text:
    John A. SLOAN, Appellant, v. Marvin R. IVERSON, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    Joseph Martin, Edmonton, Morris Butler, Greensburg, for appellant.
    Carroll M. Redford, Jr., Carroll M. Redford, Redford & Redford, Glasgow, Maxey B. Hariin,.:Coleman, Harlin & Orendorf, Bowling Green, for appellee.
   CULLEN, Commissioner.

John A. Sloan appeals from a judgment on a jury verdict awarding Marvin R. Iver-son $2,500 for personal injuries and property damage sustained in. a collision of the Sloan and Iverson automobiles on a public highway.

The automobiles were proceeding in opposite directions. The collision occurred in a curve. Iverson’s lane was on the outside of the curve and Sloan’s was on the inside. It was raining at the time and the pavement was wet. Iverson’s automobile was pulling a camping trailer.

The evidence for Iverson was that he at all times was on his side of the road and at the time of the collision he had pulled partly- off on the shoulder to avoid the Sloan car, which came across the center line and struck the rear left fender of his car and then hit the trailer. Sloan’s testimony was that as he approached the curve the trailer behind the Iverson car was partly across the center line; he endeavored to make a tight turn in the curve to avoid the trailer and his car skidded; however he did not skid across the center line; the vehicles collided right on the center line.

Under the principles enunciated in Jones v. Carr, Ky., 382 S.W.2d 853, there clearly is no merit in Sloan’s contentions that, because of the evidence that his car skidded into the other, he was entitled to a directed verdict and the verdict and judgment are contrary to the evidence.

Likewise, under the Jones case and under Cain v. Williams, Ky., 314 S.W.2d 574, and Williams v. Kirtley, Ky., 263 S.W.2d 119, there is no merit in Sloan’s contention that he was entitled to an “unavoidable accident” or “sudden emergency” instruction. Hall v. Ratliff, Ky., 312 S.W.2d 473, is distinguishable because there the skidding was upon an isolated spot of ice of which the driver was not aware. Here, Sloan knew that the pavement was wet. Furthermore, the Jones case indicates a rejection by the Court of the basic theory invoked in Hall v. Ratliff. Actually we entertain serious doubt whether an “unavoidable accident” instruction should ever be given in an automobile collision case.

While we have considered the contention concerning the instructions, it is questionable whether the alleged error was properly raised in the lower court, because Sloan did not offer written requests for instructions as required by CR 51, but merely moved the court orally that instructions be given on “unavoidable accident” and “sudden emergency” (he did not suggest how the instructions should be worded).

Sloan claims error in the admission of evidence in that Iverson, in testifying as to the before and after values of his trailer, was permitted to mention that he had received estimates on bids “on how much I could get for the trailer afterwards”. However this avenue was not pursued and the values ultimately stated by Iverson were based specifically upon his professed familiarity with the market value of trailers of the. type in question. In any event the evidence showed that the trailer’s body was practically demolished by the collision so there could have been no serious prejudice from Iverson’s being permitted to estimate its after -value at only $150.

The judgment is affirmed.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    CITY OF LOUISVILLE, a Municipal Corporation, Appellant, v. Agnes ALLEN, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Eugene H. Alvey, Director of Law, Chestér A. Vittitow, Jr., Asst. Director of Law, Louisville, for appellant.
    Leibson & Leibson, C. M. Leibson, Louisville, for appellee.
   CLAY, Commissioner.

Plaintiff appellee sued defendant appellant, City of Louisville, for personal injuries allegedly sustained by her when she fell upon a sidewalk, which she claims was maintained in a defective condition. Two trials were had before a jury. The first trial resulted in a verdict for $250. A new trial was granted on plaintiff’s motion, and on the second trial, limited to damages only, a verdict for $12,000 returned.

Defendant contends the trial judge erroneously granted plaintiff a new trial, but if not, he erroneously limited the new trial to the question of damages only. We believe defendant’s alternative position is a sound one.

It is apparent the trial court awarded plaintiff a new trial on the ground that the damages were inadequate. We need not detail the evidence of plaintiff’s injuries. Special damages came to approximately $146 and the award for pain and suffering was a little over $100.

We will first address ourselves to the problem of the proper approach an appellate court should take in reviewing an order of the trial court granting a new trial on the ground of inadequate or excessive damages. It essentially involves how much weight is accorded the determination of the trial judge that justice requires a retrial. This Court has consistently recognized that the trial court exercises some degree. of “discretion” in passing upon a motion for a new trial.

In one of our earlier opinions, Brown v. Louisville & N. R. Co., 144 Ky. 546, 139 S.W. 782, 783, we observed:

“Under the settled practice, the granting of new trials is a matter largely within the discretion of the trial court; and, unless it appears that this discretion has been abused, or, to state it differently, not properly exercised, we do not feel disposed to interfere with it. In Pace v. Paducah Railway & Lighting Co., 89 S.W. 105, 28 Ky.Law Rep. 278, we said: ‘It has been frequently pointed out by this court that the discretion of the trial court in granting a new trial, or in refusing it, is one that will not be disturbed by the appellate tribunal, except it is made to appear that it has been abused. The trial judge hears the evidence, as does the jury, and, while the verdict is primarily that of the jury, still the trial judge’s concurrence is necessary to its completeness as the basis of the judgment. He likewise hears the witnesses and has even a better opportunity, perhaps, for judging of the demeanor and surroundings as liable to improperly affect the result of the trial, than the jurors themselves have. It is peculiarly his business to see that the trial is fair, and that the jury are not imposed upon either by prejudicial misconduct of parties or counsel, or having produced to them evidence under erroneous rules, as well as to see that they are not subjected to other improper influences in reaching their verdict. For a breach of any of these matters, as well as for his belief that the verdict is contrary to the evidence, he may refuse to sanction it, and grant a new trial.’ ” . ,

Of particular significance is the further observation:'

“Our rule on questions like this is not to interfere "with’the finding of the jury in the assessment of damages unless it appears to be flagrantly against the evidence, when there has been a fair trial. But the question now to be considered is not confined to what our opinion may be as to the excessiveness of the verdict set aside, but depends rather upon whether the setting it aside was an abuse of discretion on the part of the trial judge.”

Subsequent decisions have restated the following propositions: (1) the matter of granting a new trial is within the discretion of the trial judge, (2) he will not be reversed on appeal unless there is an abuse of discretion, (3) the appellate court is more reluctant to reverse an order granting a new trial than one denying it. Cherry Bros. v. Christian County, 146 Ky. 330, 142 S.W. 726; McLemore v. Evansville & Bowling Green Packet Co., 160 Ky. 566, 169 S.W. 1006; Beall v. Louisville Home Telephone Co., 166 Ky. 345, 179 S.W. 251; Chesapeake & O. Ry. Co. v. Stone’s Adm’r, 200 Ky. 502, 255 S.W. 134; Goff v. Hubbard, 217 Ky. 729, 290 S.W. 696, 50 A.L.R. 1382; Perry v. City of Cumberland, 312 Ky. 375, 227 S.W.2d 411; Daniel v. Morgan, Ky., 244 S.W.2d 752; Taulbee v. Mullins, Ky., 336 S.W.2d 597. (Not all of the above cases involve excessive or inadequate damages, but the same principles were applied.)

In the Brown case (above quoted), and in Beall v. Louisville Home Telephone Co., 166 Ky. 345, 179 S.W. 251, and Perry v. City of Cumberland, 312 Ky. 375, 227 S.W.2d 411, we stated the question was not whether we would independently reach the same conclusion as the trial judge but whether he had abused his discretion. However, in those cases, as well as in all the. others cited, this Court had carefully examined the record to determine whether it reasonably justified the trial court’s ruling.

In Burton v. Spurlock’s Adm’r, 294 Ky. 336, 171 S.W.2d 1012, it was said the record must disclose' á “sound reason” for the ruling, and in Gottsegen v. Wilson, 278 Ky. 734, 129 S.W.2d 575, we required a “substantial reason”.

Commonwealth Dept. of Highways v. Citizens Ice & Fuel Co., Ky., 365 S.W.2d 113, went a step further. The circuit court had granted a new trial for inadequacy of damages in a condemnation case where the only issue tried was that of just compensation. Treating the question as one involving the sufficiency of the evidence to warrant the verdict, we said it was not “a matter of discretion”. We then reviewed the evidence and applied the same standards as those which would have been applied if the right to a new trial had been presented as an original proposition. Finding the evidence justified the original verdict, we held the trial court erred in granting a new trial. (Reference to this case will be made later in the opinion.)

