author: HOGAN, Presiding Judge.

text:
    Austin R. KNAUSS, Plaintiff-Respondent, v. Nellie Mae KNAUSS, Defendant-Appellant.
    No. 8695.
    Springfield Court of Appeals. Missouri.
    Feb. 28, 1968.

      Claude T. Wood, Richland, J. W. Gros-senheider, Lebanon, for defendant-appellant.
    John F. Low, Low & Honssinger, Lebanon, Theo. G. Scott, Buffalo, for plaintiff-respondent.
   HOGAN, Presiding Judge.

This is an appeal by the defendant, Nellie Mae Knauss, from an order allowing alimony pendente lite, including suit money and attorneys’ fees. She contends that the allowances made are so grossly inadequate as to constitute an abuse of the trial court’s discretion.

The parties are both osteopathic physicians. They had been married almost 26 years at the time this matter was heard on March 25, 1967. They are the parents of five children, David, 23, who was in military service at trial time; Daniel, 21, a college senior; Mary Kay, also a college student; Karen, 17, a high school student; and Michael, 13, a seventh grader. The sense of the record is that about the middle of February 1965 the plaintiff and defendant separated by dividing the family home into a “side” for the plaintiff and a “side” for the defendant. Except for David, the children continue to live in the family home; they are spoken of as being in the defendant’s custody.

On December 1, 1965, plaintiff filed a petition for divorce. After some preliminary skirmishing, defendant filed an answer and counterclaim on October 11, 1966. The counterclaim seeks partition of certain real property owned by the parties as tenants by the entirety “if a divorce be awarded to either of the parties in this action.” The pleadings were thereafter amended at various times, and on March 25, 1967, a year and four months after the original filing, the case finally came on for a hearing on the matter of temporary allowances.

The evidence indicates that Dr. A. R. Knauss, the plaintiff, is a successful physician who maintains offices at Lebanon and Springfield, Missouri. His gross income, as reflected by his federal tax returns, has risen from about $8,900 in 1964 to an amount in excess of $37,000 in 1966. His gross receipts from both offices were running in excess of $3,000 per month for the first two months of 1967, and at trial time he had two bank accounts totaling $10,-852.82. There was no evidence indicating what his fixed liabilities were, if any, but plaintiff testified that in 1965 and 1966 he repaid a loan of $8,000; that his current tax liability “would be close to” $8,000, and that he owed his mother $6,400 which she had advanced for Daniel’s education.

At the time the parties separated, so plaintiff testified, he started paying defendant $360 per month. In October 1966, he reduced this amount to $260 per month. Plaintiff maintained the family home, engaged one domestic servant on behalf of the defendant, and so far as he knows defendant’s food, her personal clothing and her private telephone are her only expenses not paid by him. It was plaintiff’s testimony that he was providing regularly for his children. He was sending Daniel $50 per month, though Daniel’s tuition and board at school were being provided by plaintiff’s mother. Plaintiff had given Mary Kay $600 for tuition, board and incidental expenses when she started school, had bought her a $175 wardrobe, and was sending her a regular allowance of $50 per month. Karen, the high school senior, was receiving $30 per month and was living at home. Michael, their seventh grader, was being given money as he asked for it, and the plaintiff estimated that Michael had received $130 in cash in the year 1967 alone. Plaintiff indicated that he was making all these expenditures in behalf of his family voluntarily, and that he intended to continue doing so.

The defendant testified that prior to the time she and plaintiff separated — until he “started hooking the door,” as she put it— she assisted her husband with his practice. Defendant “did anything there was to do,” because she was an active physician. She testified at trial time that she was in very poor health, however, and that she needed medical attention. On being asked how much the proposed attention would cost, Mrs. Knauss was unable to say.

The defendant was of the opinion that Mary Kay should have an allowance of $100 per month. Being asked why, defendant responded: “Well, she has a lot of expenses, just — you have to buy food, extra food if you are in college and she has no clothing budget. And she has to buy some clothing and she is taking courses that take extra books all of the time. And, well, a girl just uses some things — personal things, that $100.00 without a clothing budget, is not sufficient even.” Defendant estimated that Karen, the high school senior, should have $75 per month, on the following basis: "She has a lot of school expenses. She is very popular and active and, well, there is expenses of the cafeteria, and, well there is just an unlimited number of donations in a school and everything, she has her own clothing to buy and she is active in Church, which takes money. She goes on School trips, she is active in so many different things, there is no end to the expense in high school.” Mrs. Knauss also believed that she should have a discretionary allowance for her seventh grader in the amount of $50 for the following reason: “Well, Michael is very active in school and sports, and his father encourages him to participate in expensive sports, such as bowling, car racing and he goes to all of the games. Well, he is in football, basketball, track and all of the things that take money, besides being active in two different churches and having quite a bit of expense that goes with that, and he has to have clothing in order to participate in those things.” Defendant’s further estimate of her needs was that she should have $50 per week minimum for groceries, $3 per week as a “telephone” allowance, $25 per week to replenish her wardrobe, $10 per week for dry cleaning and laundry, and $10 per week as a transportation allowance because she could not drive a car. In addition, defendant said she needed to have the house papered, needed some new shades and curtains, some new furniture, a vacuum cleaner, a new refrigerator, a new sewing machine, a new iron, a deep freezer, and perhaps a new washer and dryer.

Testimony was also given to establish the proper amount of attorneys’ fees. Mr. Wood, one of the defendant’s attorneys, testified that he and Mr. Grossenheider both represented the defendant. Mr. Wood said he had had several conferences with the defendant in his office, that he had had several conferences with the defendant and co-counsel in defendant’s home, that he had prepared motions and filed them, and that he had prepared responsive pleadings and filed them. Mr. Wood had entered one appearance on March 18, 1965, and was appearing at trial time. Defendant had told Mr. Wood that she was unable to pay anything. Counsel had discussed the “probable taking” of depositions in Springfield, Mountain Grove, and Lebanon, Missouri. Mr. Wood was of the opinion that an allowance of $250 would be required to take the necessary depositions, and that a reasonable fee for the work done so far would be $500 for each attorney.

Upon this evidence, the trial court entered an order requiring plaintiff to pay defendant the sum of $400 per month as alimony pendente lite, and further requiring him to pay each attorney $400 as temporary attorneys’ fees, and $125 as suit money. The record indicates this order has been complied with. As stated in the brief, the appellant’s argument is that the allowances are inadequate because, under the uncontroverted evidence, plaintiff had the means and ability to pay considerably more, and the defendant and her children needed a substantially greater amount.

