text:
    SOUTHWESTERN INVESTMENT COMPANY, Appellant, v. Joe Willis GILBREATH et al., Appellees.
    No. 7365.
    Court of Civil Appeals of Texas. Amarillo.
    May 18, 1964.

      Clayton, Martin & Harris, Amarillo, for appellant.
    Bruce L. Parker, Pampa, for appellees.
   CHAPMAN, Justice.

The subject matter of this suit involves a contest tried to the court by the plaintiff-appellant, Southwestern Investment Company, and defendant-appellee, Calvin Follis for priority of liens on a 1961 four-door Falcon automobile. Appellant’s lien was a chattel mortgage lien executed by Joe Gilbreath to Southwestern Investment Company to secure a note in the amount of $1,279.80 executed on November 23, 1962, and made payable to Southwestern Investment Company in consideration of funds advanced by the company to Gilbreath as purchase money for the automobile. Appel-lees’ claim was to an artisan’s lien for repairs on the automobile. The repairs were made during the period between November 2, 1962, and November 16, 1962, a week or more before Gilbreath ever acquired title to the machine.

At the request of appellant the court made findings of fact and conclusions of law. In such fact findings the court found that Joe Willis Gilbreath came to Follis’ place of business on November 2, 1962, and requested him to repair a Falcon automobile and agreed to pay Follis for his labor and materials used in repairing it. There is no finding whatsoever that the owner, Keith Pate, ever requested Follis to do any work on the Falcon or authorized Gilbreath to do so. There are no objections shown in the record to the court’s findings and there is no probative evidence that Pate ever authorized the repairs or acquiesced in them during the time title to the Falcon was in his name.

The work on the automobile giving rise to the claim of an artisan’s lien not having been authorized by the owner was therefore not a valid lien. Bledsoe v. Colbert, Tex.Civ.App., 120 S.W.2d 909 (N.W.H.) ; Kelly v. Heimer, Tex.Civ.App., 312 S.W.2d 430 (N.R.E.); Bethlehem Supply Corporation v. Wotola Royalty Corporation, 140 Tex. 9, 165 S.W.2d 443.

In Bledsoe v. Colbert just cited the court held:

“Whether the lien be created by statute, or directly by the constitution, ownership of the property and a contract binding upon the owner are indispensable.”

In Kelly v. Heimer, supra, the court held that where the contract for labor, materials or construction is not made with the owner or his duly authorized agent, a lien may not be fixed on his property.

In Bethlehem Supply Corporation v. Wotola Royalty Corporation, supra, the Supreme Court held that a materialman’s lien extends on' - to the property of the person under whose auspices the labor or material is furnished.

The trial court found in its conclusions in the instant case that Southwestern Investment Company was put on notice that Calvin Follis had an artisan’s lien. If, from the record he did not have a lien, the company could not, a fortiori, have been put on notice that he had a lien.

It may be that upon another trial appellee might be able to show an artisan’s lien was authorized by the person having title to the automobile at the time the work and materials were furnished and that the loan company had notice thereof. Therefore, the case is reversed and remanded for a new trial.


source: Caselaw Access Project

author: DENTON, Chief Justice.

license: Public Domain

text:
    John B. FOSTER, Appellant, v. Grady FAULKNER, Appellee.
    No. 7373.
    Court of Civil Appeals of Texas. Amarillo.
    June 1, 1964.
    Cleo G. Clayton, Jr., Amarillo, for appellant.
    Kolander, Moser & Templeton, Amarillo, for appellee.
   DENTON, Chief Justice.

Suit was brought by appellee, Grady Faulkner, against John B. Foster for the recovery of money alleged to be due and owing Faulkner under an employment contract. Foster was the owner of the finance company which employed appellee. For managing and operating the business appel-lee allegedly was to receive a stated monthly salary plus fifty per cent of the net profits of the business. In answer to the single special issue submitted, the jury found appellant owed appellee the sum of $3,000.00. The trial court entered judgment in favor of appellee for this amount.

Appellant’s points of error contend there was no evidence and insufficient evidence to support the jury verdict, and that the jury verdict was arbitrary. In considering the no-evidence question we are to consider only that evidence most favorable to the issue and disregard entirely that which is opposed to it or contradictory in its nature. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; In Re King’s Estate, 150 Tex. 662, 224 S.W.2d 660.

Appellee testified the net profits of the business in 1961 amounted to approximately $7,000.00, and that after taxes he received $2,915.48 as his share of the net profits. He further testified that in March of 1962 he loaned this sum to appellant. This transaction was evidenced by appellee’s personal check and a promissory note executed by appellant in favor of appellee. The cancelled check was identified and introduced into evidence, but the note had been misplaced and was not offered. Appellee’s cause of action was not based on the note as such, but was pleaded as a loan due and owing to appellee. Appellee further offered evidence to the effect the company’s net profits for the year 1962 up to the month of August, when he was discharged, was $4,830.97. Other evidence relating to the various transactions between the parties was offered, but it would serve no purpose to relate it here. We conclude there was evidence to support the jury verdict.

In considering the fact question raised by the insufficient evidence point we have reviewed all the evidence presented. Appellant contended, and so testified, the company did not actually realize a net profit during the period of appellee’s employment. He based this conclusion on an alleged cash shortage of $1,112.75; some $350.00 advanced to appellee; and a large amount of uncollected accounts receivable. Appellant admitted the loan was made to him by appellee in March, 1962, and that it had not been repaid. A great deal of evidence was offered setting out involved transactions of floor planning automobiles, repossessions, and uncollected accounts receivable. As appellant interpreted these transactions, they were offered to show a net loss for the period under consideration. The jury resolved the evidence in favor of appellee. We conclude there was sufficient evidence to support the jury verdict.

Appellant next contends the jury verdict is arbitrary in that there is no basis in the record which would support the figure set by the jury. Unquestionably, a jury does not have the authority to arbitrarily set an amount not sustained by the evidence. However, in the instant case the testimony was in conflict as to the interpretation placed on the company’s records and auditing procedure. A cash shortage had been known to exist since the bookkeeper originally set up the company’s accounting system. However, no one, including the bookkeeper, seemed to know the amount of such shortage. The maze of confusing and conflicting figures placed into evidence made it most difficult for the jury to arrive at a definite figure. Because of the manner in which the business was operated and the varied interpretations placed on the records, we cannot say the jury acted arbitrarily in setting the amount in their verdict.

Having considered all points of error raised by the appellant we conclude they present no reversible error. The judgment of the trial court is affirmed.

Affirmed.


author: CHAPMAN, Justice.

text:
    Ralph LOWE, Appellant v. Julio VALDEZ, Appellee.
    No. 7357.
    Court of Civil Appeals of Texas. Amarillo.
    May 18, 1964.
    Benjamin Kucera, Lubbock, for appellant.
    Splawn & Maner, Lubbock, for appellee.
   CHAPMAN, Justice.

This is a suit filed by plaintiff-appellee, Julio Valdez, against appellant, Ralph Lowe, for rents due under and by virtue of a written lease agreement on real property in the City of Post, Texas.

The judgment is based upon a jury verdict finding that there was not a mutual mistake of the parties in the dimension of the lot involved in the rental contract.

Appellant has brought forward eight points of error alleged as made by the court in the conduct of the trial. Not a single point is briefed or argued and no place in the record is cited showing the errors alleged in the points. He has just simply brought forward eight naked points of error.

Having failed to brief the points, they must be considered by us as having been waived. Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358; Rule 418, Vernon’s Ann.Tex.Rules of Civil Procedure; Piedmont Fire Ins. Co. v. Ladin, Tex.Civ.App., 174 S.W.2d 991 (refused WM) ; San Antonio Joint Stock Land Bank v. Malcher, Tex.Civ.App., 164 S.W.2d 197 (refused WM); Doherty v. San Augustine Independent School Dist., Tex.Civ.App., 178 S.W.2d 866 (refused WM).

Accordingly the judgment of the trial court is in all things affirmed.


author: PALMORE, Judge.

text:
    Marvin MUSIC, Appellant, v. Sheard (S. W.) WADDLE, Appellee.
    Court of Appeals of Kentucky.
    May 8, 1964.
    Harris S. Howard, Howard, Francis & Howard, and W. W. Burchett, Prestons-burg, for appellant.
    Burnis Martin, Paul E. Hayes, and Conley & Hayes, Prestonsburg, for appellee.
   PALMORE, Judge.

The appellee, Sheard Waddle, while crossing a street on foot, was struck and severely injured by an automobile driven by Marvin Music. His suit for damages resulted in a verdict (signed by nine jurors) and judgment in the amount of $13,793.09, from which Music appeals.

The trial court overruled appellant’s motions for a directed verdict at the close of appellee’s evidence and at the conclusion of all the evidence and likewise overruled his motion for a judgment n. o. v. He contends he was entitled to a peremptory because the proof was insufficient to support a finding of negligence on his part and because under any reasonable view of the evidence Waddle was contributorily negligent as a matter of law. Having concluded that the latter proposition is correct, we need not pass judgment on the first

The accident occurred on North Lake Drive (U. S. Highway 23) in the City of Prestonsburg at about 2:30 one Saturday afternoon in April. There was no evidence of unusual or inclement weather conditions. Music was driving northward and Waddle was crossing from east to west at a point some 80 feet north of Patton Street, which intersects North Lake Drive. Coming from the south, North Lake Drive is a two-lane street about 20 feet wide until it reaches Patton Street, where it broadens to 40 feet, allowing for parking in the two outer lanes. Waddle’s intended destination was a grocery store located on the west side of this 40-foot street 80 feet north of Patton Street, the nearest intersection.

