author: DAVIS, Commissioner.

text:
    George DAVIS, Appellant, v. H. D. BRITT, Sheriff, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.

      Leland H. Logan, Bowling Green, for appellant.
    G. D. Milliken, Jr., Bowling Green, Douglas Keen, Scottsville, for appellees.
   DAVIS, Commissioner.

This election contest involves the Republican nomination for constable in Magisterial District No. 3 of Allen County at the primary held May 25, 1965. KRS 122.020. On the face of the returns appellant received 125 votes in the two precincts which compose the district. Appellee John Frost received 165 votes, and a third candidate polled 59 votes. The trial court dismissed the contest because the complaint failed to assert a claim upon which relief could be granted. Hence, this appeal presents the question whether appellant stated a cause of action.

The original complaint was filed June 7, 1965; it is cast in eight numbered paragraphs. The first is an introductory statement alleging appellant’s qualifications as a candidate for the office of constable in the district. It is not in issue.

The second paragraph recites the results of the primary, and no issue is presented as to that.

The next two paragraphs assert that certain illegal voters cast ballots in Precincts No. 3 and No. 6 (comprising the district). The names of the alleged illegal voters are set forth, and the allegation is made that each of the named voters lacked the requisite residential qualifications of a legal voter. The sum of the' persons named is seventy, of whom 57 are said to have voted illegally in Precinct No. 6, and thirteen in Precinct No. 3. There is no allegation with respect to the candidate for whom any of these voters had cast ballots, nor is there any claim that proof of how each voted is unavailable.

The fifth paragraph contains a perplexing declaration that one named voter was paid a sum of money “ * * * to vote in Precinct No. 6 for a candidate in the same race but not for this plaintiff * * This averment is followed by the statement that five other named persons “ * * * were also paid a sum of money for their vote in Precinct No. 6 of the said election * * Of the latter six voters there is no statement they voted “ * * * but not for this plaintiff * * This paragraph contains no plea that any or all of these allegedly bribed voters were so prostituted by any candidate, nor that the illegal payment for votes was accomplished with the knowledge or consent of any candidate. Three of these seven voters had been listed already as illegal voters of Precinct No. 6.

Paragraph six contains the claim that some 31 persons (some of whom are specifically named and some designated as “six votes in Hassie Smalling’s family”) were eligible to vote in the two precincts, but did not do so because of “ * * * failure to transfer their registration * * We may speculate that this reference is to the transfer of registration prescribed by KRS 117.645, but are left to the further speculation whether the failure of the persons to transfer registration was due to their own inattention or by reason of an annexation or change of precinct boundaries. The complaint asserts that all the people “ * * * did not vote for this plaintiff but would have done so if their votes had been cast * * It is not claimed that they sought to vote for anybody.

The seventh paragraph merely reiterates the charge that all of the persons referred to in earlier paragraphs were illegal voters, and consequently the nomination of Frost should be set aside and appellant declared to be the winner.

The last paragraph is a plea in alternative, seeking to have the entire primary vitiated in this race, on the claim that “ * * * if the Court should find that the election * * * was fraught with fraud, intimidation, bribery or violence * * * ” the election in the constable race should be declared void. Significantly there is no affirmative claim that the election was indeed so tainted.

On June 26, 1965 (not within the fifteen days specified in KRS 122.020), appellant filed an amended complaint asking that the names of sixteen persons alleged to have voted illegally be stricken from the original complaint. By the same amendment appellant recited the names of eight additional persons whose votes were said to have been illegal because of residential disqualifications of the voters.

Even later appellant filed a second amendment striking from the original complaint the names of seven persons whose votes had at first been assailed by appellant. In this amendment appellant set forth the names of eight persons whose votes are said to be illegal for lack of residential qualifications. In the same amendment it is said that one legal voter sought to vote and was denied the right (no averment is made as to the candidate for whom he would have voted). Repetition is made as to two of the same persons charged as illegal voters in the original complaint.

It is plain, we think, that the trial court correctly ruled that the pleadings we have abstracted did not state facts upon which any relief could be granted.

The amended complaints had the effect of deducting 23 of 70 voters named in the original complaint. This left 47 — less than 20% of the 349 votes cast. Even had there been sufficient alleged illegal voters to constitute 20% of the entire vote, no cause of action was stated absent an allegation that proof was unavailable as to how they voted. Napier v. Noplis, Ky., 318 S.W.2d 875.

Appellant was not entitled to add names of claimed illegal voters by amendments filed after the time for filing the original contest. Durr v. Washington County, Ky., 339 S.W.2d 444. Therefore, the names set out in the amended complaints may not be used in testing whether 20% of the total vote is challenged.

The efforts to “throw out” the election on the ground of violation of the “Corrupt Practices Act,” KRS, Ch. 123, are of no avail. Appellant did not claim that ap-pellee Frost committed any violation of that Act, nor that any violation was committed in his behalf by others with his knowledge. Scalf v. Pursifull, 250 Ky. 447, 63 S.W.2d 504.

Neither did appellant affirm that he himself was innocent of violation of the same Act. Humbert v. Heyburn, 240 Ky. 405, 42 S.W.2d 538. We do not premise our decision on this point, but better practice requires the disavowal of the pleader’s own guilt in such cases.

The judgment is affirmed.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    Rosie BURCHETT et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee. Maggie BINGHAM et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.
    Clifford B. Latta, Prestonsburg, for appellants.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Dept, of Highways, Frankfort, Edmond H. Tackett,' Dept, of Highways, Pikeville, for appellee.
   MONTGOMERY, Judge.

The Commonwealth of Kentucky, Department of Highways, filed condemnation actions against Rosie Burchett et al. and Maggie Bingham et al., respectively. The actions have been considered together. In the county and circuit courts appellants were successful in contesting appellee’s right to condemn. In Commonwealth Dept. of Highways v. Burchett, Ky., 367 S.W.2d 262, the Department’s right to condemn was sustained. Upon issuance of the mandate similar orders on the same day were entered which adjudged the right to condemn, and concluded with the following:

“In accordance with KRS 177.087(2) all parties hereto are given 30 days from the entry of this Order to file exceptions to the Commissioners’ award.”

Thirty-five days later appellants filed exceptions in which it was alleged that the damages awarded by the county court commissioners were inadequate. From the order dismissing these exceptions for late filing the landowners have appealed.

No justification for the late filing is offered. Appellants seek to save themselves by showing that they each filed in the county court an answer and exceptions by which they alleged an inadequate award of damages and questioned the right to condemn. Appellants did not appeal from the county court orders in their favor, but their pleadings as a part of the record were physically transmitted to the circuit court when the appellee appealed thereto from the adverse judgment in the county court on the right to condemn.

Appellants claim that under Commonwealth ex rel. Curlin v. Moyers, Ky., 280 S.W.2d 513, it was unnecessary for them to file exceptions to the award in circuit court. The trouble with this position is that KRS 177.087(2) governs the procedure in a case such as this in the following specific terms, to-wit:

“If the Judge of the Circuit Court finds that the petitioner has the right to condemn said property, the case shall not be remanded but the Judge or Court shall enter an order setting forth his findings and authorizing the petitioner to take possession of the lands and materials for the purposes and under the conditions and limitations set forth in the petition upon the payment to the owner, or to the Clerk of the Circuit Court, the amount of compensation awarded by the Commissioners in their report to the County Court. Within 30 days- from the date of the order of the Circuit Court authorizing the petitioner to take such possession, either party may file exceptions to the award of the Commissioners. If no exceptions to the award are filed, the Court, on motion of the condemnor, shall enter a final judgment in the case.”

The orders quoted above were drawn in conformity with the statute. Counsel for both parties signed the orders as “Have Seen.”

In addition, in Commonwealth Dept. of Highways v. Prather, Ky., 369 S.W.2d 118, wherein KRS 177.087 was construed, it was held:

“The filing of exceptions to the report of the commissioners in the county court on the ground of inadequacy of compensation, as above indicated, is not authorized; and we cannot hold that where such has been filed, even though the document is transmitted as part of the record, those exceptions should be given the same effect as if filed de novo in the circuit court.”

In effect, Prather overruled Moyers. In view of the statute and the Prather decision the trial court was correct in holding that appellants’ exceptions were filed too late.

The stipulations concerning a trial on the issue of damages do not save appellants since they provided that the question of damages should be determined “in accordance with the applicable statutes” which included KRS 177.087(2), governing the filing of exceptions in circuit court.

Judgment affirmed.

HILL, J., not sitting.


author: MOREMEN, Chief Justice.

text:
    Dorothy West HUNT, Appellant, v. Tom (Thomas) HUNT, Appellee.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.
    V. R. Bentley, Pikeville, for appellant.
    Thurman Hibbitts, Pikeville, for appel-lee.
   MOREMEN, Chief Justice.

Appellee, Thomas Hunt, was granted an absolute divorce in the Pike Circuit Court from Dorothy Hunt ending a marriage of over ten years. The appellant was awarded alimony in the sum of $1,000 and an attorney’s fee in the amount of $150. We are presented with the question of whether these amounts are adequate in the light of the particular facts of this case.