The general rules which govern in a case of this kind are so well known that they need not be repeated at length. Whether or not allowances pendente lite are to be made in a divorce case, and if so the amount thereof, are matters addressed to the sound discretion of the trial court, and unless it clearly appears that such discretion has been abused the appellate courts do not interfere. State ex rel. Gercke v. Seddon, 93 Mo. 520, 523, 6 S.W. 342, 343; Kaye v. Kaye, Mo.App., 327 S.W.2d 496, 500 [3]; Rush v. Rush, Mo.App., 284 S.W. 2d 53, 54.

There is so little hard, factual evidence in this record that the case is difficult to review. The appellant argues, among other things, that her allowance for alimony pendente lite is insufficient and should be increased because the plaintiff could afford to pay more, the children need more money than they are receiving, and because her living expenses are not being adequately cared for. The difficulty with these arguments is that we cannot tell from the record filed here what the plaintiff’s true financial condition is, nor do we have anything beyond the defendant’s vague estimates to show what her needs or those of her children are in the circumstances. Doubtless a court may require a father to furnish more than the bare necessities of life when it makes an allowance pendente lite in a divorce case, and it has often been said that the court should make an award in keeping with the parties’ usual standard of living prior to their separation. McCullough v. McCullough, Mo.App., 402 S.W.2d 623, 628-629 [2] [3]; Stauffer v. Stauffer, Mo.App., 313 S.W.2d 597, 601 [5]; Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, 197-198 [8, 9], Nevertheless, before an award of alimony pendente lite can be criticized as being incommensurate to the parties’ standard of living or station in life, there must be some positive showing what their station and standard of living was, and some evidence of the actual cost of necessities and privileges at that standard or station. McCullough v. McCullough, supra, 402 S.W.2d at 628-629. What we have in this record is evidence that in the calendar year 1966 Dr. A. R. Knauss had a rather large income, by community standards; little or no consideration was given to his day-to-day expense or fixed obligations, and we have so incomplete a picture of his total financial condition that we cannot say, as appellant urges, that he could readily afford to pay more. See McCarthy v. McCarthy, Mo.App., 329 S. W.2d 236, 241 [7]. We do have the defendant’s testimony that she has no income or separate means, but we have only her speculation as to the children’s individual needs and the family’s cost of living. The evidence is so vague that we cannot say the award is out of keeping with the plaintiff’s ability to pay, that it is insufficient to meet the defendant’s needs and those of her children, or that it is incommensurate with the parties’ standard of living.

On the other hand, we are impressed with the evidence that plaintiff has continued to provide the defendant with a home since their separation, and with the evidence that he has continued to provide quite adequately, if not extravagantly, for his children. We do' not say or intimate that a plaintiff husband’s voluntary provision of support necessarily bars an allowance of alimony pendente lite. Doubtless the wife is entitled to the security of an order of the court fixing the husband’s legal obligation, even though support is being provided voluntarily. Pedersen v. Pedersen, 71 App.D.C. 26, 107 F.2d 227, 235-236 [10-12]. Nevertheless, the allowance of alimony pendente lite rests primarily and fundamentally upon the necessities of the particular case, Stauffer v. Stauffer, supra, 313 S.W.2d at 601-602 [7-9]; Stark v. Stark, 115 Mo.App. 436, 440-442, 91 S.W. 413, 414-415, and if it appears that a husband is voluntarily providing a home and support for his family, that fact is entitled to consideration in determining the amount to be allowed. Bingham v. Bingham, 325 Mo, 596, 603-604, 29 S.W.2d 99, 101 [2-5]; Herbig v. Herbig, Mo.App., 245 S.W.2d 455, 457 [5]; McCloskey v. McCloskey, 68 Mo.App. 199, 204-205; 27A C.J.S. Divorce § 209c, pp. 917-918. In this instance, at the time of trial, the parties’ eldest child was in military service; two other children were away from home at school, and the expense of their education was being borne or provided for by the plaintiff. The defendant and the two younger children were being provided with a home, and the only expense being borne exclusively by the defendant was that necessary for food, her own clothing, and her private telephone. We cannot say that $400 per month is inadequate for those limited purposes.

It must also be remembered that these allowances pendente lite are by nature and definition temporary, subject to' being increased as the situation may require. McCarthy v. McCarthy, supra, 329 S.W.2d at 241 [10]; Stark v. Stark, supra, 115 Mo.App. at 444, 91 S.W. at 415-416. If, during the course of this litigation, the defendant’s shelter should become entirely inadequate, or if the children’s needs should increase, or if defendant’s health becomes such that medical attention is required, and some reasonable showing of the amount necessary can be made, then these additional needs may be dealt with as they arise, upon proper motion and notice. In any event, upon the record presented, we see no basis for the appellant’s contention that the allowance made for her support and that of the children is inadequate, much less any reason to hold that there has been an abuse of judicial discretion.

The appellant also complains that the allowance made to her for attorneys’ fees and suit money was inadequate. We decline, at this point, to enter into a discussion of the value of attorneys’ services generally. Again, this allowance is temporary and provisional, pending disposition of the cause on its merits. Gross v. Gross, Mo.App., 319 S.W.2d 880, 883-884 [4, 5]. The testimony offered by counsel concerning the reasonable value of the services to be performed by him and his co-counsel was advisory and helpful, but it was not binding on the trial court in fixing the amount to be allowed. Bucknam v. Bucknam, 347 Mo. 1039, 1045-1046, 151 S.W.2d 1097, 1101 [8]. As with the other allowances comprehended within the term alimony pendente lite, the amount to be allowed for attorneys’ fees and suit money is a matter which must be left largely to the discretion of the trial court, and in this instance we see no reason whatever to interfere.

For the reasons indicated, the judgment is affirmed.

STONE and TITUS, JJ., concur.


source: Caselaw Access Project

author: MILLIKEN, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Jennie PITTMAN et al., Appellees.
    Court of Appeals of Kentucky.
    March 22, 1968.
    Robert Matthews, Atty. Gen., H. C. Smith, Sp. Asst. Atty. Gen., Frankfort, John A. Diskin, Newport, John J. Blackburn, Covington, for appellant.
    Joseph J. Leary, Frankfort, for appel-lees.
   MILLIKEN, Judge.

This is an appeal by the Department of Highways from a judgment in a highway condemnation proceeding for the procurement of right-of-way for Interstate 71 in Gallatin County.

The property involved is approximately a 396 acre tract, belonging primarily to Jennie Pittman and Anna Clay Steele, which is situated just off State Highway 16 in Gallatin County about thirty miles from Cincinnati. The acreage taken amounted to 19.82 acres but the taking severed 24.45 acres from the main tract on the south side of the property and left 351.73 acres landlocked on the northern portion. Before the taking the tract had been used for general agricultural purposes — raising crops, such as corn and tobacco, and grazing cattle. It contained about 162 acres of tillable soil and a considerable stand of locust trees suitable for conversion into fence posts.

