text:
    Gilla ADKINS, Appellant, v. The GREYHOUND CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    May 25, 1962.

      R. J. Turley, Turley, Tackett & Geralds. Lexington, John J. Sullivan, Purcell, Ziegler & Sullivan, Cincinnati, Ohio, for appellant.
    R. W. Keenon, Stoll, Keenon &? Park, Lexington, for appellees Greyhound Corp. and L. F. Benton.
    James S. Carroll, Thornton & Carroll, Lexington, for appellees L. M. Winges & Co. and Lee Roy Kinney.
   PALMORE, Judge.

While riding as a passenger in one of the front seats of a Greyhound bus Mrs. Gilla Adkins was struck and injured by a rock thrown through the windshield of the bus by the back wheel or wheels of a concrete-mixer truck traveling in the opposite direction. She brought this suit for personal injuries against the drivers of both vehicles and their respective employers. After the taking of depositions supplemented by one affidavit, there being no substantial conflict in the evidence, the trial court sustained motions for summary judgment in favor of all the defendants. Mrs. Adkins appeals, contending that between her and each of the defendants are genuine issues as to material facts, precluding disposition by summary judgment.

The accident happened in July of 1958 on U. S. ’Highway 68 near the outskirts of Lexington. The bus was moving southward from Lexington toward Harrodsburg. To the left or east side of the highway a. new residential subdivision called Twin Oaks was in process of construction, including the laying of concrete streets and building of houses. The defendant Kinney, driving the concrete-mixer, had just delivered a load of concrete for one of the new streets and was on the return trip to' his employer’s plant in Lexington. He drove onto Highway 68 from Pasadena Drive, an intersecting street which had not yet been graded or paved, and turned to his right toward Lexington just before he met the oncoming bus. It had rained earlier in the day, and Pasadena Drive was muddy, though the highway was dry. As the truck turned into the highway the bus driver, Benton, noticed mud or dirt flying from its rear wheels, and just before .the two vehicles came abreast a limestone rock 2 inches thick by 3 inches in diameter was thrown forward from the top of the left rear wheel assembly of the truck. The bus driver saw it- coming and ducked. It crashed through the right side of the windshield of the bus and struck Mrs. Adkins, who was sitting in the right side front seat, on the head.

At the time of the accident the bus was "traveling 45 to 50 pi. p. h. and was picking up speed..' Its driver lived in the vicinity and knew of the construction .activity and the unmade condition' of the streets in Twin Oaks subdivision. He knew also that it had rained and the' ground would be wet. He did not slow or stop the bus upon observing the” entry of the. concrete-mixer into the highway, but applied his brakes when‘he ducked to avoid the flying rock.

Appellánb'contends that in view of thte highest degree of care'owed by a-carrier !to its fare-paying passengers the bus driver should have-’foreseen such an occurrence and, instead of continuing to accelerate the bus, should-have slowed or stopped in order to avoid it..

■ The concrete-mixér was mounted on the rear of a tandem-dual International truck, a large vehicle with two wheels forward and eight in the back. It'had no bed, and the - rear wheels were not equipped with fenders or -mud guards. The drum of the mixer was 'not revolving. The truck had not been driven through any loose rock or gravel, but before'pulling onto U. S. 68 from Pasadena Drive its operator, Kinney, ■had stopped-until-an unloaded dump truck going along the highway toward Lexington passed by, and when- he fell in behind this dump truck on the road he noticed some rock on its tailgate. Kinney remembers ■meeting the bus but was unaware of the ■accident' until' ábine^ time thereafter. He was going about 15 m. p. h., shifting gears and accelerating as he met and passed the bus.

Mrs. Adkins contends that thfe truck driver was negligent in operating his vehicle without fenders or similar equipment, in failing to let the bus pass before entering the highway, áriü in accelerating his speed while approaching the oncoming bus.

CR 56.03 authorizes summary judgment if it be shown ‘That there is no genuine issue as to any material fact "and that the moving party is entitled to a judgment as a matter of law.” That' the evidence is not in conflict does not, of course, preclude the existence of issues, as to material facts. In a negligence case, such as this, whether a'party conformed to the standard of care required of hitír and, if 'not, whether his 'failure to do so had a proximate or contributing causal connection -with the actident and’injury are issues of "material -fact unless the answer is so clear that there is no room for difference of opinion among reasonable minds. Cf. Clay, Kentucky Civil Rules, CR 56.03, 1960 Supp., p. 117, sefting forth text material from Symposium — Summary Judgment — Rule 56, 51 Northwestern L.Rev. 370, 372 (1956), which we accept as a clear and correct statement of the law in this respect. A summary judgment is proper when it is ■manifest that the party against whom the judgment is sought" could not strengthen his case at a 'trial and the moving party would be entitled ultimately and inevitably to a directed verdict.

Conceding for sake of the argument that ‘the bus driver,. upon observing the entry of the concrete-mixer onto the highway from wet ground, throwing mud as it approached,' should have anticipated the danger, we do not believe he could rightfully be found negligent in failing to apply his brakes. No matter what he had done, short of' taking to the fields, the concrete-mixer was bound to'pass him anyway. His bus would have been in exactly the same peril had he slowed or stopped it until the truck went by. As a matter of fact, without the benefit of hindsight it might well be argued that accelerating his speed was the safest tactic of all, in that it reduced the time of exposure to the hazard. As we see it, there can be no inference either of negligence or proximate cause from the handling of the bus, and the summary judgment in favor of Benton and Greyhound was in order. See Risen v. Consolidated Coach Corp., 1938, 274 Ky. 342, 118 S.W.2d 712; Bowling Green-Hopkinsville Bus Co., v. Edwards, 1933, 248 Ky. 684, 59 S.W.2d 584; Stephenson v. Smith Motor Coach Co., 1932, 243 Ky. 153, 47 S.W.2d 932.

Appellant submits that the driver of the concrete-mixer and his employer were negr ligent as a matter of law on the theory that operating the truck on the highway without fenders or similar equipment violated KRS 189.020, which provides as follows :

“Every vehicle when on a highway shall be so equipped as to make a - minimum of noise, smoke or other nuisance, to protect the rights of other traffic, and to promote the public safety.”

Just what equipment on a vehicle is necessary “to protect the rights of other traffic” is a question to be answered in terms of ordinary care under the circumstances of the particular case. We believe, however, that reasonable consideration for the safety of others on or near the highway requires the driver of a motor vehicle to see that it is equipped with fenders or other comparable means to prevent 'or minimize the danger to the public from foreign materials thrown up by its moving wheels. But even if we were unwilling to say as much, at least this would be an issue for the jury, and, since the testimony to the effect that the rock came from the top of the truck wheels was sufficient to establish proximate cause, appellant was entitled to a trial.

Counsel for the truck driver and his employer suggests that although it is common knowledge that the back wheels of a vehicle moving forward will throw dirt to the rear, it would not be reasonable to say the driver should have anticipated the forward propulsion of a rock into the bus. We judge this to be a question for the jury, especially in view of the fact that the truck had just been driven over mud, to which rocks and other debris ordinarily encountered on and near public thoroughfares might be expected to adhere.

To the extent that the judgment dismissed the action against L. F. Benton and Greyhound it is affirmed. To the extent that it dismissed the action as to Lee Roy Kinney and L. M. Winges Company it is reversed and remanded for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: STANLEY, Commissioner.

license: Public Domain

text:
    Wanda HAYES, Appellant, v. Robert J. HAYES, Appellee.
    Court of Appeals of Kentucky.
    June 1, 1962.

      John L. Harbolt, Louisville, for appellant.
    J. Walter Clements, Louisville, for appel-lee.
   STANLEY, Commissioner.

The appellant, Mrs. Wanda Hayes, was a passenger in an automobile of her husband, Robert J. Hayes, on July 3, 1959, when it collided with the rear of a taxicab of the Louisville Taxicab and Transfer Company being driven by its employee, Shelby U. Skeans. Mrs. Hayes sued her husband, the taxicab company and Skeans for damages for personal injuries allegedly sustained in the collision. Hayes cross-claimed against his co-defendants for damage to his automobile. They, in turn, cross-claimed against Hayes for damage to the taxicab and personal injuries, respectively.

A summary judgment before trial was entered for the taxicab company and Skeans on appellant’s claim against them. There is no appeal from it. Hayes and the company voluntarily dismissed their cross-actions against each other. A trial was had on Mrs. Hayes’ suit against Robert Hayes and on Skean’s cross-action against him. The instruction on damages to be awarded Mrs. Hayes, if the jury should find for her, was in the conventional form, including the condition “if any” in relation to pain and suffering and special damages. The verdict was:

“Finding Robert Hayes guilty of Item 2. Finding for Mr. Shelby U. Skeans an award of $500.00. Finding for Mrs. Wanda Hayes — ZERO.”

“Item 2” referred to is Instruction No. 2, which was that the jury should return a verdict for both plaintiffs against Hayes, if it should find that he was “the sole cause of the collision.”

The judgment, consistent with the verdict, recited that “no damages are awarded” Mrs. Hayes, but that she should recover her costs. No appeal has been sought from Skeans’ judgment for $500.