On the afternoon in question Jack Hurd, Waddle’s stepson, drove him in Hurd’s automobile to a point on the east side of the street across from the grocery store and parked the automobile alongside the curb, headed north. Waddle got out on the side toward the curb, went to the rear or south end of the car, and stood on or next to the curb for a brief interval watching traffic until he thought it was safe for him to cross. There were no vehicles parked behind the Hurd automobile, so he had a clear view southward and did in fact see the approaching car driven by Music. He testified that as the last northbound vehicle ahead of Music passed where he was standing he looked to the left and saw Music at the intersection a block south of Patton Street. The distance between them being well over 600 feet, Waddle felt that he had plenty of time and, without again looking southward, started across the street. After taking five or six steps and just short of reaching the center line of the street he was struck by the Music car, which left •skid marks 4CK 6" long before coming to a •stop 29' 6" beyond the approximate point ■of impact.

Expert testimony deduced from the skid marks and corroborated by other evidence established conclusively that Music was traveling at a speed of something less than 30 m. p. h. when he applied his brakes and that he was in his proper traffic lane 2' 3" to the right of the center line of the street.

At the time of the accident Waddle was 78 years of age but did not have any impairment of vision or other physical infirmity except for the fact that he could not hear well. He was accustomed to walking a good deal. In attempting to cross the street he was moving as rapidly as possible for a man of his age and condition. The manner in which he proceeded to cross the street immediately after an automobile occupied by the witness Angeline George passed by his position was described at various points in his testimony as follows:

On direct examination:
Q-66 “Let me ask you this question: Did you say that you looked up there and saw this car coming?”
A- “Yes, sir.”
Q-67 “Is that the car that hit you ?”
A- “Yes, sir, that was the car that hit me. Not the first one. The first one was about IS or 20 feet away and when it passed me I ran across the highway.”
Q-68 “We are talking about this car, though, that you saw coming up there by George’s hardware at the next block that you said you saw coming with some man looking over toward the river.”
A- “Yes, sir.”
Q-69 “Now, is that the way you looked just before you started across the highway ?”
A- “That is the way I looked. I seed I had plenty of time, that way, this one was coming up, and then I looked up and this woman was just ready to pass and then I looked and I seed Mr. Music coming. * * * ”
j{; %
Q-76 “Now, go ahead and tell about where you started across the street there.”
A- “And then this woman, she was about 15 or 20 feet of making it down there. I had looked down the way and then I turned and looked up the way and I saw him, and then when I saw him, this woman, about the time I got through viewing him, she had passed by me and I started across. I went across pretty fast.”
Under cross-examination:
Q-159 “When you looked up the highway and you saw Marvin Music’s •car, or what later turned out to be Marvin Music’s car, up there about the ■George Hardware, did one car pass .after that?”
A- “Well, it was just about the same time. That one was there and I knowed it, and I looked up that way .and saw him.”
Q-160 “Now, can you tell the jury, ■whether or not, there was a car passed after you looked up there and saw ■him?”
A- “No, there wasn’t none passed.”
******
Q-166 “Did you start walking across or did you start running across ?”
A- “I went walking fast.”
Q-167 “How?”
A- “About as fast as a man my age ■could walk, you know.”
if: ‡ * :Jc
Q-169 “Did you ever see Marvin Music’s car any more from the time you saw it up at the George Hardware until it hit you?”
A- “I don’t remember. That is •when I took my eye off of him.”
Q-170 “You looked up there and :saw it coming up there at George’s Hardware store and then you never looked back any more ?”
A- “No, I don’t think so.”
Q-171 “And you never looked back any more until you started running across or walking across ?”
A- “I just looked down the highway to see where I was going and I started across in a trot or a walk. I was trying to make as much speed as I could and try to get over.”
Q-172 “Was it a trot or a fast walk?”
A- “Well, I wouldn’t know what to call it.”
Q-173 “I believe you testified about this once before, didn’t you ?”
A- “Yes, sir.”
Q-174 “I believe at that time you said you were running?”
A- “Well, I don’t guess I could run as far as running is concerned. I can walk pretty fast. There are men that could walk a lot faster than I could run.”
And in his pretrial discovery deposition:
Q-31 “Well, what just exactly happened then, Mr. Waddle, after you said that one car passed and what did you do then ?”
A- “Well, when that car passed that was a coming down — ”
Q-32 “Was that going towards Prestonsburg ?”
A- “Yeah it was. It come on a past and then I looked on and I seen it was a getting pretty close to me, and I looked on up there further about where Malcolm George’s Hardware was. I don’t know who sells there now or whether he sells or who it is, that sells hardware. Right there at the crossing I discovered this car and I thought to myself, ‘Well, he is a coming slow and when this other one gets by I will catch a chance and dart on across.’ And just as this car got by, I started across and he hit me before I got oyer there. There wasn’t nothing — there wasn’t nothing between me and him. There was nothing to keep him from seeing me and nothing to keep me from seeing him.”
Q-33 “And you say you saw a car down there about where Malcolm George used to have their hardware store ?”
A-. “I seen him a coming and he wasn’t I didn’t think a traveling too fast, but he must have been traveling faster than I judged him to be. It was about forty-five (45) or sixty (60) yards above me. I would guess it at being right about that.”
Q-34 “Well, were you walking or running when you started across the road, Mr. Waddle?”
A- “I was running. Well, you know, an old man like me can’t run too good anyhow but I was getting along as fast as I could.”
Q-35 “After you saw this car down at Adams & George’s Hardware, did you look back in that direction any more?”
A- “No, sir, never looked back no more. I just turned my head and looked down and seen one a coming up and I thought I had plenty of time and started across.”
Q-36 “About how many steps did you take out there, Mr. Waddle, before you had the impact with the car ?”
A- “Well, I wouldn’t know. I didn’t take very many though.”
Q-37 “Did you start running from the curb ?”
A- “Yes, sir, I just jumped off of the curb and started running to rush across there.”

Angeline George, a passenger in the automobile that passed immediately before Waddle started his rush into the street, noticed him standing on the curb apparently looking toward the south. Music, however, did not become aware of his presence until he saw him “shoot across” in front of him, whereupon he (Music) instantly applied his brakes. Music testified that he was moving along in a line of traffic at a speed of about 25 m. p. h. Bertha Hack-worth, who was driving northward on North Lake Drive “right behind” Music, was' introduced as a rebuttal witness in Waddle’s behalf and, on cross-examination, confirmed Music’s estimate of his speed.

The nearest traffic light on North Lake Drive was four blocks south of Patton Street, and there were no traffic signs or marked crosswalks at any of the intersections.

Among the numerous automobile-pedestrian cases this court has decided over the past several decades there are some in which the pedestrian, having looked once before he leaped, was held entitled to a jury determination of whether his failure to look again was negligent or, if so, whether such negligence was a proximate cause of the accident. Cf. Wilder v. Cadle, 227 Ky. 486, 13 S.W.2d 497 (1929); Murphy v. Homans, 286 Ky. 191, 150 S.W.2d 14 (1941) ; Layne v. Cottle, 286 Ky. 221, 150 S.W.2d 684 (1941) ; and Ramsey v. Sharpley, 294 Ky. 286, 171 S.W.2d 427 (1943). Layne v. Cottle appears to have been an intersection case, whereas Wilder v. Cadle, Murphy v. Homans, and Ramsey v. Sharp-ley involved attempts by the pedestrian to cross between intersections and not within a marked crosswalk. It would be technically possible to draw a distinction between the latter three cases and this one on the ground that in none of them did the plaintiff admit having seen the approaching vehicle before attempting to cross. See, for example, the comment by Judge Thomas in Layne v. Cottle (at ISO S.W.2d 684, 686) suggesting that the pedestrian’s failure to continue a lookout is not negligent per se unless he has already observed the approaching vehicle, in which event it may or may not be, depending on the particular facts. However, it is our opinion that Wilder, Murphy and Ramsey are basically unsound in that under the facts of each of them the pedestrian should have been held contributorily negligent as a matter of law. Unquestionably the policy of the court in those cases was to emphasize subsection (d) of KRS 189.570(4). Conceding this to be a laudable purpose, yet it seems to us that subsection (d) of KRS 189.570(4) is no more than a statement of duties that would be incumbent on the motorist without it, and that these decisions, if strictly and logically followed, all but destroy the effect subsection (a) of the statute obviously was intended to have. To the extent, therefore, that they are in conflict with this opinion they are overruled.

It is the opinion of the court that Waddle was contributorily negligent as a matter of law and that his negligence was a proximate cause of the accident. The approaching car driven by Music was in plain view from the moment Waddle left the curb until he was struck down by it. Whether he misjudged its speed, its distance from him, or both, or was simply mistaken in testifying that he last saw it more or less simultaneously with the passage of the vehicle in which Mrs. George was riding, is immaterial. That a reasonable man would have taken another and closer look as he proceeded across the street is a proposition on which we find no room for difference of opinion. Waddle admitted he made no attempt to do so.

