining to the regulation of insurance.

It is appellants’ contention that their right to “due process” was violated when the Commissioner failed initially to conduct a public hearing as provided in the regulation. The problem actually does not involve “due process” because appellants had no constitutional right to be heard. Such right (if any) is only created by KRS 304.628(4) (which was complied with in this case), KRS 304.634(2) (which is not here invoked), or by the regulation to which we have just alluded.

The Special Deputy Commissioner took the view that the regulation, to the extent it purported to require a public hearing in all cases falling within a designated category, was in conflict with the statutory provision (KRS 304.627(6) ) which left it to the discretion of the Commissioner in each case whether a public hearing should be held. This conclusion appears in conflict with the principle stated in Becker v. Yeary, Ky., 278 S.W.2d 632.

However, appellants acquired no right to be heard under the regulation. Section (c) thereof, which we have above quoted, provided that the Commissioner could dispense with a public hearing. He thus retained the discretionary authority vested in him by the statute.

It may be observed that even if the Commissioner should have held a public hearing before approving the rate increases, appellants have not shown themselves to be prejudiced because after a full public hearing the propriety of the rate increases was confirmed. The problem presented by appellants, which only concerns the effectiveness of the new rates during the period from January 9, 1963 to March 19, 1963, when the last order of the Commissioner was entered, would only arise if such order, which we will hereafter consider, was invalid. We do not find it so.

Appellants contend the Commissioner acted arbitrarily, unreasonably and capriciously in approving the new rates. At the outset we may observe that insurance companies are not public utilities and it is not the function or duty of the Commissioner of Insurance to fix insurance rates. This is a highly competitive business, and constantly changing conditions make necessary innumerable general and particular rate adjustments. The statute imposes upon the Commissioner of Insurance the function of promoting the public welfare by “regulating” insurance rates for the protection of both the public and the insurance companies. For this reason the Commissioner is authorized to review insurance rates from time to time and to regulate them only to the extent they shall not be “excessive, inadequate or unfairly discriminatory”. KRS 304.600, 304.625(1) (d). The question before the Commissioner was, and before us is, whether the proposed increased rates were "excessive”. Appellants concede it is incumbent upon them to show that the Commissioner’s decision on this issue waé arbitrary, unreasonable and capricious. ;

The establishment of an economically sound and adequate insurance rate in any category is obviously a complicated process. The premium rate must be correlated to loss experience. It is necessary for the insurance companies (and the Commissioner) to rely principally upon statistical data and a projected premium — loss ratio. The case for the rating bureau was made principally by its expert rating witness Mr. McNamara, whose testimony the Special Deputy Commissioner accepted as credible and as justifying the rate changes.

While admitting that the actuarial calculations of Mr. McNamara were accurate from a mathematical standpoint, it is appellants’ contention that improper factors were taken into consideration or that proper parties were omitted. It is said that it was not shown the companies represented by the Bureau were in a financial plight. The simple answer to that argument is that the statute does not require such a showing to justify a rate increase, and obviously it would not be in the best interests of the public or the insurance companies if rate changes could not be made prior to the threat of insolvency.

Appellants cite Thurman v. Meridian Mutual Insurance Company, Ky., 345 S.W.2d 635, for the proposition that an insurer’s solvency is a dominating consideration in the regulation of rates. That case involved an application to reduce a rate. In such a situation the ability of a company to operate on a lesser premium without impairing its financial stability is an important factor the Commissioner must take into account to protect the public interest. This consideration does not have similar significance when increases are sought.

Appellants next contend the new rates were based upon the loss experience of companies other than those represented by the Bureau. This is authorized by KRS 304.626(1) and also KRS 304.627(1).

It is next contended the loss experience was limited to $5,000-$10,000 liability coverage, whereas the compulsory coverage under KRS 187.330 was raised to $10,000-$20,000 in 1962, and, in any event, a substantial amount of this insurance is written with the 10/20 limit. The proof was that the Bureau did not have sufficient statistical data to utilize the 10/20 limit policy experience and that increasing the 5/101 rate by 15 percent was a universally accepted method of fixing a proper rate for the higher policy limits.

Appellants complain the Bureau did not base its calculations on its most recent experience with a new insurance plan (described as “merit rating” or “safe driver”) which was designed to reduce traffic accidents and. stimulate safer driving practices.. The answer is that the companies had not had sufficient experience under this new plan to use the data in formulating the-new rates. It is obviously impossible for a new rate, the day its becomes effective, to-reflect the most recent loss experience, and this was adequately explained by the Bureau’s expert witness.

It is further contended the Bureau, arbitrarily divided Kentucky into six territories for rate purposes. This territorial classification was shown to be a necessary and a reasonable one.

Appellants finally complain that while the new rates are to be utilized by the insurance companies represented by the-Bureau, they may not be justified or even: desirable from an individual company standpoint. This may be true, and it was-, anticipated by the Special Deputy Commissioner that deviations would perhaps be sought under KRS 304.631. However, individual insurance company experience-does not furnish adequate statistical information for the fixing of basic automobile-liability insurance rates, and the legislature has recognized this in permitting a rating bureau to represent many insurance-companies in seeking an acceptable average rate. A basic uniformity of rates is of practical utility in this field and the legislature has authorized it. The benefits of the scheme outweigh the discrepancies that may arise as between individual insurance companies.

It may he pointed out that while appellants have attacked various aspects of the rate changing procedure and the calculations and conclusions which fully support the new rates, they failed to introduce evidence which would justify their position or impair the soundness of the .Special Deputy Commissioner’s findings and conclusions. On this record we cannot find the approved rates excessive, inadequate or unfairly discriminatory, nor can we find that the Insurance Commissioner in approving the rates acted arbitrarily, unreasonably or capriciously.

The judgment is affirmed.

      . Approved rates were: (1) increase of 10 percent for private passenger ears, (2) increase' of 14.9 percent for garage risks, (3) reduction of 7.4 percent for commercial ears. These changes affected only members and subscribers of the Bureau.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Fanny Sally THACKER et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 13, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Reed D. Anderson, Jackson, for appellant.
    H. G. Wells, Hazard, for appellees.
   STEWART, Judge.