The appellant contends that the verdict disregarded the evidence. She relies upon the line of cases which hold that where there is uncontradicted evidence by a disinterested witness who knows of that which he speaks and the witness is in no way discredited and the story is not improbable, the evidence is conclusive, and the jury may not arbitrarily disregard it. Perfection Hardwood Flooring Co. v. Bowling, Ky., 300 S.W.2d 550; Commonwealth Life Ins. Co. v. Pendleton, 231 Ky. 591, 21 S.W.2d 985, 66 A.L.R. 1526; Bullock v. Gay, 296 Ky. 489, 177 S.W.2d 883; Smith v. Webber, Ky., 282 S.W.2d 346.

Mrs. Hayes testified that at the time of the accident she noticed her left hand was cut, but not seriously, and that her ankle felt as if it was sprained. She so told the police at the scene of the accident and declined their offer to take her to a hospital. On Sunday following the accident, which occurred early Friday night, a “sudden sharp pain struck” her in the back of the neck and head, and she was blinded for about five minutes. About the same time she discovered she had bruises on both knees. On Monday she went to see Dr. Isadore Goldstein. He found, so she testified, her neck, shoulder and a rib were bruised. Mrs. Hayes continued under Dr. Goldstein’s treatment daily for three weeks and less frequently thereafter. As her headaches and nervousness continued she was sent by him to an institution where she stayed about a week under the care of Dr. Joseph Goldstein, a psychiatrist, and she returned twice to see him. Her headaches, cut hand and sprained ankle troubled her for two or three months. At the time of the trial she was taking medicine prescribed for headaches and pains. The appellant had incurred doctors’ and hospital bills amounting to $712.20 and other special damages.

On cross-examination Mrs. Hayes testified that so far as she knew her knees did not strike any part of the automobile. She admitted that on the following Sunday she had called a lawyer and asked him if he knew a doctor she could go to. The lawyer referred her to Dr. Isadore Goldstein. In a pretrial deposition the plaintiff had stated only that the accident had bruised her side and shoulder, and that she had suffered constant headaches. Further cross-examination developed admissions of but little suffering for a few days following the accident.

Dr. Goldstein testified that the history of the case given him by Mrs. Hayes was that she had been “thrown about” in the automobile accident and suffered injuries and pain, which she then described. He testified that he found her very nervous and that she complained of pain in her neck, legs and arms. Upon a hypothetical question the witness expressed the opinion that the automobile accident, as therein described, could have caused injury to Mrs. Hayes’ neck and muscle and produced the continuing nervousness and headaches of which she complained or have “triggered” a pre-existing condition. His “impression” was that she had not suffered a brain concussion. Dr. Goldstein’s cross-examination revealed that most of his patient’s complaints were of subjective symptoms. It tended to show that his patient’s condition of nervousness, tension, etc. had existed before the accident.

Dr. Joseph Goldstein, the psychiatrist, did not testify, and his absence is unexplained. Mrs. Hayes, on cross-examination, was interrogated concerning what appeared to have been statements made to him or in an historical chart of the institution to which she had been sent. She admitted them. These admissions also tended to minimize her claim that her condition resulted from the accident.

On the other side, the defendant introduced Dr. Richard T. Hudson, an orthopedic surgeon, who had examined Mrs. Hayes nine months after the accident, apparently at the defendant’s instance. He testified as to the history given by her and to the treatment she had received from the Drs. Goldstein and as to her continuing headaches, which seemed to arise from the base of her neck. Dr. Hudson’s X-ray and other examinations revealed no external or objective sign of injury or impairment of the muscle or in the motion of Mrs. Hudson’s head and shoulder; He had told her that he “thought she might have had a strain of the muscles of her neck at the time of the accident.” Dr. Hudson had not examined the patient’s ankle because she did not mention it.

We have examined all the evidence under the rule that the jury may not arbitrarily disregard conclusive evidence, the rule the appellant contends is applicable. We are concerned with the proof tending to establish a causal connection between the accident and the claimed injuries. Of course the plaintiff was not a disinterested witness. Moreover, her testimony as to the development of her superficial injuries sustained by the apparently slight impact of the automobiles is not so impressive or certain that it required the jury to accept it as positive proof of proximate cause or source. Her story afforded a suspicion of exaggeration or coloring of material facts. In weighing evidence, the jury may take into consideration all the surrounding facts and circumstances in the case, including the conduct of the witness and his or her seeming sincerity and honesty or lack of same. Commonwealth Life Ins. Co. v. Pendleton, 281 Ky. 591, 21 S.W.2d 985; Purcell v. Mich. Fire & Marine Ins. Co., 295 Ky. 232, 173 S.W.2d 134. Her testimony was of such a character that it warranted the jury in finding that her claim of suffering substantial injuries in the accident was not well founded. Lawson v. Sitgraves, 299 Ky. 545, 186 S.W.2d 182; Jones v. Mathis, Ky., 329 S.W.2d 55.

Dr. Isadore Goldstein’s testimony scarcely went beyond the “may have” cause. A possible cause need not be accepted by the jury as the operating or efficient cause. The failure of the plaintiff to call her other physician, Dr. Joseph Goldstein, or to explain his absence as a witness, permitted the jury to draw an inference that his evidence would be unfavorable. Huber & Huber Motor Express v. Martin’s Adm’r, 265 Ky. 228, 96 S.W.2d 595; Purcell v. Mich. Fire & Marine Ins. Co., supra. We cannot say that the evidence for the plaintiff in regard to her disabilities having been caused by the accident was so certain or conclusive that as a matter of law the jury was bound to have accepted it.

There is no contradiction in the evidence, either positive or inferable, that the plaintiff did suffer some superficial injury in the accident as the result, as the jury found, of the negligence of her husband, the defendant. The jury should have awarded nominal damages. However, we do not reverse a judgment on a failure of the jury to do so. Bradshaw v. Steiden Stores, Inc., Ky., 265 S.W.2d 64.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    PROCTOR AND GAMBLE MANUFACTURING COMPANY et al., Appellants, v. Hattie LITTLE, now Hattie Little Brewer, et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.

      C. W. Swinford, Stoll, Keenon & Park, Lexington, for appellants.
    E. B. Rose, Beattyville, O. J. Cockrell, Jackson, for appellees.
   CLAY, Commissioner.

In this workmen’s compensation case the dependents of appellants’ employee were awarded death benefits. The circuit court confirmed the award. On this appeal it is contended (1) there was a lack of proper notice, and (2) the claim for compensation was filed too late.

The employee was involved in an accident while driving a truck, and suffered severe bruises and abrasions. He was absent from work for two months but never made a claim for compensation. He died 13 months after the accident, apparently from complications arising from his injuries. This claim was filed nine months later.

It was stipulated the employer had timely notice of the accident and that the employee had “sustained injuries”. The employer’s contention is that it did not receive any notice of the particular injury which caused the employee’s death. It was attributable to a dissecting aneurysm. The evidence shows that even doctors have difficulty diagnosing this ailment, and that the employee thought he was suffering from stomach trouble.

KRS 342.185 requires “notice of the accident * * * as soon as practical after the happening thereof”. The following statute, KRS 342.190, provides for a written “notice and claim” which shall contain “the nature and extent of the injury sustained”. KRS 342.200 provides in part that want of notice shall not bar proceedings if the employer “had knowledge of the injury” or the failure to give notice “was occasioned by mistake or other reasonable cause”.

Although KRS 342.185 requires only notice of the accident, in view of KRS 342.190 we have construed the requirement of notice to include the specific injury for which the employee is claiming compensation for disability. See Buckles v. Kroger Grocery & Baking Co., 280 Ky. 644, 134 S.W.2d 221; T. W. Samuels Distillery Co. v. Houck, 296 Ky. 323, 176 S.W.2d 890; Whittle v. General Mills, Inc., Ky., 252 S.W. 2d 55. In those cases the employee had knowledge of the injury which caused his disability.

In this case the employee was not aware of the serious nature of his injury. Actually it was not discovered until after his death. KRS 342.200 seems to contemplate just such a situation. It provides that want of notice shall not be a bar if "occasioned by mistake or other reasonable cause”. The employee’s failure to give more adequate notice of a specific injury was because of his mistaken personal diagnosis and want of better knowledge. If the notice of the accident and apparent injuries received by the employer was inadequate, surely reasonable cause existed for the failure to give additional information. The employer cannot sustain its position on this point.

The next contention is that because the employee did not assert a claim for compensation within one year after the date of the accident his claim for disability was barred (under KRS 342.185), and his dependents could not thereafter prosecute a claim. The difficulty with this argument is that it is contrary to the plain provisions of the statutes. A death claim may be asserted within one year after the employee’s death (KRS 342.185 ; 342.270(1)), but not later than two years after the accident (KRS 342.070). The statutes create two different types of claims, one by the employee and the other by his representatives or dependents. The latter claim is not dependent upon the assertion of the former.

This construction is disputed because KRS 342.070 authorizes a death claim if death results ‘‘from an accident for which compensation is payable”. (Our emphasis) The argument is that the italicized language means that disability benefits must still be available or must have been paid as a condition precedent to the assertion of a death claim. Such does not appear a reasonable construction. The phrase, “for which compensation is payable”, is descriptive, identifying the cause of death as attributable ta a disabling injury which would be compen-sable if the employee claimed disability benefits. Another statute makes clear that such is its meaning.

KRS 342.185 specifically recognizes that a claim for death may be made “within one year after such death, whether or not a claim has been made by the employe himself for compensation”. (Our emphasis) This seems to end the matter. The claim here asserted is neither derivative from nor dependent upon the assertion of a disability claim by the injured employee.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    NEW HOLLAND MACHINERY COMPANY, DIVISION OF SPERRY RAND CORPORATION, Appellant, v. Robert BELL, d/b/a, et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.