The difficulty lies in what is meant by the use of the term “discretion” or “judicial discretion”. Properly defined, the trial court does have some discretion in granting a new trial and his ruling, both as a practical and a legal matter, carries some weight upon appellate review. The following definitions are helpful in reaching a workable understanding of the term:

“ ‘Discretion’ of court is a liberty or privilege allowed to a judge, within the confines of right and justice, to decide and act in accordance with what is fair, equitable, and wholesome, as determined by the peculiar circumstances of the case, and as discerned by his personal wisdom and experience, guided by the spirit, principles, and analogies of the law, to be exercised in accordance with a wise, as distinguished from a mere arbitrary, use of power, and under the law.” In re Welisch, 18 Ariz. 517, 163 P. 264, 265. (Quoted in Bowman v. Hall, 83 Ariz. 56, 316 P.2d 484, 486.)
. “This discretion, when applied to a court of justice, means sound judicial discretion guided by law. It must be governed by rule, and not by humor. It must not be arbitrary, vague, and fanciful, but legal and regular. It may not be granted or refused at the mere will or pleasure of the judge, but he is to exercise a sound judicial judgment, in the interest of justice and prudence.” Watt v. Stanfield, 36 Idaho 366, 210 P. 998, 1000.
“Discretion implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity and justice. (Bowers, ‘Judicial Discretion of Trial Courts,’ 1931, § 10, pp. 14, 15.) The term implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason.” People v. Surplice, 203 Cal.App.2d 784, 21 Cal.Rptr. 826, 831.
“Discretion is not a judge’s sense of moral right; neither is it his sense of what is just. He is not clothed with a dispensing power or privileged to exercise his individual notions of abstract justice. With him there is no scope for judicial caprice. Principles of law are to be ascertained and followed. Justice is administered in the courts on settled and fixed principles.” In re Bond’s Guardianship, 251 App.Div. 651, 654, 297 N.Y.S. 493, 496.
“Discretion presupposes the right on the part of the trial judge to adopt one of two or more different conclusions on the facts before him, if such conclusion could have been reached by a reasonable man on the evidence.” Ramsey Trucking Co. v. Mitchell, 188 Cal.App.2d Supp. 862, 11 Cal.Rptr. 283, 285.
“In a multitude of cases it has been said that the decision of the question whether a new trial should be granted for excessive or inadequate damages, or for other reasons, is within the ‘discretion’ of the trial judge. * * * ‘Discretion’ in this connection does not mean wilful or arbitrary decision. The ‘discretion’ meant is ‘judicial discretion,’ which ‘imports the invocation ■ by a clear and trained mind of reason, courage, impartiality and conscience to accomplish in a calm spirit a result in conformity to law and just and equitable to all parties.’ Kravetz v. Lipofsky, 294 Mass. 80, 83, 200 N.E. 865, 867.” Bartley v. Phillips, 317 Mass. 35, 57 N.E.2d 26, 30.

As these definitions intimate, the “discretion” which the trial judge may exercise in passing on a motion for a new trial is nothing more or less than the right to reach a reasoned conclusion. The de-cisional aspect of his judicial function is involved. The intangible factor which does not appear on the record is his judicial sense of what is right, fair and just. It may be said that the trial judge exercises some “discretion” when he makes a finding of fact or grants an injunction. Implicit in the exercise of “discretion” is a choice between two or more legally acceptable alternatives.

Assuming then that the trial judge does exercise such “discretion”, what is the proper scope of appellate review?

The federal courts have experienced difficulty in solving this problem. At one time the doctrine was generally accepted that a Circuit Court of Appeal would not review the matter of excessiveness or inadequacy of damages which had been raised in the trial court on motion for a new trial. There has been a shift away from this doctrine and the federal appellate courts generally do review the ruling on the “abuse of discretion” ground. The matter is discussed at length in Moore’s Federal Practice, 2d Ed., Vol. 6, section 59.08(6) (page 3821 et seq.).

A recently expressed view of a federal court which had theretofore followed a policy of nonreview is as follows:

“We do emphasize again, however, that in our opinion, inadequacy or ex-cessiveness of a verdict is basically, and should be, a matter for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and which knows the community and its standards; that this is a responsibility which, for better working of the judicial process and for other seemingly obvious reasons, is best placed upon its shoulders; and that we shall continue to consider review, as we have said before, not routinely and in every case, but only in those rare situations where we are pressed to conclude that there is ‘plain injustice’ or a ‘monstrous’ or ‘shocking’ result. Perhaps this is saying nothing more and nothing different than what the other courts of appeals have said in varying language. Perhaps in practice this court has observed a somewhat tighter standard than the others.” Solomon Dehydrating Co. v. Guyton (CA 8), 294 F.2d 439, 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192.

This view may accord too much weight to the decision of the trial court, but at least it expresses a sound reason why some consequence must be accorded its decision. A more generally acceptable conclusion is the one reached by Professor Moore, which is:

“It serves to emphasize the initial and primary role of the trial judge in determining these issues; that his decision shall be prima facie correct and final; and that only in rare instance when it can be said that he has clearly erred, i. e., abused his discretion, will he be reversed.” (Our emphasis.) Moore’s Federal Practice, Vol. 6, section 59.08 (page 3829).

We thus may bring the matter into focus. On review the appellate court is searching for errors of law. An abuse of discretion may be said to be an error of law. Boyle v. Bond, 88 U.S.App.D.C. 178, 187 F.2d 362, 363.

In the field of decision making where many factors are involved there cannot be a clear-cut line between the right and the wrong. The intermingling of various considerations, with varying persuasive values, results in a decision one way or another. Just as in making a finding of fact, we must recognize that the trial judge has an area of choice. This is part of his judicial function. The administration of justice demands respect for his judgment within this area.

As a practical matter an appellate court accords weight to and is inclined to follow decisions of the trial judge. Consciously or unconsciously, his decision is presumed correct. It will not be overturned if it can be sustained. As observed by Professor Moore, a showing must be made that he has “clearly erred”.

With the foregoing concept of “discretion” and “abuse of discretion” (perhaps better terminology could have been selected but it is too late to change it), we return to our long recognized approach to the trial court’s ruling on a motion for a new trial. As reiterated in Brown v. Louisville & N. R. Co., 144 Ky. 546, 139 S.W. 782; Beall v. Louisville Home Telephone Co., 166 Ky. 345, 179 S.W. 251; and Perry v. City of Cumberland, 312 Ky. 375, 227 S.W.2d 411, we do not consider the question of inadequacy of damages on the first trial independently of the trial court’s order granting a new trial. His ruling involves something more than the narrow issue of whether there is substantial evidence to support the verdict. His order is presumptively correct. If there is doubt about the correctness of his ruling, it must be upheld. If the record supports his ruling, it will not be reversed. Even if in our opinion the record would more strongly support a different conclusion, if there is substantial reason for his decision, then he has not clearly erred.

To the extent Commonwealth Dept. of Highways v. Citizens Ice & Fuel Co., Ky., 365 S.W.2d 113, prescribes a different avenue of approach, it is overruled.

With the foregoing principles in mind, we have examined the record to determine if the trial court committed error in granting a new trial for inadequacy of damages. We will not detail the evidence of injury. We need only say that the finding of the trial court that the allowance for pain and suffering was inadequate, assuming this to be a case of liability, was amply justified. In addition to the nature of the proof concerning plaintiff’s injuries, certain questionable aspects of the evidence support the trial court’s conclusion that the jury may have been misled on the issue of damages. We cannot find the trial judge abused his discretion or clearly erred in granting a new trial.

The next question is whether it was error to limit the new trial to the issue of damages only. While here again the trial judge exercised discretion, the area of choice is much more restricted and calls for closer scrutiny. The reason is that in granting a new trial on all issues, the court places the parties in statu quo, but in accepting the verdict on the question of liability, he is making final this ultimate determination of the parties’ rights. We are of the opinion that the court clearly ■erred in limiting the scope of the new trial.

The decision of the trial judge to grant a new trial because the damages were inadequate must have stemmed from his conviction that the verdict resulted from improper considerations on the part of the jury. It reasonably may be inferred that such considerations would affect the jury’s decision on the issue of liability. A compromise verdict is strongly indicated. We have consistently taken the view that where a new trial is granted for inadequacy of damages, the issue of negligence should likewise be resubmitted because of the interrelation of both issues. Allen v. Large, Ky., 239 S.W.2d 225; Smith v. Webber, Ky., 282 S.W.2d 346. The reason for this rule is well stated in Allbee v. Berry, 254 Iowa 712, 119 N.W.2d 230, 234:

“A new trial should never be ordered on the issue of damages alone where there is ground for suspicion that some of the jurors have conceded liability against their judgment in return for a reduction in the estimate of the amount of damages by others. Under such circumstances a new trial upon the issue of damages alone would be a serious injustice to the defendant. He is entitled to have the issue of liability determined by the conscientious conviction of all jurors before the question of damages arises.”

See also 66 C.J.S. New Trial § 11(5) (page 98).

Of course this principle would not apply if there was not a substantial issue of liability. But here there was.

In our opinion justice demands that both parties have a new trial on all of the material issues raised. We may observe that the failure of the trial court to so provide resulted in what we are inclined to believe, though we do not decide, was an excessive verdict of $12,000.

Since there was evidence that some of plaintiff’s complaints may have resulted from a pre-existing condition, if the evidence is similar on another trial, an instruction substantially in the form set forth in Stanley’s Instructions to Juries, Vol. 1, section 323 (page 55), should be given. See Spencer v. Matthews, Ky., 247 S.W.2d 515.

The judgment is reversed for further proceedings consistent with this opinion.

      . Though it was. not done here, a proper order granting a new trial should specify ■ the grofind or grounds sustained. Both ■ the litigants and this Court áre entitled to know the. fiásis of- the ruling. -.1.

      . In Davis v. Commonwealth, 290 Ky. 745, 162 S.W.2d 778, 780, we said this court was exercising a “judicial discretion” when passing upon the question of whether the verdict was against the weight of the evidence.

      . In Bartley v. Phillips, 317 Mass. 35, 57 N.E.2d 26, it was said that in essence the exercise of discretion upon a motion for a new trial because of excessive or inadequate damages is the- decision of a question of fact. ■

      . One of the reasons for allowing the trial judge some latitude in granting a new trial is that the relative rights of the parties existing at the initiation of the lawsuit are preserved intact.


author: MOREMEN, Judge.

text:
    Maceo DAVENPORT, Petitioner, v. Judge WINN, Montgomery Circuit Court, Mt. Sterling, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Maceo Davenport, pro se.
    Judge Winn, pro se,
   MOREMEN, Judge.

