text:
    Marie SANFORD and Louis Sanford, Plaintiffs-Respondents, v. Eugene REEVES, Defendant, and Francis Dawkins, Defendant-Appellant.
    No. 32061.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1966.
    Rehearing Denied Feb. 18, 1966.
    Evans & Dixon, John C. Shepherd, Paul V. Gilbert, St. Louis, for defendant-appellant Francis Dawkins.

      Thomas Hullverson, Hullverson, Rich-ardso'n & Hullverson, St. Louis, Corinne Richardson, Max W. Softer, for plaintiffs-respondents.
    Michael W. Hodges, St. Louis, for defendant Eugene Reeves.
   TOWNSEND, Commissioner.

This is a chain collision case in which plaintiffs, husband and wife, occupants of Car No. 1, have recovered judgments for personal injuries, medical and hospital expense and property damage against both defendant Dawkins, driver of Car No. 2, and defendant Reeves, driver of Car No. 3. Only the defendant Dawkins has appealed.

The collisions occurred on the evening of April 22, 1961. Plaintiffs’ testimony shows that their car, driven by the husband, was in the southbound lane of traffic next to the center line of Kingshighway in the City of St. Louis, a short distance south of Page Avenue, and that plaintiffs’ car had come to a complete stop in its lane owing to the stoppage of a long line of cars ahead. Mr. Sanford states that his car had been stopped for approximately thirty seconds when he looked into his rear-view mirror and saw the lights of a car approaching. He says that he knew he was going to be hit and accordingly reached for his child. He estimates that the approaching car was thirty to forty feet behind his automobile when so observed. Almost immediately thereafter, “maybe a split second, not that long” a collision occurred, — “it sounded like an explosion”, — in which the rear of his car was struck. He recalls no collision before or after the one just described. He heard only one impact. When he got out of his car, he found that the front of the Dawkins’ car was underneath the rear of his car. Mrs. Sanford also testified that the Sanford car was stopped and that she heard no crash before their car was struck from the rear. She has no idea how long their car was stopped before it was struck; nor can she recall whether she heard one impact or two.

Defendant Dawkins confirms that the Sanford car was stopped at the time that his car made contact with it. He states that both cars were -stopped about four seconds. His testimony is to the effect that he was stopped half a car length behind the Sanford car when he heard a screech of brakes and as he started to look into his rear-view mirror his car was struck from the rear; in spite of the fact that his foot was on the brake, his car was propelled forward by the blow from the rear so that his car struck the Sanford car. His pleading denies that plaintiffs’ vehicle was otherwise struck by his car and he testified that his car did not make contact with the Sanford car before his own car was struck in the rear. He testified that the Sanford car had come to a slow, gradual stop and that he had made the same kind of a slow stop as he approached the Sanford car. He estimated his speed in the last block and a half before the collision at fifteen to twenty miles an hour. When he inspected the damage he found that the front of his car and the rear of the Sanford car were “tangled together”; the Reeves car was at a distance of two or three feet from the rear of the Dawkins car.

Defendant Reeves does not remember whether the Dawkins car was moving or stopped at the time of his collision with it. —“I would say he was stopping.” He does not know whether there was more than one collision involving the three cars because of the loud screeching noise which his tires were making on the pavement. He skidded into the Dawkins’ car in a straight line. He testified that he jammed on his brakes when he saw the rear of the Dawkins car raise up. “ * * * I would say it raised at least twelve inches. It was enough to be noticeable.” He doesn’t know whether the impact with the Daw-kins car caused the latter to move forward. His two front fenders and the hood of his car were bent and the grille was damaged. The bumpers of the two cars missed. The Dawkins’ deck lid was sprung. “ * * * if he had brake lights, I didn’t see them.” He estimated his speed at the time of his collision at between twenty and twenty-five miles per hour.

At the scene of the accident, Reeves was given a witness statement form by a police officer and requested to fill it out, which he did in his own handwriting. At the police station, Reeves signed a report, apparently derived in part from his written statement and in part from his oral statements made to the investigating police officer, which read: “ * * * when he observed that vehicle number two had stopped, he applied his brakes, but too late to avoid striking vehicle number two, forcing vehicle number two into the rear of vehicle number three [i. e., the Sanford vehicle]”.

At the scene of the collision Mrs. Sanford wrote out the following statement:

“Going south on Kingshighway and stopped for a line of cars and Francis Dawkins hit us from behind when Eugene Reeves hit and caused him to hit us. Happened at 8:30 and my wife was hurt.” °

This statement was signed both by her and by her husband. She states that she wrote out the statement at the request of a police officer. “All I remember, is a policeman giving me a paper and telling me what to write. * * * I had someone tell me what to write * * * but like I said, what the officer told me to write. * * * I really don’t know then what happened. * * * I don’t know what went on. I thought him being an officer, he knew what he was saying.” She heard neither Dawkins nor Reeves make any statement at the scene. She did not know the names of the other parties involved until told what to write and at the time of impact did not know the number of cars involved.

All the above-mentioned witnesses were called by the plaintiffs.

Plaintiffs’ verdict directing instructions follow:

“Instruction No. 3.
“The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence the car in which Mr. and Mrs. Sanford were seated was stopped for over five seconds prior to being struck at the rear, and that the defendant Dawkins, in operating his car southwardly on Kingshigh-way, allowed it to strike and collide with the rear end of the Sanford automobile, and that in so doing he failed to exercise the highest degree of care, then you are instructed that he was negligent, and
“If you further find and believe from the evidence that Mr. and Mrs. Sanford were injured ac a direct result of having their car struck at the rear end thereof, and that negligence, if any, of the defendant Dawkins as above submitted was the sole proximate cause of such injuries to Mr. and Mrs. Sanford, and that the defendant Reeves was not negligent in any respect submitted to you in other instructions herein, then and in that event your verdict should be in favor of Mr. and Mrs. Sanford and against the defendant Daw-kins alone.
“Instruction No. 4.
“The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence Mr. and Mrs. Sanford were seated in their car and that it had been stopped at the place mentioned in evidence for over five seconds before being struck at the rear end by the Dawkins’ automobile, and that the automobile of the defendant Dawkins came to an abrupt stop and was almost immediately thereafter struck at the rear end by the automobile of the defendant Reeves, and that such collision and that involving the Sanford car were almost simultaneous, and that in permitting his automobile to strike and collide with that of the defendant Daw-kins under the circumstances aforesaid, if you so find, was a failure on the part of the defendant Reeves to exercise the highest degree of care, then you are instructed that he was negligent, and if you further find and believe from the evidence that Mr. and Mrs. Sanford were injured as a direct result of having their car struck at the rear end thereof and that the defendant Dawkins was negligent in that respect submitted to you in Instruction No. 3 and that such negligence, if any, on his part directly combined and concurred to bring about such injuries, if any, to Mr. and Mrs. Sanford, then you are instructed that Mr. and Mrs. Sanford are entitled to recover and your verdict should be in their favor and against both the defendant Dawkins and the defendant Reeves.”

No verdict-directing instruction was tendered by Dawkins.

Defendant Dawkins alleges error because, he says, these instructions failed to hypothesize sufficient facts concerning the collision between Reeves and Dawkins and practically amounted to a directed verdict against Dawkins. In the light of all the evidence the most striking thing about the instructions is that nothing is said about a verdict against Reeves alone with the negative concomitant that no verdict could be had against him unless verdict was rendered against Dawkins at the same time.

It is an elementary proposition that a plaintiff is normally entitled to submit his own theory of the case, supported by evidence, without attempting to negative directly the theory upon which his opponent has conducted his case. Plaintiffs’ pleadings charge the separate collisions and the separate negligence of each defendant and the resulting damage as “a direct result of the negligence of both defendants.” Selected portions of the plaintiffs’ evidence tend to support the charge.

Defendant Dawkins seeks to avoid the rule designated above as elementary by referring to the proposition recently articulated in Wray v. King, Mo.App., 385 S.W.2d 831, 835 (quoting from Branch v. Gordon’s Transports, Inc., Mo.App., 375 S.W.2d 418, 421) in the following language: “ * * * if, in the process of making a prima facie case or in proving conduct which would ordinarily constitute negligence per se, the plaintiff adduces evidence which tends to show an accidental or non-negligent cause, or a matter which would exonerate the defendant, then the plaintiff’s verdict-directing instruction may not ignore the evidence which tends to excuse the defendant, but must hypothesize the possibly non-negligent causes or exculpatory facts and require the jury to find that the defendant’s conduct was in fact negligent.”

We proceed to examine the background from which the stated proposition has been derived.

This statement and others of like import are found in that class of automobile collision cases which may be referred to comprehensively as the skidding cases. Thus, in the Wray case, supra, defendant’s car skidded into the path of plaintiff’s oncoming automobile; in the Branch case, supra, defendant’s tractor struck the rear of plaintiff’s car in the course of the jackknifing and skidding of defendant’s tractor-trailer outfit.