      L. B. Lawton, Mitchell & Lawton, Henderson, for appellant.
    Wathen & Wesley, Morganfield, Aaron F. Overfelt, Bowling Green, George B. Simpson, Sturgis, J. D. Ruark, E. R. Morton, Morganfield, for appellees.
   CULLEN, Commissioner.

The question presented on this appeal is one of priority of liens.

Robert Bell was a dealer in farm machinery and equipment. A. D. Sprague, Jr., an unsecured creditor of Bell’s, brought an action against Bell and secured an attachment on all of his personal property. New Holland Machine Company previously had sold numerous items of farm machinery to Bell, under unrecorded conditional sale contracts; however, New Holland had obtained from Bell, and recorded, several chattel mortgages covering many of the items. New Holland intervened in Sprague’s action, asserted a prior lien based on the conditional sale contracts and chattel mortgages, and asked for appropriate relief. Sprague’s attachment was found to be defective and he caused another attachment to be issued (after New Holland’s intervening complaint had been filed). Thereafter numerous other creditors of Bell’s commenced proceedings against him and some of them obtained attachments. Eventually all of the various proceedings were consolidated with Sprague’s action, Bell’s property was sold, and the court made an adjudication of the rights and priorities of the various creditors in the proceeds of sale.

The court adjudged that New Holland had a first lien on the proceeds of as much of Bell’s property as was covered by the recorded chattel mortgages, but had no lien at all by virtue of the unrecorded conditional sale contracts. New Holland has appealed from so much of the judgment as denied it a lien under the conditional sale contracts. Bell and all of the other creditors were made appellees but none of them has filed a brief, so this Court has accepted as correct the statement of facts and issues set forth in appellant’s brief. See RCA 1.260(c).

The facts in this case are substantially identical with those in Jones Stationery & Printing Co. v. Jeffrey, 9 Ky.Law Rep. 148. It there was held that the filing of an intervening complaint by a mortgagee, in an attachment suit in which the mortgaged personalty had been taken into custody of the court, created a lis pendens such as to give the mortgage, though unrecorded, priority over liens acquired by others after the intervening complaint was filed. The lis pendens doctrine applied in the foregoing case has not been abrogated as relates to actions involving personal property. P. A. Stark Piano Co. v. Fannin, 212 Ky. 640, 279 S.W. 1080.

It appears to have been the opinion of the trial court that the intervening complaint was not sufficient to give notice of lien because copies of the unrecorded conditional sales contracts were not filed with the complaint. However, the complaint alleged the existence of the contracts, described in detail the items of property covered by the contracts and the amount due for each item, and carried as an exhibit a specimen form of the contracts. We think this was sufficient.

In our opinion the holding in the Jones Stationery & Printing Company case is sound and under that holding the appellant here is entitled to a lien under the conditional sale contracts having priority over other liens acquired after the intervening complaint was filed.

The judgment is reversed with directions to enter judgment in conformity with •this opinion.

PALMORE, J., not sitting.


author: PALMORE, Judge.

text:
    The CINCINNATI, NEWPORT AND COVINGTON TRANSPORTATION COMPANY, a Corporation, Appellant, v. Burnet FISCHER, Appellee.
    Court of Appeals of Kentucky.
    June 1, 1962.

      Henry J. Cook, Blakely, Moore & O’Hara, Covington, for appellant.
    Thomas W. Hardesty, Newport, for ap-pellee.
   PALMORE, Judge.

The appellee, Burnet Fischer, a 27-year •old lady employed as a comptometer operator by a firm of certified public accountants in Cincinnati, boarded one of appellant’s motor buses at Dayton, Kentucky, on her way to work. After she paid her fare and started for a seat the bus jerked forward and threw her against a metal stanchion, resulting in a painful and permanent injury to her right thumb. She sued the transit company for negligence and got judgment in the amount of $5,083.83 pursuant to a jury verdict. The company appeals, claiming it was entitled to, and the trial court erred in refusing, each of the following :

(1) A directed verdict, upon the ground that it was neither pleaded nor proved that the jerk of the bus was “sudden, unusual, unnecessary and of sufficient violence to cause injury to her had she been exercising ordinary care for her own safety,” and upon the further ground that plaintiff was con-tributorily negligent as a matter of law.

(2) A specific instruction on contributory negligence.

(3) Addition of the words, “in view of the mode of conveyance and other circumstances involved in this case,” to the instruction outlining the duties of the bus company and its driver.

(4) An instruction on the theory of a defect in the brakes of the bus not theretofore known to the driver.

(5) An order setting aside the verdict as excessive.

We shall discuss these contentions in the order stated.

The allegation of negligence was that the bus company through its driver “did carelessly and negligently, without waiting for the plaintiff to be seated, cause said bus to start and lurch with such force and violence, that the plaintiff was caused to, and did, lose her balance, throwing her against the uprights and seats in said bus.”

Stressing the words, “without waiting for the plaintiff to be seated,” counsel for the company says in effect that the cause of action was pitched on the theory that the negligence lay not in a sudden and unusual motion of the bus, but in starting it forward before the plaintiff took her seat, and that in the trial of the case she ought to have been confined to this theory. If so, the argument continues, defendant was entitled to a directed verdict under the authority of Dudley v. Blue Ribbon Lines Corp., 1949, 309 Ky. 308, 217 S.W.2d 629, and other cases holding that a carrier is not required to keep its car standing still until a passenger is seated.

“The true objective of a pleading stating a claim is to give the opposing party fair notice of its essential nature * * Clay, Kentucky Civil Rules, CR 8.01, Comment 2; Lee v. Stamper, Ky.1957, 300 S.W. 2d 251. Although the expression “without waiting for the plaintiff to be seated” might well have been omitted from the complaint, we do not believe its inclusion could reasonably have been interpreted to mean that the plaintiff intended to rest her case on that one particular circumstance. It was plainly alleged that her injury was caused by a violent lurch of the bus, and this was sufficient to apprise the defendant of the essential nature of her claim.

It has been said that in an action by a passenger against a carrier for injuries caused by a jerk or stop of the vehicle it must be both alleged and proved that it was sudden, unusual, unnecessary, and of such force as to import negligence on the part of the carrier. Chesapeake & O. R. Co. v. Hay, 1933, 248 Ky. 69, 58 S.W.2d 228, 230; Lyons v. Southeastern Greyhound Lines, 1940, 282 Ky. 106, 137 S.W.2d 1107. However, under the new rules of civil procedure adopted in 1953 it is not necessary to state a cause of action with the technical precision theretofore required. Clay, Kentucky Civil Rules, CR 8.01, Comment 2. This complaint was adequate to give the defendant fair notice and to identify the claim for purposes of res judicata. To require more would serve no useful purpose.

Passing now to the proof, Miss Fischer testified as follows:

“The bus gave a terrible lurch and I was headed for my seat and when it did, it threw me into the first metal upright pole and threw my thumb back and threw me into the long seat. * * * When I boarded the bus, I started for the first double seat on the right-hand side behind the bus driver and before I got there, the bus jerked and threw me into the right pole before I was able to grab hold of it or anything.”

On cross-examination she further described the lurch in this way:

“Q — You didn’t use any of the other chrome plated bars or stanchions between the front door and the seat?
“A — I didn’t have a chance to. The jerk was too terrific.”

The bus driver’s version is reflected in the following excerpts from his testimony:

“I shut the door after she got on and said ‘Good morning,’ and stepped down on the gas and the brakes seemed to be holding. So I released them. As far as what was holding it, I don’t know. Then I left off the brakes and stepped on the gas the brakes released and I went on.
“Q — Was there any unusual jerk of the bus when you started?
“A — All there was I noticed was the release of the brakes and I wouldn’t say that would be a terrific jerk.
“Q — Was there any unusual jerk?
“A — It was a slight exception.
* * * * * *
“Q — Did it jerk you?
“A — I suppose it did give a slight jerk, yes, sir.”

And under cross-examination:

“Q — But on this particular day, you did feel that bus jerk yourself?
“A — I said it jerked. I said it jerked but I don’t know how much it jerked.
“Q — But it was an unusual jerk?
“A — Any time a brake holds, it’s an unusual jerk.
“Q — You are sure the brakes held and released suddenly?
“A — I would say the brakes held and released, yes, sir.
“Q — And it wasn’t the unusual [sic] motion of the bus?
“A — No sir, it wasn’t the usual motion of the bus.”

The foregoing testimony proves conclusively that the movement of the bus was sudden and unusual. Though Miss Fischer could not have been more than three or four feet from the stanchion next to the front-row seat, she was thrown against it with such force that her thumb was severely injured, a circumstance mutely attesting the violence of the motion. “If the violence of the jerk or stopping is sudden and unusual in the course of the ordinary operation of the machine, or of such character that the jury may infer that it was unnecessary and was the result only of careless operation of the vehicle, the evidence will be deemed sufficient prima facie to establish negligence.” Lyons v. Southeastern Greyhound Lines, 1940, 282 Ky. 106, 137 S.W.2d 1107, 1109. Where the plaintiff proves a sudden, violent, stop or jerk sufficient to cause injury, the jury has the right to infer that it was both unusual and unnecessary. Cincinnati, Newport & Covington Ry. Co. v. Rothe, Ky.1952, 252 S.W.2d 668. It is our opinion that the evidence in this case was amply sufficient to take it to the jury on the question of the driver’s negligence.