Petitioner, Maceo Davenport, a prisoner, has petitioned this Court to issue a writ of mandamus ordering the Bracken Circuit Court to furnish him with a transcript of record of a proceeding had under RCr 11.42 so that he may perfect his appeal.

It is averred that a hearing was held on September 10, 1964, on his motion to vacate a judgment of conviction and that after a hearing the petitioner’s motion was dismissed. It is further alleged that he was informed that he would be supplied with a transcript of record of the hearing.

No response has been filed to this petition. We have no information as to what transpired at the trial in the circuit court. We are not informed whether the motion under RCr 11.42 was adjudged to be insufficient on its face, or whether counsel was appointed and a full dress hearing was had. In any event, the petitioner is entitled to a transcript of the proceedings at the RCr 11.42 hearing if he seeks to appeal it.

In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 894, followed in Jones v. Breslin, Ky., 385 S.W.2d 71, decided December 11, 1964, it was held that an indigent person is entitled to a free transcript in order to perfect his appeal. See also Bauer v. Pound, Judge, Ky., 385 S.W.2d 167, this day decided. The writ therefore should issue.

In Kraus v. Ropke, Ky., 385 S.W.2d 162, this day decided, it was held that fairness required, when a motion under RCr 11.42 is ruled on by the Court, the movant be notified by sending him a copy of the order, and that the time for appealing does not commence to run until the order is sent to him. Similarly, in this case where a prisoner has been denied the opportunity to perfect his appeal in time because of the failure to receive a transcript of the record, the time for filing record on appeal will not commence until he has received a copy of the record.

The petition is granted.


author: WILLIAMS, Judge.

text:
    Charles J. HANSHEW, Appellant, v. Loretta Wallee MULLINS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Boyd F. Taylor, Hamm, Taylor & Milby, London, for appellant.
    Don B. Mills, Barbourville, for appel-lee.
   WILLIAMS, Judge.

This appeal is from a judgment of the Laurel Circuit Court granting a divorce and custody of infant children to the appel-lee Loretta Wallee Mullins. Three principal questions are involved: (1) Whether a Kentucky court must give full faith and credit to the divorce decree of a sister state where jurisdiction of one of the parties in that state was obtained by fraud; (2) whether a Kentucky court has jurisdiction to render a divorce when the plaintiff has been out of the state for four years except for the seven months immediately preceding the action; and (3) whether custody of the infant children was properly awarded the mother by the Kentucky court.

The parties were married in Louisville in 1957. In 1958 they moved to South Carolina and then to Georgia. In 1962 they were separated but continued to live in Georgia. In January 1963 the appellee came to Laurel County, Kentucky, with her children where she lived with her parents.

In March 1963 appellee was lured by the appellant to return to Georgia with the children to resume their marriage. Without appellee’s knowledge the appellant had instituted divorce proceedings against her and the sole purpose of enticing her to return to Georgia was to secure service of process on her in that state. Before she discovered the plot she was served, and appellant was granted an absolute divorce and custody of the infant children. This action was instituted in August 1963 in the Laurel Circuit Court. The chancellor refused to give full faith and credit to the Georgia divorce judgment, and awarded a divorce and custody of the children to ap-pellee.

The jurisdiction of a sister state to render a divorce decree is always subj ect to inquiry by the courts of this state. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, (1945). A divorce judgment by a court which does not have jurisdiction of the parties, or where neither party is domiciled in the state, is void and subject to collateral attack. Another state need not give the decree full faith and credit.

The validity of the Georgia divorce in a divorce proceeding in this state depends upon the jurisdictional due process afforded by the Georgia court. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942). The question is whether service of process effected by fraud is sufficient to void the judgment of divorce granted by the Georgia court. It has been said that, if a defendant is inveigled into the state by the fraud of the plaintiff and is then personally served with process in the state, he may object to the exercise of jurisdiction over him. If timely objection is not made, the judgment is open to attack in equity on the ground of fraud. Beale, Conflict of Laws, Vol. 1, sec. 78.4, pp. 341-342 (1935).

A collateral attack must be treated as if made in the original jurisdiction, and, if such attack would be invalid under the law of the original jurisdiction, it would be invalid in Kentucky. A court without jurisdiction cannot render a decree which would be entitled to full faith and credit in a sister state. Nelson, Divorce & Annulment, Vol. 3, sec. 33.31, p. 487 (2d ed.). New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947).

In Georgia, a judgment may be set aside in equity for fraud. Code of Georgia, Ann., Vol. 30, Title 110, sec. 110.710. The Georgia courts have frequently voided divorce judgments where there was fraud in the procurement. Where a spouse continues to cohabit and live with the other spouse after initiating a divorce proceeding, and assures the unsuspecting spouse that the divorce is not being continued, the Georgia courts will void the divorce. Wallace v. Wallace, 213 Ga. 96, 97 S.E.2d 155 (1957).

It is said in 30 Am.Jur., Judgments, section 251, that opinions from various states differ as to whether the judgment of a court of one state will be recognized in another state where the defendant was fraudulently decoyed into the former state for the purpose of service of process. Although we do not find a Georgia case specifically in point, it is reasonable to assume that a Georgia court of equity would not permit fraud to be perpetrated on it by the plaintiff’s procuring jurisdiction of the defendant by means of fraudulent enticement into the state. Consequently, we find the Georgia judgment is not entitled to full faith and credit in this state.

The appellee had lived in Laurel County with her parents for only seven months before she filed this action, but she testified she had always considered Kentucky her permanent residence. Although scant, the evidence produced by her showing domicile in this state was sufficient to establish jurisdiction in the Laurel Circuit Court. Elswick v. Elswick, Ky., 322 S.W.2d 129 (1959).

Appellant’s contention that the evidence is insufficient to support any ground for divorce is untenable. Under KRS 21.060 this Court may not reverse a divorce judgment which is merely erroneous. Sapp v. Sapp, 301 Ky. 849, 193 S.W.2d 443 (1946).

Since the Laurel Circuit Court had jurisdiction of the children domiciled in this state, custody was a proper issue before the chancellor regardless of which divorce decree is valid. His discretion in determining custody of the children will not be disturbed, since the proof was adequate to sustain his finding.

The judgment is affirmed.


text:
    SOUTHEASTERN GREYHOUND LINES, DIVISION OF the GREYHOUND CORPORATION, Appellant, v. Marion Russell GRIMES, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    R. W. Keenon, Stoll, Keenon & Park, Lexington, for appellant.
    Robert M. Coleman, Coleman, Harlin & Orendorf, Bowling Green, Carroll M. Redford, Carroll M. Redford, Jr., Redford & Redford, Glasgow, for appellee.
   WILLIAMS, Judge.

Shortly after alighting from a Greyhound bus the appellee, Marion Russell Grimes, was injured when struck by a truck owned by Kentucky Utilities Company. Separate verdicts were returned by a Barren Circuit Court jury against Greyhound and Kentucky Utilities Company in the amount of $2500 • each. Greyhound takes this appeal. Grimes has cross-appealed.

The accident occurred at 5:20 p. m., January 6, 1960. It was dark, there was no precipitation, the road was straight, and the place was within the city limits of Cave City.

The appellee tells this story. He boarded' á bus in Louisville bound for Smith’s Grove Road, which is south of Cave City. The bus stopped in Cave City at a restaurant. for a rest stop. Upon leaving the restaurant he inadvertently boarded a wrong bus, but did not realize it until the bus headed north. He immediately notified the driver, who stopped at a point approximately 150 yards from the restaurant across the road from a motel. Grimes was advised that he could go on to the next town and wait for another southbound bus if he wished. He decided to get off. When the bus driver opened the door the lights came on. Grimes descended the steps to the paved surface of the road, took two steps away from the bus, and remembers nothing after that. He was acquainted with the area and with traffic conditions on that road.

The man who operated the motel adjacent to where the bus stopped testified as follows:

“A. I came out of the restaurant; walked out on the drive and had been standing there just a few minutes and this Greyhound bus going north stopped over across the road and a gentleman got off it and the bus immediately went on north.- He stood there on the shoulder just a- little while. I don’t know exactly how long; probably half a minute ; something like that; maybe longer ; and then he started across the road and there was a car going north and he walked - out in front of this car going north, but the car stopped just real short of striking the man and then at about the same time this KU • truck was going south and he walked on out in. front of the car that was going north and right into the path of the ■truck that was going south and the KU truck hit him and I believe knocked him down the road some twenty, twenty-two or twenty-four feet; something like that. * * * ”

In ^nswer to further questions, that witness stated that before Grimes started across the road the bus went on over a hill and was out of sight. He stated there was no traffic on the road at that time except the car going north and the Kentucky Utilities truck going south. • ;

The driver of the car heading north which almost struck Grimes said he was driving 20 to 25 miles per hour when he saw something moving. As he got closer he recognized it was a man who had walked in front of him, but he was able to stop at about the point where the accident occurred. At that time Grimes had passed the center of the highway into the southbound traffic lane where he was struck by the Kentucky Utilities truck. The bus was not in sight.

The motel lights had been turned on and the lights of each of the vehicles involved were burning.

Greyhound maintains the case should be reversed and that it is entitled to a judgment notwithstanding the verdict. The appellee has cross-appealed, also asking that the judgment be reversed and that he be granted a new trial.

Greyhound contends that its driver did not discharge Grimes in an unsafe place and was not negligent, or, if so, either Grimes’ contributory negligence bars recovery or the intervening negligence of Kentucky Utilities Company supersedes Greyhound’s negligence. Grimes maintains that he was discharged at an unsafe place which, coupled with the negligence of Kentucky Utilities Company, caused his injuries.