A state maintained blacktop road ran through the southern portion of the property and the Pittman farm fronted this road for about 1500 feet. The 24.45 acre tract which was severed by the taking retained its frontage on the blacktop road, but the 351.73 acres north of the condemned strip were rendered inaccessible by any public road or passway. The landlocked tract contained a house, barn, tobacco barn and other outbuildings. The severed tract on the south contained a small frame house, small pond, barn and an old two story brick residence which was of no value. All buildings were in fair to poor condition. The right-of-way taking of 19.82 acres eliminated most of the better crop and pasture land, one large pond, a small pond, and a spring. No improvements were lost. The commissioners appointed by the county court assessed the damage at $36,000.00 and the jury verdict on May 11, 1966, was $40,-460.00.

The Commonwealth is claiming that the verdict was excessive, that the qualifications of the witnesses for the landowners were deficient and their valuations baseless and unsubstantiated by fact. The spread in the valuation testimony is as follows:

“FOR APPELLANT”
T. E. Page Before Value After Value Difference
R. F. Link 30 $23,900.00 $11,300.00 $12,600.00
R. M. Daniels 55 24,000.00 11,400.00 12,600.00
“FOR APPELLEES”
G. E. Holly 124-25 $99,000.00 $38,841.00 $61,159.00
Kline Shipp 71-72 69,300.00 21,800.00 47,500.00
S. Maxwell 109-10 69,000.00 to 71,000.00 26,271.60 45,489.00
B. Hoblitzell 92 100,000.00 40,000.00 60,000.00

We will not discuss whether we think the verdict is excessive because the testimony offered at a retrial may be somewhat different and the qualification of the landowners’ witness, George Holly, may be better established. Suffice it to say that the verdict is generous.

The final two points argued by the state concern the landowners’ witness George Holly’s contact with a member of the jury and the failure of the trial court to instruct on the landowners’ alleged right to obtain a private access to the landlocked land.

In the affidavit of a Highway Department employee it is alleged that on May 11, 1966, at about 8:30 a. m., in the first floor corridor of the Gallatin County Courthouse, the landowners’ witness, George Holly, made in substance the following remarks to Warren Rider, a juror:

“ * * * that this rain was needed. The plant beds were so near the new highway that the dust and so forth from the road was causing them to dry up.”

In addition an affidavit of counsel for the Commonwealth alleged that on May 11, 1966, at 8:40 a. m., George Holly also remarked to the juror Warren Rider:

“I have made arrangements and have got a tractor and a wagon to have the jury taken to visit the farm. I wanted to drive you all around myself but they wouldn’t let me.”

It is argued by the Commonwealth that these remarks by Holly were intended to have an ingratiating effect on the juror, Rider, so that he would be prejudicially influenced in favor of the landowners. The Commonwealth contends that such misconduct is grounds for a new trial and that the circuit court committed reversible error in overruling the Commonwealth’s motion on this issue.

The general rule on this topic is stated in 39 Am.Jur. 109 New Trial, Section 95 :

“An impartial jury, selected and kept free from all outside or improper influences has always been regarded as necessary to a fair and impartial trial, and anything not legitimately arising out of the trial of the case which tends to destroy the impartiality of the juror should be discountenanced.”

Where there is no evidence showing the substance of the communication between a witness and a juror to be prejudicial we will not find misconduct. Pillsbury-Ballard, Div. of Pillsbury Mills, Inc. v. Scott, Ky., 283 S.W.2d 387 (1955). In the cited case a juryman ate lunch with a witness and the father of the plaintiff, and we concluded the trial court’s refusal to find a sinister significance to this meeting in a public restaurant in the absence of even the suggestion of wrongdoing was correct and the motion to discharge the jury was properly overruled. In Potts v. Krey, Ky., 362 S.W.2d 726 (1962), where, during a recess, as one of the jurors was leaving the courtroom, the plaintiff’s mother called the juror over to the plaintiff’s counsel table and asked him to tell her daughter, who was out in a hall with the injured plaintiff, to bring the plaintiff into the courtroom, and the juror did so, we held such casual contact did not constitute prejudicial misconduct. In Merrell v. Ball, Ky., 379 S.W.2d 465 (1964), where a juror, during a trial, talked with a witness for one of the parties and the substance of their conversation was that the witness had been a student of the juror’s husband at some time in the past, we found no prejudicial error. The rule is quite general that mere communication between witnesses and jurors in a civil action is not ground for the setting aside of the verdict or the granting of a new trial in the absence of a showing that the jurors were influenced by such communication. 52 A.L.R.2d 182, Section 2.

An example of what constitutes prejudicial communication between witness and juror was presented in Raybourn v. Howard, Ky., 307 S.W.2d 206 (1957). There, a juror buttonholed a material witness in private and asked him if one of the drivers in the motor vehicle collision had been drinking. We said:

“It was highly improper, to say the least, for the juror to solicit privately information from this witness about whether Russell Raybourn was drinking. The trial judge should have examined the juror as well as the witness, preferably before counsel, in ascertaining whether the misconduct established was prejudicial.”
“Whether a mistrial should be declared upon the showing of misconduct of one of the jurors is generally regarded as a matter within the discretion of the trial court. 53 Am.Jur. Trial, Section 907. However, private communications between jurors and witnesses should not be permitted because the law seeks to insure that jurors be kept free of influences tending to prejudice them for or against either party.”

Recent opinions handed down by this court take a firm line in situations involving irregular conduct which affects the jury as a whole, no showing of prejudicial influence being required. In Commonwealth, Department of Highways v. Garland, Ky., 394 S.W.2d 450 (1965), Garland was one of three jury commissioners and the entire array of jurors at the term of court had been selected by the jury commission of which he was a member. An action, to which he was a party came before the court that term and was decided by jurors that Garland had helped select, and although Garland did not make any sinister or improper use of his position as jury commissioner, we held that:

“The fundamental right to trial before an impartial jury is so basic and crucial in our system of jurisprudence as to demand that no vestige of suspicion be permitted to impugn the impartial method of selection of jurors.”

And in Juett v. Calhoun, Ky., 405 S.W.2d 946 (1966), we held the trial court erred in permitting one lawyer and one litigant from each side to go along with the jury which was transported by means of three or four automobiles to the scene of residences allegedly damaged as a result of blasting by defendants in connection with construction, and we said:

“Once again we are confronted with the ‘appearance of evil’ principle. Great care must be taken to assure the litigants — and the public generally — that jury trials are conducted fairly and free from opportunities for contamination. We do not suggest that anything improper was said or done by any lawyer or litigant — but the truth is — if there had been, it would be substantially impossible to prove.”