This is an appeal from a judgment of $2000 based upon a verdict returned against the Commonwealth of Kentucky, Department of Highways, herein called “the Department,” in favor of Fanny Sally Thacker and others.

Appellees, plaintiffs below, have failed to file a brief and, pursuant to RCA 1.260, we have elected to accept the Department’s “statement of the facts and issues as correct.”

The question posed is whether Perry County or the Department, as an agency of the Commonwealth, is liable to appellees for damages for the removal of the lateral support to their land.

A summary of the facts is that in the late 1950’s Perry County requested that the Brown’s Fork Road in that county be made a part of the state’s primary highway system and be reconstructed. Accordingly, the Department, giving its consent, caused a survey to be made and plans to be prepared and, having done this, the Fiscal Court of Perry County, in conformity with KRS 177.060(1), set about to obtain the necessary right of way. There is no dispute that the road was to be built according to the survey and the plans.

KRS 177.060(1) reads: “Except as otherwise provided in this section and in KRS 177.070, all cost of acquiring any necessary land or right of way for primary road purposes and all damages incurred shall be paid by the county.”

In order to place itself more clearly within the terms and conditions of the quoted subsection, the Fiscal Court of Perry County on November 25, 1957, unanimously adopted this order in part: “On motion of Bradley Combs, seconded by McKinely McIntosh, it is ordered by the Perry Fiscal Court, that the court assumes, as between it and the Commonwealth of Kentucky, Department of Highways, any liability that might arise growing out of any claim based on failure of properly acquired right of way as shown by plans * *

Shortly thereafter Perry County acquired the right of way for the road project and conveyed, or caused to be conveyed, the land to the Department. In due course the contract for the reconstruction of the road was awarded to John Bullock, d/b/a Bullock Construction Company, one of the appellees. After the completion of the road this action was filed by Fanny Sally Thacker and others against the Department, Perry County and John Bullock, d/b/a Bullock Construction Company. Plaintiff-appellees alleged in their complaint that in the reconstruction of the road the lateral support to and adjoining their property was removed, thereby causing breaks and slips to develop so' as to render it valueless and uninhabitable. They asked for damages to the extent of $4000.

At the trial a verdict was directed for defendants, Perry County and John Bullock, but the trial court refused, when so moved, to take similar action in behalf of the Department. The case was submitted to the jury at the conclusion of all the evidence with the result heretofore mentioned.

The subsection alluded to requires the' counties to pay for the necessary right of ways for roads to be improved or constructed by the Department, and, in addition, to compensate for all damages incurred in the execution of the plans and specifications of a road constructed on the land acquired.

In Breathitt County v. Hudson, 265 Ky. 21, 95 S.W.2d 1132, after stating in general terms that, under KRS 177.060(1), the county is liable for compensation to a property owner where there has been an actual talcing or an appropriation of his property,, the opinion said: “This embraces permanent,' substantial trespass, or invasion, or direct injury, or consequential damage, to-the remaining land, such as causing slides-, and subsidence, or the covering of it with debris, where such act was in accordance with prudent plans of the state highway-commission.”

These cases are cited as sustaining this-ruling: Harlan County v. Cole, 218 Ky. 819, 292 S.W. 501; Terhune v. Gorham, 225 Ky. 249, 8 S.W.2d 431; Perry County v. Townes, 228 Ky. 608, 15 S.W.2d 521; Terhune v. Ben W. Gorham & Co., 229 Ky. 229, 16 S.W.2d 1060; Jones v. Louisville & N. R. Co., 233 Ky. 152, 25 S.W.2d 31; Reed v. Ben W. Gorham & Co., 233 Ky. 215, 25 S.W.2d 377; Barass v. Ohio County, 240 Ky. 149, 41 S.W.2d 928; City of Ashland v. Queen, 254 Ky. 329, 71 S.W.2d 650; Adkins v. Harlan County, 259 Ky. 400, 82 S.W.2d 425.

We are not unmindful, however, of the fact that beginning with Bader v. Jefferson County, 274 Ky. 486, 119 S.W.2d 870, and coming up through Cantrell v. Pike County, Ky., 255 S.W.2d 988, a line of cases has held that a claim against a county is not legally sustainable under KRS 177.060(1) where the Department negligently inflicts damage to that portion of a property owner’s tract which was not acquired for highway purposes. Likewise, a contractor building a road is liable for damages resulting from his own negligence or by reason of an unauthorized trespass upon property off the right of way. See Combs v. Codell Construction Co., 244 Ky. 772, 52 S.W.2d 719.

In the case at bar, the trial court found the road was constructed in strict compliance with the plans and specifications of the Department and, for this reason, a verdict was directed in favor of John Bullock, the contractor who built the road.

A recovery by appellees from the Department was sought upon the theory that there was a taking of their land, because there was a destruction of a portion of it, and this fact, they alleged, entitled them to compensation from the Department alone under the provisions of Section 13 or Section 242 of the Constitution of Kentucky.

The plans for the construction of the road called for a cut down the side of a hill which would leave an embankment alongside appellees' property. The breaks and slips that occurred were an incident, a direct consequence, of carrying out the plans and specifications in the building of the road. As the road was constructed in a proper manner by the contractor, and as it was built in accordance with the terms and conditions of KRS 177.060(1), an obligation was imposed upon Perry County, not only to obtain the necessary right of way, but also to pay for any damages incurred by the property owners, appellees herein.

In the light of what we have stated the Department is not liable to appellees for the damages they allegedly sustained.

Wherefore, the judgment is reversed with directions that it be set aside and a new one entered dismissing appellees’ claim as to the Department.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. J. Kelly ROSE et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 13, 1964.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Reed D. Anderson, Jackson, Joyce, Nedde, Frankfort, for appellant.
    Ralph N. Walter, Nickell & Walter, West Liberty, for appellees.
   MONTGOMERY, Judge.