It has been well established that skidding alone does not in and of itself show negligence. Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59, 63; Evans v. Colombo, Mo., 319 S.W.2d 549, 550. Consequently in an automobile collision case evidence only of skidding could do no more than prove an ambiguous fact, i.e., a fact purely neutral and without significance. One who relied thereon could scarcely be said to have sustained the burden of proof. “ * * * the cases hold that the mere skidding of an automobile or motor bus * * * is not negligence and does not give rise to an inference of negligence.” Girratono, supra, 251 S.W.2d at p. 63. Both the Branch and Wray cases clearly recognize the ambiguous character of such evidence. Thus, the Branch case refers to “jackknifing and sliding, or lateral movement — circumstances which do not necessarily imply negligence, but from which the inference is merely ambiguous.” At 375 S.W.2d p. 423. More positively the opinion in the Wray case states that “we prefer * * * to say that the skidding of defendant’s car, standing alone, gives rise to no inference at all.” At 385 S.W.2d p. 834. Accordingly it is error to submit, on the basis only of such evidence, an instruction predicated upon the hypothesis that defendant “allowed the tractor-trailer unit * * * to run into and collide” with plaintiff’s car (Branch case) or upon the hypothesis that defendant “failed to drive on the right half or east half of said road and highway, but instead went onto the left side * * * and came into collision with the motor truck” (Wray case).

Skidding “is a circumstance tending to show that plaintiff never had a cause of action in the first place” (Wray, at p. 836). It is in this sense that the courts in the Wray and Branch cases refer to an accidental or non-negligent cause and state the requirement of hypothesization of possibly exculpatory facts. In such a situation the fact of skidding, evidence of which has been produced by plaintiff, may not be ignored; the submission must include the fact of skidding and then go on to hypothesize facts from which the jury might find negligence antecedent to and causing the skidding or along with or after the skidding. Evans v. Colombo, supra; Doyle v. Wilmesherrer, Mo., 358 S.W.2d 837, 841.

It is of significance to note how the evi-dentiary situation in the Wray and Branch cases differs from that in the present case. In the former cases the plaintiff’s evidence in question went only to the fact of skidding — a wholly neutral fact. In the instant case plaintiffs’ evidence was of two varieties, one to the effect that Dawkins collided with plaintiffs’ car owing to his failure to exercise the highest degree of care and the other, that Dawkins made no contact with plaintiffs’ car until he was propelled into it by the blow from Reeves’ car.

The defendant has referred us to1 no authorities where the quoted proposition relating to plaintiff’s adducing evidence “which tends to show an accidental or non-negligent cause, or a matter which would exonerate the defendant” has been applied in other than the skidding cases. This fortifies the conclusion that such a rule as is there stated must be confined — and was intended only to relate — to the background situation from which such an enunciation emerges.

We return to the complaint of defendant Dawkins that plaintiffs’ verdict-directing instruction ignored their evidence of his stopping which would have exonerated him. As plaintiffs’ witness, Dawkins testified that he had stopped several seconds before his car was struck by that of defendant Reeves. But plaintiff Sanford’s testimony flatly contradicted this. Since the testimony of one of plaintiffs’ witnesses contradicted the testimony of another of plaintiffs’ witnesses, the question remains whether an instruction based on the testimony of the second, sufficient in itself to justify a finding for plaintiffs, is proper if it fails to negative the factual content of the testimony of the first witness. The answer to that question is given by Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, where it was held that a plaintiff does not lose his right to a submission upon the basis of one theory supported by evidence because he has introduced testimony of another witness conflicting with that given by the first.

Appellant voices objection to the word “allow” as used in Instruction 3. For present purposes we accept that one of several dictionary definitions of the word selected by appellant, namely, “to suffer by neglecting to restrain or prevent”. We think the word necessarily implies, in addition, power to control and, to spell it out, would be understood by a jury to mean “to suffer or permit by neglecting to restrain when there was power to control”. There was ample evidence of appellant’s conduct to submit that question to the jury.

It is the considered opinion of the Court that Instruction 4 properly presented plaintiffs’ theory of the case. The instruction hypothesized facts supported by the evidence which directly contradicted testimony of defendant Dawkins — the kind of stop made by the latter, the length of the stop before collision with plaintiffs’ car, the interval between impacts. It also hypothesized by reference to Instruction No. 3 that Dawkins permitted his car to strike and collide with plaintiffs’ car whereas Dawkins’ testimony was that he made contact with plaintiffs’ car only when shoved into it by Reeves’ car. By its verdict the jury plainly adopted plaintiffs’ version of what had occurred. Since that version was based upon competent evidence and was appropriately submitted by Instruction 4 we find no error.

The judgment of the Circuit Court should be affirmed.

PER CURIAM.

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

WOLFE, P. J. and ANDERSON and RUDDY, JJ., concur.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    Jesse Willoughby WARD et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.
    Herbert D. Liebman, Frankfort, for appellant.
    William L. Brooks, Frankfort, Robert Matthews, Atty. Gen., Charles Runyan, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Jesse Willoughby Ward and Dean Mer-riman appeal from a judgment entered on a jury verdict finding them guilty of knowingly receiving stolen property worth $100 or more and sentencing Ward to three years and Merriman to one year in prison. KRS 433.290, 433.220.

They contend that (1) the indictment was defective, (2) improper evidence was admitted and proper evidence excluded, (3) the value of the stolen property was not proved, and (4) a special instruction on their theory of defense should have been given.

The crime is alleged to have been committed in Franklin County on or about September 6, 1964. The record does not show the date the indictment was returned, but it was at some time on or before November 7, 1964, because on that day the appellants appeared in the circuit court with counsel, waived arraignment, pleaded not guilty, were admitted to bail, and moved for a trial date. After one continuance the trial was set for January 28, 1965. Two days before the trial the appellants moved to dismiss the indictment because it erroneously cited KRS 433.190 rather than KRS 433.290 as the statute alleged to have been violated, and because it did not describe the property in question or name the person or persons from whom the appellants received it. The trial court caused the indictment to be amended by substitution of the correct statute number and insertion of “to-wit, two shotguns” after the word “property,” and the motion was overruled.

RCr 6.10 specifically provides that an error in citation of the applicable statute shall not be ground for dismissal of the indictment if it does not mislead the defendant to his prejudice. There is no suggestion that the appellants in this case were misled.

RCr 6.16 permits amendment of the indictment if no new or different offense is charged and if the defendant’s substantial rights are not prejudiced. See Brown v. Commonwealth, Ky., 378 S.W.2d 608 (1964). This was a clear case of permissive amendment, even if the indictment had been defective without it. Had these appellants been genuinely in doubt as to what property they were charged with having received, their appropriate remedy would have lain in an effort to have it stipulated or, failing that, to move for a bill of particulars supported by affidavit showing a good faith reason for requesting the information. Cf. RCr 6.22. Actually, they knew very well the two shotguns were the subject of this prosecution, since they had been caught red-handed with them in their possession.

It developed during the course of the trial that although the indictment alleged the property to have been stolen from Kenneth Chism, in fact the shotguns had been stolen from Kenneth’s father, Raymond Chism. However, even under the technical criteria in force prior to adoption of the Rules of Criminal Procedure it was not necessary for the name of the owner of the stolen goods to be stated in the indictment, and if he was so named a variance was immaterial unless the property was not identified. Roberson’s New Kentucky Criminal Law and Procedure, § 882, p. 1102. The object of the indictment in this respect is to give the defendant the information fairly and reasonably necessary to enable him to defend himself without be-Jng subjected to surprise or trickery. Whether the guns belonged to Kenneth or Raymond Chism was of no significance. As remarked in Decker v. Commonwealth, 303 Ky. 511, 198 S.W.2d 212, 214 (1946), they might as well have belonged to the Church of England. The appellants knew what guns they were, and the only real question in the case was their state or states of mind at the time they received them.

On the day after the two shotguns were stolen a warrant issued to search the residence of the appellant Ward on Mero Street in Frankfort. It was placed in the hands of two police officers, Duvall and West, for execution. Duvall went to the front of the house, where he was met by Ward. After a preliminary conversation Ward voluntarily permitted Duvall to enter for the purpose of making the search. Meanwhile, West approached the back door of the house, where he bumped into Merri-man emerging with the shotguns partially wrapped in a bedsheet and blanket. The officers did not make an arrest at once, as Ward claimed the guns belonged to him. With his permission they took the guns to police headquarters for identification, after which a warrant was issued on West’s affidavit for the arrest of Ward and Merriman. The arrest was made by West, Duvall, and their superior officer, Captain Rucker.

This brings us to the second point of argument. For some reason not readily apparent, on direct examination by the Commonwealth West was asked to and did introduce the warrant on which he had arrested the appellants, after which the interrogation proceeded as follows:

Q. “Tell the jury upon what information you based the taking of this warrant.”
A. “We had information that this property was in a residence of Mero Street and — ”
By counsel for defendants: “I object unless he states the information on which he based the — ”
Counsel for the Commonwealth (interposing) : “Your Honor, he stated that he had information the property was on Mero Street.”
“OBJECTIONOVERRULED; EXCEPTION.”