It is next argued that Miss Fischer was contributorily negligent as a matter of law in that she failed to hold on to one or more of the stanchions or handrails as she made her way toward the seats and failed also to take the first available seat; and that in any event the company was entitled to a specific instruction on that theory of contributory negligence.

The bus had no other passengers when Miss Fischer boarded it. The first available seats were situated on opposite sides of the bus facing each other across the center aisle. They appear from a photographic exhibit to have been of sufficient width to accommodate two people each. From there on back the seats were arranged crosswise, two on a side with the aisle between. Stanchions in the form of upright metal poles, as well as an overhead handrail running fore-and-aft, were located on each side of the aisle. Proceeding from front to back, the first stanchion to the right was just past the driver’s seat, and the next was beside the first crosswise row of seats, where Miss Fischer intended to sit.

In Dudley v. Blue Ribbon Lines Corp., 1949, 309 Ky. 308, 217 S.W.2d 629, a lady suffered a twisted knee when the bus in which she was a passenger started suddenly as she was going back through the bus to take a seat. Appealing from a judgment on a verdict for the defendant bus company, she complained of an instruction on contributory negligence because there was no evidence to support it. The court held that the giving of the instruction was proper, because all the seats were equipped with hand holds across their tops and there was no proof that she used them, from which the jury could have inferred that she failed to exercise ordinary care for her own safety-

Again, in Fisher v. Whitaker, Ky.1953, 260 S.W.2d 651, a similar case, a contributory negligence instruction was held proper in view of positive evidence that the plaintiffs had ample opportunity to use the overhead handrails but did not do so.

The Dudley opinion does not disclose whether there was evidence showing that the plaintiff had a reasonable opportunity to use the hand holds. Presumably there was. But insofar as the opinion holds that the jury could have inferred a failure to use the hand holds, without any evidence of such a failure, from the naked fact the plaintiff twisted her knee when the bus started, we are of the opinion that it is not sound and must be overruled. The burden was on the bus company to establish the issue of contributory negligence and, in so doing, to prove that the injured passenger (a) had a reasonable opportunity to utilize the protective devices and (b) failed to do so. '

In the case before us there is no evidence of any probative substance that Miss Fischer had a reasonable chance to táke hold of a stanchion or rail before the bus lurched forward. Though she said that the first thing she started to hold on to was the stanchion at the end of the first long seat, she explained her failure to use any of the other rails or bars by the flat statement that, “I didn’t have a chance to. The jerk was too terrific.” There was no evidence whatever to indicate how far she had proceeded, or how many steps she had taken, after depositing her fare. The fair import of the testimony of both Miss Fischer and the driver is that the accident took place almost at once, as she started toward the back of the bus. (Appellant’s brief goes even further, saying that “there is no dispute that the bus started forward as soon as she was aboard and the door closed.”) There was nothing, therefore, from which a jury could fairly have drawn the inference that Miss Fischer had a reasonable opportunity to take hold of any of the protective supports before she was thrown off balance.

-We are unable to see any sound reason why, under ordinary circumstances, a- pássenger boarding a bus and rightfully relying on the driver to exercise due and proper care in operating it should be under any duty to sit in the nearest available seat. Except to the extent that it may have a bearing- on the number and kinds of supportive devices that are available for his protection as he passes along toward his chosen destination, whether he takes the first vacant seat is simply irrelevant. But even if this were not so, the same conclusion applies, because there was no evidence to indicate that Miss Fischer could have reached the first seat and sat down before the bus started, even if she had intended and tried to do so.

Thus it is our opinion that there was no error in the trial court’s refusal to give a specific instruction on contributory negligence.

The instruction outlining the duties of the bus company and its driver was as follows:

“It was the duty of the defendant and its driver in charge of the bus in question upon which the plaintiff was a passenger to exercise the highest degree of care, skill and diligence for the safety of its passengers as was required by the nature and risk of the undertaking.”

This was the same instruction as offered by appellant’s counsel except for omission of the additional words, “in view of the mode of conveyance and other circumstances involved in this case.” The authority on which it is claimed that this additional phraseology should have been employed is the following excerpt from Southeastern Greyhound Lines v. Woods, 1944, 298 Ky. 773, 184 S.W.2d 93, 95:

“It is quite generally stated as fundamental law that it is the duty of a common carrier to exercise the highest degree of care towards its passengers. The statement may be too general and broad. It may be more definitely stated as the duty to exercise the highest degree of care, skill and diligence for the safety of the passenger as is required by the nature and risk of the undertaking, in view of the mode of conveyance and other circumstances involved, which may vary according to the immediate activity, instrumentality, time or place.”

That case did not, however, involve any question as to the form of instructions, nor was the foregoing dissertation intended as a statement of what an instruction must say. Our conclusion is that the expression “as is required by the nature and risk of the undertaking” would derive no further meaning or substance from the additional words “in view of the mode of conveyance and other circumstances involved” in this case, and that the given instruction was adequate.

With respect to the brakes, there was not enough evidence of a defect to warrant an instruction on unavoidable accident. The driver had been operating this particular bus for 5 months and had experienced no previous trouble. His statement that immediately prior to the accident “the brakes seemed to be holding,” and that “the brakes held and released” was nothing more than a speculative conclusion, a mere guess. There was no evidence that this-conjecture was confirmed by any further trouble of a similar nature, or by inspection of the braking mechanism of the bus. We think it is reasonable to assume that, if in fact there had been a mechanical failure the company would have discovered it by subsequent inspection and proved it.. The court properly declined to instruct on the theory of a defect. Cf. Chaney v. Slone, Ky.1961, 345 S.W.2d 484, 486.

The verdict gave Miss Fischer $5,083.83. Her total medical expense was $83.83. She did not claim lost wages. Thus she was awarded $5,000 for pain and suffering and for permanent impairment of her earning power. Her thumb was not broken, but very materially damaged nevertheless. As the bus proceeded toward Cincinnati the driver observed that she was crying, and when they reached the terminal there he saw that the thumb had swollen to double its normal size. She was not in condition to go on to work, and stayed aboard the bus on its return trip to her home at Dayton, Kentucky. She went immediately home and then to the hospital.

At the time of the trial, seven months after the injury, Miss Fischer still had pain in the thumb, and her physician testified that “she has about 50% loss of function of her right thumb. * * * and I believe it will be permanent.” She suffered some sort of a temporary neck strain as well, and developed a rash from a nervous condition that may have grown out of the injuries. She was not hospitalized and, owing to the indulgence of her employers, apparently did not lose any wages. However, her efficiency in operating a comptom-eter is permanently impaired because -she can no longer hold a pencil with her thumb while operating the machine. This technique speeds the operation of recording the data as it is computed on the machine. Miss Fischer now finds it necessary to pick up the pencil after striking her total ‘ on the comptometer, write the total down, and then lay the pencil aside before operating the machine again. She devotes 50% of her time to this particular type of work. Her supervisor testified that “there has been a material lessening in her agility [sic] to operate the equipment that is her primary duty,” but that she has been kept on by the company out of a sense of loyalty. Her life expectancy is a little over 40 years.

In Cincinnati, Newport & Covington Ry. Co. v. Rothe, Ky.1952, 252 S.W.2d 668, this court affirmed an award of $7,500 to a 68-year old housecleaner for a badly bruised arm, elbow, foot and ankle, with permanent injury to the ulnar nerve of an arm resulting in partial paralysis. The award in the case before us today may have been liberal, but we cannot say it is plainly excessive.

Judgment affirmed.


text:
    Henry J. MIRICK et al., Appellants, v. Lucy HENDRICKSON et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.
    W. J. Stone, Lester L. Parrott, Pine-ville, for appellant.
    Robert R. R. Boone, Pineville, for ap-pellee.
   STANLEY, Commissioner.

The hinge upon which this action turns is the construction of an exception or exclusion contained in a deed.

In May, 1917, John Hendrickson executed a mineral lease of a certain parcel of land to J-B Blue Gem Coal Company. It was recorded in Lease Book No. 5, page 493, in the office of the Bell County Court Clerk. On September 16, 1929, George B. Hendrickson, successor in title of John Hendrickson, made a contract of sale and transfer of an interest in the lease, or of a right thereunder, to Clyde Creech and L. S. Creech. On April 17, 1944, Hen-drickson and wife deeded the tract of land which embraced the leased parcel to Henry J. Mirick and Tina Mirick. The deed contained this paragraph:

“It is also understood by all the parties concerned in this transaction an exception is made to a lease as recorded in lease book 5 page 493 and that the party of the first part does not transfer to the party of the second part any of the properties as covered by this lease, and it is further understood by the parties concerned in this action that a certain contract exists between Geo B. Hendrickson and Doc and Lee Creech with respect to the Dean Seam of Coal and that the party of the first part does not transfer to the party of the second part any of the properties as covered by this contract.”

The appellants, Henry J. and Tina Mi-rick, maintain that this exception was only of the contract of sale and royalty payments under the lease, and that fee simple title to the land was included in their deed subject to the terms of the lease and contract. The appellees, Hendrickson’s widow and heirs, maintain that the exception was not limited to the operation of the mineral lease and contract and that the title to the covered parcel remained in the grantor and descended to them.

