author: WADDILL, Commissioner.

text:
    NASHVILLE COAL COMPANY, Inc., Appellant, v. Thelma EPLEY, Appellee.
    Court of Appeals of Kentucky.
    June 23, 1961.
    Rehearing Denied Nov. 22, 1961.

      Thomas A. Mitchell, Gordon, Gordon & Mills, Madisonville, for appellant.
    Carmol D. Cook, Lake, Bratcher & Cook, Hartford, for appellee.
   WADDILL, Commissioner.

Paul Epley died during the morning of July 22, 1957, after he had entered appellant’s mine where he was employed as foreman. A fellow employee testified that Ep-ley sat down on a bench, slumped forward and toppled to the ground. His head hit a rail of the mine track and his body came to rest with his knees, arms and forehead lying across the track. Within a few minutes he was dead. The bench on which he had been seated had not overturned. No autopsy was performed, nor was there any medical testimony to establish the cause of his death. The only physical evidence of an injury was a 1½" cut across the center of his forehead and a drop of blood at each end of the wound. There was testimony that Epley had been complaining for several months of not feeling well and that he had been suffering from an ulcer and low blood pressure. At the time of his death he was 45 years of age and weighed over 200 pounds.

Both Epley and his,employer had accepted the provisions of the Workmen’s Compensation Act. KRS 342.001 et seq. Following a hearing, the Workmen’s Compensation Board found that: (1) Epley had not sustained an injury of consequence and, (2) Epley had been experiencing ill health for several months prior to his death. Accordingly, the board refused to apply the rule stated in Ellis v. Litteral, 296 Ky. 287, 176 S.W.2d 883, which is to the effect that when death follows soon after an injury to an able-bodied man a presumption arises that the latter caused the former. The board concluded that, without the benefit of the presumption, the evidence was insufficient to establish that Epley’s death resulted from the effect of the mine injury, and dismissed the claim. However, on appeal, the circuit court reversed the order of the board and entered judgment awarding compensation.

The question is raised on this appeal whether the court erred in determining as a matter of law that Epley was an able-bodied man and sustained an injury of consequence (and therefore the claimant was entitled to the presumption that Ep-ley’s death resulted from the mine injury).

Whether Epley, at the time he was involved in the accident, was “able-bodied” (as that term was used in Ellis v. Litteral, supra) and also whether Epley sustained an injury of such consequence that it could result in his death (Hornsby v. International Harvester Company, 310 Ky. 208, 220 S.W.2d 401) are questions of fact to be ultimately decided by the board. This is so even though certain basic or evidenti-ary facts concerning Epley’s physical condition and the character of the accident were agreed upon. Since the Workmen’s Compensation Board is the exclusive fact-finding body in cases of this character the court may not usurp its function when there is probative evidence to support the board’s findings as is clearly apparent in this case. Therefore, the judgment is erroneous.

The judgment is reversed, with directions to set it aside and to enter judgment upholding the order of the board.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, Appellant, v. COLONIAL STORES, INCORPORATED, etc., Appellee.
    Court of Appeals of Kentucky.
    Sept. 22, 1961.
    Rehearing Denied Nov. 22, 1961.
    John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellant.
    Odis W. Bertelsman, Newport, for ap-pellee.
   CULLEN, Commissioner.

The question upon which the Commonwealth seeks a certification of the law is whether the offering for sale at one time, by a retail food market, of 416 separately wrapped packages of meat, each package weighing less than the weight stamped thereon, constituted one offense or 416 offenses under KRS 363.280(4), which prescribes :

“No person shall sell, or offer or expose for sale less than the quantity he represents of any commodity, thing or service.”

The penalty prescribed by KRS 363.990(10) at the time of the offense (or offenses)' here involved was a fine of not less than $25 nor more than $100, or imprisonment in the county jail for not less than 10 days nor more than 60 days, or both.

On July 23, 1958, agents of the Kentucky Department of Agriculture, Division of Weights and Measures, made an inspection of the meat counters and display cases in a food market. They found 416 separately wrapped packages of meat weighing less than their marked weight. The agents caused 416 separate indictments to he returned against the owner of the market. A trial was held on one of the indictments, resulting in a verdict of guilt and a fine of $40. Thereafter the Commonwealth sought á trial on the other indictments but the circuit court sustained a plea of former jeopardy and dismissed the indictments. The Commonwealth has asked this Court for a certification of the law.

If the offering of each package may be considered to he a separate offense there would be no double jeopardy, because the proof required to sustain one of the indictments would not necessarily sustain any of the others. See Easley v. Commonwealth, Ky, 320 S.W.2d 778. We think the question is simply one of determining the legislative intent. Did the legislature intend that in the offering for sale of a particular commodity in separate packages a separate offense would be deemed to be committed as to each package?

Without undertaking to discuss the various cases from this and other jurisdictions dealing with the general question of when an act, transaction or course of conduct shall be considered to constitute multiple offenses, we shall say that our examination and analysis of the cases has disclosed no basic theory or rule for determining when there is only one offense and when there are multiple offenses. The number of persons suffering actual injury from the wrongful act or conduct is not an established test, because in shooting and wounding cases there has been held to be a separate offense for each person shot, even though two or more of the persons may have been struck by the same bullet, Commonwealth v. Browning, 146 Ky. 770, 143 S.W. 407; whereas in larceny cases there is held to be only one offense from one act of taking even though the property taken belongs to several different persons, Eversole v. Commonwealth, Ky, 288 S.W.2d 58; and in a case involving practicing dentistry without a license it was held that there was not a separate offense for each patient treated, Wilson v. Commonwealth, 119 Ky. 769, 82 S.W. 427. Nor does there seem to be any basis for a test in the matter of whether the act or conduct actually causes injury or merely holds the potential of injury, because while there are many cases holding there were as many offenses as there were persons injured (this is not so as regards larceny, as above noted), it was held in In re Henry, 123 U.S. 372, 8 S.Ct. 142, 31 L.Ed. 174, that under a statute prohibiting the use of the mails to defraud a separate offense resulted from each individual letter placed in the mail, without regard to whether anyone was actually defrauded. Some cases have undertaken to say that certain kinds of offenses are against the public generally and thus are single, as distinguished from offenses against particular individuals, which may be multiple, but the grounds of distinction are obscure to us. Also there are cases speaking of a “course of conduct” constituting one offense as distinguished from a series of separable wrongful acts constituting multiple offenses, but again difficulty is encountered in attempting to make the distinction.

We shall not undertake here to lay down any general rule or rules applicable to all situations. We shall restrict ourselves to an effort to determine what the legislature meant in the particular statute here in question, as regards the particular facts here involved.

The offenses here charged are of offering for sale various individual packages of meat. The statute prohibits offering for sale,-or selling, a “commodity” or “thing”. It seems to us that what is to be considered to he a commodity or thing may reasonably depend upon the nature or character of its treatment or handling at the particular time. In the case of the offering for sale of goods generally considered to be in one recognized commodity class, it would seem reasonable to consider that at the offering stage the goods constitute only one commodity, whether offered in a lump or in separate packages. Likewise, when it comes to the matter of an actual sale, it would seem that the total quantity of the same class of goods passed to one purchaser in one sale would be one commodity, regardless of the number of packages involved.

This does not mean that if a merchant offers for sale or sells a commodity in separate packages, only some of which are below their marked weight, no offense has been committed if the combined weight of all the packages is not below their combined marked weight. It simply means that we construe the statute as imposing a prohibition against offering for sale, at less than the represented weight, any commodity in whole or in part, but that there can be only one offense for the total quantity of the particular commodity offered at one time.

It is our opinion that in offering for sale at one time 416 underweight packages of meat the merchant here in question committed only one offense of offering for sale under the statute.

In reaching our conclusion as to the proper interpretation of the statute we have given some consideration to the fact that if the statute were construed as intended to create an offense for each package the minimum punishment for the defendant in this case would be a fine of $10,400 or imprisonment in the county jail for 11 years, and the maximum could be a fine of $41,600 plus imprisonment for some 68 years. Doubts in the construction of a penal statute will be resolved-in favor of lenity ,and against a construction that would produce extremely harsh or incongruous results or impose punishments totally disproportionate to the gravity of the offense; so in case of ambiguity the construction will be against turning a single transaction into multiple offenses. Wilson v. Commonwealth, 119 Ky. 769, 82 S.W. 427; Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199; Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905.

The law is certified as herein set forth.


author: WILLIAMS, Judge.

text:
    Hobart HOSKINS et al., Members of the Leslie County Board of Education and Leslie County School District, Appellants, v. Earl E. KEEN, Appellee.
    Court of Appeals of Kentucky.
    Sept. 29, 1961.
    Rehearing Denied Nov. 22, 1961.

      Logan E. Patterson, Robert B. Berger, Pineville, Denver Adams, Hyden, for appellants.
    Roy House, Manchester, Donald Duff, Hyden, for appellee.
   WILLIAMS, Judge.

On March 1, 1961, the Board of Education of Leslie County conducted a hearing relating to charges of irregularity in the administration of the duties required of ap-pellee Earl E. Keen, superintendent of schools of Leslie County. Following the hearing which lasted for four days, the Board dismissed appellee as superintendent of schools, and as secretary of the Board. Appellee then filed complaint in Leslie Circuit Court and Honorable G. E. Reams was appointed special judge. It was stipulated by the parties that the only evidence to be considered by the court was that evidence which was heard before the Board. The circuit court found that the evidence was not sufficient to establish and sustain the charges preferred against the appellee; not sufficient to show legal cause for his removal from office; and that the Board was in error and acted arbitrarily, capriciously, unlawfully, wrongfully, and without credible, competent and relevant evidence, and transcended its authority and abused its discretion in removing appellee from office. The Board has appealed from the judgment entered in the Leslie Circuit Court.

A superintendent may be removed for cause by a vote of four members of a board of education. KRS 160.350. It was said in Bourbon County Board of Education v. Darnaby, 314 Ky. 419, 235 S.W.2d 66, 70:

“The word ‘cause’ in a statute authorizing the removal of officers for cause means legal cause, and not any cause which the Board authorized to make such .removal may deem sufficient. * * * It must be a cause relating to, and affecting, the administration of the office, and must be restricted to something of a substantial nature directly ■affecting the rights and interests of the public.”

