text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. TRANSAMERICAN FREIGHT LINES, INC., Transamerican Properties, Inc., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst Atty. Gen., Frankfort, Marshall B. Woodson, Jr., Raleigh O. Jones, Louisville, for appellant.
    Stanley B. Mayer, Ben T. Cooper, Mayer, Cooper & Kiel, Louisville, for ap-pellees.
   STEWART, Judge.

Appellant, Commonwealth of Kentucky, Department of Highways, condemned a parcel of land owned by appellees, Trans-american Freight Lines, Inc., and Trans-american Properties, Inc., for use in the construction of the North-South Expressway in Louisville. The property fronts on First Street for 197.83 feet and extends back uniformly 222 feet to Brook Street. The land was improved with a brick depot building originally erected in 1910; an office was added to this structure in 1929; and a metal building used as a service garage was constructed in recent years.

The Jefferson County Court entered judgment of $147,950 for appellees, pursuant to the commissioner’s award. The parties on both sides appealed to the circuit court where a trial resulted in a verdict and judgment of $175,000.

The Department brings the case to this Court, urging a reversal of the judgment on the grounds: (a) That evidence of sales by landowners to a public urban renewal agency was improperly admitted on cross-examination as proof of comparable real estate transfers; (b) that certain plats and photographs permitted to be introduced should have been excluded; (c) that the amount of documentary tax stamps on deeds was wrongfully allowed to establish the consideration of the sale prices of certain parcels of land; and (d) that the deposition of Clifford W. Dorman should not have been read to the jury over the Department’s objection.

As to the first point raised, appellant’s appraisal witnesses, Robert Adelberg and Sidney Jenkins, Jr., testified concerning a comparable sale consummated in 1963 of a block of land situated a short distance north of appellees’ tract. The real estate was conveyed by the Urban Renewal Agency of Louisville to a Mrs. Stattman. This sale was made in the open market after the Agency had acquired from the original landowners the block consisting of a number of parcels with improvements on them. The Agency thereafter razed all the structures. The purchase price paid by Mrs. Stattman, according to these witnesses, was $3.50 per square foot for the bare land.

Adelberg and Jenkins, using this comparable sale as a measure for appraisal, together with other factors not in issue, fixed the value of appellees’ land at $3.15 to $4.00 per square foot. Jenkins believed appellees’ tract should be valued at the lesser figure because it was smaller in size than a block.

In the cross-examination of Adelberg and Jenkins, counsel for appellees produced before them a plat of the block which purported to show the individual parcels of property, as to size and location, before the block was purchased by the Agency. On this plat, which appellees had caused to be prepared from a map in the office of the finance department of the City of Louisville, measurements of all the boundaries of each parcel of land were noted. Several deeds of certain individual parcels in the block which were conveyed by the original property owners to the Agency were exhibited to Adelberg and Jenkins; and they were instructed to examine these instruments and state to the jury the amount of money represented by the documentary tax stamps placed on each deed.

These witnesses were then called upon to compute and divide the number of square feet in each parcel by the alleged purchase price, arrived at by figuring the total amount of the tax stamps on the deed, in order to estimate the square-foot value of each lot transaction. The outcome of this testimony, claimed to have been brought out only for impeachment purposes, revealed a price paid by the Agency ranging from $4.95 to $6.75 per square foot. Appellant objected to the introduction of all this testimony.

Was the attack upon the credibility of a subsequent sale made by the Urban Renewal Agency resorted to in a proper manner? This Court has uniformly held that a land transaction made under threat of condemnation is inadmissible as a comparable sale.

Under the urban renewal statutes, it is made clear that the land sought is not obtained on a random, voluntary basis. Rather, an entire slum or blighted area (see KRS 99.340(7) (a) and (8)) is designated as such by certain public agencies and by the legislative body of the city or county (ICRS 99.370(6)). The statutes then make the urban renewal agency responsible for «* * * the acquisition of individual pieces of property in the designated areas either by purchase or eminent domain, the replatting or replanning of the area * * * and the subequent sale or lease thereof to private individuals or public agencies under restrictions compelling conformity to the over-all plan * * See Miller v. City of Louisville, Ky., 321 S.W.2d 237. Thus, acquisitions of land under an urban renewal plan are very similar to acquisitions for right of way by the Commonwealth, acting through the Department of Highways. As to either, the acquisitions are forced and confined to the designated area. We might add that such a situation exists with reference to any agency clothed with condemnation power.

In Stanley’s Kentucky Instructions to Juries (2d Ed.1957), sec. 360, p. 568, this statement appears: “The market value is the price which it (the subject property) will bring when it is offered for sale by one who desires to sell, but is not compelled to do so, and is bought by one who desires to purchase, but is not compelled to have it.’ (Our emphasis.)

Indubitably, prices paid by the Commonwealth or by the Urban Renewal Agency in Louisville to acquire rights of way or land under threat of condemnation do not represent sales which meet the fair-market-value definition. A property owner may have no desire whatsoever to part with his property, but he must do so either by negotiation or after expensive litigation. On the other hand, the Commonwealth, or the Agency, must have this very property to complete its plans. No other property will do.

Kentucky law has consistently recognized that sales consummated under these circumstances are not competent evidence of “fair market value.” The element of vol-untariness or freedom from compulsion is lacking. See United Fuel Gas Company v. Mauk, Ky., 272 S.W.2d 810; Louisville & N. R. Co. v. Johnson, 233 Ky. 628, 26 S.W.2d 535; Commonwealth, by State Highway Commission v. Combs, 229 Ky. 627, 17 S.W.2d 748; and Chicago, St. L. & N. O. Ry. Co. v. Ware, 220 Ky. 778, 295 S.W. 1000. Some of the above cases involved the acquiring of land by railroads, but the foregoing principle of law is equally applicable to them.

We conclude the introduction of the incompetent evidence alluded to on cross-examination was prejudicial.

The next two complaints will be considered together. One complaint concerns a plat and certain photographs introduced to identify and bring out points in connection with the block purchased and then sold by the Urban Renewal Agency to Mrs. Stattman. The other refers to computations of the amount of documentary tax stamps on the deeds shown to the witnesses, Adelberg and Jenkins, and which were used on the cross-examination of them to establish the consideration of certain lot sales when the Agency bought these lots as a portion of the same block. Such methods were employed in developing testimony in respect to lot transactions as proof of comparable sales which sales, for the reason noted above, should not have been allowed as evidence. We believe that, in the event of another trial of this case, these items will serve no evidentiary purpose and we therefore assume they will not be resorted to.

A final point argued is that it was error to allow the deposition of Clifford W. Dorman to be read as a part of appellees’ proof. It is asserted Dorman was not shown to be qualified to offer an opinion as to Louisville real estate. It appears Dorman was deceased when this case was tried. CR 26.04(3) provides that the deposition of a witness may be read at the trial if that witness is dead and the trial court so finds. There is nothing in the record before us to indicate whether the trial court made such finding. This is a requirement that should be followed. Unquestionably, the provisions of CR 26.04(3) will be satisfactorily complied with if another trial be had; so the question of Dorman’s qualifications as a witness will be briefly considered.

Dorman’s statements demonstrate he was a professional appraiser, and had lived and done appraisal work at Lexington for the past eight years prior to his testimony. The deposition not only discloses that he was amply trained to make appraisals of land but, further, that he had viewed the property and studied the real estate values in the same area. Besides, it is shown he had made other appraisals in Jefferson County. See Commonwealth, Department of Highways v. Citizens Ice & Fuel Company, Ky., 365 S.W.2d 113.

We are of the opinion this witness showed the necessary experience to give an expert appraisal estimate in this case.

Wherefore, the judgment is reversed for consistent proceedings.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Claude BURDEN et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Dandridge F. Walton, Madisonville, L. A. Faurest, Faurest & Collier, Elizabethtown, for appellant.
    Clarence Bartlett, Woodward, Bartlett & McCarroll, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellees.
   CLAY, Commissioner.

In this condemnation suit the jury awarded the landowners $12,500 for approximately 15 acres of land taken (which landlocked an additional five acres). The Commonwealth claims excessiveness in the light of the evidence.

This was farmland with improvements on it. Some of the land had been cleared but most was timberland. Certain improvements were taken, consisting of a barn, a crib and a shed.

Though the apparent best use of the land was for farming purposes, the defendants claimed it had valuable coal deposits. There was some evidence that there was strippable coal of commercial value, although there was very substantial evidence to the contrary. The property at one time had been mined but no mining operations had been conducted for over 15 years. It is apparent the same property could not have substantial value as both farmland and coal land because it could not simultaneously be used for farming purposes and strip mining purposes. See Commonwealth, Dept. of Hys. v. Gearhart, Ky., 383 S.W.2d 922. Yet it was a duplication of these uses which led to one of the landowner’s estimates ol values. No comparable sales supported his estimate. He was the only witness for the defendants who testified as to land values.

Principally to rebut the claim that the property had value by reason of the underlying coal, the Commonwealth sought to introduce in evidence the price defendants had paid for it when they bought it 15 years before ($1,100). It is claimed the trial court improperly rejected this evidence, but we do not agree. Since it was so remote in time and the property had been substantially improved since its purchase, this evidence would have little relevance to present market value. If it had been introduced, it would have been necessary for the court to admonish the jury about its relevancy with respect to the coal, and it had no substantial materiality on this issue. (It was otherwise shown that the former owner had abandoned coal production on the land.)