In arriving at our decision in this case we have considered a number of recent opinions which, despite various points of factual distinction, rather clearly evince a strong policy with respect to the enforcement of KRS 189.570(4) (a). See Brown v. Vanhook, 359 S.W.2d 612 (1962) ; Clark v. Smitson, 346 S.W.2d 780 (1961) ; Leslie-Four Coal Company v. Brock, Ky., 343 S.W.2d 820 (1961); Kelley v. Reece, 273 S.W.2d 369 (1954) ; and Travis v. Embry, Ky., 257 S.W.2d 64 (1953). The proper place for a pedestrian to cross a city street is at an intersection or in a marked crosswalk. If he chooses to cross at some other place, KRS 189.570(4) (a) charges him with the duty to yield. Unless this provision is to be reduced to something less than a statutory mandate, the necessity of keeping a reasonable lookout for his own safety cannot end at the curb, but must continue until he clears the street, because for him the statute has declared the street a danger area as a matter of law.

As the trial court was correct in declining to instruct on last clear chance, Music was entitled to a directed verdict.

The cause is reversed with directions that a judgment be entered dismissing the action.

      . 'Waddle's estimate was 45 to 60 yards, but according to a map introduced by stipulation it was 631 feet from the south line of the grocery property across the street from Waddle to the north line of the intersecting street through which Music was passing. Waddle testified that “I crossed right opposite the door of the storehouse I went to trade at.”

      . At the time of giving a pretrial deposition Music was under the impression Waddle had come out from between two parked ears,, but it was established beyond question that no vehicle was parked or stopped behind Hurd’s automobile.

      . See also Miracle v. Flannery’s Adm’r, Ky., 259 S.W.2d 689 (1953), and Shuffitt v. Martin, Ky., 268 S.W.2d 928 (1954), holding that the question of proximate cause is for the jury where a pedestrian, though crossing between intersections in violation of the law, is hit by a vehicle being driven on the wrong side of the street.

      . The pertinent subdivisions of the statute are as follows: “(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway. * * * (d) Notwithstanding the provisions of this subsection every operator of a vehicle shall exercise due care to avoid col-tiding with any pedestrian upon any roadway, shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing a child or a confused or incapacitated person upon a roadway.”

      . In Brown v. Vanhook and Leslie-Four Coal Company v. Brock there was evidence that the pedestrian walked into the side of the vehicle, a distinction that certainly would be immaterial if the pedestrian had no duty to continue his lookout while crossing.

      . See Severance v. Sohan, Ky., 347 S.W.2d 498, 501 (1961).


author: MONTGOMERY, Judge.

text:
    Eb WADE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 12, 1964.
    Eb Wade, pro se-
    Robert F. Matthews, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Eb Wade’s conviction of the offense of malicious shooting with intent to kill and accompanying sentence of twenty-one years was affirmed. It was reconsidered on petition for rehearing. Wade v. Commonwealth, Ky., 334 S.W.2d 901, cert. denied 364 U.S. 847, 81 S.Ct. 90, 5 L.Ed.2d 71. His unsuccessful attempt in a habeas corpus proceeding to void the judgment on the ground of illegal search and seizure was affirmed. Wade v. Thomas, Warden, Ky., 357 S.W.2d 678.

By this procedure under RCr 11.42, appellant now claims that he was not sane at the time of his trial or sentencing in 1958. A hearing on the motion was held at which evidence was introduced on the issue of his sanity. From an order overruling his motion, he has appealed.

Wade was permitted to proceed in the trial court and on appeal in forma pauperis. A complete record of the proceeding, including transcript of evidence, is here. Court-appointed counsel who, at his expense had visited Wade in the penitentiary was discharged by Wade at the beginning of the hearing. Further counsel was appointed and acted during the hearing. From the record it is plainly evident that the court painstakingly and patiently conducted the proceeding in such way that all rights of the appellant were scrupulously protected.

The evidence on the issue of sanity was conflicting. In support of his position, appellant testified to the effect that he did not remember anything of the trial or sentencing. The testimony of a cell mate and two relatives was introduced in corroboration. There is nothing of merit in this testimony. In opposition, the court heard the testimony of the circuit judge who presided at the trial and sentencing and the two attorneys who represented appellant on that occasion. In all, twelve witnesses were introduced. The transcript of evidence from the trial when appellant was convicted was also introduced.

The trial judge held that appellant was sane at the time of his trial and sentencing in 1958. Without detailing the testimony heard, there was ample evidence to sustain this finding. The finding of the trial judge is approved that there was no material evidence at the hearing to indicate that appellant was insane or mentally incompetent at the time he was tried or sentenced in 1958.

Judgment affirmed.


text:
    Earle V. POWELL, Commissioner of Economic Security, Appellant, v. Annie OFFUTT, Appellee.
    Court of Appeals of Kentucky.
    June 12, 1964.
    Paul E. Tierney, Frankfort, for appellant.
    No appearance for appellee.
   MONTGOMERY, Judge.

Pursuant to KRS 418.020, the following questions were submitted to the trial court:

“1. Does a citizen, eligible in all respects for a public assistance grant under KRS Chapter 20S have a ‘claim’ against the Commonwealth for assistance payments as the word ‘claim’ is used in KRS 44.030?
“If the answer to question 1 is ‘yes’
“2. Upon the establishment of the fact that a recipient of public assistance has been overpaid as a result of the failure of the recipient to report other income (KRS 205.210(1)) may future grants or claims for which the overpaid recipient may be eligible be withheld by the Commonwealth and used to liquidate the overpayment?”

The trial court held there was no claim. Judgment was entered in favor of appellee, Annie Offutt.

Appellee received old age assistance without interruption from at least January 1951 until May 1961. The amount of the monthly grant was predicated on the premise that she had no other income whatsoever.

On August 20, 1958, appellee received a social security award, including back payments, amounting to $330 for eleven months at the rate of $30 per month and continuing thereafter. In January 1959, this was automatically raised to $33 per month, and on September 1, 1961, to $40 per month. None of this income was reported to the Division of Public Assistance. When an investigation revealed the additional income, an overpayment of $1,275 was declared by the Department to have been made. During the time that the overpayment was created, ap-pellee was under the care and in the custody of her daughter and son-in-law, now deceased. After appellee’s endorsement, they would cash the checks and use the proceeds for appellee’s necessities.

In an order dated December 11, 1961, the Appeal Board of the Department held that the appellant was prohibited by statute from making any further public assistance payments until the Commonwealth was reimbursed in the amount of the overpayment. It is not clear what, if any, payments have since been made.

The Chancellor found that there was no suggestion that appellee was guilty of any fraud or had knowingly made any false statement, or that appellee had any left of the “windfall” payments of social security, or that any amount appellee may have received, or was received for her, was more than adequate for her necessary support. It is admitted that apppellee was senile during the period of overpayment. At the time of the hearing in circuit court, she was helpless and in a nursing home, without any property or income except her social security payments unless the old age assistance payments had been resumed.

Appellant urges that the overpayment constitutes a claim as used in KRS 44.030, which provides:

“No money shall be paid to any person on a claim aga-inst the state in his own right, or as an assignee of another, when he or his assignor is indebted to the state. The claim, to the extent it is allowed, shall be credited to the account of the person so indebted, and if there is any balance due him after settling the whole demand of the state such balance shall be paid to him.”

The Chancellor in his opinion noted that Kentucky Revised Statutes, Chapter 205, makes no reference to a beneficiary as being a claimant or having a claim against the Commonwealth. It was held that in the absence of fraud or misrepresentation appellant had no power to withhold payments from the beneficiary in satisfaction of over-payments “but only to determine prospectively, based on the recipient’s estimated other income, and nest egg in hand, if any, a reduction in or pro tern cessation of benefits.”

The Chancellor based his opinion on the following statement of purpose of the Old Age Assistance Act from Commonwealth ex rel. Meredith v. Frost, 295 Ky. 137, 172 S.W.2d 905: “The intention is to pay the beneficiaries currently something to exist upon and to aid them to live day by day.” In that case the Court disapproved a plan to borrow time of the ensuing fiscal year by impounding the balance of the then current year’s appropriation and to hold it over and pay it out in the ensuing year.

In Ferguson v. Noe, Ky., 364 S.W.2d 650, an uncontested determination of eligibility was upheld and the Department was directed to determine benefits on the basis of current or existing needs during the period of eligibility. Under the stipulated facts appellee is eligibile for full assistance benefits except to the extent that she may be disqualified by receiving social security benefits. Under the circumstances of this case there is no showing that full assistance and social security payments were not necessary to provide for appellee’s then current needs. The Chancellor correctly held that appellant could not collect from appellee.

The problem of overpayment of benefits has since been sought to be remedied by enactment of KRS 205.225, effective June 14, 1962.

Judgment affirmed.


author: CULLEN, Commissioner.

text:
    Milton BRADLEY, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 12, 1964.

      Claude Asbury, Catlettsburg, for appellant.
    Robert F. Matthews, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CULLEN, Commissioner.

Milton Bradley, Jr., was convicted in the Boyd Quarterly Court of the offense of “Contributing to Juvenile Delinquency,” KRS 208.020(3), 208.990(4), and his punishment was fixed at a jail sentence of six months and a fine of $250. He appealed to the circuit court and upon trial de novo in that court he was again found guilty and was given a jail sentence of 30 days and a fine of $100. He has moved for an appeal to this court from the latter judgment. The motion is granted to the extent that we accept the case for review.

Bradley’s conviction was upon proof that he had failed to make support payments for his infant children as required by the terms of a divorce judgment, as a result of which failure the children became dependent upon charity and loans from relatives for food and clothing. This conduct constituted a violation of KRS 208.020(3) which, although commonly referred to as the “Contributing to Delinquency” statute, covers the willful failure to do any act that will tend to prevent a minor child from becoming “neglected,” “dependent,” or “needy.”