See also Smith v. Board of Education of Ludlow, 264 Ky. 150, 94 S.W.2d 321.

KRS 160.390(2) provides in part:

“The superintendent shall devote himself exclusively to his duties. He shall exercise general supervision of the schools of his district, examine their condition and progress, and keep himself informed of the progress in other districts.”

Appellee was given notice of ten separate charges which had been placed against him. and concerning which proof was taken at the hearing on March 1, 1961. Among the charges set out were the alleged failure to devote his time exclusively to his duties; the failure to examine the condition and progress of certain schools in his district; and the failure to exercise general supervision of the schools in the district, all as required by KRS 160.390(2). Failure to perform duties prescribed by law is cause for removal.

We need not concern ourselves with other charges set out in the notice, for it has been held that one ground for removal, if supported by competent and relevant evidence, is sufficient to justify removal. Starns v. Board of Education of Bourbon County, 280 Ky. 747, 134 S.W.2d 643; Meade County Board of Education v. Powell, 254 Ky. 352, 71 S.W.2d 638; Howard v. Bell County Board of Education, 247 Ky. 586, 57 S.W.2d 466.

Before examining any of the testimony taken before the Board it will be well to review the relative positions of the Board and of the court in an action such as this. In the Meade County case, supra, it was pointed out that the court does not review the evidence, weigh it, and enter judgment as might be found proper in the premises. Courts do not retry cases like this. “To do so would be to exercise an appellate jurisdiction over the action of this board which the legislative department has not conferred upon this court or upon the circuit court, to whose jurisdiction we have succeeded by this appeal.” [254 Ky. 352, 71 S.W.2d 640.] Courts cannot inquire into the motives of the Board and cannot say the testimony of one witness should be believed rather than that of another. In the Howard case, supra, we said that, if a county board of education does not abuse its discretion by acting arbitrarily, corruptly, capriciously, or upon insufficient charges, and its findings are based upon competent and relevant evidence, its acts are final and not subject to review by the courts.

An examination of the charges preferred against the appellee shows that he was specifically accused of failure to perform duties which the law requires of a superintendent of schools. If there was competent and relevant evidence of substance before the Board which would reveal failure of the appellee to have performed those required duties, then it is not within the province of this or the circuit court to say that the Board acted unlawfully in removing the superintendent from office. As was stated in the Meade County case, supra, the removal might be politic or impolitic, commendable or uncommenda-ble, wise or otherwise, but, if there is competent evidence to sustain it, it is not unlawful.

Without going extensively into the voluminous testimony taken before the Board, we recognize that there were statements made which would have justified the Board to conclude that the appellee was unfaithful in the performance of his duties. Witnesses testified that they visited appel-lee’s office many times during working hours only to be advised that he might be found át a place of business in which he apparently had an interest; that he had not personally examined the condition of each school in his district; that he had authorized the use of school equipment by private persons not on school business; that board minutes were improperly recorded, etc. Whether such a case was made out against him as would convince us that he had been derelict in his duties, we need not decide. Certainly the learned judge who decided the case in circuit court felt that a case had not been made against appellee. Certainly it could be believed that the appellee was available 24 hours a day for the performance of his duties at home as well as in his office. There was substantial testimony on each side, and the Board could reasonably and justifiably have chosen to believe either set of witnesses. For us to say, however, that one set should be chosen over the other would be to exercise a .right which is not ours. The Board chose to believe the witnesses who testified to facts which indicated the appellee was not performing the duties required of him by law. This it had a right to do. The trial court erred when it enjoined the Board from removing appellee from his office.

The judgment is reversed.

BIRD, C. J., not sitting.


author: STANLEY, Commissioner.

text:
    Virgil GROSS, Appellant, v. Conda GROSS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.
    Rehearing Denied Nov. 22, 1961.
    Don A. Ward, Wm. Melton, Hazard, for appellant.
    Harold G. Wells, Hazard, for appellees.
   STANLEY, Commissioner.

The appeal is from a judgment setting aside a judicial sale of residence property in Walkertown, Perry County, for a division of the proceeds. KRS 389,020(1) (b). The appellant, Virgil Gross, owned five-sevenths interest in the property and his two brothers, appellees Conda and Everett Gross, owned two-sevenths.

The Master Commissioner’s report of sale was that after due advertisement the property was offered at public auction, and the plaintiff, Virgil Gross, made the highest and best bid of $500 and thereby became the purchaser. The defendants filed exceptions to the report on the sole ground that the price was grossly inadequate. Plaintiff’s response recited that the property had belonged to the mother of the parties; that he had maintained a home and provided for her for twenty years, had paid large medical expenses and the cost of her funeral, and had expended $4,000 for improvements, insurance and taxes on the home, and that in consideration of those facts, three of his brothers and his sister had conveyed their interests in the property to him. The response further stated that the defendants had notice of the sale and had submitted no bid, that many persons were present and that he was the only person to make a bid, and because of all these things, the price should not be regarded as so grossly inadequate as to shock the conscience of the court. The defendants denied the allegations of the response. Depositions were taken on the issues, but the evidence is not brought here. There is nothing in the record showing the value of the property except a recitation in the order of the court that the only evidence of value was that introduced by the defendants that the property was worth $10,500. The court ruled that the $500 bid “shocked the conscience of the court,” hence, the sale should be set .aside.

It is a salutary policy to engender and maintain confidence in the stability of sales made by a court. Louisville Title Co. v. Ramsey, 258 Ky. 183, 79 S.W.2d 693; Melton v. Tipton, 264 Ky. 196, 94 S.W.2d 350; Allen v. Francis, 292 Ky. 412, 166 S.W. 2d 877. Such a sale ought not to be lightly ^disapproved where it was conducted in a fair and regular manner, and confirmation ought not to be refused except for substantial reasons.

We have often recognized that it is •within the sound discretion of the circuit court to confirm or vacate a sale and that the court’s exercise of that discretion will not be disturbed unless it appears to this ■court to have been abused in the judicial sense. But the trial court and this court must have “due regard for the rights of all the parties involved as measured by legal .and equitable standards.” Kentucky Joint Land Bank of Lexington v. Fitzpatrick, 237 Ky. 624, 36 S.W.2d 25, 26. And, as said in that opinion, “Among those standards is the well-established rule that inadequacy of price alone is not a sufficient ground for setting aside a judicial sale, where the interested parties labor under no disabilities, unless the inadequacy is so great as to shock the conscience or create the presumption of fraud. But where the inadequacy is accompanied by circumstances, though only slight and insufficient in themselves, which tend to cause it, or where it is attended by apparent unfairness or impropriety or oppression on the part of those connected with the sale, the sale ought to be and will be set aside.”

This standard has been stated many times. It was said in Burchfield v. Asher, 222 Ky. 108, 300 S.W. 331, 333: “It is well settled that mere inadequacy of consideration is not a sufficient ground upon which to set aside a decretal sale, though if inadequacy exists very slight evidence of fraud in connection therewith is sufficient for that purpose.” Greer v. McAninch, 226 Ky. 644, 11 S.W.2d 696; Douthitt v. Guardian Life Insurance Co., 235 Ky. 328, 31 S.W.2d 377.

There will be found in our opinions statements of the alternative condition that a sale should be set aside for inadequacy of price which raises a presumption of irregularity or which shocks the conscience of the court. See Vincent v. Allied Building Credits, Ky., 286 S.W.2d 84. The condition “or which shocks the conscience of the court” standing alone may be too abstract and broad. An examination of the many cases shows the decisions affirming judgments or directing the setting aside of sales were based upon the presence of some slight circumstance of unfairness or irregularity accompanying great inadequacy of price and that there was a combination which resulted in shocking the conscience of the court or that the rights of creditors or infants were or would be affected. See Carter v. Howard, 183 Ky. 356, 209 S.W. 51.

There seems to be a distinction, which is at least lurking in our opinions, as to the weight to be given the sole ground of inadequate price, or of price disproportionate to the real value of the property sold, where the interests of third parties, such as creditors or infants, were involved, and where, as here, all parties were sui juris and the sale was for a division of the proceeds because the property could not be divided in kind. Other elements or factors should be taken into consideration when the court’s conscience is to determine the question of affirming or disaffirming the Commissioner’s report of sale. The purchaser acquires a substantial and equitable right. In the present case there was no claim of any kind of irregularity or unfairness in the manner in which the sale was conducted. The only claim was that the property was sold too cheap to the party who owned five-sevenths of it. The objectors stood by and did nothing to protect their interests. Good faith and a proper regard for the judicial proceeding were not observed by them. Their belated voices are so weak they should not have troubled the latent conscience of the circuit court, even as they have not troubled the conscience of this court. We conclude that the trial court was in error in setting aside the sale and should now enter judgment confirming it.

Judgment reversed.


author: ■ WADDILL, Commissioner.

text:
    Finley SPURLOCK, Appellant, v. COMMONWEALTH of Kentucky on Relation of John B. BRECKINRIDGE, Attorney General, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1961.
    Rehearing Denied Nov. 22, 1961.
    E. B. Rose, Rose & Short, Beattyville,. for appellant.
    John B. Breckinridge, Atty. Gen., H. M.. Shumate, Shumate & Shumate, Irvine, for appellee.
   ■ WADDILL, Commissioner.

- The sole issue on the appeal is whether the Chancellor erred in removing appellant from office as a member of the Jackson. County Board of Education on the groundl that he did not possess the statutory quali--fication of having an eighth grade education.

To establish his educational qualification, as required by KRS 160.180, appellant filed a teacher’s affidavit which stated that appellant had successfully completed the eighth grade at Blackwater School in Jackson County under the affiant. during the school year of 1913-14.

The Jackson County School Superintendent testified that the available school records ■do not reflect that appellant attended school in Jackson County during the school year ■of 1913-14 or that the eighth grade was taught there at that time. Several schoolteachers and residents of Jackson County testified that only the first through the fifth grades were taught in Jackson County prior to the year of 1920. The credibility of the testimony of these witnesses was attacked 'by witnesses who stated that the eighth .grade was taught in Jackson County during the school years in question.