When the divorce was granted appellant was thirty-one years of age and appellee was eighty-one. The appellant had defective eyesight amounting to industrial blindness, and appellee was totally unable to work. Appellant had virtually no independent estate or • income while appellee had an estate of approximately $10,000, and received a social security check each month in the sum of $40.00.

There is no reason at this time to relate the numerous accusations of cruelty cast by both sides in this case except to note that the trial court found the appellant “substantially at fault” and granted the appellee a divorce. The court also found that the appellee’s conduct was “not the most praiseworthy” although apparently not as bad as the appellant’s. The issue here is not the legality of the divorce, it concerns the sufficiency of the alimony.

Alimony is based upon the legal duty of a husband to support his wife. In fixing the amount the wife should receive, the problem is to determine an allowance which is a fair substitute for marital support and maintenance. See Alexander v. Alexander, Ky., 317 S.W.2d 494, 496. “Fault,” except in flagrant instances, is not a primary consideration. Heustis v. Heustis, Ky., 346 S.W.2d 778.

Although there is no rigid formula that can be applied to all cases, certain factors which should be given heavy weight are: (1) the amount of the husband’s estate and his ability to pay, and (2) the financial condition of the wife and her ability to maintain herself independently.

In many cases over the years this Court has recognized something of a rule of thumb that the wife should be allowed alimony equal to one-third of her husband’s estate, the fraction apparently being based upon dower. Hicks v. Hicks, Ky., 290 S.W.2d 483; Alexander v. Alexander, Ky., 317 S.W.2d 494. It is not a hard and fast rule and it is not followed when its application is not required to do justice to all the parties concerned. See Boggs v. Boggs, Ky., 330 S.W.2d 118.

In the present case we find that the trial court did not give adequate consideration to the financial condition of the appellant and her ability to maintain herself independently. The appellant had a negligible estate at the time of the judgment and as she was partially blind there was no basis for assuming that she could find gainful employment to support herself. The $1,000 allowed her by the trial eourt was totally inadequate.

Therefore, on remand of the case the trial court will ascertain the fair value of appellee’s total net estate as of the time the action commenced and fix the amount of alimony at not less than one-third. A suitable attorney’s fee should also be awarded.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.


text:
    KENTUCKIANA SALES, INC., Appellant, v. SECURITY INSURANCE COMPANY OF NEW HAVEN, Appellee.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.

      Wm. A. Miller, Joseph R. Rubin, Louisville, for appellant.
    Raymond O. Harmon, Boehl, Stopher, Graves & Deindoerfer, Louisville, for ap-pellee.
   DAVIS, Commissioner.

Kentuckiana Sales, Inc., (hereinafter Kentuckiana, appellant) sought recovery of the appellee insurance company on a blanket position bond insuring Kentuckiana against the dishonest acts of its employees. At the conclusion of all the evidence the trial court directed a verdict denying recovery; from the judgment on the directed verdict Kentuckiana appeals.

The basic question for decision is the proper interpretation of Exclusion, § 2 of the policy of indemnity, which is thus worded:

“Exclusion, Section 2. This bond does not apply to loss, or to that part of any loss, as the case may be, the proof of which, either as to its factual existence or as to its amount, is dependent upon an inventory computation or a profit and loss computation; provided, however, that this paragraph shall not apply to loss of money or other property which the insured can prove, through evidence wholly apart from such computations, is sustained by the insured through any fraudulent or dishonest act or acts committed by any one or more of the Employees.”

Kentuckiana contends that during the period of July 30, 1961 to September 9, 1961, while the policy was in force, it suffered loss of merchandise valued at $9,896.27 and loss of trading stamp books valued at $2,493.00, due to the thefts of Robert J. Jones, an employee of Kentucki-ana.

The trial court was of the view that the Exclusion, § 2, just quoted, foreclosed the right of recovery by Kentuckiana in light of the nature of the evidence. Review of that decision requires statement of the facts as developed in the trial.

Kentuckiana operates a redemption center for trading stamp books. The stamps were sold by Kentuckiana to retail merchants who gave them to patrons with purchases of merchandise. Kentuckiana maintained the redemption center at which various articles of merchandise were exchanged to persons presenting books of stamps.

In the routine method of operation of the redemption center the clerks would record daily the items of merchandise delivered to patrons presenting the stamps, along with the number of books of stamps received in exchange for merchandise. At the close of each day’s business the manager made a physical count of the stamp books in order to reconcile the actual books with the number shown to have been received that day. The books then were processed through a canceling machine wherein holes were punched through each stamp, thus effectively destroying any further usage of them. The canceled books were packed in boxes and taken to be burned in an incinerator about once each week.

It was the usual practice for the merchandise to be delivered to patrons directly from the stock room at the redemption center. The supply of merchandise in this stock room was replenished as needed, by requisition of merchandise from a warehouse. Jones, the allegedly dishonest employee, was a helper in the stock room at the redemption center. His duties included the carrying of merchandise from the stock room to the patrons, receiving additional merchandise into the stock room, and canceling the stamp books redeemed during each day.

In late August, 1961, Kentuckiana’s manager was alerted to the possibility that trading stamp books were being stolen from the redemption center. The manager reported this information to an agent of the appellee insurance company; the latter suggested that a check be made in an effort to learn what was happening. The manager counted the canceled books on hand awaiting burning, and compared them with the number of books recorded as redeemed, and for the period beginning August 21, 1961, through September 8, 1961, learned that 1,607 fewer books than had been redeemed were canceled. However, 201 of these books were recovered from the boiler in the building on September 8, 1961, and 21 books were recovered when a person presenting them fled the scene upon being questioned about them. Hence, the claim made by Kentuckiana with respect to the books is for 1,385 books. It was shown that these books have an average cost value to Kentuckiana of $1.80 each, thus, the claim of $2,493.00 on this account.

In addition to the daily counting of the redeemed books and the physical comparison of those tallies with the number of books being canceled, the manager employed the technique of placing secret markings on the redeemed books in order to determine whether these very books were, in fact, being redeemed a second time. By this process it was definitely learned that some books which had been redeemed and placed in line for cancelation were not being canceled, but were being presented anew.

On September 8, 1961, the manager had arranged that Jones should be the only stock clerk in the store during the entire day; when Jones left for the day the manager observed that it was physically impossible for Jones to have concealed about his person any merchandise or substantial number of stamp books. Thereupon the manager, with the president and sole owner of Kentuckiana, conducted a search of the store premises which led to their discovery of 201 uncanceled stamp books in an unused boiler. These 201 books bore an identifying mark showing they had been redeemed. Also in the old boiler were a blanket and coffee maker from the stock of merchandise.

Jones was arrested on the next morning when he reported for work. Criminal prosecution was had in the Jefferson Circuit Court in which Jones was charged with conversion of a coffee maker and trading stamps from Kentuckiana. Jones entered a plea of guilty to the charge and was sentenced to imprisonment for one year. Kentuckiana filed a civil action against Jones in the Jefferson Circuit Court in which it alleged that Jones had misappropriated trading stamps valued at $2,493.00 and merchandise valued at $9,896.27, property of Kentuckiana, and sought judgment against Jones in the sums stated. Jones made no defense to the civil action, and default judgment was taken against him. Jones signed a statement, at the request of Kentuckiana’s attorney, in which Jones substantially confessed to his guilt of misappropriation of the stamp books and the merchandise. At the trial of this action, however, Jones repudiated the statement.

Kentuckiana sought to introduce in evidence the proceedings in the civil action, but the trial court refused to receive this evidence. Likewise, the trial court rejected evidence obtained by way of Requests for Admission reflecting Jones’s plea of guilty in the criminal action.

It should be noted that Kentuckiana’s offer of proof as to the value of merchandise lost was rejected by the trial court as incompetent. Kentuckiana sought to prove the monetary value of allegedly stolen merchandise by showing the amount of an inventory made June 30, 1961, plus the value of merchandise brought in by Kentuckiana between June 30 and September 9, 1961, less the value of stamp books redeemed in that same period, less the physical inventory on hand September 30, 1961. Under this computation, the value of lost merchandise is reflected as $9,896.27. There was no showing of loss as to any particular commodity, but there was an imbalance between the opening and closing inventories, taking into account the merchandise acquired and disposed of during the inventory period.

The trial court reasoned that Exclusion, § 2, served to make incompetent the evidence in the civil proceedings and the inventory computations and statements. Appellant vigorously contends that the trial court committed reversible error in so ruling.

Appellant first asserts that the exclusion does not purport to be a rule of evidence at all, so that the tendered testimony should have been received, subject to whether it sufficiently proved the loss under the policy. We do not deem it necessary to resolve this point, in view of our conclusions hereinafter expressed.