It will be noted that this exchange related to the arrest warrant, not the search warrant, but from appellants’ brief it is evident that the point they wished to make had to do with the search warrant. In any event, there was nothing to prevent counsel’s pursuing the matter on cross-examination, which in fact he did, without objection. Not only was there no error in the foregoing ruling; it is utterly impossible that any prejudice could have result-ed from it, and none is suggested in appellants’ brief. Nor does the record disclose that any evidence offered by the appellants was excluded.

The next argument is that the value of the stolen property was not proved in that the expert valuation witness’s opinion that the guns were worth $70 and $60, respectively, was based on the assumption that they were “in good working condition,” though he had not examined them and did not know whether they actually were in that condition. Assuming arguen-do that the proof on direct examination was insufficient to warrant a conviction based on their being worth $100 or more, the deficiency was made up on cross-examination, as follows:

Q. “If these two guns were presented to you as they are now can you tell us what you would be willing to pay for them?”
A. “I would say I would give $55 for this one and $45 for that one.”
Q. “$55 for this one and $45 for the other one?”
A. “That is right.”

The last contention presents the only really serious question in the case, whether appellants were entitled to a specific instruction on their theory of defense. That theory, supported by their testimony, was that Ward had been cooperating with the police authorities in keeping a lookout for and recovering stolen property in and around Frankfort, and bought the two shotguns with the intention of having them checked by the sheriff before otherwise disposing of them.

The subject of when a special instruction should be given on a theory of defense has given this court much difficulty. It has been discussed ably and in depth in several opinions, notably Reynolds v. Commonwealth, Ky., 257 S.W.2d 514 (1953), and Blevins v. Commonwealth, Ky., 258 S.W.2d 501 (1953). However, Evitts v. Commonwealth, 257 Ky. 586, 78 S.W.2d 798 (1935), in which a specific instruction was held to be necessary, is so similar on the facts that it is decisive of this case.

The jury was instructed to find appellants guilty if they “willfully, unlawfully and feloniously” received the two shotguns knowing they had been stolen. The word “feloniously” was defined as proceeding from an evil heart or purpose, and this definition provided the only avenue through which the jury could have found appellants not guilty on the basis of their story that Ward had purchased the guns with the intention of communicating with the sheriff before disposing of them. This, in our opinion, was not clear enough to constitute a fair presentation of the appellants’ theory of defense. Evitts v. Commonwealth, supra. Upon another trial a specific instruction should be given, and the definition of “feloniously” should be amplified to include the additional words, “done with deliberate intention of committing a crime.” Cf. McVey v. Commonwealth, Ky., 272 S.W.2d 33, 35 (1954).

The cause is reversed for a new trial.


author: WADDILL, Commissioner.

text:
    Jay ROBERTS, Appellant, v. OWENSBORO MILLING COMPANY and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Oct. 29, 1965.
    Rehearing Denied March 18, 1966.
    Jerry W. Nall, Vaughn, Nall & Stephens, Owensboro, for appellant.
    John S. Moremen, Louisville, Robert Matthews, Atty. Gen., Frankfort, for appel-lee.
   WADDILL, Commissioner.

This appeal questions the correctness of a finding by the Workmen’s Compensation Board that the appellant, Jay Roberts, is not disabled due to an accident arising out of his employment with the appellee, Owensboro Milling Company.

Prior to August 31, 1962, Roberts had been employed by the Milling Company about 15 years. He was then 49 years of age and his duties included, among others, the carrying of heavy feed sacks up and down several flights of stairs. On August 31, 1962, Roberts and other employees were working very strenuously and immediately after running up three flights of stairs, Roberts experienced nausea and sharp pains which emanated from his chest. He rested a few minutes and then resumed his work.

Three days later while working at home in his garden, Roberts again experienced chest pains and then lost consciousness. He was hospitalized and has been physically unable to return to work at the Milling Company since that time.

A claim for compensation benefits was filed by Roberts against the Milling Company. After a hearing the Board made, in pertinent part, the following findings:

“ * * * The piaintiff has coronary artery disease of arteriosclerosis of long-standing from which he is totally and permanently disabled. * * *. The plaintiff did not sustain an injury or disability as a direct result of the incident of August 31, 1962, and his diseased condition is not work-connected.

Thereupon the Board rejected Roberts’ claim for compensation benefits. On appeal to the circuit court the Board’s order was upheld on the ground that it was supported by the evidence.

Roberts appeals to this Court contending that the Board’s order should be set aside because the evidence establishes that his disability is the result of the work-connected accident on August 31, 1962.

Dr. Barney Elliot, a general practitioner, testified that as a result of his examination he found that Roberts had angina, emphysema, arthritis and hypertension. It was his opinion that Roberts’ exertion in performing his duties August 31, 1962, was the precipitating cause of his being disabled. Dr. Lee Tyler, Roberts’ family physician, did not consider Roberts’ heart condition disabling and Dr. Robert Hast, a cardiologist, testified that “ * * * none of his complaints are connected with his employment.”

Whether Roberts’ disability stems from an injury sustained in his employment is a fact question. The weight to be given evidence in deciding questions of fact is to be determined by the Board. Rowland v. Geary-Wright Tobacco Co., Ky., 344 S.W.2d 824. The Board accepted the evidence introduced in behalf of the company rather than the evidence introduced for Roberts. Hence Roberts lost his case before the Board for failure to sustain his burden of proof and he loses it here because he is not entitled to win it as a matter of law.

The judgment is affirmed..

MOREMEN, C. J., not sitting.


author: WILLIAMS, Judge.

text:
    Herbert L. WILLIAMS and Standard Oil Co., Inc., in Kentucky, Appellants, v. COURIER-JOURNAL AND LOUISVILLE TIMES, INC., Appellee.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.
    Rehearing Denied March 18, 1966.

      E. P. Sawyer, Edwin A. Schroering, Jr., Louisville, for appellant Williams.
    Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, for appellant Standard Oil Co., Inc. in Kentucky.
    Norman A. Curtis, Louisville, for appel-lee.
   WILLIAMS, Judge.

The appellant Herbert L. Williams brought suit against the appellee Courier-Journal and Louisville Times, Inc., to recover for personal injuries sustained when he fell on appellee’s premises. The appellant Standard Oil Company intervened for the purpose of recovering workmen’s compensation payments which it paid to Williams. Trial was had in the Jefferson Circuit Court and a directed verdict was entered in favor of appellee at the close of Williams’ proof. This appeal is prosecuted from the judgment entered on the directed verdict.

Williams was employed by the Standard Oil Company as a delivery man for some 16 years. He drove a truck and made deliveries of oil products to customers on a regular basis. Appellee was one of his regular customers.

On the morning he was injured Williams backed the truck to appellee’s dock, unloaded several five-gallon cans of oil onto a four-wheel dolly and, together with one of appellee’s employees, rolled the dolly to the “ink room.” The oil was customarily dumped into Containers located in the ink room. Upon reaching the room appellee’s employee left Williams for the purpose of getting someone to clean up the room. However, Williams did not know that was the reason he left.

The ink room was cluttered with open five-gallon cans of ink with the lids lying beside them on the floor. Puddles of ink of various colors spotted the floor. Without attempting to move the ink cans, Williams carried a five-gallon can of oil in each hand around them to a tank at the rear of the room. As he started to pour the oil from the can into the tank he slipped, fell into an open can of yellow ink, and plunged his arm into an open can of red ink. He was injured by the fall.

Williams insists the case should have gone to a jury, but the Courier-Journal contends the directed verdict was proper because (a) Williams did not satisfy the burden of establishing the proximate cause of his mishap, or (b) he was contributorily negligent and/or assumed the risk as a matter of law. We find the directed verdict was properly entered on the first ground and, consequently, do not reach the contributory negligence question.

Williams failed to establish the causation of his fall. He testified that he did not see what he slipped on and speculated it might have been ink because there was ink on his shoes that night. That was pure speculation which was predicated upon the fact the ink was on his shoes, but the ink could easily have splattered on his shoes when he fell, or it could have become deposited there when he walked across the room. He was pouring oil from a can into a tank, and it is equally logical that some of the oil splattered from the can and he slipped on it. When interrogated upon the reason for his fall he made the following answers:

“Q175 Yes. Now, you either slipped on the ink or on the oil or slipped on something1, but I take it you don’t exactly know what you slipped on ?
“A No, I didn’t see what I slipped on.
“Q176 You don’t know what you slipped on actually ?
“A It was ink, I imagine, because there was ink spilled next to the tank.
“Q177 You imagine that but you never saw it, either before or after the accident?
“A It was on my shoes.
“Q178 Yes, but then after you slipped, you slipped and sat down in a bucket, did you not?
“A That is right. * * *
“Q181 But after you fell the ink spattered all over the floor?
“A I would think so, yes. * * *
“Q184 And you never did see what you slipped on, did you ?
“A No.
“Q185 And you don’t know what you slipped on other than you say that it was slippery, is that right?
“A I slipped on something, yes.
“Q186 But you don’t know what it was of your own personal knowledge?
“A Other than I had ink on my shoes.”