There was other evidence which casts ■some doubt as to whether appellant attended Blackwater School, namely, the pupil census records which do not list appellant as a resident of the Blackwater School District (or any district) during the school year of 1913-14. However, it was established that appellant was 20 years old in December ■of 1913 and, therefore, it was urged that appellant was not included in the school ■census of 1913 because the census taken at that time listed only children “between the ages of six and twenty years” (Carroll’s 1909 Edition, Kentucky Statutes, Section •4404). Appellee also attempted to establish that the fifth grade was the highest grade taught in Jackson County during 1913 by introducing a purchase order of the Jackson County School Board for school books, specifically, the “primer” through the “fifth reader.” Nevertheless, two of appellant’s witnesses, who had formerly taught in the Jackson County School system stated the ■“fifth reader” was used from the fifth through the eighth grade during the school year of 1913-14. Appellant also introduced a bulletin issued in September, 1919, by the Kentucky State Board of Education, which apparently prescribes the use of the fifth reader” for students in the eighth grade.

When a school board member’s educational qualification is properly questioned, he has the burden of establishing his eligibility. Commonwealth by Funk v. Clark, 311 Ky. 710, 225 S.W.2d 118; Commonwealth ex rel. Buckman v. Preece, Ky., 257 S.W.2d 51. A teacher’s affidavit is the weakest kind of proof of a person’s completion of the eighth grade, Commonwealth by Funk v. Clark, supra, and its probative effect may be overcome by contradictory evidence. Commonwealth ex rel. Ferguson v. Coffee, Ky., 329 S.W.2d 203.

Under the conflicting evidence in the case at bar, the Chancellor was justified in accepting appellee’s proof and in concluding that appellant had failed to sustain the burden of proving that he had successfully completed the eighth grade.

Judgment affirmed.


text:
    GLUCK BROTHERS, INC., Appellant, v. Leonard KREKE, Appellee. GLUCK BROTHERS, INC., Appellant, v. Dolores KREKE, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1961.

      James C. Ware, Ware & Ware, Coving-ton, for appellant.
    R. Howard Smith, Newport, for appellees.
   WADDILL, Commissioner.

As appellees, Leonard Kreke and his wife, were traveling through a town in Kenton County the car driven by Kreke and a truck owned by appellant, Gluck Brothers, Inc., were involved in a traffic accident. Both vehicles were traveling in the same direction on the four-lane highway. The Kreke car was occupying the northbound traffic lane which adjoins the east shoulder of the road and appellant’s truck was traveling alongside the Kreke car in the othéi northbound traffic lane. When the driver of the truck attempted to change driving lanes without affording the Kreke car sufficient clearance the two vehicles collided. The Kreke car went off the road, over a curb and came to rest on the sidewalk. Neither of the Krekes requested nor received any immediate medical treatment.

Kreke and his wife each sued Gluck Brothers, Inc., to recover certain sums for the personal injuries they allegedly sustained in the accident, and Kreke also asked to be compensated for the damage to his car. Kreke obtained a verdict of $2,050, which included $50 for the damage to his car, and Mrs. Kreke recovered a verdict of $7,500. Gluck Brothers, Inc., has appealed from the judgment entered in favor of Mrs. Kreke and has moved for an appeal from the judgment for Kreke.

In seeking reversal of these judgments it is urged: That the sum awarded to each of the Krekes for their personal injuries is excessive and is not sustainable either in fact or in law; that the court erred in excluding certain testimony offered in behalf of appellant, and in permitting the jury to consider certain testimony over appellant’s objections.

Kreke testified that approximately ten days after the accident he became extremely nervous and began experiencing some difficulty with his vision, although he continued to work regularly. He was advised by his physician that he had developed high blood pressure. Approximately one year later he consulted an eye specialist who determined that Kreke had defective vision.’ However, neither of his physicians would relate Kreke’s high blood pressure or his eye trouble to the accident. Since there was, insufficient proof that Kreke sustained any physicial impairments as a result of the accident, we are reversing, the judgment in his favor insofar as it awards him damages for personal injuries. In the event of another trial the court will, upon objection, exclude all testimony relating to his high blood pressure and his defective vision unless there is medical testimony which specifically connects these ailments with the accident. Southern Mining Co. v. Cornelius, 284 Ky. 515, 145 S.W.2d 93; De Buyser v. Walden, Ky., 255 S.W.2d 616.

Mrs. Kreke testified that at the time of the accident she was jostled around in the car and experienced excruciating pain in her back. She further stated that she has severe back-aches and is frequently unable to attend to the rearing of her children and to perform her household chores. Her physician testified that, in light of her medical history, he was of the opinion her involvement in the accident had “reaggravated” a previous back injury which would cause her much discomfort. While the physician stated that an X-Ray examination revealed no evidence of any fracture or displacement of her spine, he was of the opinion that there was a probability she would continue to have some pain in her back. The only treatment he prescribed was pain medications, applications of heat and rest. When asked if she was “likely to have any permanent injury from this back” her physician answered “quite probably.” Another physician, whose examination of Mrs. Kreke included the use of X-Rays of her spine, was of the opinion that the discomfort of which Mrs. Kreke complains would subside with adequate treatment.

While Mrs. Kreke was entitled to recover damages for her pain and suffering, the award of $7,500 strikes us at first blush as being disproportionate to the actual injuries shown. Consequently, we hold that the damages are so excessive as to require a reversal of the judgment in her favor. Turner v. Johnson, Ky., 333 S.W.2d 749; Berio v. Talley, Ky., 269 S.W.2d 185; Louisville Taxicab & Transfer Co. v. Langley, Ky., 265 S.W.2d 931.

. We are affirming the judgment in favor of Kreke to the extent of $50 which was awarded for the damage to his automobile as this item is not in issue on appeal. However, the judgments are reversed to the extent of awarding Kreke $2,000 and Mrs. Kreke $7,500 as damages for their personal injuries. Since the cases are being remanded for trial on the sole issue of damages it is unnecessary to answer the other grounds for reversal.

Motion for appeal is sustained; the judgment in favor of Kreke to the extent of $50 is affirmed; both judgments are affirmed on the issue of liability and are reversed as to the damages awarded the Krekes for their personal injuries, with directions to grant a new trial in both cases.


author: MILLIKEN, Judge.

text:
    BOARD OF EDUCATION OF CATLETTSBURG, Kentucky, et al., Appellants, v. ASHLAND OIL & REFINING COMPANY, a Corporation, et al., Appellees.
    Court of Appeals of Kentucky.
    June 9, 1961.
    As Modified on Denial of Rehearing Nov. 17, 1961.

      Frank C. Malin, Ashland, John L. Smith, James E. Adkins, Catlettsburg, for appellants.
    McDonald & McDonald, Lexington, S. McBrayer Burnam, Howard Van Antwerp, Jr., Howard Van Antwerp, III, Ashland, for appellees.
   MILLIKEN, Judge.

The basic issue on this appeal is whether Ashland Oil & Refining Company’s boats and barges have a taxable situs in the City of Catlettsburg. The chancellor found that they had no tax situs in Catlettsburg, and, consequently, that they could not be taxed there.

■ Ashland Oil (hereinafter referred to as the “Company”) is a domestic corporation domiciled in Boyd County, Kentucky, with its principal office in the City of Ashland which immediately adjoins the City of Catlettsburg on the Ohio River. For the years involved in this litigation the Company has listed its property for purposes of taxation -in the Boyd County School District where two of its principal refineries and some port facilities are located. There are four school districts (including the City of Ashland and the City of Catlettsburg) in Boyd County, only two of which are before the Court — the Board of Education of the City of Catlettsburg, which seeks to tax the Company’s marine equipment, and the Boyd County School District. The chancellor did not decide directly which of the school districts of Boyd County was entitled to the tax revenue from the boats and barges, but only that the City of Catlettsburg was not entitled to them.

The Board of Education of Catlettsburg largely bases -its claim upon the theory that since the Company is domiciled in Boyd County and its allegedly principal port in the County is located in the City of Catletts-burg, then Catlettsburg is the only logical place in the County in which an actual situs for this marine equipment could be established.

The Company’s boats and barges ply the Ohio and Mississippi from Pittsburgh and St. Paul, respectively, to the Gulf of Mexico, transporting crude oil and finished products of the Company; they are in almost constant motion, stopping only for loading, unloading and repairs, most of which activities occur at ports other than Catlettsburg. From a factual standpoint, the Catlettsburg Board does not appear to quarrel with the data used by the chancellor in support of his findings, but does question his conclusion that no actual situs or domiciliary situs of the boats and barges was established in Catlettsburg. For that reason we will not unduly lengthen this opinion with a detailed recital of data, but will confine ourselves to whether the chancellor’s conclusion of law — that the equipment has . no tax situs in Catlettsburg — is correct.

In order to justify the taxation of property it must have an actual situs within the taxing unit or have some legal nexus such as domicile to tie it to the taxing unit. From a factual standpoint we cannot find the business situs of this roving equipment in Catlettsburg. Furthermore, in Ashland Oil & Refining Company v. Department of Revenue (1953), Ky., 256 S.W.2d 359, we held that the situs of the boats is the domicile of the taxpayer in Boyd County. Since the evidence does not establish the domicile of the Company to be in Cat-lettsburg, it follows that the tax situs cannot be placed there on that theory. We did not find it necessary in that case to locate the domicile more specifically in Boyd County, but we did conclude that the situs and the domicile were the same so far as the boats were concerned. That opinion is equally dispositive of the suggestion that the taxation of the boats and barges could be separated from and pro rated among the taxing units within Boyd County, for when we refused to permit Greenup County to tax these same boats and barges on a pro rata basis of the mileage along the County to the total mileage traversed along Kentucky, we said:

" * * * This situs (of the boats) is the domicile of the taxpayer (Boyd County). There is no statutory authorization for allocating tangible personal property of a resident taxpayer among several counties and taxing districts where the property has acquired no permanent situs in a county other than the residence of the taxpayer, except with respect to a franchise company under the provisions of KRS 136-120 and 136.170. If an apportionment method is desirable to the time-honored procedure which has been followed in the past, it is a matter for legislative rather than administrative or judicial correction.”