The circuit court construed the exception as being of title to the property rather than of the grantor’s right as lessor of the mineral lease. We think that is the proper construction of the exception. It expressly says that the grantor “does not transfer * * * any of the properties” covered by the lease and “does not transfer * * * any of the properties covered by the Creech contract.” We think the word “properties” should be given its generic meaning as comprehending and including every interest in the land described in the mineral lease and contract. Even the singular number, “property,” signifies all things owned or subject of ownership. See Raydure v. Board of Supervisors, 183 Ky. 84, 209 S.W. 19. The use of the plural number of the word in the exclusion from the eonveyance accentuates that meaning. The case of Hosbach v. Head, Ky., 284 S.W.2d 684, relied upon by the appellants, is clearly distinguishable. The exception in the ■deed construed in that case was of “coal and mineral rights” and not of the “properties” described in the conveyance.

The judgment states that it is final as to the determination of the ownership of the ■disputed property and reserves for later adjudication other claims which seem to be dependent upon the settlement of the dispute as to the title. CR 54.02.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    LOUISVILLE WATER COMPANY, a Corporation, Appellant, v. PUBLIC SERVICE COMMISSION of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.
    Charles W. Morris, Morris & Garlove, Louisville, Louis Cox, Hazelrigg & Cox, Thomas F. Marshall, Funk, Chancellor & Marshall, Frankfort, for appellant.
    John B. Breckinridge, Atty. Gen., J. Gardner Ashcraft, Asst. Atty. Gen., Frankfort, for Public Service Commission.
    W. Scott Miller, W. Scott Miller, Jr., Louisville, for Eline Realty Company.
   MONTGOMERY, Judge.

The Louisville Water Company appeals from a circuit court judgment affirming an order of the Public Service Commission requiring the water company to extend its water mains and services outside the corporate limits of the City of Louisville.

Pending this appeal, this Court reconsidered the cases under which it had been held that the appellant was under the jurisdiction of the Commission. In McClellan v. Louisville Water Company, Ky., 351 S.W.2d 197, it was specifically held that the operations of the appellant were exempt from the jurisdiction of the Public Service Commission. Hence, the judgment herein rendered is now erroneous.

Judgment reversed.


text:
    Hila E. COX, Individually, and suing for her Infant children, Phylis Juanita Cox, et al., Appellants, v. PEABODY COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.
    J. Leonard Davis, Harlan, for appellants.
    Sampson & Rice, Harlan, for appellees.
   PALMORE, Judge.

Following the death of Pleasant A. Cox on June 30, 1958, his widow claimed workmen’s compensation for herself and her infant children, alleging that his death resulted from silicosis which arose out of and in the course of his employment with the ap-pellee Peabody Coal Company. She took the depositions of two physicians who had examined or treated the decedent prior to his death. In giving their ■ opinions relating to the cause of death each of the doctors relied to some extent on a review of X-ray films on file at the Harlan Memorial Hospital. Because the claimant would not or did not voluntarily cause these films to be released to the employer for examination by physicians' of its own choosing, the Workmen’s Compensation Board dismissed the claim without prejudice.

On appeal to the Harlan Circuit Court the action of the board was affirmed, whereupon the claimant has now appealed to this court.

After completion of claimant’s proof counsel for the employer filed with the board a motion for extension of time in which to take evidence in defense, stating as grounds that counsel for the claimant had assured him that he would obtain the X-ray films for submission to physicians of the employer’s choice, but had not yet done so. There was no response to this motion, and it was sustained. It developed shortly afterward, however, that the claimant had changed her mind, and the board sustained a defense motion to hold the proceeding in abeyance until such time as she saw fit to authorize release of the films. Some two months later, still at loggerheads, the parties filed counter motions, claimant asking that the cause be submitted for decision on her evidence alone and the employer requesting an order to show cause why it should not be dismissed. After first overruling the company’s motion and sustaining the motion to submit, pursuant to a further motion by the company the board reconsidered its action and dismissed the claim without prejudice.

The company contends, and the trial court agreed, that its right to have the X-ray films comes within the scope of KRS 342.021(2), which provides as follows:

“If the employe should be examined or treated by any doctor of his own choosing the employe shall, immediately following said examination, cause a copy of the report thereof to be furnished to his employer or to the board, if required by either.”

It is our opinion that an X-ray film ordinarily is no more a part of the “report” made on the basis thereof than is a blood sample or urine specimen. However, since they are preserved for future reference there is no reason why they cannot be reached by an appropriate order of the board (or, if necessary, a subpoena duces tecum) pursuant to its broad powers under ICRS 342.260. If the employer needs temporary custody in order to submit them to its witnesses in lieu of bringing the witnesses to Harlan or Frankfort to examine them, the board has the discretion to permit it under such conditions as it may deem reasonable and safe.

Had the board in this case directed the claimant to procure the films and turn them over to the company for examination we would uphold its right to dismiss the claim, with or without prejudice, upon her failure, without good cause, to do so within a reasonable time. But she was never so ordered, and we are unwilling to see her and the infant children penalized by virtue of what would surely appear to them and to the average layman as incomprehensible folderol between the lawyers.

The adversary nature of our practice sometimes leads us to forget that a trial is riot a game, but is a quiet, search for the truth. Cf. Wm. O. Douglas, The Public Trial and the Free Press, 46 ABAJ 840, 841 (Aug. 1960). There can be no justification for playing hide-and-seek with records that may be of assistance in that process. Upon remand of this case; and on proper motion, the board may issue such orders and subpoenas as are appropriate in order to enable medical witnesses of the company’s choosing to examine the X-ray films without hardship or undue inconvenience.

In the absence of findings by the board on the merits of the case we shall not pass on the sufficiency of the claimant’s proof to support an award.

Judgment reversed with directions that the cause be remanded to the Workmen’s Compensation Board for further proceedings consistent with this opinion.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky ex rel. DEPARTMENT OF FISH AND WILDLIFE RESOURCES et al., Appellants, v. J. E. MAYER et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.

      John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for Com. ex rel. Dept, of Fish & Wildlife Resources.
    Walter B. Smith, Louisville, for appellant Elmer Merchant.
    Kinsolving & Kinsolving, H. B. Kinsolv-ing, III, Shelbyville, for appellees.
   WILLIAMS, Judge.

Title to 325 acres of land in Shelby County was conveyed to the Commonwealth of Kentucky, Department of Fish and Wildlife Resources, through the efforts of the Shelby County Industrial and Development Foundation, Inc. The Department constructed a dam which formed a lake covering the 325 acres at permanent pool level. The Department owns and exercises control over the lake, plus a 50-foot “public access strip” surrounding the lake, but the Foundation has been granted the right to operate commercial boat docks and to take such water from the lake as is necessary to supply the water needs of the city of Shelbyville.

The appellees, J. E. Mayer and Etta B. Mayer, conveyed two and one-half acres of their farm to the Commonwealth free of any consideration. The appellant, Elmer Merchant, conveyed about eight acres of his property for the lake project for the consideration of $3000. Merchant was granted permission by the Commonwealth to build a causeway across a neck of the lake wholly on state property but connecting a 21-acre tract which he owned on one side to a 45-acre tract owned by his mother on the other side of the lake. It was provided that Merchant should pay for building and maintaining the causeway, that it must be kept open to the public at all times, that it must be built according to the specifications set up by the Department and in accordance with county road standards. The plans called for the causeway to be 125 feet long, 24 feet wide at the top and sloping at a two to one ratio to a base 100 feet wide at the bottom of the lake. A 16-foot wide passage through the causeway was provided for to be spanned by a bridge eight feet above the normal water level.

After work upon the causeway was commenced 170 feet away from the property line of appellees, suit was filed against the Commonwealth and Merchant seeking a mandatory injunction directing removal of the causeway. The Shelby Circuit Court found that the causeway created a public nuisance, and entered judgment ordering the removal of that work which had already been accomplished and permanently enjoined the appellant from commencing any such project in the future. This appeal is prosecuted from that judgment.

We have a situation here where the owners of property have conveyed title to a portion thereof without consideration, but obviously with the expectation of enhancement in value of the remaining property. There is reserved in the deed the right to make reasonable use of the water from the lake for land irrigation, livestock and normal farm use; for household use on the farm and in any private campsites which may be established thereon; and the right to place and maintain on the lake a boat dock and boat. The Commonwealth has not deprived the appellees of any of the above reserved rights by the construction of the causeway.

It is a general principle of law that every person may make such use as he will of his own property, provided he uses it in such a manner as not to injure others. This principle is applicable to abutting landowners and governs in determining their rights, duties and liabilities in respect to each other. The law does not forbid any and all uses of property which may cause loss, damage or inconvenience. While the rightful use of one’s own land may not infrequently have some effect to diminish the value of an abutting estate, or to prevent its being used with the comfort which might otherwise have been anticipated, this is damnum absque injuria, as to which the law cannot interfere. 1 Am.Jur., Adjoining Landowners, section 3. In United Fuel Gas Co. v. Sawyers, Ky., 259 S.W.2d 466, 38 A.L.R.2d 1261, this Court declared that it would not follow the policy that makes one in the use of his own property practically an insurer against injury to his neighbor’s property. Kentucky law is in accord with the “American Rule,” that in the absence of negligence there is no liability if there was a legitimate and reasonable use.