The jury’s verdict was in the following form:

Improvements -$ 9,000
Damages - 1,000
Land- 2,500
TOTAL_$12,000

The Commonwealth contends there was no evidence to support the $9,000 allowed for -the improvements. These consisted of a barn, a crib and a shed, which the landowner himself valued in toto at $5,850. Other witnesses valued the barn as high as $6,500, but at least one of them substantially over-estimated the dimensions of the barn. Taking the highest estimate of the landowners’ witnesses, the total value of the improvements was $7,350. While it may be said that the verdict’s additional allowance of $1,650 on this item is not an enormous amount, it is a clear indication the jury was not basing its verdict on the evidence. See Pierson v. Commonwealth, Ky., 350 S.W.2d 487; Commonwealth, Dept. of Hys. v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249.

On the whole case we are of the opinion that the evidence as to land values and improvement values does not support the verdict, which was excessive.

The judgment is reversed, with directions to grant a new trial.


author: MQREMEN, Chief Justice.

text:
    Leora D. ALCORN (Now Mrs. Clayton J. Walton), Appellant, v. Henry D. ALCORN, Appellee.
    Court of Appeals of Kentucky.
    March 26, 1965.

      John D. Sword, Chenault, Coy & Sword, Richmond, for appellant.
    Hunter M. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellee.
   MQREMEN, Chief Justice.

This case involves the custody of an eight year old child. On August 5, 1960, Mrs. Leora D. Alcorn was, by judgment of the Estill Circuit Court, granted an absolute divorce from her husband, Henry D. Alcorn. Mrs. Alcorn was granted custody of her son, Stephen D. Alcorn, and Mr. Alcorn was given the right of reasonable visitation.

On March 26, 1964, Mrs. Alcorn was married to Lt. Col. Clayton J. Walton, an officer in the United States Army, stationed at the Lexington Bluegrass Army Depot. Mr. Alcorn also has remarried.

On December 7, 1964, appellee Alcorn filed a motion to re-docket the original divorce proceeding for custody of the child or, alternatively, that the mother be prohibited from taking the child out of Kentucky. It developed at the hearing that Col. Walton had received orders transferring him to Okinawa in April of 1965 for a two-year tour of duty. It was shown that both parents were of high moral character and well able to furnish the child with satisfactory home conditions if either had custody of him. The court entered a judgment which sustained the motion to re-docket the case, pointed out the fact that the original judgment had given to the father the right to visit the child and to keep him for a reasonable length of time, and concluded that it would be a violation of the terms of the judgment to take the child to Okinawa, Japan, because the father would thus be denied the right of visitation and the right to have the child with him during certain periods. The judgment then provided:

“For the reasons aforesaid, it is now ORDERED AND ADJUDGED by the Court that the plaintiff have custody of said child, but if she and her husband go out of the United States and overseas during said period of time the defendant is granted temporary custody of said child, and the temporary custody of said child is so awarded as long as the plaintiff and her husband reside outside the United States, and upon her return she is given the right to custody of said child with the rights of visitation by the defendant as provided in the judgment of August 5, 1960.”

It is a fundamental rule of law that other considerations being equal, the mother is entitled to care, custody and control of children of tender years. Hatfield v. Derossett, Ky., 339 S.W.2d 631. The record is abundant with proof that this, child has been well cared for, is making-high scholastic grades and is living a normal life. We are faced therefore with the question as to whether the denial of visitation rights of the father for a period of about two years is sufficient to override, the best interests and welfare of the child. We have repeatedly held to the contrary. Duncan v. Duncan, 293 Ky. 762, 170 S.W.2d 22, 154 A.L.R. 549; Bowman v. Bowman, 313 Ky. 806, 233 S.W.2d 1020; and Byers v. Byers, Ky., 370 S.W.2d 193. It is apparent also that if the judgment of the lower court is permitted to stand the mother would be denied visitation rights for the same reason the father now assigns.

This Court has long adhered to the rule that an order pertaining to the custody of a child may be modified only upon proof showing a change of conditions. Hatfield v. Derossett, Ky., 339 S.W.2d 633. The fact that visitation is made more difficult for one of the parents does not amount to a change of condition under our cases.

Judgment reversed.


author: DAVIS, Commissioner.

text:
    Anna A. MOTLEY, Appellant, v. Willie R. VINCENT, Appellee.
    Court of Appeals of Kentucky.
    March 26, 1965.
    G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, for appellant.
    E. R. Gregory, Harold D. Ricketts, Bowling Green, for appellee.
   DAVIS, Commissioner.

This appeal presents questions arising out of mutual accounts between appellant and appellee, wherein appellant maintains that appellee has made incorrect charges and failed to allow certain due credits. The trial court referred the matter to the master commissioner for hearing and report. The master commissioner conducted an extensive hearing and made his report which rejected the claims of appellant. Thereupon the appellant filed exceptions to the report of the master commissioner. The trial judge then reviewed the record and report of the commissioner and overruled appellant’s exceptions. The commissioner’s report was adopted by the trial court, and judgment went accordingly. CR 53.04(2).

The appellee owns and operates a retail building materials outlet, from which he dispenses lumber and various other merchandise used for construction. Appellant has for several years engaged in the work of planning and building residences for ultimate sale. In the course of her activities in this pursuit, appellant has been a long-time customer of the appellee. Appellant bought materials from appellee for twenty-four residence construction jobs, upon which she was working in her individual capacity.

Additionally, the parties verbally agreed to undertake a joint venture looking toward the construction of three residences. In general, the verbal agreement as to these three houses provided that appellant would furnish the plans and supervise the work for their construction; that ap-pellee would furnish the requisite materials, at regular prices, and when the houses were sold there would be an equal division of the net profits. Appellee was to arrange for the financing of the three houses during construction.

As the various houses were completed, whether the houses built individually by appellant or the joint-venture houses, appellant and appellee conferred and went over their accounting. Appellee testified that at such times he would furnish appellant duplicates of the various invoices in support of the charges as to' a particular project. Appellant stated that only a portion of the invoices were made available to her, so that she had no way to accurately compute the proper charges.

According to appellee’s proof, the charges against the account of appellant always exceeded the credits due, so that appellee “quit doing business” with appellant in June, 1961, when the net balance due from appellant to appellee was $5,116.74. The litigants had been in discussions just prior to June 24, 1961, concerning the status of the account; the statutory time for perfection of a materialman’s lien on a house was about to expire, and appellee was pressing for payment. Appellant, meanwhile, was expressing the view that a proper audit of the accounts would reveal that she had been overcharged and underered-ited.

On June 24, 1961, appellant signed a statement of account, written on the bill head of the appellee which (omitting the caption) recites:

“Bal on note 385.56
Lansdale House 4,693.54
Johnson St 37.64
Total net 5,116.74
(signed) Mrs. William Motley June 24, 1961.”

For the appellee it is insisted that this document was a recognition of the correct standing of the account; for appellant it is urged that the paper merely reflects that the debits against appellant for the items shown are as shown, and that it was understood between the parties that the true state of their mutual accounts was to be ascertained by an actual audit.

On July 17, 1961, the appellee instituted this suit seeking to recover from appellant the three items listed above, together with interest thereon and costs. Ancillary relief was sought with respect to enforcement of a lien claim. Appellant filed answer, counterclaim and amendments thereto in which she denied any indebtedness to appellee and asserted that appellee should pay her the sum of $31,997.15. Appellant prayed that the matter be referred to a certified public accountant for report of the true status of the accounts. • Pursuant to the terms of an agreed order the trial court did refer the case to a certified public accountant. The agreed order provided that the fee of the accountant should be taxed as costs and ultimately paid as directed by the court. The accountant declined- to serve until the parties posted bonds securing his estimated fee for services; the appellant declined to execute bond, so the trial court referred the matter to the master commissioner.

Appellant’s assertions of incorrect and improper charges may be said to be multitudinous in the testimony, but in brief these are narrowed to three specific items, plus one “catch-all” attack.

The first point relates to a check of $1,746.79, which appellant gave appellee on June 13, 1959. This check purports to serve as payment for materials used in the construction of a house at 520 Claremoor Drive, Bowling Green. (This was not one of the joint-venture houses.) The only identifiable credit which appellant received for the check is the sum of $346.79; thus, she contends that she is clearly entitled to a credit of an additional sum of $1,400. To counter this, the appellee showed that the accounting, house by house, was actually on a basis of “robbing Peter to pay Paul.” Receipts from the sale of one house would be used to pay for materials furnished for another — so that appellant remained constantly in arrears on the running account. Admittedly, the account books are “tangled”' — but as appellee expressed it on cross-examination:

“Q369. You know of anywhere that anybody could get a set of books in any worse or more confused state than you have got yours?
“A. Well now on — (interrupted).
“Q370. That is with Mrs. Motley.
“A. We have been keeping these books for thirty-five years but now if they are tangled up it is because she got them tangled.
“Q371. You are the one — (interrupted).
“A. Borrowing on one house and paying on another clear through there for about five years.”

The master commissioner found, and the trial court confirmed the finding upon his own independent examination of the record, that the evidence of the appellee “adequately explained the records * * * as to the errors claimed * * * and further showed that the errors made were * * * about even and merely mathematical bookkeeping errors.” We hold that this finding is adequately supported by the record.

The second substantial claim relates to charges of interest and loan service charges incurred by appellee incident to construction loans on the three joint-venture houses. These were charged against gross receipts for the three houses in the total sum- of $2,338.67. Appellant insists that the verbal agreement was that appellee would advance the capital, hence he should not be permitted to include any interest or service charge. The appellee denied that the agreement so envisioned the matter. The trial court chose to believe appellee, and we cannot observe any particular wherein he was required to believe appellant on this point.