J. Kelly Rose and his wife were awarded $4,500 as the value of the land taken and $3,000 as damages to the remaining land in a condemnation action for right of way for the Mountain Parkway. The case was tried before Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844. The Commonwealth of Kentucky, Department of Highways, the condemnor, appeals and urges that valuation evidence based on offers to purchase was erroneously admitted, the verdict is not supported by competent and relevant evidence, and the award is excessive.

Appellees owned a farm consisting of 165 acres. Appellant acquired 4.11 acres of bottom land and severed .91 acre of bottom land from the remainder of the property.

Edgar Graham, an adjoining landowner, and Steve Rose, a businessman, testified for appellees as to the value of the land taken and the damages to the remainder. The objected to testimony of Graham occurred on cross-examination and follows:

“Q. 11 Why do you say that bottom land is worth twelve hundred and fifty ($1,250.00) dollars an acre?
“A. Well, I live in that community and I know what good bottom land like that sells for.
“Q. 12 Have you ever paid twelve hundred and fifty ($1,250) dollars an acre for bottom land?
“A. I guess I have paid close to it. I have offered that much for some and they wouldn’t take it.
“Q. 13 And is that what you are baseing (sic) your opinion on?
“A. Yes.”

Graham had previously testified to his knowledge of the farm, its improve-merits and terrain, and of his experience and knowledge of sales of comparable real estate by reason of having bought, sold, and observed other sales. Such testimony qualified Graham as a witness and gave probative value to his testimony. Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472. On further cross-examination, Graham testified in explanation of an evaluation: “Well, I figured it by other sales that I have seen sell and that’s where I get it.” The testimony objected to was given by a qualified witness. Moreover, it was invited by the question asked, and under the circumstances it may have been erroneous but it is not considered prejudicial. But cf. Commonwealth, Department of Highways v. Herndon, Ky., 378 S.W.2d 620, and cases cited therein.

The qualifications of Graham as a witness have been noted. Rose, appellees’ other evaluation witness, had been in business in Campton for seventeen years. At the time of the trial he owned fifteen or sixteen different tracts of real estate in Wolfe County and was shown to have had experience in buying and selling of land therein. He was likewise familiar with numerous sales of real estate in the county and had been consulted frequently by prospective purchasers on the value of various tracts of real estate in Wolfe County. Rose was a qualified witness.

Appellant attacks the testimony of these witnesses for their failure to give acreage, type of land, or purchase price of other sales. The answer is that inquiry on such matters on cross-examination is a proper method of testing the witness’ qualifications. Appellant’s counsel did not ask about such matters and may not now he heard to complain.

The verdict may appear to be generous but it is based on substantial probative evidence and is within the evaluations given. It will not be disturbed.

Judgment affirmed.


author: WADDILL, COMMISSIONER.

text:
    Charles Edward HUGHES, Appellant, v. Bernice Ross HUGHES, Appellee.
    Court of Appeals of Kentucky.
    Nov. 13, 1964.

      Charles Bruce Lester and Wesley Bowen, Newport, for appellant.
    Walter J. Burke and Carl H. Ebert, Newport, for appellee.
   WADDILL, COMMISSIONER.

The appellee, Bernice Hughes, was granted a divorce from the appellant, Charles Hughes, and awarded the custody of their seven children. She was allowed thirty-five dollars a week as alimony and awarded the further sum of eighty dollars a week for the maintenance of their children. The judgment contained a general provision requiring restoration of property under KRS 403.060(2) and a specific provision ordering the novelty business which these parties had been operating to be sold and the net proceeds of the sale divided equally between them.

Appellant contends that the court erred in ordering the novelty business to be sold because this property belonged to him and, consequently, should have been restored to him.

At the time of their marriage, which occurred during 1942, neither of the parties had any money or property. Appellant was employed as a mechanical supervisor for the National Multicolor Type Corporation and his duties required him to work in Cincinnati. Shortly after their marriage appellant bought a home in Bellevue, Kentucky, for $4,500. This property was valued by the trial court on May 1, 1962, at $10,200. On April 7, 1958, appellant purchased a novelty business for $3,500, the ownership of which was placed in the names of both appellant and appellee. The only income that appellee ever produced during her marriage was the salary her husband paid her for assisting him in the operation of this business. The wages she earned were either spent on herself, her family, or for some furnishings for their home.

Upon the uncontradicted testimony showing that appellant had earned and furnished the money for the purchase of the novelty business the trial court would ordinarily be required to restore this property to the appellant. KRS 403.060(2), 403.065; Ball v. Ball, Ky., 317 S.W.2d 870. Nevertheless, we will not reverse the judgment on this ground because shortly after this action was instituted appellant left Kentucky without complying with the alimony and maintenance order and failed to personally appear in the circuit court when a contempt rule was issued against him. Moreover, at a hearing it appeared that upon leaving the state he abandoned his novelty business, which rapidly lost money during his absence, and that he took no steps to prevent the court’s sale of this property or its subsequent confirmation thereof.

Appellant next contends that the circuit court erred in failing to specifically order the residence, which he and his family occupied as a home, restored to him. We observe that the judgment does contain a general restoration order and that there has been no effort made to enforce it. If there yet remains any question concerning what property should be restored by either party to the other it may be settled by subsequent proceedings in the circuit court. Schauberger v. Morel’s Adm’r., 168 Ky. 368, 182 S.W. 198.

Finally, appellant contends that the court abused its discretion in awarding to appellee alimony of thirty-five dollars a week and eighty dollars a week for maintenance of the children. The testimony shows that appellant owns real estate valued at $10,200 and that he earns between $10,000 and $15,000 a year from his regular employment. He claims that his physical condition is not good and his earning capacity will be reduced by this fact. We have no doubt that the circuit court considered all the relevant factors in arriving at the allowances made to the appellee and the children. Upon this record we are unwilling to say that the circuit court abused its discretion.

The judgment is affirmed.


text:
    Mary E. CARRICATO, Appellant, v. Mildred Louise CARRICATO et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 13, 1964.