The plans and specifications for the causeway do not call for careless or negligent construction. The causeway will not impede access by appellees to the rest of the lake because there will be a 16-foot by 8-foot passageway which is to be maintained through the causeway. That the value of the appellees’ land may be diminished to some extent by the erection of the causeway is no justification for prohibiting the construction thereof; nor is the fact that sedimentation may occur to a greater extent above the causeway a reason for enjoining appellants from construction. The Commonwealth owns both the lake and the access area on each side where this causeway is being constructed. As a matter of fact the Commonwealth owns the entire lake and the dam as well. If for some reason the Commonwealth were to remove the dam and destroy the lake completely, the appel-lees would have no occasion to complain. It is because of the existence of the lake, which is the property of the Commonwealth, that the remaining portion of ap-pellees’ land is enhanced in value at all. The Commonwealth has done no act which injures appellees to the extent that might be considered a taking of their property. In Jenkins v. Louisville Home Telephone Company, (Ky.) 120 S.W. 276, 22 L.R.A., N.S., 1167, a telephone company erected a pole in premises adjoining a residence so close to a window that a burglar climbed the pole and entered the residence. The Court held that erection of the pole or the manner in which it was done was not negligence per se. It was said :

“ * * * the mutual rights, duties, and liabilities of adjoining landowners are dependent on the principle which requires one to enjoy his property in such a manner as not to injure that of another, but the application of this principle is to be limited so as not to restrain an owner of property from reasonable and prudent use and enjoyment of it.”

The Commonwealth had a right to construct or to have constructed a causeway across its property. There is no direct injury occasioned the appellees in the construction of the causeway. The appellees will, after the causeway is completed, have the same right to the use of the lake as they enjoyed before it was commenced. Even though the land owned by appellees may not be as valuable after construction is completed as it was before, that is not sufficient cause for issuing an injunction against such construction.

The judgment is reversed, with directions that a judgment be entered for appellants.

MONTGOMERY, J., not sitting.


author: MOREMEN, Judge.

text:
    Clyde E. ROWE, Appellant, v. OSCAR EWING DISTRIBUTING CO., Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.
    Hatcher & Lewis, Elizabethtown, for appellant.
    H. L. James, Elizabethtown, for appel-lees. ...
   MOREMEN, Judge.

In appellant’s action against appellee company for personal injuries, the court directed a verdict for the appellees.

Appellant, Clyde E. Rowe, is a member of the Army of the United States stationed at Fort Knox. He lives in a house trailer near the military reservation.

Appellee, Oscar Ewing Distributing Co., Inc., is a milk company engaged in selling milk and other products in the area in which appellant lives. Appellee, Julian Cox, delivers milk.

In the early morning of April 25, 1959, appellant and his wife were seated at the breakfast table when Cox came to the door of their trailer and received an order for two half-gallons of sweet milk and some other products. He returned to the milk truck and obtained these products. He set the two half-gallons of sweet milk on the floor inside the door of the trailer. He and the Rowes talked for a few minutes and Cox left. Appellant testified that shortly thereafter he reached down and grabbed the two bottles by the top portion, one in each hand, and as he lifted the bottles and started to turn to go to the refrigerator the bottle in his right hand collapsed. A piece of glass cut his right hand at the juncture of the right thumb and the palm. It was a serious injury and the proof indicated that he will have a permanent disability in his right hand.

Appellant testified that he did not hit the bottle against any other object but that the neck of the bottle cracked. He said the bottle was shattered. He was not sure whether this happened when the bottle hit the floor. The broken glass was swept up and disposed with the garbage and therefore was not produced in evidence. This, in itself, makes it a little harder for all of us to reach a decision. The fragments of the broken bottle may have helped experts to guide us, as it did in some cases.

Appellees produced several witnesses, including the general manager of the milk distributing company at the time, who described in detail the methods used by the company in inspecting and filling the bottles which, he testified, were approved and accepted forms of operation in the dairy business. It was modern. He stated that it is the duty of the operator of the bottle washer to check for visible cracks and to see that the bottles are clean before they go to the filler operator. All of this was done. The filler operator is under duty to inspect the bottles for specks or spots or any defects that may be in the bottles. He described the filling operation as follows:

“A. The bottle comes out of the washer after it’s gone through the washer and they are set up on conveyor lines and they go into the filler line operation from the bottle washing room and they come through the bottle filler and the filler has a valve that goes down into the bottle. It’s seated on top with a rubber seal and as they go around the circle they are under vacuum, air vacuum, in case there is any leak or crack in the bottle the bottle will not fill. Then it goes from that machine off the conveyor about 18 or 20 inches and the inner lid is put on. When it comes off that machine it goes through the next machine which is the seal-on machine and the lids are heated with an electric unit so it will seal the bottle as it comes off the conveyor, it has little rollers.”

And in more detail as follows:

“A. The filler has some pressure on it as they come in on the pedestal and they raise up against this valve and as it presses the valve to let the milk out into the bottle it pulls the air out of the bottle. When it comes up it depresses this spring and if it has anything too much wrong with the bottle the bottle will collapse at that time or if it doesn’t collapse or has any crack or leak the filler will pull air instead of milk and the bottle doesn’t fill and the purpose is to keep from wasting the milk.”

The general manager described the post-bottling procedures of capping the bottles and placing them in containers of wire or wood which were divided into sections, one bottle per section. He testified that the bottles fit snugly and do not bump together while being transported in either kind of container. In this instance, wire containers were used. The testimony of Julian Cox, the deliveryman and other appellee, substantiated the general manager’s testimony as to the containers. Cox further testified that he always carried the bottles from his truck to the customers’ houses by hand, grasping them around the neck. He said the bottles were all right when he delivered them. This was the same manner in which appellant had picked up the bottle when it collapsed.

Appellant contends that the milk company violated its duty to supply milk to its customers in safe containers and was negligent in the bottling and handling of the product. There was no showing of specific negligence on the part of the milk company but it is insisted that recovery could be had under the doctrine of res ipsa loquitur. In addition appellant relies upon Sec. 395 of the American Law Institute’s Restatement of the Law of Torts which indicates that liability attaches to manufacturers who fail to exercise reasonable care in the manufacture of chattels which, unless carefully made, fore-seeably may involve unreasonable risks of bodily harm; and upon some opinions of this court and of courts from other jurisdictions. We will discuss first the opinions of this court relied upon by appellant.

In Seale v. Coca-Cola Bottling Works, 297 Ky. 450, 179 S.W.2d 598, the consumer sought damages for injuries suffered as the result of drinking some of the contents of a bottle of Coca-Cola which contained slivers of glass. It is noted that the suit was based upon the product manufactured by the Coca-Cola Company, not the bottle, and involved a question of contamination of that product. The opinion stated that the container was “whole, sound and unbroken.”

In the instant case the containers used by the milk company were not manufactured by it but were purchased from a glass bottle manufacturer. It was not shown by appellant that he purchased the bottle. He did purchase the milk in the bottle. We believe it fair to assume that the bottle was lent to appellant as an incidental service in connection with the purchase- of the milk. The product which the milk company processes is milk which is generally considered to be a harmless substance unless contaminated and there is no contention here that this milk was contaminated.

Coca-Cola Bottling Works v. Curtis, 302 Ky. 199, 194 S.W.2d 375, is a case of a “bee being where it should not be, that is in the bottle of Coca-Cola,” also a contamination case.

Other cases cited by appellant offer a closer analogy, but we do not believe they are decisive.

In Gordon v. Nehi Beverage Co., 298 Ky. 836, 183 S.W.2d 795, a soft drink bottle exploded in plaintiff’s hand, but there the plaintiff did not rest his case entirely upon the doctrine of res ipsa loquitur, as was done in the case at bar. He introduced fragments of the bottle itself and it was shown that the bottle was defective in that the glass on the various surfaces was of unequal thickness. One of the beverage company’s officers testified that a bottle varying in thickness was defective and would be more likely to explode under pressure from the carbonic gases contained in the beverage. So it was not an unreasonable deduction from the evidence that the beverage company had been negligent in its inspection of the bottle.

In Coca-Cola Bottling Works v. Shelton, 214 Ky. 118, 282 S.W. 778, plaintiff produced evidence that on the same afternoon on which the bottle in question exploded, twenty-five other Coca-Cola bottles exploded. This court held that by reason of the numerous explosions under similar circumstances “it may be inferred that they were defective or were improperly charged.”

In Loche v. Confair, 372 Pa. 212, 93 A.2d 451, it was pointed out:

“What is perhaps somewhat of a tenuous distinction has been made between the doctrine of res ipsa loquitur and the exclusive control doctrine, which latter is more or less peculiar to Pennsylvania law in accident cases.” We require exclusive control to be an element in the application of res ipsa loquitur, but it seems that even another theory has been developed in Pennsylvania which does not require our discussion.

In Carter v. Yardley & Co., Ltd., 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559, the court was primarily concerned as to -whether the plaintiff was to he denied relief in a tort action merely because she had no •contractual relation or privity of contract with the defendant. Since we have in a recent case (C. D. Herme, Inc., v. R. C. Tway Co., Ky., 294 S.W.2d 534) laid to rest the privity requirement for a manufacturer’s liability, the case is of little value.

The per curiam opinion in Hoenig v. Central Stamping Co., 247 App.Div. 895, 287 N.Y.S. 118, did not undertake a discussion of any of the questions we have here •and simply indicated that a manufacturer of a coffee urn would be liable to an ultimate •customer where the handle on the urn broke in normal use and the plaintiff was burned.