We have examined this case from every angle, and regardless of which avenue w;e take the appelle.e .comes out the loser. He was discharged by the bus driver at his own request inside the city limits of Cave City at a time when there was no undue traffic on the road and under conditions with which he was as familiar as the bus driver. The negligence of Greyhound, if any, would stem from the duty of a carrier to exert the highest degree of care, skill and diligence for the safety of its passengers as is required by the nature and risk of the undertaking. Cincinnati, Newport & Covington Transp. Co. v. Fischer, Ky., 357 S.W.2d 870 (1962). Normally, when a bus stops for the convenience and at the request of a passenger at a place other than its station or platform, the carrier’s duty is merely not to discharge the passenger at a place that the carrier knows or ought to know is unsafe. Southeastern Greyhound Lines v. Woods, 298 Ky. 773, 184 S.W.2d 93 (1944). A carrier is not, however, under a duty to advise or warn a passenger of the danger of traffic or to protect him after he has left the bus where the conditions are as apparent to the passenger as to the operator of the bus. Southeastern Greyhound Lines v. Woods, supra.

Grimes was let out at his request and, having safely alighted from the bus, the passenger-carrier relationship terminated. Trout’s Adm’r v. Ohio Valley Electric Railway Company, 241 Ky. 144, 43 S.W.2d 507 (1931). But, even if we were to find Greyhound negligent for having transported him to a place other than his original destination or discharged him in an unsafe place, nevertheless the action taken by the appellee from that point on would preclude his recovery. The disinterested eyewitnesses say that the appellee stood safely at the side of the road while the bus proceeded out of sight; that he, apparently without regard for his own safety, walked in front of a northbound automobile which almost struck him, and all the way across the center line into the far lane where he was struck by the southbound Kentucky Utilities truck. It is not contended that he would have been unsafe had he remained on the shoulder of the road where he stood for at least half a minute before walking into the traffic. Greyhound did nothing to persuade or entice him to walk into the traffic at a time when it was unsafe so to do. He walked out of a place of safety into a place of danger. It was not incumbent upon Greyhound to see that he crossed the road with safety. Trout’s Adm’r v. Ohio Valley Electric Railway Company, supra. Greyhound is not responsible for the intervening or superseding acts of the appellee or of the Kentucky Utilities Company.

The cross-appeal filed by the appel-lee seeks reversal on the ground the trial court erroneously struck from Instruction No. 1 the words “not negligently transport him from the route over which he had purchased transportation.” The answer is that the jury found Greyhound negligent, so, had the desired language been included in the instruction, Greyhound could not have been found any more negligent. In other words, other negligence would have been merely cumulative. Accordingly, the appellee was not prejudiced by the failure to include the requested language. Foley’s Adm’r v. Witt, 294 Ky. 498, 172 S.W.2d 81 (1943). As a matter of fact, since Greyhound was entitled to a directed verdict, Grimes was not entitled to any instruction at all.

The judgment is reversed on the appeal, with directions that judgment notwithstanding the verdict be entered in favor of the appellant Southeastern Greyhound Lines, Division of the Greyhound Corporation, and affirmed on the cross-appeal.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Flora BAKER, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen.,
    Frankfort, James H. Lucas, Bowling Green, for appellant.
    Charles H. Reynolds, Bowling Green, for appellee.
   CLAY, Commissioner.

This is an appeal from a judgment affirming an award of the Board of Claims in a proceeding under KRS 44.070 to 44.170. We do not reach the merits of the case.

The Commonwealth interposed the defense that this claim was barred because not presented to the Board within one year from the time it accrued. KRS 44.110(1). The accident happened on December 12, 1959; the claim was filed December 12, 1960.

The filing of the claim within the one year period is a condition precedent to recovery. Commonwealth Dept. of Highways v. Chinn, Ky., 350 S.W.2d 622. The computation of time is governed by KRS 446.030, not CR 6.01. Randall v. L. L. Morris Transport Co., Ky., 380 S.W.2d 221. As held in that case, since the day the cause of action accrues must be counted, proceedings commenced on the same date of the following year are not “within one year from the time the cause of action accrues”.

As appellee’s claim was filed too late, it should have been dismissed.

Appellee maintains that appellant failed to take the appeal from the award in the proper circuit court under KRS 44.140(1). Since appellee did not cross-appeal, this question is not properly before us. In any event, as this was a matter of venue, the objection was waived by failure to timely raise it in the circuit court.

The judgment is reversed with directions to remand the case to the Board of Claims with directions to dismiss ap-pellee’s claim.


author: MONTGOMERY, Judge.

text:
    Mabel G. WARD, Executrix of the Estate of Lida P. Hamm, et al., Appellants, v. Hiram NORTON et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    Weldon Shouse, Shouse, Barker & Cop-lin, Lexington, for appellants.
    Bradley & Blanton, Paris, for Hiram and Nancye Norton.

      , Charles C.ox, . Carlisle, ' for Rachel C. Norton and Carlisle Cemetery Co.
   MONTGOMERY, Judge.

Hiram Norton and his wife by this action contested the will of Lida P. Hamm on the grounds of undue influence and lack of mental capacity. From a judgment based on a verdict declaring the writing not to be the'will of. the testatrix, appellants have appealed.

Appellees have moved to dismiss the appeal because of the failure of the appellants,to have the court state in the judgment: the actual value in controversy. KRS 21.070. The alternative is to determine whether the judgment, when construed in connection with the pleadings,- fixes the yalue of (he amount or thing in controversy. Rutherford v. Modern Bakery, Ky., 310 S.W.2d 274.

Appellees filed a pleading in the circuit court designated “Appeal from Probate.” The county court had admitted the writing to probate as the will of the testatrix and had permitted appellant Mabel G. Ward to qualify as executrix. Attached to the circuit court pleading as “Exhibit B” was a certified copy of the county court order probating the will, qualifying the executrix, and fixing her bond at $10,000. This order indicates .that the estate involved had a value in.excess of $2,500.

Under CR 10.03 a copy of a written instrument which is an exhibit to a pleading is a part of the pleading for all purposes. Foshee v. Daoust Const. Co., CA 7, 185 F.2d 23. The certified copy of the county court order filed with the pleading is considered as a written instrument within the meaning of the rule and a part of the pleading. The exhibit as a part of the pleading when construed with the judgment is considered as sufficiently determinative of the. value of the thing in controversy. The motion to dismiss the appeal is overruled.

The testatrix died February 16, 1960, at the age of 87 years. She left surviving as her heirs at law a nephew, Hiram Norton, an appellee; and R. L. Norton, Jr., now deceased, and Katherine Norton Nixon, grandnephew and grandniece, the surviving children of R. L. Norton, Sr., deceased. Mabel G. Ward, formerly the wife of R. L. Norton, Sr., was a beneficiary under the will and the designated executrix.

The. writing in controversy was dated May 19, 1959. After providing for the payment of debts and funeral expenses, $1,000 was bequeathed to the Carlisle Cemetery for perpetual care of “my graves.” Item II thereof provided:

“All my property, both real and personal, with the exception of my diamond ring, I leave in four (4) shares; one (1) share to Hiram Norton; one (1) share to R. L. Norton; one (1) share to Kathryn Norton Nison (sic); and one (1) share and my diamond ■ ring to Mabel G. Ward.”

For inheritance tax purposes the estate was valued at approximately $27,000.

On the trial many witnesses were introduced by each side to sustain its position on the issues of undue influence and mental capacity. At the conclusion of the testimony in behalf of the contestants, appel-lees, appellants moved “to dismiss so much of the appeal as pertains to undue influence.”

At the conclusion of all of the testimony, the motion was renewed, and the appellants also asked the coúrt not to instruct the jury on undue influence for lack of proof. Both motions were overruled. The jury was instructed on both issues. No question was raised concerning the sufficiency of the proof introduced by appellees on the issue of lack of mental capacity. The jury found the writing not to be the last will of Lida P. Hamm, without stating any finding on the two issues involved.

Appellants argue that the court erred in giving an instruction on undue influence, in refusing an instruction offered by appellants, and in refusing to grant a new trial sought on the ground that the verdict was the result of passion and prejudice.

On the issue of mental capacity, ten witnesses testified favorably concerning the mental capacity of the testatrix. These included Mabel G. Ward, her husband, the two witnesses to the will, a mortician, a tenant, and three doctors. In substance, their testimony, based for the most part on long acquaintance, was that the testatrix’s mind was normal or sound, that she knew the character of her estate and its value, her relations, and the natural obj ects of her bounty.

The testimony introduced by appellees to show lack of mental capacity on the part of the testatrix was based on the following: She continually thought someone was peeking in her window; she thought someone was changing her medicine; she repeated stories; she had a bad memory; she imagined that her nurses talked about her; she imagined that someone was trying to poison her; she imagined that someone was flashing a light in her window; she was not consistent; and she inquired about the health of persons long since deceased.

It is. questionable whether the evidence to show lack of mental capacity would be sufficient to sustain the verdict. Mere weakness of mental power, old age, failure of memory, momentary forgetfulness, or lack of strict coherence in conversation does not render one incapable of executing a valid will. Kentucky Trust Company v. Gore, 302 Ky. 1, 192 S.W.2d 749; Tye v. Tye, 312 Ky. 812, 229 S.W.2d 973; Warren v. Sanders, Ky., 287 S.W.2d 146. The right of rational people, including the aged and infirm, to make a will is jealously guarded. Warnick v. Childers, Ky., 282 S.W.2d 608. See also Bickel v. Louisville Trust Company, 303 Ky. 356, 197 S.W.2d 444; Teegarden v. Webster, 304 Ky. 18, 199 S.W.2d 728; Burgess v. Belford, 306 Ky. 711, 209 S.W.2d 90; Waggener v. General Association of Baptists, Ky., 306 S.W.2d 271. The failure of ap-' pellants to question the sufficiency of the evidence on the issue of mental capacity is, in effect, a concession that the evidence was sufficient to take the case to the jury on this issue, thus presenting only the question of the sufficiency of the evidence on undue influence as raised by the two motions.