We conclude that the directed verdict was proper because Williams did not establish that the appellee’s negligence, if any, was the proximate cause of his fall. Were we to hold otherwise it would have the effect of making the appellee an absolute insurer, which has been condemned in Lane v. Cardwell, Ky., 306 S.W.2d 290, 61 A.L.R.2d 202 (1957).

The judgment is affirmed.


text:
    Jean FARLEY et al., Appellants, v. Paul E. DeMUTH et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.
    Rehearing Denied March 18, 1966.

      Albert F. Reutlinger, Louisville, for appellants.
    Cecil Davenport, E. C. Hume, Jr., Louisville, for appellees.
   WADDILL, Commissioner.

The issue on this appeal is whether the trial court correctly declared invalid an ordinance of the City of Devondale zoning a tract known as the Nachand tract which is located in the eastern portion of Jefferson County. The trial court held that the zoning of this property constituted spot zoning and concluded that the ordinance was invalid since it was an arbitrary and unreasonable classification of the property on the part of the Board of Trustees of the City of Devondale.

Prior to 1961 the Nachand tract, consisting of approximately 28 acres, had been zoned for residential use by the Louisville and Jefferson County Planning and Zoning Commission. During 1962 this tract was annexed by Devondale and shortly thereafter this city enacted the ordinance in question zoning 8Y2 acres of the Nachand tract for commercial use and the remainder of the property for single family residential use.

When the Nachand tract was annexed by Devondale its status became that of unzoned property. Louisville & Jefferson County Planning and Zoning Commission v. Fortner, Ky., 243 S.W.2d 492; also see Hawkins v. Louisville & Jefferson County Planning and Zoning Commission, Ky., 266 S.W.2d 314. We are informed by briefs that the portion of the property zoned commercial will be used for the establishment of a shopping center, with a service station to be located at the intersection of Lyndon Lane and Westport Road which highways carry a heavy volume of traffic. There are no other shopping areas near Devondale and there is evidence to the effect that this zoning will be beneficial to the community as a whole. Since the Nac-hand tract was unzoned property and since the zoning had a justifiable basis the holding in Fritts v. City of Ashland, Ky., 348 S.W.2d 712, is not applicable.

Under the circumstances shown we conclude that this zoning was not spot zoning and the ordinance was neither arbitrary nor unreasonable.

The judgment is reversed with directions to enter a new one upholding the ordinance.


author: CULLEN, Commissioner.

text:
    Tom S. HURST et al., Appellants, v. Eugene SANDERS, Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.

      E. E. Hubbard and John S. Kelley, Fulton, Hubbard & Kelley, Bardstown, for appellants.
    W. R. Gentry, Jr., Bardstown, for ap-pellee.
   CULLEN, Commissioner.

Appellee Eugene Sanders contracted with appellants Hurst, Nalley and Gordon, d/b/a Bardstown Mills, for the “custom” spraying with chemicals of his alfalfa and tobacco fields by use of a “Hi-Boy” sprayer, which is a seven-foot high, one-seated, three-wheeled motor vehicle having a frame-work composed mainly of tubular steel and angle-iron pieces. The alfalfa field was first sprayed, without incident. During the spraying of that field Sanders rode on the framework of the machine behind the driver, appellant Roy Thomas, who was an employe of Bardstown Mills. The machine then was moved to the tobacco field and when the spraying of that field began Sanders’ two sons, ages 12 and 15, joined their father in riding on the machine. Several rows were sprayed with no trouble; then, as Thomas was undertaking to turn the machine around at the end of a row, where there was a slight grade and loose dirt, the big front wheel slid sideways or “scooted” up grade, one of the rear wheels dropped into a small gully, and the machine toppled over, as a result of which Sanders sustained a broken leg.

Sanders recovered' judgment against the appellants for $24,000 as damages, and we have before us an appeal from that judgment.

Appellants’ first contention is that a verdict should have been directed for them because (1) there was no proof of culpable negligence on the part of the appellants and (2) Sanders assumed the risk as a matter of law. b

We think there was sufficient evidence of negligence of the appellants to create a jury issue. Thomas had operated the spraying machine on only a few other occasions, and in fact was only a temporary substitute operator for Bardstown Mills. In view of his very limited experience we think he and his employers could be considered negligent in allowing Sanders to ride on the machine without giving him any warning of Thomas’ lack of experience and in operating the machine on a grade in loose soil without any experience having been acquired as to the propensities of the machine in those conditions. Also, a jury could find negligence in Thomas’ efforts to continue turning the machine and direct it up grade after it commenced to slide or “scoot.”

As concerns assumption of risk by Sanders the argument is that in the light of his knowledge of and experience with farm machinery generally and his knowledge of the topography and soil conditions of the tobacco field, and particularly when the machine was made top-heavy by Sanders and his two sons riding upon it, the danger of the machine’s overturning should have been obvious to Sanders. However, Sanders did not know that Thomas was inexperienced in the operation of the machine; he had no reason to expect that Thomas would undertake to force the machine out of a “scooting” turn; he had no knowledge of any lack of stability of the machine; and the evidence did not show that he and his sons were so situated on the machine as to raise its center of gravity and thus increase its tendency to overturn. There was some evidence that Sanders was standing just before the machine tipped over but the evidence does not show where his feet were, whether high or low. We think that reasonable minds could differ as to whether the danger was so obvious that an ordinarily prudent man with Sanders’ knowledge and experience would not have exposed himself to it. Cf. Whittaker v. Cole, Ky., 390 S.W.2d 893.

Appellants maintain that the giving of an instruction on contributory negligence was not enough, and that the trial court should also have given appellants’ offered instruction on assumption of risk. It is our opinion that under the particular facts of this case such distinctions as there may be between assumption of risk and contributory negligence are not significant, and the question of whether the plaintiff should be barred of recovery because his actions were not those of an ordinarily prudent man was adequately presented by the contributory negligence instruction. As said in City of Cold Spring v. Ross, Ky., 358 S.W.2d 507 at 510:

“The distinction that raises assumption of risk to the status of a separate defense from contributory negligence is subtle to the point of questionable legitimacy. Certainly in many cases the two theories so overlap that ‘it makes little difference [what] the defense is called.’ Prosser on Torts (2d ed., 1955), pp. 304-5. Porter v. Cornett, 1947, 306 Ky. 25, 206 S.W.2d 83. This is one of those cases, * *

The contention is made by appellants that the trial court erred in permitting Sanders’ counsel to use in his closing argument a chart which among other things showed an estimated sum for loss of earnings based on a 25% impairment of earning power. The chief complaint is that the chart did not conform to the evidence because the medical testimony showed at the most a 15% impairment. In our opinion the lay testimony was sufficient to justify the argument, with use of the chart, that Sanders had sustained at least a 25% loss of earning capacity. Cf. Baier v. Schnell, Ky., 323 S.W.2d 587.

Complaint is made that Sanders’ counsel was allowed to ask a leading question of his doctor witness, designed to induce the doctor to say that Sanders’ ability to work and labor had been impaired 15 percent, whereas in his previous testimony the doctor had spoken in terms of “15 percent of disability in this knee.” While the form of the question was somewhat leading we think it was proper that the doctor be asked to evaluate working disability as distinguished from anatomical disability, and in our opinion the question was not prejudicial. The plaintiff’s case did not depend on this testimony because, as hereinbefore pointed out, there was lay testimony of occupational disability.

Sanders’ wife was allowed to testify that after his injury she and the children were required to do most of the milking and to help with the feeding and other farm work. Appellants claim that this was an improper appeal to sympathy. We think it was of no real consequence because Sanders himself earlier had testified, without objection, to the same thing.

The final contention is that the damages are excessive. Sanders sustained a broken leg near and involving the knee. There was medical testimony that he would have some permanent limitation of motion. Lay testimony was to the effect that he could perform only half as much work as before. The fact that in the year following the one in which the accident occurred he earned as much money as in the year preceding the accident is not conclusive that his power to earn was not impaired, particularly in view of the evidence indicating that his employer was influenced by sympathy in continuing to pay Sanders the same wages. The medical and hospital bills amounted to approximately $900. Admittedly Sanders suffered substantial pain and discomfort for a period of weeks. The award is liberal but we cannot say it is so excessive as to have been the result of passion and prejudice. Cf. Williams v. Larkin, Ky., 268 S.W.2d 394.

The judgment is affirmed.


text:
    Clifford RAMSEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.

      Robert E. Vick, Greenville, for appellant.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

This is an appeal from an order overruling appellant’s motion made pursuant to RCr 11.42 to vacate a judgment whereby he was sentenced under the habitual criminal statute (KRS 431.190) to life imprisonment. Appellant did not seek an appeal from his conviction as an habitual criminal.