The third main claim is that appellee “overcharged” appellant for the materials furnished, in the various houses. This claim is based on appellant’s assertion, which she supported by her own and other evidence, that residential construction of this type should, and normally would, cost not more than $3.50 per square foot. Appellant then undertook to show that the materials in question showed that these houses cost more, or an average of $4.42 per square foot. Two difficulties with this view are observed; the appellant was not able to show an accurate computation of the number of square feet involved — and the verbal agreement did not have anything to do with square foot cost anyway. Moreover, appellee caused an actual survey to be made of the houses and produced calculations reflecting that the average cost was actually less than $3.50 per square foot. The trial court accepted that testimony, and had a right to.

In this same general category, the appellant makes complaint as to the inaccuracy of “settlements” made on the three joint-venture houses. Yet, these settlements were made before appellant signed the document of June 24, 1961. The ap-pellee’s evidence indicates that appellant never made any complaint about the accuracy of any of the accounting until ap-pellee insisted on a final settlement in 1961, followed by appellee’s filing of a material-man’s lien claim.

In a fourth and “catch-all” argument, the appellant calls attention to certain admitted bookkeeping errors by the appellee. Claimed improper charges for sewer connections and certain other relatively minor items are noted. We have pointed out that the trial court and master commissioner concluded that these errors about balanced. They occurred before the appellant’s signing of the June 24, 1961, recognition of “net balance due.” Upon the entire record we are not persuaded that the finding of the trial court was clearly erroneous. Indeed, the preponderance- of the evidence, in our view, favors the appellee. Under these circumstances, the findings and judgment of the trial court will not be disturbed. CR 52.01.

The judgment is affirmed.


text:
    COMMONWEALTH of Ky., DEPT. OF HIGHWAYS, Appellant, v. William H. WIDNER et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.

      John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellant.
    Logan E. Patterson, Patterson & Berger, Pineville, for appellees.
   DAVIS, Commissioner.

The appellees instituted this action against the appellant, Commonwealth of Kentucky, Department of Highways, seeking to recover damages alleged to have occurred by reason of a landslide. The action is prosecuted as a so-called “reverse condemnation” suit. The jury awarded $5,-000 to appellees; the Department seeks to reverse the judgment, and presents these contentions: (1) The circuit court had no jurisdiction, as the asserted cause of action sounds in negligence, so that jurisdiction is exclusively vested in the Board of Claims; (2) incompetent evidence was admitted; (3) the eourt failed to instruct the jury concerning appellant’s theory of defense; and (4) in event recovery is allowed, then a deed from appellees to appellant should be required.

The appellees acquired the subject property in 1952. It consisted of a lot on the slope of Log Mountain, on the east side of U. S. Highway 25-E, about two miles south of Pineville. Some years before appellees bought the property there had been a relocation of Highway 25-E; the old roadway formed the rear or east boundary of appellees’ lot. There was a driveway leading from appellees’ seven-room residence down to existing Highway 25-E. A masonry wall was located between the residence and the old road, and this stood about four feet behind the house.

In 1957 the appellant caused U. S. Highway 25-E to be widened as it passed in front of appellees’ property. The 1957 project consisted of construction of a slow traffic lane on the west side of the highway, across the road from appellees’ lot. According to evidence for appellees (sharply disputed by appellant), some of the earth and some large rocks were disturbed and removed from the east side of the highway incident to the 1957 construction. Appel-lees offered evidence (again denied by appellant) that on numerous occasions, after the 1957 construction, employees of the Highway Department had “cleaned out” the drainage ditch on the east side of the highway. It is contended by appellees that in so doing, the ditch was repeatedly deepened and widened, so as to remove lateral support from the sloping grade upon which appel-lees’ residence was situated.

Evidence for appellees reflects that during the spring following the 1957 construction the bank in front of the residence began to show signs of slippage, and the bank has continued to slide ever since that time. In 1960 some locust trees on the slope in front of the residence began to lean toward the roadway, and large cracks began to appear in the surface of the soil. In late February, 1962, the sliding of the earth became so extended that appellees found it necessary to evacuate their residence. It is plain, from the evidence and photographs in the record, that a substantial landslide has occurred, and that the residence has been rendered uninhabitable in the present state of affairs.

There was evidence for appellees from qualified witnesses who expressed the view that the removal of rocks from the slope, coupled with digging away of earth at the toe of the slope (activities ascribed to appellant and denied by appellant) had so diminished the requisite lateral support as to ultimately precipitate and cause the landslide and its consequent damaging effect. Appellees testified that they saw appellant’s employees, using appellant’s equipment, removing rocks and earth from the toe of the slope; furthermore, appellees professed to have made complaint to the appellant’s employees as to this work, and claimed to have pointed out that such procedure was producing damage.

Appellant’s witnesses flatly denied that any rocks or dirt had been disturbed on the appellees’ (east) side of the road, either during the 1957 construction or in maintenance of the highway thereafter. For appellant it was shown that coal mining activities had been in progress (presumably during all of the pertinent period) within one thousand feet of appellees’ property, and that this mining could have induced the landslide. Further expert testimony was presented in appellant’s behalf that the residence was built on a thalus slope. It was explained that a thalus slope is one formed especially by an accumulation of rock debris at the foot or base of a cliff. Core tests made for appellant indicated that the thalus material was underlain with shale. It was explained that when surface cracks admit water through the thalus material onto the shale, the latter becomes as slippery as wet soap, and a condition occurs making a landslide very likely. There was evidence that rains in excess of an inch per day had fallen for the three or four days immediately preceding the last stages of the landslide. Countering this was evidence of many other heavier rainy seasons during several years prior to the slide; no ostensible damage followed the earlier heavy rains.

Appellees offered competent proof that the market value of their property before the slide was $7,500 to $8,000 and no more, than $200 to $300 afterward. By instruction to the jury, the trial court limited the amount of recovery to $7,400; as noted, the jury awarded $5,000, and no complaint is made that the sum is excessive.

Appellant earnestly and ably argues that the circuit court had no jurisdiction. This contention is pitched on the theory that the cause of action necessarily sounds in negligence, and thus is one within the exclusive jurisdiction of the Board of Claims under KRS 44.070, et seq. The appellant confronts the matter in its brief by posing the issue: “The question is, can appellant ever in the maintenance or construction of its highway remove the lateral support of an adjacent owner except through negligence ? ” It is our view that the answer to that question must be in the affirmative. Indeed, we have substantially so held. See Com., Dept. of Highways v. Litteral, Ky., 319 S.W.2d 458, wherein the following discussion appears respecting removal of lateral support: “If the highway construction plans call for lowering the grade of the road, it is reasonably to be anticipated that there will be an interference with ingress and egress. But it is not reasonably to be foreseen that the lowering of the grade will remove lateral support. Whether lateral support will be removed may depend upon unknown geological conditions.” op. cit, at p. 459.

In 38 Am.Jur., Negligence, § 24, p. 669, it is said: “Generally speaking, no one is bound to guard against or take measures to avert that which, under the circumstances, a reasonably prudent person would not anticipate as likely to happen.” This is an enunciation of the accepted premise that foreseeability of harm is an important factor in determining whether any conduct is negligent. Cf. Long v. Louisville & N. R. Co., 128 Ky. 26, 107 S.W. 203, 32 Ky.Law Rep. 774, 13 L.R.A.,N.S., 1063, 16 Ann.Cas. 673; Mann v. Kentucky & I. Terminal R. Co., Ky., 290 S.W.2d 820; Union, Light, Heat & Power Co. v. Blackwell’s Adm'r, Ky., 291 S.W.2d 539, 87 A.L.R.2d 264.

In City of Newport v. Rosing, Ky., 319 S.W.2d 852, we said of an action against a municipality for damages claimed as resulting from removal of lateral support: “Negligence is not the basis of recovery and the allegations of the complaint with respect thereto were surplusage.” ibid., p. 854. We adhere to that view. We think it is apparent that lateral support could be removed willfully rather than negligently. In any event, we do not perceive that the presence or absence of negligence is necessarily dispositive here.

Our cases which have approved the so-called “reverse condemnation” theory are premised on the constitutionally guaranteed “just compensation” for taking of private property. Ky.Constitution, §§ 13 and 242. The $10,000 limitation of recovery as prescribed by KRS Chapter 44 in negligence actions would offend the Constitution if construed as an effort to place a limitation upon the ultimate amount of “just compensation” as vouchsafed by the Constitution.

Appellant candidly recognizes that the decisions of this court which have allowed recovery in reverse condemnation cases foreclose its argument on this point, but ably urges that we should reconsider those decisions and recant from that position. In Curlin v. Ashby, Ky., 264 S.W.2d 671, this court did review, in part, the decisions involving the reverse condemnation theory; there some doubt was expressed as to the soundness of the doctrine. However, subsequent cases have recognized the principle and the court is not disposed to depart from it now, despite the able arguments presented here. It follows, therefore, that we find no merit in appellant’s claim that the circuit court lacked jurisdiction.

The appellant insists that reversible error occurred when the trial eourt permitted “expert” witnesses to flatly state their opinions that the actions of the appellant caused the slide — as opposed to the contention that their answers should have merely responded that in their opinions the activities “could have” caused the slide. The argument is based on the principle that the answers as given invade the province of the jury. In support of this argument appellant relies upon Darlington v. Owen County RECC, Ky., 299 S.W.2d 599; Aetna Life Ins. Co. v. Bethel, 140 Ky. 609, 131 S.W. 523; and Madison Coal Corp. v. Altmire, 215 Ky. 283, 284 S.W. 1068. The authorities cited support the appellant’s position. On the other side of the coin we note Harris v. Commonwealth, Ky., 342 S.W.2d 535; City of Harlan v. Eversole, 248 Ky. 131, 58 S.W.2d 371; and Nordmeyer v. Sanzone, 6 Cir., 314 F.2d 202, cited by the appellees. Additionally, appellees refer to Kelly Contracting Co. v. Robinson, Ky., 377 S.W.2d 892, wherein we treated as conjectural a doctor’s testimony that “the disease could have progressed in such a manner that the work would have been sufficient to induce a fatal occlusion.”