However, when a will contest is based on both undue influence and lack of mental capacity, evidence that tends to show both need not be as convincing as would be essential to prove one or the other alone. Hines v. Price, 310 Ky. 758, 221 S.W.2d 673; Roland v. Eibeck, Ky., 385 S.W.2d 37 (decided December 11, 1964). The evidence of mental infirmity is relevant and material on the issue of undue influence.

The evidence on the issue of undue influence also was conflicting. Jimmy Henry, a long time businesswoman and acquaintance of the testatrix, testified that Mrs. Hamm “was easily influenced” and at times “could be very easily” influenced since the death of her son, which occurred in February 1959. She also said that she had heard the testatrix say that she did not intend for Mabel G. Ward to have the diamond ring. A minister gave similar testimony concerning the ring. There was contrary evidence that Mrs. Hamm, by an earlier writing, had indicated a desire for Mrs. Ward to have the ring.

Ethel Shea, a nurse at the hospital, said the testatrix was at times easily influenced and lacked sufficient mental capacity to make a will. The county attorney, the co-administrator of the hospital, a banker, a doctor, and others gave testimony indicating that the testatrix was susceptible to undue influence.

The circumstances surrounding the execution of the will may have been considered as significant by the jury. Mabel G. Ward had been a long time friend of the' testa-1 trix: - Mrs. Ward had formerly been mar-' ried to Mrs. Hamm’s nephew. Their two children would have received one-half of the remaining estate by intestacy or by the will, except for the diamond ring bequeathed to their mother.

According to Mrs. Ward, her relationship with Mrs. Hamm was very close. She had visited Mrs. Hamm weekly during the five years next before the testatrix’s death. She had made the funeral arrangements at the death of Mrs. Hamm’s son. She had assisted Mrs. Hamm in various matters and it was Mrs. Ward’s attorney in Lexington, a stranger to Mrs. Hamm, who had prepared a will. According to appellants, that writing was objected to by Mrs. Hamm because her first name was misspelled and because it did not provide for Mrs. Ward to have the ring. Mrs. Ward’s husband rewrote the will to make the corrections. The Wards took Mrs. Hamm in their car to the grave of her son in the Carlisle Cemetery where the will was executed. Mrs. Ward apparently retained possession of the will.

It is unnecessary to relate the contrary evidence offered in behalf of appellants since the motions made by them raised the sufficiency of appellees’ proof. The testimony concerning old age and mental infirmity, coupled with the relationship between Mrs. Ward and Mrs. Hamm, and the circumstances of the preparation and execution of the will, together with proof that Mrs. Hamm was easily influenced, constitute sufficient evidence to justify overruling appellants’ motions, giving an instruction on undue influence, and sustaining a verdict. Bennett v. Bennett's Ex’r, 244 Ky. 394, 51 S.W.2d 241; Moran’s Ex’r v. Moran, 248 Ky. 554, 59 S.W.2d 7; Hines v. Price, 310 Ky. 758, 221 S.W.2d 673; McKinney v. Montgomery, Ky., 248 S.W.2d 719; Hollon’s Ex’r v. Graham, Ky., 280 S.W.2d 544. Wood’s Ex’r v. Devers, 14 Ky.Law Rep. 81, 19 S.W. 1, is of special interest.

Appellants tendered an instruction concerning mental capacity, which the court refused. The instruction given on mental capacity conforms to the approved instructions on this issue. Stanley’s Instructions to Juries, Volume 2, Second Edition, Section 749, page 566, and cited cases. No merit is found in this contention.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    FORT KNOX NATIONAL BANK, Appellant, v. Edith M. GUSTAFSON et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Robert E. Hatton, L. Lyne Smith, Jr., Louisville, for appellant.
    Edwin O. Davis, Louisville, for appel-lees.
   DAVIS, Commissioner.

Appellee Edith M. Gustafson recovered judgment against appellant Fort Knox National Bank (hereinafter referred to as bank), pursuant to a jury’s verdict awarding her compensatory damages of $20,500 and punitive damages of $15,000. The judgment was predicated upon appellee’s claim that appellant was guilty of the tort of “abuse of process.” The “process” involved was a claim and delivery action which the bank filed for the purpose of obtaining possession of a mobile diner on which it had a security interest, created by security agreement executed to it by Arthur J. Gustafson and Edith M. Gustafson. (We shall hereafter refer to the Gustaf-sons by their first names.)

The basic questions to be adjudged are: (1) did the bank have legal cause to accelerate the maturity date of the note due it from Arthur and Edith; (2) if so, was the claim and delivery proceeding so improperly prosecuted as to give rise to the damages allowed by the jury and the judgment? There are subordinate questions to be discussed in the course of the opinion. Determination of the dispute will necessitate consideration of pertinent portions of the Uniform Commercial Code (hereafter designated as UCC), which is embraced in KRS Chapter 355.

The factual background from which this lawsuit developed is as follows: Arthur and Edith executed their joint note to the bank on October 12, 1960, in the sum of $7,380, by the terms of which they agreed to repay the bank in monthly payments of $205 each. Simultaneously with the loan, and as a part of the transaction, Arthur and Edith assigned to the bank a certain lease in which E. H. Harris was lessor and the Gustafsons were lessees. The lease provided rental payments of $100 per month for a lot upon which the Gustafsons located the mobile diner; a restaurant was operated in the diner by the Gustafsons.

The note contained an acceleration clause, authorizing the holder to precipitate the maturity date in the event the makers defaulted in any monthly payment. The acceleration clause also provided that the holder of the note could declare it due before maturity if the holder felt insecure. This type of acceleration is permitted by the UCC:

“A term providing that one party or his successor in interest may accelerate payment or performance or require collateral or additional collateral ‘at . will’ or ‘when he deems himself insecure’ or in words of similar import shall be construed to mean that he shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.” KRS 355.1-208.

At the outset, Arthur and Edith operated the restaurant together. Arthur was engaged in several other enterprises, but none of them prospered. In fact, it was shown that after the loan was made checks aggregating more than $20,000 were presented to the bank against one of Arthur’s accounts, but were returned because of insufficient funds. The bank account for the restaurant business had been overdrawn during thirteen of the twenty-five months next after the loan date.

At the time the loan was made, Arthur was a member of the U. S. Army, with seventeen years of service and a stated regular income from the government. After the loan was made, Arthur resigned from the army — as a hardship case — -in an effort to rehabilitate his deteriorating financial enterprises.

In October, 1961, Edith went to Texas on account of the critical illness of her father. Arthur’s financial position in the restaurant business so worsened that he abandoned the restaurant and betook himself to New York. This occurred in June, 1962.

Edith then returned from Texas and learned that Arthur had failed to pay the rent for the lot whereon the diner was situated, so that an obligation of $800 for eight months of unpaid rent had accrued. Edith discussed the dismal financial condition with an officer of the bank. The bank’s officer testified that he assured Edith that the bank would “go along” with her efforts to rehabilitate the business, but only upon the condition that she could furnish the' bank a list of all the creditors, along with their assurance that they too would “go along.” The bank’s officer said that an oral “indulgence” had been made to Arthur, ■ by the terms of which the bank permitted' the monthly payments to be one day less than two months in arrear without asserting - default. The officer told Edith the bank would grant her that indulgence, but only if she could obtain the consent of all creditors to refrain from closing in.

. Sometime in July or August, 1962, Edith discussed possible bankruptcy proceedings, looking toward obtaining the debtor relief provided by a composition with creditors. This discussion was had with attorney Morris Britt — the same attorney who subsequently represented the bank in filing the claim and delivery action.

By avowal, it was shown that sometime in September, 1962, an incident occurred on the lot leased from Harris. The episode related to an alleged disorder on the lot which drew the attention of local police. Harris said he was called by telephone about 4:00 a. m. incident to the alleged disorder. According to Harris, the reports of disorders, plus the rental default, prompted him to insist that Edith vacate the lot by October 1, 1962.

The hazard insurance policy covering the diner and contents was permitted- to lapse ■for nonpayment of premium. According to evidence for the bank, Edith assured the bank’s officer that she would procure insurance, but she failed to do it — -and finally stated that she had no funds for the premium. The bank advanced $242.49 for insurance,- as permitted by the terms of the •security agreement. (Later this insurance was cancelled so that the actual premium .liability was only $16.25.)

On September 5, 1962.Edith obtained a “payoff” statement from the bank; this statement -recited that the -amount required to discharge the loan was $2,936.93, and that, “This payoff is good through October 12, 1962.” Edith explained to the bank’s of.ficer that she contemplated refinancing her .indebtedness. This statement did not extend maturity date.

On or about September 18, 1962, the bank caused its attorney, Morris Britt, to investigate the records of Meade County to determine what claims, if any, appeared of record against the Gustafsons. About the same time the bank had learned from Harris, the landlord, that Harris desired that the diner be removed from his lot. Britt reported a chattel mortgage of $596.80 to People’s Industrial Plan, which appeared to create a second lien on the diner, plus a “blanket” lien of $38.59 relating to certain unemployment insurance liabilities. Also, Britt advised the bank that he had learned of a judgment against Arthur and Edith in the sum of $1,704.42; the judgment had been rendered September 8, 1961; execution had been issued upon the judgment, but not levied.