These latter cases are based on the appearance of evil principle and have some application here although no evil may have been intended. To communicate at all with a juror in respect to a case being tried creates questions automatically. The conversation between the witness George Holly and the juror, Warren Rider, had a tendency to ingratiate the witness and the landowners’ case with the juror and is of especial significance because this is a case where a unanimous jury verdict is required by the Constitution, Section 242. Because of that requirement we will not speculate on the effect of the conversation with the one juror, if any it had, but feel constrained to consider it prejudicial as a matter of law. In our 1942 case of Commonwealth v. Carson, 289 Ky. 799, 160 S.W.2d 166, we did not permit a unanimous verdict by a jury of eleven to stand where the unanimous verdict of a jury of twelve was required by the Constitution.

The remaining contention of the Commonwealth concerns the possible right of the landowners to condemn a passway across private property under KRS 381.580 in order to remove the timber from the 351.73 landlocked acres, and a desired instruction to that effect. The statute is confined to the condemnation of passways for the removal of timber and minerals and does not include the removal of agricultural products such as tobacco which was raised on this tract. The acquisition through condemnation of such a limited passway would not solve the problem confronting the owners of the landlocked tract. It was developed in the testimony that none of the Department’s plans and specifications made any provision for future access to the landlocked tract and no witness could estimate the closest point to which access could be obtained to a public highway by negotiation with adjoining owners. Counsel for the Department covered the situation in his final argument, commenting that the landlocked area could be sold to adjoining owners or the landowners could negotiate with the adjoining owners for the purchase of an easement which, counsel admitted, “Of course * * * is going to take some money but it can be done and it has been done time and time again in other situations where a parcel is landlocked.”

We think that the jury was made cognizant of the effect of the condemnation on the farm — of the difficulty of utilizing the landlocked tract, of the possible means available of gaining access to it and that the acquisition of such a passway would cost money. We think that it would have been improper to instruct the jury to take into consideration the limited usage passway obtainable by condemning a pass-way under KRS 381.580, or to give any special instruction pertaining to the acquisition of a passway.

The judgment is reversed.

All concur.


author: MONTGOMERY, Judge.

text:
    P. L. WALKER, Appellant, v. LYON COUNTY FISCAL COURT et al., Appellees.
    Court of Appeals of Kentucky.
    March 1, 1968.
    Adrian H. Terrell, Terrell, Schultzman & Hardy, Paducah, for appellant.
    J. Gordon Lisanby, Princeton, for appel-lees.
   MONTGOMERY, Judge.

P. L. Walker appeals from a judgment affirming the decision of the Lyon County Fiscal Court in refusing to close an old road known as the Spring Creek Road. The portion of the road sought to be closed extends a distance of 2,020 feet through Walker’s farm on Kentucky Highway 295 to the property line between Walker’s farm and a field owned by Claude Peek, also an appellee.

Appellant petitioned the Lyon County Fiscal Court to discontinue the road under authority of KRS 178.070, enacted in 1964. Formerly this section provided that the county court could make such an order.

Under the statute, two viewers and the county road engineer were appointed “to report * * * what inconvenience, if any, would result from officially closing the * * * road or roadbed.” The viewers reported “that such inconvenience would result to the farm of Claude Peek.” The engineer reported “ * * * the road should be closed or made passable.”

In an earlier proceeding, the county judge, while sitting as the county court, entered an order closing the road. This was set aside as an erroneous proceeding which should have been initiated in the fiscal court.

Without detailing the testimony heard in circuit court, it is readily apparent from the whole record that the matter resolves itself into a dispute between appellant, over whose land the “road or roadbed” is located, and appellee Claude Peek, backed by Shelley Peek, a member of the fiscal court. It is also apparent that it is a matter of personal convenience: whether the Peeks are entitled to keep the way open for an occasional short cut trip or whether appellant may have the road closed as a benefit to his farming operation. Nothing in the record shows any present convenience to the public, or public necessity for the road.

Many years ago the road was used by the public generally but has fallen into disuse and has grown up. Photographs introduced as exhibits show, graphically, that the general public had not used the road for a long time and no one has used it very much in recent years. There are reasonable means of ingress and egress to the farms owned by the Peeks and for travel between their farms. An aerial photograph indicates that the road goes through wooded growth on appellant’s farm but ends, or is not discernible, when it reaches the cultivated or cleared areas of Claude Peek’s farm.

The trial court found that this was an old road; that due to passage of time and change in traffic conditions the road had fallen “into disuse by the general public”; that Claude Peek, the protestant, had another road which he could use; and that “as far as the general public is concerned the road ought to be closed.” The court concluded, however, that as a matter of law the court was bound by the decision of the fiscal court.

The standard by which a road may be established or discontinued is better stated in the words of Robertson, J., in Cole v. Shannon, 24 Ky. (1 J.J.Marsh.) 218, as follows:

“The public convenience must be consulted. And the common will, represented by the county court, must prevail over individual advantages and wishes. The advantages which any one derives from a highway, are adventitious. The duration of their enjoyment depends on the continuance or discontinuance of the road, and this depends not on the will or interest of an individual, but on the common good, and public sentiment.”

To the same effect is Hawkins v. Robinson, 28 Ky. (5 J.J.Marsh.) 8, 9. See also Perkins v. Madison, 144 Ky. 718, 139 S.W. 967; Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117; Ex parte Commonwealth, Ky., 291 S.W.2d 814; Department of Highways v. Jackson, Ky., 302 S.W.2d 373.

The report of the viewers and the findings of the trial court show that there is no public need for the continuance of Spring Creek Road. Under the cases cited, in the absence of a public need, a showing of individual inconvenience is insufficient to keep the road open. It should have been ordered closed.

Appellees question the right of appellant to appeal from the order of the fiscal court. It is insisted that KRS 178.100 cannot be relied on for such appeal. Apparently when KRS 178.070 was amended by changing the authority to change a road from the county court to the fiscal court, no change was made in KRS 178.-100, which authorizes an appeal from the decision of the county court in such cases. However, KRS 23.030 provides that an appeal may be taken to the circuit court from “all orders * * * of the fiscal court * * * in civil cases where the amount in controversy, * * * is over twenty-five dollars.”