In Jackson v. Schine Lexington Corp., 305 Ky. 823, 205 S.W.2d 1013, this court quoted with approval from Wigmore on Evidence, 3rd Ed., wherein that learned author levels stern criticism at the “opinion rule.” In Wigmore on Evidence, 3rd Ed., Vol. VII, § 1921, discussing the precise point at hand, it is said:

“Another erroneous test, prevalent in some regions, and nearly allied to the preceding one, if not merely another form of it, is that an opinion can never be received when it touches ‘the very issue before the jury’:
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“The fallacy of this doctrine is, of course, that it is both too narrow and too broad, measured by the principle. It is too broad, because, even when the very point in issue is to be spoken to, the jury should have help if it is needed. It is too narrow, because opinion may be inadmissible even when it deals with something other than the point in issue. Furthermore, the rule if carried out strictly and invariably would exclude the most necessary testimony. When all is said, it remains simply one of those impracticable and misconceived utterances which lack any justification in principle.”

In 2 Jones on Evidence, 5th Ed., § 418, it is written:

“If it may be said that there still exists a general rule to the effect that a witness may not express his opinion upon an ultimate issue of fact, it is obvious that the extensive relaxation of the rule turns it into what amounts to an expression by the courts of reluctance or reserve in the receipt of even expert opinion which would seem to substitute the witness for the jury or the judge in the final decision. On this basis what would seem to be confusion and conflict may be looked upon as reflecting a trend toward a common sense and not an arbitrary view. This common sense view is to receive the opinion testimony where it appears that the trier of the fact would be assisted rather than impeded in the solution of the ultimate problem.”

We are persuaded that the principle is sound which rests on the “common sense” approach just mentioned. In the case at bar we believe that the jury’s determination of the ultimate issue was necessarily assisted rather than impeded by the “expert” evidence, even though it was couched in language which technically invaded the jury’s province as to the ultimate fact. Indeed, it would seem to be the essence of quibbling to say that it would have been proper for the witness to say: “In my opinion the slide was so caused” while holding it to be reversible error to allow the witness to say, “The slide was so caused.” It was obvious to the jury that the witness, even in the latter instance, was yet expressing his opinion, since he was not at the scene when the slide occurred. Under these circumstances we must conclude that the contrary holdings of Darlington v. Owen County RECC, Ky., 299 S.W.2d 599; Aetna Life Ins. Co. v. Bethel, 140 Ky. 609, 131 S.W. 523; and Madison Coal Corp. v. Altmire, 215 Ky. 283, 284 S.W. 1068, are out of harmony with the present view, and to the extent of their conflict with the rule here approved, are overruled. See 78 A.L.R. 755, et seq. Accordingly, it is our view that no reversible error was committed in permitting the witnesses to express as fact their view that the slide was caused by the appellant’s activities.

Appellant contends that the trial court failed to present its defense theory in an appropriate instruction. The claim is founded on the thesis that it was the appellant’s theory that the slide was caused by an act of God; hence, appellant argues, reason and authority require that a specific instruction based on that theory should have been given. One was offered and refused. Cases such as Rogers v. Abbott, Ky., 240 S.W.2d 840, and others of similar import are cited by appellant to support the point. The cases so cited are sound, but are not applicable here.

In the present case the court instructed the jury, in pertinent part: “If the jury shall believe from the evidence that the plaintiffs’ lot, upon which their house was located, was caused to slide or slip by the Kentucky Department of Highways by removing or weakening the lateral support for said lot in the course of maintaining or otherwise working upon the highway fronting the property, then you shall award the plaintiffs * * * damages * * *. Unless you so believe, you shall find for the defendant.” Thus, the jury was required to find as an affirmative matter that the slide was caused by the activities of appellant before it could award a verdict against appellant. The converse clause, “unless you so believe, you shall find for the defendant,” was sufficient to embrace any defense presented. The jury was permitted to include the vis major theory, or the coal mining theory, or any other theory in evidence as the causative element of the damage — the only basis upon which it could find for the appellees was to conclude that the Department’s activities, defined in the instruction, had indeed caused the injury. This was sufficient and proper. See Shewmaker v. Richeson, Ky., 344 S.W.2d 802; Tente v. Jaglowicz, 241 Ky. 720, 44 S.W.2d 845; Louisville & N. R. Co. v. Rowland’s Adm’r, 227 Ky. 841, 14 S.W.2d 174; Harlan Water Co. v. Carter, 220 Ky. 493, 295 S.W. 426.

Finally, and in the alternative, the appellant insists that if the judgment is to be affirmed as to liability, then it should be modified so as to require from appellees a deed. We cannot accept this argument. In the first place, the jury’s award was not for the asserted value of the entire property, so that no basis exists for determination of what should be conveyed. Neither do we think there is merit in the suggestion that failure to require a deed will expose appellant to repeated claims for damages for the same injury. On the basis of the fact that these parties have litigated the issues presented it is our view that the subsequent recovery for the same injury is foreclosed. See Com., Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249, 254; Bowling Green-Warren County Airport Board v. Long, Ky., 364 S.W.2d 167. Appellant’s rights in the matter are afforded adequate protection by the lis pendens notice available through KRS 382.440, et seq.

The judgment is affirmed.


text:
    O. O. DUBLIN, Petitioner, v. Hon. Earl OSBORNE, Judge, Calloway Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    March 26, 1965.

      Harry H. Boaz, Mayfield, for petitioner.
    Martin Glazer, Asst. Atty. Gen., Frankfort, for respondent.
   DAVIS, Commissioner.

The petitioner, O. O. Dublin, seeks an order of mandamus against the Honorable Earl Osborne, Judge of the Calloway Circuit Court, which would require the respondent judge to vacate an order committing the petitioner to the penitentiary at Eddyville. The jurisdiction of this Court is invoked pursuant to Kentucky Constitution, § 110.

Dublin was convicted in the Calloway Circuit Court on two separate charges. In each case the verdict and judgment imposed upon him imprisonment for a term of one year. Each of the cases was appealed to this Court, and both judgments of conviction were affirmed. See Dublin v. Commonwealth, Ky., 372 S.W.2d 416, and Dublin v. Commonwealth, Ky., 383 S.W.2d 343. For convenience we shall refer to the conviction affirmed in 372 S.W.2d 416, as the first judgment and the conviction affirmed in 383 S.W.2d 343, as the second.

Trial in the first case was held October 11, 1962; the judgment of conviction in this case was entered the same day. The appeal from that conviction was taken forthwith, and Dublin remained on bond pending the appeal.

The trial in the second case took place February 28, 1963, and while the appeal in the first case was pending. The judgment of conviction in the second case was entered February 28, 1963, and contained, among other things, the following language:

“ * * * it is the sentence of this Court that the defendant be confined in the State Penitentiary at Eddyville, Kentucky for a period of one (1) year at hard labor, said sentence to run concurrently with the sentence on Indictment No. 2413.” [Indictment No. 2413 was in the first case.]

The appeal in the second case was docketed in this Court April 15, 1963. RCA 1.060. While this appeal was pending, and without notice, so far as affirmatively appears from the record, the respondent trial judge entered an order in the Calloway Circuit Court in the second case bearing date October 11, 1963, which order, omitting caption, is as follows:

“It appearing that the original Trial Order and Judgment in this matter was entered on February 28, 1963, and recorded in Order Book 5 at page 630; and it has now been discovered that said original Trial Order and Judgment is incorrect in that it erroneously states that the sentence imposed on this defendant by reason of his conviction of the charge contained in Indictment No. 2450 was to run ‘ * * * concurrently with the sentence on the Indictment No. 2413’; it is now the order and judgment of this Court that said original Trial Order and Judgment be amended and corrected to read as follows:
“The sentence imposed by reason of the conviction of the offense charged in Indictment No. 2450 is to run consecutive with the sentence imposed upon this defendant by his conviction of the offense charged in Indictment No. 2413.
“Approved, signed and entered of record on this the 11th day of October, 1963.
/s/ Earl Osborne JUDGE, Calloway Circuit Court”

The foregoing order was transmitted from the Clerk of the Calloway Circuit Court to the Clerk of this Court by a letter dated November 29, 1963, and was received by the Clerk of this Court December 2, 1963. There was no motion filed at any time by any party to the appeal, or by the circuit judge or circuit clerk, seeking leave of this Court to file the purported amendment to the judgment.

RCr 10.10, which is the same as CR 60.-01, provides:

“Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.”

By the terms of the Rule, it is necessary to obtain “leave of the appellate court” to make any correction after an appeal has been docketed in the appellate court. As hereinbefore stated, no such leave was sought or obtained.

It appears that Dublin was committed to the penitentiary following the mandate of this Court upon its affirming the first conviction. According to the petition now before us, which is not denied in this respect, Dublin began to serve his sentence on the first conviction on or about January 17, 1964; he was released from custody and paroled on August 17, 1964, after serving seven months of the sentence. His parole time has now expired. KRS 439.354.

Dublin’s petition for rehearing in his appeal from the second conviction was overruled by this Court November 20, 1964, and the mandate of this Court was issued, affirming the judgment of the Calloway Circuit Court, which had been entered February 28, 1963, and which contained the provision that the two sentences were to run concurrently. RCr 11.04. Delk v. Commonwealth, Ky., 285 S.W.2d 169, 57 A.L.R.2d 1406 and cases therein discussed, afford authority for making concurrent sentences of imprisonment imposed at separate trials.