Next, says appellant, the first portion of the exclusion (the first portion is that part of the exclusion from its beginning to the semi-colon after the word “computation”) causes the exclusion to be operative only if the proof of loss is “dependent” upon inventory or profit and loss computation, in whole or part. Appellant reasons that the word “dependent” means “without other evidence,” and is meant merely to preclude recovery on such proof as was condemned in Home Owned Stores, Inc. v. Standard Accident Insurance Co., 256 Ky. 482, 76 S.W.2d 273. In the cited case this court held that plaintiff had failed to prove a claim against the insurance company on a fidelity bond because plaintiff merely showed a “shortage” — and completely failed to show any act of the bonded employee amounting to fraud or dishonesty. To focus upon appellant’s argument on this score, we quote from his brief:

“It certainly does not prohibit the insured from supplementing the proof and corroborating it by the use of such inventory computations or profit and loss computations. On the other hand, if such computations are the only proof and without such proof there is no evidence of either the existence of a loss or its amount, then the clause is effective.”

We agree with appellant as to the quoted statement. The difficulty here is whether there is any proof other than the inventory or profit and loss computations.

The third point advanced by appellant as to the Exclusion, § 2, is that the first clause of it (language before the semicolon) deals with the factual existence and the amount of loss, whereas the latter portion of the same exclusion requires only proof of the “factual existence” of loss by other proof that inventory or profit and loss computations. This view is followed in Tri-Motors Sales, Inc. v. Travelers Indemnity Co., 19 Wis.2d 99, 119 N.W.2d 327. To the contrary is Mid-Continent Stores, Inc. v. Central Surety and Insurance Corp., Mo.App., 377 S.W.2d 567.

We turn to a consideration of the evidence adduced by Kentuckiana, first, as to the merchandise claim of $9,896.27, then as to the claim of $2,493.00 for the stamp books.

It is our view that there was not sufficient evidence to support a verdict for Kentuckiana as to the merchandise claim, in face of the quoted exclusion. The only showing as to the amount of any “loss” of merchandise is predicated upon the inventory shortage. Jones specifically refuted his previously given statement, and positively testified that such merchandise as he had stolen from Kentuckiana had been recovered by the police. Neither do we consider that Jones’s conviction, upon his guilty plea, of conversion of the coffee maker and blanket, amounts to “other evidence.” In the first place, these articles were not “lost,” because they were recovered by Kentucki-ana. Secondly, we adhere to the view that the guilty plea of Jones in the criminal prosecution may not be received as substantive evidence against the appellee company, since the latter was not a party to that litigation. Jones was a “turncoat” witness. This court has consistently held that out-of-court prior statements of a witness may not be used as substantive evidence, no matter whether such statements confirm or refute the in-court testimony of the witness. Under some circumstances the prior statements may be used to impeach a witness, but not as substantive evidence. See Webb v. Commonwealth, Ky., 314 S.W.2d 543, and cases therein cited; 20 Am.Jur., Evidence, § 458. It is plain, therefore, that the prior written statement of Jones, as well as his guilty plea, amounted to mere hearsay so far as appellee is concerned. Neither was substantive evidence against appellee, as to the factual existence of a loss or the amount of it.

Appellant contends, however, that in any event the proceedings in the civil action amount to substantive evidence — or at least prima facie evidence of substance. Reliance is had upon Commonwealth v. Bracken, 17 Ky.Law Rep. 785, 32 S.W. 609, and numerous decisions from other jurisdictions which support the view that a judgment against the principal in a bond is admissible in an action against the surety, even though the surety was not a party to the first action. See 50 Am.Jur., Sure-tyship, § 200, p. 1036. It suffices to say that in none of the authorities relied on was there present a clause of exclusion similar to the one before us now. It is also significant to- observe that Restatement of Law, Security, § 139(3), in recognizing the general rule of prima facie admissibility, points out that in case of default judgment against the principal there is not even a prima facie case made against the surety. For these reasons, we agree that the trial court properly excluded the evidence as to the criminal conviction, the civil proceedings, and the prior out-of-court statement. It follows that the directed verdict was correct as it related to the claim for loss of merchandise.

But we think there was sufficient evidence, without reference to the matters of evidence excluded, to warrant submission of the case to the jury as to the loss of the stamp books. It appears that the trial court was of that view, but declined to submit the issue as to the stamp books on" the theory that there was no showing of “loss” as to these books, absent a showing that the books had been presented for redemption a second time. In our judgment there was competent evidence tending to show that the 1,385 books were misappropriated by Jones; this evidence was unrelated to inventory computation or profit and loss computation. Moreover, we consider that the loss of these books was a real loss to Kentuckiana — not damnum absque injuria. We accept as sound the proposition that these books have a definite negotiable characteristic which makes them tantamount to “bearer” paper. Kentucki-ana must redeem books presented, unless it is in position to demonstrate that the holder has no title. As a practical matter, we think it would be unduly harsh and unrealistic to require Kentuckiana to show affirmatively each twice-redeemed book; the proof of their loss is sufficient.

The judgment is affirmed insofar as it relates to the claim of appellant of $9,896.27 for merchandise, and the judgment is reversed with respect to appellant’s claim of $2,493.00 for stamp books, with directions to grant a new trial as to the latter claim.


text:
    Donnis V. HARDEN, Petitioner, v. Honorable Ervine TURNER, Judge, Breathitt Circuit Court, Jackson, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.
    Donnis V. Harden, pro se.
   DAVIS, Commissioner.

Petitioner has filed an original action in this court seeking an order of mandamus to require respondent to enter the necessary orders enabling petitioner to have the indictment, transcript, and instructions in the record of the trial at which petitioner was convicted and sentenced to the reformatory at LaGrange. We are not told for what offense he was convicted, but are told that petitioner is preparing and plans to file a motion to vacate the judgment pursuant to RCr 11.42. No such motion had been filed at the time of the filing of this proceeding.

Under such circumstances the relief sought is denied. Jones v. Breslin, Ky., 385 S.W.2d 71; Bauer v. Pound, Ky., 385 S.W.2d 167.

Mandamus is denied.


author: CLAY, Commissioner.

text:
    Fannie T. HANNIN, Appellant, v. P. F. DRIVER and Mrs. P. F. Driver, d/b/a Drivers Department Store, Appellees.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.
    Robert B. Reed, Paducah, for appellant.
    James L. Hardy, Terrell, Schultzman & Hardy, Paducah, for appellees.
   CLAY, Commissioner.

This is an appeal from a judgment for defendants entered upon a directed verdict.

Plaintiff, while a customer in defendants’ department store, sprained her ankle walking down a flight of stairs. Her theory of the case is that one of the rubber stair treads was worn and raised, and as she descended the heel pulled loose from her shoe. The plaintiff admitted the stairway was well lighted and that no hidden condition existed.

There was no evidence of substance offered by plaintiff to prove a defective condition of the stair tread at the time of her fall. She did testify that “it had little nicks out of it on the back”, but assuming this constituted such a defect as would show negligence on the part of defendants, which is extremely doubtful, this statement was based on her examination of the step several weeks after the accident. One of her witnesses testified that there was a raised or wrinkled condition of the tread, but this observation was based upon a photograph taken seven weeks after the accident, which the trial court excluded. This was properly done because there was no satisfactory proof the conditions the day the photograph was taken were the same as at the time of the accident. See Minogue, Adm’x v. Thomas, Ky., 271 S.W.2d 896.

Plaintiff practically admits the lack of positive evidence of a defect when she argues in her brief that the very nature of the accident was such that the res ipsa loquitur rule should apply. Obviously this contention cannot be sustained.

The defendant storeowners must be found negligent in order to be liable for the plaintiff’s injury. They are not insurers of the safety of their customers, although they do have a duty to keep their premises reasonably safe and to warn of any artificial, or natural condition not reasonably safe and not known to their customers. Young’s Adm’r v. Farmers & Depositors Bank, 267 Ky. 845, 103 S.W. 2d 667. When the evidence is insufficient to establish the fact essential to negligence, it becomes the duty of the court to remove the issue from the jury and direct a verdict for the defendant. Dalton v. Steiden Stores, 277 Ky. 179, 126 S.W.2d 155. Here the plaintiff did not produce any substantive evidence which would' enable the jury to find that the stairway tread was in unsafe or faulty condition at the time of the accident.

Therefore the directed verdict for the defendants was proper.

It is unnecessary to consider the question of plaintiff’s contributory negligence.

The judgment is affirmed.


text:
    Edwin Darrell ROWE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.

      F. Byrd Hogg, Whitesburg, for appellant.
    Robert Matthews, Atty. Gen., David A. Schneider, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Edwin Darrell Rowe was convicted of voluntary manslaughter and sentenced to fifteen years’ imprisonment. He appeals and urges that: (1) He was erroneously refused a jury challenge; (2) the jury was improperly selected; (3) a statement made by him was erroneously admitted in evidence; and (4) certain evidence was erroneously rejected.

Rowe shot and killed Sam Bates on July 30, 1963. The scene of the shooting was Rowe’s fishing camp and restaurant near Blair Lake on Cumberland River. Rowe admitted that he was engaged in “bootlegging” there at the suggestion of Bates, who was to receive $100 per week for protecting Rowe from the law enforcement officers. The shooting resulted from an argument ensuing after Rowe had been arrested twice for violation of the liquor laws and because of Bates’ apparent failure to provide protection. Bates sought to collect his protection money and Rowe refused to pay. Rowe claimed that he shot Bates in self-defense after Bates had struck him. The sufficiency of the evidence to support the verdict is not in question.