Appellant contends that the judgment of conviction is void because the indictment is defective in that it did not contain averments that the previous crimes were committed progressively after each conviction. See Ross v. Commonwealth, Ky., 384 S.W.2d 324. While conceding that the indictment is defective the Commonwealth relies on Davenport v. Commonwealth, Ky., 390 S.W.2d 662, to establish that this contention is unsound. In Davenport, supra, we rejected the claim that the indictment was faulty and stated:

“ * * * Moreover, no defect in an indictment short of one that completely vitiates it affects the validity of the proceeding.”

In Harrod v. Whaley, Ky., 239 S.W.2d 480, it was argued that the indictment under which the accused was convicted as an habitual criminal was defective for the same reason urged in the instant case. In disposing of this argument we said:

“ * * * they were only irregularities or errors which at most rendered the judgment erroneous and not void.”

In view of these cases we must hold that appellant’s contention is unavailing.

After filing his motion to vacate the judgment appellant requested a transcript of the original trial record. At the hearing of appellant’s motion it was stipulated “that there is no transcript of record, or no record of trial either furnished or available.” The court could not be expected to furnish that which was not available. No alternative method of obtaining a report of the trial proceedings was sought. His contention of error in this respect is without merit.

Although he was represented at his trial by appointed counsel appellant urges he was deprived of effective assistance of counsel because his counsel did not move to dismiss the indictment, did not examine the prosecuting witness nor argue the case to the jury. Effective assistance of counsel does not guarantee error-free representation nor does it deny to counsel freedom of discretion in determining the means of presenting his client’s case. Only when it is apparent from the record that the trial was a mockery of justice will the court vacate a judgment due to ineffective assistance of counsel. Bivens v. Commonwealth, Ky., 390 S.W.2d 149; Rice v. Davis, Ky., 366 S.W.2d 153. The evidence is wholly insufficient to justify a finding of ineffective assistance of counsel.

Appellant contends that his right under Section 11 of the Kentucky Constitution “to be heard by himself and counsel” was violated when the trial court refused to dismiss his attorney during the trial and to permit him to represent himself. Appellant asserts that he thought he was more capable of conducting his defense than was his attorney. This mere assertion would not justify a finding that the trial court abused its discretion.

Appellant further contends the trial court erred in treating his RCr 11.42 motion as controverted although no answer was filed. The Commonwealth did appear and oppose the motion at the hearing. RCr 11.42 provides that an answer may be filed to the motion to vacate judgment but it does not require it. A motion is not a pleading and no written response is required to entitle a party to oppose it. Underhill v. Thomas, Ky., 299 S.W.2d 633.

Appellant was capably represented at the hearing on his RCr 11.42 motion and his contentions have been vigorously presented on this appeal. However, appellant has failed to show that he is entitled to have his conviction set aside.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Ralph H. TINGLE, Appellant, v. James D. FOSTER, Adm’r of the Estate of Mary Hughes Foster Calvert, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.

      Fielden Woodward, Woodward, Hobson & Fulton, Louisville, for appellant.
    Edward A. Dodd, Louisville, William B. Gess, Gess, Mattingly, Saunier & Atchison, Lexington, for appellee.
   MONTGOMERY, Judge.

The cars of Ralph H. Tingle and Mary Hughes Foster Calvert, driven by each respectively, collided. In the resulting litigation Mary Hughes Foster Calvert, by counterclaim, recovered judgment of $5,825 against Tingle, who has appealed. Pending the appeal the appellee died and the matter has been revived in the name of her administrator.

The collision occurred on September, 10, 1960, on U. S. Highway 60 near Eastwood. It occurred, as one travels westward, at the point where the highway changes from two lanes to four lanes with a median strip. Just immediately east of the place of collision the highway curves to the right as one travels westward.

Appellant owned a garage-service station located on the north side of the highway about thirty feet from the point where the four lanes begin. Appellant’s car, headed west toward Louisville, was parked off the highway in front of his garage.

Appellant had started to take some customers home. He testified that preparatory to crossing the highway he looked in both directions and saw no car approaching from the east or the west. He said that he could see to the east toward Shelbyville for a distance of approximately three hundred feet. He then proceeded to drive out onto the highway in such manner that he could cross over and drive in the eastbound traffic lane toward Shelbyville. Appellee testified that she was driving westwardly some 55 miles per hour and that as she reached the Eastwood cutoff appellant suddenly, without stopping, pulled onto the highway immediately in front of her car, thereby causing the accident. The evidence is conflicting on the point whether appellant stopped before pulling onto the highway.

Appellant urges that the trial court erred in denying admission of testimony concerning the manner of appellee’s driving and of testimony concerning the presence of certain bottles found in appellee’s car and also in instructing the jury on “ordinary care.”

Appellant sought to introduce the testimony of Gerald Cox and Edward Broadus who had observed the driving conduct of appellee for a distance of eight to ten miles until shortly before the accident. Avowals were made.

In substance Cox and Broadus testified that they were traveling together on U. S. Highway 60 from Lexington to Louisville on the day of the collision. They came in behind a 1960 white Ford convertible, which was later learned to be appellee’s car, about eight to ten miles east of the place of collision. Appellee’s car was swerving back and forth from the right side and shoulder of the road across the yellow line in the center of the highway, such as a car might do when driven by a person under the influence of alcohol. At that time she was driving fifty to sixty miles per hour. Her car passed the Cox car twice before the accident. She was continually gesturing toward the rear seat of her car as if she were talking to someone although no one was visible. Appellee’s car was observed by Cox for all of the eight or ten miles until it disappeared from view, rounding a curve about forty-five seconds before the collision. In Cox’s opinion ap-pellee’s car could not have disappeared around the curve so fast had it been proceeding at less than sixty miles per hour.

Broadus also testified to the swerving of appellee’s car from side to side and to the gesturing. He also said that she “tailgated” other cars and that on one occasion she barely missed colliding with another car. He said that he last saw the car about a mile from the place of the accident and that her car was picking up speed and was doing about eighty miles per hour then, about one minute before the accident occurred.

Two other witnesses testified to seeing appellee’s car as it came around the curve approaching appellant’s place of business from the east. Harold Sparrow testified that appellee’s car was coming fast and had the sound of a car going very fast. He turned his back and immediately heard the collision. Herbert Tingle, no relation to appellant, was seated in his car, headed east, in front of the station. He saw appellee’s car approaching at a speed, estimated by him, of seventy to seventy-five miles per hour. It was on the wrong side of the road when it came around the curve.

The testimony of Cox and Broadus as to speed and recklessness was offered to establish the manner of driving by appellee. The court, in excluding the testimony, relied on Stevens v. Potter, 209 Ky. 705, 273 S.W. 470, on the theory that the Cox and Broadus testimony was inadmissible because they did not observe appellee’s car all the way to the place of collision.

The rule has been stated in Huff v. Daniels, Ky., 335 S.W.2d 332, thus:

“The ordinary rule is that evidence as to the manner of a person’s driving at a point some distance from the place of an accident is not admissible. Gauze v. Horn, Ky., 253 S.W.2d 606. One exception is where the vehicle has remained under the continued observation of the witness to the point of the accident. Ewing-Von Allmen Dairy Co. v. Fowler’s Ex’r, 312 Ky. 547, 228 S.W.2d 449. Another exception is where the evidence is designed to show a pattern of reckless or wanton driving. Rowe v. Gibson, Ky., 309 S.W.2d 173; Nichols v. Commonwealth, 291 Ky. 165, 163 S.W.2d 480; Largent v. Commonwealth, 265 Ky. 598, 97 S.W.2d 538.”

See also Roy v. Lyons, Ky., 272 S.W.2d 50; Bohannon v. Buschmeyer, Ky., 291 S.W.2d 44.

The testimony of Cox and Broadus should have been admitted under the cases mentioned for two reasons: First, the ap-pellee’s car was under observation by Cox and Broadus until it disappeared around the curve and then it came under observation by Harold Sparrow and Herbert Tingle who heard or saw the collision; second, it was admissible to show a pattern of reckless or wanton driving.

Appellant also complains that it was error to exclude testimony concerning the presence of an opened pint of whisky with the seal broken, a broken bottle of whisky with the seal intact, an empty 7 UP bottle, and the appearance of appellee at the scene of the accident. Herbert Tingle testified that he found a pint of whisky with the seal broken and about half full on the seat of appellee’s car beside her. He saw an empty 7 UP bottle in her car. On the floor board by appellee’s left foot there was a broken fifth bottle of whisky with the seal intact. He said appellee was bent over and her hair was down. It is admitted that appellee was an alcoholic. She later admitted owning the liquor.

Relying on McCulloch’s Adm’r v. Abell’s Adm’r, 272 Ky. 756, 115 S.W.2d 386, the trial court excluded the proffered testimony because there was no other evidence that appellee had been drinking. There was evidence of a strong odor of alcohol about appellee and in the car, but the officers could not determine if the odor came from the breath of appellee or if she had been drinking. She was injured and was unconscious immediately after the collision.