In support of the response filed herein by the respondent is the affidavit of the clerk of the circuit court, wherein that clerk states, in pertinent part:

“The undersigned now states that following the trial and conviction of O. O. Dublin in this Court under criminal indictment No. 2450, the entry in his Minute Book was that the defendant was sentenced by the Honorable Earl Osborne, Judge, to serve one year at hard labor in the penitentiary at Eddy-ville, Kentucky, the sentence to run ‘consecutive’ to a term in the penitentiary to which the same defendant had been sentenced after conviction under criminal indictment No. 2413. Through inadvertence and error on the part of the undersigned in preparing and filing a Trial Order and Judgment from his Minute Book, the sentence imposed by conviction under criminal in-' dictment No. 2450 was written and entered to run ‘concurrent’ with the previous conviction under criminal indictment No. 2413.”

Whether the circuit clerk’s memorandum in the minute book could furnish adequate basis for the trial court’s action in changing the earlier judgment may be debated, but it is not a question we need decide. Cf. Commonwealth v. Chambers, 24 Ky. (1 J.J.Marsh.) 108; Johnson v. Commonwealth, 80 Ky. 377; Happy Coal Co. v. Brashear, 263 Ky. 257, 92 S.W.2d 23. Neither are we disposed to explore the problem as to whether the present situation is appropriately an instance of entry of an order nunc pro tunc. We are of the view that in any event the particular change under consideration was improper, untimely and illegal.

However, it is our view that a more impelling reason requires that the relief sought be granted. Conceding, with deciding, that there existed adequate basis in the record to warrant the revision of the February 28th judgment, it seems fundamental that some reasonable time limitation must be imposed upon the right to alter the judgment affecting so substantially the rights of the petitioner. The net effect of the February 28th judgment was to make the one year sentence imposed in the second conviction run concurrently with the sentence in the first conviction. Thus, the real impact of the February 28th judgment was that Dublin would not be required to serve more than one year in the aggregate, including the year’s imprisonment imposed by the first conviction. Obviously, the amendment had the effect of doubling the time of confinement imposed on Dublin. That this is a matter of material substance is not subject to debate.

Thus, it is seen that Dublin had fully satisfied the February 28th judgment (by serving the sentence concurrently with that imposed in the first conviction) when the mandate issued from this court on November 20, 1964, affirming the February 28th judgment. It is manifestly improper to impose additional confinement upon him now. It is true that the trial court has judicial discretion whether to impose sentences that will run concurrently or consecutively, and to some extent it may be reasoned that the imposition of concurrent sentences is a matter of judicial “grace.” But that does not solve the problem. By parity of reasoning, the trial judge has discretion in fixing the extent of imprisonment when a case is submitted without the intervention of a jury. We suppose it would not be contended that the trial court could impose a one year sentence, see it served, and then conclude that he meant to make it two years and thereby cause the reincarceration of the defendant who had already “paid in full” the actual sentence imposed. In our view, that is the true state of affairs here. Under this state of the record, we have no recourse except to grant the relief sought.

The order of mandamus is granted, and the respondent judge is directed to set aside the order of October 11, 1963, and the subsequent order providing for the commitment of the petitioner to the penitentiary.


author: WADDILL, Commissioner.

text:
    Genrose DeSIMONE, Appellant, v. Kenneth DeSIMONE, Appellee.
    Court of Appeals of Kentucky.
    March 26, 1965.

      Clyde Williams, Jr., Gampbellsville, for appellant.
    Charles M. Summers, Gampbellsville, R. D. McAfee, Louisville, for appellee.
   WADDILL, Commissioner.

Appellee, Kenneth DeSimone, and appellant, Genrose DeSimone, were married during 1952 and approximately ten years later appellee brought the instant action for divorce. In the judgment from which this appeal is taken appellee was granted an absolute divorce and was given the real and personal property. Appellant was awarded custody of two children, granted lump sum alimony of $7,712 and allowed $125 per month for the children’s support.

We need not consider the merits of appellant’s argument that the chancellor erred in granting appellee a divorce since we have no jurisdiction over that portion of a judgment granting a divorce. KRS 21.-060(1) (b) Hinton v. Hinton, Ky., 377 S.W.2d 888.

Appellant contends the chancellor erred in awarding certain property to appellee. The evidence shows that appellee provided the funds for the purchase of their real property and the chancellor so found. Nowhere in the record did appellant testify to having furnished any funds toward the purchase of the property. Since the finding is supported by the evidence the chancellor properly restored the real property to appellee. KRS 403.060.

The alimony award is equal to one-third of appellee’s estate as found by the chancellor. While it is alleged to be inadequate, in the absence of unusual circumstances to the contrary such a minimal amount is sufficient. See Heustis v. Heustis, Ky., 346. S.W.2d 778.

The chancellor found that at the time of the trial appellee’s annual income was $4,500 and appellant’s was $12,000. In view of these findings and other relevant circumstances which appear herein there is no merit to appellant’s contention that the award for child maintenance is inadequate. The chancellor may alter this provision of the judgment upon a showing of change of circumstances.

Since appellant’s attorney was not made a party to this appeal the questioned adequacy of the amount allowed him as a fee is not before us. McDowell v. McDowell, Ky., 378 S.W.2d 814.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    Buddy Wayne LAIRSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 26, 1965.

      Buddy Wayne Lairson, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CULLEN, Commissioner.

Buddy Lairson appeals from an order of the Clark Circuit Court which overruled, without a hearing or appointment of counsel, his motion under RCr 11.42 to vacate a judgment by which he was given a life sentence as an habitual criminal.

The grounds of the motion were (1) that the indictment was defective because it did not state the section number of the habitual criminal statute, and (2) the trial court did not give notice to che Commissioner of Mental Health as required by KRS 203.340.

Neither of these grounds is such as would warrant relief under RCr 11.42. As to the first ground, see Warner v. Commonwealth, Ky., 385 S.W.2d 77. As to the second ground see Mercer v. Commonwealth, Ky., 346 S.W.2d 761, and Etherton v. Commonwealth, Ky., 379 S.W.2d 730.

Since the motion showed on its face that there was no valid ground for relief, the movant was not entitled to a hearing or to appointment of counsel. Odewahn v. Commonwealth, Ky., 385 S.W.2d 163.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. W. A. DOWDY et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., C E. Skidmore, Department of Highways, Frankfort, for appellant.
    White & Clark, Stephen P. White, Jr., Hopkinsville, for appellees W. A. Dowdy, Alice Dowdy and First-City Bank & Trust Co.
    Huddleston & Huddleston, Paul R. Hud-dleston, Bowling Green, for appellee Collins Buick Co.
    B. H. Henard, Hopkinsville, for appellee Texaco, Inc.
   WILLIAMS, Judge.

The Commonwealth of Kentucky, Department of Highways, condemned a strip of land in Hopkinsville seven feet wide and 185 feet long across the front of property owned by appellees W. A. Dowdy and Alice Dowdy. The property was leased to appel-lee Collins Buick Company. Within the strip of land condemned appellee Texaco, Inc. had a sign and two underground gasoline tanks which were leased to Collins Buick Company for $1.00 a year.

Summary judgment in the Christian Circuit Court was granted Texaco, Inc. for expenses incurred in moving its equipment. A jury awarded the other appellees $12,525. The commissioners’ award in county court was $21,274. The Commonwealth appeals for a number of reasons.

This case is reversed primarily because of the flagrantly prejudicial closing argument by one of appellees’ counsel. Referring to loss of business and other improper elements of damages, the attorney noted that, while the instructions stated the law as pronounced by the Court of Appeals, “the law is a ass — a idiot.” Undue reference to incompetent evidence, though agreeing that it is incompetent, brings the improper evidence to the minds of the jurors as vividly as if affirmatively argued. The subtle innuendo that the jury might rectify the law, that is “a ass — a idiot,” compounds the flagrant and callous argument. A portion of the argument is quoted herewith:

“ * * * I think I am not presumptuous here in saying that it does not necessarily represent the views of the Judge who presides here as to what the law is or should be. It is an undertaking to present to you the law as announced by the Court of Appeals. There is no disagreement on the part of counsel for defendants whether or not these instructions are correct. We agree that under the prevailing decisions of the Court of Appeals of Kentucky, this instruction is correct. We agree that this instruction announces the law as pronounced by the Court of Appeals of Kentucky, but forgive us if we say with Mr. Bumble again, ‘The law is a ass — a idiot’. Why?
“Under these instructions you must not consider certain factors that ordinary business men would consider in such a proceeding. You will remember my remarks at the opening of this case when I referred to the diminution in the amount of business done by Collins Buick as a result of the taking of this land, a reduction of $139,000.00 in the course of one year. You must disregard that reduction in business. You must not consider that loss of business under these instructions. Some states, because the law is changed, some jurisdictions take that into account, but not in Kentucky.
“That is not the law m this case. You must not consider the loss of business when you come to find a verdict in this case. You will recall some reference in the evidence to the fact that Collins Buick, in order to stay in business, had to rent another lot and go to an additional expense of operating a separate business. You must not consider that as evidence in this case.”

Objection to the argument was overruled.

The law might indeed qualify as “a ass — ■ a idiot” if it failed to recognize the ill-concealed design and purpose of this argument to persuade the jury to do indirectly the very thing it was being reminded it could not do directly.

Since there will be a new trial, we note that the cost of moving the leased building back to the same relative distance from the new highway as it was from the old is not a proper element to be taken into consideration. Under Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963), the cost of moving a building is not an independent recoverable item of damages. The after value of the property will reflect whether a change in the relative position of the building is detrimental to the market value of the entire property. To recover both for the reduction of the value of the property, if any, because of the change in the highway and for the cost of moving a building back to the same relative position to the highway would be tantamount to double recovery.