Appellant maintains that the exclusive remedy for failure of a divorced husband to make child support payments in accordance with the terms of the divorce judgment is by proceedings for contempt in the divorce court. There is no merit in that argument. That such failure can be punished as a crime is established by KRS 435.240(3) (a) and Commonwealth v. Mason, Ky., 317 S.W.2d 166. (Of course inability to pay is a defense, but the appellant here did not assert that defense.)

A second contention of the appellant’s is that his constitutional rights were violated because he was not informed by the quarterly court judge that he was entitled to have counsel. (He did have counsel in the circuit court.) He does not claim that he was a pauper and counsel therefore should have been appointed for him — he merely says he should have been told of his right to counsel.

The claim has very little substance to it because the record indicates that the prosecuting attorney in the quarterly court did advise appellant of his right to counsel, and further told appellant that if he wanted a jury trial the case would be postponed for a couple of weeks. There is authority for the proposition that if the accused knows of his right to counsel it is not necessary for the court to remind him of it. See Annotation, 3 A.L.R.2d 1048.

In any event, even if it be assumed that the trial judge must in every event advise the accused of his right to counsel, and it further be assumed that this includes misdemeanor cases (a proposition upon which the United States Supreme Court has not as yet made a pronouncement), we are not convinced that the failure of an inferior court to advise of the right to counsel constitutes of itself a material impairment of constitutional right where the accused subsequently procures a trial de novo in the circuit court, with ■counsel. We think that to sustain a finding of a material impairment of constitutional right there would have to be a showing that in some manner the lack of counsel at the inferior court trial prejudiced the accused upon his subsequent trial de novo in the circuit court. There is no such showing here.

The appellant makes complaint concerning the difficulty he had in obtaining a copy of the judgment of the quarterly court in order to prosecute his appeal to the circuit court. The questions he raises are -moot because he eventually obtained the ■copy of the judgment and made his appeal.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Frank A. BRANHAM et al., Appellees.
    Court of Appeals of Kentucky.
    June 12, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Walter Mobley, Dept, of Highways, Flemingsburg, for appellant.

      Thomas E. Phipps, John C. Clarke, Ash-land, James E. Atkins, City Sol., Catletts-burg, for appellees.
   WILLIAMS, Judge.

Because of the construction of a limited access highway, designated as Interstate 64, the Commonwealth of Kentucky found it necessary to condemn a portion of land owned by the appellees, Frank and Ruth Branham. From a judgment of $30,294 in the county court both parties appealed to the Boyd Circuit Court. From a judgment in the amount of $40,000 in the Circuit Court the Commonwealth has appealed.

The appellees owned 125 acres which had been operated as a dairy farm until 1957. About 15 acres were level and the remainder was hill pasture land. Eight of the level acres had been subdivided and some lots had been sold. A 15.25-acre strip through the level area was taken. All of the outbuildings necessary to a dairy operation, as well as a portion of the land which had been subdivided, were taken. The right of way of the new highway is located within 16 feet of appellees’ home, which was not taken.

The Commonwealth’s witnesses believed the appellees were entitled to recover an amount somewhere in the neighborhood of $24,000 to $27,000. On the other hand, the appellees’ witnesses testified the amount should be more in the neighborhood of $60,000 to $70,000. The jury, as usual, split the difference and allowed $40,000. The award was high, but, in view of the fact that most of the only really good land was taken from the farm, we cannot say it was grossly excessive. It must also be observed the taking deprived the appellees of all buildings except the house and of any source of water on the hillside pasture tract which was separated from the house, and that the subdivision was pared down, which materially reduced its value.

As heretofore noted, the land was not being used as a dairy farm at the time of the taking. The appellees claimed its best use, however, was still as a dairy farm. The Commonwealth denied this on the ground the subdivision had taken up so much of the level land that it could no longer be operated profitably as a dairy farm. In an attempt to demonstrate its value at the time it was operated as a dairy farm, the Commonwealth sought to introduce tax returns for the years 1955 and 1956. Under authority of Commonwealth Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714 (1960), the trial court permitted the introduction of the 1961 tax return (the year of the taking), but refused to allow the introduction of the earlier returns on the ground they were too remote.

It is common knowledge that landowners assess their property as low as the law allows and then as much lower as the tax commissioner will agree to. Jurors are well advised of this common evasion of the constitutional mandate that property shall be assessed at 100 percent of its value. Nevertheless, for years it has been declared that evidence from tax returns is admissible. For example, in Sandy Valley & E. Ry. Co. v. Bentley, 161 Ky. 555, 171 S.W. 178 (1914), the trial court refused to permit “the yellow sheets on which the defendants had scheduled their property for taxation to be given in evidence.” Commenting on that fact, this Court said:

“ * * * While such evidence is admissible, yet in view of the fact that it throws but little light on the actual value of the property assessed, and necessarily has but small weight with the jury, we conclude that its rejection was not prejudicial.”

The Commonwealth got the 1955— 1956 tax returns into the record by way of avowal and we note that the property was assessed at virtually the same amount during those years as it was during the year 1961. Although probably not too remote under the circumstances, the evidence obtained from those prior years would have been merely cumulative, and had little ■weight with the jury. Consequently, the refusal to permit the introduction of the 1955— 1956 returns was not prejudicial.

The Commonwealth's witnesses testified concerning the value of the buildings separate and apart from the land. In order to rebut that testimony the appellees put on a building contractor who stated his idea of the value of the buildings. We have held that it is improper to consider improvements on the land except as they enhance the market value of the land, Commonwealth Dept. of Highways v. Stamper, Ky., 345 S.W.2d 640 (1961); but here the Commonwealth opened it up and cannot now object to rebuttal evidence along the same line.

Finally, one witness for the appellees calculated the value of the land by separately determining the value of trees, spring, et cetera. That was improper, but should have been objected to and the court should have been requested to strike it. It was not, and the court did not, and the point is lost.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Edwin FREEMAN, Appellant, v. DANVILLE TOBACCO BOARD OF TRADE, INC., Appellee.
    Court of Appeals of Kentucky.
    June 12, 1964.
    Donald D. Harkins, Begley & Harkins, Danville, for appellant.
    E. Gaines Davis, Jr., Smith, Reed, Yes-sin & Davis, Frankfort, for appellee.
   DAVIS, Commissioner.

The appellant sought declaration of rights in this action brought in the Boyle Circuit Court. ICRS 418.040 et seq. The trial court dismissed the action pursuant to its holding that no fact was pleaded reflecting the existence of an actual controversy. The question presented is whether the complaint states facts sufficient to entitle appellant to a declaration of rights.

The allegations of the complaint, as amended, may be summarized thus:

Appellant owns and operates a tobacco warehouse in Mercer County; he has “made arrangements” to build a similar warehouse in Danville, and has obtained an option to purchase real estate near Danville upon which to locate the warehouse.

There are three warehouses existing in Danville. All of these warehouses hold membership in the Danville Tobacco Board of Trade, Inc., the appellee. (We shall refer to appellee as the Board.)

The Board was organized under KRS 273.010 through 273.050, and its affairs are managed by a board of six to seven directors. Each of the existing warehouses may name two of the directors; any new warehouse coming to the Danville market may name only one director, until it has been in business ten years.

KRS 248.015, 248.025 and 248.035 require a Tobacco Board of Trade for every tobacco auction market in the Commonwealth. The allocation of selling time and selling space are specific powers granted to the Board by the cited statutes.

The Board has prescribed regulations fixing selling space and time on the basis used in the 1959-60 sale season. The same regulations provide that any new warehouse which may be built to serve the Danville market must become a member of the Board. It is further provided that any new warehouse shall be entitled to sell that percentage of baskets as its floor space bears to the total floor space on the market. However, the regulation declares that a new warehouse may utilize only 12}4% of its ultimate allotment of floor space the first year, and may then add an additional 12(4% annually until it attains its full allotment.

The appellant challenges the legislation as violative of Kentucky Constitution, §§ 3, 27, 59 and 206. It is asserted that the legislation unconstitutionally delegates legislative power to a nongovernmental agency, owned by competitors of appellant; that no adequate standards for regulations are fixed; that exclusive privileges are granted; and that such special act relating to trade is illegal.

Finally, it is alleged that the legislation as implemented by the Board’s regulations deprives appellant of property without due process, contrary to Kentucky’s Constitution and in violation of United States Constitution, Amendment 14. Appellant alleged that the Board had informed him that the regulations would be applicable to him if he should build a warehouse at Danville.

Appellant urges that he presents a justi-ciable controversy and demonstrates standing to maintain the action. Appellant relies on these decisions: Dravo v. Liberty National Bank & Trust Co., Ky., 267 S.W.2d 95; Maas v. Maas, 305 Ky. 490, 204 S.W.2d 798; Combs v. Matthews, Ky., 364 S.W.2d 647; George v. Bernheim Distilling Co., 300 Ky. 179, 188 S.W.2d 321; Maloney Davidson Co. v. Martin, 274 Ky. 449, 118 S.W.2d 708; Dowdy v. City of Covington, 237 Ky. 274, 35 S.W.2d 304; Rodgers v. Webster, 266 Ky. 679, 99 S.W.2d 781.

Consistently our decisions recognize that the existence of an actual controversy concerning- a justiciable question is a condition precedent to an action under our Declaratory Judgment Act. e. g. Black v. Elkhorn Coal Corp., 233 Ky. 588, 26 S.W.2d 481; Com. v. Crow, 263 Ky. 322, 92 S.W.2d 330; Com. ex rel. Watkins v. Winchester Water Works, 303 Ky. 420, 197 S.W.2d 771; Veith v. City of Louisville, Ky., 355 S.W.2d 295. The parties before us agree that the rule is as stated — the question is its applicability to the case at bar.

