author: EDWARD P. HILL, Judge.

text:
    SCOTT FARMS, INC., and Rudy Scott, Appellants, v. J. T. SOUTHARD, Appellee.
    Court of Appeals of Kentucky.
    Feb. 16, 1968.

      Robert G. Hunt, King, Deep, Branaman & Hunt, Henderson, for appellants.
    William L. Sullivan, Dorsey & Sullivan, Henderson, for appellee.
   EDWARD P. HILL, Judge.

This is an appeal from a judgment entered pursuant to the verdict of a jury in appellant-plaintiffs’ suit for breach of two contracts, one written and the other oral. Under the written contract, appellants rented farm machinery from appellee. Appellee undertook in the oral contract to harvest and shell corn for appellants. The jury found $2915150 for appellee on the oral contract and $8860 less a credit of $4500 on the written contract. This appeal followed.

Before discussing the twelve points raised by appellants in their brief, we recite the contentions and issues raised by the pleadings. Appellants alleged that appellee South-ard agreed in oral contract to harvest 40,000 bushels of corn from two tracts, one containing seventeen hundred acres of comparatively level bottomland and the second tract consisting of rough hill land. Appellants charge that the contract price for harvesting and shelling the 40,000 bushels was to be ten cents per bushel. Appellee alleged that he agreed to harvest as much as possible at ten cents per bushel but that he did not agree to harvest corn on the rough land unless he could do so without damage to his equipment. During the time appellee South-ard was harvesting corn on the large, level tract, another operator came into the same field and harvested corn beside appel-lee. No question or objection was made to this, and it is only mentioned in connection with the contention of the parties as to the total number of bushels to be harvested under the contract. Appellee finished harvesting in the bottomland. He undertook to harvest on the rough land, but says he quit for fear of damaging his equipment on account of the rough terrain and numerous stumps.

Appellants claimed $22,500 damages caused by “inability” to harvest corn that defendant should have harvested under the contract; they alleged $3000 damages for loss of grazing rights they claim they would have enjoyed had Southard not breached his harvesting contract. They asked $7500 for loss of a rye crop they would have harvested had appellee performed his contract and $5000 punitive damages. By a tendered amended complaint, appellants alleged they suffered damages in the amount of $8000 for alleged breach of the rental contract on farm equipment in that Southard did not maintain such equipment as he agreed and by reason of the failure of Southard to furnish proper equipment as agreed. Appellant Scott contended the equipment used would plow to a depth of only nine inches, whereas equipment that would plow to a depth of fourteen inches would have produced more yield.

In addition to appellee’s claim for $2915.-50 for harvesting, he prayed for $2000 damages to his equipment on account of its use on the hill land. He also sought $11,000 for damages to his equipment and $15,000 for the use thereof during the term of the written lease and during a few months appellants used the equipment after the termination of the lease.

First appellants argue that the trial court erred in overruling their motion for a directed verdict and for judgment notwithstanding the verdict as to the harvesting contract. The simple answer to this argument is that there was ample evidence for appellee’s theory of the case. We do not consider it necessary or beneficial to this opinion to quote such evidence although it is direct and positive in its support of the verdict. We conclude the question was one for the jury and that the trial court properly submitted same to the jury. By the same token, there was no error in overruling appellants’ motion for judgment n. o. v.

Appellants next complain of the ruling of the trial court refusing to permit the filing- of an amended complaint asking for $17,000 damages for breach of the rental contract (of farm equipment). It is noted the original complaint only asked for a “rescission” of the contract when appellants had enjoyed substantially all the benefits therefrom. The hearing on the motion to amend was held on May 12, 1966, four days before the trial date. We recognize that CR 15.01 contemplates that “leave shall be freely given when justice so requires,” as the rule itself stipulates. Nevertheless the trial court is vested with a discretion in ruling on motions to amend pleadings. In the present case, the dates and contract itself showed the period the rental contract was to run. There was no offer to surrender the equipment; in fact, appellants continued to use it for some time thereafter. In instruction 5, the trial court allowed the jury to give appellants credit for any time the equipment was inoperable against the rental price agreed upon. CR 15.02. This left only the contention (contained in the amended complaint) that the equipment did not plow a furrow sufficiently deep to produce the maximum crop. This claimed item of damages is highly speculative assuming for the purpose of argument that the equipment contemplated by the contract was not furnished. Appellants accepted and used the equipment without objection. Enough said for this.

Appellants’ next point concerns an instruction to the jury to find for appellee $3000, representing the rental contract price of $7500 for the use of equipment less $4500 admittedly paid on the contract. By instruction number 5, the jury was authorized to “deduct from any such award made under instruction #3 or #4, the amount of the fair rental value of said equipment during the times said equipment was inoperable.” This instruction placed no limit on the amount the jury could “deduct.” We conclude the instruction questioned was proper.

Appellants next say: “The trial court erred in permitting and actually directing a recovery upon an implied contract without pleading to support it.” This position is predicated upon the fact that the action of the trial court in directing the jury to find $2915.50 for appellee was really a direction to find under quantum meruit without a pleading demanding quantum meruit. Appellants cite Ellis v. Knight, Ky., 382 S.W.2d 391. We agree, as was said in Ellis, supra, page 393, “with the principles laid down in these cases, but they have no application to the instant case.” Cf. Simmons v. Atteberry, Ky., 310 S.W.2d 543. In the case at bar, appellee’s answer and counterclaim alleged a contract different from that claimed by appellants. The jury was instructed in such a manner that it could accept either theory. It accepted the appel-lee’s. Furthermore, appellants benefited by the contract. It is written in Johnson v. Tackitt, 173 Ky. 406, 191 S.W. 117, 118, that: [Ejven though the breach were appel-lee’s since his work had been accepted by and was beneficial to appellant, he could recover upon a quantum meruit, subject to appellant’s right to recover damages, as asserted in her counterclaim, for appellee’s breach.” It may be added that Johnson, supra, came along years before the liberalization of modern Civil Code of Practice.

We are next told by appellants that “the trial court under the evidence erred in directing a verdict for J. T. Southard for harvesting work performed.”

In presenting this argument, appellants say that under uniform practices in large corn producing territories 10 percent must be deducted for “moisture” content, which when deducted from the 29,155 bushels gathered leaves only 26,240 bushels they should pay for. This argument overlooks evidence by Ed Kincade, office manager of Henderson Elevator, that moisture is not deducted from bushels, only from weight measurement. With our limited knowledge of weights and measurements, we may assume that a bushel is a bushel the world over.

Objection to the admission of various and sundry items of evidence is raised in appellants’ point six.

First it is claimed the trial court erred in admitting evidence by appellee of “profits” he would have made had be “been allowed to stay on the land that we was supposed to have stayed on.” (Appellee’s evidence.) Apparently at this point, appellee was attempting to complain that appellant allowed L. T. Duncan to harvest in the large, level boundary in violation of appel-lee’s claim that he had the exclusive right therein. The court did not instruct on “profits.” The evidence was not proper, but we do not consider it prejudicial.

Next appellants complain of the introduction of evidence pertaining to a “tachometer,” an instrument designed to register the number of hours a tractor is operated. Inasmuch as the trial court sustained objection to the material part of this evidence, such as was admitted was harmless.

Objection is made to evidence that appellants sued L. T. Duncan in connection with harvesting in the same territory covered by appellee’s oral contract. This may have been competent at that time on the question of appellants’ claim for pasturing and grazing rights and on the respective contentions as to where the harvesting was to be done. Anyway after a hearing by the trial court in the absence of the jury, any further evidence on this subject was prohibited. We find no prejudice in the admission of this evidence.

Appellants next urge that error was committed by the trial court in instructing the jury on compensation to appellee for use of equipment over and above the contract price ($7500). Appellants admitted using the equipment in excess of the time and for purposes not provided in the contract. The jury returned a verdict for the appellee of $1360 on this item. There was evidence the tractors were used a total of 1722 hours and that the reasonable and prevailing rental value of such equipment was $5 per hour making a total of $8610 for rental on these two pieces of the equipment. We detect no error in the instruction.

Appellants’ eighth point is phrased as follows: “The trial court erred in failing to instruct the jury as to setoff against the claim of damage of the defendant, J. T. Southard, with respect to the equipment rental contract, and in refusing to allow set-off for plaintiffs’ claims for breach of the equipment rental contract by defendant.”

The first prong of this argument complains that the trial court erred in failing to instruct the jury it could find for appellants on the claim attempted to be presented by amended complaint, which was not permitted by the court. As noted above, such matter was too speculative, justifying the trial court in disallowing the filing of the amendment. It follows that the trial court committed no error in refusing to instruct on that issue.

The second prong states that error was committed in refusing to allow setoff for plaintiffs’ claim for breach of the equipment rental contract by defendant.” In this appellants are in error. Instruction 5 allowed the jury, as pointed out above, to allow credit on the equipment rental contract without any limitation as to amount. Numerous other questions are presented in appellants’ brief under the above heading for the most part relating to the instructions. We find no merit in any of them.

Appellants’ ninth black letter assignment of error relates to instruction 6, which authorized the jury to find for appellee not more than $8000 for “undue wear, tear and damage” to equipment. The jury awarded $1360 under this and another instruction for use beyond the life of the lease. As we have observed, the jury was justified from the evidence in finding $1110 for use beyond the term. If the jury found this amount was included in the item of $1360, this leaves only $250 for “undue wear, tear and damages” authorized in instruction 6. The evidence justified this amount.

Appellants present their tenth question thus: “The trial court erred in failing to submit to the jury the issue of rescission of the equipment rental contract by breaches of the defendant.” The contract had another year to run. The judgment terminated it. This was an equitable issue properly disposed of by the trial court in the judgment.

The eleventh question is presented in the following language: “The trial court erred in overruling the motion for a directed verdict of the plaintiffs on the claim asserted against them by the defendant in his counterclaim for breach of the contract of harvesting and failure to pay therefore.” This question is identical with question one heretofore discussed.

Appellants’ next and last question is stated as follows: “The trial court erred in failing to direct a verdict for the plaintiffs on the claim asserted against them by the defendant for damage to the equipment.”

There was evidence for appellee that the equipment was abused in excess of and beyond usual wear and tear. Also evidence was offered showing difference between the market value of the equipment before and after the term of the lease (from $5000 to $8000) in “excess of wear and tear and depreciation.” As heretofore pointed out, the verdict on this item could have been as low as $250 but not more than $1360. The verdict on equipment rental contract was for $8860, subject to a credit of $4500 theretofore paid, or a net of $4360. It is apparent that the jury intended to allow appellee $3000 balance on the written contract and $1360 for damages done to the equipment for use over the term of the contract. There was no motion to itemize the findings in the verdict.