Appellant complains that evidence of the value of the leasehold interest was improper because the lessor and the lessee agreed upon the apportionment of the award as between the leasehold and fee interests. On retrial, evidence concerning the leasehold should be admitted as is provided in Commonwealth, Department of Highways v. Sherrod, supra.

A witness based a certain percentage of his reduction in valuation on the presence of a median strip in the center of the highway fronting the place of business. The presence of traffic dividers in the highway is not a proper element of damage in a condemnation proceeding. Commonwealth, Dept. of Highways v. Carlisle, Ky., 363 S.W.2d 104 (1962).

Appellee Texaco, Inc., should not have been compensated for moving its sign and tanks from the property. Both appellant and-Texaco, Inc. considered the tanks and sign as personal property for the purpose of this condemnation action. However, for this purpose they should be considered trade fixtures. Bank of Shelbyville v. Hartford, 268 Ky. 135, 104 S.W.2d 217 (1937). In Nichols on Eminent Domain, section 14.2471(1), page 660, two approaches to the cost of removal problem are discussed. First, no allowance is made for cost of removal of fixtures owned by a lessee. Second, the cost of removal may be considered as bearing upon the market value of the leasehold but not as an independent item of damages.

In Chain Belt Company v. Commonwealth of Kentucky, Department of Highways, Ky., decided March 19, 1965, we held that the policy denying recovery for removal and relocation costs is a sound one. It follows that no allowance may be made for removal costs of these trade fixtures.

On retrial of this case the “before” value of the property shall be calculated without the trade fixtures. Otherwise the fixtures would be included in the value after they have been removed and salvaged.

The judgment is reversed for a new trial.


author: STEWART, Judge.

text:
    Alma Sutton JONES, Appellant, v. Harold SUTTON, Appellee.
    Court of Appeals of Kentucky.
    March 26, 1965.

      William R. Forester, Greene & Forester, Harlan, for appellant.
    William S. Tribell, Tribell, Tribell & Tribell, Middlesboro, for appellee.
   STEWART, Judge.

Alma Sutton Jones appeals from an order of the Harlan Circuit Court transferring the custody and control of two infant children from herself, their mother, to Harold Sutton, their father. Thus we are presented with the ever difficult question of determining which parent should have the care of their children.

Appellant was granted a divorce from appellee on January 9, 1964, the grounds being cruel and inhuman treatment on the part of appellee. The trial court found appellant to be better suited to have the custody and control of their two children, a boy five years old and a girl two and one-half.

Appellant, upon the severance of her marriage ties, was employed at the Robin-ette Chevrolet Company in Harlan. Shortly after she began working she met Robert Jones, another employee of this company, and they appear to have been immediately attracted to each other. Their relationship became intimate and she was soon aware of the fact that she was in a pregnant condition.

Jones, who was at the time married, obtained a divorce from his wife in order to consummate a new marital union with appellant. However, approximately one week prior to the granting of the divorce appellant and Jones, together with her two children, moved into a house at Cumberland and started living together under a husband and wife status.

On August 7, 1964, appellee swore out a warrant charging appellant and Jones with adultery and had them arrested. On the next day, no doubt intending to evade prosecution, they went to Jonesville, Virginia, and undertook to marry. They later found out this marriage was illegal because Jones’1 divorce had not become final. Jones was, however, granted a divorce on August 12, 1964, and he and appellant were legally married on that date. The adultery warrant was then dismissed.

On August 30, 1964, appellee filed a motion to have the custody of the infant children transferred from appellant to him upon the ground that she had “engaged in such lewd and lascivious conduct and other acts” as to establish her unfitness to keep the children under her control.

The facts we have recited came out at a full-blown hearing before the chancellor. The latter awarded the children to appellee for a period of nine months because he “is better suited to the trust.” No finding was made on the question of whether the children were taken from her for moral reasons. The testimony of appellee revealed he is presently living with his parents at Fresh Meadow in Harlan County in a six-room house. The household consists of his father, sixty years of age, his mother, fifty-three, an unmarried brother, twenty-two, and himself. Appellee has not remarried. He has a sister and sister-in-law who stated they would assist him in looking after his children. His sister has one child; his sister-in-law, two. Appellee is employed at a dairy, making $1.25 per hour.

Jones testified he is the office manager of the Robinette Chevrolet Company in Harlan at a salary of $400 per month; that he had never had any social engagements or relations with appellant prior to her divorce from appellee; that he desired to have the custody of the children and felt he could provide for their support and maintenance; that when he and appellant moved into the house at Cumberland it was their intention to get married; and that at no time did appellant encourage him to obtain a divorce from his former wife.

Appellant testified she did not smoke or drink, and felt she could properly take care of the children and rear them in a Christian home and give them the education and care they required. She stated she and her present husband loved her children and that the latter had already been a better father to them than appellee was during the time he and she were married. According to her testimony, she is no longer employed and is able to devote her entire time to the care of her children.

In a proceeding such as the one before us, it has many times been stated that the paramount concern of courts is the welfare and best interest of the children and not the wishes of the parents. Generally, the custody of children of tender years is bestowed upon the mother, unless it, be clearly shown she is a person of unfit character or is unable to provide them with a suitable home. See Sevier v. Sevier, Ky., 280 S.W.2d 526; Youngblood v. Youngblood, Ky., 252 S.W.2d 21; Clark v. Clark, 298 Ky. 18, 181 S.W.2d 397.

There is no testimony in the record before us which would warrant a finding that appellant has been guilty of such lewd and lascivious behavior as to deprive her of the custody and control of her infant children. Unfortunately for her general reputation she was indiscreet in her premarital relations with Jones. Still, there is no intimation whatsoever that she misbehaved with any other man. She stated she was in love with Jones when they became intimate with each other, prior to their marriage. She also stated that at no time did she encourage her present husband to get a divorce, but that she wanted to marry him if he ever became released from his first wife.

We have held in many cases that although the mother had been indiscreet with a man she married shortly after her divorce, such indiscretions do not necessarily brand her as a person unfit to have the custody of her young children. There must, in addition, be evidence of promiscuity. See Ruttencutter v. Ruttencutter, 293 Ky. 556, 169 S.W.2d 604; Clark v. Clark, 298 Ky. 18, 181 S.W.2d 397; Price v. Price, 306 Ky. 214, 206 S.W.2d 924; Hager v. Hager, 309 Ky. 803, 219 S.W.2d 10. Promiscuity is not an isolated incident of sexual relations with one particular person, but denotes an indiscriminate grant of physical favors to persons of the opposite sex without any requirement of love. It was not proven that appellant was a woman of promiscuous immorality.

The question posed in this case is whether it will be to the best interests of these infant children to place them in the home of appellee’s parents where they will be handed from mother to father, to sister, to sister-in-law, each having their own standards of raising families, or whether it will be better to leave them with their mother, who sincerely loves them and can give them a stable home life. There appears to be no question but that appellant and her present husband can and are providing the children with a good environment. Their home is in a good neighborhood, and it is readily accessible to schools which have good facilities.

We, therefore, conclude the interests of the children will be best served by leaving them with their mother.

Wherefore, the judgment is reversed with directions that the original one be reinstated whereby the children are restored to the custody and control of appellant.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. V. E. ALEXANDER et al., Appellees. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. E. D. GIBSON et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.

      John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, James H. Lucas, Dept, of Highways, Bowling Green, for appellant.
    Marshall Funk, Bowling Green, for ap-pellees V. E. Alexander et al.
    Henry J. Potter, Jr., Bowling Green, G. D. Milliken, Jr., Bowling Green, for Warren County, Ky.
   CULLEN, Commissioner.

Believing that Warren County, in then pending condemnation proceedings, would acquire the necessary rights of way, the State Department of Highways entered upon the work of reconstructing Smallhouse Road in Warren County. This involved widening the road and raising its grade. The widening necessitated the taking of small portions of the properties of the Alexanders and the Gibsons, and the grade-raising caused some damage to their remaining lands.

At the time the Department of Highways commenced the reconstruction work, condemnation proceedings brought by the county against the Alexanders and Gibsons were pending, but the county had succeeded in getting the proceedings into an unbelievably messed-up condition. Subsequently the county simply abandoned the proceedings, apparently hoping that by artful dodging it could escape the obligation under KRS 177.060 to pay for the rights of way.

After the reconstruction work was completed the Alexanders and the Gibsons brought suit against Warren County to recover damages for the taking of and injury to their properties. The county moved that the Department of Highways be made a party defendant on the completely fallacious theory that it was an “indispensable party.” The court sustained the motion and the department was brought in as a party defendant. The plaintiffs amended their complaint so as to ask formally for relief against the department, but not to charge the department specifically with any wrongful conduct. The department answered and asserted a cross-claim against Warren County, asking indemnity for any amount adjudged against the department.

The case was tried under the theories applicable in a condemnation suit. The jury was instructed to determine “taking” damages and “resulting” damages. The verdict was: For the Alexanders, $100 for land taken and $3,400 for resulting damages; for the Gibsons, $100 for land taken and $2,650 for resulting damages. Upon the verdict, which did not make any apportionment of the damages between the defendants, the court entered judgments holding Warren County liable for the awards for land taken and holding the Department of Highways liable for the resulting damages. The department has appealed from those judgments.