The right to appeal from an order of a fiscal court and the scope of review are discussed in Shreve v. Taylor County Public Library Board, Ky., 419 S.W.2d 779. It is there pointed out that orders of a fiscal court may be judicial or administrative in nature but that in either event when the action taken is arbitrary it may be reviewed in circuit court. Under the facts of the present case, based on the viewers’ report and the trial court’s findings, the refusal to close the road was arbitrary, in that no public need was shown, and on review the decision of the fiscal court should have been reversed. Thurman v. Meridian Mutual Insurance Company, Ky., 345 S.W. 2d 635.

Judgment reversed for proceedings m conformity herewith.

All concur.


author: STEINFELD, Judge.

text:
    Edna EWING et al., Appellants, v. Earnest PRINCE et al., Appellees.
    Court of Appeals of Kentucky.
    March 22, 1968.
    G. Wayne Bridges, Bridges & Nelson, Covington, for appellants.
    Rodney S. Bryson, Ware, Bryson, Nolan & West, John R. Blakely, Covington, for appellees.
   STEINFELD, Judge.

Jezebel was the daughter of Ethbaal, King of Tyre, and wife of Ahab, King of Israel. She introduced Baal worship, persecuted Elijah, instigated the murder of Na-both and made her name a term of reproach. 2 Kings, ix, 30. A present day Jezebel was a mare owned by appellees Earnest Prince and Leona Prince. Just as biblical Jezebel is defined as “an impudent, violent, unscrupulous, vicious woman” our equine Jezebel is charged with having the same characteristics.

Edna Ewing, wife of Carl Ewing, sued the Princes as the owners of Jezebel and Hammons, her rider, to recover damages because of injuries Edna suffered when she was kicked by the mare. In the same action Carl Ewing claimed loss of consortium. A motion by the defendants for a directed verdict was sustained, judgment was entered accordingly and the Ewings appeal. We affirm.

The action is predicated upon a claim that the owners and the rider “knew, or should have known through the exercise of ordinary care, that their horse had previously kicked persons and animals, and said fact was known by all of said defendants, or should have been known by said defendants * * *

On June 21, 1964, Edna and several others were on a pleasure horseback ride along a highway. The horse on which Edna was riding approached Jezebel from the rear. Jezebel kicked Edna on the leg injuring her severely.

A witness testified that early in the summer of 1964 a horse he was riding approached Jezebel from the rear, came in contact with her and swerved her around whereupon she kicked him and the horse he was riding. This same witness and another said that when Jezebel was in a parade about a week following the date on which Edna was hurt Jezebel reared up and she and her rider fell. However, they admitted that she was frightened by a flag-draped buggy which rolled back toward the mare. Also there was testimony that Jezebel had kicked at some other horses when in a pasture with them.

Mr. Prince was called by appellants as if under cross-examination and he stated that his family had owned Jezebel for five years, and that during that time the mare had been turned “in the yard with (their) children”. He said that Mrs. Prince and their nine year old daughter sometimes rode Jezebel. When asked whether he would say that “ * * * she was the most gentle horse (he) had” he answered, “No, I wouldn’t say that. She had plenty of life. A lively horse. Gentle. She could be handled by anybody.”

The parade incident did not show viciousness. Barnett v. LaMesa Post No. 282 etc., 15 Cal.2d 191, 99 P.2d 650 (1940). Could it be said that Flicka was a vicious animal because it fought to protect its master? No one would contend that the horse was vicious when it planted its two hind feet on the nose of the lion to teach it that the best laid-out scheme often has a kickback.

Autrey’s Champion and Rogers’ Trigger have become famous for their kicking, dancing and rearing. Such liveliness is not viciousness. Mares are not unknown for the problems they create. Teddy Roosevelt is quoted as having said “No cow-boy ever rides anything but horses, because mares give great trouble where all the animals have to be herded together”. Surely in this state, the home of the Thoroughbred, the breeding ground of horses famous for speed, spirit and show, and where the horse is king, the evidence in this case does not prove dangerous propensities or viciousness.

Unfortunately, Jezebel did not have the talking ability of “Mr. Ed”, therefore, the evidence could not show the reason for her actions. Possibly she was sensitive when horses approached her from the rear, and probably she was trying to avoid perpetuate ing the stigma originated by the biblical Jezebel.

To prevail it was incumbent upon the claimant “to present a prima facie case of dangerous and vicious propensities in the animal in question.” Kling v. United States Fire Ins. Company, La.App., 146 So. 2d 635, 1 A.L.R.3d 1011 (1962). Also see Barnett v. LaMesa Post No. 282 etc., 15 Cal.2d 191, 99 P.2d 650 (1940). And appellants had to show that the animal was inclined to commit an injury of the class complained of and that the person upon whom liability was proposed to be fixed had knowledge of the dangerous propensities of the animal. True v. Shelton, 314 Ky. 446, 235 S.W.2d 1009 (1951). Vicious or dangerous propensities toward other animals, without showing such tendencies toward humans, is not the test. Rickett v. Cox, 297 Ky. 30, 178 S.W.2d 830 (1944); Fowler v. Helck, 278 Ky. 361, 128 S.W.2d 564 (1939); 4 Am.Jur.2d 333, Animals, § 86.

The trial court properly held that the evidence did not meet the standard required.

The judgment is affirmed.

All concur.

      . My Friend Flicka by Mary O’Hara.

      . The Horse and the Lion from Aesop’s Fables.

      .The Century, xxxv. 666.


text:
    Bobby SCOTT, by and in the name of his mother and Next Friend, Audrey Scott et al., Appellants, v. Donald LAFFERTY, Appellee.
    Court of Appeals of Kentucky.
    March 22, 1968.
    Fred G. Francis, Howard, Francis & Howard, Paul E. Hayes, Prestonsburg, for appellants.
    W. W. Burchett, Joe Hobson, Prestons-burg, for appellee.
   STEINFELD, Judge.

On a warm clear day in November 1964 between 4:30 and 5:00 p. m., State Patrolman Lafferty had driven a police cruiser through the town of Martin in Floyd County, Kentucky, on his way from his place of duty to his residence. On Highway 80, the pavement of which is 20 feet wide, he crossed a bridge on the outskirts of Martin and at a speed of about 30 miles per hour entered an area where there were commercial structures on both sides of the road. The first building he passed on his right was Scott’s Market which was approximately 51 feet from the highway. The next store was a television repair shop which set back 55 feet. Automobiles and a truck were parked along the road in front of these stores. There was testimony that they were “only three or four feet off the road.” The bridge, these vehicles, various power poles and signs substantially obstructed his view of a dirt road, topped with gravel, which passed along the side of the television store and formed a “T” intersection with the highway just beyond that store, and about 130 feet from the end of the bridge.