In Borchard, Declaratory Judgments, 2d Ed., pp. 48-56, it is observed that the test of a litigant’s “legal interest” in the sought judgment should be a criterion of the judicial prerogative in declaratory judgment cases.

It will be recalled that appellant has “made arrangements” to build a tobacco warehouse. He states that he has an option to buy land for that purpose. However, the terms of the option are not shown, nor is it revealed whether the option continues or has expired. Clearly there is no requirement for appellant to buy the land — neither is it assured that he will build a warehouse. The simple fact is that presently (and at the time of the trial court’s order of dismissal) appellant demonstrates no legal interest in the matters he would have adjudicated. Under the existing state of things appellant is not aifected whatever by the regulations of which he complains. He may never be. Although we are mindful of and in accord with the salutary purposes of declaratory judgment procedure, it is our view that appellant does not bring himself within the scope of it in this case.

The judgment is affirmed.


text:
    The WISER OIL COMPANY et al., Appellants, v. T. J. CONLEY, Appellee.
    Court of Appeals of Kentucky.
    June 12, 1964.
    Allen Prewitt, Sr., Frankfort, Earl R. Cooper, Salyersville, for appellants.

      Paul Combs, Prestonsburg, C. Kilmer Combs, Ashland, for appellee.
   DAVIS, Commissioner.

In Wiser Oil Co. v. Conley, Ky., 346 S.W.2d 718, we adjudged that T. J. Conley, who is the appellee here, should be allowed recovery for damage to his real estate resulting from appellant’s use of waterflooding process in exploitation of an oil and gas lease. Upon a jury trial in the Magoffin Circuit Court, appellee obtained verdict and judgment of $15,000, separated as $6,000 for damage to coal underlying the land and $9,000 for surface damage. The oil company appeals from the judgment, asserting error in these'respects: (1) The $6,000 award for coal damage was based on patently erroneous evidence, (2) the award for coal damage is flagrantly excessive and contrary to the evidence, (3) the $9,000 award for surface damage was found under an erroneous instruction permitting the jury to find permanent damage, and (4) the $9,000 allowed for surface damage is flagrantly excessive and contrary to the evidence.

As observed in our first opinion in this matter (346 S.W.2d 718), the original oil and gas lease was made in 1917. In the cited decision we recognized that appellants’ liability for damages is limited to those damages attributable to the new method of exploitation. Thus, it is not proper for any damages to be assessed which may have resulted from activities under the lease prior to the waterflooding process.

It was established that applicable mining safety regulations require that a pillar 200 feet square be left around each drilled oil or gas well. At the time of trial there were 24 wells on appellee’s land; eight of these had been drilled before the waterflooding method was employed. Since the water-flooding, sixteen wells have been drilled, of which eleven are water input wells and five are production wells. (There is some discrepancy in the evidence and in briefs whether there have been fifteen or sixteen new wells.)

For the appellee it was shown that more than thirty years ago he had mined some coal from his land for his own household use; there has never been any commercial coal mining on the tract. That mining operation is still available for viewing, and shows a coal vein of 29J/£ inches thickness at the mouth of the mine and 321^ inches at the back wall or facing. Appellee’s principal coal witness said that the coal seam had about one-half inch “of parting or Jack rock” at the drift mouth, and that the parting had increased to about 2j/¿ inches at a point 25 to 30 feet from the drift mouth.

The same witness for appellee gave his-estimate of the amount of the coal underlying the land, based on his estimate that the coal underlying the area would average 29 inches in thickness. On that basis, the witness estimated there were 34.1 acres of recoverable coal under the land before the waterflooding method was put in use. He reckoned that 70% of that total could have been recovered, and gave his evaluation of the coal at $19,935.80. In making this-calculation the witness conceded that he was using tonnage royalty as a factor, but said that he had made an allowance deduction of 20% for “future market.”

It was shown that three core drills had been made on the appellee’s land by Tom Burke; two of these test drills were at the instance of the appellants and one was performed for appellee. Core drill #1 reflected that seven inches was the maximum thickness of any coal seam found on the western portion of the land. Core drill #2 showed two seams on the eastern part of the land, one being twelve inches thick and another eleven inches; the latter seam was two feet below the former, reflecting a parting of two feet between the seams. The third core drill, performed for appel-lee, reflects five strata of coal: The first is 1 foot 4 inches at depth of 38 feet 7 inches; the next is 7 inches at depth of 50 feet 5 inches; the next is 3 inches at depth of 72 feet 8 inches; next is 4 inches at depth of 79 feet 1 inch; and the final stratum is 11 inches thick at a depth of 129 feet 3 inches. It was brought out that two logs made at the time of the drilling of some of the old wells reflected coal at thicknesses of three feet near one well and two feet near another; no coal was shown on the old well logs seen by appellee’s witness Combs.

Moreover, appellee’s witness Combs said that he could not advise any prospective purchaser to buy the appellee’s coal rights, as a commercially feasible project, based solely on the information which the witness had at hand. Yet, the witness was permitted to assume the presence of coal under the tract at an average thickness of 29 inches. In face of the evidence of the core drills, coupled with the admission of appellee’s expert witness that he based his estimates upon measurement at one place, considered with the statement of the same witness that he would not advise a client to purchase the coal rights without more investigation than the witness had made, we cannot escape the conclusion that appellee failed to carry his burden to offer evidence warranting belief that coal in commercial quantity lies under his land. It is fundamental that while it is the jury’s province to weigh the evidence, the court will direct a verdict where there is no evidence of probative value to support an opposite result. The jury may not be permitted to reach a verdict upon speculation or conjecture. Kentucky Transport Corp. v. Spurlock, Ky., 354 S.W.2d 509; Myers v. Walker, Ky., 322 S.W.2d 109; 18 Ky. Digest, Trial,

However, the appellants offered evidence relating to the quantity and quality of the coal underlying appellee’s land. Appellants’ witness Spaulding made what he admitted to be a speculative estimate of the recoverable marketable coal under the land. The witness expressed serious doubt that coal in commercial quantity and quality lies under the land except in the area of five acres around the old mine site. He then estimated that the value of the five acres is $50 per acre, and put a value of $1 per acre on the rest of the coal rights. In the opinion of Spaulding, one-half acre of the five acres valued at $50 was damaged, thus making his testimony fix $25 as damage for that, coupled with an overall damage of $1 per acre for approximately 68.59 acres. Taking into account the allowance of $25 for the half acre, this would indicate his estimate at $68.09 for the rest of the coal damage, or a total coal damage of $93.09. At the close of the case appellants offered to confess judgment for “the amount of damage fixed by Spaulding,’’ without specifying what the amount was. This offer was refused by appellee.

Since the evidence did not warrant submission of coal damage beyond the amount admitted by appellants, the court erred in permitting the jury to assess damages on account of coal in any sum greater than admitted by appellants. If the evidence is substantially the same on a new trial, the court will limit coal damage recovery to the amount so admitted by appellants.

The appellee’s farm was surveyed as containing 68.59 acres (as distinguished from 82.87 acres mentioned in the first opinion in this controversy). In asserting his damages to the surface, appellee presented evidence touching upon seven items of damage. We shall discuss them separately:

Numerous roads were constructed by appellants on the farm. These roads generally led from well to well and are described as “crisscrossing the property.” The roads were not provided with drainage ditches, and in some instances cuts were made from six to eight feet in depth. There was evience of considerable washing and erosion of the mud, rock, and gravel from the roads to lower areas of the farm. The linear distance of the roads is 3,633 feet. Although the roads average between six and eight feet in width, appellants’ witness computed the acreage occupied by the roads as 1.251 acres, based on an average width of fifteen feet. The witness explained that this extra width footage takes into account fills and erosion. It was emphasized for appellant that the roads were for limited use in moving equipment and not for continuous traffic.

There was evidence that some of the pipelines were placed above the surface. There is dispute as to the extent of this procedure — some of appellee’s witnesses said these exposed lines were “all over the place.” Appellants’ evidence was that there were two segments of exposed pipe, one being 500 feet long and the other 50 feet in length. According to appellants’ evidence, these exposed lines are in areas so steep that they could not interfere with the grazing of livestock or the cultivation of the land. The lines will not be needed when the oil is depleted.

The third item of damage is the oil said to be blown from the wells. For appellee it was shown that the oil is scattered about 100 feet around each well. It was said that the oil was then spread onto other areas by rains. It is not clear that any distinction was made in this testimony whether it resulted from the old or new oil wells. There is no showing that any permanent damage has been done by this incident.

For his fourth item of damage appellee showed that at each well there is a sludge pit. Into these pits are dumped the cuttings, sludge, and pumpings from the wells. The pits vary in size; some of them are 30 x 45 feet, others are smaller. It was shown that waste oil in the pits was usually burned by appellants’ servants. One of the wells located in the bottom land had no sludge pit. Appellee introduced evidence that the pits overflowed, and that vegetation will not prosper in areas overflowed from the pits. Appellants’ evidence reflects that the pits will present no problem when the oil operation is ended.

Salt water is the damaging agent next mentioned by appellee. He testified that he had had one water well “destroyed” with oil and salt water and another lost by reason of salt water alone. It is claimed that the removal of tubing used in drilling the-wells let salt water escape into the strata holding pure water, thus contaminating the-water table. Appellants insist that the-claim on this point is exaggerated, and is-occasional and temporary. There is no proof that salt water has permeated the fresh water strata, nor of permanent injury on this account.