Appellant claims that he should have been permitted to challenge Lake Mann, a juror, under RCr 9.36(3). On May 18, 1964, the impaneling of the jury was begun and several jurors were accepted both by the Commonwealth and the appellant. The next day the appellant moved the court for permission to challenge either for cause or peremptorily Lake Mann, a juror, who had previously been accepted.

The ground of the motion was that appellant had received reliable information that one Robert Collins, Bates’ nephew, had materially assisted Mann in obtaining a Job with the Department of Highways. Collins was taking a part in the prosecution of the case. The only connection established between the juror and the nephew was that the latter,, several years previously, had recommended Mann for such employment. The employment lasted about six months, and Mann was not so engaged at the time of the trial.

RCr 9.36(3) permits a challenge when a juror has been accepted but before the jury is sworn, but only when there is “good cause.” The phrase “may permit such challenge” clearly indicates that the granting of such challenge is permissive. What constitutes “good cause” and whether the court will permit such challenge are matters within the discretion of the trial court. Waggoner v. Commonwealth, 255 Ky. 1, 72 S.W.2d 723.

The court found that the juror had been “meticulously” examined by both sides and that he had stated under oath that he had no feeling in the case either way and knew of nothing to prevent him from giving both parties a fair and impartial trial. Under the circumstances it cannot be said that-there was an abuse of discretion.

The regular jury panel was exhausted without a jury being obtained. Eighty additional names were drawn from the jury wheel and the trial was recessed until later that day so that the prospective jurors could be summoned. After ten or fifteen of the prospects had appeared and before all of those summoned had appeared, the names of those present were put into the jury box. The trial court then directed that the jury examination continue.

Appellant objected to the proceeding on the ground that unless all of the eighty names were placed in the box at the same time the jury would not represent a cross-section of the county. No authority is submitted guaranteeing an accused a right to such cross-section representation on the jury. RCr 9.30(1) (c) provides that additional jurors may be obtained by drawing their names from the jury wheel or drum. In Robertson v. Commonwealth, 269 Ky. 317, 107 S.W.2d 292, approved in Tarrence v. Commonwealth, Ky., 265 S.W.2d 40, this procedure was approved with this reasoning:

“In many cases a large number of names are drawn from the wheel, and, if the court should be required to wait until all had been summoned and had appeared before proceeding with the trial, unnecessary delay would result.”

The action of the trial court was correct.

A written statement made by appellant to Virginia Craft, the coroner, on the day of the shooting was introduced in evidence over objection. Appellant claims that this was error in the light of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. The statement was to the effect that appellant had acted in self-defense. Appellant had previously admitted to a state trooper to whom he had surrendered that he had done the killing. On the trial appellant testified fully concerning the matters contained in the statement.

The statement was in question and answer form. It was taken in the jail dining room while appellant was in custody. The appellant admits that the coroner told him that he did not have to make a statement. He said he was not advised that he had a right to have counsel or that the statement might be used in court.

There is no claim of persuasion, coercion, or duress. The record is silent as to any request by appellant for counsel or any denial of counsel. The factual situation is distinguishable from that in Escobedo. Under the principles in Carson v. Commonwealth, Ky., 382 S.W.2d 85, the statement was admissible.

Appellant contends that the trial court erred in refusing to permit appellant to impeach his own witness. Ralph Bates was called as a witness by appellant to testify concerning the reputation of Sam Bates for “peace and quietude.” After he had replied twice in the negative as to whether he was acquainted with such reputation, appellant sought to impeach him by introducing an affidavit signed by the witness in a civil action in which he had stated that the deceased was a dangerous and violent man. Under the principles set forth in Maddox v. Commonwealth, 311 Ky. 685, 225 S.W.2d 107, and Webb v. Commonwealth, Ky., 314 S.W.2d 543, the trial court was correct in holding that appellant could not impeach his own witness. Inasmuch as four other witnesses had previously testified that the deceased’s reputation was bad, any further testimony would have been cumulative. Its rejection was not prejudicial error. Griffin v. Commonwealth, 204 Ky. 783, 265 S.W. 327; Elliott v. Commonwealth, 290 Ky. 502, 161 S.W.2d 633.

Judgment affirmed.


author: PALMORE, Judge.

text:
    Juanita ROADEN, Appellant, v. Herman ROADEN, Appellee.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.
    J. B. Johnson, Jr., Williamsburg, for appellant.
    William S. Tribell, Middlesboro, for ap-pellee.
   PALMORE, Judge.

The parties to this divorce proceeding married in 1949 and separated in 1963, following which the husband was awarded a divorce and custody of their two daughters, 14 and 10 years of age. The appeal is confined to the custody question.

Without considering the testimony given by the husband himself, whieh was so warped by leading questions and filled with rank hearsay that much of it is of dubious value to a court of law, the evidence provided by other witnesses amply supports the chancellor’s finding that the wife is not the fit and proper person to have custody of the children at this time. For 18 months or so prior to the separation the husband’s work as a railroad brakeman kept him out of town several nights every'week, and the gist of the evidence is that the wife was habitually running around with several other men while he was away. Even the little girls say so. That is enough, in our opinion, to support the chancellor’s judgment with respect to the wife’s fitness. It is not necessary that sexual incontinence be proved. Cf. Donoho v. Donoho, Ky., 357 S.W.2d 665 (1962).

• The familiar maxims that add up to the general proposition that young children, especially girls, ordinarily are better left with the mother, and better left with a natural parent than with grandparents, are of course all subject to the overriding principle that the welfare of the children is the paramount consideration. Cf. Nichol v. Conlan, Ky., 385 S.W.2d 779 (1965).

During the course of the litigation a new circuit judge was elected and took office, and he disqualified .«himself because he had represented one of the parties. Meanwhile the wife had been given temporary custody of the children. Final judgment transferring custody was rendered by a special judge. Appellant argues that less latitude should be accorded the special judge’s discretion because he was not personally familiar with the parties and their background.

It is true that in sustaining trial findings this court frequently has cited the local judge’s knowledge of the parties, the witnesses, and the circumstances. Cf. Youngblood v. Youngblood, Ky., 252 S.W.2d 21 (1952). However, it is equally true that a judge who is free of any such familiarity may be in a better position to render an impartial judgment. We cannot have one criterion for the local judge and another for special judges.

Appellant contends also that the chancellor failed to give consideration to the exemplary manner in which she conducted herself during the time this case was in litigation pending final judgment, a period of almost two years. Our reaction to this point is that the best indication of whether her rededication to the good life is sincere and lasting will be found in her continued good conduct after the case is over. Her good record during the pendency of the litigation may be considered incident to a subsequent motion based on changed circumstances. So may the preferences indicated by the children themselves.

The judgment is affirmed.

      . Counsel on this appeal did not conduct the examination in chief.


text:
    LYNN MINING CO., Inc., et al., Appellants, v. Carl KELLY et al., Appellees.
    Court of Appeals of Kentucky.
    March 5, 1965.
    As Modified on Rehearing Oct. 8, 1965.

      Logan E. Patterson, Patterson & Berger, Pineville, Willis W. Reeves, Reeves, Bar-ret & Cooper, Hazard, for appellants.
    Alva A. Hollon, Hazard, for appellees.
   CLAY, Commissioner.

Several residents of Combs, Kentucky, appellees, brought this suit against defendant appellants to recover property damages allegedly caused by the negligent operation of appellants’ coal tipple. The jury awarded the aggregate sum of $13,100. On this appeal appellants contend (1) the claims were barred by the statute of limitations, and (2) there was a failure of proof on the proper measure of damages.

It is conceded appellants’ operation constituted a nuisance, resulting from the expulsion of excessive amounts of coal dust in the community. The nature of this nuisance is the controlling consideration in deciding both questions raised on this appeal.

The parties assume that the five year statute, KRS 413.120, is the governing one. It would, however, bar appellees’ claims only if the condition created by appellants constituted a permanent nuisance. Kentucky West Virginia Gas Company v. Matny, Ky., 279 S.W.2d 805. If the faets established a temporary nuisance, this was a continuing trespass for which damages could be recovered for each recurring injury (subject to the limitation that damages could not be recovered for so much of the injury as occurred more than five years before the commencement of the action). West Ky. Coal Company v. Rudd, Ky., 328 S.W.2d 156.

The briefs indicate some confusion exists with respect to the basic question involved. Appellants contend that since this was a permanent structure, the nuisance, if any, was a permanent one; whereas, ap-pellees contend that this is a temporary structure because it was negligently operated. It is not the nature of the structure which is determinative of the issue but the nature of the nuisance.

It is true a temporary structure cannot be a permanent nuisance. On the other hand, a permanent structure may create a temporary nuisance. Madisonville, H. & E. R. Co. v. Graham, 147 Ky. 604, 144 S.W. 737; Curlin v. Ashby, Ky., 264 S.W.2d 671.