Bobby Scott who was five years of age was riding a pony which was sometimes gentle but other times unruly. He was on the dirt road and was approaching the highway. Bobby was unable to control the pony and it ran between two cars which were parked in front of the stores. It came out onto the highway in front of the police cruiser which hit the pony and seriously injured the boy. The distance from the end of the bridge to the point of impact was about 110 feet. Suit was filed against the officer by the mother and next friend of the boy. The jury found for the officer. Judgment was entered dismissing the claim from which the boy, by and through his mother, appealed.

The officer testified that he saw no people around and that:

“When I first saw the pony it was immediately before the collision took place, it dashed right out from behind the car into the highway in front of me.”

When asked how far it was from him when he first saw it, and what happened, he said:

“Well, it seemed like to me it was ten feet, it could have been more because I was moving, traveling, and the pony was traveling too.”

A witness who was riding in an automobile following Lafferty said the pony could have been as much as twenty feet from the highway when it emerged from behind the parked cars. Other testimony of the officer was:

“Just as I seen him coming out from behind the vehicle that was parked beside of the road, I cut my wheels, my steering wheel to the left and hit my brakes. I did it, I guess in one movement just as fast as I could. I know I hit my brakes hard enough that I did kill the engine in my car.”
* * * * * *
“The pony had got out onto the pavement there, it just dashed out and the right front bumper of my car hit the pony’s left front leg a glancing blow as I would call it because I was trying to cut away from it.”

He said that he lacked missing the pony “about a foot or a foot and a half”. Skid marks made as Lafferty stopped the cruiser were approximately 30 feet in length.

Over objection Lafferty and another witness were permitted to testify that the mother of Bobby Scott said to the officer “I know you couldn’t help it”. Appellants contend that this was error. A sudden emergency and an unavoidable accident instruction were given. The Scotts argue that these should not have been given, but if they were authorized they were not in proper form.

At the conclusion of appellants’ evidence and again at the conclusion of all of the evidence counsel for Lafferty moved the court for a directed verdict. The motion was overruled but the jury found for ap-pellee. We are convinced that the court was in error in not sustaining the motion for a directed verdict, and that had a verdict been rendered in favor of the appellants we would be compelled to hold that there was insufficient evidence to support it.

Because the appellee was entitled to a directed verdict it is unnecessary for this court to consider the errors claimed by the appellants as there was no prejudice. CR 61.01; Dixon v. Mowbray & Robinson Lumber Co., 230 Ky. 303, 19 S.W.2d 973 (1929); Hamilton v. Taylor, Ky., 249 S.W.2d 730 (1952); Weaver v. Brooks, Ky., 350 S.W.2d 639 (1961).

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, OSBORNE and PALMORE, JJ., concur.

EDWARD P. HILL, J., is not sitting.


author: DAVID C. BRODIE, Special Commissioner.

text:
    Anthony GRUNDY et al., Appellants, v. MANCHESTER INSURANCE & INDEMNITY COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 8, 1968.

      Lawrence S. Grauman, Joe G. Leibson, Louisville, for appellants.
    James Levin, Ben Hanish, Hanish & Hanish, Louisville, for appellee.
    Joseph E. Stopher, A. J. Deindoerfer, Boehl, Stopher, Graves & Deindoerfer, Louisville, amici curiae.
   DAVID C. BRODIE, Special Commissioner.

Anthony Grundy, the plaintiff and appellant, recovered judgment against the insured, Carl E. Weaver, in the sum of $20,-000 for injuries sustained. The defendant-appellee, Manchester Insurance & Indemnity Company, was the insurer under Weaver’s policy with a $10,000 limit.

Grundy brought suit to recover the excess from Manchester alleging that Manchester was guilty of bad faith in negotiating with Grundy to settle his claim.

Grundy, by amendment, pleaded an assignment from Weaver to Weaver’s rights against Manchester. The trial judge decided that Grundy had no claim in his own right against Manchester and further decided that Grundy, by assignment, had no claim against Manchester. The trial court dismissed the complaint.

The trial court cites Turk v. Illinois Central Railway Company, D.C., 193 F. 252, to the effect that a cause of action for tort is not assignable. While this rule is sound Kentucky law, it is not deemed applicable to the case at bar.

The argument is made that assignability of causes of action in Kentucky depends upon whether or not said causes of action are survivable under the Kentucky statute. The common law as to survival of actions has been modified in Kentucky to an extent by the terms of KRS 411.140. The proper interpretation of that statute is decisive of the question as to whether or not this cause of action is assignable. It is observed that the statute itself excludes from its terms causes of action founded on contract. This statute was construed by this court in Gross’ Adm’r v. Ledford, 190 Ky. 526, 228 S.W. 24, 25, 14 A.L.R. 689, as follows:

“[N]or does it have any reference to actions for torts which are founded upon contracts and grow out of the contractual relations between the parties.”

It is our decision that the cause of action assigned in this case is founded upon the insurance contract and grew out of the contractual relationship between the insurance company and the insured.

The appellants’ action herein is based on a contractual obligation founded on the insurance contract. There is an implied covenant in the insurance policy issued by Manchester of good faith and fair dealing. This implied covenant was a contractual duty to exercise good faith to protect the insured from the risk of having a judgment rendered against him greatly in excess of the limits of the policy. Under the terms of the policy, the insurer alone had the right and power to settle. 3 Williston Contracts, § 670, 1926 (rev. ed. 1936).

1 Am.Jur.2d, Abatement, Survival and Revival, § 65, states in part:

“ § 65. —Tort actions found on contracts.
“At common law, a cause of action nominally in tort, but founded on a contract, survives. In other words, a cause of action founded on a contract will survive although the form of the action is in tort instead of in contract, for the test is not so much the form of the action as the nature of the cause.”

See also Jones v. Matson, 4 Wash.2d 659, 104 P.2d 591, 134 A.L.R. 708.

Although it is felt that Kentucky law specifically controls the answer to the question of assignability in this case, reference is made to an annotation on this subject in 12 A.L.R.3d at page 1158ff.

In State Farm Mutual Automobile Insurance Company v. Marcum, Ky., 420 S.W.2d 113, the question of assignability was alluded to but was considered as moot.

The U. S. District Court in Kentucky upheld the right of the plaintiff to recover against the insurer where the insurer has been guilty of bad faith. Lemons v. State Automobile Mutual Insurance Company, 171 F.Supp. 92.

The assignment to Grundy from Weaver transferred to Grundy such rights as Weaver had against Manchester. The judgment of the trial court dismissing plaintiff’s complaint is reversed and remanded with directions to hear evidence and try on the merits the question of possible liability of Manchester on its refusal to pay the policy limits.

All concur.


author: CLAY, Commissioner.

text:
    Archie BROWN et al., Appellants, v. Ernest E. TODD, Appellee.
    Court of Appeals of Kentucky.
    March 15, 1968.