On September 25, 1962, the bank paid Harris $800 to cover the past due rent, and took from him an assignment of his interest in the lease. On the same day the bank filed the claim and delivery action from which the present appeal stems. It is shown that the bank had not advised Edith of its intent to file the claim and delivery, although the day before the bank had made arrangements with a garageman from Elizabeth-town to remove the diner.

For Edith, it was shown that she vigorously protested against the repossession, and that she assured the bank’s officers she hád made arrangements to fully pay the loan. She was corroborated in this by testimony from a Mr. Tandenhaus, executive officer of a lending agency in Louisville. The latter testified that he spoke over the telephone with officers of the bank during the progress of the discussions attendant upon the repossession, and assured them that “you don’t have a-thing to worry about, — Fort Knox Bank is going to be paid off, we have okayed the loan.” The bank’s officer denied that Tandenhaus had made such unequivocal assurances of paying the loan. Evidence was heard to the effect that one bank: official said he did not “give a damn” what had to be done toward effécting the physical removal of the diner as opposed to the claim that Edith declared that she would “own the Ft. Knox Bank” as the result of the repossession.

The trial court concluded that the appel-. lant had imperfectly obtained possession of the diner because of what the trial court construed as failure to comply with the bond requirement for claim and delivery. See KRS 425.135.

Pursuant to this holding', the trial court gave a directed verdict for Edith against the hank for compensatory damages, both as to the diner as a physical item and as to the Kozy Kottage Restaurant, as a going concern and business. Further, the lower court gave the jury an instruction authorizing punitive damages against the bank if the jury believed that the bank’s officers “in the obtention of the Order of Claim and Delivery and the performance of acts under its authority” abused its use as defined in another instruction predicated on the definition of “abuse of process.” The latter instruction required the jury to believe that the bank used the claim and delivery process in a willful and malicious manner, recklessly disregarding the rights of the Gustaf-sons. We have concluded that the trial court erred in deciding that the claim and delivery was improperly obtained, and that further error was committed in submitting the issues of damages, compensatory and punitive, in the manner done.

The first question to be resolved is whether the loan was in default. Default could occur under the terms of the security agreement if the Gustafsons were delinquent in prescribed payments. Additional bases for “default” rest in the bank’s feeling “insecure” — and in the failure of the Gustaf-sons to “comply with any condition” of the mortgage.

It is conceded that from the inception date of the loan to the time of the repossession, the actual terms of the note provided for 23 monthly payments of $205 each, and that only 22 such payments had been made. It is Edith’s contention that this default had been waived by the “indulgence” agreement, permitting the payments to be one day short of two months behind. The bank counters this with the idea that the “indulgence” was contingent upon Edith’s obtaining the consent that all creditors “go along” — and that such agreement had not been obtained.

Additionally, Edith points out that the legal obligation to the bank was not in default, since the original transaction is so tainted with usury that the 22 payments made actually overpaid the legal sum due. We shall discuss this contention later in the opinion.

It has been mentioned that the note contained the acceleration clause upon the bank’s feeling insecure. The Uniform Commercial Code deals with this basis for acceleration in KRS 355.1-208, as herein-before quoted.

It will be observed that the statute places the burden of establishing the lack of good faith upon the party against whom the acceleration power has been exercised. “Good faith” is a golden thread woven into the entire fabric of the Uniform Commercial Code. See KRS 355.1-203. “Good faith,” as defined in the Uniform Commercial Code, “means honesty in fact in the conduct or transaction concerned.” KRS 355.1-201(19).

By the terms of KRS 355.1-201(8) the “burden of establishing” any fact is said to mean “the burden of persuading the triers of fact that the existence of the fact is more probable than its non-existence.” We construe the latter provision as requiring the submission to the jury of the issue of good faith unless the evidence relating to it is no more than a scintilla, or lacks probative value having fitness to induce conviction in the minds of reasonable men. James v. England, Ky., 349 S.W.2d 359. It is our view that the evidence on that score is so conclusive as to warrant a directed verdict for the bank on this issue. It must be remembered that here we are dealing with the “good faith” belief of the bank — that is, its state of mind.

This view makes it unnecessary to determine whether the maturity of the loan was accelerable because of payment default, or because of admitted default in rent payments.

Since the acceleration clause was properly invoked, the bank had a right to obtain possession of the collateral by the terms of the security agreement. This right of possession is specifically assured by KRS 355.9-503, which provides that the secured party may proceed to obtain such possession without judicial process, if this can be accomplished without breach of peace—or by judicial action. Here it is agreed that repossession could not be had peaceably. Thus, we are left to consider whether the judicial action was so defective as to expose appellant bank to the damage claims here asserted.

The claim and delivery procedure formerly contained in Civil Code Sections 180 through 193 is now embodied in KRS 425.120 through 425.180. A sheriff is absolved from the duty to enforce the order until a bond is executed as set out in KRS 425.135. Although two other types of bonds are mentioned (KRS 425.140 and 425.155) they have no pertinence in the case at bar.

The bank did execute a bond with corporate surety. One copy of the bond was filed with the circuit court clerk, one was delivered to the sheriff, and one was given to the individual who took the diner from the Harris lot. However, the bond did not contain a covenant that the bank would “duly prosecute the action”; neither did it specifically provide that the bank would perform the judgment of the court “by returning the property, if a return thereof shall be adjudged.” There was no provision in the bond guaranteeing that the bank would pay the Gustafsons “not exceeding double the value of the property and the costs of the action.” However, the bond did provide that its makers would “pay to any claimant thereof the damages he may sustain in consequence of the seizure or sale—.”

Upon the authority of General Motors Acceptance Corp. v. Curry, Ky., 338 S.W.2d 897, we hold that any technical flaw (if indeed there was one sufficient to invalidate the process) in the claim and delivery action did not afford a cause of action to appellee for the taking of the diner. We think Stoll Oil Refining Co. v. Pierce, Ky., 337 S.W.2d 263, is compatible with the decision in the Curry case, supra, and with our present holding. Although it is true that we approved an award for nominal damages in Stoll Oil Refining Co. v. Pierce, supra, we conclude that KRS 355.9-507(1) expresses the statutory policy, and view of the Uniform Commercial Code that the debtor is confined to recovery of “any loss caused by a failure to comply.” In this sense, we construe “loss” to relate to actual compensatory damages—not nominal damages. We think this same concept is implicit in KRS 355.1-106.

As we have concluded that the bank acted in “good faith,” it follows that no issue as to punitive damages was shown. Punitive damages do not flow from “good faith” conduct. Cf. Home Finance Co. v. Ratliff, Ky., 374 S.W.2d 494.

It was incumbent on the bank to comply with the requirements of KIRS 355.9-504(3), which requires that repossessed collateral be sold or disposed of by the secured party in a commercially reasonable manner. The record before us is voluminous, but it does not contain an adequate account of the disposition of the diner by the bank. The issue as to whether the sale was commercially reasonable was not developed in evidence, nor was it submitted to the jury. Upon another trial, details as to the sale and whether it was commercially reasonable will be developed in evidence, and any appropriate issues reflected in the evidence will be submitted to the jury.

In this connection, it must be noted that KRS 355.9-507(1, 2) relate to the measure of damages applicable here. The debtor is entitled to recoup any “loss” caused by failure of the secured party to comply with the Uniform Commercial Code. However, the mere fact that a better price could have been obtained by sale at a different time, or different place or mj.nner is not of itself sufficient to establish that the sale was not commercially reasonable.

Appellee is not entitled to recover any damage for asserted loss as to the business. We have said that the bank was entitled to the possession of the diner under the terms of the security agreement. Manifestly, taking the diner into possession presupposes terminating the restaurant business conducted in it by the Gustafsons. The consequent disruption of the restaurant business incident to the- legal repossession of the diner was a result which the Gustaf-sons impliedly consented to in the security agreement.

u The view we take of the case makes unnecessary any discussion of whether Arthur’s assignment to Edith (after the repossession) came too late to afford Edith :a right to maintain the counterclaim. We hold that she is entitled to maintain the counterclaim for any loss properly attributable to failure, if any, of the bank to conduct a commercially reasonable sale.

The parties addressed evidence and argument in the lower court pertaining to the claim that the note to the bank contained usury. However, there was no specific pleading that the note be purged of usury. Doubtless this came about because the bank never sought any money judgment on the note. Since the lower court has not had the opportunity to. pass on the suggested usury, we do not reach the question.

Likewise, our disposition of the case makes it unnecessary to rule on the alleged errors in admission of evidence submitted by the bank, as none of the items óf evidence which the bank claims should have been admitted will be pertinent to any issue upon a new trial.

The judgment is reversed, with directions to grant a new trial, which will be limited to purgation of usury, if any, and whether the sale of the collateral by the bank was 'commercially reasonable, and, if not, what damages, if any, resulted from an improper sale.


text:
    Geneva ROSE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Thomas D. Shumate, Shumate, Shumate ’ & Flaherty, Richmond, for appellant.
    Robert F. Matthews, Atty. Gen., Frank D. Berry, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Geneva Rose was convicted of aiding and abetting her son and co-defendant, Lawrence Rose, in the slaying of John Rose, husband of Geneva and father of Lawrence. Geneva and Lawrence each received sentences imposing imprisonment for ten years. KRS 435.020. The present appeal is prosecuted by Geneva; Lawrence Rose has not appealed.