In the McCulloch case the Court said:

“It not appearing that the driver of the McCulloch car had been drinking, evidence that there was a pint of liquor in the car should have been excluded.”

In that case there were occupants of the car other than the driver to whom the pint of liquor may have belonged. Here, there was no one else in appellee’s car.

Appellee’s contentions and the trial court’s ruling are to the effect that evidence of an alcoholic breath is necessary to show alcoholic indulgence. Admittedly, such is good proof, but it is not the only evidence that may be used to show intoxication, as was pointed out in Soard v. Rogers’ Adm’r, Ky., 332 S.W.2d 525. The evidence of a pattern of driving indicative of. alcoholic indulgence and her conduct immediately prior to the accident, together with the fact that she was an alcoholic and the sole occupant of the car, render the testimony concerning the bottles and her condition admissible.

Appellant contends that the trial court erred in refusing to define ordinary care as such care as an ordinarily prudent person “if sober” usually exercises. In the light of the conclusions reached here such an instruction is proper. B-Line Cab Co. v. Hampton, Ky., 247 S.W.2d 34; Meadows v. Bailey, Ky., 350 S.W.2d 630; Ruehl v. Houchin, Ky., 387 S.W.2d 597.

Judgment reversed for a new trial in conformity herewith.


text:
    Kenneth CLARK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.

      Kenneth Clark, pro se.
    Robert Matthews, Atty. Gen., Joseph Eckhert, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Kenneth Clark’s motion under RCr 11.42 to vacate the 1961 judgment under which he was sentenced to life imprisonment in the penitentiary as an habitual criminal was overruled by order of the trial court without a hearing. Clark has appealed from the order.

The record shows that Clark was arrested on warrants charging several offenses of dwelling-house breaking. Upon being taken before the county court for a preliminary hearing he waived hearing. A few days later he was indicted on the house breaking charges and on habitual criminal counts. Upon arraignment, at which time he was represented by appointed counsel, he pleaded not guilty. However, when the case was called for trial he pleaded guilty with advice of the appointed counsel.

Clark’s motion to vacate the judgment alleged as its main ground that he was deprived of his constitutional right to counsel because the court failed to appoint counsel to represent him at the preliminary hearing. The motion also asserted that Clark was entitled to have court-appointed counsel from the time of his arrest, and that he was entitled to be confronted by the witnesses against him at the preliminary hearing. (Of course there were no witnesses at such hearing because Clark waived the hearing.)

Under the following cited decisions of this Court Clark’s motion was on its face without merit and the trial court properly overruled it. Carson v. Commonwealth, Ky., 382 S.W.2d 85, cert. denied 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed.2d 825; Scamahorne v. Commonwealth, Ky., 394 S.W.2d 113; Commonwealth v. Watkins, Ky., 398 S.W.2d 698 (decided January 28, 1966).

The order is affirmed.


text:
    Sam FRALEY, Appellant, v. RUSTY COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.

      Scott Collins, Prestonsburg, for appellant.
    Fred G. Francis, Howard, Francis & Howard, Prestonsburg, J. W. Craft, Jr., Hazard, for appellees.
   CULLEN, Commissioner.

The Workmen’s Compensation Board entered an order awarding Sam Fraley, a coal miner, compensation for total permanent disability, of which the board found 80% was attributable to an injury in the course of employment and 20% was attributable to the arousing into disabling reality of a dormant, pre-existing, nondisabling condition of arthritis. The board ordered 80% of the award to be paid by the employer and 20% by the Special Fund. On appeal by the employer to the circuit court judgment was entered setting aside the order of the board and remanding the case to the board with directions to grant an award only for 40% permanent partial disability to be paid by the employer. Fraley has appealed from that judgment.

We are faced at the outset with motions by the appellees to dismiss the appeal on the ground that the notice of appeal was not filed in time.

The judgment was entered on April 20, 1965. On May 5 Fraley filed a notice of appeal and a waiver of notice of entry of the judgment. On May 27, for some unexplained reason, Fraley moved for leave of court to “withdraw” the notice of appeal, “without prejudice to refile if within time and if advisable on account of subsequent developments.” Simultaneously he filed a separate motion asking that he be allowed an additional 30 days, to and including July 4, “within which to take an appeal.” On June 1 the circuit court entered an order reciting that Fraley “is hereby granted permission to withdraw his notice of appeal, and the time within which to appeal is hereby extended to and including July 4, 1965.” Thereafter, on June 16, Fraley filed a new notice of appeal. It is the contention of the appellees that the purported extension of time granted by the circuit court was without authority and therefore the notice filed on June 16 was not timely.

Under CR 73.02 the basic time within which a notice of appeal may be filed is 30 days from the entry of the judgment. The circuit court may extend the time not exceeding 30 days “upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment.” (CR 6.02 specifically prohibits an extension of time on any other ground.) CR 73.02 further provides that before the appeal is docketed in the Court of Appeals it may be dismissed by stipulation of the parties or by order of the circuit court upon motion and notice by the appellant.

It is our opinion that the order purporting to extend the time for taking appeal was invalid because on the face of the record the sole ground on which such an order may be granted did not exist. However, we think that in the circumstances of this case the order cannot be considered severable and was not intended to be severable, and that when the part of the order extending the time falls the balance of the order, granting permission to withdraw the original notice of appeal, also falls. It must be remembered that Fraley could not of his own initiative dismiss the appeal (the “withdrawal” of the notice of appeal must be considered the same as a dismissal of the appeal); it was necessary that he obtain either a stipulation or a court order. We think a fair construction of his motions is that he wanted his appeal dismissed only if he could be granted the desired extension of time. The fact that the permission to dismiss and the extension were granted in the same order indicates that the circuit court intended the one to be conditioned on the other.

We conclude that the entire order of July 1 was invalid; thus there was left in force the timely notice of appeal of May 5. Accordingly, the motions to dismiss the appeal are overruled. This renders moot certain motions made by the appellant.

We shall now consider the merits of the appeal.

This being a “subsequent injury” kind of case, the Workmen’s Compensation Board chose under KRS 342.121 to refer the case to a disinterested physician. He reported that Fraley had approximately 45 to 50% “partial permanent disability to the body as a whole”; that 40% of that disability was attributable to the recent injury in his employment ; and that 5 to 10% was attributable to preexisting dormant, nondisabling diseased condition of arthritis brought into disabling reality by the injury. No objections or exceptions to the report were filed. However the Board concluded that the report was controlling only as to “the medical question of apportionment,” and that Fra-ley’s occupational disability as shown by the other evidence in the case was 100%, appor-tionable in the same ratio as the bodily disability was apportioned in the doctor’s report.

The circuit court set aside the award of compensation for 80% of total permanent disability against the employer on the sole ground that the report of the doctor, not having been objected to, was conclusive and binding on the Board under the provisions of KRS 342.121(4). Under Kilgore v. Goose Creek Coal Company, Ky., 392 S.W.2d 78, this ground was not valid. As said in that case, 392 S.W.2d at 80:

“ * * * Whatever may be the degree of physical impairment established by the medical testimony, the board must make its own estimate, from the evidence as a whole, of whether and to what degree that impairment actually disables the claimant from performing the duties of his occupation. Percentage of physical limitation is a medical question; percentage of disability is not.”

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

The judgment is reversed with directions to enter judgment affirming the order of the Workmen’s Compensation Board.

MONTGOMERY, J., dissenting on the ground that the notice of appeal was not timely.


author: DAVIS, Commissioner.

text:
    DEPARTMENT OF REVENUE, Commonwealth of Kentucky, Appellant, v. Samuel C. DERRINGER, d/b/a Midtown Body Shop, et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.

      Robert Matthews, Atty. Gen., William S. Riley, Asst. Atty. Gen., Norris A. Harmon, Dept, of Revenue, Frankfort, for appellant.
    David C. Pottinger, Louisville, William Walden, Asst. County Atty., E. P. Sawyer, Jefferson County Atty., for appellees.
   DAVIS, Commissioner.

The appeal in this declaratory judgment action is brought here upon an agreed statement pursuant to CR 76. The question presented is whether the county court clerk of Jefferson County is authorized to effect a change of registration of, and issue an automobile license for a motor vehicle sold to satisfy a lien claimed under KRS 376.275, in the absence of a bill of sale and registration receipt presented to the clerk by the seller as provided by KRS 186.190(2), (3). The circuit court judgment answered the question in the affirmative. Appellant contends (1) that KRS 186.190(2) and (3) require reversal and (2) that the procedures for sale prescribed by KRS 376.275 deny due process.

Appellee Derringer is engaged in the business of repairing, furnishing accessories and supplies for, and storing motor vehicles. On February 18, 1964, a 1963 Chevrolet, fully identified by appropriate numbers in the record, was legally received by appellee in the course of his business. The car remained in appellee’s possession for 335 days without demand by its owner for the car’s return. It is admitted that appellee had a valid claim for storing the car at the rate of $1.50 per day, plus a towing fee of $10.00. At the time the car came into appellee’s possession its registered owner was James O. Evans, Jr.; on July 3, 1964, while the car was in appellee’s possession, the registration for it was duly transferred from Evans to Gene Turner. Both Evans and Turner had addresses in Louisville, according to the registration information. No lien appeared of record against the car during the pertinent period covered by the stipulation of facts.