A permanent structure properly constructed and properly operated may constitute a nuisance. Louisville Refining Company v. Mudd, Ky., 339 S.W.2d 181. If so, it would be a permanent nuisance, and “the action must be brought within five years -from the date such structure was completed and its operations commenced, or from the date of the first injury, or from the date it became apparent there would be injuries resulting from the structure or its operation”. Kentucky & West Virginia Power Co. v. McIntosh, 278 Ky. 797, 129 S.W.2d 522; Kentucky West Virginia Gas Company v. Matny, Ky., 279 S.W.2d 805. The quoted language is somewhat ambiguous because it suggests there are optional times when a cause of action accrues. In considering the statute of limitations, it is necessary that the time when the period begins to run be fixable with certainty. Perhaps this quotation should be modified by this preface: “Depending upon the kind and effect of the nuisance and the nature of the relief sought * * In any event, the cause of action would not accrue until the complaining party had suffered an injury (and a threat of injury may fall in this category). Norfolk and W. Ry. Co. v. Little, 274 Ky. 681, 120 S.W.2d 150; Associated Contr. Stone Co. v. Pewee Val. San. & Hosp., Ky., 376 S.W.2d 316.

A permanent structure may, however, constitute or create a temporary nuisance. We have said this occurs when the structure has been negligently constructed, or negligently operated. Madisonville, H. & E. R. Co. v. Graham, 147 Ky. 604, 144 S.W. 737; Strough v. Ideal Supplies Co., 300 Ky. 34, 187 S.W.2d 839. The injection of the concept of negligence into various aspects of the law of nuisance has caused endless and unnecessary difficulties. The time has come to remove it.

To begin with, negligence is not an essential element of the plaintiff’s cause of action. Defendant’s liability is not based on the failure to exercise due care, but arises from the unreasonableness of the use of his property in the light of the gravity of harm to the plaintiff. Louisville Refining Company v. Mudd, Ky., 339 S.W.2d 181; Associated Contr. Stone Co. v. Pewee Val. San. & Hosp., Ky., 376 S.W.2d 316.

For reasons difficult to understand, we have held it necessary to prove negligence in blasting cases where the damage was caused by concussions or vibrations as opposed to the casting of physical objects on the plaintiff’s land. See Aldridge-Poage, Inc. v. Parks, Ky., 297 S.W.2d 632; Marlowe Construction Company v. Jacobs, Ky., 302 S.W.2d 612; and cases cited therein. The soundness of this theory was questioned in both of those opinions and it was repudiated in the two cases cited in the preceding paragraph. In the latter it was recognized that an invasion of another’s right to the use and enjoyment of his property constitutes a trespass and the exercise of due care is not a defense. The present Kentucky law is that a plaintiff, claiming to have been injured by the creation or maintenance of a nuisance, may be entitled to relief without allegation or proof of negligence on the part of the defendant. The Parks and Jacobs cases, just above cited, and those of similar import, are expressly overruled to the extent they adopted a contrary rule.

The immediate problem before us may likewise best be solved without resorting to the “negligence” terminology. If a structure, even though permanent, can be changed, repaired or remedied at reasonable expense to abate the nuisance, then the condition is temporary. City of Ashland v. Kittle, Ky., 305 S.W.2d 768; Fergerson v. Utilities Elkhorn Coal Co., Ky., 313 S.W.2d 395. Whether the structure was negligently constructed is utterly irrelevant. The same may be said with respect to the method of operation of the structure. If such method can be altered at reasonable expense so as to eliminate the offending condition, it is likewise a temporary one regardless of negligence.

There is an explanation for the reference to “negligence” in our opinions on this point. It was apparently assumed that if a nuisance was traceable to negligence in construction or operation, the condition could be corrected or eliminated at minimal or no cost at all, and therefore was temporary. Without deciding if this assumption is valid, the real issue does not involve the existence or nonexistence of negligence as such. It involves simply the reasonable remediability of the condition.

To recapitulate, in determining whether a nuisance is permanent or temporary, the question is not whether the defendant failed to exercise due care in the construction, maintenance or operation of a structure. It is whether the cause of the nuisance results from some improper installation or method of operation which can be remedied at reasonable expense. If so, the nuisance is a temporary one and a plaintiff’s claim is not barred by the statute of limitations.

Appellants’ coal tipple was erected in 1951. In 1952 certain dust suppression equipment (costing $10,000 to $15,000) was installed. The plant was a permanent structure. If the nuisance created by it was a permanent one (dating from 1952), appel-lees’ claims were barred. If it was a temporary one which caused recurring injuries, appellees could file suit at any time (with their recovery being limited to damages caused within five years preceding the date of suit). Fergerson v. Utilities Elkhorn Coal Co., Ky., 313 S.W.2d 395.

There was evidence that an excessive amount of coal dust was cast into the atmosphere from appellants’ plant. There was testimony of appellants’ own witness tending to prove the dust suppression equipment was not adequate to handle appellants’ coal loading operations. There was evidence that an improper method of operation impaired the efficiency of the dust collector. The proof was of sufficient substance to support a finding that appellants installed inadequate equipment and/or its agents improperly operated it. There was no evidence that this condition could not be remedied by reasonable measures at reasonable expense. The jury finding that appellants were negligent in the operation of their plant effectively determined that this could be done, and consequently the nuisance was a temporary one.

In view of the nature of the jury’s finding, we believe it will be clarifying to comment on the method by which this lawsuit was practiced. The plaintiffs’ complaint alleged negligence. The parties tried the case as if that was a real issue on the question of liability. The instructions likewise submitted the case on this theory.

As we have heretofore pointed out, the question of negligence was not a proper issue in the case for any purpose. The real issues (other than the amount of damages) were (1) whether appellants so maintained or operated their coal tipple that plaintiffs’ properties were unreasonably subjected to substantial damage, and (2) if so, whether the nuisance so created was a temporary or a permanent one. The last question became an issue in the case (although it had a bearing on the measure of damages) only because appellants pleaded the statute of limitations. This was an affirmative defense and the burden was on them to prove that the nuisance, if any, was permanent and plaintiffs’ claims were therefore barred. CR 8.03. City of Covington v. McKinney, 263 Ky. 131, 92 S.W.2d 1.

Where the pertinent facts are not in dispute, the validity of the defense of the statute of limitations can and should be determined by the court as a matter of law. Carr v. Texas Eastern Transmission Corporation, Ky., 344 S.W.2d 619. Where, however, there is a factual issue upon which the application of the statute depends, it is proper to submit the question to the jury. 34 Am.Jur., Limitations of Actions, section 455 (page 357). It could best be done by having the jury render a special verdict under CR 49.01. The issue would be whether the condition causing the injury could be remedied at reasonable expense. City of Covington v. McKinney, 263 Ky. 131, 92 S.W.2d 1. Though the question was not so submitted in this case, appellants do not question the instructions on this point and the principal instruction was more favorable to them than necessary. Actually there was no evidence of substance that the nuisance established by the evidence was a permanent one and, consequently, the trial court could have found as a matter of law that plaintiffs’ claims were not barred by the statute of limitations.

Appellants’ final contention is that there was a failure of proof of damages properly allowable on claims of this sort. Appellees’ evidence was directed to the difference in the market value of their respective properties before and after the injuries complained of.

Here again we find a failure to observe the distinction between a temporary and a permanent nuisance. As our cases consistently point out, the measure of damages is different. City of Hazard v. Eversole, 280 Ky. 621, 133 S.W.2d 906; Brumley v. Mary Gail Coal Co., Ky., 246 S.W.2d 148. When we have a temporary nuisance, as here, the measure is not the difference in market value but the diminution in the value of the use of the property during the continuation of the nuisance. This is carefully explained in Adams Construction Company v. Bentley, Ky., 335 S.W.2d 912.

In order to avoid the statute of limitations it was necessary for appellees to establish a temporary nuisance, as opposed to a permanent one, and this we have held they did. Their proof on damages should therefore have been directed to the proper measure in such cases. Their evidence on this issue, however, related to the difference in market values of the properties involved before and after they were injured or damaged. This was not the proper measure and appellants consistently questioned it on their motions for a directed verdict and objections to the instructions.

We are forced to the conclusion that because appellees failed to prove damages recoverable by reason of the existence of a temporary nuisance, the trial court should have directed a verdict for appellants, and not having done so, their motion for judgment notwithstanding the verdict should have been sustained.

The judgment is reversed with directions to enter judgment for appellants.

      . We must frankly admit that language used in some of our opinions has contributed to the confusion.


author: STEWART, Judge.

text:
    LOUISVILLE CREDIT MEN’S ASSOCIATION et al., Appellants, v. MOTORS INVESTMENT COMPANY, Inc. et al., Appellees.
    Court of Appeals of Kentucky.
    July 2, 1965.
    As Modified on Rehearing Oct. 8, 1965.