The evidence was conflicting on damages to the equipment. We think the trial court properly overruled appellants’ motion for a directed verdict on this item.

The judgment is affirmed..

All concur.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    FLEETWOOD TRAILER COMPANY OF OHIO, Inc., Appellant, v. Jesse STANLEY d/b/a Courtesy Trailer Sales, Irvin Davidson and Lleweller Davidson, Appellees.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.
    Boyd F. Taylor, Hamm, Taylor & Milby, London, for appellant.
    Isaac Turner, Hyden, for appellees.
   CULLEN, Commissioner.

Appellees Irvin Davidson and wife rescinded a contract by which they had agreed with Jesse Stanley, a dealer, for the purchase of a house trailer manufactured by appellant Fleetwood Trailer Company of Ohio. They sued both Stanley and Fleetwood to recover the down payment they had made, in the amount of $3,399. The trial court awarded recovery for that amount against the two defendants, jointly and severally. Fleetwood alone has appealed.

Fleetwood makes two arguments: (1) That the Kentucky trial court had no jurisdiction over it because it is an Ohio corporation that does not do business in Kentucky within the meaning of the process statute, KRS 271.610; and (2) that the Davidsons had no cause of action against Fleetwood for any relief growing out of rescission by the Davidsons of their contract with Stanley. We think the second argument is so plainly correct that we shall give the appellant relief on that ground and pass the more troublesome question of jurisdiction.

The evidence was that Stanley was a franchise dealer for Fleetwood and also was a dealer for other manufacturers of house trailers. Stanley’s method of doing business was to purchase trailers from Fleet-wood (and the other manufacturer), paying for them through a floor-plan financing arrangement with a finance company. He then sold the trailers on his own account. He was not an agent of Fleetwood. The contract under which the Davidsons purchased the trailer in question was made solely with Stanley, he got the money for the down payment, and Fleetwood was nowhere mentioned in the contract. Stanley went to Fleetwood’s plant to get the trailer for delivery to the Davidsons, and at that time executed commercial paper to a Michigan bank and paid Fleetwood in full for the trailer. When Stanley delivered the traile. to the Davidsons they refused to accept it on the ground that it did not comply with the contract specifications. Thereafter they brought the instant suit to recover their down payment.

We are unable to conceive of any theory on which the Davidsons, upon rescinding their contract with Stanley, could recover their down payment from Fleetwood, who was not Stanley’s principal, was not a party to the contract, and did not get the down payment money. The trial judge, in his conclusions of law, found that “the trailer was not furnished to plaintiffs as Fleetwood was required to do under the purchase order.” The fact is that Fleetwood was not required to do anything under the purchase order — it was not a party to the purchase order. The trial court also found that “the contract entered into between the plaintiffs and the defendants was rescinded.” Again, the fact is that the plaintiffs did not have a contract with the defendant Fleetwood, either to be performed or to be rescinded.

The judgment is reversed, with directions to enter judgment dismissing the complaint against Fleetwood Trailer Company of Ohio.

All concur.


author: DAVIS, Commissioner.

text:
    HARLAN APPALACHIAN REGIONAL HOSPITAL et al., Appellants, v. Lucy TAYLOR et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.

      Grant F. Knuckles, James S. Wilson, Pineville, for appellants.
    Martin Glazer, Dept. of Labor, Frankfort, Stuart E. Alexander, Louisville, W. R. Forester, Greene & Forester, Harlan, J. Keller Whitaker, Workmen’s Comp. Board, Frankfort, for appellees.
   DAVIS, Commissioner.

Once again we are confronted with the question of whether an injury sustained by an employee on the employer’s parking lot, while the employee is en route to work, is compensable under KRS Chapter 342. The Workmen’s Compensation Board concluded that Lucy Taylor, appellee herein, was not entitled to workmen’s compensation for injuries allegedly sustained by her when she fell in the parking lot of the Harlan Appalachian Regional Hospital, as she was leaving her car preparatory to going to work in the hospital building. The circuit court overturned the Board’s decision and ordered the matter remanded to the Board with directions to award her such compensation as may be proper under the evidence. This appeal challenges that action of the circuit court.

Appellants point out that KRS 342.005 directs that workmen’s compensation benefits are limited to such accidental injuries or disability from occupational diseases as are characterized as “* * * arising out of and in the course of his employment, * * It is urged by appellants that an injury sustained by the employee while on the way to work, but before entering on work duty, could not meet the statutory prerequisite for compensation. For the reasons hereinafter suggested, we are unable to accept this contention.

Appellants cite and rely upon Bickel v. Ford Motor Co., Ky., 370 S.W.2d 193, in which it was specifically held that an employee who slipped and fell on the parking lot furnished for the employees by the company had not sustained an injury arising out of his employment within the meaning of KRS 342.005. It is patent that Bickel would rule the present case, if the court adheres to the precepts of that decision. It is noteworthy that Bickel is posited upon United States Steel Co. v. Isbell, Ky., 275 S.W.2d 917, which was a companion case of, and based upon, Harlan-Wallins Coal Corp. v. Stewart, Ky., 275 S.W.2d 912. Examination of the three opinions just cited discloses the difficulty which the court has encountered in dealing with cases similar to the one at bar. As recounted in Harlan-Wallins Coal Corp. v. Stewart, supra, the court has reached divergent results in the long series of cases cited and discussed in the majority and dissenting opinions.

In Ratliff v. Epling, Ky., 401 S.W.2d 43, another look was had at cases of this nature, said to involve the so-called “going and coming” rule. In the Ratliff case the court announced:

“In our opinion the ‘operating premises’ test is a fair one and most consistent with the trend of our decisions, and we hereby adopt it. Applying it to this case, we find that the roadway area extending at least as far as the point opposite which the employee was killed (173 feet from the drift mouth) properly should have been considered within the ‘operating premises’ of the employer by the Board.” Id., 401 S. W.2d 45.

In the course of the Ratliff opinion, reference was made to certain Pennsylvania decisions including Young v. Hamilton Watch Co., 158 Pa.Super. 448, 45 A.2d 261, and Shaffer v. Somerset Community Hospital, 205 Pa.Super. 419, 211 A.2d 49. We attached no significance to the fact that the Pennsylvania statute applicable in the Young case, and apparently extant when the Shaffer case was decided by the Pennsylvania court in 1965, required that the injury occur on the “premises” of the employer. In Young v. Hamilton Watch Co., the Pennsylvania court denied compensation to an employee who had fallen in a company-owned employees’ parking lot while on his way to work. There the parking lot was séparated from the main plant boundary by a public highway and for that reason, apparently, compensation was denied. Observe the following language appearing in the Young opinion:

“In the present case it is obvious that the parking lot was not a part of the operating business; it was distinct therefrom and separated from defendant’s plant by a public thoroughfare. See Molek v. W. J. Rainey, Inc., supra, 120 Pa.Super. 95, 181 A. 841. Neither physically nor constructively was the parking lot part of the premises upon which the employer’s business was conducted, and in which claimant was engaged. If claimant’s theory is sound, any such parking lot, regardless of its remoteness to an employer’s plant, would have to be considered as part of the premises upon which the employer’s business was being carried on. The word ‘premises’ cannot be enlarged in its meaning and application so as to include land or property outside of that used in connection with the actual premises where the employer carries on the business in which the employee is engaged.” Id., 45 A.2d 263.

The facts in Shaffer v. Somerset Community Hospital, 205 Pa.Super. 419, 211 A.2d 49, are indistinguishable from the case at bar. In Shaffer, a nurse was on her way to work at a hospital when she slipped and fell in the icy parking lot adjacent to the hospital, owned by the hospital and furnished as a facility for employee parking. The court allowed compensation and considered that the rationale of Young v. Hamilton Watch Co., 158 Pa.Super. 448, 45 A.2d 261, was not controlling. In part, the Pennsylvania court related its reasons for allowing compensation in Shaffer as follows:

“In determining the instant appeal, we may not close our eyes to the needs of present day society. The automobile has become the universal means of transportation. A hospital must of necessity have a parking lot. Its presence is essential to the doctors and to the hospital personnel, frequently called under emergency conditions. In the case at bar, the parking lot was clearly an integral part of the hospital premises. We perceive no merit in the argument of the insurance carrier that claimant did not have any duties to perform on the parking lot. She was on the premises of her employer when she was injured, and the Board so found. The fact that her actual duties were in the hospital building itself does not affect her right to compensation.” Id., 211 A.2d 50.

Following the decision in Ratliff v. Epling, Ky., 401 S.W.2d 43, this court allowed compensation recovery in Smith v. Klarer Company, Ky., 405 S.W.2d 736. In the Smith case, the accident occurred while the employee was on her way to work, walking along a sidewalk situated on property owned by the employer and used by the general public and the employees of the company. We are unable to perceive any distinguishing factor in the case at bar which would make the rule applied in Smith v. Klarer Company inapplicable here. It is concluded that the parking lot in this case qualified as part of the “operating premises” within the purview of the rule announced and adopted in Ratliff v. Epling and followed in Smith v. Klarer Company. To the extent that Bickel v. Ford Motor Co., Ky., 370 S.W.2d 193; United States Steel Co. v. Isbell, Ky., 275 S.W.2d 917; Harlan-Wallins Coal Corp. v. Stewart, Ky., 275 S.W.2d 912; Harlan Collieries Co. v. Shell, Ky., 239 S.W.2d 923; and cases of like import are inconsistent herewith, they are overruled.

The judgment is affirmed.

WILLIAMS, C. J., and EDWARD P. HILL, MILLIKEN, PALMORE, and STEINFELD, JJ., concur.

MONTGOMERY and OSBORNE, JJ., dissent.


text:
    James Lloyd CLAY, Appellant, v. Dorothy Davis CLAY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.
    Errol Cooper, Jr., Lexington, for appellant.
    C. B. Creech, P. Joan Skaggs, Ashland, for appellee.
   DAVIS, Commissioner.

Dorothy Davis Clay recovered judgment against James Lloyd Clay in the sum of $6,388.92 for past due child maintenance payments, which had accrued pursuant to previous orders of the court. James attacks the judgment (1) as being clearly erroneous and not supported by evidence of probative value, (2) because the trial judge did not rule on certain motions which James had made, and (3) because the trial judge failed to make findings of fact and conclusions of law on all issues.