On December 28, 1964, the appellee sent registered letters to Evans and Turner, notifying them that a sale of the car would be had on January 18, 1965. These letters were receipted as delivered by the postal authorities. Appellee caused an advertisement to be published in three issues of the paper with widest circulation in Jefferson County. The advertisement furnished the description of the car, along with the time, date and place of sale. Pursuant to the advertisement, a sale of the car was had, and appellee became the purchaser.

After the sale the appellee requested the county clerk to change the registration to his name and issue a current license in his name. This request was refused and the present litigation ensued. The trial court entered judgment declaring appellee Derringer entitled to the requested registration and license for the car, upon his presentation to the county clerk of a bill of sale in the form prescribed by the Kentucky Department of Revenue—OR, upon his presentation to the clerk of an affidavit, executed by appellee, containing the information required by KRS 186.200. The trial court’s judgment provided that either of the just named documents should contain a statement of facts sufficient to reflect appellee’s status as a lien holder pursuant to KRS 376.275. In addition to the bill of sale (or affidavit in lieu of it), the trial court directed that ap-pellee should present to the county clerk the original, or a duplicate, of the current registration receipt for the car. We sustained appellant’s motion for appeal due to the important public question presented.

In Willis v. LaFayette-Phoenix Garage Co., Inc., 202 Ky. 554, 260 S.W. 364, this court held that now section KRS 376.270 afforded a lien for towing and storage of a motor vehicle (under the circumstances enunciated in the statute), but that now KRS 376.280 did not authorize a sale of the vehicle by the garageman to enforce that lien. The decision in Willis was followed in Mastin v. Hisle, Ky., 343 S.W.2d 592 (1961).

The 1962 General Assembly enacted KRS 376.275. The trial judge, in a learned and well-reasoned opinion, characterized the 1962 enactment of KRS 376.275 as “remedial” legislation—that is, legislation designed to remedy the failure to provide a private sale for enforcement of the statutory lien to secure towing and storage charges. In Nall v. Commonwealth, 299 Ky. 792, 187 S.W.2d 443, this court followed the prevailing rule of statutory construction for remedial legislation and used this language in so doing:

“We are further constrained to this view in light of the well-adopted principle and rule, not only of this court, but of almost universal ruling, that stat» utory enactment should be liberally construed in respect of the purpose for which it was enacted, and, where there is a doubt as to the construction, the statute should be construed always in favor of the remedy.” Id., 187 S.W.2d 445. See also Kentucky Mountain Coal Co. v. Witt, Ky., 358 S.W.2d 517.

We think it may not be questioned that the General Assembly enacted KRS 376.275 in light of the decisions of this court holding that statutes prior to 1962 did not afford nonjudicial sale remedy to enforce a ga~ rageman’s lien for towing and storage. It is apparent, therefore, that the legislative intent was to alter that situation. Otherwise no useful purpose was served by enactment of KRS 376.275, since the lien for towing and storage had been recognized alieady.

KRS 186.190(2) and (3), requiring presentation to the county clerk of a bill of sale and registration receipt, had long been extant when KRS 376.275 was enacted. If the literal requirements of those sections preclude a consummation of a non-judicial sale to enforce the lien for towing and storage, enactment of KRS 376.275 was a futile thing. We are of the view that the legislative intent expressed in KRS 376.275 requires the conclusion that a non-judicial sale shall be permitted for enforcement of the lien for towing and storage—and that the sale may be completed by transfer of registration and license as permitted in the lower court’s judgment. Certainly a sale without procedure for transfer of “papers” on the car would not be commercially reasonable or effective.

The second attack upon KRS 376.-275 is based upon the principle that the procedures for the sale are not adequate to afford due process to the car owner. The only notice of the sale which is required by KRS 376.275 is that the owner be notified of the time and place of the sale by registered letter. It is observed that sale procedures for enforcement of similar liens are contained in KRS 376.280. The conditions precedent to such a sale are more stringent in the latter section than in KRS 376.275. However, in the case at bar the requirements as contained in KRS 376.280 were fulfilled. The appellant contends that the literal interpretation of KRS 376.275 would enable the lien holder to conduct a sale upon one day’s notice, and that this would be so unreasonable as to constitute a violation of due process. We do not have that case at bar. It is sufficient to note that the statute permits a sale upon notice by registered mail to the owner. We think it is implicit in the statute that the sale must be commercially reasonable — and we hold that the sale here, which comported with the requirements of KRS 376.280, was commercially reasonable. We express no view as to whether anything short of compliance with KRS 376.280 would be regarded as commercially reasonable. Cf., Eagle v. City of Corbin, 275 Ky. 808, 122 S.W.2d 798.

The judgment is affirmed.


text:
    Ulysses Grant QUEENER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.
    Guy C. Shearer, Louisville, for appellant.
    Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

The judgment herein, sentencing the appellant to confinement in the penitentiary for two terms of two years each, to run consecutively, was entered June 16, 1965. On June 23 appellant’s motion for a new trial was overruled. Notice of appeal was not filed until July 6.

Under RCr 12.54 the notice of appeal was filed too late and the appeal must be dismissed.

Appellant undertook on July 6 to file a motion for a rehearing of his motion for a new trial. Such a motion is not recognized by the Rules of Criminal Procedure and its filing could not stay or terminate the running of the time for filing notice of appeal. Cf. Taylor v. Warman, Ky., 331 S.W.2d 899.

The appeal is dismissed.


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    Gary HERNDON, Appellant, v. John W. WINGO, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.
    Gary Herndon, pro se.
    Robert Matthews, Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Gary Herndon, presently confined at Eddyville State Penitentiary, sought release through the writ of habeas corpus. The lower court denied the relief and Hern-don has appealed.

The gist of appellant’s claim for relief is summarized: On February 13, 1963, he was convicted in the Calloway Circuit Court upon his guilty plea to an indictment under KRS 433.220; his punishment was fixed at imprisonment for five years. Thereupon, says appellant, he was granted probation and simultaneously “released to the jurisdiction of the State of Tennessee” for the purpose of standing trial upon a criminal charge pending there. Appellant was convicted in Tennessee and sentenced to a term in jail for eleven months, plus. He escaped from jail in Tennessee, but was recaptured while riding in a stolen car. He was duly convicted on the stolen car charge by Tennessee authority, and sentenced to imprisonment for three years. Appellant was released by Tennessee authorities (just when and how is not shown); thereupon he returned to Calloway County, where he was arrested and committed to the penitentiary, upon the revocation of the probation granted to him by the Calloway Circuit Court. It is appellant’s contention that Kentucky lost jurisdiction of him when it voluntarily surrendered him to the Tennessee authorities without complying with KRS 440.330. He places reliance upon our decisions in Jones v. Rayborn, Ky., 346 S.W.2d 743; Davis v. Harris, Ky., 355 S.W.2d 147; and Thomas v. Schumaker, Ky., 360 S.W.2d 215.

The trial judge denied the petition for habeas corpus and expressed two bases for the ruling: (1) that Herndon had not exhausted his remedies under RCr 11.42, nor, had he shown that such remedies were inadequate, and (2) that the trial judge had conferred with the presiding judge of the Calloway Circuit Court and learned that the records of the Calloway Circuit Court * * * do not show that defendant was released to the authorities of Tennessee but was placed on probation by the Callo-way Circuit Court * *

We have said that habeas corpus will not lie in those instances in which an adequate remedy is afforded by RCr 11.42. Ayers v. Davis, Ky., 377 S.W.2d 154. However, the present proceeding is not within the purview of that rule. In this instance the appellant is not claiming a right to be released “on the ground that the sentence is subject to collateral attack;” he makes no assault upon the validity of the original conviction — his complaint is that Kentucky effectively forfeited its jurisdiction of him by failure to comply with KRS 440.330 in releasing him to Tennessee.

Upon the record before us we are unable to determine whether appellant’s contention has merit. It may be that the procedures followed in the Calloway Circuit Court bring the case within the rule followed in Baker v. Commonwealth, Ky., 378 S.W.2d 616. See also Turner v. Thomas, Ky., 383 S.W.2d 379. We think that the ex parte inquiry as to the contents of the Calloway Circuit Court records falls short of affording appellant a reasonable opportunity to present his case. See Bingham v. Stivers, Ky., 396 S.W.2d 800; Lawson v. Commonwealth, Ky., 386 S.W.2d 734.

The situation at bar is distinguishable from that presented in Lyons v. Thomas, Ky., 378 S.W.2d 798.

The judgment is reversed with directions to afford appellant a hearing and a reasonable opportunity with the assistance of counsel to produce evidence in support of the allegations charging a departure from the procedures prescribed in KRS 440.330.


text:
    Idell McCall MARSHALL, Appellant, v. Mary Jane MARSHALL et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.