      William Kiel, Mayer, Cooper & Kiel, Louisville, for appellant Mary E. Carricato.
    William Lehnig, Duncan & Lehnig, Louisville, for appellees and cross-appellants Mildred Louise Carricato and Frank Carricato.
    John L. Bennett, Hogan, Taylor, Denzer & Bennett, Louisville, for appellees and cross-appellees William E. Lange and William E. Lange, Jr.
   WOODARD C. TIPTON, Special Commissioner.

A summary judgment was rendered in the Jefferson Circuit Court, Common Pleas Branch, Fourth Division, in an action in which the appellant was the plaintiff and appellees Carricato were defendants.

This action concerned an automobile collision and in the trial before a jury the matter of liability insurance was injected into the testimony, whereupon on motion a mistrial was ordered. Thereafter it was stipulated by all parties that the matter would be decided on the record by the trial judge and a summary judgment was rendered.

The trial judge held as follows:

1.The sole cause of the collision was the negligence of Mildred Louise Carricato and therefore a summary judgment was. given for William E. Lange and William E. Lange, Jr.

2. That Mildred Louise Carricato was-not “Emancipated” and therefore the action of her mother, Mary E. Carricato, against, her must fall.

3. That the only basis of the action of Mary E. Carricato against her husband,. Frank Carricato, was the family purpose-doctrine, but that since the automobile was-owned by, controlled by and maintained' and used by Mildred Louise Carricato that the action against him must fall.

The three above questions are the only matters involved in this appeal.

On October 9, 1958, at the intersection, of 16th and Main Streets, Louisville, Kentucky, the automobile operated by Mildred Louise Carricato, in which Mary E. Carri-cato was a passenger, collided with the automobile of William E. Lange which was being operated by William E. Lange, Jr. Mildred Louise at the time of the collision lacked two months of being twenty-one years of age. The automobile of Mildred Louise was licensed in the name of her father, Frank Carricato.

Mary E. Carricato testified that Mildred Louise was taking her to work and was-proceeding south on 16th Street and just ran through the boulevard stop sign on Main Street at about twenty-five to thirty-five miles per hour when they were hit by a car. Mildred Louise testified that she did' not see a stop sign and didn’t slow down or stop and went on into the intersection, and at about half .way through, and in an instant or two, the cars hit. William E. Lange,. Jr., testified in his deposition that he was going west on Main Street and was in the second lane from the north curb (first lane or lane next to curb was a parking lane) and was traveling twenty-five to thirty miles per hour and he saw the red car just flash in front of him — happened so quickly — saw her coming at the stop sign, but there wasn’t anything he could do; that his car came to rest at the northwest corner of the intersection and her car, after striking another car, at the southwest corner of the intersection.

In this action Mary E. Carricato sought ■damages for her personal injuries from .all appellees. None of the appellees sought .any damages. Mary E. testified as to her personal injuries, but same are not material ■on this appeal.

The matter of “Emancipation” is .a question of fact and the evidence is as follows: Frank Carricato in his deposition testified that he owned an auto and his ■daughter owned the auto that was in the •collision; that his daughter picked out the car and he helped her finance it and that she paid him back, and it was put in his name because of his credit being established; his daughter made all the purchase payments, the insurance, the gasoline and all upkeep and she was the owner of the auto; his daughter lived in his home, took her meals there, paid no board, made money contributions when needed and when he was ■off work she did more than her part and paid groceries and rent; since reaching twenty-one years the arrangement has not been any different; she has been on her ■own since leaving high school at seventeen years and she was emancipated at the time of the collision; he meant by being emancipated she had her own way and did what she pleased and that women always did that and that is what he meant; she drove her car and he drove his.

Mary E. Carricato testified her daughter was emancipated and in explanation stated that she had her own job, bought her own •clothes, came and went as she pleased, did .as she pleased, bought her own furniture, contributed to household expenses if needed, exercised control of her own funds, had her own bank account; after graduation from high school they have not exercised any ■control over her or the company she kept; she paid her own income taxes; they did not claim her as an exemption since she became eighteen years of age; there was a definite understanding between her, her husband and daughter that the daughter would be on her own after graduation from high school; she worked before she quit school and financed her last year of high school; as to church or the movies they did not exercise any control over her; she was free to come and go as she desired; she picked out and paid for her furniture; she obtained her own employment; took trips without consulting her parents; her earnings are about $300 per month; Mary E. Carricato’s earnings were about $100 to $130; on cross-examination she explained “emancipation” in that her daughter had the ability to take care of herself and make her own living and she spends her own salary as she sees fit and as she pleases; she did live at home and take her meals there; she carried life insurance and her mother was the beneficiary; her daughter had never been asked to leave home; when her husband was off work it was not necessary to ask her daughter for help on expenses as she just volunteered; she has her own checking account; her daughter does not require supervision.

Mildred Louise testified she was twenty years and ten months of age at the time of the collision; she selected the auto and paid for it and maintained it; she was emancipated at the time of the collision; she was independent and had been working since high school; did not ask consent or get consent from parents for anything she did; spent her money as she pleased; hada bank account; she did have a specific understanding with her parents when she graduated that she would be on her own; selected her own clothing and personal things; made trips without consultation and even went to Virginia without consulting them; bought her a new bedroom suite; her parents have never controlled her as to her company or friends; the situation or relationship is no different now than it was at the time of the collision; she is independent and can do as she wants to do.

What constitutes an emancipation is a question of law, but whether an emancipation has occurred in a particular case is a question of fact. 67 C.J.S. Parent and Child § 90b, page 817.

The testimony as to the facts on the matter of emancipation are as set out herein-before and they are undisputed; that is, no one else testified on the subject on the trial or by deposition except the three parties, Mary E. Carricato and Frank Carricato as the parents and Mildred Louise Carricato as the child.

Emancipation of a minor child is not presumed and the burden of proof is on the one alleging same to establish it by clear, cogent and convincing evidence either direct or circumstantial. 67 C.J.S. Parent and Child § 90, page 817.