Several grounds for reversal are presented, but our view of the case requires consideration of only one: Did the trial court err in failing to direct a verdict of acquittal? We hold that it did.

On April 3, 1964, Lawrence Rose shot and killed his father, John Rose. The homicide was committed just outside Geneva’s bedroom in the Rose residence. At the time of the shooting, which occurred about 9:30 p. m., Geneva was in bed with the two youngest of the five children of whom she and John were the parents. The two children in bed with their mother, Geneva, were four and five years of age, both girls. Lawrence was fifteen at the time of the incident.

Two weeks prior to the shooting John Rose had returned, from his place of employment in Dayton, Ohio, to spend the week end at home'. When John arrived at -home he was very drunk and enraged; he “kicked the storm door out and knocked the lock off the door,” according to Geneva’s testimony. He then demanded Geneva’s car keys, which she handed to him. Thereupon, John drove Geneva’s car “up in the road and took his knife and sliced the seats up and poured a gallon of gas in them and struck a match to it and he went in the house and throwed twelve pop bottles in the television and broke up everything in the kitchen.” The car was destroyed. On the same occasion, John jerked the telephone out, according to Geneva. It was during this rampage that John told Geneva that if Lawrence (the son) should walk through the yard, “I will blow his damned head off.” Lawrence was visiting at Walton when all this occurred. On that same night, John refused to permit an ambulance operator to remove one of the children to the hospital for needed medical attention.

\

Geneva said that she told Lawrence of John’s threat against him, but only in response to an inquiry Lawrence made of her. The prosecution offered evidence by one witness who asserted that Geneva had told the witness, about 6:00 p. m. on the day of the killing, that if John came back on the place, she would kill him, and that she did not want him “around no more.” Geneva denied this threat; there was evidence attacking the veracity of the witness who told of the threat.

For the prosecution it was shown that on the night of the tragedy, John had brought home a new television and a supply of groceries. Some evidence for the prosecution suggests that Geneva had been indiscreet in her associations with A. J. Pennington, who lived next door in another residence also owned by John and Geneva Rose. In fact, the indictment included Pennington as an accused principal in the present homicide, but the trial court directed a verdict of acquittal as to him. The prosecution’s theory is that Geneva and Pennington desired to be rid of John, and that they had deliberately planted a seed of vengeance in Lawrence’s heart by Geneva’s communication to him of John’s purported threat. The difficulty is that there is not any substantial evidence to support the theory.

Lawrence testified that he saw his father come into the home on the night of the shooting; that his father appeared to him to be intoxicated. He said that he heard his father berating his mother, and that he was afraid for the safety of the family. It was this, he said, which prompted his going to the bedroom armed with the single shot Stevens shotgun. Lawrence said that he leaned the gun against the door and asked his father whether he (the father) was “going to shoot my brains out.” Thereupon, John mumbled something and “made a dive for me and the gun,” Lawrence said. John and Lawrence then scuffled for possession of the gun, in the course of which scuffle, they went into the “front room” and then “half way back into the room” (presumably the bedroom). During all of this encounter, Geneva was in bed with the two small ' girls. The alleged paramour, Pennington, was not present in the house.

Lawrence and Geneva specifically denied that Geneva had any part in the encounter and the consequent shooting. Apart from the circumstances just related there is no evidence implicating Geneva in the parricide.

We adhere to the rule that one’s mere presence at the scene of a crime is not evidence that such one committed it or aided in its commission. Ray v. Commonwealth, Ky., 284 S.W.2d 76; Moore v. Commonwealth, Ky., 282 S.W.2d 613; Fairchild v. Commonwealth, 312 Ky. 741, 229 S.W.2d 754; 6 Ky.Digest 1, Criminal Law,

It is likewise true that the evidence of the threat supposedly made by Geneva, while admissible, is not substantive evidence that she committed the crime, nor that she aided in it. Holman v. Commonwealth, 291 Ky. 622, 165 S.W.2d 167; Evans v. Commonwealth, 221 Ky. 648, 299 S.W. 553. The evidence of a previous threat is admissible for the purpose of establishing malice, or intent to kill, but it cannot support a conviction of itself alone. Cf. Keaton v. Commonwealth, 223 Ky. 645, 4 S.W.2d 675.

A conviction may be had upon circumstantial evidence, but the circumstances •shown must be so unequivocal and incriminating in character as to exclude every reasonable hypothesis of the innocence of the accused. Brown v. Commonwealth, Ky., 340 S.W.2d 471; Baird v. Commonwealth, 241 Ky. 795, 45 S.W.2d 466. The evidence upon the trial here was not of the quality to meet the foregoing test, and does not support a conviction. If, upon a new trial, the evidence is substantially the same, the court will direct a verdict of acquittal.

The other errors asserted by appellant likely will not recur on another trial, and decision as to them is reserved.

The judgment is reversed with directions to grant the appellant a new trial and for proceedings consistent with the opinion.


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    Doyle COUCH, Appellant, v. Marie HOLLAND, Infant, through and by her father and next friend, Bennie Holland, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Robert L. Milby, Hamm, Taylor & Milby, London, Neville Smith, Manchester, for appellant.
    Lester H. Burns, Jr., John M. Lyttle, Manchester, for appellee.
   CLAY, Commissioner.

Appellee, a 14 year old female pedestrian, was struck and injured by an automobile driven by appellant on Highway 421 in Clay County, Kentucky. A jury awarded her $6,000.

Before the trial appellant propounded Interrogatory No. (5) to appellee as follows:

“State the specific acts of negligence which the plaintiff will rely upon in the cause of action for damages herein.”
The appellee answered:
“The specific acts of negligence upon which plaintiff will rely on in her cause of action for damages are: The defendant failed to keep his automobile under reasonable control at all times herein complained of.”

At the trial appellee tried to introduce evidence that appellant was speeding at the time of the accident. Appellant objected on the ground that appellee, having stated in her answer to Interrogatory No. (5) that she would rely on certain specific acts of negligence of appellant — the failure of appellant to keep his vehicle under reasonable control at all times — should not be allowed to predicate her cause of action upon “other” acts of negligence (speeding) not stated in the answer to the interrogatory.

We do not need to decide the abstract question of whether appellee could have predicated her cause of action on specific acts of negligence “other than” those stated in her answer to Interrogatory No. (5), because she has not sought to do so. In order for appellee to prove appellant failed to keep his vehicle under reasonable control,, she could show conditions or factors affecting such control, as traveling at excessive speed, driving with one hand, or failing to keep a proper lookout. See 7 Am.Jur.2d, Automobiles and Traffic, section 354 (page 901); 28 A.L.R. 953. Thus, when appellee offered evidence that appellant was speeding, she was not relying on “new acts” of negligence not stated in her answer to Interrogatory No. (5). Rather, she was offering evidence in support of and within the scope of her contention that appellant failed to keep his automobile under reasonable control.

Appellant next contends that under either of two theories of this case, appellee was guilty of contributory negligence as a matter of law. Appellee, a normal 14 year old girl at the time of the accident, testified that she crossed from the south to the north side of Highway 421 to get the mail. From the mailbox she had a clear view west, the direction from which appellant approached, for approximately 600 feet. She testified:

“Q. 10. After you went over to get the mail did you stand over there for awhile or did you turn around and come back?
“A. I stood there long enough to look and see and I didn’t see nothing coming.
“Q. 13. And you looked both ways ?
“A. Yes.
“Q. 14. As you looked back toward Manchester from where you were, you could see a long ways, is that right ?
“A. Yes.
“Q. 15. After you looked you started to cross the road, is that right?
“A. Yes.
“Q. 16. You didn’t stop out in the road after you started across the road?
“A. No.
“Q. 17. You didn’t look any more after you started across the road, did you?
“A. No.
“Q. 18. You were just looking straight ahead as you went across the road, were you not?
“A. Yes.”

Appellant’s version of the accident is that appellee ran out from behind an approaching coal truck which he passed SO to 75 feet from the point of the accident. Ap-pellee testified she saw neither the coal truck nor appellant’s car. , Appellants contention is that whether the coal truck was present or not, appellee was negligent as a matter of law when she walked “blindly into the path of a vehicle which she could have seen if she had simply taken the expedient of looking.”

A 14 year old child is “presumptively capable of negligence.and responsible •for it, though the question.of whether he was in fact negligent is not. measured by the standard of the ordinary man, but by that of a person of the same age, experience and intelligence.” Blue Diamond Coal Co. v. Bush, Ky., 342 S.W.2d 694, 696. See also Baldwin v. Hosley, Ky., 328 S.W.2d 426. Whether the question of contributory negligence is for the jury or is a question of law was discussed in detail in Lewis’ Adm’r v. Bowling Green Gaslight Co., 135 Ky. 611, 117 S.W. 278, 279, 22 L.R.A.,N.S., 1169, when this Court said':

“If the act relied on is admitted and is clearly negligent, or is clearly not negligent, the court as a matter of law should by instructions to the jury dispose of the matter; but, although the proof is all one way as to the act, the act itself may be of such doubtful, character as to render it an issue of fact, as much so as if the act itself were not of a doubtful character, but the evidence tending to establish or to disprove it was.”

This passage was quoted with approval by this Court in Blue Diamond Coal Company v. Bush, Ky., 342 S.W.2d 694, a case in which a 14 year old boy was severely injured when, in romping and playing, he grabbed some loose wires hanging from a utility pole. In that case the Court held that whether he was contributorily negligent was for the jury on the theory that his act was of sufficiently doubtful character that it might have been the act of an ordinarily prudent person of the same age and intellect.