Certainly, this reasoning is equally applicable to apportionment among taxing units within a county. -Apportionment of taxation according to pro rata mileage has been permitted among the states for river transport. Ott v. Mississippi Valley Barge Line Company, 1949, 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585, and the principle was applied by us in upholding the taxation of the vessels of a foreign corporation plying the Ohio River along Kentucky. Reeves v. Island Creek Fuel & Transportation. Company, 1950, 313 Ky. 400, 230 S.W. 2d 924. But, as indicated in Ashland Oil & Refining Company v. Department of Revenue, above, we will not apply the apportionment theory where there is no suitable or convenient standard for applying it.

Because of our conclusion that the chancellor correctly decided that the boats and barges had no tax situs in Catlettsburg, we do not find it necessary to discuss certain questions of procedure raised in this lengthy litigation which started in 1953.

The judgment is affirmed.


text:
    Leslie A. HENDERSON, Sr., Appellant, v. Myra Sue HENDERSON, Appellee.
    Court of Appeals of Kentucky.
    May 12, 1961.
    As Modified on Denial of Rehearing Nov. 22, 1061.

      H. R. Wilhoit, Grayson, for appellant.
    Francis C. Bryan, Mt. Sterling, for ap-pellee.
   STANLEY, Commissioner.

By intervention in a suit filed by Henderson Funeral Home Corporation against Leslie A. Henderson for damages and in-junctive relief from, unfair competition, Myra Sue Henderson, Leslie’s former wife, sought judgment against him for maintenance of their children. Our opinion in the unfair competition case, Henderson v. Henderson Funeral Home Corporation, Ky., 320 S.W.2d 113, refers to the transfer by Leslie Henderson to his wife of stock in the corporation as part of a property settlement and the agreement that the Funeral Home would pay her monthly sum over a period of eighteen years. We referred also to Mrs. Henderson’s testimony concerning the inability of the Funeral Home to pay her by reason of Leslie’s wrongful acts. The intervening petition related to this matter.

In contemplation of a divorce Leslie. A. Henderson and his wife, Myra Sue Henderson, executed a property settlement and agreement on May 28, 1953. The judgment of divorce was rendered in June, 1953. By the terms of the agreement, Mrs.'Henderson was given the custody of th'eir five children, all boys, whose ages- at the time r.anged from about three to eleven years. Henderson released all claims to real property which he had previously conveyed to his wife, transferred to her twenty-five shares of stock in the Henderson Funeral Home Corporation and the right to receive $350 a month for eighteen years under a sales contract of twenty-five shares of the stock from the purchaser, C. W. Henderson.

The intervening action was tried as a separate proceeding as if it were a reopening of the divorce action. The appellant raised many issues and claimed his former wife had received property of the value of $112,564. The amount appears to be grossly exaggerated. The pleadings and evidence were directed toward many subordinate issues. We omit reference to them and the incriminations and recriminations contained in the evidence and briefs. The judgment, which is appealed by Leslie Henderson, orders him to pay his former wife, the appellee herein, $350 a month until each child shall become eighteen years of age and then reduces the payments by $50 a month. While this would still leave $100 a month to be paid, the judgment further recites, “there shall be no further payments required” from the father.

We concisely summarize the findings of fact relevant to the issues other than as above outlined.

The property settlement contract was in lieu of alimony, and the monthly payments on the purchase.-price of the funeral home stock were for the benefit of Henderson’s children as well as his wife. This fixed the minimum sum of $350 a month for. their support and maintenance, and the evidence established that:as the “absolute minimum required for the support and maintenance of these, five children.” ' The subsequent establishment of another funeral home in competition with that from which the children were deriving their support violated a moral duty. The original funeral home had failed, and its failure was “attributable almost entirely to the actions- of Leslie A- Henderson, Sr. in. establishing a competitive business and in the unscrupulous and devious business practices indulged in by Leslie A. Henderson, Sr.” By his actions Henderson had “rendered ineffectual the provisions of the ‘Settlement Contract’ and ‘Conditional Sales Contract’ for the support and maintenance of his five children, in that the Henderson Funeral Home, Inc. is no longer an operating business.” The court considered the fact that Henderson “is now operating the only Henderson Funeral Home in Olive Hill, Kentucky, and considering the proven financial success of such a funeral home in Olive Hill, Kentucky, and considering the accumulation of property and statement of earnings of Leslie A. Henderson, Sr., has been able to obtain in establishing his funeral home business, it is my opinion that he is more than able to pay to Myra Sue Henderson the sum of three hundred and fifty dollars ($350) per month for the support and maintenance of his five children at this time.”

The court’s conclusions of law are re7 ducible to these points: (1) Appellant has the parental duty to care for his children, (2) His wrongful conduct destroyed the source of the payments of $350 agreed by the mother to receive and use for their support, and (3) He has the present ability to pay that sum.

The appellant does not really challenge the findings of fact. He rests his case largely on the claim that his former wife has wasted the estate she received for the benefit of the children and yet has sufficient property to enable her to care for the children, either from income or proceeds of sale. On the other hand, he ar7 gues, he is practically broke and his income does not justify such an award. He relies upon Wilson v. Wilson, 271 Ky. 631, 112 S.W.2d 980. In that case the wife had accepted a certain sum in full settlement of all alimony and the support of a child whose custody had been awarded her and expressly released the father from making payment of any further sum. We recognized that a father cannot by contract avoid his legal' duty to support his child but held that so long as the mother retained custody of the child under the contract and judgment she had the primary duty thereunder to maintain the child from the fund she received. Under the peculiar circumstances of the case we affirmed the judgment refusing to require the father to pay a further sum but held that upon a change in circumstances he might be compelled to do so in spite of the contract.

We think the appellant misses the primary ground upon which the judgment is based. It requires him to pay for the support of his children what they and their mother would have received but for his own wrongdoing. Even if it was not due to hir> wrong, their source of support was de, stroyed, but his responsibility was not.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    June H. JETT, Appellant, v. Brown BEGLEY et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 13, 1961.

      S. M. Ward, Hazard, for appellant.
    Scott E. Duff, Hazard, for appellees.
   MOREMEN, Judge.

In 1915, Justice Begley and Farmer Beg-ley divided a tract of land. Justice Begley took that portion of the land which lies near the source of Brushy Fork in Perry County. Farmer Begley received title to the land that lies down stream and near the mouth of the creek.

Appellant claims title through Justice Begley and appellees claim through his brother, Farmer Begley.

This suit arose out of a disagreement as to the location of the dividing line originally agreed upon by the two brothers when they severed the property. About forty .acres are in dispute.

The parties have deeds containing similar descriptions which, if correctly located ■on the ground, will establish the true line •of division. The description in appellant’s deed reads: “Beginning on two willow trees just below the house of Justice Beg-ley.” The other deed has this direction: “Thence down the hill with the line to two ■willow trees on Brushy Fork at Justice Begley’s.”

When the case was being tried the location of the site of the house of Justice Beg-ley and the identification of the two willow trees became important, but the witnesses who were introduced by 'each party ■disagreed as to their correct location. The ■chancellor accepted the testimony offered by appellees as being convincing and awarded title to the disputed land to them. On this appeal we are asked to upset his judgment.

Both sides had the ground surveyed by competent civil engineers. Each engineer filed a map which undertook to locate and describe the disputed line, but each engineer, to a great extent, relied upon extraneous information as to the location of the willow trees and the drain which adjoined it. Each surveyor was able to identify some of the monuments, but was unable to locate others; for instance, the engineer for appellees found a white oak stump which was not found by the other, while appellant’s engineer alone located a cucumber tree which was called for in one of the descriptions. The pivotal evidence seems to us, as it must have to the chancellor, to depend upon the site of the Justice Begley house and the location of the two willow trees.

Witnesses introduced by appellees testified that the Begley house had long since been destroyed, but they established the fact that the scattered stonework of the house still remained. It was proven that an old willow stump stood near that site, and this they identified as the point where the two willow trees stood. On the other hand witnesses for appellant identified two willow trees still standing (which were about 10" in diameter) some distance away from the site of the old Begley house, and insisted that this was the spot referred to as being near Justice Begley’s home. The point identified by appellees’ witnesses was about 100 feet from the house and the point identified by appellant’s witnesses was also down the fork, but about 700 feet below the Begley house. (We have taken these rough estimates from a map filed in the evidence.)

Appellant has failed to convince us that the Chancellor’s conclusion was erroneous. He elected to believe one group of witnesses over another and in this we believe he was correct. It seems scarcely reasonable that a description calling for the beginning point at willow trees either “just below the house of Justice Begley” as contained in appellant’s deed, or "on Brushy Fork at Justice Begley’s” would mean six or seven hundred feet away from the house.

We believe the court correctly defined the dividing line between these tracts of land and the judgment stands affirmed.


author: CLAY, Commissioner.

text:
    J. W. PATRICK, Appellant, v. G. B. ALLEN et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 13, 1961.
    Joe Hobson, Prestonsburg, for appellant.
    Burnis Martin, Prestonsburg, for appel-lees.
   CLAY, Commissioner.

This is an appeal from a judgment declaring the right of appellee Allen to have two dwellings owned by him furnished with free gas for domestic heating and lighting purposes. Appellant is the lessee under an operating oil and gas lease. He contends the reservation of free gas to a former owner of one of the houses was a personal covenant which could not be transferred to Allen and that any reservation of free gas to be furnished the other dwelling could not be invoked for the benefit of his tenant. We are of the opinion the Chancellor correctly decided the issues, although our legal theory with respect to one of the dwellings may differ somewhat from his.

In 1915 the owner of a 32 acre tract conveyed one-half acre of the surface to one Martin and he built a house thereon. This one-half acre was later conveyed to Allen and he is now living on that tract.

In 1918 the original owner leased the oil and gas rights in the entire 32 acres to Penna-Grade Oil and Gas Co. This lease reserved free gas for heating and lighting “the inside of two dwelling houses”. One of the houses belonged to the original owner and the other was the house built on the one-half acre tract by Martin, which Allen now owns.