Dorothy has filed a motion to strike the brief filed in behalf of James, asserting that it contravenes RCA 1.210 in omitting a formal statement of the questions presented. We find that the brief does have a preliminary statement of questions presented, although it is not formally labeled as such. We do not approve the form of the brief, but we do not consider its deficiency of such magnitude as to strike it. Accordingly, the motion of appellee to that end is overruled.

The litigation before us is but one episode in a long and tortuous domestic relations conflict which has found its way into the Fayette Circuit Court on countless occasions since its inception April 21, 1953. On September 8, 1966, Dorothy filed a motion “ * * * for appropriate relief inasmuch as the defendant is in arrears in the amount of $7800.00 for child maintenance for the parties’ two youngest sons, * * A rule against James was sought and issued. A hearing was had before a special judge (the third special judge who has been called upon in the various controversies between these parties). At the conclusion of the hearing, the judge entered the judgment appealed from.

The appellant has not brought here any transcript of the evidence which was heard by the special judge and upon which the special judge based his judgment. We are utterly at loss to imagine how it may be argued or determined that the finding of the special judge is clearly erroneous and not supported by evidence of probative value in such a circumstance. Knight v. Knight, Ky., 341 S.W.2d 59, relied on by the appellant, does not support appellant’s position. In Knight, the court pointed out that a hearing is appropriate incident to a motion to require payment of a maintenance award. The appellant had a hearing in the present case. It is axiomatic that this court will assume, in absence of the evidence heard by the trial court, that the evidence which was heard was sufficient to sustain the finding of that court. Com., Dept. of Public Safety v. Glasscock, Ky., 415 S.W.2d 106, 2A Kentucky Digest, Appeal and Error,

Appellant’s complaint that the trial judge failed to make findings of fact and conclusions of law is without merit. CR 52.01 exempts rulings on motions from its mandate for such findings of fact and conclusions of law. Powell v. Powell, Ky., 423 S.W.2d 896 (decided January 19, 1968) ; LeBus v. LeBus, Ky., 408 S.W.2d 200.

Appellant complains that the trial court failed to rule on motions filed by him on January 27, 1960, January 26, 1962, and May 9, 1962. There is nothing in the record before us to suggest that appellant demanded a ruling upon these motions, but it is manifest that the finding of the court substantially denied the relief sought in the motions anyway. Hatfield v. Derossett, Ky., 325 S.W.2d 84, affords no support to appellant’s position, as that was an instance in which custody of children was involved rather than enforcement of an already entered maintenance award.

The judgment is affirmed.

All concur.

      . The maintenance allowance was fixed at $150 per month by order dated July 1,1955.


author: WADDILL, Commissioner.

text:
    Carl CABE, Commissioner, etc., Appellant, v. William BUSH and Workmen’s Compensation Board of Kentucky, Appellees. O’DANIEL MOTORS, INC., Appellant, v. William BUSH and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.
    Stuart E. Alexander, Louisville, Thomas R. Emerson, Frankfort, for appellant Carl Cabe, Commissioner etc,
    Richard I. McIntosh, John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for appellant O’Daniel Motors, Inc.
    Robert C. Carter, Stanley V. Benovitz, Louisville, for appellees.
   WADDILL, Commissioner.

William Bush, 61 years of age, had been employed by O’Daniel Motors, Inc., since 1958 as a janitor. On September 25, 1964, while lifting a barrel of trash at his place of employment, he collapsed. Preliminary medical tests revealed he had sustained a fracture of the fifth thoracic vertebra. Later, more extensive tests disclosed multiple myeloma. The several physicians who have examined him agree that he is totally disabled.

Since Bush and O’Daniel Motors, Inc., were operating under the provisions of our Workmen’s Compensation Act (KRS, Chapter 342) Bush sought compensation benefits against his employer and the Special Fund (KRS 342.120). The Workmen’s Compensation Board heard the case and dismissed Bush’s claim on the ground that he:

“ * * * failed to prove that he received a traumatic injury by accident arising out of and within the scope of his employment with the defendant that caused or brought about or contributed to the multiple myeloma from which he was suffering.”

On the appeal to the circuit court (KRS' 342.285) the order of the Board denying compensation was set aside and the case remanded to the Board with directions to determine the amount of Bush’s disability and to make an award allocating it in its proper proportions between the employer and the Special Fund. The circuit court made this determination upon the finding that:

“ * * * there is no substantial evidence of probative value to support the Board’s finding and, on the contrary, the evidence clearly establishes that the plaintiff suffered a traumatic injury by accident arising out of and within the scope of his employment with the defendant that caused a dormant non-disabling disease to be aroused and brought into disabling reality.”

O’Daniel Motors, Inc., and the Special Fund have appealed (KRS 342.290) urging that the circuit court erroneously substituted its judgment for that of the Board as to the weight of the evidence on questions of fact and that the court had incorrectly concluded that Bush had sustained a traumatic personal injury by accident as defined by KRS 342.005(1).

The testimony concerning how Bush’s accident occurred is not in dispute, i.e., he collapsed while emptying a trash barrel for his employer. In light of our decisions interpreting the provisions of KRS 342.005(1), it cannot now reasonably be argued that Bush did not sustain a traumatic personal injury by accident arising out of and in the course of his employment. See City of Prestonsburg v. Gray, Ky., 341 S.W.2d 257; Wilke v. University of Louisville, Ky., 327 S.W.2d 739; Harlan Colleries [Collieries] v. Shell, Ky., 239 S.W.2d 923. Hence, we now examine the other testimony to ascertain whether the circuit court usurped the Board’s function in determining that Bush’s accident caused or contributed to cause his disability.

Dr. J. M. Riley, Jr., an orthopedic surgeon, examined Bush shortly after the acci-de and he testified that X-rays first taken revealed that Bush had sustained a destructive lesion of the fifth thoracic vertebra with minimal compression. Later, he was convinced that Bush had multiple myeloma and that this disease preexisted the occurrence of his accident. He opined that Bush would not have sustained a fracture from the amount of trauma that was placed upon the vertebra just by lifting something if he had not had a preexisting lesion. It was his opinion that the bending and lifting done by Bush actually precipitated the fracture on the particular day but, if the accident had not happened on September 25, 1964, Bush would have eventually gotten a compression fracture since he had a diseased condition of his spinal column.

Dr. Marie Keeling, an internist, examined Bush the day after his accident. This physician discovered an osteolytic appearing lesion in the body of Bush’s fifth thoracic vertebra. It was this discovery that led to her subsequent positive diagnosis of multiple myeloma which she stated is a cancerous condition that originates in the bone marrow. When asked if Bush’s condition was caused by his traumatic experience, Dr. Keeling replied:

"The acute condition in which I found Mr. Bush the first time I saw him, yes, I think it was caused by the incident at work. The underlying disease process, no.”

Dr. W. C. Mitchell, whose practice is limited to orthopedic surgery, confirmed the previous medical finding that Bush was a myeloma victim. It was Dr. Mitchell’s opinion that the injury Bush had sustained was provocative of the collapse of the fifth and sixth vertebrae.

Dr. W. W. Kotcamp, an instructor of orthopedic surgery at the University of Louisville School of Medicine, testified that he examined Bush on September 20, 1965, and found about 75 per cent of the body of the vertebra had disappeared. This physician believed 25 per cent of Bush’s Disability is due to the trauma he received when lifting the trash container and 75 per cent is due to the multiple myeloma which preexisted the trauma.

The recited testimony is not in conflict because it consistently shows that Bush had a preexisting disease that was caused to become disabling by a work-connected injury. In this situation the Board should have found, as a matter of law, that Bush sustained a compensable injury and awarded him compensation, apportioning it between his employer and the Special Fund. In Fraley v. Rusty Coal Co., Ky., 399 S.W.2d 479, which presented questions similar to those in the instant case, we said:

“The circuit court set aside the award against the Special Fund apparently because of a belief by the court that disability traceable back to a preexisting, dormant, nondisabling disease is not com-pensable even though the disease was aroused into disabling reality by a com-pensable injury. This belief was erroneous, because KRS 342.120(4) specifically provides for compensation chargeable against the Special Fund in such cases. The doctor’s report in this case specifically found that the disease of arthritis was aroused into disabling reality by the injury.”

The instant case also presents issues similar to those arising in Young v. Eastern Coal Corporation, Ky., 408 S.W.2d 464. In the latter case the basic issue was whether the compensation claimant had demonstrated by evidence that he had sustained a work-caused total disability as the result of a heart attack. We determined as a matter of law that evidence established that 50 per cent of the disability was due to a preexisting disease and the other 50 per cent was caused by the heart attack. Other cases that sustain the judgment which was entered in the instant case are Young v. Eastern Coal Corporation, Ky., supra; Johnson v. Stone, Ky., 357 S.W.2d 844; Grimes v. Goodlett & Adams, Ky., 345 S.W.2d 47; Terry v. Associated Stone Company, Ky., 334 S.W.2d 926.

We conclude that the circuit court correctly decided that Bush was entitled to an award and that it should be properly apportioned between O’Daniel Motors, Inc., and the Special Fund according to the evidence.

The judgment is affirmed.

All concur.


author: C. J. WADDILL, Special Commissioner.

text:
    Ellis DUNCIL and Larry Bentley, Appellants, v. Naoma Allen GREENE, Administratrix of the Estate of John H. Greene, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.
    James Bates, Dry Creek, F. Byrd Hogg, Hogg & Cornett, Whitesburg, for appellants.
    Woodrow W. Burchett, Prestonsburg, for appellee.
   C. J. WADDILL, Special Commissioner.

John H. Greene was killed in a collision between a truck and an automobile. Na-oma Allen Greene, the administratrix of his estate recovered judgment for $26,000.00 against Ellis Duncil and Larry Bentley. Prior to the trial, Duncil and Bentley requested that the administratrix furnish the names of witnesses who would testify. At the trial a witness whose name had not been revealed gave damaging testimony. He stated that he had been an eyewitness to the accident and that he saw the truck driven by Bentley cross to the wrong side of the road and strike the automobile driven by Greene. Some three months after the judgment was entered Duncil and Bentley moved to vacate the judgment. CR 60.02. In support of their motion they filed an affidavit signed by this unrevealed witness in which he swore that he was not present at the time of the collision but was at work some distance away. The affidavit also contained the following:

“I further state that I testified falsely in the trial of this case, and that I was hired to do so by Naoma Greene and Kenneth Roberts, who knew that I did not know anything about this wreck.”