We are not convinced that any of the cases cited by appellant support his ■theory that the doctrine of res ipsa loquitur is sufficient to take a case to the jury after the defendant has shown that he has exercised reasonable care in his methods of ■processing and inspecting a product during the course of manufacture.

In Cox v. Wilson, Ky., 267 S.W.2d 83, 44 A.L.R.2d 830, the court said:

“The fact that some mystery accompanies •an accident does not justify the application •of the doctrine of res ipsa loquitur. The fact that we cannot pinpoint an act of omis•sion or commission wherein one fails to respect the rights of others does not summon its use. A lack of knowledge as to the •cause of the accident does not call for the application of the doctrine. The separate ■circumstances of each case must be considered and from them it must be first decided whether according to common knowledge and experience of mankind, this accident could not have happened if there had not been negligence.”

In Locbig’s Guardian v. Coca-Cola Bottling Co., 259 Ky. 124, 81 S.W.2d 910, we affirmed the judgment of a circuit court rendered pursuant to a directed verdict .-given at the close of plaintiff’s testimony in a case where a bottle of Coca-Cola exploded, causing injury. It was said:

“The doctrine of res ipsa loquitur assumes, at least prima facie, the existence of negligence from the mere occurrence and injury. Since the principle applies only to cases where the existence of negligence is a more reasonable deduction from the circumstances, it should not be allowed to prevail where, on proof of the occurrence, without more, the matter still rests in conjecture alone.”

In the case under submission the bottle was not preserved or presented at the trial. Appellee proved beyond doubt that its method of inspection of the bottles and of the processing of the milk was efficient and thorough. Cox, the deliveryman, testified that he carried the bottles by their tops when he delivered them to the trailer and that they were in sound condition. Just how this accident happened is still a matter of speculation and conjecture and we are of the opinion that the circuit court properly directed the verdict for the appellee.

Appellant next contends that under KRS 361.150 of the Uniform Sales Act in effect at the time of the accident, damages are recoverable for breach of warranty including personal injuries and recovery may be had for a breach of an implied warranty of fitness. Subsections (1) and (2) of the said section read:

“(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer oi not), there is an implied warranty that the goods shall be reasonably fit for such purpose.

“(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.”

In connection with that Act we direct attention to subsection (2) of KRS 361.010, which reads:

“A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price.”

Appellant relies upon Snead v. Waite, 306 Ky. 587, 208 S.W.2d 749, to support his theory that a breach of implied warranty permits recovery for personal injury. In that case plaintiff purchased from defendant a quantity of barbecued mutton and consumed it. He became violently ill and produced medical testimony that his illness apparently resulted from food poisoning This court refused to disturb the judgment based on the theory that the seller of the mutton had breached an implied warranty of fitness. However, the commodity sold was the one actually manufactured or processed by the seller. It was not shown in our case that the milk bottle was the subject of a sale. The commodity sold was milk which carried with it the seller’s implied warranty that it was wholesome. But there was no showing that the milk bottle was sold and there was no showing that the bottle had a specific defect which caused the accident and, as we concluded above, one may only conjecture as to what force caused the bottle to collapse. If this suit were against the manufacturer of the bottle and in fact it had been shown that a defective bottle was sold to appellant for a specific purpose, we would be faced with another question. As we understand this case the only possible way that appellant could get his case to the jury would be to say that the doctrine of res ipsa loquitur in itself might take it to the jury even though the defendant had shown by ample proof that the accident happened through nb negligence of its own.

In East Kentucky Beverage Co. v. Day, Ky., 248 S.W.2d 923, we said that in certain cases the doctrine of res ipsa loquitur does apply and places the burden upon the defendant to justify his action. The court said:

“But, as it was stated in the case of Batson v. Western Union Telegraph Co., 5 Cir., 75 F.2d 154, 157, the doctrine of rés ipsa loquitur applies ‘only when the thing shown speaks of the negligence of the defendant, not merely of the occurrence of an accident.’ ”

Perhaps the fact that the bottle broke was sufficient in this case to place upon the appellees the duty to show that they had carefully handled the bottle during the time it was under their control. The proof introduced in appellees’ behalf was sufficient to meet that requirement.

We are of opinion that the court properly directed the verdict for appellee.

Judgment affirmed.

PALMORE, J., dissenting.


text:
    Stoy DECKER and Robert Cox, Appellants, v. Solon F. RUSSELL, Sheriff of Jefferson County, Ky., et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.

      Sandy Paniello, Louisville, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, Lawrence A. Higgins, Commonwealth’s Atty., Louisville, for appellees.
   STANLEY, Commissioner.

The appellants, Stoy Decker and Robert M. Cox, were convicted of violating KRS 437.110, which provides “punishment by fine or imprisonment or both in the discretion of the jury” of anyone who with one or more persons “shall confederate or band themselves together and go forth for the purpose of intimidating, alarming, disturbing or injuring any person” etc. The particular circumstances were that the accused had violently assaulted and fired a tear gas bomb in the face of Lloyd Alexander. The judgment on the verdict sentenced the two appellants to imprisonment in jail for a term of four years and imposed fines of $2,500 on each of them. By a memorandum opinion we overruled their motion for an appeal because of the absence of error. Decker v. Commonwealth, Ky., 344 S.W.2d 831, Cert. Den. 365 U.S. 870, 81 S.Ct. 904, 5 L.Ed.2d 860. Fred Guinn was jointly tried with the appellants and convicted, but we reversed the judgment against him on the ground that the evidence of his participation in the crime did not sustain the verdict. Guinn v. Commonwealth, Ky., 331 S.W.2d 886.

The present appeal is from a judgment denying the appellants’ release from jail on a writ of habeas corpus after a hearing by the court on a provisional writ.

The petition for habeas corpus set forth many grounds, including the allegation of a violation of several constitutional rights. On the appeal, however, the only grounds urged are that the penalty imposed exceeded the statutory limit and constituted cruel punishment, which § 17 of the Kentucky Constitution and the Eighth Amendment of the Federal Constitution prohibit.

The argument on the first point rests on the premise that the offense described by KRS 437.110(1) is a common law misdemeanor for which KRS 431.075 provides a penalty of imprisonment in jail for a term not exceeding twelve months or a maximum fine of $5,000 or both.

Prior to 1948 the offense denounced by KRS 437.110(1) was a felony punishable by imprisonment in the penitentiary from one to five years. § 1241A-1, Ky.Stats., KRS 437.110, 1943 Edition. An Act of 1948, Ch. 22, amended and consolidated sections of the statutes covering statutory criminal conspiracies into the present KRS 437.110(1) and provided the penalty stated above. This is a statutory misdemeanor and is not the common law misdemeanor of conspiracy. It is not within the terms of KRS 431.075. James v. Commonwealth, Ky., 259 S.W.2d 76.

On the hearing of this habeas corpus proceeding the trial court indulged the petitioners’ introduction of two members of the 1950 Legislature who testified that it was the intention of the Act of that year, which became KRS 431.075, that it should embrace all misdemeanors, including that described in KRS 437.110(1). This is, indeed, a novel resort for construing a statute. Of course, the testimony was disregarded by the trial court, as it is by this appellate court. See Wheeler v. Board of Commissioners of City of Hopkinsville, 245 Ky. 388, 53 S.W.2d 740.

The conclusion of the whole matter is that the claimed ground of punishment in excess of that prescribed by the statute was argued and considered on the appeal from the judgment of conviction and decided adversely. The judgment may not be attacked collaterally in an habeas corpus proceeding, for it is not shown that it is void. Commonwealth v. Crawford, 285 Ky. 382, 147 S.W.2d 1019; Adkins v. Commonwealth, Ky., 328 S.W.2d 412.

The second ground is also without legal merit. The statute, KRS 437.110(3), as stated, places no maximum limitation on the term of imprisonment that a jury may impose in its discretion. In Weber v. Commonwealth, 303 Ky. 56, 196 S.W.2d 465, we referred to the historical background of the constitutional prohibitions against cruel punishment for crime, and said that where no maximum penalty is prescribed, a jury may not act arbitrarily but must be controlled by the nature and enormity of the offense, so that excessive verdicts apparently returned under the influence of prejudice will be set aside. But we held a penalty of confinement in jail for four years and a $5,000 fine was not cruel and inhuman punishment for an aggravated common law assault and battery. The record of this case is that the banding together of the defendants — “ganging up,” in the vernacular — was conceived in malice and executed with brutality.

But this ground of reversal of the present habeas corpus judgment was not raised on the original appeal as it might have been as one of error. The severity of the penalty imposed for a criminal offense does not render the judgment void. We are among the courts which hold that the denial of a constitutional right does not invalidate a judgment of conviction where the court which tried the case had jurisdiction. Smith v. Buchanan, 291 Ky. 44, 163 S.W.2d 5, 145 A.L.R. 813; Owen v. Commonwealth, Ky., 280 S.W.2d 524; Berry v. Gray, Ky., 299 S.W.2d 124, 125.

Judgment affirmed.


author: MILLIKEN, Judge.

text:
    AMERICAN COMPRESSED STEEL CORPORATION, Appellant, v. Edsel BLANTON et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.

      James M. Graves (Boehl, Stopher, Graves & Deindoerfer), Louisville, for appellant.
    W. C. Edrington, Louisville, for appel-lees.
   MILLIKEN, Judge.