In 1935 Alpha Rison was conveyed a three acre tract (part of the 32 acre tract) on which stood the original owner’s house. Two years later she became the owner of the leasehold originally created in 1918. Since this merged the mineral rights with the surface rights in the property owned by her, it extinguished the reservation of free gas insofar as her dwelling was concerned. However, the reservation of free gas for the house owned by Allen, assuming it to be a covenant running with the land, was not extinguished by this transfer.

In 1937 Alpha Rison conveyed the oil and gas rights under the three acre tract to appellant. This deed reserved “for her own use free gas from the gas well on the above described premises for the life of said well”.

In 1946 Alpha Rison conveyed a 1½ acre tract (carved out of her three acres) to ap-pellee Allen. This included the Rison house, now occupied by Allen’s tenant.

To summarize the situation when this suit was commenced: Allen owned both the Martin house and the Rison house. Assuming the reservations of free gas were covenants running with the land, the Martin house was entitled thereto under the original oil and gas lease executed in 1918 and the Rison house was entitled thereto under the conveyance of 1937 from Alpha Rison to appellant. There has been for a great many years one producing gas well on the 32 acre tract.

There are two questions to decide: (1) do the reservations of free gas constitute covenants running with the land, and (2) is the tenant of Allen, who occupies the Rison house, entitled to the benefit of such a covenant? The answer to both questions must be in the affirmative.

It is the general rule, long recognized in Kentucky, that the right to the use of free gas created by lease or deed, unless the language of the instrument clearly creates only a personal right, is a covenant running with the land. Summers Oil and Gas (Perm.Ed.) Vol. 3A, Section 587 (page 97); 24 Am.Jur., Gas & Oil, Section 67 (page 57); Warfield Natural Gas Co. v. Small, 282 Ky. 347, 138 S.W.2d 488; United Fuel Gas Company v. McCoy, Ky., 307 S.W.2d 176. (Attention is called to extensive authorities cited in this last case.)

The original lease of 1918 which affected the Martin house (now occupied by the owner Allen) specifically reserved free gas for “two dwelling houses”. Clearly this covenant was designed as a benefit to the occupants of the houses. It constituted a covenant running with the land and was a right attached to the dwellings rather than a personal right of the original owner. Wagner v. Hamilton, 303 Ky. 120, 196 S.W.2d 973; Blair v. Sturgill, 311 Ky. 622, 224 S.W.2d 928; Coleman v. Lindsey, 314 Ky. 273, 234 S.W.2d 950.

In Warfield Natural Gas Co. v. Moore, 281 Ky. 689, 136 S.W.2d 1086, a covenant of this character was construed to be for the benefit of particular buildings rather than a particular owner. In that case it was pointed out that such a covenant would even inure to the benefit of a new building erected to replace a destroyed structure which was covered by the reservation.

We conclude that under the 1918 lease to the Penna-Grade Oil and Gas Company the right to free gas followed the occupancy of the Martin house, now owned and occupied by Allen. Since this was a covenant running with the land, it was binding upon whomever operated the gas well on the leasehold and it was not extinguished by the transfer of the lease to Alpha Rison, the owner of the other dwelling.

We reach the same conclusion with respect to the Rison house (now occupied by Allen’s tenant) by virtue of the 1937 conveyance of oil and gas rights to appellant. That deed provided:

“Party grantor herein reserves for her own use free gas from the gas well on the above described premises for the life of said well.” (Our emphasis.)

There was also reserved free gas for heating and lighting a church building.

When a question is presented as to whether or not such a covenant runs with the land or is personal to the grantor (or lessor), the manifest intention of the parties is sought. Warfield Natural Gas Co. v. Moore, 281 Ky. 689, 136 S.W.2d 1086. In view of the fact that there was then on the “premises” occupied by the gas well a dwelling which had theretofore been the subject of a free gas clause (in the 1918 lease), and in view of the fact that the right created was to continue “for the life of said well”, it seems clear that it was for the benefit of the house rather than the personal benefit of the particular owner at that time. This conclusion is further fortified by the language which reserved the same right for a church building, which obviously was a covenant running with the land. By using the word “also” in connecting the two covenants, the parties indicated an understanding that they were of the same character.

The fact that the right was reserved for the “party grantor” is not controlling. In Warfield Natural Gas Co. v. Small, 282 Ky. 347, 138 S.W.2d 488, the lease contained the following:

“It is agreed that the party of the first part shall have gas sufficient for domestic use on the premises by laying his own line.”

This language is in substance identical with that in the deed of 1937. It was held to create a covenant running with the land, not a personal one for the benefit of “the party of the first part”. We therefore conclude that Allen’s tenant, who occupies the Rison house, is entitled to the benefit of this covenant. See Sanford v. Witherspoon, 142 Pa.Super. 71, 15 A.2d 496.

Appellant relies on Lyons v. Gambill, 242 Ky. 696, 47 S.W.2d 532, and Howell v. Kentucky-West Virginia Gas Company, Ky., 275 S.W.2d 429. In the first case the free gas right created by deed was “for the use of any of his (grantor’s) immediate family” [242 Ky. 696, 47 S.W.2d 533.] (Our emphasis.) In the second case, the use was “for all the children of grantors living on the farm or land herein described”. [275 S.W.2d 430.] (Our emphasis.) On their face these deeds created personal rights by describing with particularity what members of a specified class were to enjoy the benefits of the covenant. The distinguishing features of these two cases are plainly apparent. The Chancellor correctly adjudged the rights of the parties.

The judgment is affirmed.


text:
    BLUE DIAMOND COAL COMPANY, Appellant, v. Otis PHILLIPS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1961.
    J. W. Craft, Jr., Hazard, for appellant. Doyle & Doyle, Harlan, for appellee.
   CLAY, Commissioner.

Appellee, who had been employed in appellant’s coal mines since 1956, sought workmen’s compensation benefits for “occupational pneumoconiosis”. The Board dismissed his claim and its order was reversed by the circuit court on appeal.

Pneumoconiosis is a broad term covering diseased conditions of the lungs caused by the chronic inhalation of irritating dust particles. A particular form of this disease (caused by the inhalation of silica dust) is silicosis. While a dust disease other than silicosis might constitute an “occupational disease” under KRS 342.316, the employee’s claim in this case was prosecuted on the theory and proof that his disability was the result of silicosis.

The Board did not make a finding that the employee was disabled by any occupational disease. (There was a conflict in the proof on this question.) Assuming, however, that the employee had proven silicosis, the Board was of the opinion that he had not shown sufficient exposure to the hazards of the disease in Kentucky to entitle him to compensation under the provisions of our statute. KRS 342.316(4), at the time applicable to this claim, provided as follows:

“In claims for compensation due to the occupational disease of silicosis it must be shown that the employe was exposed to the hazards of the disease in his employment within this state for at least two years before his disability or death.”

(It should be noted that in 1960 the legislature amended this subsection by adding the words “immediately next” before the words “before his disability or death”.)

The compensation claim was filed on November 28, 1958. The date of disability was shown as August 28, 1958. This was the last day the employee worked for appellant. The evidence presented before the Board did not present a very clear picture of the chronological history of the claimant’s employment. He started to work in 1946 and apparently was employed in a Kentucky coal mine for one year. He was then transferred to mines in Tennessee until 1952. In that year he was transferred back to a Kentucky mine in Harlan County where he worked until November 1953, when he ceased work because of rheumatic fever. He returned to work in the Kentucky mine in February 1955 and worked until June 1957, when he was laid off. He returned to work August! 6,1958 and worked until August 28, 1958.

It appears that upon returning from his work in the Tennessee mines he suffered from shortness of breath and so advised the employer in 1953. Thereafter he was given only outside work.

The referee and the Board seem to have taken the view that if the employee contracted the disase of silicosis it was prior to 1953 (from his work in Tennessee), and that since his work thereafter in Kentucky was not in coal mines, he was not exposed to the hazards of the disease for at least two years in Kentucky. The Board apparently assumed that unless the employee works in a mine he cannot be exposed to this occupational hazard, although the employee testified that in his outside work he was still exposed to silica dust. In addition, the physician who testified for the employee stated in substance that exposure to dust of any kind would constitute a “contributing factor” to the “dust disease” with which he found the employee afflicted.

The circuit court took the view that this occupational disease of pneumoconiosis could be contracted either inside or outside of appellant’s mine and that the subsection of the statute we have above quoted, KRS 342.316(4), was not intended to apply to a Kentucky employer who shifts his employee from one state to another for work in its mines. We are of the opinion that even if the quoted subsection of the statute applies, the circuit court reached the right conclusion.

While we do not determine the issue, there was substantial evidence the employee was disabled by an “occupational disease” within the definitive terms of KRS 342.316 (1). Whether or not such disease was properly diagnosed as silicosis or some other form of pneumoconiosis is not material in this particular case. If it was not silicosis, then subsection (4) of KRS 342.316 (requiring two years’ exposure in this state before the disability) does not apply. If it was silicosis and the subsection applies, there was proof the employee was injuriously exposed to the hazards of this disease in Kentucky for at least two years before his disability.

Apparently there was injurious exposure in this state for one year in 1946. Between 1952 and 1957 there is evidence that for at least two years the employee was exposed to dust conditions which contributed to this occupational disease. His last exposure (for only a period of a few days) was immediately prior to the date he claims he became disabled.

Under the proof the Board could properly find that if the employee had the disease of silicosis he was exposed to the hazards of that disease in Kentucky for at least two years prior to the disability for which he makes a claim. The law applicable at the time of making this claim (KRS 342.316 (4)) did not require this exposure to “immediately” precede the disability, as it does now by virtue of the 1960 amendment. Accumulated exposures would appear to satisfy the former statute. We are of the opinion that if the employee has silicosis, the requirements of KRS 342.316(4) were fulfilled. The fact that he was also exposed to the hazards of the disease in Tennessee (which undoubtedly contributed to his alleged disability) does not cut off his claim.