      Reuben G. Hicks, Whitley City, Fritz Krueger, Somerset, for appellants.
    C. Homer Neikirk, Lawrence S. Hail, Somerset, for appellee.
   CLAY, Commissioner.

Plaintiffs appellants sought to recover personal injury and property damages which resulted when defendant appellee’s automobile ran into the rear of the car in which they were riding. The jury found for defendant. On appeal the only issue is whether the trial court properly instructed the jury.

The accident happened on a two-lane blacktop highway (U. S. Highway 27, north of Somerset) in broad daylight. The highway was straight and the road conditions were good. Plaintiffs were driving north in the proper lane at about 50 to 55 miles an hour. Defendant was in a following car about 100 to 150 feet behind, traveling at about the same speed.

According to the plaintiff driver, a “good-sized dog” came out of the ditchline in front of him on the right and up onto the shoulder of the road. There was testimony, “it looked like it was going to go across the road”. The plaintiff driver jammed on his brakes and defendant struck plaintiffs’ car forcibly from behind. According to defendant, no adequate signals of this sudden slowing or stopping were given (although the plaintiff driver testified to the contrary).

The court instructed on the general duties of defendant, about which no question is raised. The jury was also instructed that it was the duty of the plaintiff driver to give a signal of his intention to slow or stop his car by extending his arm downward. Plaintiffs question this instruction on the ground it omits the giving of a signal by a mechanical signaling device prescribed by KRS 189.380(4), but this objection cannot be considered because it was not properly preserved for review under CR 51.

The principal question is whether plaintiffs were entitled to a “sudden emergency” instruction. It is contended by defendant that this alleged error was not preserved for appellate review but we conclude to the contrary. The record shows that the following oral motion was made:

“Comes the Attorneys for the Plaintiffs and moves the Court to instruct the Jury that the driver of the Brown car (plaintiff) namely, Archie Brown had the right to apply his brakes suddenly if an emergency with reference to striking a dog suddenly presented itself without giving any signals of his intention to slow down or stop, said motion is overruled by the Court to which counsel for the Plaintiffs object and except.”

Under CR 51, in order to preserve for appellate review alleged errors in the instructions, a party is required to (1) offer “written requests”, or (2) make specific objections. As pointed out in Clay, Kentucky Practice, Vol. 7, CR SI, Comment 5 (page 92):

“The important considerations should be: (1) the protection of the trial court from inadvertent error; and (2) the protection of the parties’ rights to a fair trial when counsel in good faith attempts to question the substance of the instructions.”

We have held that if offered written instructions clearly present a party’s position, it is unnecessary to make specific objections to the instructions actually given in order to preserve the asserted error. Fields v. Rutledge, Ky., 284 S.W.2d 659, 58 A.L.R.2d 210; Nall v. Larkin, Ky., 421 S.W.2d 74. By the same token we believe a motion, such as made in this case, which fairly and adequately presents the party’s position with respect to a recognized legal theory, fulfills the function of a specific objection to given instructions which do not incorporate that theory. Certainly it would have been better practice for plaintiffs to have offered a written instruction or request on this issue (the wording of the motion does not embody all of the necessary elements), but we are of the opinion that the action taken fairly presented to the trial court the propriety of such an instruction, and we may consider it on review.

It may be observed that the question presented is somewhat unique in that the plaintiffs are demanding a “sudden emergency” instruction. Normally it is the defendant who invokes the doctrine to excuse his failure to comply literally with duties imposed by statute. See Nall v. Larkin, Ky., 421 S.W.2d 74. Basically, however, the instruction qualifies the duties imposed on any party charged with negligence.

In this case one of defendant’s defenses was that the plaintiff driver was contributorily negligent. If the latter had a right to defend the charge of contributory negligence on the ground of sudden emergency, he would be entitled to the instruction the same as if he had been a defendant charged with original negligence. See McDaniel v. Capitol Transport Co., La.App., 35 So.2d 38.

Our question then narrows to whether the jury should have been permitted to determine if plaintiff driver’s sudden slowing or stopping without appropriate or adequate signals, which might otherwise constitute negligence, constituted due care under the circumstances. In practically all of the Kentucky cases involving the “sudden emergency” question the intervening agency has been another vehicle on the highway. See Phipps v. Bisceglia, Ky., 383 S.W.2d 367; cases cited therein; and cases above cited. We see no logical reason, however, why the doctrine should be limited to vehicles (or objects) actually occupying the traveled portion of the highway. For example, a swooping airplane or a falling boulder could conceivably create an emergency for a motorist. So could a roving animal. See 29 A.L.R.2d 5, 60.

Apparently on the ground that the dog had not reached the traveled portion of the highway, defendant contends that as a matter of law no emergency existed, and the evidence merely shows the plaintiff driver “thought one did”. Whether the confrontation was sudden and unexpected and whether it was reasonably apparent to the driver that he would be involved in a perilous collision are factual issues to be resolved by a jury under the “sudden emergency” instruction. See Miles v. Southeastern Motor Truck Lines, 295 Ky. 156, 173 S.W.2d 990, and Phipps v. Bisceglia, Ky., 383 S.W.2d 367. This is not a matter of law. It was for the jury to determine whether there was any or such a sudden emergency as to justify the plaintiff driver’s precipitate stopping on the highway without giving adequate signals. If so, the jury could find his course of conduct constituted reasonable care under the circumstances. The situation presented by the proof was such as to entitle the plaintiffs to a proper instruction on sudden emergency. It should be substantially in the form prescribed in Stanley’s Instructions to Juries, 2d Ed., Vol. 1, section 139a (page 255).

The judgment is reversed, with directions to grant appellants a new trial consistent with this opinion.

WILLIAMS, C. J., and HILL, MIL-LIKEN, OSBORNE, PALMORE and STEINFELD, JJ., concur.


author: DAVIS, Commissioner.

text:
    DEPARTMENT OF FINANCE, Commonwealth of Kentucky et al., Appellants, v. Arley WRIGHT et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 9, 1968.

      B. L. Kessinger, Jr., Harbison, Kessinger, Lisle & Bush, Lexington, for appellant.
    Paul Ross, Lexington, Paul Rehm, Versailles, J. Keller Whitaker, Frankfort, Workmen’s Comp. Board, for appellee.
   DAVIS, Commissioner.