In determining whether emancipation has occurred, the intention of the parent governs and the intention may be expressed either in writing or orally or it may be implied, and it is the intention of the parent and not the child that controls. 67 C.J.S. Parent and Child § 88b, page 812.

In Nichols v. Harvey & Hancock et al. (1924), 206 Ky. 112, 266 S.W. 870, it was quoted with approval as follows:

“Emancipation in turn may be cías-' sified as express emancipation and implied emancipation. Express emancipation results when the parent and child voluntarily agree that the child, able to take care of himself, may go out from his home and make his own living, receive his own wages and spend them as he pleases. An implied emancipation grows out of the parent’s acquiescence in his child’s working for others, receiving his pay therefor and spending same as he pleases, thereby impliedly consenting to same.”

In the case of Rounds Bros. v. McDaniel (1909), 133 Ky. 669, 118 S.W. 956, the above principle of law was approved and it was also stated therein as follows:

“The doctrine of ‘emancipation’, * * * is a recognition of the right of the parent to relinquish control and authority over his child to whose custody and service he is entitled; or to surrender, if he so elects and desires, to his minor son, who is capable of making his own living, the right to do-so, and the privilege of receiving the wages that he earns. * * * In other words, when a child has been emancipated, he occupies the same legal relation towards the parent as if he has. arrived at full age.”

In the case of Thompson v. Thompson (1954), Ky, 264 S.W.2d 667, it is set out that a parent can maintain a tort action against a minor child who has been emancipated. In the Thompson case the only witness testifying was the mother who sought the damages and the court held in effect that the judge did not have to believe her testimony as she was an interested witness and she was the only witness.

In the case at bar, the daughter was-twenty years and ten months of age and not seventeen years; her father testified, whereas in the Thompson case the father did not testify. Actually the intention of the father controls as to an express emancipation, and the father testified that she was. emancipated at the time of the collision, and this was corroborated by his wife, stating that .there was a definite understanding-that the daughter would be on her own after graduation, and this was corroborated by the daughter who stated she was emancipated. There is no one to say that there was not an express emancipation. It is difficult to conceive of a more complete implied emancipation than in this case and: about all that could be lacking is that the-young lady did not leave home and continued to eat her meals there, but nowhere does any opinion hold that it is required’ that they must leave home and not eat at home.

We conclude that the sole cause of the collision was the negligence of Mildred Louise Carricato and that the trial; court correctly gave summary judgment for William E. Lange and William E. Lange, Jr., and we also conclude that since the automobile was actually owned by Mildred Louise Carricato, used by her and •maintained and controlled by her that the same was not maintained by Frank Carri-■cato for family purposes and that the trial ■court correctly gave summary judgment for Frank Carricato.

We further conclude that the trial ■court was in error in awarding a summary judgment for Mildred Louise Carricato since she was emancipated, and that part ■of the judgment should be reversed.

Wherefore, we recommend that the judgment of the lower court be affirmed in part •and reversed in part.

The opinion is approved by the Court; 'the judgment is affirmed insofar as it affects the rights of Frank Carricato, William E. Lange, and William E. Lange, Jr.; the judgment is reversed on the claim of Mary E. Carricato v. Mildred Louise Car-Ticato, with directions to try that claim on the issue of damages only.


text:
    Charles H. STURGILL et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 13, 1964.

      Joseph J. Leary, Frankfort, Don Stur-gill, Sturgill, Moreland & Turner, Lexington, for appellants.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., H. C. Smith, Frankfort, and F. Selby Hurst, Lexington, for appellee.
   CLAY, Commissioner.

In this condemnation proceeding appellants sought to enjoin the Commonwealth (Department of Highways) from taking a part of their land for use as an access road. The trial court denied the injunction and the correctness of this ruling is before us.

Appellants’ property is situated somewhat southwest of the intersection of the New-town and New Circle Roads in Fayette County. The Newtown Road runs north and south; the New Circle Road east and west. These are both heavily traveled highways. The Department of Highways prepared a comprehensive plan for the construction of interchange routes at this intersection. The design included three cloverleaf and other ramps.

One Robert Stilz owned land at the immediate southwest corner of this intersection. Under a lease a “Holiday Inn” motel had been erected thereon. The plans of the Department of Highways called for condemning a strip through the Stilz’ property for the construction of a ramp, beginning near the front of the Holiday Inn on New-town Road and extending westwardly to intersect with New Circle Road. This ramp, and the proposed designation of the Newtown Road as a nonaccess highway along the remaining frontage of the Stilz’’ property, would effectively cut off access from it to the Newtown Road, causing it to-be “landlocked”.

To alleviate this situation, and incidentally to save a substantial amount of money (to which Stilz would be entitled as condemnation damages), the highway plan-called for a new access road through appellants’ adjoining land from the Newtown-Road to the southern boundary of the Stilz’ property. (It extended into appellants’’ property 212 feet, with a 95 foot spur to the Stilz’ boundary.) It was designed as a two-lane highway, will be maintained by the Commonwealth, and will be open for public use. In view of the present occupancy of the Stilz’ land, this road will, and it was designed to, furnish access to and from the Holiday Inn motel.

It is appellants’ contention that the Commonwealth proposes to take their property for the private use of another in violation of their constitutional rights. The constitutional provisions allegedly violated are not definitely pinpointed, but sections 2 and 242 of the Kentucky Constitution are referred to. -Section 13 would appear to play some part. In any event, it is conceded by the Commonwealth that appellants’ property could not be taken for a private purpose and that the right to condemn this particular tract exists only if it is taken for a “public use”. (This is required by KRS 177.230.)

Appellants’ arguments are based upon general principles and not upon specific favorable decisions. The proposition is stated that a private person cannot be authorized to condemn his neighbor’s property for some exclusively private purpose or use. This may be acknowledged as sound. 2 Nichols on Eminent Domain, 3rd Ed., § 7.1(1), page 620; Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 104 S.W. 762, 16 L.R.A.,N.S., 479; Hudgens v. Register, Ky., 285 S.W.2d 504. Based on this premise, it is contended the Commonwealth may not do for a private person and for a private purpose what he may not do himself. This also we may concede. The flaw in this argument is that it does not reach the very point in controversy, which is whether this taking, though subserving a private interest, is for a public use.