Some question seems to have been raised concerning the timeliness of the employee’s application for compensation benefits, and it was determined in the opinion of the referee (adopted by the full Board) that the employee’s claim was barred because notice was not given and claim made within three years after the last injurious exposure to silica dust, as then required by KRS 342.185. (This three year time limitation was stricken in the 1960 amendment to this statute and apparently the one year limitation under KRS 346.316(3) now governs.) We are of the opinion that the employee’s claim was not barred by this statute because, as we have heretofore noted, there was proof of “injurious exposure” up until shortly before the claim was filed.

In our opinion the Board erroneously dismissed the employee’s claim on the grounds that there had not been sufficient exposure to the hazards of the disease in Kentucky and that the claim was not timely filed.

The trial court correctly decided the issues presented.

The judgment is affirmed.


text:
    Elijah MESSER, Appellant. v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1961.
    Carlos B. Pope, J. B. Campbell, Barbour-ville, for appellant.
    John B. Breckinridge, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

In September, 1960, the appellant, Elijah Messer, was convicted for the second offense of possessing alcoholic beverages for sale in dry territory, fined $50, and sentenced to 60 days in jail.

The affidavit for the warrant issued for the search of his premises was based on information and knowledge, stated as follows:

“Paul Stamper, Sheriff Knox County, the affiant, was told by Charles Mays, Deputy Sheriff Knox County, that Lige Messer a known boot legger of Knox County has now in his possession a large quantity of intoxicating beverages, whiskey, beer & etc. for the purpose of sale on his premises, or filling station, which he has leased, & also in cars of various kinds located on said premises and under his control & known as Messer Pan Amm Filling Station located at Heidrick, Knox Co. Ky. at Junction of U. S. 25E & Highway 11 on Right hand side going north.”

Since the appellant’s conviction, this Court, on June 23, 1961, in Henson v. Commonwealth, Ky., 347 S.W.2d 546, after reviewing the decisions therein collected, restated the principle that affidavits for search warrants must disclose the time at which the observation was made which is the source of the informant’s knowledge. The above quoted affidavit fails to meet that standard, and hence the affidavit was insufficient to support the warrant and the evidence obtained on the search was not admissible. It is unnecessary to discuss other grounds raised for reversal, but see Henry v. Commonwealth, Ky., 316 S.W.2d 864, admitted by the Commonwealth as sustaining appellant’s contention for reversal.

The judgment is reversed.


author: PALMORE, Judge.

text:
    Robert PIERSON et al., Appellants, v. COMMONWEALTH of Kentucky, Department of Highways, Appellees.
    Court of Appeals of Kentucky.
    Oct. 13, 1961.
    Weldon Shouse, Shouse, Barker & Cop-lin, Lexington, for appellants.
    John B. Breckinridge, Atty. Gen., Paul E. Hunley, Dept, of Highways, Frankfort, for appellees.
   PALMORE, Judge.

In this condemnation proceeding the Commonwealth has acquired for highway purposes a strip of land embracing .31 acres along the Harrodsburg Pike near Lexington. The owners appeal from a judgment entered on a verdict awarding them $1,603 for the land taken and $6,150 for damages to the remainder of the tract.

The principal objection, on which we have concluded that the judgment must be reversed, is that the $1,600 awarded for the .31 acres taken is grossly inadequate and in disregard of the evidence.

The strip of ground in question, which came off the front of a 10.7-acre estate purchased by the appellants from Hal Price Headley in 1958 for $126,500, embraced 28 trees and 650 feet of stone fence. The state used but one valuation witness. Beginning with an appraisal of $126,000 for the entire property, he assigned 40% of that value to the land, 10% to the 2,930 feet of stone fence around it, and 15% to its 330 trees. From these figures he computed the value of the .31 acres taken as follows:

This witness did not feel that there was any damage to the value of the remainder except in that it would be necessary for the owners to repair the jagged ends where the stone fence had been cut off, and for this he allowed an additional $500.

The values given by the owners ranged from $25,500 to $28,200 for the .31 acres, including trees and fence, and' $14,000 to $22,500 for damage to the remainder of the tract. Thus it is clear that the $6,150 awarded by the jury for remainder damage, though greatly in excess of the appraisal of the state witness, was well within the range of the appellants’ figures, whereas the $1,-600 awarded for the .31 acres was not within the limits of any of the evidence on either side.

The instructions given by the court, without objection, followed the form prescribed in Commonwealth v. Combs, 1932, 244 Ky. 204, 50 S.W.2d 497, 500 (Stanley’s Instructions, § 360). They told the jury to award “the fair and reasonable cash value of the .31 acres of land taken * * * considering it in relation to the entire tract of which it was a part, and also such other direct damage, if any, as * * * directly resulted to the remainder of the tract by reason of the situation in which it was placed by the taking of such fraction of the tract,” and to state separately “the amount awarded for the land taken from the damage awarded for the remainder of the tract, if any.”

The verdict of the jury appears on its face to have been faithfully responsive to these instructions. It reads as follows:

“We the jury, find from the evidence that the fair and reasonable cash value of the .31 acres taken from Robert Pierson, et al., was and is the sum of $1600.00. We further find as damage .to the remainder of the tract, the sum of $6,150.00. Our total verdict, therefore, is the sum of $7,750.00. Edwin C. Gilson, Foreman.”

However strongly we may be inclined to suspect that the jury was misled by the manner in which the valuations given in the testimony were broken down as to ground, trees and fence, and intended to assess $1,600 for the bare ground and $6,150 for the trees, fence, and residual damage, such a conclusion would rest on speculation and conjecture. Both the instructions and the verdict spoke in terms of “the remainder of the tract" (Emphasis added). Surely we must presume that the jurors understood the plain fact that the trees and fence located in the area taken were not part of the “remainder of the tract.”

Since it cannot be said that the jury misunderstood or misapplied the instructions, it follows that the verdict was not supported by the evidence, in that the $1,600 awarded for the .31 acres was $4,919 under the lowest appraisal.

The legal criteria for determining' whether an award in a condemnation proceeding is inadequate or excessive are similar to those that govern in common law actions. Where the amount is within the range of conflicting testimony, and thus has tangible evidentiary support, it will be sustained unless it is palpably inadequate or excessive. Nichols on Eminent Domain, Vol. 5, § 17.3. In such cases it is said that the jury’s assessment of damages will not be set aside if it is “supported by substantial evidence.” Bailey v. Harlan County, 1939, 280 Ky. 247, 133 S.W.2d 58, 60; Lexington & E. Ry. Co. v. Sumner, 1922, 196 Ky. 788, 245 S.W. 849, 850. But if it is not within the extreme limits of the valuation testimony and there is no other evidence from which it could reasonably be deduced it simply has no support at all, and, under the fundamental rules applicable to verdicts in any case, is generally set aside. Nichols, § 17.1.

It has been held in some jurisdictions that the jurors themselves are quasi-experts (especially if they have viewed the premises, as they did in this case), hence their verdict may to a reasonable degree be supported independently of the evidence. Cf. Texas Pacific-Missouri Pacific Terminal R. R. v. Strauss, 1926, 162 La. 553, 110 So. 753. In others, it has been held that the jury has no right to disregard the testimony of the witnesses and base a verdict on its view of the premises. Cf. City of Rockford v. Mower, 1913, 259 Ill. 604, 102 N.E. 1032, 1036; City of Chicago v. Callender, 1947, 396 Ill. 371, 71 N.E.2d 643, 648. Though a view of the property lends much weight to the jury’s verdict, surely it would be folly to support it on that basis alone. Yet that is precisely what we should have to do in this case in order to affirm the judgment. We conclude that the safer and fairer practice is to keep the verdict within the reach of the record, in order that there may be a reasonable and effective review. See City of Grand Rapids v. Perkins, 1889, 78 Mich. 93, 43 N.W. 1037. Therefore,, the verdict must be set aside. i.

Where the amount of one or more’ of the items of damage awarded in a condemnation case is demonstrably erroneous it is not legitimated by the fact that the overall amount of the award is within the range of the testimony. Greenup County v. Redmond, Ky.1960, 335 S.W.2d 335, 338; Commonwealth v. Treadway, Ky.1961, 346 S. W.2d 296.

Two other questions require clarification for purposes of the retrial of this case:

(1) Appellants took the position that it would be necessary to reconstruct the stone wall across the front of their property, and they sought to prove what it would cost to do so. The circuit court correctly excluded this evidence because it would tend to a duplication of the same item of damages. Commonwealth v. Blanton, Ky.1961, 352 S.W.2d 545 (in which Commonwealth v. Conatser, Ky.1959, 329 S.W.2d 48, is distinguished); Greenup County v. Redmond, Ky.1960, 335 S.W.2d 335; Commonwealth v. Rankin, Ky.1960, 346 S.W.2d 714; Smick v. Commonwealth, Ky.1954, 268 S.W.2d 424.

(2) In addition to the permanent taking of .31 acres the state condemned in this action a temporary easement over a .23-acre strip, for which item the county court awarded $1,089 in accordance with the report of commissioners. Appellants say the state took no exception to that item in its appeal to the circuit court and that they are entitled to a judgment for it. We think, however, that the easement, being an interest in land, was embraced within the state’s exception “to the award * * * for land taken. * * * ” An objection to the court’s failure to cover it in the instructions would have been well taken.

The judgment is reversed and the cause remanded for a new trial on all questions of damages.


author: STEWART, Judge. PALMORE, Judge

text:
    Joe B. (Smokey Joe) JARBOE, Appellant, v. Henry SMITH, Appellee.
    Court of Appeals of Kentucky.
    Oct. 17, 1961.
    J. D. Buckman, Jr., Frankfort, Frank E. Haddad, Jr., Louisville, for appellant.
    Paul R. Huddleston, Bowling Green, for appellee.
   STEWART, Judge.

Appellant, Joe B. (Smokey Joe) Jarboe, incumbent county judge of Marion County, was the successful candidate for re-election to that position in the May, 1961, Democratic primary election. Appellee, Henry Smith, the opposing candidate, filed this contest suit seeking to have himself declared the nominee, and the trial court entered judgment in his favor.