The Workmen’s Compensation Board awarded the appellee, Edsel Blanton, compensation for temporary partial disability (under KRS 342.100) which it found resulted from a right arm injury incurred when his arm was struck below the elbow by one or more edges of a large metal plate. The Circuit Court affirmed the Board’s findings and award, and the employer (appellant) contends that there is no evidence to sustain the Board’s findings

Of course, if there is evidence to support the Board’s conclusion, it is axiomatic that the award must be sustained. The injury (cuts and bruises) occurred on September 24, 1959, was promptly reported and the injured man was treated by the company physician until October 6, 1959, when his wounds apparently were safely mended. He lost no time from work, but on March 31, 1960, he and several other men in his work gang were discharged for absenteeism. Blanton remained unemployed for eight weeks for which he drew Unemployment Compensation, then obtained work as a flagman with the Jefferson County Road Department.

When re-examined by the company physician in August, 1960, eleven months after the injury, Blanton was found to have little or no sense of feeling in the area of his injury. This physician concluded that Blanton had “a sort of self-induced hypnosis”, a fixation in his subconscious mind which the physician considered was probably not a permanent disability. Blanton’s own physician testified that although Blan-ton’s wounds had healed he had not been able to fully straighten the injured arm and did not have as good a grip in his right hand as he had in his left.

It seems to us that the testimony of the physicians together with the testimony of Blanton himself was enough evidence of substance to sustain the findings of the Board that Blanton's disability originated in the injury. The suggestibility of Blanton, his loss of his job, his family responsibilities and other factors may have contributed to his neurosis, but the effect of all of these factors was precipitated or heightened by the injury itself. The Board cannot be required to be more precise in its conclusions than a psychiatrist or psychologist would probably be. Traumatic neurosis is compensable in Kentucky. Eastern Coal Corporation v. Thacker, Ky., 290 S.W.2d 468. See, also, Larson, Workmen’s Compensation Law, Sec. 42.24. This type of situation is most troublesome because the line between neurosis and malingering is not always sharply defined.

The judgment is affirmed.


text:
    EAST KENTUCKY RURAL ELECTRIC COOPERATIVE CORPORATION, Appellant, v. John RAND et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.
    Ralph Mitchell, Shelbyville, for appellant.
    James F. Thomas, New Castle, for ap-pellees.
   PALMORE, Judge.

The condemnor appeals as excessive an award of $4,100 for an electric transmission line easement 100 feet in width extending a distance of 1799 feet across a 198-acre tract of farm land in Trimble County.

The terms of the easement are the ones usually involved in right-of-way acquisitions by rural electric cooperatives. Five poles, one of which is supported by anchors and guy wires, have been placed on the tract. One of them is located in a long narrow tobacco field which is crossed laterally by the wires, and this tobacco field is the nub of the case.

The tract in question has a tobacco base of 7.65 acres. All of the allotment is grown in a single field 175 to 200 feet wide and 1700 to 1800 feet long. This field, which originally produced 900 to 1000 lbs. per acre, has been improved and built up over a period of 20 years to a high state of fertility and now averages between a ton and 2500 lbs. per acre. It is irrigated through a system of pipes and sprinklers running" from a lake some 300 feet distant. The owner usually has the tobacco crop sprayed', by airplane two or three times during the growing season. The pilot who has done this job for the past several years testified,, in effect, that he did not think it would be practicable to spray the field by plane with the power line running across it. Hand spraying is not feasible in view of the size of the plants grown in this particular patch. .Without spraying the yield would drop 20% to 25%, or about 500 lbs. per acre. At an average of 60‡ to 65‡ per pound, the gross proceeds would drop well over $2,000 per year. On the other hand, moving the tobacco production to another location on the farm would, according to the owner and his witnesses, result in equal loss for two reasons, (1) that he does not have another suitable field close enough to the lake to permit satisfactory irrigation, and (2) that it would require a number of years to develop another field to a comparable state of fertility.

All of the testimony relating to the probable effect on tobacco production went un-contradicted. There was no evidence to refute the pilot’s opinion that the presence of the pole and wires probably would make it impracticable to spray the field by air. Whatever misgivings we may privately entertain, certainly this testimony is not so patently unreasonable as to justify our questioning its credibility.

The owner testified that his land as a whole had a reasonable market value of $75,000 immediately before the taking of the easement and $67,000 thereafter, a difference of $8,000. A witness engaged in the real estate business gave his opinion that the values before and after were, respectively, $75,400 and $70,000, rounding the difference to $5,000. Both of these men attributed the diminution almost exclusively to the interference in tobacco production, and consequent loss of revenue from the land, likely to be occasioned by the placement of the pole and wires on the tobacco field. Other witnesses substantiated their opinions and estimates relating to the cultivation and sale of tobacco.

The valuation witnesses used by the con-demnor in circuit court were the three commissioners who had served in the county court proceeding and had assessed the compensation and damages at $540. On the witness stand all three were either reluctant or too modest to claim any real qualification to express an opinion on land values in Trimble County. None of them had given due consideration to the possible obstruction of spraying operations. Their testimony was not of a quality likely to carry weight with a jury.

There being no two cases alike, it is often said that “there is no definite yardstick which a court may apply in deciding whether damages are excessive in a given case.” East Kentucky Rural Electric Co-op Corp. v. Erwin, Ky.1958, 310 S.W.2d 554; Tennessee Gas Transmission Co. v. Teater, Ky.1952, 252 S.W.2d 674. Though it is obvious that the jury system shows to its least advantage in condemnation cases, they are better tried in the court house than here. We have little doubt that after the award in this case has been paid human ingenuity will be able to contrive ways and means to spare this tobacco patch from the disastrous consequences that appeared so inevitable during the trial. But the time to prove it has passed, and we are not the right witnesses anyway. The evidence in this record gives us no reasonable basis to say the verdict was flagrantly excessive.

Judgment affirmed.


text:
    ALCOHOLIC BEVERAGE CONTROL BOARD et al., Appellants, v. HELM HOTEL COCKTAIL LOUNGE, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.

      John B. Breckinridge, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., Frankfort, for appellants.
    Robert M. Pearce, Frankfort, for appel-lees.
    G. D. Milliken, Jr., City Solicitor, Bowling Green, Amicus Curiae, for appellee.
   CLAY, Commissioner.

At an election held on September 24, 1960, the majority of the voters of Bowling Green favored the sale of alcoholic beverages in the city. Sometime thereafter the Alcoholic Beverage Control Board fixed a quota of 18 for the issuance of retail packaged liquor licenses. No quota was fixed for retail drink licenses (a recognized category).

Appellees each applied for a drink license. After a hearing to determine what quota, if any, for this type of license should be fixed for Bowling Green, the Board ordered that no retail drink liquor license quota would be established and no such licenses would be issued. We may observe that if the Board had the power to- enter such an order, the record justified the action which it took.

On appeal to the circuit court from this order it was adjudged to be arbitrary as nullifying the local option statutes of Kentucky and the Board was directed to fix and! establish a reasonable quota for the city.

The Board first questions the right of appellees to prosecute an appeal to the Franklin Circuit Court from an order refusing to fix a quota. No statutory appeal from such an order is provided. However, the lack of a quota was the basis upon which appellees’ applications for a license were-, denied. An appeal from the latter order,, authorized by KRS 243.560(1), properly put: in issue the validity of the quota order. (Actually both rulings were in the same order.)

The case of Lexington R. B. D. Ass’n v. Dept. of A. B. C. Board, Ky., 303 S.W.2d 268, did not involve an application for a. license and is distinguishable on this ground.. The Franklin Circuit Court had jurisdiction to review the action of the Board' in, refusing to fix a quota since this was the-basis of the denial of appellees’ applications.

KRS 241.060 grants the Board general powers to regulate the alcoholic beverage industry. Under section (2) of this statute it is authorized “to limit in its sound' discretion the number of licenses of each kind or class to be issued in this state.”' (Our emphasis) Our question is whether or not the power to limit the number of licenses in a particular class includes the-power to fix that limit at zero and thereby effectively prohibit such licenses. Under KRS 243.570(2) (a) we may determine-whether the Board acted without or in excess of its powers.

As generally understood, a limitation is a boundary, restriction or circumscription of something. There must always be a base upon which the limitation can operate. The power to limit is not the power to destroy the base.

The authority of the Board involves regulation, and regulation does not carry with it the power to prohibit. 1 Am.Jur. 2d, Administrative Law, Section 134 (page 946). Where intoxicating liquor licenses are authorized, even though the regulating public body has a broad discretion in fixing the number, a restriction which constitutes an absolute or practical prohibition is unauthorized and arbitrary. State ex rel. Wilder v. City of Jacksonville, 157 Fla. 276, 25 So.2d 569; Re Barclay, 12 U.C.Q.B. 86 (cited in 124 A.L.R. 834).

On principle and authority we must hold that the power granted the Board by KRS 241.060(2) to limit the number of licenses in each class did not authorize it to abolish this class of license in a particular political subdivision. Though the action of the Board was influenced by the best of motives, its powers may only be exercised in conformity with legislative direction.

Appellees in their brief request us to comment upon what would be a proper quota for the Board to fix in view of the fact that it has already established a retail package quota. This we decline to do except to say that sections (1) and (2) of KRS 241.060 recognize that different quotas may be fixed for different kinds of licenses.

The judgment is affirmed.