Next, appellee contends that one of his-ponds has been damaged — ruined he believes — because of oil on it. He explained that the oil appeared “every little 'bit”' —that it had been on the pond “about four times I believe in the last year.” The testimony falls short of characterizing this item as permanent.

Finally, it is said that appellants destroyed some good commercial oak timber and approximately one-half mile of fencing. Appellee estimated $1,500 would be required to restore the fencing; appellants’ evidence tended to minimize this item by showing the fence could be restored for $50. Obviously, whatever fence has been damaged may be repaired. The evidence about the timber does not show the quantity or quality of timber, nor does it fix any monetary estimate of damage on this score.

For the appellants it was testified that all of the items discussed are temporary in-nature. The extent of damage from them was said to be relatively slight. Appellants presented evidence that the entire oil operation would likely end within eight years. They also offered a witness who-said that he is experienced in bulldozer operation, and that he could restore all of the farm substantially to its condition prior to the waterflooding process for $900. Appellee insists that the damages are permanent in nature.

Appellee’s witnesses placed “before” and “after” values on the farm — excluding the coal. The “before” values ranged from $20,000 to $15,000; the “after” values ranged from $9,000 to $5,000. The difference in before and after values ranged from $10,000 to $12,000. As noted, the jury returned a verdict awarding appellee $9,000 as permanent damage to the “surface” of the real estate.

The parties concede that different measures of damage are applicable in cases of temporary abatable injuries to land as distinguished from permanent injuries. City of Ashland v. Kittle, Ky., 305 S.W.2d 768; 7 Ky. Digest, Damages, 25 C.J.S. Damages § 84. Their point of departure is whether the instant case presents one for application of the rule relating to temporary or permanent injuries to real estate.

In view of the evidence that the entire oil operation is likely to cease within eight years, coupled with the evidence relating to the relatively minor costs required to restore the surface, we conclude that it was error to submit the case to the jury on any theory of permanent injury to the surface of the real estate.

It is also significant that appellee’s approximately four acres of bottom land continue to be as productive now as before the waterflooding process.

If the evidence upon another trial is substantially the same as on the first trial, the court will peremptorily instruct the jury to award appellee $93.09 for damage to coal, plus such sum as it may believe represents the reduction in value of the use of appellee’s farm from the date the water-flooding process was begun to the time of trial, plus such other sums as the jury may believe will reasonably be required to replace fencing destroyed, if any, and as will be reasonably necessary to restore the surface to a condition equivalent to that obtaining prior to the waterflooding process. Adams Construction Co. v. Bently, Ky., 335 S.W.2d 912.

Since the property owner’s right of recovery in cases of temporary damage to real estate is not a single right of recovery, it is to be observed that the appellee shall not be precluded from seeking redress for any continued diminution in the value of the loss of use, or recurring costs for repairs and restoration, during such time as the waterflooding process shall continue, provided such action is timely filed. Chicago, St. L. & N. O. R. Co. v. Hicks, 249 Ky. 578, 61 S.W.2d 37; 1 C.J.S. Actions § 104e.

The judgment is reversed for proceedings consistent with this opinion.


text:
    Walter RANDALL et al., Appellants, v. L. L. MORRIS TRANSPORT COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 12, 1964.

      Ralph H. Logan, Marshall B. Hardy, Jr., Hardy, Logan & Tross, Louisville, for appellants.
    Faurest & Collier, Elizabethtown, for appellees.
    Jack Q. Heath, Louisville, for Lillie Parker, Admr’x of John W. Parker.
    Uhel O. Barrickman, Richardson, Bar-rickman & Dickinson, Glasgow, for L. L. Morris Transport and Merial D. Shreve.
    Hobson L. James, Elizabethtown, for Aria Brown.
   JOSEPH J. BRADLEY, Special Commissioner.

Ethel Randall filed suit to recover damages for personal injuries she alleges to have sustained in an automobile accident on October 19, 1961. Walter Randall, her husband, seeks in the same action to recover medical expenses, loss of services and damages to his automobile.

Suit was instituted on October 19, 1962. On January 17, 1963, the court dismissed that part of the claim pertaining to personal injuries on the appellees’ plea of KRS 413.140, which provides that an action for injuries to the person shall be commenced within one year after the cause of action accrued. KRS 446.030 prescribes the method of computation of time in such instances. In sustaining appellees’ plea the court recognized the venerable rule in this jurisdiction that when the computation of time is to be made from a particular day, that day is to be excluded, but when time is computed from an act done, the day on which the act occurs is to be included in the computation. Computation is made from the event of the accrual of the cause of action, rather than from the day upon which it occurred. Fannin v. Lewis, Ky. 254 S.W.2d 479; Charles v. Big Jim Coal Co., 314 Ky. 778, 237 S.W.2d 68. Many other cases supporting this rule could be cited.

The appellants concede the court’s firm commitment to this interpretation of the statutes. They observe, however, that the question has not been determined by the court since the adoption of the Rules of Civil Procedure. They contend that CR 6.01 should govern the method of computing time. The rule provides, in substance, that in computing any period of time fixed or allowed by the rules, or by any applicable statute, the day of the act or event after which the designated period of time begins to run is not to be counted. As may be seen, the rule does away with the distinction between computation made from an act and from the day on which the act was done.

Admittedly, the method of computation of time prescribed by KRS 446.030 and the decisions construing it represent the minority view. Recently, however, in Commonwealth, Dept. of Highways v. Crutchfield, Ky., 365 S.W.2d 102, discussing the application of KRS 446.030 with regard to the Civil Rules, we stated that we were not prepared to hold the statute was repealed or superseded by the rules, as the rules only govern the procedure and practice in judicial proceedings. Under KRS 446.030, a statute of general application, the cause of action in this case was barred before the suit was filed and thus before the rules became operable. See Moore’s Federal Practice, R6, § 6.06 (Vol. 2, pp. 1470-1471).

It is recommended that the judgment be affirmed.

The opinion is approved by the court and judgment is affirmed.


author: EDWARD G. HILL, Special Commissioner.

text:
    MONTGOMERY WARD, a Corporation, Appellant, v. Mrs. Edward E. ELLIS, Appellee.
    Court of Appeals of Kentucky.
    June 12, 1964.
    Rehearing Denied Sept. 18, 1964.
    Harbison, Kessinger, Lisle & Bush, Lexington, for appellant.
    Moloney & Moloney, Lexington, for ap-pellee.
   EDWARD G. HILL, Special Commissioner.

This is an action for damages for personal injury sustained by the appellee, Mrs. Edward E. Ellis,- from striking her head on an overhanging door-while leaving the business premises of - the appellant, Montgomery Ward.

Appellant contends, among other things, that the trial court erred in overruling its motion for a directed verdict and for judgment notwithstanding the verdict. Since we are of the opinion that the trial court was in error, the other grounds for appeal are not herein considered.

Appellee, in company with her sister, went to appellant’s store in Lexington to return a sewing machine for repairs. They drove to the rear of the store on Water Street where there is located a shipping dock and a service department. They spoke to an employee of appellant about getting the machine to the service department. This employee went inside the building, and presently an overhead door to the service department was raised about head high from inside. Appellee entered the service department through the raised door. She entered into a garage area, and then passed from that area into another room where the service desk was located, and placed an order for the repair of the machine. She remained in that room for about five minutes.

As appellee re-entered the garage area, she glanced at the raised door and observed that it seemed to be in about the same position as it was when she had entered it a few minutes before. She then proceeded through the garage area, the floor of which was strewn with packages. She was “picking her way” through these packages as she went under the door. She struck her head on it causing her injury.

Assuming, arguendo, that appellant was negligent in maintaining the overhanging door in the position it was in when appellee struck her head, we must yet determine whether such negligence was the proximate cause of the injury sustained by her.

In Leslie Four Coal Company v. Simpson, Ky., 333 S.W.2d 498, 84 A.L.R.2d 728, we stated:

“The rule is well established that an inviter is not responsible to an invitee for an injury sustained on the inviter’s premises from a cause arising from a defect or a danger which the invitee knew of or ought to have known of.”

In that case we firmly adopted the rule announced in 65 C.J.S. Negligence § 50, page 543:

“The basis of the inviter’s liability for injury sustained by the invitee on the premises rests on the owner’s superior knowledge of the danger, and as a general rule he is not liable for an injury to an invitee resulting from a danger which was obvious or should have been observed by the invitee in the exercise of reasonable care * *

In the instant case it is undisputed that the position of the door was plainly visible. In fact the appellee testified that she observed the position of the door from some distance away as she approached it.

We do not find a case in Kentucky dealing with an overhanging appliance or obj ect causing an injury; however, the case of Myles v. Helena Motors, Inc., 113 Mont. 92, 121 P.2d 548, is a case in point. In that case the plaintiff struck his head on an automobile hoist while walking through the defendant’s garage to obtain a bill for repair work on his car. The accident occurred during daylight hours and the garage was well lighted. The court upheld an order of nonsuit, on the ground that the hoist was in plain view- and that the defendant was under no duty to warn the plaintiff of an open and obvious danger. The court also rejected the plaintiff’s contention that the presence of oil on the floor made it necessary for him to watch where he stepped in order to keep from slipping and falling.

In view of the foregoing, we hold that ap-pellee was negligent as a matter of law, and that her negligence was the proximate cause of her injury.

It is recommended the judgment be reversed with directions to sustain the appellant’s motion for a judgment notwithstanding the verdict.