Appellant’s principal argument on appeal is that the circuit court erred in adjudging all the absentee ballots void and in deducting them from the total votes received by the parties. Appellant won renomination by a total majority of 27 votes; of these his majority was three votes in the precincts and 24 of the absentee ballots counted. The trial court eliminated all absentee ballots from the tabulation and ruled IS precinct votes cast for appellant were illegal for various reasons, thus giving appellee a majority of 12.

In an opinion handed down, the trial judge found the absentee ballots were opened and counted in substantial violation of the law and without regard for the contestant’s rights. Specifically the violations listed were:

1. The board of three county election commissioners, sometimes referred to herein as “the board” and at other times as “the election commissioners”, accompanied by an employee of the county clerk, took the absentee ballot box to a small room inside the office of the circuit court clerk, locked the outer door so as to exclude all other persons therefrom and then proceeded to tabulate the ballots, thus failing to give appel-lee a reasonable opportunity to be present for the purpose of inspecting and counting these ballots. See KRS 118.380 and 119.230(1).
2. The county clerk, Paul Clark, did not attend and act as clerk of the board and was not represented by a lawful deputy.
3. All ballots had the signature of one of the commissioners but none was signed by the county clerk. See KRS 126.270(1).
4. After they were signed the ballots were not redeposited in a separate and regular box to be provided by the clerk and were not thoroughly shaken and redistributed before the tabulation, both of which duties are detailed in KRS 126.270(3).

KRS 118.370(3) states that the board shall meet at 6:00 p. m. on election day to count the ballots and perform certain other acts specified by this subsection. Their meeting place shall be the office of the county clerk or “some other room designated by the board.” In Marion County the counting place had customarily been the county clerk’s office. The selection of another location was made for the tabulation by arrangement between the county clerk, Paul Clark, and the circuit clerk, Jennings Crowdus, who was also one of the election commissioners, to relieve the congestion existing on the occasion in the county clerk’s office. No public announcement of this change was made and neither contestant nor contestee was notified.

Just before 6:00 p. m., on the primary election day, the election commissioners, Jennings Crowdus, Roger Hourigan and Charles Wooley, accompanied by Elizabeth Luckett, a deputy designated by the county clerk to perform the duties required of his office, took the absentee ballot box to the circuit clerk’s office and proceeded to inspect and count these votes. Shortly thereafter appellant,, who was let in by the janitor, entered and walked back to where the ballots were being inspected and counted. Somewhat later appellee came to the circuit clerk’s office, and his testimony is to the effect that it was only after considerable delay that he was allowed inside, because he found the door was locked and had difficulty in getting inside.

Appellee claims he knocked and shouted for IS minutes before he was allowed to enter, but no one inside the room, according to their testimony, heard any such noise. The three election commissioners stated they did not know the door was locked, until they heard a knock from appellee who asked for and was allowed access to the room. Admittedly, there was much noise in the entire courthouse on this election night. Sam Cooper Hill, the county attorney, testified : “I don’t think you could have heard a stick of dynamite go off in there.” It was also brought out that the door locks by a thumb latch, not a key, and could be locked by merely closing it. The evidence creates no fair inference there was any intention to exclude appellee from the place of the vote count. By the time he entered the room, the ballots had been taken out of both envelopes, the secondary stubs had been detached and strung on a string in order of their removal and the tabulation of the absentee ballots was partially completed.

While such a change to the circuit clerk’s office may have caused appellee to lose the opportunity to inspect any of the ballots, it must be remembered that Smith was told, when he made inquiry, where the absentee ballots were being counted. He was allowed inside the room within two minutes of knocking on the door, according to the county attorney and one other witness who were standing outside the door with him, or within IS minutes, according to appellee and another witness.

In the light of this evidence the trial court held,, relying upon Pickard v. Jones, Ky., 243 S.W.2d 46, 49, that Smith “was deprived of the opportunity to challenge the qualifications of the absentee voters and to see that the envelopes containing the ballots were in due form and to have the ballots counted in the open.” ,

Appellant maintains there was a substantial compliance with the statute under the facts presented. A case relied upon by him to uphold the validity of the vote count, where the principle of substantial compliance was applied and where an absentee vote tabulation was involved, is Stabile v. Osborne, 309 Ky. 427, 217 S.W.2d 980, 982. This excerpt is quoted therefrom:

“It is the policy of the law to prevent as far as possible the disfranchisement of electors who have cast their ballots in good faith. While the regulations and procedure prescribed in the absentee voting law should be followed by the officers, a substantial compliance is sufficient if the proper ends are reached.” (Citations omitted.)

It is clear to us that Pickard v. Jones, supra, cannot be accepted as controlling since the facts there differ so materially from those in the case under consideration. In that case the election commissioners took the absentee ballot box into a small room in the courthouse and fastened themselves in seclusion after every person, including the county clerk, was ordered from the room. Under such conditions they proceeded to tabulate the absentee ballots. There was also gross irregularity concerning the retention of a properly locked and securely maintained absentee ballot box in the county clerk’s office prior to the election, which dereliction alone, this Court said, “clearly violated KRS 126.240.” To sum up, the Pickard case held the absentee votes invalid because of “the departure by the officers from the clear mandates of the statutes * *

’ In the present case, no attack is, made upon the integrity of the absentee ballot box; no evidence is before us which tends to show that the absentee ballots that were counted were not authentic; no one, as we view the record, was wilfully excluded or was thrown out of the circuit clerk’s office after establishing his right to be present; and no contention is advanced or proof has been produced that the officials in charge of the count were guiíty of fraud or deliberate wrongdoing.

In our opinion there was not such a noncompliance with KRS 118.380 and 119.230-(1) as to invalidate votes which, from every angle we have considered them, are otherwise valid.

The trial court determined that the county clerk was not lawfully represented during the vote count. Elizabeth Ann Luckett, an employee of the county clerk,' was present in the circuit clerk’s office, having been designated to perform the functions required by law of her employer. She was then 18 years old, was working as a sworn deputy, and her official bond was signed, executed and entered in the proper' order book. In Talbott’s Devisees v. Hooser, 12' Bush 408, the acts of a deputy county clerk under the age of 21 were held to be not invalid on that ground alone. See also 14 C.J.S. Clerks of Courts § 86, p. 1269, which says that the office or position of deputy county clerk “ * * * may be held by one who is not a qualified voter, such as a minor * * This same section also states that the acts of a deputy county clerk who is under age may nevertheless be as “valid as those of a defacto officer if he is recognized by the public as a deputy.” We conclude that qualifications of the 18-year-old deputy cannot be assailed in respect to the duties she carried out during the absentee ballot tabulation.

The next two grounds urged for reversal are interrelated, as they concern how the ballots were treated when they were taken out of the box preparatory to their being made ready for tabulation in accordance with certain provisions of KRS 126.270. To ascertain whether the acts of the election commissioners at this juncture resulted in vitiating the ballots we must consider what transpired. There was only one box used in Marion County in connection with the handling of absentee ballots, namely, the one in the county clerk’s office in which the ballots were deposited as they were sent in by absentees.

According to the testimony of Jennings Crowdus, the chairman of the board, and his testimony seems not to have been materially contradicted, each 'electipn commis-' sioner took turns in taking a ballot from the box. Next the name in the upper left-hand corner of the envelope was called out and the envelope itself was checked to determine if the date stamped on it by the county clerk was placed there before the closing of the polls. Then the inner envelope was removed and examined to see if the affidavit was properly executed before a duly authorized officer. After the ballot was extracted from the inner envelope and the secondary stub was torn off and put on a string, each ballot was then signed by Charles Wooley, the Republican election commissioner. The clerk’s signature was not written on any of the ballots. The ballots were next placed face down upon a table, so no one could see how they were cast before it was time for their tabulation, it was claimed, and the empty envelopes were put in a wastebasket or in the ballot box. At this point, the testimony of this witness is not clear about whether the ballots were redeposited in the same box and shaken thoroughly and afterwards counted ' or whether the ballots which had been stacked upon the table were picked up from there and counted and afterwards returned to the box.

The evidence in this case conclu- • sively discloses that the county clerk’s signature was omitted from- the back of all the absentee ballots counted, and the trial judge reasoned that this failure to comply with a specific legal requirement had a voiding effect on these ballots. However, in Hogg v. Caudill, 254 Ky. 409, 71 S.W.2d 1020, this Court pointed out that the signature requirement imposed upon the county clerk was not a mandatory provision. Hence this officer’s dereliction in this respect did not invalidate any ballot just because his name was missing therefrom. See also Stabile v. Osborne, supra.

The trial court found that the ballots were not cast, since they were simply-laid in an open box or upon the table and the secondary stubs were strung in the same sequence. According to 29 C.J.S. Elections § 210g, p. 306, some courts have decided that under statutes requiring the redeposit of absentee ballots in a ballot box, the absentee vote is not complete until the redeposit has been made. However, such statutory provisions have been held by other courts to be directory rather than mandatory, so that a “technical noncompliance”. therewith will not render an absentee vote invalid. In Siedschlag v. May, 363 Ill. 538, 2 N.E.2d 836, the absentee ballots were placed on a table rather than in the ballot box, just prior to tabulation, and such ballots were held valid.

Through all the cases- relating to absentee voting, the theme of substantial compliance with statutory regulations is omnipresent. The courts are reluctant to deprive a voter of his right of suffrage because of mere irregularities which do not affect the fairness and equality of an election. It is felt that a voter, through no fault on his own part, should not suffer the consequences of a minor failure on the part of election officials to follow the formal steps prescribed. In such cases, as in this one, the question of fraud or wilful tampering with the election machinery was not present.

,We believe the irregularities that are complained of in connection with the tabulation of the absentee ballots in the case at bar come within the application of this principle of law taken from 18 Am.Jur., Elections, sec. 225, p. 331: “* * * It may, therefore, be stated as a general rule that if ballots are cast by voters who are, at the time, qualified to cast them and who have done all on their part that the law requires of voters to make their voting effective, an erroneous or even unlawful handling of the ballots by the election officers charged with such responsibility will not be held to disfranchise such voters by throwing out their votes on account of erroneous procedure had solely by the election officers, provided the votes are legal votes in their inception and are still capable of being given proper effect as such. * * ”

Other questions are raised in this appeal that we deem it unnecessary to answer. Since our conclusions of law in this case are based upon facts about which there seems to be no essential dispute CR 52.01, which is relied upon by- appellee as controlling, has no application.