      Carl K. Helman, William B. Cohen, Herman E. Frick, Louisville, for appellants.
    Joseph E. Stopher, A. J. Deindoerfer, Charles I. Dawson, Louisville, for Motors Investment Co., Inc.
    Rucker Todd, Louisville, for Louisville Trust Co., Executor of Estate of Charles Patrick, deceased.
    O. Grant Bruton, Louisville, for First Nat. Lincoln Bank of Louisville.
   STEWART, Judge.

The essential question presented for determination in this appeal is whether under the evidence introduced appellee, Motors Investment Company, was a holder in due course of two checks.

Between 1948 and 1957 Charles Patrick was the president and manager of appellee, Motors Investment Company, and the manager of Charles Patrick Insurance Service, two corporations controlled by V. V. Cooke of Louisville. In March, 1958, Patrick resigned as President of Motors Investment Company and also as manager of Charles Patrick Insurance Service. Later Patrick became the president of Charles Patrick, Inc. and of City Investment Company, Inc. Soon after Patrick’s resignation from Motors Investment Company and Patrick Insurance Service, it was discovered he had embezzled the sum of $91,294 from these companies. To repay this indebtedness he delivered six checks either payable to or endorsed over to Motors Investment Company. These checks were deposited and credited to the account of Motors Investment Company at the Lincoln Bank and Trust Company (now First National Lincoln Bank and \Trust Company) and were subsequently paid.

Louisville Credit Men’s Association, under an assignment for the benefit of creditors of City Investment Company and Charles Patrick, Inc., brought this action against Motors Investment Company, The Louisville Trust Company, Executor of the Estate of Charles Patrick, deceased, and First National Lincoln Bank of Louisville to recover the amounts of two of these checks which were paid to Motors Investment Company in part satisfaction of Patrick’s debt.

One check in controversy was a treasurer’s check for $40,000 issued by The Louisville Trust Company on January 8, 1959, payable to the order of R. W. Simpson. It is assumed by the parties hereto this check was made payable to a nonexistent person. The treasurer’s check was purchased with a check drawn by Patrick against the account of Charles Patrick, Inc. in The Louisville Trust Company. It is undisputed that R. E. Cammack, a vice-president of The Louisville Trust Company who actually wrote out this check, did not know when he drew it that R. W. Simpson was a fictitious payee.

KRS 356.009 provides:

“The instrument is payable to bearer:
i( % Hfi *
“(3) When it is payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable.”

The controversy concerning this statutory provision centers around the language of the subsection which requires, when a fictitious payee is involved, that “such fact was known to the person making it so payable.” Appellants vigorously assert that this “person” is the one who actually draws the instrument rather than the nominal drawer (who may or may not have drawn the instrument), and that the requirement of this subsection has not been met, since though Cammack actually drew the instrument he did not know it was payable to a fictitious person.

This subsection was construed in Mueller & Martin v. Liberty Insurance Bank, 187 Ky. 44, 218 S.W. 465. In that case George Martin, who had authority to sign the corporation’s (Mueller & Martin’s) name to checks against its account, drew several checks on such account payable to a fictitious person. He endorsed them and cashed them at the Liberty Insurance Bank. This Court held that the phrase, “person making it so payable,” meant the person who actually drew the check, namely, George Martin in that case.

In the instant case the perfidious employee went one step further by procuring a treasurer’s check from a bank, made out by a bank officer to a fictitious payee. The question is not the one posed in the Mueller & Martin case, that is, which is the “person making it so payable” as between the employee who writes the check or the employer who is the nominal drawer. Rather, the question is which party is the “person” as between Patrick, who instructed the drawer bank how to draw the check, and the nominal drawer, the bank acting through Cam-mack. The Mueller & Martin case does not give us an answer to this question.

In Union Bank & Trust Company of Los Angeles v. Security-First National Bank, 8 Cal.2d 303, 65 P.2d 355, the Supreme Court of California was faced with a fact situation virtually similar to that disclosed in the instant case. That court was also called upon to state whether or not under a statutory provision, identical in phraseology with KRS 356.009(3), the “actual drawer” could be some one other than the nominal drawer. There the faithless employee, Williams, who had authority to draw checks, on the account of his employer, drew checks on such account and with them procured cashier’s checks drawn by the bank upon itself. Williams used the names of two actual persons, both known to him but to whom he never delivered any of the checks. Instead he forged the names of the payees as endorsers on the ehecks and appropriated the proceeds.

The California court held the checks were nevertheless made payable to fictitious persons because, even if the payees were actual persons, Williams did not intend them to acquire an interest in the checks. That court was of the view it was immaterial whose name or what name Williams directed to be inserted in the checks, as the payees in reality were named in the instruments for a fraudulent purpose.

In answer to the contention that Williams was not the actual drawer of the cashier’s checks and the ehecks should not be treated as payable to bearer, the California court ruled that Williams’ intent must govern on that point. It reasoned that the bank followed implicitly the instructions of Williams; it executed its cashier’s checks to payees designated by him, with whom it was unacquainted, of whom it had no knowledge, and concerning whom it had no intent to issue the cashier’s checks otherwise than as directed. The court concluded: “Williams, therefore, was the real drawer and ‘the person making it so payable’ as to each cashier’s check.”

For the reasons stated in the California case, we believe the intent of Patrick, not that of Cammack acting for The Louisville Trust Company, should control. The latter must be considered the nominal drawer; Patrick must be considered the real drawer of the treasurer’s check of $40,000. The Louisville Trust Company’s sole intent was to make this check payable to the party to whom Patrick intended it to be made payable. We therefore hold this treasurer’s check was made payable to bearer and in consequence was negotiable.

The second check in controversy was drawn on February 17, 1959, for $13,459 by Charles Patrick on the account of City Investment Company in The Louisville Trust Company and made payable to W. S. Heidenberg, Patrick’s attorney. When this check was delivered by Patrick to Heiden-berg the latter endorsed it over to Motors Investment Company to be applied as a payment on the embezzlements of Patrick.

Appellants insist that Patrick had no financial interest whatsoever in City Investment Company, against which this check of $13,459 was drawn, or in Charles Patrick, Inc., against which the $40,000 check was drawn. Appellants maintain these two companies were owned in their entirety by Thurston Cooke, a cousin and former employee of V. V. Cooke; that Patrick drew the two checks without any authority in order to settle an indebtedness arising from his admitted peculations; and that Motors Investment Company, at the time it accepted the two checks, knew, or by the use of reasonable diligence could have known, of the infirmity in the checks or of Patrick’s defect of title as to them.

This case was tried before the adoption of the Uniform Commercial Code. The pertinent provision of the Negotiable Instruments Law, then in effect, which was applicable to the contention raised, was KRS 356.052(4). This subsection stated as one of the requisites of being a holder of an instrument in due course:

“That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

Also, KRS 356.056 of the Negotiable Instruments Law clarified what was meant by notice of infirmity or defect of title in the following language: “To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

Since appellants do not contend that Motors Investment Company had direct information that these checks were defective, the only method by which appellants could demonstrate that Motors Investment Company was not a holder in due course was to show that it, at the time it accepted the checks knew of such facts that its “action in taking the instruments amounted to bad faith.” These facts, we believe, it failed to establish.

The knowledge which Motors Investment Company had concerning these checks, in January and February of 1959 when they were delivered, is fully set out by the trial court in its findings of fact. We quote thus from these findings:

“2. About the last of March or the first of April, 1958, both Charles Patrick and Thurston Cooke, in the office of Motors Investment Company, Inc., stated to V. V. Cooke, in the presence of others, that Thurston Cooke had no financial interest whatever in either Charles Patrick, Inc. or City Investment Company, Inc., but that same were owned entirely by Patrick; and statements to that effeet were repeated during 1958 to V. V. Cooke by both Patrick and Thurston Cooke; and prior to the receipt of the checks involved in this case, neither Patrick nor Thurston Cooke had ever informed V. V. Cooke that their prior statements were untrue and that Thurston Cooke did own the two companies.
“3. In April, 1958, Charles Patrick, while in conference with Ira Porter, Executive Vice Chairman of the Louisville Trust Company, concerning the granting of a line of credit to City Investment Company, Inc., stated that he owned all of the stock of that company and that Thurston Cooke had no financial interest therein. That statement was repeated on more than one occasion in 1958 by Patrick to Ira Porter, and on one occasion in 1958 when Patrick and Thurston Cooke were both present, Patrick made the statement to Ira Porter in the presence of Thurston Cooke that the latter had no financial interest whatever in City Investment Company, Inc., and that Thurston Cooke responded that that was true, that he would like to have an interest but that Patrick wouldn’t let him have it.
“4. The accounting firm of Jones, Rowland, Nale, Mattingly and Cox was the accounting firm of Charles Patrick, Inc. and City Investment Company, Inc. from the organization of those companies, and on more than one occasion Patrick stated to Mattingly, of that accounting firm, that he owned all of the stock of City Investment Company, Inc.
“5. At the request of Ira Porter, Mattingly requested Patrick to get a letter from Thurston Cooke in respect of what financial interest he had, if any, in City Investment Company, Inc.
“6. Mattingly transmitted that request to Patrick and the latter transmitted same to Thurston Cooke, who wrote a letter to Mattingly stating unequivocally that he had no financial interest whatever in City Investment Company, Inc.
“7. The accounting firm made an audit of City Investment Company, Inc. as of December 31, 1958, and a copy of that audit was filed with the record, and it showed that the company had outstanding $162,000 of capital stock.
“8. The accounting firm made a net worth statement of Charles Patrick, personally, as of March 31, 1959, and that statement showed as one of the assets of Charles Patrick $162,000 of the capital stock of City Investment Company, Inc., thus showing him to be the owner of all of the outstanding stock of that company.
“9. The audit of City Investment Company, Inc. and the net worth statement of Charles Patrick, personally, as of March 31, 1959, were made for the use of the Louisville Trust Company, and copies of each were delivered to that institution.
“10. When V. V. Cooke found that the peculations of Patrick were going to amount to a good deal of money, he commenced to inquire to see what his chances were of recovering the money stolen; and prior to the issuance of any of the checks involved in this case, he talked with Ira Porter of the Louisville Trust Company for the purpose of ascertaining what financial interest, if any, Patrick had in City Investment Company, Inc., and he learned from Ira Porter the facts which the latter had learned as stated in Findings Nos. 3, 7 and 9.”