An affidavit of James Bates, attorney for Duncil and Bentley was also filed in support of the motion. He stated that he had investigated the matter and that he had learned from the foreman of this unrevealed witness, that said witness was working in the mines at the time the accident happened and that the employer’s time book would verify this information. No counter-affidavits were filed.

The motion to set aside the judgment was overruled by the trial court on the ground that the jury could have reached the verdict on other evidence. Because of the uncontradicted affidavits above mentioned we are of the opinion that this was an abuse of discretion. The false testimony was such as might reasonably be expected to influence the jury. The administratrix had personal knowledge as to whether she hired this witness and she did not deny complicity in this fraud.

In Commonwealth v. Miller, Ky., 416 S.W.2d 358 (1967) we said:

“Our system of justice is based upon truth, without which it cannot survive. Resort to untruth is contemptuous. * * * Efforts to trifle with the courts will not succeed. Kinmon v. Commonwealth, Ky., 396 S.W.2d 331 (1965).”

Considering all of the circumstances revealed by this record we hold it is wrong to permit Naoma Greene to reap any benefit by hiring a witness to commit perjury. The judgment is reversed with directions to set it aside and grant a new trial.

All concur.


author: CLAY, Commissioner.

text:
    H. S. GEORGE, Mayor, City of Lebanon, Kentucky, Appellant, v. CITY COUNCIL OF LEBANON, Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.

      Lawrence S. Grauman, Frank E. Haddad, Jr., Louisville, for appellant.
    Joseph J. Leary, Frankfort, for appellee.
   CLAY, Commissioner.

This suit was brought by appellant, the mayor of the City of Lebanon, against the city council, the individual members thereof, and the police department and its members. The complaint sought injunctive relief to restrain the city council from giving orders to the police department and to enjoin the members of that department from obeying and carrying out such orders. By answer and counterclaim defendants sought a declaration of rights. The Chancellor dismissed the complaint.

The controversy involves the respective powers of a mayor and a city council of a fourth class city to direct the manner in which the police force will perform its duties. It is governed by Chapter 86 of Kentucky Revised Statutes. Perhaps the problem would be different if Lebanon had a commission and city manager form of government under KRS Chapter 89.

As we read the parties’ briefs, the general conclusions of the Chancellor are not in dispute. For example, he found that the council had power to “regulate” the police department by “formal ordinance”; that the mayor had no power to command the police force to disregard a valid ordinance; and that the court could not enjoin the acts of policemen performed pursuant to a valid ordinance. The contentions presented here are in substance that the Chancellor did not declare the rights of the parties with sufficient specificity and did not settle the controversy. We will examine the events which brought on this lawsuit.

On July 1, 1967, the mayor issued an “ORDER FOR POLICE DEPARTMENT” which provides:

“Effective immediately,
“Any orders issued by the Police Department must be cleared through the Mayor. All policemen from this date will take orders from the Mayor.”

On July IS, he issued a “NOTICE TO POLICE DEPARTMENT” which recites:

“Any citations given to juveniles for entering night clubs will be issued at police car instead of coming to City Hall.”

It appears that by resolution of January 10, 1966, the city council approved the appointment by the mayor of J. T. Whitlock to act in some unknown capacity in connection with the “Police and Fire Depts.” In the record appears this undated paper:

“TO: LEBANON POLICE DEPT.”
“FROM: J. T. WHITLOCK
“This is to advise that I, J. T. Whitlock am still the Councilman selected by the Council to relay their orders and commands to the Lebanon Police Dept. This will further advise that there has been no change in the Powers Vested in me by the Lebanon City Council over 5 years ago.
“I will continue to advise you of Council orders and desires until relieved by the council or the courts. I will expect to continue to receive the same excellent cooperation that you have given me for the last five years.”
“Signed J. T. Whitlock /s/”

Obviously the members of the police department are in a quandary. Apparently the mayor and the city council are independently attempting to direct the internal operations of the police department. It should be noted that as far as this record shows, the city council has not by formal ordinance, resolution, regulation or order directed the manner in which the members of the police force perform their duties. However, the above quoted communication from J. T. Whitlock casts a cloud on the mayor’s powers and the police department’s operations. It constitutes at least a threat of control which the mayor seeks to enjoin.

The source of the mayor’s power stems from the following two statutes:

KRS 86.200(3). “(3) The mayor shall be head of the city police, and may command them in the performance of their duties. He shall be a conservator of the peace, and when he considers it necessary in order to enforce the laws of the city, save life or property, or quell riots or mobs, he may summon into service any of the citizens, either civil or military, and in such cases he shall be present and command in person. The city council shall, by ordinance, prescribe fines and penalties for disobedience of the mayor’s orders and summons.” (Emphasis added)
KRS 95.730(1). “(1) In cities of the fourth and fifth classes the chief of police shall be in command of the police department, except that in cities of the fourth class he shall he second in command to the mayor.” (Emphasis added)

The pertinent powers of the city council may be found in the following two statutes:

KRS 95.700. “(1) The city legislative body in cities of the fourth and fifth classes may, by ordinance, establish a police department, appoint its members, and provide for their number, grades, compensation and regulation.” (Emphasis added)
KRS 86.110(11). “The city council may, within the city: (11) Enact ordinances, not in conflict with the Constitution or statutes, to carry into effect all the powers of the city, and do all things properly belonging to the police of incorporated cities.” (Emphasis added)

We will first take up the last statute quoted. The use of the term “the police” in this context is at first blush difficult to understand. The council takes the position that this refers to the police force or police department, which it simply could not do. The city council cannot act as a policeman. The term must have been used in the broader sense of “the regulation of morals, safety, sanitation, etc.; public order ; law enforcement”. Webster’s New World Dictionary (College Ed.). This of course is the exercise of the police power and, except incidentally, has nothing whatever to do with policemen. It is entirely possible the legislature inadvertently omitted the word “power” following the word “police” in this statute. In any event this is a grant of legislative, not executive, power. Since the statute requires an ordinance, the city council clearly has no authority to issue an executive order to the police department.

Nor does KRS 95.700(1) (above quoted) grant such authority. It gives the council the power of “regulation” of the “members” of the police department “by ordinance”. Regardless of the scope of “regulation”, the council cannot issue executive orders to the police department. Therefore it cannot vest in J. T. Whitlock, or any other council member, the authority to direct or command the members of the police force in the performance of their duties.

As specified in KRS 86.200(3) (above quoted), the mayor is “the head of the city police, and may command them in the performance of their duties”. Of course he cannot direct them to act contrary to any valid ordinance or statute. In the absence of any valid legislative restrictions (or constitutional limitations), the mayor may issue proper orders relating to the performance of their duties by members of the police department. No one here questions the propriety of the mayor’s direction of July 15 relating to the place of issuance of citations.

In view of the conclusions above stated and the nature of this controversy, we believe the Chancellor should have more specifically declared the rights of the parties. When so declared consistent with this opinion, it does not appear necessary that injunctive relief be granted appellant. We must assume the city council and the Lebanon police force will respect the rights of the parties as declared in the amended judgment we are directing the Chancellor to enter.

The judgment is affirmed in part and reversed in part, with directions to amend the judgment consistent with this opinion.

All concur.


author: STEINFELD, Judge.

text:
    LOOKOUT COAL COMPANY, Inc., Appellant, v. Lonzle Lee WILLIAMS et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 16, 1968.

      Craft & Haynes, Hazard, for appellant.
    Kelsey E. Friend, Friend & Mullins, Pikeville, Stuart E. Alexander, Louisville, Workmen’s Compensation Bd., Martin Gla-zer, Thomas R. Emerson, Frankfort, for ap-pellees.
   STEINFELD, Judge.

Lonzie Lee Williams’ occupation was that of a coal loader in the mines. In performing his duties he loaded cars with a shovel, which together with the coal thereon, weighed up to 50 pounds. He claims that about noon on June 20, 1966, while he was attempting to put a shovelful of coal into a car in the mines of his employer, Lookout Coal Company, he felt a severe pain in the lower part of his back near his belt line. He continued to work that day and returned to the mines the following day when he notified Lookout of his injury. On June 22, 1966, he saw Dr. W. F. Clarke. He did not return to his employment until sometime between July 7 and July 11, 1966, when he worked only oné day. He said, “I found out they hadn’t made the report and I quit. I didn’t want to work for people like that.”

On July 11, 1966, he went to work for Clevinger and Sweeney Coal Company but continued only about three days (there is some testimony that he may have worked until August 29, 1966).

On the 7th day of July, 1966, he filed a claim with the Workmen’s Compensation Board whereby he sought an award against Lookout. He did not make Clevinger and Sweeney a party. The parties stipulated that Lookout had accepted the provisions of the Workmen’s Compensation Act and that it had notice of the alleged injury. There is no dispute as to the amount of the award. A part of his testimony before the Board was as follows:

“Q. You went to work for Clevinger and Sweeney on July 11 ?
A day or two after that. >
Have you continued to work for them? ©
I hurt my back again when I tried to stand and load again. >
When was that? ©
A. It was about the 3rd day of last month.
Q. The same thing happened to you as it happened while you worked for Lookout ?
A. Yes.
Q. You were doing the same type of work?
A. Yes.
Q. And it was the same type of injury?
A. Yes.”

On redirect examination he said that when he returned to his work at Lookout about July 11 he was having pain in his back but that he tried to work and couldn’t because the pain got worse. He also said that when he was employed by Clevinger and Sweeney he was still having pain and that he was unable to continue working for that company. He was asked and answered as follows:

“Q. 10 When you tried to work for the last employer, what happened to your pain?
A. Got worse all the time.
Q. 11 You don’t have no new injury then would you?
A. No, it is the same old injury.”

Dr. W. F. Clarke was the attending physician. He diagnosed Williams’ condition as “chronic lumbo-sacral strain”. He concluded that the present disability was the result of the injury which occurred on June 20, 1966.