As the trial court acted erroneously in eliminating the absentee ballots, which votes we hereby hold are valid, it follows that appellant has a majority of 12 votes, and this entitles him to be declared the nominee for the office of county judge of Marion County in the forthcoming general election in November, 1961.

Wherefore, the judgment is reversed with directions that another be entered sustaining the validity of the tabulation of the absentee ballots involved herein and with further directions that the election commissioners deliver unto appellant a certificate of nomination as the Democratic nominee for county judge of Marion County in the next general election.

MONTGOMERY, J., not sitting.

PALMORE, Judge

(dissenting).

I cannot join in this opinion without stumbling over Pickard v. Jones, Ky.1951, 243 S.W.2d 46, in which the facts were somewhat more flagrant than the facts of this case but the stated principle was unmistakably the same.


text:
    Clay M. BISHOP, Appellant, v. Charles C. SMITH et al., etc., Appellees.
    Court of Appeals of Kentucky.
    Oct. 17, 1961

      Logan E. Patterson, Pineville, Clay M. Bishop, Manchester, for appellant.
    Lester H. Burns, Jr., Manchester, Burns, Miniard & Oliver, Lexington, Neville Smith, Charles C. Smith, Manchester, for appellees.
   CLAY, Commissioner.

This is a primary election contest. Ap-pellee .Smith was certified the winner of the Republican nomination for County Attorney of Clay County by a margin of 17 votes. The special trial judge, upheld Smith’s nomination.

There were charges and countercharges that a number of votes cast, including many in the Sexton’s Creek precinct, were illegal. In the votes counted for the Sexton’s Creek precinct, Smith had a majority of 29 votes. Even though Bishop picked up a few additional votes in other precincts, Smith still must be declared the winner unless the 29 vote majority in this precinct cannot be counted for him. Consequently, the Sexton’s Creek precinct votes are the controlling ones.

Apparently Bishop set out in this contest proceeding to show that a number of votes in the Sexton’s Creek precinct were illegal and that such illegal votes were cast for Smith. This plan of attack seems to have failed because Bishop was unable to prove that the illegal votes were voted for Smith instead of for himself. As the case developed, and as it appears here, the contestant can be successful only if the entire vote of this precinct is disregarded. It is his contention that there was such intimidation and disorder during the voting-and also such a large number of admittedly illegal votes, for which Smith was in some way responsible, that all of the votes in the precinct should be nullified.

It was shown that there were some illegal and improper acts committed by certain persons at the polls. However, the trial judge found that -there was no substantial evidence this conduct was instigated by Smith. Though there was some proof that Smith himself made intimidating remarks, the difficulty with contestant’s position is that he failed to prove a single voter voted for Smith because of any improper or intimidating acts.

The most serious question arises with respect to 150 votes which were clearly illegal. They were all cast after the official closing time of the polls. The trial judge properly declared these votes illegal. Our most recent case on the subject is Boone v. Humphrey, Ky., 349 S.W.2d 822.

It appears that Smith, along with at least one other lawyer, advised the election officials that it was proper for persons "at the polls to vote after the official closing time. It is contended by contestant that 'Smith’s participation in this procedure thereby made him responsible for the illegal vote, and such misconduct tainted the entire election in this precinct. However, we cannot say that such a mistaken opinion concerning the law by a candidate (which opinion has been held by other reputable lawyers) constitutes misconduct or could have the far reaching effect claimed here by contestant.

The total vote in this precinct was 390. Of these, the 150 votes just mentioned (plus another 11) were illegal votes. However, we have always recognized that except under extreme circumstances the voter who has cast a legal vote should not be disfranchised by the acts of others which result in illegal voting. See Stabile v. Osborne, 309 Ky. 427, 217 S.W.2d 980, and Napier v. Noplis, Ky., 318 S.W.2d 875.

It has long been recognized that when a contestant attacks specific votes as being illegal, it is incumbent upon him to name the voters and prove they voted for his opponent. Hogg v. Caudill, 254 Ky. 409, 71 S.W.2d 1020; Napier v. Noplis, Ky., 318 S.W.2d 875. Though apparently the names of the 150 voters who were ineligible to vote after the polls closed were available and could have been obtained by the contestant, he failed to bring these voters into court to prove for whom they had voted. The contestant contends that the burden of proving how these votes were cast shifted to the contestee because he participated in their illegality, but we know of no authority or sound reason for such a principle.

In the alternative, appellant contends that because there were so many illegal votes (and other irregularities) we should disregard all the votes in the precinct under what has become known as the twenty-percent rule. In the cases of Gregory v. Stubblefield, Ky., 316 S.W.2d 689, and Napier v. Noplis, Ky., 318 S.W.2d 875, we pointed out certain misapprehensions-concerning this rule and discussed its limitations. In those cases it was held that all of the votes in a voting unit will be disregarded only if (1) there are a sufficient number of illegal votes (which are directly attacked) to change the result of the election, and (2) it is impossible to determine for whom these votes were cast. In the present case condition (1) was fulfilled, but condition (2) was not. As observed by the trial judge, particularly in viéw of the closeness of the vote for the entire precinct, there is no basis for speculating otherwise than that each of the two-candidates received an equal share of the illegal votes. Under those circumstances we would have no justification for disfranchising the legal voters.

The excellent opinion of the special trial judge shows that all of the issues were carefully considered by him, and in our opinion his findings of fact were substantially supported by the proof and his conclusions of law were eminently correct.

The judgment is affirmed.

BIRD, C. J., not sitting.


text:
    Elmer BEGLEY, Appellant, v. George WOOTON, Appellee.
    Court of Appeals of Kentucky.
    Oct. 17, 1961.
    Logan E. Patterson, Pineville, A. E. Cornett, Hyden, for appellant.
    Roy W. House, Manchester, John Y. Brown, Lexington, for appellee.
   CLAY, Commissioner.

In the last primary election to select the Republican nominee for County Judge of Leslie County appellee Wooton was certified the winner by a plurality of something over 200 votes. This election contest suit was filed by appellant on the grounds appel-lee had bought votes and had made public statements in violation of the Corrupt Practices Act. KRS Chapter 123 (particularly KRS 123.040). The special trial judge upheld the election upon a finding that appellant had failed to prove his charges of bribery by substantial 'credible evidence, and upon a determination that appellee’s public statements did not as a matter of law constitute illegal conduct.

Eleven persons testified in substance that appellee had given them money (ranging from $5 to $50) for their votes and influence. This testimony was attacked by attempts to show that the witnesses were in some respects disreputable people, that their stories were improbable and inconsistent, and their reputations for untruthfulness made them unworthy of belief. Appellee categorically denied the payment of money or the giving of anything of value to these witnesses. In rebuttal appellant undertook to prove their reputations were good.

The opinion of the special trial judge shows that the evidence was carefully ■analyzed by him and he decided that those witnesses whose testimony showed a violation of KRS 123.040 were not worthy of belief. Appellant contends that the trial court’s determination of credibility was based on the unsound premise that if a person will sell his vote he will not honor his oath to testify truthfully. While there is merit in appellant’s position that a witness’ testimony that he has sold his vote does not automatically destroy his credibility, we believe the trial judge was simply considering the nature of this evidence as one of the factors, along with others, which would reflect upon the witness’ credibility. With respect to other witnesses, some of their testimony did not have the ring of truth and their reputation for untruthfulness was brought in issue.

Appellant contends a substantial amount of the impeaching evidence was incompetent because relating to the moral character of the witnesses rather than their reputation for untruthfulness. Had this case been heard by a jury (and had proper objections been made), some of this evidence should have been ruled out as incompetent. However, we must presume the trial judge properly considered the impeaching evidence only to the extent that it reflected upon the witness’ general reputation for untruthfulness which rendered him unworthy of belief. (CR 43.07) The credibility of those witnesses was a significant issue in this controversy and it was properly the trial court’s function to reach a decision with respect thereto. In many respects the circumstances in this case are similar to those in Asher v. Sizemore, Ky., 261 S.W.2d 665, wherein we upheld the trial court in rejecting the testimony of those who claimed to have sold their vote.

It must be borne in mind that appellant had the burden of proving that ap-pellee violated KRS 123.040. To decide this phase of the case it was necessary that the trial court determine if the appellant had established his case by substantial credible evidence. As the trier of facts, he was forced to accept either appellant’s evidence or that of appellee, including the positive testimony of appellee himself. Even where the only evidence presented is on the side of the one having the burden of proof, we have held that a finding of the trial judge for the other party must be upheld unless the evidence is so conclusive as to entitle the former to a favorable finding as a matter of law. Withers v. Berea College, Ky., 349 S.W.2d 357. Where there is substantial proof on both sides, we will not reverse a judgment consistent with the findings of fact by a trial judge unless those findings are clearly erroneous. CR 52.01. See Taylor v. Newman, Ky., 318 S.W.2d 407. Appellant has failed to establish error in this judgment on the bribery question.

It is also contended appellee violated the spirit of the Corrupt Practices Act by publicly promising that he would see that his people received surplus commodities “seven days a week, 365 days a year”, and also promising he would “put butter on their bread” and would furnish a warehouse to store commodities. The import of appellee’s statements was that he would help his people obtain a greater share of what the federal government was giving away. (This seems to be the only thing of importance to voters nowadays.)

Such statements may be classified as a common, garden variety of campaign buncombe. A seeker of public office formerly held by another could not campaign if he was not permitted to assure the voters that he would do more than his predecessor. The undertaking of this candidate does not constitute the form of bribery condemned in Kluemper v. Zimmer, 240 Ky. 225, 41 S.W.2d 1111, and Sparks v. Boggs, Ky., 339 S.W.2d 480. These particular statements do not constitute a corrupt practice.

The judgment is affirmed.

BIRD, C. J., not sitting.