The proposed access road is part of a comprehensive and complex highway construction plan clearly designed fo~ public accommodation. KRS 177.250 authorizes condemnation for access roads as incident to such a plan. Problems of necessity, proper design, best utilization of adjoining properties, convenience to the public, saving of expense, and promotion of traffic safety are matters which must be left to the discretion of the highway authorities. See KRS 177.240; and Luke v. Massachusetts Turnpike Authority, 337 Mass. 304, 149 N.E.2d 225. KRS 177.081 provides in substance that specific details of the plan cannot be called in question, from the standpoint of necessity or public use, except upon a showing of fraud, bad faith or abuse of discretion. No such showing was made in this proceeding.

Essentially appellants’ position seems to be that public use presupposes a predominating public need, and where the private advantage substantially outweighs the public benefit it cannot be said a particular taking is for a public use. Appellants emphasize the fact that this road was basically designed to provide access to and from the premises of Stilz, and principally inures to his private benefit. But this is only part of the picture. Even if we examine the road in isolation, apart from the overall plan, appellants’ argument does not take into account the dual aspect of public user.

Any public way naturally confers a special benefit on those persons whose property, adjoins it. All roads terminate somewhere. Dead end streets or highways inevitably and particularly subserve the private interests of the last property owner on the line. Yet the public has an interest in reaching other members thereof. As a practical matter, the right of condemnation for highway purposes could not be made to depend upon the predominance of the public interest over private benefit. This is too fine a line even for legal draftsmanship. If this consideration were a determining factor, the con-demnor would endlessly be forced to “battle in every county courthouse”. See Commonwealth Dept. of Highways v. Burchett, Ky., 367 S.W.2d 262, 266. The accepted test is whether the roadway is under the control of public authorities and is open to public use, without regard to private interest or advantage.

This question was thoroughly examined and answered in Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 104 S.W. 762. There a private person sought and was granted the right to condemn a strip of her neighbor’s land for a tramway to her stone quarry (under a statute similar to KRS 277.040). It was pointed out that the special benefit to a private person attributable to the existence of a roadway is not a controlling factor, nor is it significant that few persons rather than a large number of the public may actually use it. We therein said (page 765 of 104 S.W.) :

“It is not the number of people who use the property taken under the law of eminent domain that constitutes the use of it a public one; nor does the fact that the benefits will be in a large measure local enter into the question. In short, according to the generally recognized rule, the length of the public way, the places between which it runs, or the number of people who use it, is not the essential inquiry. The controlling and decisive question is: Have the public the right to its use upon the same terms as the person at whose instance the way was established ? If they have, it is a public use; if they have not, it is a private one.”

Applying this test, the Commonwealth had the right to condemn appellants’ property to construct the access road in question. This conclusion is amply supported by the following authorities: 2 Nichols on Eminent Domain (3rd Ed.), § 7.512(1), pages 705, 706, § 7.51211, page 716; 29 C.J.S. Eminent Domain § 34, page 831; Tracey v. Preston, 114 Ohio App. 206, 181 N.E.2d 479; Mueller v. Supervisors of Town of Courtland, 117 Minn. 290, 135 N.W. 996; Road Dist. No. 4 v. Frailey, 313 Ill. 568, 145 N.E. 195.

Appellants contend the last cited cases were decided under constitutions which differ from ours, and the questions considered involved the “public welfare” rather that “public use”. We think the basic considerations were precisely the same.

Our conclusion is based upon long recognized legal precepts which allow the government broad latitude in the development of public highways. Their utility is not for the courts to determine. That one member of the public specially benefits thereby does not impugn their public character if they are built for and open to public use. We find nothing illegal or unconstitutional in this taking and the circuit court properly denied injunctive relief.

The judgment is affirmed.

      . We refer to this present particular use of the Stilz’ property because some of the witnesses did and because it tends to clarify the picture, but it is not a significant factor in resolving the question presented.

      . The concepts of “public welfare” and “public use” are closely related. Either term is logically convertible into the other. However, a serviceable distinction may be noted. The question of “public welfare” normally arises when determining whether the legislature had authority to grant a general power of condemnation to one of its agencies or even a private person (see KK.S 277.040). The question of “public use” arises when we consider a particular talcing under the granted power.


author: SPERRY, Commissioner.

text:
    Bobby N. McClelland, Plaintiff-Appellant, v. HAGERTY WRECKING CO. and Federated Mutual Insurance Company, Defendants-Respondents.
    No. 23961.
    Kansas City Court of Appeals. Missouri.
    Oct. 5, 1964.
    Application to Transfer Denied Feb. 8, 1965.
    Lyman M. Cleek, T. Richard Mager, Columbia, for appellant.
    John M. Cleaveland, Columbia, for respondents.
   SPERRY, Commissioner.

This appeal by plaintiff, Bobby N. Mc-Clelland, is from a judgment of the Circuit Court affirming an award of the Industrial Commission of Missouri denying compensation on account of injuries which he claimed to have suffered on July 28, 1960, when, he alleged, he had an accident while employed by Hagerty Wrecking Company, Federated Mutual Insurance Company, insurer.

A hearing before a referee resulted in an award denying compensation. On appeal to the whole Commission, a majority denied compensation, Commissioner Rose dissenting.

Plaintiff, a heavy construction laborer, was employed in helping to wreck a building when the incident which gave rise to this claim occurred, July 28, 1960. He had been employed by defendant for one month, and was working in the basement of a brick building where he and another laborer were lifting planks from the floor and shoving them out of a window located some eight or ten feet above the floor level. The planks were two inches thick, fourteen inches wide, thirty-six feet long, and weighed more than two hundred pounds each. The concrete floor was covered to a depth of from a few inches to from two to four feet with de'bris, consisting of tar paper, nails, bottles, cans, old furniture, pigeon manure, etc., which made footing very precarious. It had rained, and the debris and hoards were wet. The hoards had been removed from the ceiling of the basement where they had constituted the joists supporting the floor of the room above. Some lay on top of the debris, in an east-west position. The workmen would take hold of a board, one at either end facing each other, and swing it around so as to shove one end out of a south window. On July 28, 1960, plaintiff and a Mr. Terrell had been working in the above manner for about two hours when, plaintiff testified, the accident occurred.