Under KRS 177.060(1) the county is required to pay “all cost of acquiring any necessary land or right of way for primary road purposes and all damages incurred.” This means that the county is liable both for “taking” damages, and for “resulting” damages to the extent that the latter are attributable to proper construction of the highway. Muhlenberg County v. Ray, 215 Ky. 295, 284 S.W. 1074; Perry County v. Townes, 228 Ky. 608, 15 S.W.2d 521; Fallis v. Mercer County, 236 Ky. 315, 33 S.W.2d 12; Barass v. Ohio County, 240 Ky. 149, 41 S.W.2d 928; City of Ashland v. Queen, 254 Ky. 329, 71 S.W.2d 650. This includes damages incidental to and directly resulting from the carrying out of the plans and specifications for the construction. Commonwealth, Dept. of Highways v. Thacker, Ky., 384 S.W.2d 79. However, the county is not liable for negligent or improper construction by the Department of Highways. Barass v. Ohio County, 240 Ky. 149, 41 S.W.2d 928; Bader v. Jefferson County, 274 Ky. 486, 119 S.W.2d 870; Hopkins County v. Rodgers, 275 Ky. 778, 122 S.W.2d 743; Dept. of Highways v. Corey, Ky., 247 S.W.2d 389.

In the instant case there was no allegation of negligent or improper construction by the Department of Highways, nor was the case submitted to the jury on any such theory. The damages sought and awarded were of the kind for which the county is liable. While the Department of Highways may have incurred a liability to the property owners, because the department took and damaged their land without authority or compensation, the department is entitled to be indemnified by the county because the law makes it primarily liable for these damages.

It is our opinion that the trial court erred in not awarding judgment against the county on the Department of Highways’ cross-claim for indemnity.

The department argues that the trial court erred in ruling that the department was an indispensable party. It is exceedingly doubtful whether a party brought into a case as a result of ruling that he is indispensable can ever claim prejudicial error from such ruling, cf. CR 21, but in any event we think there can be no serious prejudice in the instant case because the department will be indemnified of the liability adjudicated against it.

The department complains of alleged error by the Warren Circuit Court in certain judgments it entered in the condemnation suits which the county had brought against the Alexanders and the Gibsons. Since no one has appealed from those judgments, and since the department was not a party to those suits, obviously the department is not entitled to claim error in those judgments.

To the extent that the judgments in the instant actions deny relief to the Department of Highways on its cross-claim for indemnity against Warren County they are reversed, with directions to enter judgments requiring the county to indemnify the department for all sums adjudicated against the department in these actions.


author: PALMORE, Judge.

text:
    David JONES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 26, 1965.

      William O. Miller, Maysville, for appellant.
    Robert Matthews, Atty. Gen., George Rabe, Asst. Atty. Gen.» for appellee.
   PALMORE, Judge.

The appellant, David Jones, was convicted of a felony under KRS 435.105 and sentenced to five years in prison. He appeals from a denial of his subsequent RCr 11.42 motion to vacate the judgment.

The overruling order was entered on the basis of the record and without a hearing, and although it recites facts and circumstances that did not appear on the face of the record, which we do not think is authorized by the rule, nevertheless the record of the original proceeding is sufficient without the additional ex parte information to negate any right to relief on the grounds stated in the motion. Those grounds are:

1. The movant was granted a preliminary hearing (examining trial) “just eight (8) days after the signing of the warrant, and had counsel only on the morning of the actual hearing, and was without counsel or advice during the time of his incarceration.” His argument on this point is not that he was in any way prejudiced by the delay, but that he did not have an adequate opportunity to prepare a defense.

The record discloses that Jones was arrested pursuant to a warrant dated June 19, 1963, and appeared before the Augusta Police Court with counsel on June 26, 1963. He declined to plead or testify, so the court heard evidence by the complaining witnesses, following which Jones was bound over to the Bracken Circuit Court and his bail bond set at $1,000. This proceeding was stenographically reported and transcribed.

Accepting as true the allegation that Jones had no lawyer until the day of the examining trial, we do not know of any provision or principle under which, even if he had been indigent and demanded counsel (which is not alleged or suggested), the state would have been obliged to furnish him one before that time. He did have two attorneys of his own choice on the day of the examining trial, and they did not see fit to ask a continuance. Under the circumstances there was no denial of rights, nor could there have been any prejudice arising out of the time and manner in which the examining trial was held.

2. The copy of the indictment furnished the movant by the circuit court clerk did not show the names of the witnesses endorsed thereon as directed by RCr 6.08.

The records show that the names of the witnesses actually were endorsed on the indictment. Moreover, RCr 6.08 expressly provides that failure to endorse the names of the witnesses shall not affect the validity or sufficiency of the indictment. In fact, defects in the indictment will not support a collateral attack anyway. Warner v. Commonwealth, Ky., 385 S.W.2d 77 (1964).

3. The movant was not represented by counsel at his arraignment.

Counsel employed by Jones was not present when, two weeks before the trial, he was arraigned. The court thereupon appointed another attorney to represent him at the arraignment, and a plea of not guilty was entered. Thus he was neither deprived of counsel nor prejudiced.

4. On the day of the trial it became necessary for the court to appoint an attorney to defend him, and the attorney, though unprepared, would not heed his entreaties to request a. continuance.

According to the ex parte information contained in the order from which the appeal is taken, this allegation is flatly untrue, in that the attorney who conducted the trial in behalf of Jones had been employed by him well in advance of the trial date and was never appointed by the court. The record does not indicate any court appointment of counsel. But even if we assume the allegation to be true, it shows nothing more than a disagreement between Jones and the attorney as to how the case ought to be conducted. It is our opinion that the failure of counsel, even if appointed on the day of trial, to request a continuance at the defendant’s insistence, would not of itself support a motion to set aside the conviction on the ground of ineffective assistance of counsel.

S. The trial was not stenographicaily reported, and the movant was denied an appeal. Though he did not request a reporter or seek to perfect an appeal, he had not been advised of his rights in these respects.

Again, the answer to these allegations is that Jones had counsel, who had knowledge of his rights.

In closing, we think it appropriate to observe that the circuit court has extended to this particular appellant more than was required by the law, in that he was furnished a transcript of the record before the filing of his RCr 11.42 motion (which enabled him to embark on this wholly unwarranted fishing expedition) and was furnished counsel to represent him on this appeal. He was not entitled to either. Jones v. Breslin, Ky., 385 S.W.2d 71 (1964); Moore v. Ropke, Ky., 385 S.W.2d 161 (1964); Jennings v. Commonwealth, Ky., 380 S.W.2d 284 (1964); Maye v. Commonwealth, Ky., 386 S.W.2d 731 (1965).

Judgment affirmed.


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. William R. ROBERTS et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Thomas L. Withers, Mitchell & Withers, Henderson, for appellant.
    William M. Deep, King, Deep & Brana-man, Henderson, for appellees.
   MONTGOMERY, Judge.

The Commonwealth of Kentucky, Department of Highways, appeals from a judgment in favor of William R. Roberts and wife awarding $1,000 for permanent right of way and $6,750 for damages to the remaining land. The case was tried prior to the decision in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844. The Commonwealth contends that the trial judge erred in admonishing the jury that it could award damages to the remaining property by reason of the loss of a service road.

The property taken was for the improvement of U. S. 41 south of Henderson by construction of an additional two lanes on the east side of the existing two-lane pavement. A strip of land with 122 feet frontage and an average depth of 15 feet, or a total of 1,830 square feet, was taken. It was located between the remainder of appellees’ property and a 40-foot service strip or road known as Southside Drive lying next to the then existing highway right of way. In front of appellees’ property appellant took for construction purposes the 40-foot service strip and the 15-foot strip.

Appellees’' property was a lot in Lake-land Subdivision. The recorded plat of the subdivision contains the following recitation:

“Containing 95 acres, more or less, excepting all legal highways, right of ways, streets and alleys shown on this plat which are hereby dedicated to the public.”

By pretrial order the regular trial judge held that “the property owners do have a right to recover from the Commonwealth for damages to the remainder of their property by reason of the taking of the service road.” Timely objection was made by appellant.

The special trial judge, pursuant to the order, admonished the jury as follows:

“ * * * the property owner is not entitled to receive any compensation for the taking of the service road by the State for the reason that the service road is dedicated to the public use and isn’t owned by the land owner as such, but the landowner is entitled to your consideration for an award in damage — if you think there is any— to the remainder of his property by virtue of the taking. * * *.”
* * *
“* * * He is not entitled to be paid for that because he doesn’t own it, but if the taking of it in your opinion from the evidence damages this property then that’s an element of the damage. * *

At this point the Commonwealth renewed its objection to any allowance of damages or any consideration of any ownership by the landowner of any rights in the 40-foot dedication, relying on Commonwealth, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104, and Department of Highways v. Jackson, Ky., 302 S.W.2d 373. Other authorities to sustain the objection are: Commonwealth, Department of Highways v. Denny, Ky., 385 S.W.2d 776; Commonwealth, Department of Highways v. Herndon, Ky., 378 S.W.2d 620; and Commonwealth, Department of Highways v. Raybourne, Ky., 364 S.W.2d 814. In the light of these cases it was error to permit the jury to consider the loss of the 40-foot service strip in determining the damages to appellees’ property.

There is no merit in the contention that there was no dedication or acceptance. Hedge v. Cavender, 217 Ky. 524, 290 S.W. 342; Shurtleff v. City of Pikeville, 309 Ky. 420, 217 S.W.2d 976; and Cassell v. Reeves, Ky., 265 S.W.2d 801.

Appellees’ contention that appellant invited the error by reference to the closing of the service road is untenable since the trial court, over objection of appellant’s counsel both before and during trial, permitted consideration of this factor by the jury. There was no alternative but to discuss it since the court had admitted it.

Appellees also contend that there is no claim that the verdict is excessive. The only thing in issue here is the question of how much damages should properly have been allowed by the jury. If the appellant had not felt that the damages were excessive, it is unlikely that there would have been an appeal. Ordinarily the Court would not be justified in reversing a judgment for excessive damages unless such a claim is made. However, where there are other specific claimed errors, it is implicit in the appeal that a prejudicial effect is claimed in the amount awarded, and it is unnecessary to state specifically that the award is excessive by reason of the errors claimed.