The opinion is approved by the Court and the judgment is reversed with directions to enter judgment for the defendant.


author: MOREMEN, Judge.

text:
    COLONIAL LIFE & ACCIDENT INSURANCE COMPANY, Appellant, v. Zelda WAGNER, Appellee.
    Court of Appeals of Kentucky.
    May 1, 1964.
    Rehearing Denied Sept. 18, 1964.

      Stoll, Keenon & Park, Lexington, for appellant.
    Frank G. Gilliam, William S. Black, Lexington, for appellee.
   MOREMEN, Judge.

On January 11, 1960, Warren G. Shockley walked into the Phoenix Hotel in Lexington where he shot and killed Warren F. Wagner, an employee of the hotel. Shockley was indicted for murder. At his trial on this charge, one of his defenses was that he was of unsound mind and without sufficient reason to know right from wrong, or that as a result of mental unsoundness he had not had sufficient will power to govern his action because of some insane impulse which he could not resist or control. The court instructed on the charge of murder, mental capacity to commit the crime and voluntary manslaughter. The jury found him guilty of voluntary manslaughter and fixed his punishment at ten years’ confinement. Shockley had contended during the trial that Wagner had been associating with his wife for a period of about seven months despite the fact that he had warned him on several occasions to discontinue seeing her.

At the time of his death, Wagner was insured under a group policy issued by appellant, Colonial Life & Accident Insurance Company, and his widow, appellee, Zelda Wagner, was the beneficiary. She sued on the policy which contained this provision: “The insurance under this certificate shall not cover death or other loss caused or contributed to * * * (4) by injuries intentionally inflicted upon the Insured Employee' by any other person.” Upon trial of the civil suit the contention was again made that the condition of Shockley’s mind at the time he killed Wagner was such that he could not intentionally commit the offense. In support of this contention ap-pellee testified that Shockley had made a declaration to her relative to his state of mind, that prior to the shooting “he got spells where he did not know what he was doing,” and that he once “found himself there (at the deceased’s place of employment) and when he came to himself he was looking around the corner at my husband * * * and he didn’t know what to do, but he left the place as quickly as he could.”

The deposition of Shockley was taken and he attempted to explain the condition of his mind at that time, as follows :

“Q. Did you have knowledge of what you were doing or the effect of your act? A. That’s hard to answer. I suppose if I had I wouldn’t have done it.
“Q. Are you able to tell what was your state or condition of mind at the time this occurred? A. Well, I don’t know how you would put it. Some one can keep on pushing you and drive you to do something. I warned the fellow to leave her alone. I just had no control.
“Q. Were you beyond any self-control at the time ? A. I don’t know.”

However, when asked whether or not the killing was intentional, Shockley repeatedly replied that it was.

Dr. Graham Dimmick, professor of applied psychology at the University of Kentucky, and who had also engaged in the practice of clinical psychology, testified that he had examined Shockley for approximately two hours after he had been charged with the killing of Wagner. In response to a hypothetical question based upon that interview and upon other evidence which had been introduced at the trial as to whether Warren Shockley was, at the time of the shooting, capable of forming a rational intention to commit the act, Dr. Dimmick answered that in his opinion he was not capable of having a rational intention to do what he did. Dr. Dimmick also testified under cross-examination:

“Q. You didn’t think Warren Shockley was insane, did you? A. I did not say that.
“Q. And you did not think so at the time of your interview, did you? A. Not insane, as you refer to it, no.
“Q. Do you know what Warren Shockley, in giving his deposition, swore under oath, when he was asked this question: ‘The injury which you inflicted oh him was, you would say intentional ?’ and that he answered ‘yes’ * * * did you know that ? A. No, I did not know about that.
“Q. If that is true, do you know now whether this man was capable of rational, intent to perform the act of which he was accused? A. Well, I am not sure, no.”

An employee of the hotel testified that Shockley told him to tell Wagner that he would give him three days to get out of town or he was going to kill him.

The case was submitted to the jury under two instructions. The first one permitted the jury to find for the appellee if they believed that Shockley did not have sufficient mind or intellect to know the difference between right and wrong or to form a rational intent to shoot Wagner. The second instruction permitted the jury to find for the insurance company if the gunshot wounds which caused the death of Wagner were intentionally inflicted. The jury found for the appellee and returned a verdict of $5,000, the amount of the policy.

Appellant contends that it was entitled to a peremptory instruction.

The main question in this case involves the proper interpretation of the exclusionary clause above quoted. The insurance company evidently undertook to assure only against accidental injuries or death or natural death. It did not insure against death from intentional injuries.

In law, there are many conditions under which a person may intentionally kill and not be subject to criminal punishment. A man may kill in self-defense. A soldier may kill under liberal rules. The executioner may kill with the sanction of the State. All of this destruction is intentional, but excusable. Similarly a person may be excused from penalty if he is insane at the time he commits a criminal act. He may do the act with every intention of consummating it, but if it is shown that he was mentally insufficient, he is excused from the imposition of the usual sanctions. The absence of punishment, however, does not retrospectively expunge the original intention.

In Deloache v. Carolina Life Insurance Company, 233 S.C. 341, 104 S.E.2d 875, a suit was brought on a double indemnity policy which contained an exclusion of double benefits in cases where the injuries were intentionally inflicted by another person. The facts were these: Deloache died from injuries inflicted by Burnett. Five days after the shooting, Burnett was committed to the South Carolina State Hospital. He was found to be mentally ill. The physician testified that a person mentally ill could intentionally do a thing even though he did not know right from wrong. He could intend to do a thing, but he was not responsible for doing it. The court held that under the policy, it did not matter whether Burnett was mentally or legally responsible for the act because the injuries which resulted in the death were intentionally inflicted by another person and, therefore, the accidental death benefits provision of the policy did not apply.

In the case at bar we are not at all certain that enough evidence was introduced to formulate an issue as to whether or not Shockley was insane, but we need not pass upon this point because we are of opinion that under the terms of the policy the act was intentional and therefore specifically excluded from the coverage.

The judgment is therefore reversed and the case remanded for a new trial with an instruction that if the evidence is substantially the same, a directed" verdict for appellant should be given.

Judgment reversed.


text:
    Myrtle COMBS, Administratrix of Estate of Carmon Combs, Appellant, v. J. M. COMBS et al., Appellees.
    Court of Appeals of Kentucky.
    June 19, 1964.

      Harry M. Caudill, Whitesburg, Cordell H. Martin, Hindman, for appellant.
    Clark Pratt, Hindman, for appellees.

      . Old Code 606-2.

   PALMORE, Judge.

This is an appeal from a judgment of the Knott Circuit Court disallowing items claimed by an administratrix as proper credits in the settlement of her fiduciary account.

Following the death of Carmon Combs from injuries received in a truck accident his widow, the appellant, qualified as ad-ministratrix of his estate. In her individual and fiduciary capacities she employed counsel on a contingent fee basis to file a workmen’s compensation claim against her decedent husband’s employer and a wrongful death claim against the owner of the other vehicle involved in the fatal accident. A joint settlement was reached in which the compensation carrier paid Mrs. Combs $20,000 and was reimbursed to the extent of $2,430.71 by the insurer of the defendant in the tort action. The latter amount, of course, represented the portion of the settlement payable to the estate. The balance of the $20,000 belonged to the widow in her own right as the decedent’s only surviving dependent.

In due course Mrs. Combs tendered her settlement as administratrix in the Knott County Court. The $7,430.71 received in settlement of the tort claim was included among the assets reported, which totalled $12,705.71. The portion of the $20,000 payment representing the compensation claim was not reported. The total liabilities of the estate were listed at $16,219.84, exceeding the assets by $3,514.13. Among the liabilities reported was a $6,666 item for attorney fees and three items totalling $5,723.30 for loans made by Mrs. Combs to her husband during his lifetime.

The decedent’s father and mother, his only legal distributees other than the widow, filed exceptions to the settlement on the grounds that the full $20,000 paid by the insurance companies should have been reported and that the claims for money loaned the decedent by his wife had not been proved and should not be allowed. A hearing was held at which Mrs. Combs, over objection, was permitted to prove the loan claims by her own testimony concerning transactions with the decedent. As a part of her testimony she filed numerous invoices, cancelled checks, bank books and statements, and other memoranda. Her settlement was approved and confirmed, whereupon the father and mother appealed to the Knott Circuit Court in conformity with KRS 23.030(1) and CR 72.01.

In the circuit court proceeding it was agreed that the record of testimony in the county court be treated as evidence for the administratrix, subject to competency, relevancy and materiality. On the basis of this evidence, supplemented by further depositions, the circuit court disallowed the loan claims, reduced the allowable charge for attorney fees to $2,222, and made certain other minor adjustments, the net result of which was to arrive at a figure of $6,727 for distribution, half to the widow and half t.o decedent’s parents. This is the judgment from which the administratrix now appeals.

“No credit shall be allowed a fiduciary for disbursements, fees or services without legal evidence to justify it.” KRS 25.180. “When a credit is claimed by a personal representative and its validity is disputed, the law casts on him the burden of supporting it; and in order to sustain such credit he must prove not only the payment, but also the existence, correctness, and validity of the demand.” 34 C.J.S. Executors and Administrators § 895, p. 1089. See also Skinner v. Morrow, Ky., 318 S.W.2d 419, 423 (1958), and Hill v. Roberts, Ky., 311 S.W.2d 569 (1958).