We think the case at hand is different because we agree with appellant-that under either view appellee’s act was clearly negligent. By appellee’s own testimony she ‘walked across a busy highway, not at an intersection, with- unobstructed Visión’ for approximately 600 feet in the direction from ■which appellant’s car came, without making any attempt to ascertain traffic conditions after she started her journey. If we assume that her version of the'accident-is' corréót— that she looked both ways before crossing the road, and that, she saw neither the coal 'truck nor appellant’s automobile-^-the iquestion is immediately posed: “Why did she not see ?” The physical facts establish .that appellant’s car must have been in plain view if she looked immediately before starting across, which would bring the situation squarely within the ruling of Tarter v. Wiggington’s Adm’x, 310 Ky. 393, 220 S.W.2d 829. In that case a pedestrian, who had unobstructed vision and who alleged that he looked both ways, stepped into a line of traffic at a point between intersections. We held that he was contributorily negligent as .a matter of law and, at page 830, said :

“No reasonable man could give any. • credence to plaintiff’s statement that , he did look in that direction. It would have been impossible to look and not-see the approaching automobile.” .

See also Jordon v. Clough, Ky., 313 S.W.2d 581.

If, on the other hand, appellant’s car had not rounded the curve and had not come into view when appellee looked, the question then becomes: Did appellee exercise reasonable care for her own safety when, after looking in both directions, she thereafter crosses a busy highway without ever looking in either direction again? We think not. The plaintiff’s duty to protect herself from harm did not cease as soon as she stepped onto the highway. On the contrary, she was under a continuing duty to keep watch for her own protection when she left a zone of safety and went out onto the open highway. Clark v. Smitson, Ky., 346 S.W.2d 780. Her initial lookout at the side of the highway would no more absolve her from her subsequent failure to keep a continuous watch to protect her safety than would an initial glance down the highway by appellant as he rounded the curve have relieved him from a total failure to look at the highway again.

If appellant’s version of the accident is assumed, still it would have been negligent for appellee to step out of the westbound lane from behind a large coal truck which had just passed, and into the eastbound lane without ever looking to see whether an automobile was coming. This version would place the case within the rationale of Jordon v. Clough, Ky., 313 S.W.2d 581, where we held that it was con-tributorily negligent as a matter of law for the plaintiff, crossing from the east to the west side of the road, to step out from behind a northbound truck into the path of a southbound car.

In addition to appellee’s common law duty to exercise ordinary care to protect herself, she was under a statutory duty of a pedestrian to surrender the right of way to a motor vehicle when the pedestrian is crossing the road at any point other than at a marked crosswalk or an intersection. KRS 189.570(4) (a). In Music v. Waddle, Ky., 380 S.W.2d 203, 207, 208, we said:

“Unless this provision is to be reduced to something less than a statutory mandate, the necessity of keeping a reasonable lookout for his own safety cannot end at the curb, but must continue until he clears the street, because for him the statute has declared the street a danger area as a matter of law.”

In Louisville & Nashville Railroad Company v. Dunn, Ky., 380 S.W.2d 241, 245, we said:

“ * * * every person has a continuing duty of caution for his own safety, and this duty is not discharged by a momentary caution that is prematurely abandoned.”

The traffic pattern on a heavily traveled highway is constantly changing, and both the pedestrian and the driver of a vehicle are under a continuing duty to exercise ordinary care for their own safety. In our opinion appellee, who walked blindly into the path of a moving vehicle which she could have seen if she had looked, failed to exercise that standard of ordinary care which could be expected of a normal child of her age, experience and intelligence. Therefore, we hold that she was contributorily negligent as a matter of law.

The final question is whether the doctrine of last clear chance or discovered peril is applicable. In the recent case of Severance v. Sohan, Ky., 347 S.W.2d 498, we said:

“Suffice it to say that in pedestrian cases the theory (last clear chance) does not come into play until the victim arrives in or so near to the path of the oncoming vehicle as to be in danger of being struck by it. Whatever the driver of the vehicle should have seen and could have done prior to that
moment is a matter of antecedent negligence, which is erased from consideration if the victim is found to have been contributorily negligent. * * * Under the authorities cited above there must be evidence authorizing the jury to find that the motorist’s last chance to avoid the accident after the victim was in a position of peril was in fact a clear chance, and not merely a speculative possibility.”

In these pedestrian cases we often have a situation where two parties are acting negligently in such a manner that their conduct is likely to produce an accident. The significant point in time is reached when the pedestrian arrives at or near a position of peril. Before the doctrine of last clear chance may be invoked, the plaintiff has the burden to establish by substantial evidence that at the time he reached his position of peril, the motorist was in fact far enough away to stop or swerve in time to prevent the accident. Stated another way, there must be proof to support a fair inference that at a particular point of time it was too late for the pedestrian to avoid the motorist but not too late for the motorist to avoid the pedestrian. In the present case such evidence is lacking.

In order to determine whether appellant could have prevented this accident we must know approximately how far he was from appellee when she started to cross the road or came into his view. If he was a very few feet away at that time, it would have been impossible for him to have avoided the accident. If he had been 400 feet away, then it is probable the accident could have been averted. In the instant case there was no evidence from which we could determine even the relative position of appellant’s car when appellee began her journey. It must be noted that appellee herself did not locate appellant’s car at any place at any time. Appellant’s testimony put him in a position where he was unable to avoid the accident.

The only additional evidence shedding any light on this question shows that appellant skidded 45 feet before the impact; that the car began skidding when it was in the eastbound lane and veered to the left toward the middle of the road, and that it struck appellee with the right headlight and came to stop only 15 feet beyond the point of impact, with one wheel slightly over the center line. These facts repel an inference that appellant failed to take steps to prevent the accident and therefore committed an independent act of negligence after appellee had negligently put herself in a position of peril.

In Clemons v. Harvey, Ky., 385 S.W.2d 66 (decided December 11, 1964), the driver of an automobile which struck a pedestrian crossing from his left to his right (as here) admittedly observed the pedestrian when he was 375 feet away. Such fact distinguishes that case from this one. The principles recognized in Riley v. Hornbuckle, Ky., 366 S.W.2d 304 (although the case had not gone to trial), are not inconsistent with those we have above stated.

It is our conclusion that appellee failed to prove any facts which would justify a fair inference that appellant had, or negligently failed to take advantage of, a last clear chance to avoid this accident after she had placed herself in a position of peril. Actually appellant had no more (if indeed as much) of a last chance than did appellee. See Severance v. Sohan, Ky., 347 S.W.2d 498. It was error to instruct on this issue.

Since appellee cannot predicate her recovery on the doctrine of last clear chance, and since her own negligence was at least a substantial contributing factor, a verdict should have been directed for appellant.

The judgment is reversed, with directions to enter judgment for appellant

      . Some question may be raised as to the propriety of this interrogatory. See United States v. Columbia Steel Company, D.C., 7 F.R.D. 183; General Motors Corp. v. California Research Corp., D.C., 9 F.R.D. 568; Kyker v. Malone Freight Lines, D.C., 17 F.R.D. 393. In any event, particularly in an automobile accident case where the duties of the driver are interrelated, the answer to such an inquiry under OR 33 should be realistically construed rather than treated as a fatal move in some sort of game.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Harry C. VANDERPOOL et al., Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Walter Mobley, Flemingsburg, for appellant.
    J. W. McKenzie, Gray,-Wood's & Cooper, Ashland, for appellee.:
   CLAY, Commissioner.

In this condemnation case a jury awarded the property owners $7,250 after both parties had. appealed from a county court judgment awarding $7,330. The Commonwealth complains of many errors on the trial.

Appellees owned a 112 acre farm with improvements. The Commonwealth ■ took approximately 30 acres for highway purposes. This resulted-in landlocking a remaining part -of the farm, estimated to be ■from 10 to-18 acres, tendering it practically valueless. • ■ • :' ''>•' • ■ :

The Commonwealth-coriteáds it was error.'to permit appellees’: withdSsfes to testify that the taking would isolate 18 acres; A witness, fop the Commonwealth had testified; this i severed .tract’ contained approximately-.lO- átres.r- There was a real controversy •wiithrrespect.to this matter. The county -courtrCDnimissioners had found 18 acres'would,-be ¡s¿’werecL':’/'There was testimony that -the-¡representatives: of the' Commonwealth had so advised the commissioners and-the property owners, and apparently the right of way map showed this amount of acreage would be cut off. We know of no reason why the jury was bound to accept the testimony of one of the Commonwealth’s witnesses when there was substantial evidence- supporting appellees’ position.

The Commonwealth contends the damages awarded were excessive. They complain of the testimony of the owners, who are husband and wife, with respect to the market value of the property. These witnessed were not qualified under our decision in Commonwealth, Dept. of Highways v. Fister, Ky., 373 S.W.2d 720, but thát decision; did .not affect trials held prior to the issuance of the mandate in that' easel

The Commonwealth’s witnesses estimated the damages at something over $3,000. Two qualified expert witnesses for the property owners estimated these damages at around $10,000. The jury fixed the amount at $7,250. This does not strike us as excessive.

It is true that the whole farm was assessed for tax purposes at $3,315. That this assessment is unreliable as a measure of market value is demonstrated by the evidence for the Commonwealth whose witnesses valued the farm at approximately $20,000. Since appellees lost almost half of their farm, damages of a little more than one-third of its original value as fixed by the Commonwealth’s witnesses does not appear to us so far out of line as to be excessive.

The Commonwealth raises certain procedural points and questions some evidence but we find no substantial errors in the trial which could be held prejudicial.

The judgment is affirmed.