The trial court concluded that Motors Investment Company became the holder in due course for value, and with no notice of any infirmity or defect of title, of the two checks, and in receiving them it was guilty of no bad faith. We are of the opinion the findings of fact and the conclusion reached are adequately supported by the evidence. See also CR 52.0L Furthermore, the $40,000 treasurer’s check, drawn by the bank on itself, did not disclose that Charles Patrick, Inc. had any interest in it but, on the contrary, that it was solely a valid obligation of the bank.

Another contention of appellants is that there was a failure of consideration when Patrick paid Motors Investment Company $91,294, although he had only embezzled $16,902.75 from it. The record establishes that these checks were accepted by counsel for Motors Investment Company with the understanding that they would distribute this money to Motors Investment Company and Charles Patrick Insurance Service in accordance with their respective losses. Therefore, the agents of these corporations accepted these checks in consideration of the pre-existing debt owed them by Patrick. Since a pre-existing indebtedness can constitute value as was required by KRS 356.052(3) and defined by KRS 356.025, it is apparent that value was given for these checks.

This disposes of the principal controversy and we find it unnecessary to discuss other alleged errors related thereto.

Appellants contend, however, that the court in dismissing the complaint as amended erroneously adjudged in favor of the Louisville Trust Company, executor of the estate of Charles Patrick, on their claim against Patrick’s estate. This contention has merit. It appears the allegations asserting a claim against the Patrick estate were not denied and the trial court, perhaps inadvertently, did not specifically pass upon this claim in its findings of fact and conclusions of law. The judgment must be reversed to the extent it dismisses the claim against the executor of the Charles Patrick estate.

The judgment is affirmed in part and reversed in part, with directions to enter an appropriate judgment on the claim of appellants against the Louisville Trust Company, executor of the estate of Charles Patrick.


text:
    ACCURATE ANSWERING SERVICE, INC., Appellant, v. ANSWERING SERVICE, INC., d/b/a Answering-Louisville, Appellee. ANSWERING SERVICE, INC., d/b/a Answering-Louisville, Appellant, v. Lorraine M. PURCELL et al., Appellees.
    Court of Appeals of Kentucky.
    July 2, 1965.
    As Modified on Rehearing Oct. 8, 1965.

      Allen Schmitt, Louisville, for Accurate Answering Service, Inc., et al.
    Gerald Kirven, O. Grant Bruton, Louisville, Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, of counsel, for Answering Service, Inc., d/b/a Answering-Louisville.
   CLAY, Commissioner.

Both parties have appealed from a judgment enforcing an agreement between them. We will consider their contentions following a statement of these somewhat complicated proceedings. Appellant, Accurate Answering Service, Inc., will hereafter be referred to as “Accurate”, and ap-pellee, Answering Service, Inc., will be referred to as “Answering”.

Answering had conducted a telephone answering business in Louisville for approximately 15 years before this controversy arose. In its employ were Lorraine Purcell and Mary Hughes, with whom Answering had a valid agreement that they would not engage in a competitive undertaking in Louisville for a period of two years after the termination of their employment. In September 1962, Answering’s attorney Manny Frockt incorporated Accurate to engage in the same type of business, and the two employees above mentioned resigned from Answering and went to work for Accurate. This was a clear violation of their agreement.

Shortly thereafter Answering filed a suit against Accurate, Frockt, Purcell and Hughes for an injunction and other relief. (A temporary injunction was issued by this Court in March 1964.) On December 3,' 1962, before this case was heard on its; merits, the parties (excluding Frockt) entered into a compromise settlement agreement fixing their rights, and it was incorporated in an agreed judgment. The agreement referred to a list of Answering’s subscribers on file as of December 3, 1962, and its general purpose was to prevent Accurate, Purcell or Hughes from taking these subscribers away from Answering.

On the appeal by Accurate the controversy revolves around two provisions, one in the agreed judgment and one in the agreement. These provided:

1(c) “In the event that the defendants (Accurate, et al.) or any of them obtain any subscribers described in the aforesaid agreement from and after this date * * *, then in that event as liquidated damages, defendants shall pay to plaintiff on demand a sum or sums equal to all service charges paid or owed by said subscribers for a period beginning on the date said subscribers gave their business to any of the defendants, directly or indirectly, and ending on the first day of November, 1964.”
3(a) “Should any present subscriber approach Second Parties (Accurate, et al.), or any of them, to have Second Parties handle their service, Second Parties shall write a letter to the National Office of the First Party (Answering) telling it that said subscriber desires to leave First Party and further desires to use the services of Second Parties. Second Parties, and any of them, shall have the right to accept said subscriber only if written consent is given by First Party to Second Parties. This will apply until November 1, 1964.” (Our emphasis.)

For a while the parties operated under the agreement and the agreed judgment with the net result that Accurate was obtaining more and more of Answering’s original subscribers. Answering had given its written consent to the acceptance of some of these by Accurate under item 3(a) of the agreement quoted above. The present controversy was precipitated when Answering filed a motion for a rule and other relief on the ground that Accurate and its employees were violating the agreement and agreed judgment in many respects. Countermotions were filed by Accurate." The two judgments appealed from in substance adjudged as follows: (1) The parties were bound by their agreement and the agreed judgment and they were entered into in good faith by both parties; (2) Accurate must pay to Answering all fees collected or owed for services rendered by Accurate to customers whose names appeared as subscribers on Answering’s December 3, 1962, list (with certain exceptions not here involved); (3) Accurate must furnish the court’s Master Commissioner the list of all of its customers since the date of incorporation, and the Master Commissioner was directed to assess and collect the proper charges from Accurate. (A subsequent money judgment was entered pursuant to this last order, which is now pending on appeal but has been ordered held in abeyance until the decision on the appeals we are here considering.)

Accurate’s three contentions are: (1) It should not be required to account for fees obtained for services rendered to former subscribers of Answering whom Answering by written consent had released to Accurate; (2) Accurate should not be required to account for fees obtained for services rendered to former subscribers of Answering (where no written consent was given) who had terminated their subscriptions with Answering without any solicitation on the part of Accurate; and (3) Answering could not refuse its written consent arbitrarily and without just cause.

With respect to the first contention, we think Accurate’s position is well taken. Section 3(a) of- the agreement provided that Accurate “shall have the right to accept” an old subscriber of Answering when the latter gave its written consent. This provision must be construed as modifying section 1(c) of the-agreed judgment which provided that Accurate shall pay as liquidated damages the service charges paid or owed by any former subscribers of Answering obtained by Accurate. It would be meaningless otherwise. What else could Answering be consenting to except the loss of fees from an already lost subscriber?

While there is some substance to Answering’s complaint that the agreement was designed to prevent Accurate from competing with it insofar as its old subscribers were concerned, the language of the agreement must be interpreted to mean that Answering could (in its absolute discretion, as we are hereafter deciding) voluntarily relinquish its claim to the subscriber, and as a consequence its claim to damages as a result thereof. As we have said, Answering’s written consent would be utterly meaningless otherwise, and surely it must serve some purpose in the agreement. Accurate should not have been required to account for these customers.

Accurate’s second contention, that it could properly accept certain customers (without penalty) without Answering’s consent, has no merit. This lawsuit was commenced by Answering to prevent the pirating of its subscribers by Accurate, which was being done through Accurate by Purcell and Hughes in flagrant violation of a pre-existing agreement. It was upon the assurance by those representing Accurate that the latter was going into something other than the pirating business that Answering was induced to forego its clear rights against Purcell and Hughes and its claimed rights against Accurate and Frockt. The tenor of the compromise agreement v/as to compel Accurate to leave Answering’s subscribers alone, and if this was not done, Accurate (and Purcell and Hughes) would pay liquidated damages for exploiting them.