      Joe G. Leibson, Charles J. Lunderman, Jr., Louisville, for appellant.
    J. L. Richardson, Jr., A. J. Deindoerfer, Louisville, for Mary Jane Marshall.
    Lloyd Cardwell, Stites, Peabody & Helm, Louisville, for American Tobacco Co.
   DAVIS, Commissioner.

This appeal presents the question whether James Edward Marshall effected a change in beneficiary in a group life insurance policy. Originally the named beneficiary was the appellee, Mary Jane Marshall, mother of James Edward Marshall. The appellant, Idell McCall Marshall, is the surviving widow of James Edward Marshall, and contends that her now deceased husband had effectively named her as the policy’s beneficiary. The trial court rendered summary judgment holding that the appellee mother was the beneficiary, hence this appeal by the widow.

The decedent, James Edward Marshall, to whom we shall refer as “James,” started work as a porter for American Tobacco Company (hereinafter American), in 1954; he was then unmarried. Ninety days later James became eligible to participate in a group life insurance plan afforded by American to its employees. He took advantage of that opportunity, and obtained the certificate for $6,000 in life insurance which is the subject of this litigation. The certificate of insurance listed appellee, mother of James,- as the named beneficiary, pursuant to direction of James.

The insurance certificate provided, in part:

“The Employee may change his Beneficiary at any time upon written request accompanied by this certificate for endorsement.”

There are spaces for “Register of Change of Beneficiary” just below the section of the certificate containing the just quoted language. The caveat at the head of the spaces recites: “Note. — Entries in this register are to be made only by the Employer. No other entries shall be recognized.” Then follow the spaces,, providing writing areas for “Date Effective,” “Beneficiary” and “Endorsed By.” Nothing was written in any of the spaces in the certificate before us.

In August, 1955, James married the appellant. Nothing was done at that time with reference to the insurance certificate. In January, 1956, James entered the United States military service; he remained attached to that duty until November 29, 1957. Shortly after his release from service, on December 9, 1957, James initiated action looking toward resumption of his employment with American. He was not re-employed at that time since he needed an operation to correct a hernia. The operation was performed and James was reemployed by American on April 21, 1958.

When James sought re-employment on December 9, 1957, he signed a document which is in pertinent part as follows:

FULL NAME: Marshall, James Edward, SOCIAL SECURITY NO.: [ XXX-XX-XXXX ] DATE OF BIRTH: 1/11/34, SEX: M, MARITAL STATUS: Married NAME OF HUSBAND OR WIFE: Idell M., HAVE YOU PREVIOUSLY BEEN EMPLOYED BY THIS OR AFFILIATED COMPANY: Yes, NAME OF COMPANY : Ret. From Military L.A., LOCATION: This Branch, FROM: 1/6/56, UNTIL: 12/9/57 ADDRESS OF EMPLOYEE: 1920 W. Madison, Louisville 11, Ky., ARE YOU A VETERAN: Yes, DATE OF RELEASE: 11/29/57 .INFORMATION FOR GROUP LIFE INSURANCE: NAMES AND ADDRESSES OF BENEFICIARIES: Marshall, Idell McCall, AGE: 19, RELATIONSHIP TO YOU: Wife, ADDRESS: 1920 W. Madison St., Louisville 11, Ky., DATE: 12/9/57, EMPLOYEE’S SIGNATURE: /s/ James E. Marshall

An identical “Information Sheet” was signed by James when he renewed application for employment on April 21, 1958. None of the legend appearing on the information sheets was written by James except his signatures. It is undisputed, however, that the information reflected in these sheets was furnished by James to a personnel officer of American.

Appellant and appellee presented conflicting testimony through depositions and affidavits. For appellant, some evidence was offered reflecting that James held her in high esteem and had said that everything he had was made over to her. For appel-lee there was a showing that James was not pleased with his wife, and that he had purposely failed to substitute her for his mother as the beneficiary in the policy at bar.

The appellant presents three assignments of error against the summary judgment for appellee: (1) the original certificate of insurance was terminated by reason of James’ absence in the service; (2) even if it is adjudged that the original certificate was effective, James substantially complied with the requirements so as to change the beneficiary; (3) if each of these propositions is decided adversely to appellant, then American is liable to appellant for the negligent failure of its employees to take the necessary steps to change the beneficiary as indicated by James on the information sheets.

The troublesome problems stemming from imperfect efforts to change beneficiaries have been considered often by the courts. It is generally recognized that compliance with the policy provisions for making beneficiary changes is a prerequisite to an effective change. 19 A.L.R.2d 10; Metropolitan Life Ins. Co. v. Brown, 222 Ky. 211, 300 S.W. 599; Parks’ Ex’rs v. Parks, 288 Ky. 435, 156 S.W.2d 480. This jurisdiction has recognized the validity of certain efforts to change beneficiaries, even though the policy provisions were not literally followed. These seeming exceptions to the usual rule have been characterized as instances in which the insured has “substantially complied” with the policy — and has done “all” or “about all” he could do to make the beneficiary change effective. Examples of the substantial compliance cases are Parks’ Ex’rs v. Parks, 288 Ky. 435, 156 S.W.2d 480 and Pikeville Nat. Bk. & Tr. Co. v. Shirley, 281 Ky. 158, 135 S.W.2d 431.

In the present case we think a somewhat different, though related, problem is presented. The first certificate was issued to James in 1954, and the beneficiary named in it was his mother, the appellee here. No other certificate was ever issued, although it seems plain that there could have been no insurance payable to anyone by- reason of that original certificate had the death of James occurred more than 365 days after his entry into the military service. A personnel employee of American, whose duties included the handling of the group insurance matters of American’s employees, testified that the original certificate remained in effect for 365 days after James entered the military service, but no longer. Thus there was a gap in insurance coverage for James until he ultimately was restored to the American payroll on April 21, 1958. The information sheet executed by James on April 21, 1958, was incident to his resuming his employment with American. We think it is unnecessary to decide whether James was then re-employed or reinstated. It seems clear that when James came back to work and furnished to American the information relating to the beneficiary for his insurance, he supposed and believed that he had done all that was required of him in order to make his wife the beneficiary.

In considering this phase of the case it must be recalled that American was paying all premiums on the insurance, and American was the only entity with which James dealt respecting the insurance. He had no dealings with the insurance company. He knew that American had “taken care” of making his mother the beneficiary when he first obtained insurance, and he had a right to assume that American would follow his instructions when he resumed employment after the military service. It seems obvious that the appellant wife would have been the legal beneficiary had there never been another certificate, despite the fact that no certificate so designating her was issued. Since the original certificate, naming the appellee mother as beneficiary, was ineffective after James had been out of American’s employ for 365 days, we must regard the written instructions of James as equivalent to his direction to American to cause the appellant wife to be named beneficiary for his new insurance coverage.

We realize that it might be reasoned that James should have demanded a new certificate. It is not unreasonable, however, that James should have understood that there would be at least some delay in the delivery of the certificate — and that meanwhile his insurance directions had been carried out. The well known human proclivity for procrastination may account for the failure of James to seek another certificate from American. One thing does seem clear — if James and American had understood that the information sheet was for the purpose of designating appellant as beneficiary in a to be issued certificate, certainly she could have recovered in the event James had died before the new certificate arrived. A tortured path of deduction would be required to conclude that the failure to demand a new certificate had the effect of restoring validity to the already ineffective first certificate. Especially is this true in light of the twice written directions of James to the contrary.

In Johnson v. Johnson, 139 F.2d 930, 151 A.L.R. 268, the U. S. Court of Appeals, Fifth Circuit, held that change of beneficiary in a group policy had not been legally accomplished despite the written request of the insured. That opinion appears to be based upon the fact that the policy provided that no change in beneficiary should be effective until the insurance company had acknowledged receipt of the beneficiary change request. Although the insured had delivered written request for change of beneficiary to his employer, it was held that this merely constituted the employer as the insured’s agent to take the necessary steps with the insurance company — and since the insured died before the steps were taken the agency was revoked. We are not impressed by that reasoning, nor do we consider that the results comport with the “substantial compliance” doctrine followed in Kentucky. At any rate, the specific provisions of the certificate applicable to the group insurance at bar provided that American should make the change of beneficiary — not the insurance company.

In Johnston v. Kearns (1930) 107 Cal.App. 557, 290 P. 640, it was held that a change of beneficiary in a group policy was effective when made in writing by the insured to his employer, even though the insured was then on his death bed and died before the written request was transmitted by his employer to the insurance company. We regard that ruling as consonant with reason and precedent.

In summary, we conclude that James had done “all” or “about all” that he could when he advised American in writing that appellant was the desired beneficiary for his group insurance. With this view of the case, it is unnecessary to consider the other two points submitted by appellant.

The judgment is reversed with directions to enter a new judgment awarding the insurance proceeds to the appellant.

MONTGOMERY, J., dissenting.