Plaintiff stated that he took hold of one end of a board and started to lift 't and move forward; that Mr. Terrell was opposite him on the other end of the board, also lifting; that plaintiff’s left foot went through the debris and into a concrete drain' that ran across the floor of the basement; that the drain was perhaps one foot deep; that it and the floor were slick and slimy; that his left leg went straight out in front and his right leg went to the right; that he sat down on the debris, on his buttocks, and that the lower part of his back “popped”; that he suffered great pain; and that his left leg became numb. He stated that he remained in a semi-sitting position on the floor for “about five minutes” and that, when he finally stood, his back hurt, his leg was numb, he was dizzy and sick, and that he could not “straighten up”, but stood in a stooped position. He said that he tried to lift but that he could not “go down” to take hold of anything; that he reported his condition to the foreman and went to the Lee Hospital, at Fayette. (The hospital records indicate that he entered there at about 11:00 A.M., July 28, 1960).

Plaintiff stated that he had been regularly performing heavy construction labor for a period of five years prior to the date of the accident; that he did so without pain; that he operated jack hammers and drills, and did any kind of construction work without pain or difficulty; that, from July 28 through 1960, and until the date of the hearing before the referee, March, 1961, he had not been able to do any heavy manual labor. 1

Plaintiff offered medical evidence and hospital records establishing the fact that, at the time he entered Lee Hospital, he had suffered a back injury; that he was, at that time, totally disabled; that he was put in traction; that his condition did not improve by reason of “conservative” treatment which he received; that, on August 9, he left Lee Hospital and, on August 13, entered Boone County Hospital where myelo-grams were carried out and a diagnosis of a ruptured disk (L 4-5) was made; that, on August 17, an operation for that condition was performed; and that he left the hospital on September 1st. Dr. Stewart, plaintiff’s operating physician, stated that, in his opinion, the ruptured disk was caused by plaintiff’s fall, as testified to by plaintiff; that when he first saw him in Lee Hospital, he was totally disabled. There was evidence to the effect that plaintiff’s medical expense was approximately $1,400.00, incurred within ninety days of the accident, and that he had not been paid any part thereof. He had received no compensation. Dr. Stewart rated plaintiff’s disability as 20% permanent partial, of the man as a whole. He stated that, in his opinion, a man who could do heavy manual labor, such as plaintiff performed prior to the accident, would not then have been partially disabled. No medical evidence was offered by the defendant; and further such testimony, offered by plaintiff, tended to corroborate the above.

There was undisputed evidence to the effect that plaintiff had sustained a back injury in 1953, while lifting a log; that this injury was diagnosed as a low back sprain with a possibility of a disk injury. A claim for compensation in that case was settled, by compromise, for $1,500.00. There was never a diagnosis of disk injury but medical reports raised such a possibility. However, plaintiff’s testimony to the effect that he fully recovered from that disability and, for five years thereafter, and until July 28, 1960, had performed all kinds of heavy construction labor without discomfort, was not challenged. He had worked for defendant for a month prior to this latest occurrence, and he had worked on that day for about two hours before complaining, lifting and carrying heavy timbers under difficult conditions.

Defendant offered the testimony of Mr. Terrell, who was working with plaintiff at the time plaintiff claims to have been injured. He stated that, on the morning in question, witness and plaintiff began work in the basement at 8:00 A.M.; that, when this incident occurred, they were picking up a board; “we bent over to pick it up, and Bobby dropped his end, and when I looked up he was all hunched over holding his back”; that plaintiff was at one end and witness at the other end of the board, facing each other, but that, when bent over, “you was looking at the ground”; that, when plaintiff dropped the board it jarred him; that the board was “knee high” and was in the process of being lifted; that, when he felt the jar, witness put down his end and then looked up; that he went back to plaintiff to see what had happened; that, when he first looked up, plaintiff was bent over holding his back, stooped over; that plaintiff said that he had hurt his back; that, when plaintiff tried to bend over, there was “a little popping” sound, like you pop your knuckles — he couldn’t get back up right away”; that, after he had laid the board down and looked at plaintiff, witness started walking towards him but that he had to watch his footing carefully because of the debris; that he might get a nail in his foot. Witness stated that he did not look at plaintiff’s feet; that he could have slipped through the debris; that he did not know that happened to plaintiff when he dropped the board.

Defendant introduced in evidence plaintiff’s deposition, given February 17, 1961. Plaintiff there stated, in effect, that he had been working at shoving boards out of the basement for something more than one day prior to the occurrence of the injury; that he and his co-worker had picked up this board and started to run with it to the window to push it out when his left foot went through the trash and he went down on the floor, on his posterior; that plaintiff was at the “tail” end of the board and the co-worker was on one side of it, facing parallel to the board; that, when he fell, he had taken ten or twelve steps with the board; that his left leg went through the debris, into the drain, and then went forward; that his right leg went to the right; that, as he went down, his back popped; that his left leg became numb and went dead; that he, at first, could not straighten up but was bent over; that he was sick at the head, and dizzy; that his back hurt; that he eventually straightened up but could not work.

The above testimony of plaintiff, including that given by deposition, and that of Mr. Terrell, constitutes the sum total of the evidence as to what took place at the time when plaintiff claims to have been injured, and of the circumstances attending his alleged fall.

In finding against plaintiff, and in denying him an award, two members of the Commission stated as follows:

“In so finding, the Commission finds persuasive the testimony of Jack Terrell to the effect that immediately after employee dropped his end of the board they were lifting said employee was not on his buttocks on the debris, as testified to by employee. The Commission further finds persuasive other discrepancies between the testimony of employee and of Terrell, and between the direct testimony of employee and the deposition of employee (Employer and Insurer’s Exhibit No. 19, p. 142 et seq.), as more particularly set out in the referee’s award dated December 11, 1961. The Commission specifically adopts the findings of fact set out in said referee’s award (except that as to the “demeanor of the employee on the witness stand” since the Commission considered the record only, and did not have the opportunity to observe said employee)”.