Those subscribers were specified by name and they were “off limits”. Not only did Accurate agree (in paragraph 4) not to solicit these subscribers but they agreed not to give them service. The agreement must be construed as attempting to avoid as much as possible the question of solicitation of Answering’s old subscribers by Accurate (who were actually being solicited indirectly by Accurate’s newspaper advertising) and to avoid a controversy over the time of termination of Answering’s service to its subscribers and the reasons therefor. The Chancellor properly decided that Accurate must pay as liquidated damages for all of Answering’s old subscribers served by Accurate without written consent, regardless of whether they were current subscribers of Answering when Accurate undertook to serve them.

The final contention of Accurate is that Answering could not withhold its written consent unless the latter could retain an account or the former had solicited it. There are no such conditions in the agreement. While Answering may have followed this policy in giving its written consent, it was not required to do so.

As we have heretofore pointed out, the amicable compromise of this controversy was based on the supposition that Accurate was not going to build its business on Answering’s old subscribers. The agreement was designed to terminate the controversy rather than perpetuate it. If Accurate could question Answering’s grounds for withholding consent, not only the parties but the customers would become embroiled in endless questions of intent, motive and solicitation.

Answering is entitled to some benefits from this agreement. At least Purcell and Hughes were the offending parties in this whole controversy and Answering gave up valuable rights (which might well have resulted in the complete extinguishment of Accurate) in return for Accurate’s agreement to leave Answering’s subscribers alone. We think Answering was overly fair in giving its consent in any case (and we have in this opinion held them strictly to the detriment arising from this consent) but we find nothing in the agreement or the circumstances which would compel them to give it. In our opinion Answering had an absolute discretion with respect to this matter and Accurate must respond in damages for fees collected from, or owed by, or properly chargeable to those customers (who were Answering’s former subscribers) served by Accurate without the written consent of Answering.

We now reach the appeal of Answering! and its contention that the Chancellor, pursuant to its motion, should have set aside certain parts of the agreed judgment, thereby permitting it to prosecute its claims for damages against Accurate, Purcell, Hughes and Frockt on its original cause of action. Answering wishes to retain the benefits accruing to it under the agreed judgment.

There are several reasons why the trial court correctly adjudicated this issue. In the first place, we cannot say the Chancellor was clearly erroneous in finding that Accurate, et al., were not guilty of bad faith or fraud when entering into the agree- _ ment or acceding to the agreed judgment. The fact that the latter subsequently breached the agreement and violated the agreed judgment is not in itself grounds for setting it aside.

Secondly, it would hardly be equitable to permit Answering to enforce the agreed judgment to the extent it was beneficial and at the same time deprive Accurate, et al., of their rights thereunder.

Finally, Answering’s original claims were-extinguished by the agreement and the agreed judgment, and we know of no ground upon which they could be revived.

We do not pass upon the rights of the parties under another judgment now pending on appeal in this Court, or whatever other rights, if any, the parties may have under the agreement and the agreed judgment which were not determined in this opinion.

On the appeal of Accurate Answering Service, Inc., the judgment is affirmed in part and reversed in part with directions to modify the judgment consistent with this opinion; on the appeal of Answering Service, Inc., the judgment is affirmed; all costs of both appeals shall be paid by Accurate Answering Service, Inc.


author: CULLEN, Commissioner.

text:
    Robert L. WHITE and William Chapman (sometimes known as Billy Ross), Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 7, 1965.
    Rehearing Denied Nov. 5, 1965.

      John W. Beard and William E. Rummage, Bratcher, Rummage, Beard & Flah-erty, Owensboro, for appellants.
    Robert Matthews, Atty. Gen., Frank D. Berry, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CULLEN, Commissioner.

Upon a joint trial, Robert White and William Chapman were convicted on two counts of obtaining money under false pretenses, KRS 434.050, and a sentence of two years was imposed on each count. White and Chapman have appealed, asserting numerous grounds of error.

The appellants were charged with having victimized two elderly women by means of the well known “furnace inspection” racket. The evidence for the Commonwealth was that Chapman appeared at the homes of the women, claiming to be an authorized furnace inspector. Upon being permitted to examine the furnaces he reported that they were badly in need of cleaning, and that fortunately he had a couple of men in the neighborhood who would be available to do the cleaning. The women then signed contracts for the cleaning and the men arrived to do the work. Shortly afterward the men reported that they had found holes in the furnaces, which rendered them extremely dangerous. The men then called White, who appeared with other men, and who had furnace parts and new furnaces for sale. One of the women was prevailed upon to buy a “good, used chamber,” which she subsequently identified as the one that originally was in her furnace, with simply a new coat of paint on it. The other woman bought a complete new furnace.

The appellants did not testify.

It is contended that the appellants’ motion for a directed verdict should have been sustained as to Chapman because the only representation he was shown to have made was that the furnaces were dirty, and there was no proof that they were not dirty. It is contended that the motion should have been sustained as to White because the only representation he was shown to have made was that the furnaces were defective, and there was no proof that they were not defective. Also, as to White, it is contended that at one of the homes he did not do any of the talking and if there was any misrepresenting there it was done by another man.

In our opinion it is reasonably clear from the evidence that Chapman, White and the other men who appeared on the scene from time to time were associated together in a venture to sell furnaces or furnace parts, and the pattern of their operations was such that a misrepresentation by one properly could be charged to the others also, as having been made by mutual inducement. Therefore, we think that if at any stage of the venture there was a material false pretense by any of the associated participants, both White and Chapman may be charged with it.

As concerns the falsity of the representations concerning holes in the furnaces, we think the testimony of one of the women, that the purported replacement part was the same one that was removed from her furnace as allegedly defective, was sufficient proof of a material false representation. Also, there was testimony by a plumbing and heating contractor that if the furnace of the other woman had had a hole in it as claimed by the defendants, water would have been pouring out in great quantities (which condition did not exist).

It is our opinion that the evidence was sufficient to sustain the convictions.

The indictment was returned in September 1963. The defendants were arraigned in February 1964, and the trial was held in May 1964. On the day before the trial the defendants filed motion for a bill of particulars, which the court overruled. Under RCr 6.22 the filing of such a motion after arraignment is by permission of the court. Furthermore, the rule provides that the granting of such a motion shall be “for cause.” In the instant case the motion was filed long after arraignment and it stated no cause at all. It appears with reasonable certainty from the trial record that the defendants were fully aware of the particularities of the offenses with which they were charged. In their brief on appeal they do not indicate in what respect they were prejudiced by denial of their motion. Although we believe that trial courts should be liberal in directing the filing of bills of particulars, we can find no abuse of discretion in the instant case in the refusal so to direct. In fact, it is doubtful that the court properly could have granted the motion in the absence of. a statement of “cause” as contemplated by the rule.

On the day of trial the defendants moved for a change of venue. This motion was overruled, and properly so, because it was neither verified nor supported by affidavits as required by KRS 452.220.

A motion of the defendants for a transcript of the stenographic notes of the testimony before the grand jury was overruled, because the Commonwealth showed that the testimony before the grand jury had not been taken down by a reporter. RCr 5.16 does not require the stenographic reporting of grand jury testimony; it merely gives the defendant the right to a transcript if the testimony was reported. The defendants have no cause to complain of the overruling of their motion.

The court overruled motions of the defendants for separate trials for each defendant and for each count. The defendants do not complain that they were in fact prejudiced by the joint trial; their complaint is that for various reasons they were not able, before trial, to show in their motions how they might be prejudiced by a joint trial. Since they have shown no actual prejudice, it would be ridiculous to reverse the judgment simply because of an impairment of their opportunity, before trial, to allege the possibility of prejudice.

The appellants argue in general terms, without specification, that “incompetent, prejudicial and irrelevant” testimony was admitted. It appears that the complaint is addressed to the admission of testimony as to statements made by one of the defendants out of the presence of the other. The record shows that in every instance where an admonition was requested the court admonished the jury that the statement could not be considered against the defendant not present. In other instances the defendants simply made a blanket objection which the court overruled. The overruling of such objections was proper because the testimony was admissible as against one of the defendants. The court was not required to give an admonition in the absence of a request for it. Quarles v. Commonwealth, Ky., 245 S.W.2d 947.

It is argued that an instruction which authorized Chapman to be found guilty of aiding and abetting White was erroneous in failing to state that the aiding and abetting must have been done “willfully, maliciously and feloniously.” However it is our opinion that the instruction was adequate because in the part dealing with aiding and abetting there was a reference back to an earlier part of the instruction in which it was stated that the principal act must have been done willfully, unlawfully and with intent to defraud. See Anderson v. Commonwealth, 193 Ky. 663, 237 S.W. 45.

A final contention is that the Commonwealth’s attorney committed prejudicial error in his closing argument by making an indirect reference to the failure of the defendants to testify. The statement was:

“I don’t think that standing mute after the evidence that has been presented to this jury indicates any eloquent plea of anything.”

The record shows that the attorney for the defendants, in his closing argument, had made the statement that the failure of the defendants to take the stand was “one of the most eloquent shows of innocence that a defendant can make.” In our opinion the subsequent comment by the Commonwealth’s attorney was a proper and permissible rejoinder.

Upon the whole record we find no error prejudicial to the substantial rights of the appellants.

The judgment is affirmed.