KRS 25.070 and CR 72.03 provide that appeals to the circuit court “shall be tried anew, as if no judgment had been rendered.” That being so, the burden of proof in this case was the same in the circuit court as it had been in the county court proceeding. Though KRS 25.200 specifies that settlements “made and recorded shall be prima facie evidence between the parties interested,” a settlement is not final and has not been “made” if a timely appeal from the order of confirmation is pending. Preston v. Second Nat’l Bank of Paintsville, 250 Ky. 673, 63 S.W.2d 774 (1933), in which it was held that the statute places the burden on the one who attacks a settlement, was a case in which a county court settlement was attacked in an independent proceeding in circuit court. It did not involve a direct attack on the settlement by way of appeal.

The circuit court correctly held that KRS 421.210(2) was a bar to the testimony of Mrs. Combs concerning transactions with her deceased husband. The contention that counsel for appellees brought her testimony within exception (c) of the statute by attempting to rebut it with testimony of the appellee J. M. Combs, after failing in his attempts to have it excluded by timely objection, is untenable. As its terminology clearly indicates, the exception applies only after the other interested person has testified.

Likewise untenable is the argument that by cross-examining Mrs. Combs with respect to the objectionable testimony appellees waived their objection to it. Their objection having been overruled, they had no alternative. Sturgell v. Taylor, Ky., 295 S.W.2d 800 (1956), in which the defendants, in cross-examining, elicited evidence they had succeeded in excluding when the adverse party had attempted to introduce it on direct examination, is not applicable.

The documentary exhibits introduced by Mrs. Combs, particularly checks on her personal bank account made payable to the decedent for such items as “payments on truck,” do constitute evidence that she paid money to and for him. But without her proscribed explanatory testimony there is nothing to prove a promise to reimburse her. Payments made to or for one’s spouse do not imply a promise to repay. Bailey’s Adm’r v. Hampton Grocery Co., 189 Ky. 261, 224 S.W. 1067, 1072-1073 (1920).

It is our conclusion that disallowance of the loan claims was proper.

The $6,666 item for attorney fees was paid pursuant to a contingent fee contract made by Mrs. Combs in connection with the claims that eventuated in the $20,-000 settlement. Unquestionably, so much of the settlement as represented her compensation claim was hers alone, and was not an asset of the estate. By the same token, to the extent the fee was payable on that portion of the settlement it should have been borne by Mrs. Combs personally, and not charged to the estate. But here the controversy has a peculiar twist. Never once did the appellees take exception to the allowance or amount of the fee. On the contrary, their position appears to have been that since the fee was charged to the estate the $20,000 should be treated as an asset of the estate. One wrong, however, does not justify another

We agree with the contention of the administratrix that the fee was never placed in issue, either directly or indirectly, by the exceptions and amended exceptions asserted in the county and circuit courts. Nor was the case tried in such a manner that it could be found, under CR 15.02, that the issue was nevertheless raised by express or implied consent. Hence there was no basis for a judgment in that respect.

The cause is affirmed in part and reversed in part with directions that a judgment be entered in conformity with this opinion.

      . There is a discrepancy between Mrs. Combs’ testimony and her brief with respect to this figure, but the amount of difference is insignificant.

      . Other exceptions were stated but are not now relevant.

      . Which permits such testimony if someone else interested in the estate “shall have testified against such person, with reference thereto.”


author: WADDILL, Commissioner.

text:
    Lee MAISE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 19, 1964.
    Floyd Taylor, Pineville, for appellant.
    Robert F. Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, Farmer Helton, Pineville, for appellee.
   WADDILL, Commissioner.

Appellant was convicted of armed assault with intent to rob and sentenced to 21 years’ confinement in prison. KRS 433.150.

For reversal of the conviction it is contended that the court did not instruct the jury upon the whole law of the case. In support of this ground it is argued that instruction number one is erroneous in that it failed to describe the assault as having been committed with an offensive weapon.

In Roberts v. Commonwealth, Ky., 339 S.W.2d 640, we pointed out that the crime denounced by KRS 433.150 may be committed either (1) by an assault with an offensive weapon or instrument with intent to rob or (2) by a demand of money or property in a forcible and violent manner with intent to rob. The gravamen of this crime is the assault with the intent. Gapoian v. Commonwealth, 302 Ky. 867, 196 S.W.2d 744.

The instruction in question was in the language of the statute except that it did not make reference to an offensive weapon. This omission could not have been prejudicial in this case because appellant himself testified that he struck the victim on the head with a stick. The only issue in the case was whether this assault was made with the intent to rob.

The next contention is that appellant was denied his constitutional right to be represented by counsel. The record reflects that appellant had no counsel when he was first brought before the circuit court on his arraignment to the indictment but that no further proceedings were conducted until he had obtained counsel. Under these circumstances, and the fact that he was ably represented by counsel upon his trial, we find no basis for the claim of denial of his constitutional rights in this respect.

Finally appellant insists that he was prejudiced by remarks made by the Commonwealth’s Attorney in his closing argument to the jury. Since this argument was not included in the transcript of the record the alleged error was not preserved for review.

The judgment is affirmed.


text:
    Chancie HALL et al., Appellants, v. Glennon F. HALL, Appellee.
    Court of Appeals of Kentucky.
    June 19, 1964.

      O. Lander Bright, Flemingsburg, Walter F. Smith, Cincinnati, Ohio, for appellants.
    Howard McCartney, William Walton, Flemingsburg, for appellee.
   MONTGOMERY, Judge.

Chancie Hall appeals from the judgment allowing her alimony at the rate of $100 per month for fifty months and the allowance of $750 for her attorneys. They are also parties to the appeal. She was also granted the custody of the three children and allowed $150 a month for their support. Divorce was granted to each party.

Chancie complains that the Chancellor did not take into consideration the estate of her husand, Glennon F. Hall, in making the alimony allowance and that the alimony and attorney fee allowed are insufficient. According to the wife’s proof, appellee’s gross estate amounted to $80,541.66. An exhibit filed by appellee placed the value of his estate at $76,200, less debts of $7,220 or a net estate of $68,980.

The problem is occasioned by a misunderstanding of the meaning of Heustis v. Heustis, Ky., 346 S.W.2d 778. The judgment recites:

“There not appearing to have been any accumulation of property made by the parties during coverture as the result of their joint efforts, but such property as is held by defendant appears to be directly traceable to gifts from his own family, and not gifts from the wife, no division of property is called for, as defined in Heustis v. Heustis, 346 S2W (sic) 778, which decision of the Court of Appeals, this court is endeavoring faithfully to follow and obey.”

Apparently the Chancellor proceeded under the theory that alimony could be awarded only from property accumulated by the joint efforts during coverture. Ap-pellee claimed that the value of gifts to him from his father and mother approximated the net worth of his estate and the amount thereof was not includable in his estate. Both parents had made substantial gifts to appellee.

It is unnecessary to relate the many factors which may properly be considered in making an allowance for alimony. The estate of the husband as the corpus to be carved is the most important factor. Consideration should be given to the source of the property involved, that is, how and when it was acquired and whether acquired or accumulated before or after marriage; the estate of each of the parties at the time of their marriage; whether the property is the husband’s separate estate or the joint accumulation of the parties; and the contributions of each to the joint or accumulated property. 27A C.J.S. Divorce § 233 (1), pages 1036-1037. See also 2 Nelson, Divorce and Annulment, 2d Edition, Section 14.42, pages 65-68.

Although the exact question of whether parental gifts may be excluded from the husband’s estate in determining the alimony allowance has not been presented in this jurisdiction, the Court is not without precedent. See Lewis v. Lewis, 289 Ky. 615, 159 S.W.2d 995; Maher v. Maher, 295 Ky. 263, 174 S.W.2d 289; Simpson v. Simpson, 298 Ky. 375, 182 S.W.2d 965; Dalton v. Dalton, 304 Ky. 223, 200 S.W.2d 469; Ahrens v. Ahrens, 313 Ky. 55, 230 S.W.2d 73; James v. James, Ky., 248 S.W.2d 706. In the Ahrens case the Court declined to include income from trust estates which terminated at the death of. the husband but did consider the estate inherited by him from his grandfather. In the James case it was held that the prospect of inheritance by the husband, as the only child, from his mother could be considered, although the circumstances there were somewhat unusual. Accordingly, there is little difficulty in deciding that the entire estate of appellee should have been considered and the alimony allowance made without excluding any portion as having been a gift. This is not to say, however, that significance should not be attached to the fact that parental gifts may have served to create the estate along with any accumulation from the joint efforts during marriage.

Certainly it was not intended in the Heustis case to exclude parental gifts. Except for the misconstruction of Heustis, no case is suggested where an exclusion from the husband’s estate was made by reason of gifts received by him. The statute, KRS 403.060, makes no exclusion from the estate.

The failure to so regard appellee’s estate is reversible error, necessitating a reconsideration of the alimony allowance. In doing so, the Chancellor should consider also the desirability of allowing monthly payments or a lump sum or a combination thereof, as well as the other factors involved.

Such determination of the alimony question eliminates the necessity of considering the sufficiency of the attorney fee except as noted. A reasonable fee to one attorney only can be allowed the wife in a suit for alimony and divorce. Whitney v. Whitney, 70 Ky. (7 Bush) 520. The fact that two attorneys represented appellant means that they must share the fee. Consideration should be given to services rendered on this appeal. See Maynard v. Maynard, Ky., 251 S.W.2d 454. The necessary items of costs and expenses in litigation should not be considered in allowing the attorney fee, but they should be taken into consideration in the allowance of alimony and costs. KRS 453.120.

Judgment reversed for further proceedings consistent herewith.