Dr. J. Hunter Smith testified that Williams had a mild radiculitis of the right sciatic nerve with a chronic lumbosacral sprain. Dr. Smith also said that he had examined x-rays of Williams and that “L-5 is just a little depressed” and that this was a defect of congenital nature which was such that could be aroused into disabling reality as a result of trauma. Lookout moved the Board to make the Special Fund a party. KRS 342.120. The motion was sustained and pursuant to KRS 342.121 the Board appointed Dr. K. Armand Fischer to examine Williams. Dr. Fischer reported that the x-rays he had taken of Williams’ spine were inconclusive, however, in answering questions propounded by the Board the doctor made it clear that he found no active disability which Williams had suffered prior to June 20, 1966, and that he found no latent non-disabling disease or other condition capable of being aroused or brought into disabling reality by reason of the traumatic injury which may have occurred on June 20, 1966. Lookout filed exceptions to this report. KRS 342.121(4).

Dr. T. R. Miller testified and said it was his opinion that the disability was congenital in nature and he described it as a mechanical weakness. He said that this defect or weakness was of the type that could be described as having been dormant or latent and non-disabling prior to June 20, 1966, but capable of being aroused into disabling reality by reason of the subsequent injury.

The Board dismissed the Fund, found Williams to be totally and permanently disabled as a result of the injury of June 20, 1966, and awarded him total disability against Lookout.

Lookout filed a timely appeal in the circuit court claiming that the Board had erroneously dismissed the Special Fund and had erroneously imposed the entire award upon Lookout.

The court sustained the Board and Lookout has appealed. It says that the Board erred in finding that Williams was totally and permanently disabled as a result of the alleged injury of June 20, 1966. It contends that there was a pre-existing condition and that there was a subsequent injury. It argues that the Board erred in dismissing the Special Fund.

In considering these contentions we must keep in mind that where there was conflicting evidence of probative value before the Board, its findings of fact will not be disturbed by the courts. Miller v. Olin Mathieson Chemical Corp., Ky., 398 S.W.2d 472 (1965).

Appellant relies upon Cabe, Commissioner of Labor et al. v. Splash Dam By-Products Coal Corporation et al., Ky., 416 S.W.2d 361 (1967). Splash Dam does not support this contention for there we found no conflicting evidence and that “The testimony of all of the physicians, with the exception of Dr. Henderson, is non-committal as to whether a disability or condition pre-existed the injury and was aroused by it.” Here we have conflicts, therefore, the finding of the Board shall stand. Shaw v. Sippi Products, Ky., 411 S.W.2d 926 (1967).

The judgment is affirmed.

All concur.


author: STEINFELD, Judge. EDWARD P. HILL, Judge.

text:
    BLUE GRASS RESTAURANT COMPANY, Inc., et al., Appellants, v. Herbert R. FRANKLIN, Appellee. BLUE GRASS RESTAURANT COMPANY, Inc., Appellant, v. EASTLAND INVESTMENT COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 16, 1968.

      William H. Fortune, Harbisón, Kessinger, Lisle & Bush, John L. Davis, Michael L. Ades, Stoll, Keenon & Park, Lexington, for appellants.
    Amos H. Eblen, Eblen, Howard & Milner, Lexington, G. A. Chadwick, Jr., Washington, D. C., for appellees.
   STEINFELD, Judge.

Herbert R. Franklin was attending a banquet in a motel. While descending steps leading to rest rooms available to the public he fell and was injured. He recovered judgment for $12,537.00 jointly against Blue Grass Restaurant Company, Inc. and Eastland Investment Company. Subsequently, the trial court adjudged that Blue Grass should fully indemnify Eastland. Eastland and Blue Grass appeal from the judgment for Franklin, and Blue Grass appeals from the judgment awarding indemnity to Eastland. We affirm.

Under a “License Agreement” or franchise issued by Holiday Inns of America, Inc., Eastland constructed and operated a motel in Lexington, Kentucky.

On January 20, 1959, Blue Grass leased from Eastland 4,100 square feet of space containing a restaurant, a cocktail lounge and kitchen. Approximately a year and a half later Eastland constructed an addition to the motel building. When completed it contained a lobby and banquet room on the first floor, with a stairway which was between five and six feet in width leading down to the basement where there were located a bakery, storage area used by East-land and Blue Grass, several offices, one of which was used by Eastland, and public rest rooms.

The stairway which was normal and well lighted had nine steps, a landing and then two steps and was enclosed by a wall on each side. It had no handrails. An ordinance in effect in the city of Lexington required handrails on both sides.

By interlineation the lease was amended to increase the leased space from 4,100 to 10,000 square feet and to include “banquet room, offices and rest rooms.” At all times it provided that Blue Grass would “make all the repairs on the interior of the premises * * * leased” and would “save harmless lessor from all claims for damages to property or persons arising from lessee’s use and occupancy of the leased premises, or asserted by any employees, customers or invitees of the lessee.” Employees of Blue Grass kept the stairways clean.

Franklin, who was not a registered guest occupying a sleeping room at the Holiday Inn, was the principal speaker at a dinner being served in the banquet room by Blue Grass on May 23, 1963. He left that room and approached the stairway. He testified:

“Q. 32 Alright, will you describe the stairs for us?
A. Well, the stairs * * * the beginning of the stairs * * the stairway itself is a, well a normal stairway, I would say, consisting of nine or ten steps.
Q. 33 Is there a partition beside it?
A. There’s a wall on both sides.
Q. 34 And what did you do when you got to the stairs?
A. I started down the stairs.
Q. 35 Then what happened?
A. Well, very near the top of the stairs I slipped, and as I slipped, I started to fall and I attempted to catch myself * * to get my balance * * * and when I did, there just wasn’t any step there and I, of course, threw out my arms in this manner (indicating) to try to catch onto a banister or handrail or something, and as I did, there was nothing there. I went down and when I went down, of course, I struck my elbow and that’s when the accident occurred.”

After admitting that he had no trouble seeing the stairway in front of him, he was asked and answered:

“Q. What caused you to fall?
A. I don’t know. I slipped.
Q. The truth of it is you don’t know what caused you to fall, isn’t it?
A. Yes * * * no sir. I fell because I attempted to catch * * *. I slipped and I attempted to stop my fall by regaining my balance. I didn’t do that. I reached with my hands in this manner to catch hold of a banister or rail and it wasn’t there. There was nothing there.”

Interrogation followed regarding a deposition he had given:

“Q Isn’t it true that you also stated in that deposition that you tried to catch yourself on the next step and the next step was not there?
A. I said that * * * and as I say here again today, that when I slipped, I attempted to catch with my other foot and I fell forward.
Q. Let me read this answer to you, then, if you don’t recall Question 110, the question asked you, ‘Did you trip?’ Answer: ‘I lost my, footing, if this is what you mean. I lost my footing and I attempted to recover.’
A. That’s right.
Q. T thought I was, then I lost my balance.’
A. Yes, sir.
Q. All right, ‘Then I tried to catch myself on the next step and the next step was not there. That is just about the way it felt like.’ Is that the correct answer?
A. That’s right.”

Appellants do not complain of the form of instruction which the court gave to the jury that the ordinance required that handrails be provided on each side of the stairway, nor do they argue that the failure to provide handrails was not negligence. The absence of such latter contention and an intervening cause which precipitated Mrs. Levitt’s fall distinguishes this case from Brown Hotel v. Levitt, 306 Ky. 804, 209 S.W.2d 70 (1948). They contend that the well lighted stairway and the absence of handrails were clearly visible to Franklin; that it was “his misstep which precipitated his fall”, and that the lack of handrails was not the proximate cause of his injury. They insist that their motion for a directed verdict should have been sustained. They cite City of Pineville v. Selvey, Ky., 312 S.W.2d 897 (1958) ; Lanzner v. Wentworth, Ky., 315 S.W.2d 622 (1958); Milliken v. Union Light, Heat & Power Co., Ky., 341 S.W.2d 261 (1960); Montgomery Ward v. Ellis, Ky., 380 S.W.2d 223 (1964) and Marmor v. Marmor, Ky., 409 S.W.2d 526 (1966). In countering Franklin relies on Porter v. Cornett, 306 Ky. 25, 206 S.W.2d 83 (1947) ; Greyhound Terminal of Louisville v. Thomas, 307 Ky. 44, 209 S.W.2d 478 (1948); City of Madisonville v. Poole, Ky., 249 S.W.2d 133 (1952); Humbert v. Audubon Country Club, Ky., 313 S.W.2d 405 (1958) ; Wilkinson v. Family Fair, Inc., Ky., 381 S.W.2d 626 (1964); and Restatement of Torts, Vol. IV, § 893, p. 495, Comment, Illustration 5, p. 497.

In Greyhound Terminal of Louisville v. Thomas, supra, we said:

“The violation of the terms of an ordinance is negligence per se; but in an action for damages, such violation must be the proximate cause of the accident to permit recovery for its violation. Pryor’s Adm’r v. Otter, 268 Ky. 602, 105 S.W.2d 564; Home Laundry Co. v. Cook, 277 Ky. 8, 125 S.W.2d 763. In Durham v. Maratta, 302 Ky. 633, 195 S.W.2d 277, 279, we said: ‘If the injury complained of is one which was intended to be prevented by the Statute and Ordinance, supra, the violation of their provisions must be considered as the proximate cause of the injury. 20 R.C.L. 43.’
“There can be no doubt that the purpose of the ordinance is to prevent persons descending or ascending a stairway from falling thereon. Appellee testified to facts from which a jury could not escape the conclusion that, had a handrail been maintained on both sides of the stairway in question, she would not have fallen. That being true, under the rule above recited, the failure to maintain the handrail in accordance with the terms of the ordinance must be considered to have been the proximate cause of appellee’s injuries. * *

Also see Ross v. Jones, Ky., 316 S.W.2d 845 (1958) and 38 Am.Jur. 838, Negligence, § 166; Restatement of The Law, Second, Torts, § 288B.

The ordinance which was violated was intended to prevent the injury which Franklin sustained, therefore, the failure' to comply must be considered a proximate cause. Greyhound Terminal of Louisville v. Thomas, supra.

The trial court instructed the jury that Franklin had the right to use the stairway but that it was his duty “to exercise that degree of care which an ordinary prudent person would exercise in traversing these stairs.” The jury found Franklin free of negligence on evidence which was sufficient to support that verdict. We cannot disturb this finding of fact unless clearly erroneous and we do not consider it so. Simons v. Allen, Ky., 309 S.W.2d. 755 (1958); Crowe v. Taulbee, Ky., 350 S.W.2d 620 (1961); Com., Dept. of Highways v. Stocker, et al., Ky., 423 S.W.2d 510, (decided January 12, 1968).