Judgment reversed.


text:
    COMMONWEALTH of Kentucky, DEPT. OF HIGHWAYS, Appellant, v. Diri D. WIREMAN et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.
    Robert R. Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., C. E. Skid-more, Frankfort, for appellant.
    Marcus Mann, Earl R. Cooper, Salyers-ville, for appellees.
   DAVIS, Commissioner.

A jury of the Magoffin Circuit Court awarded $22,000 to the appellees in this condemnation action; the Department of Highways appeals from the ensuing judgment, which it asserts is for an excessive amount. The sole ground upon which the appellant relies is the failure of the trial court to strike appellees’ appraisal evidence as incompetent and improper.

The property involved is a tract of land about one-half mile from Salyersville, and was divided by Kentucky Highway No. 7 before the taking. There is disagreement between the parties as to the actual total acreage in the tract before the taking. For the Department it was said.that the original boundary contained 12.9 acres; this computation was made by use of a planimeter by a qualified engineer. According to the engineer, the boundaries of the tract were well-defined and afforded ample basis for computing the acreage of the tract by the planimeter method. The witness stated, from his experience and training, that the planimeter method produces accurate results.

Appellees’ witnesses considered that the tract contained nineteen acres before the taking; they based this estimate on the records at the local ASC office. Additionally, they bolstered this estimate by expression of their own belief that the boundary encompassed about nineteen acres, based upon their experience in estimating acreage by visual “survey.”

According to the Department’s engineer, the land taken comprises 7.72 acres, some of which is taken from each side of Kentucky Highway No. 7. This same witness said that after the taking there would remain 1.89 landlocked acres on the south side of the taking and 3.29 acres on the north side. The latter tract is virtually landlocked too, since its topography makes impracticable any effort to gain vehicular access to it. The parties are in accord that the after value of the property is slight; the jury found the after value to be only $500, and the appellant concedes that it has no quarrel with that finding.

Before the taking about 4.5 acres of the original boundary lay on the south side of Highway No. 7; this tract was substantially level and ran back to the Licking River. It had frontage on Highway No. 7 of about 300 feet. It contained the best land, much of which was bottom land. Situated on this tract was a garage, a two-room apartment, a shed and a grist mill. Photographs of these improvements are in the record, and indicate that they were of a somewhat rough type of construction.

On the north side of Highway No. 7 the land was mountainous; there was a valley on the north side, in which were located two dwellings, a combination stock and tobacco barn and other small outbuildings. This tract also contained a pond, a drilled water well and a gas well which had supplied gas for the dwelling. The frontage for the northern tract on Highway No. 7 was slightly greater than existed for the south tract, and was about 450 feet. The taking for the right of way includes all of the improvements and substantially land-locks the remaining acreages on each side.

For the Department two appraisal witnesses fixed the total before value as between $11,150 and $11,500. Each of these witnesses fixed slight after values, so that the difference in before and after values was found to be $11,000 by each of them. The'ir estimates were bolstered by reference to other sales which they deemed to be comparable ones.

For the appellees the range of before values ran from $25,000 to $30,600, and the after value was estimated as extending from $50 to $500. The jury found the before value to be $22,500 and the after value as $500, thus reaching an award for the difference of $22,000.

Each of the valuation witnesses for the appellees admitted on cross-examination that he had reached his before value figure by itemizing separate values to each building, the well, the pond, et cetera. As to each witness, the appellant made timely motion to strike the testimony because of the use of this method in reaching the before value. The trial court sustained that motion as to one of the witnesses, but overruled the motion as to the others. In so doing, we believe the trial court committed reversible error.

This. Court has specifically condemned this method of fixing before market value. The vice of the method is that it fails to relate the itemized values to the over-all market value of the property in question. The subject was fully discussed in Com., Dept. of Highways v. Stamper, Ky., 345 S.W.2d 640, and has been reconsidered in Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472; Com., Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249, and other decisions of this Court. The failure to observe the principles enunciated in the cited authorities impels the reversal of this judgment. Had the trial court stricken the evidence of the witnesses for appellees (as it should have, under the circumstances shown), there would have been no evidence to support a verdict in excess of $11,000. Hence, we must conclude that the failure to strike the testimony was a prejudicial error.

The judgment is reversed for new trial.

HILL, J., not sitting.


text:
    Courtney C. WELLS, Appellant, v. William P. MORTON, Jr., Appellee.
    Court of Appeals of Kentucky.
    March 26, 1965.

      Harold Garland Wells, Alva A. Hollon, Hazard, for appellant.
    J. W. Craft, Jr., Craft & Haynes, Reeves, Barret & Cooper, Hazard, for appellee.
   MONTGOMERY, Judge.

Courtney C. Wells sued William P. Morton, Jr., for damages in the sum of $100,000 arising from newspaper and radio statements that Wells claims are libelous. Wells appeals from the order dismissing his complaint as amended for failure to state facts showing that he was entitled to relief.

In 1963 Wells sought re-election as circuit judge in the 33rd Judicial District, consisting of Perry County. He was opposed in both the primary and general elections. It is alleged that Morton published in the Hazard Herald, a newspaper, and broadcast over radio station WKIC, in the city of Hazard and Perry County, certain “libelous and slanderous matter” set forth in detail in the complaint “falsely and maliciously.”

The character of the allegations and injury is alleged as follows:

“The libelous statements hereinabove set out were directed at plaintiff herein and were intended and designed, to expose said plaintiff to disgrace, ridicule, odium, and contempt in the estimation of his friends and acquaintances and the public generally. Said libelous statements were designed to, and in fact did, impute to plaintiff in his character as a public officer incapacity in that his decisions.have been consistently reversed by the higher courts. Said libelous statements were designed to, and in fact did, charge said plaintiff in his character as a public officer with misconduct and want of integrity in that his decisions were based on bias and prejudice and were unjust by reason thereof; in that he flouted the law by entering the grand jury room; and in that he picked juries contrary to law for political favors and denied the people the right to set thereon. Further said libelous statements charged said plaintiff with being opposed to the moral interests of the community and being a champion of the lawless element thereof.”

Apparently the trial court’s ruling was based on the decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412. See Annotation, 95 A.L.R.2d 1450. Appellee says that this case stands for the proposition “that in a case of this nature it is necessary to allege that the statements were false and that they were made with actual malice, which malice is defined by the Court as being done with knowledge that it was false or with reckless disregard of whether it was false or not.”

Appellee is correct in the statement of what the case stands for except that nowhere in the decision is it held that “it is necessary to allege that the statements * * were made with actual malice * * The decisive portions of the opinion follow:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’- — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
******
“We hold today that the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action, the rule requiring proof of actual malice is applicable. * * * Since the trial judge did not instruct the jury to differentiate between general and punitive damages, it may be that the verdict was wholly an award of one or the other. But it is impossible to know, in view of the general verdict returned. Because of this uncertainty, the judgment must be reversed and the case remanded.”

The Supreme Court then undertook to define “the line between speech unconditionally guaranteed and speech which may legitimately be regulated” in anticipation of another trial. At no place in the opinion did the Court pass on the sufficiency of the pleadings in the case; hence, the statement in appellee’s brief to the effect that “actual malice” must be alleged is erroneous.

The Supreme Court of Alabama, in holding the pleadings in .the New York Times case to be sufficient, said?

“Where, as in this case, the matter published is libelous per se, then the complaint may be very simple and brief (Penry v. Dozier, 161 Ala. 292, 49 So. 909), and there is no need to set forth innuendo.”

See 273 Ala. 656, 144 So.2d 25, 39.

The statement of the Alabama Supreme Court as to simplicity and brevity of the complaint is similar to the requirement of CR 8.01 that a pleading which sets forth a claim for relief shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” CR 8.05 (1).

The following comments are pertinent:

“The purpose of this Rule is to assign to pleadings the function of giving notice and formulating true issues without the requirement that they detail every fact which in the past may have been necessary to constitute a formal ‘cause of action’ or a defense.”
st: £ # £
“The true objective of a pleading stating a claim is to give the opposing party fair notice of its essential nature, the basis of the claimant’s right, the adverse party’s wrong, and the type of relief to which the claimant deems himself entitled.”

See Clay, CR 8.01, Comments 2 and 3, pages 128 and 129.

In Ewell v. Central City, Ky., 340 S.W.2d 479, the rule as to the construction of pleadings was stated thus:

“As pointed out in author’s note No. 7 to Rule 12.02, Clay’s Kentucky Civil Rules, a motion to dismiss for failure to state a claim takes the place of the former general demurrer with the exception that under the rules a pleading should no longer be construed against the pleader and the court should not dismiss unless it appears the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim.”

The complaint dismissed gave the ap-pellee more than adequate notice of the fact that he has been charged with falsely and maliciously publishing by newspaper and broadcasting by radio a number of statements which are claimed to have been It-belous on their face, and that appellant seeks to recover damages from him by reason thereof. It was unnecessary to allege “actual malice” which will not be presumed but must be proved as defined in the New York Times case. The complaint is not attacked in any other respect and is sufficient. Robbins v. Treadway, 25 Ky. (2 J. J.Marsh.) 540, 19 Am.Dec. 152; Dixon v. Chappell, 133 Ky. 663, 118 S.W. 929; Baker v. Clark, 186 Ky. 816, 218 S.W. 280; Hickerson v. Masters, 190 Ky. 168, 226 S.W. 1072; Digest Pub. Co. v. Perry Pub. Co., Ky., 284 S.W.2d 832. See also Gearhart v. WSAZ Inc., 150 F.Supp. 98, affirmed WSAZ Inc. v. Lyons, 6 Cir., 254 F.2d 242.

The court erroneously dismissed the complaint.

Judgment reversed.

HILL, J., not sitting.