In dissenting from the majority ruling, and in voting to grant compensation, Chairman Rose stated as follows”

“It is true as the referee found in the first instance (and with which my colleagues agreed on review), that there are minor variances as to the details of the alleged accident as related by claimant in his deposition, and as testified to by witness Terrell. These inconsequential variants do not, in my view, tar the claimant with the dark brush of incredibility or damn him as a minor-key perjurer. To the contrary, the truth in recollecting long past events is more apt to be evidenced by minor differences in recollection than by the recitation of a stock story made letter perfect by rote. In fine, I am of the opinion that the employee did sustain an accident and that that accident occurred substantially in the form narrated from the witness stand. Our courts have shown increasing liberality in construing the events which constitute an accident and it is my view that we should take the direction pointed by these cases. E. G. Crow vs. Missouri Implement Co. [Mo.] 307 S.W.2nd 401; Brotherton v. International Shoe Co., Spfd. C.A. No. 8048 [360 S.W.2d 108]”.

Our review is limited to determining whether the Commission could reasonably have made its findings and reached its result upon the evidence before it. If there is competent and substantial evidence upon which to base the award and if such award is not clearly contrary to the law or the overwhelming zveight of the credible evidence, we are bound to affirm it. Smith v. Terminal Transfer Co., Mo.App., 372 S.W.2d 659, 661. Findings of the Commission must be based on reasonable probability and claimant’s right to recover should not be defeated upon mere conjecture that injury may have been received in some way unrelated to the employment. Gardner v. Ford Motor Co., Mo.App., 130 S.W.2d 201, 205; Collins v. Reed-Harlin Grocery Co., Mo.App., 230 S.W.2d 880, 891. Where an employee is found injured at a place where his duties require him to be, a presumption arises that he was injured in the course of and in consequence of his employment; but such presumption is rebuttable. McCoy v. Simpson, 346 Mo. 72, 139 S.W.2d 950. However, such presumption must be given effect until overcome by substantial evidence to the contrary. Oswald v. Caradine Hat Co., Mo. App., 109 S.W.2d 893.

The sole question presented here is whether the Commission could have reasonably made its findings and reached its result under the evidence. Stated otherwise: “Is the award contrary to the overwhelming weight of the evidence?” We hold that the Commission could not have reasonably reached its result under the evidence and that the award is contrary to the overwhelming weight of the evidence in the case.

All of the evidence is to the effect that plaintiff was an active heavy construction laborer; that he had worked in that capacity for at least five years prior to complaining of the injury alleged to have been received on July 28, 1960; that he had worked for Hagerty as a heavy laborer, in wrecking buildings, for four weeks prior to the above date; that he had been employed at the very place and doing the same work he was doing when he claims to have suffered an injury, for more than one day before complaining; that he had worked for at least two hours at that place, on that day, doing the same work, under the same conditions that prevailed when he claims he suffered an accident, and with the same company workers, employees of Hagerty.

he uncontradicted evidence is that, at about 10:00 A.M., July 28, while lifting one end of a two hundred pound board, to move it, he dropped it; that his coworker, Mr. Terrell, a Hagerty employee and defendant’s witness, was jarred when the plaintiff’s end of the board was dropped; that Terrell was not then looking at plaintiff but was watching his work; that he first laid his end of the board down and then looked at plaintiff; that plaintiff was then standing hunched over, with his left hand at his back, and that he said he had hurt his back; that when plaintiff tried to straighten up he, Terrell, heard plaintiff’s back “pop”, like one’s knuckles sometimes pop.

Plaintiff stated that his left foot went through the debris and slipped on the slimy floor of the drain and that he sat down on his posterior. Terrell did not see this but testified that he was not looking at plaintiff at that time. Plaintiff stated that he was down for perhaps five minutes. Whether he was down five minutes' or one second is not material if he injured his back at the time he said that he did. Plaintiff also said that he was running with the board at that time but Terrell said that they were only lifting it. That, again, is of slight importance under the evidence in this case if, in fact, his back was injured at that time and place. There is no evidence tending to overcome the presumption that the injury was incurred in the course of and in the consequence of plaintiff’s employment.

The evidence is undisputed that plaintiff, prior to and at that time, was performing extremely heavy labor under most difficult conditions; that he was doing so without complaint; that he, at that time, complained of having injured his back; that an audible popping sound emanated from his back when he tried to straighten up; and that, when he arrived at Lee Hospital, at about 11:00 A.M., he was totally disabled from performing any manual labor, was suffering from a spastic back, and was placed in traction. It was eventually established that he was suffering from a herniated disk, which required surgery. The un-contradicted medical evidence was to the effect that he could not have performed the labor he had been performing prior to 10:00 A.M., on that date, if he had then been suffering from a disk injury, such as the medical evidence established he was suffering from within an hour after registering his complaint.

There is no evidence in the record tending to prove that plaintiff had received any back injury for at least five years prior to July 28, 1960. And, if such an injury as was shown was incurred otherwise than at the time and place claimed by plaintiff, there is no evidence thereof whatever. There is ample, credible evidence tending to prove that the injury complained of was suffered at about 10:00 A.M., July 28, while plaintiff was actually engaged in heavy construction labor for Hagerty Wrecking Company, and no evidence to the contrary. The award in this case is unsupported by any substantial evidence, and it is contrary to the overwhelming weight of all of the evidence adduced. At most, there is but a possibility that he was injured at some other time and place. That is not sufficient to support the award. Gardner v. Ford Motor Company, supra.

We hold that the Commission’s award denying compensation is not supported by competent and substantial evidence upon the whole record.

The judgment of the Circuit Court affirming that award is reversed. Lunn v. Columbian Steel Tank Company, 364 Mo. 1241, 275 S.W.2d 298, 303.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. All concur.