Eastland contends that even though Franklin is permitted to recover it is not liable. It claims that Blue Grass had complete control over the stairs and that the law in Kentucky places on the tenant sole responsibility for the proper maintenance of passageways over which he has control. Starks Building Company v. Eltinge, Ky., 269 S.W.2d 240 (1954); Mackey v. Allen, Ky., 396 S.W.2d 55 (1965); Wright and Taylor, Inc. v. Smith, Ky., 315 S.W.2d 624 (1958) and Home Realty Co. v. Carius, 189 Ky. 228, 224 S.W. 751 (1920).

In Louisville Trust Company v. Morgan, 180 Ky. 609, 203 S.W. 555, 7 A.L.R. 396 (1918) we decided that an action against the lessor of a hotel for the death of a guest because of fire was sufficiently pleaded, it having been alleged that the building ordinance was violated. In 1932 we held a bank operating a hotel as trustee and the president thereof in immediate control both liable for damages for death of a guest proximately resulting from violation of a statute requiring safeguards against fire. Pirtle’s Adm’x v. Hargis Bank and Trust Co., 241 Ky. 455, 44 S.W.2d 541 (1931) ; Taylor’s Adm’x v. Hargis Bank & Trust Co., 241 Ky. 36, 44 S.W.2d 549 (1931) and Pirtle’s Adm’r v. Hargis Bank & Trust Co., 243 Ky. 752, 49 S.W.2d 1002 (1932). Also see Turner v. Taylor’s Adm’x, 262 Ky. 304, 90 S.W.2d 73 (1936).

The evidence is clear that East-land used the stairway. It was the route to areas retained by Eastland including an office used by its President and at least two other employees. It knew from the time it constructed the addition, including the stairway, that the ordinance requiring handrails had been violated and that guests were using those stairs to reach the rest rooms. Under these circumstances it is our decision that Eastland never surrendered complete control to Blue Grass, therefore, it is within the exception to the general rule which applies to leased premises. Lindsey v. Kentucky Develoment Co., 291 Ky. 253, 163 S.W.2d 499 (1942). It had knowledge that handrails were not provided by Blue Grass. In Nisbet v. Lofton, 211 Ky. 487, 277 S.W. 828 (1925), we said:

“A landlord who authorizes or knowingly permits an act on the part of his tenant which it was his duty to prohibit, whereby a third person is injured, is responsible for such injury, if the tenant would be liable. Riley v. Simpson, 83 Cal. 217, 23 P. 293, 7 L.R.A. 622; Campbell v. Louisville Coal Mining Co., supra [39 Colo. 379, 89 P. 767, 10 L.R.A., N.S., 822].”

Eastland was the operator of an inn. Langford v. Vandaveer, Ky., 254 S.W.2d 498 (1953); Parrish v. Newbury, Ky., 279 S.W.2d 229 (1955). It was a part of the chain which then and now advertises that it is “The Nation’s Innkeeper”. The lease between Eastland and Blue Grass showed that Blue Grass became the tenant “for the purpose of operating a restaurant and cocktail lounge” in the “motel property”. It was given “the exclusive right and privilege of conducting a restaurant and cocktail lounge and of food sales and meal service throughout said motel premises, including room service to guests and service to any meetings requiring such service which may be held in the areas of the motel premises not leased * * * The rental was “five (5%) of all gross sales and gross receipts” with a “minimum guarantee of $650.00 per month”. The activities of Blue Grass were an integral part of the innkeeper’s operation and Franklin’s presence was of mutual interest, therefore, we consider him a guest of the inn. Langford v. Vandaveer, supra.

Each patron in an inn is entitled .to respectful as well as decent treatment by the innkeeper, its servants, and other patrons and that his safety shall not be imperiled. The operator must so select its employees that they are unlikely to commit violence upon the guest. Leding-ton v. Williams, 257 Ky. 599, 78 S.W.2d 790 (1935); 29 Am.Jur. 45, Innkeepers, § 57. While the innkeeper is not the insurer of guests it must exercise ordinary or reasonable care for their safety. Sidebottom v. Aubrey, 267 Ky. 45, 101 S.W.2d 212 (1937); Cumberland Hotel Operating Co. v. Hartman, 264 Ky. 300, 94 S.W.2d 637 (1936); 43 C.J.S. Innkeepers § 22, p. 1173. The duty is upon the innkeeper to keep hallways in a condition so that guests may pass in safety. Burgauer v. McClellan, 205 Ky. 51, 265 S.W. 439 (1924). In Brown Hotel Co. v. Marx, Ky., 411 S.W.2d 911 (1967) we held the innkeeper liable to a guest when injured because a faucet handle in a bathroom crumbled in his hand. The famous Seelbach Hotel in Louisville was adjudged liable because it failed to furnish a crib for an infant who was injured when it fell against a very hot pipe from the regular bed in which it was sleeping. Seelbach, Inc. v. Cadick, Ky., 405 S.W.2d 745 (1966). Also see Goldberg v. Wunderlich, 248 Ky. 798, 59 S.W.2d 1018 (1933) and Texas Co. v. Sowers, Ky., 258 S.W.2d 924 (1953). Eastland cannot escape liability to Franklin based on its own negligence —the absence of handrails in violation of the ordinance. Mullins v. Nordlow, 170 Ky. 169, 185 S.W. 825 (1916); 32 Am. Jur., Landlord and Tenant, § 817, § 652.

Blue Grass contends that the “hold harmless clause” in the lease was not intended to indemnify Eastland against liability resulting from Eastland’s own negligence. It cites many cases and argues that the rule of construction we stated in Employers Mutual Liability Insurance Co. v. Griffin, Ky., 280 S.W.2d 179, 53 A.L.R.2d 967 (1955) applies, to-wit:

“It is the general rule that an indemnity contract will be construed to cover only such losses, damages or liability as reasonably appear intended by the parties. 42 C.J.S., Indemnity, § 12. A contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from the latter’s negligence unless such intention is expressed in unequivocal terms. 27 Am.Jur., Indemnity, Section 15; 42 C.J.S., Indemnity, § 12. Such interpretation will not be given a contract unless no other meaning can be ascribed to it and every presumption is against such an interpretation. Mitchell v. Southern Ry. Co., 124 Ky. 146, 74 S.W. 216, 24 Ky.Law Rep. 2388.”

There we held that the indemnity provision was not “sufficiently broad or unequivocal” to impose liability upon the contractor for an injury caused by the owner’s negligence.

Eastland claims that “a fair reading of the lease as a whole indicates that the parties intended for the lessee to be responsible for any claims asserted by its employees, customers, or invitees regardless of the cause of injuries.” It attempts to distinguish the cases cited by Blue Grass including Fosson v. Ashland Oil & Refining Co., Ky., 309 S.W.2d 176 (1958), in which we said:

“ * * * It is true that when there is a doubt as to the meaning of. an indemnity clause the construction should be against the contention that the contract was meant to indemnify against an in-demnitee’s own negligence.”

Here we have no doubt. The words “save harmless lessor from all claims * * * asserted by any * * * customers or invitees of the lessee” are free of ambiguity and clearly include Franklin’s claim. Fosson v. Ashland Oil & Refining Co. supra; Epley v. S. Patti Construction Co. (DCND Iowa 1964) 228 F.Supp. 1.

The judgment is affirmed.

All concur, except MONTGOMERY and EDWARD P. HILL, JJ., who dissent.

DISSENTING OPINION

EDWARD P. HILL, Judge.

The stairway on which Mr. Franklin fell was well lighted. The steps were not steep; they were wide; and they were not slick.

Appellee says he does not know what caused him to fall. Certainly there was nothing about the stairway that caused his fall. Therefore, it must be assumed he was guilty of contributory negligence

True, there was a violation of a city ordinance requiring guardrails, but the failure to have guardrails was not the proximate cause or a contributing factor in the accident.

I would follow the rule announced in Brown Hotel v. Levitt, 306 Ky. 804, 209 S.W.2d 70, which was decided on January 23, 1948, and a later case than Greyhound Terminal of Louisville v. Thomas, 307 Ky. 44, 209 S.W.2d 478, decided November 18, 1947, and hold that appellee was guilty of contributory negligence as a matter of law.

MONTGOMERY, J., joins in this dissent.

      . See Majestic Theatre Co. v. Lutz, 210 Ky. 92, 275 S.W. 16, 17 (1925) ; Phoenix Amusement Co. v. Padgett’s Adm’r, 301 Ky. 338, 192 S.W.2d 105 (1946) and Phoenix Amusement Co. v. White, 306 Ky. 361, 208 S.W.2d 64 (1948) on this and closely related subjects.


text:
    Arthur HOLDER, Appellant, v. Lillian Mitchell HOLDER, Appellee.
    Court of Appeals of Kentucky.
    Feb. 16, 1968.
    Thomas F. Marshall, Frankfort, for appellant.
    Harry B. Miller, Miller, Griffin & Marks, Lexington, for appellee.
   WADDILL, Commissioner.

In this action Mrs. Holder was granted an absolute divorce, awarded $18,000 as lump sum alimony payable at the rate of $150 per month and allotted certain personal property. The judgment ordered Mrs. Holder to restore to her former husband the interest in their farms she had obtained from him by reason of their marriage (KRS 403.065) and impressed a lien upon his farms to secure the payment of the alimony. Mr. Holder has appealed to this court contending that the award of $18,000 is manifestly excessive. The parties will hereinafter be referred to as appellant and appel-lee.

Appellant and appellee were married during September 1942, and had lived together until their petulant quarreling brought about their separation in March 1966. Appellant is approximately 52 years of age, has less than a high school education and has been employed by a local distillery since 1953. His annual salary at the distillery for 1965 was $6,568.42. Appellee is about 48 years of age, is a high school graduate, unemployed and claims she is physically unable to work. They have three children, the youngest being about 14 years of age.

At the time of their marriage neither appellant nor appellee had any money or property and the salary appellant drew from a local bakery was his entire source of income. However, his credit was good and in 1947 he purchased on credit a 73-acre farm for $4,500. During 1961 he received a windfall when the Department of Highways paid him $16,000 for approximately 27 acres of this farm. He then spent about $5,000 improving his home and invested $25,000 in another farm, paying $10,000 in cash and financing the balance of the purchase price.

At the time of the trial appellant’s assets consisted of two farms, farm machinery, cattle and other personal property, all of which had an estimated value of $42,000. Appellant’s evidence tends to show he is indebted in the sum of $19,718.12, while ap-pellee testified that she thought his indebtedness was about $15,000. There is little difference in their testimony as to the value of his farms.

As found by the Chancellor, appellant is obligated to pay appellee alimony as she was not wholly at fault in disrupting the marriage and was not guilty of any moral delinquency. Coleman v. Coleman, Ky., 269 S.W.2d 730. She has passed middle-age has no property of her own, and is unable to earn a living. Appellant has little cash on hand and his farms are both mortgaged. If he were ordered by the court to pay a substantial cash lump sum alimony it would apparently be necessary for him to sell his farms. In view of this and the further fact that appellee has had little experience in investing money or otherwise-taking care of her own financial matters,, we believe that the Chancellor found an adequate solution to the alimony question by ordering appellant to pay appellee lump sum alimony at the rate of $150 per month. (Monthly payments of $150 over a ten-year period, figured at the legal rate of interest, have the same value as a present lump sum payment of $13,513).

The alimony that appellee will receive is barely enough to maintain her. With the cost of food, clothing and rent soaring to new heights each month it will take frugal maneuvering for her to live on the sum awarded her. We are unwilling to say that the award is excessive.

The judgment is affirmed.

All concur except EDWARD P. HILL, J., who dissents.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Hattie RICHARDSON et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.
    As Modified on Denial of Rehearing Feb. 23, 1968.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Kenneth S. Baker, Dept, of Highways, Frankfort, for appellant.
    Harold Y. Saunders, Saunders & Mitchell, Shelbyville, for appellees.
   EDWARD P. HILL, Judge.

This is an appeal from a judgment for $3018 in a highway condemnation case. The county court judgment was for $1510. Appellant contends in this court, as it did in the circuit court, that appellees’ cross-r appeal from the county court to the circuit court was too late; consequently, the judgment in the circuit court could not exceed the amount of the judgment in the county court.

The county judge signed and handed an order and judgment to the clerk for entry on July 12, 1965, bearing the same date. The judgment was not spread upon the. order book by the clerk nor was the order book signed by the county judge until later. There is no evidence as to the exact date it was signed.

Appellee attempted to perfect a cross-appeal from the county court judgment on August 18, 1965, by filing a certified copy of the judgment as required by KRS 177.087. Such appeal must be taken within 30 days under the' statute. In event the date the judgment bears is its true date, the cross-appeal was too late. The cross-appeal was timely if the judgment in the order book was signed no earlier than the 19th of July 1965.

Before discussing the law pertaining to this case, the facts should be stated. The judgment of the circuit court states that the deputy clerk could not remember the “exact date the judge signed the order”; that the county judge “could not state the exact date he signed”; but that it was “his custom to sign said book from one week to ten days after tendering same to the clerk.” Appellant provides no transcript of evidence for this court to consider.

All parties agree that CR 79.01 and 79.02 do not apply to the signing of county court judgments. These sections only apply in circuit court. It is the date the order book is signed, not the date of the paper on which the judgment is written, that determines the effective date of the judgment in county court. Cf. Commonwealth, Department of Highways v. Clarke, Ky., 340 S.W.2d 442.

Should a county court judgment bear no date at all, or an incorrect one, it may be corrected under the provisions of CR 60.01. Cf. Commonwealth, Department of Highways v. Daly, Ky., 374 S.W.2d 497.

Under these facts, appellant may not attack the sufficiency of the evidence heard by the trial judge touching the question of when the county court judgment was signed on the order book. This is for the simple reason that the appellant failed to bring to this court a transcript of the evidence on that subject heard by the trial judge in any of the ways permitted in the various subsections of CR 75. The fundamental rule of appellate practice has been frequently recognized and was .thus put in Wilkins v. Hubbard, 271 Ky. 780, 113 S.W. 2d 441, 442 (1938) :

“It is a rule of universal application in this and all other appellate courts that where all the evidence is not brought up on appeal, every fact necessary to support .the finding or judgment of the lower court must be assumed to have been in favor of the successful party. Louisville & N. R. Co. v. Garrard et al., 255 Ky. 127, 72 S.W.2d 1024, 1025; Hargis et al. v. W. T. Congleton Company, 252 Ky. 192, 66 S.W.2d 98; Bowen v. Gradison Construction Company, 236 Ky. 270, 32 S.W.2d 1014.”

The same principle has been recognized since the adoption of the civil rules. See Travelers Indemnity Company v. Patrick, Ky., 386 S.W.2d 256 (1964); Crowe v. Taulbee, Ky., 350 S.W.2d 620 (1961); Willis v. Davis, Ky., 323 S.W.2d 847 (1959); Marcum v. Brock, Ky., 257 S.W.2d 55 (1953).

The Commonwealth cites DeHart v. City of Olive Hill, 305 Ky. 864, 205 S.W.2d 351, 352 (1947), in which in opposition to a motion to dismiss the appeal a statement was made in appellant’s brief “that the judgment was not signed until May 7th * * *.”

We said:

“The record does not sustain the statement, for the caption of the entry in the order book shows the judgment was rendered on the 16th, and the draft of the judgment bears the signature of the Judge as of that date. In the absence of an official record to the contrary, it must be presumed that the 16th is the date on which the judgment was signed on the order book and became final (citations omitted).”

The .trial judge was not required to make a formal finding of fact incident to his ruling on the motion to dismiss the cross-appeal. CR 52.01. The recital by the trial judge of certain isolated statements of the witnesses cannot be considered a substitute for a transcript of the evidence heard. Even so, the recital by the trial judge that the county judge had testified of his “custom” to sign orders a “week to ten days” after signing the papers on which judgments were rendered furnishes abundant factual support for the ultimate ruling of the circuit court. It is apparent, and seems to be conceded, that the county court judgment was not signed on July 12, 1965. Appellant would place the absolute burden upon the appellees to demonstrate the exact date of the signing on the order book. This is too severe, particularly in face of the fact that those persons charged with the official responsibility for keeping accurate records, viz., the county judge and county court clerk, apparently were not able .to depose with certainty the date of actual signing on the order book. The circuit judge was warranted in believing that the judgment was actually not signed until a “week or ten days” after July 12, 1965. Indeed, apparently there was no evidence which would have warranted the judge’s finding that the judgment was signed at an earlier date.

It is basic principle that an appellant has the obligation and burden to establish trial error upon appellate review. When a record is incomplete and partially incomprehensible, we may indulge the presumption of correctness of the judgment upon review. Pike County Board of Education v. Varney, Ky., 253 S.W.2d 253 (1952).

Judgment is affirmed.

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


author: SAMUEL E. SEMPLE, Special Judge.

text:
    STATE of Missouri, Respondent, v. William Elmer KNICKER, Appellant.
    No. 48999.
    Supreme Court of Missouri. Division No. 3.
    Feb. 28, 1968.
    Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
    Robert L. Schneider and J. Brendan Ryan, St. Louis, for appellant.
   SAMUEL E. SEMPLE, Special Judge.

Defendant was charged with the unlawful and felonious possession of certain narcotic drugs. The trial court heard evidence outside the presence of the jury and found that defendant had been previously convicted of four felonies as charged in the information. The jury found the defendant guilty and the court assessed punishment at five years. Thereafter allocution was offered and judgment rendered sentencing defendant to five years in the custody of the State Department of Corrections. Defendant was allowed to appeal as a poor person and filed a brief pro se. This court affirmed the conviction, State v. Knicker, Mo., 364 S.W.2d 544. Thereafter, pursuant to the decision in Bosler v. Swenson, 363 F.2d 154 (8th Cir.), this court set aside its judgment affirming the conviction, ordered the cause reinstated on the docket, and ordered the trial court to appoint counsel to represent the defendant on this appeal in accordance with S.Ct. Rule 29.01(c), V.A.M.R. Counsel was appointed for defendant and the case is again submitted.

A brief statement of the evidence is essential to an understanding of the assignments of error made by defendant as to the rulings of the trial court in admitting and refusing to admit evidence.

The State’s evidence was that on August 15, 1960, two officers of the St. Louis Police Department were assigned to place under surveillance a 1954 Ford automobile which purportedly was owned by Albert Knicker, brother of defendant, that was parked in the vicinity of 7th and Lynch Streets in St. Louis, Missouri. Defendant, together with his brother Albert Knicker, and one Edward Stuckmeyer were observed approaching the car. Defendant was carrying a brown paper bag and when they got to the car, defendant placed the brown paper bag through an open window on the front seat of the car. At this time all three men were arrested. The 1954 Ford was searched and a brown paper bag was found on the front seat. The bag contained four envelopes, fourteen bottles, and $31.95 in silver. A police chemist testified that of the items found in the bag, four contained morphine, two bottles contained codeine, one bottle cocaine, three other bottles contained opium, and another bottle contained stypticin. There were other containers which did not contain narcotics.

Defendant’s evidence consisted solely of the testimony of his brother Albert Knicker, who testified that the 1954 Ford was his automobile and that he had been in a tavern with his brother (defendant) and Edward Stuckmeyer; that Stuckmeyer had the brown paper bag with him when they met in the tavern and Stuckmeyer carried the bag as they went to the car; that Stuck-meyer placed the bag in the car and that neither he nor defendant knew what was in the bag.

Defendant contends that the trial court erred in limiting cross-examination of State’s witnesses by sustaining objections to questions as to charges upon which defendant and the other two men were booked. Defendant argues that the court curtailed his right to confront witnesses against him and to cross-examine these witnesses as required by Art. I, § 18 of the Constitution of Missouri, V.A.M.S., and to support this contention defendant cites several cases which lay down the general rule that a trial judge may not unduly restrain or interfere with a defendant’s right to cross-examine an adverse witness.

Defendant apparently contends that the court’s rulings prevented him from establishing that at the time defendant was arrested and booked, Edward Stuckmeyer and Albert Knicker were also arrested and booked on the charge of possession of narcotics and Stuckmeyer was then released. Defendant argues that if such line of inquiry had been allowed facts which would have supported his defense that Edward Stuckmeyer was the person actually in possession of the narcotics would have been developed.

The trial court is invested with much discretion in determining the extent of cross-examination. Particularly is this true as to collateral matters. State v. Cox, Mo., 360 S.W.2d 668, 671. It does not appear that the fact that Stuckmeyer was also arrested, booked on a charge of possession of narcotics and then released, would be evidence that Stuckmeyer rather than defendant was in possession of the narcotics, a contrary inference would be more reasonable.

Defendant also contends that the court erred in refusing to allow defendant’s counsel to inquire of State’s witness Sergeant Malloy on cross-examination as to the whereabouts of Stuckmeyer. The record reveals that as the State started to object to this question as being irrelevant and immaterial, the witness answered, “I do not know.” Defense counsel then stated, “I will make an offer of proof,” whereupon the court sustained the objection and advised defense counsel to make his offer of proof out of hearing of the jury. Defense counsel then, out of hearing of the jury, stated, “My client knows the situation differently, he has a person attempting to locate him and I think he has got information as to his whereabouts.” The court then stated, “He just told you he doesn’t know at the same time Mr. Roche was objecting. He stated he didn’t know, now you cannot offer to prove that he does know.”

There was no showing nor any attempt to show by the defense that the police had tried to conceal the whereabouts of Stuckmeyer or even knew where he was. We have examined the cross-examination of State’s witnesses and the court’s rulings thereon and cannot find any basis for an abuse of discretion by the trial court in determining the extent of cross-examination and we hold that there was no improper restriction of the cross-examination as defendant complains.

Defendant’s next assignment is that the trial court erred in allowing the State to bring in a box containing fourteen bottles and four envelopes, and out of these eighteen items eleven were identified and marked as exhibits but only seven of the marked exhibits were introduced in evidence. Defendant argues that the testimony as to the markings on the various items had the effect of confusing the jury and that the exhibition to the jury of eleven different items other than the seven items introduced in evidence was prejudicial to this defendant.

State’s Exhibit No. 2 was identified by one of the police officers who made the arrest as a box containing all of the items in the brown paper bag which he observed defendant placing in the car. These items, consisting of fourteen bottles or vials and four envelopes, were each initialed by the officer and taken to the police laboratory. A chemist of the St. Louis Police Department laboratory testified that he analyzed the items and marked each item to separate it and identify it. He testified that his analysis of the items showed that four contained morphine, one codeine phosphate, one codeine sulphate, one cocaine, three opium, and one stypticin. These items were marked as Exhibits 2A through 2K, inclusive. The witness testified that the remaining items were analyzed and found not to contain narcotics.

We do not think this assignment is well taken. A trial court has broad discretion to determine the orderly procedure and presentation of evidence during a trial. State v. Gillman, Mo., 354 S.W.2d 843, 851. Here the State’s witnesses explained that the markings on the various items were for the 'purpose of identification in the laboratory and to establish a proper chain of custody and to separate and identify the items. It does not appear that the various markings on the exhibits, or the fact that only seven of the items were placed in evidence, would be so confusing to the jury as to be prejudicial to this defendant.

Defendant’s last contention is that the court erred in permitting the police officers who arrested defendant to testify that they knew him and recognized him when he walked down the street with the other two men to the automobile which was just prior to the arrest. Defendant argues that the testimony of the two police officers that they knew defendant before his arrest permitted the jury to conclude that defendant had had prior difficulties with the law and had been guilty of prior misconduct. This contention has been previously ruled in State v. Pitchford, Mo., 324 S.W.2d 684, 688, when the court said: “It is well known that most police officers have a wide acquaintance among the citizenry in general and the fact that a person is known to a police officer does not necessarily convey the impression that he has a criminal record.” The contention of defendant is not well taken.

We have examined the record as required by S.Ct. Rule 28.02, V.A.M.R., and finding no error, the judgment is affirmed.

HOLMAN, Acting P. J., and COOK, Special Judge, concur.


author: HAMILTON, Justice.

text:
    Lon LEE et al., Petitioner, v. John W. LEE, Jr., et al., Respondent.
    No. B-282.
    Supreme Court of Texas.
    Feb. 14, 1968.

      Paul Donald, Marvin F. London, Bowie, Ernest May, Fort Worth, for petitioner.
    Fillmore & Fillmore, H. W. Fillmore, Wichita Falls, for respondent.
   HAMILTON, Justice.

This case involves a suit to set aside the probate of the will of John W. Lee, Sr., which was executed October 2, 1961. Testator died May 22, 1964, at ninety (90) years of age. The will contained a self-proving clause and was probated on June 22, 1964, in the County Court of Montague County. Following probate this action was brought in the county court to set- aside the Probate of the will. Lon Lee and Gladys Lee Barbee, the Contestants, Petitioners here, were children of testator and received a specific bequest of $10.00 under the terms of the will. The Proponents, Respondents here, are the Independent Executor and the remaining children, the residuary beneficiaries under the will.

The county court rendered judgment denying the contest and declared that the will was properly admitted to probate. The District Court on a jury verdict that testator was of “unsound mind” rendered judgment for contestants; the Court of Civil Appeals reversed this judgment and rendered judgment admitting the will to probate. It held that the evidence offered by contestants could at most only create a suspicion of incapacity at intermittent periods not associated with the critical date of the execution of the will and that there was no evidence in support of the jury’s answer that testator was of “unsound mind.”

The Court of Civil Appeals extensively reviewed the evidence. The evidence in behalf of proponent shows that testator came unaccompanied to the office of scrivener, Earl Fitts, Esq., some few days prior to the execution of the will, and designated to Fitts the proposed disposition of his property. Testator returned after the will had been drafted, again unaccompanied, and executed it. As noted above the will contained a self-proving clause and the two witnesses and the notary, all longtime acquaintances of testator, testified that he was of sound mind when he executed the will. This testimony is however, not conclusive on the issue of testamentary capacity. See In re Price’s Estate, 375 S.W.2d 900 (Tex.Sup.1964). The jury chose not to believe the testimony of the attesting witnesses and returned a verdict of “unsound mind.” In this context we are presented with but one question: was there any evidence of probative value that J. W. Lee, Sr., was. mentally incapacitated on October 2, 1961, the day he executed his will. It is fundamental that in answering this question the Court “consider only the evidence which when viewed in its most favorable light, tends to support such a finding, and must disregard all evidence that would lead to a contrary conclusion.” Lindley v. Lindley, 384 S.W.2d 676, 679 (Tex.Sup.1964); See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The proper inquiry in a will contest on the ground of testamentary incapacity is the condition of the testator’s mind on the day the will was executed. Since there is no direct testimony in the record of acts, demeanor or condition indicating that testator lacked testamentary capacity on October 2,1961, testator’s mental condition on that date may be determined from lay opinion testimony based upon the witnesses’ observations of testator’s conduct either prior or subsequent to the execution. Carr v. Radkey, 393 S.W.2d 806 (Tex.Sup.1965); Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849, 852 (1952) (Cancellation of a deed). However, only that evidence of incompetency at other times has probative force which demonstrates that that condition persists and “has some probability of being the same condition which obtained at.the time of the wills making. * * *” 1 McCormick & Ray, Texas Law of Evidence § 896, at 675 (2d ed. 1956); Annot. 168 A.L.R. 969 (1947).

Considering the preceding rules and the admonition in McCormick, supra at 676, that “in all instances where the inadmissible shades into the admissible according to relative degrees of probative force * * * (the line is) one that no two men draw at exactly the same place * * we shall briefly review that evidence most favorable to contestants which we hold constitutes some evidence of probative force that testator lacked testamentary capacity when he executed the will. The testator was eighty-eight (88) years old when he executed the will and was suffering from arteriosclerosis and senile psychosis. His wife died in 1946, and from that time until June 1961, his daughter Gladys Lee Barbee, contestant here, lived in his house and took care of him. She was keeping house for the testator when she married and thereafter continued at his request to live in the house and care for him. In February 1960, testator and all of his children signed an instrument designating Mrs. Waunzita Simpson, testator’s granddaughter, his attorney-in-fact. She had the function of transacting all of his business for him and was required to cosign all checks drawn by testator. Sometime in 1961, Mrs. Simpson demanded that Mrs. Barbee pay rent for the privilege of occupying the testator’s house. Thereafter, Mrs. Barbee moved out, and testator went to live with Winifred Lee, one of the proponents.

There was testimony that a change took place in testator’s condition beginning in 1959, that he was mentally blank and that his condition became gradually worse until his death in May, 1964. The testimony also indicated that he would sit on the bank of a tank on his farm and tell people that he was waiting for a headless woman to come out of the water. Testator’s brother, C. R. Lee, testified that testator only one month prior to the execution of the will did not recognize him; and that he could only remember his children after they had been named to him, and that he would forget their identity shortly after they left his presence. There is also testimony that on one occasion he inquired with whom he had been talking when in fact he had been visiting with his son, Lon Lee.

Charley Lee, son of contestant Lon, testified that his grandfather had not been of sound mind since he sold his store in 1956. As a predicate for this opinion, he related that often his grandfather could not recognize him and could not maintain one train of thought in a conversation. He also testified that on October 1, 1961, the day prior to the execution of the will, two of the proponents, John Lee, Jr. and Kenneth Lee had told him that “grandad don’t know how to run his business” and “we are going to take it over from him.” This testimony was admissible under the “declaration against interest” exception to the hearsay rule for such weight as the jury might give it on the issue of testamentary capacity. Woods v. Townsend, 144 Tex. 594, 192 S.W.2d 884 (1946).

Since the evidence indicated above constitutes more than a mere scintilla, the Court of Civil Appeals erred in rendering judgment for the proponents. However, since that court alternatively held that the jury’s verdict was contrary to the great weight and preponderance of the evidence and since such holding is solely within the jurisdiction of that court, the judgment of the Court of Civil Appeals reversing the trial court’s judgment is affirmed; their judgment of rendition is reversed and the cause is remanded for a new trial.

In the event that this case is retried the issue to be submitted is whether the testator lacked “testamentary capacity” on the date of executing the will, not whether he was of “unsound mind.” Likewise, should the court below on retrial determine that lack of testamentary capacity is not shown, it should render judgment that contestants take nothing, rather than rendering judgment admitting the will to probate as this is a suit to set aside the probate of a will already admitted to probate.

      . Since this is a suit to annul the probate of a will already probated, the burden was upon contestants to establish incapacity by a preponderance of the evidence. Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454 (1941).

      . “It is further my will and desire that the Executor hereinafter named, to wit: John W. Lee Jr., shall pay out of my estate the sum of Ten (10.00) Dollars, to each of my two (2) children named as follows: LON LEE AND GLADYS (LEE) BARBEE. The said Ten ($10.-00) Dollar payment to the said Lon Lee and Gladys (Lee) Barbee shall be their entire interests in my said estate, as the said Lon Lee and Gladys (Lee) Barbee have heretofore received more from my estate than my other children, have received.”

      .The proponents are John W. Lee, Jr., individually and as Independent Executor, Winifred 0. Lee, Ethel Lee Lambert, Roy Lee and Kenneth Lee.