Arley Wright sustained an injury to his back on February 2, 1962, while engaged in his employment as a painter for the Department of Finance, Commonwealth of Kentucky. On July 2, 1962, the Workmen’s Compensation Board approved a voluntary agreement between Wright and his employer, providing payment of $36 per week for 37% weeks for total temporary disability. On January 31, 1963, Wright filed a petition to reopen and review the agreed award; on October 15, 1963, an amended and substituted agreed award was entered and approved by the Board, providing for compensation in the sum of $9.30 per week for 362⅝ weeks (400 weeks minus 37¾ weeks of total temporary disability) based on a finding of permanent, partial disability to the body as a whole of 35%, of which 5% was found to be attributable to a preexisting disease or condition.

With approval of the Board, the compensation due under the last agreed award was paid in a lump sum of $2,892.63 on a commuted basis. KRS 342.150. This lump sum payment was made by the appel-lee, Special Fund, inasmuch as Wright was then working for his employer in the employment in which he was injured. See former KRS 342.120(5) and Simmons Brothers Paving Company v. Presley, Ky., 419 S.W.2d 338.

Wright continued to experience pain and disabling symptoms which resulted in many consultations with Dr. W. K. Massie, an orthopedic surgeon. Surgery was performed by Dr. Massie looking toward a spinal fusion, but the procedure did not achieve the desired result, and by October 13, 1965, Wright was forced to discontinue any effort at working.

On March 29, 1966, Wright filed a motion before the Board requesting it to reopen and review the agreed award of October 15, 1963. In his motion he asserted “ * * * that there has been and exist herein a change of conditions of the petitioner, that said change of conditions were the result of the original accident and is the direct and proximate result of the injury sustained herein.” After a hearing, the Board entered a new award on September 19, 1966, which in part is as follows:

“It is ORDERED AND ADJUDGED BY THE FULL BOARD AS FOLLOWS :
(1) The plaintiff, Arley Wright, is awarded and he shall recover from the defendants, Department of Finance, Commonwealth of Kentucky and Aetna Casualty & Surety Company, the sum of $26.70 per week beginning March 29, 1966, for a period of 425 weeks from the date of the accident, February 2, 1962, with interest at 6% per annum on all past due and unpaid installments from March 29, 1966, until paid. The defendants shall take credit for all payments made thereon.”

In its opinion the Board recited:

“It is obvious from the evidence in this record that at the time the plaintiff signed the agreement for compensation on September 1, 1963, and the final settlement receipt on the same date, based on a lump sum payment which was approved by the Board on October 16, 1963, the plaintiff was totally disabled. It is thus clear that the parties executed such agreement on the grounds of mistake. Under such circumstances, the Board may reopen and review the award and grant such compensation commensurate with the plaintiff’s actual disability as established by the evidence herein.”

The employer appealed to the circuit court which affirmed the Board’s award in full. The present appeal is from the circuit court judgment and presents three claims of error: (1) The Board had no authority to reopen the case on the ground of “mistake” since the employee had moved to reopen for “change of condition” and failed to claim, plead, or offer proof of any change; (2) the Board erred in failing to apportion the award between the employer and the Special Fund; and (3) the award has the effect of permitting the recovery of sums in excess of the agreed award on a retroactive basis.

As respects the first point of error asserted, the appellant cites Felix Coal Company v. Jones, 254 Ky. 190, 71 S.W.2d 430, but as we read that opinion, it militates against the position urged by the appellant. In Felix Coal Company, the court pointed out that the strict rules of pleading are inapplicable in proceedings before the Workmen’s Compensation Board. In Messer v. Drees, Ky., 382 S.W.2d 209, it was noted that:

“When subsequent events indicate that an award was substantially induced by a misconception as to the cause, nature or extent of disability at the time of the hearing, justice requires further inquiry: Whether it be called a ‘mistake’ or a ‘change in condition’ is a matter of mere semantic taste. The important question is whether the man got the relief to which the law entitled him, based upon the truth as we are now able to ascertain it. Cf. Blue Diamond Coal Company v. Meade, Ky., 289 S.W.2d 503 (1956).”

We conclude that the Board properly reopened the case in light of the authorities cited, based upon the evidence furnished by Dr. Massie. In his original report Dr. Massie had evaluated Wright’s disability at 35% and had ascribed 5% to a pre-existing condition. In light of the subsequent developments, the same doctor gave it as his opinion that the disability had become total. We do not consider that Wright’s failure to denominate his basis for relief as “mistake” rather than “change of condition” is of significance. Indeed, we are unable to agree with the Board’s legal conclusion that there was no showing of change of condition.

The appellant employer asserts that the Board erred in failing to apportion the award between it and the Special Fund, in face of the uncontroverted evidence reflecting a 35% functional impairment, of which 30% was ascribed to the accidental injury and 5% to a pre-existing condition. In support of its position, the employer relies on Shuman Company v. May, Ky., 327 S.W.2d 14; Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905; Green Valley Coal Company v. Carpenter, Ky., 397 S.W. 2d 134; Young v. Eastern Coal Corporation, Ky., 408 S.W.2d 464; and Cabe v. Splash-Dam By-Products Coal Corporation, Ky., 416 S.W.2d 361. The Special Fund contents itself by asserting that the employer failed to invoke the procedures for apportionment prescribed by KRS 342.120. The Special Fund points out that the case was never practiced as a subsequent injury case and that the question of apportionment was never raised or presented before the Board. As already observed, the Special Fund was in the case solely by reason of former KRS 342.120(5), which had no bearing upon the matter of apportionment. In this state of the record we conclude that the appellant has not preserved for review its claim of error in the Board’s failure to apportion.

The final assignment of error relates to the claim that the award permits recovery of sums in excess of the agreed award on a retroactive basis. As noted herein the award provides for the payment of “ * * * the sum of $26.30 per week beginning March 29, 1966, for a period of 425 weeks from the date of the accident, February 2, 1962, with interest at 6% per annum on all past due and unpaid installments from March 29, 1966, until paid. The defendant shall take credit for all payments thereon.” In its brief the appellant states:

“If we read this order to mean that the payments begin March 29, 1966 for the period remaining between the date of the accident February 2, 1962, and 425 weeks, then the ruling is in accordance with the law. However, counsel for ap-pellee Wright has contended privately to counsel for appellants of $26.30 for 425 additional weeks with credit to the employer only for the payments (as distinguished from the period) previously made.”

Appellee Wright insists “ * * * that he is entitled to compensation for total and permanent disability from the date of the injury, less credit for payment heretofore made.” In support of that contention the appellee suggests that a “change of condition” is distinguishable from “mistake,” on the theory that in case of “change of condition” the initial award is correct, except that at some later time the claimant’s condition worsens or improves. But, it is reasoned, where “mistake” is found, the prior award is erroneous ab initio. The only authority cited for this proposition is Daugherty v. Watts, Ky., 419 S.W.2d 137. We do not read Daugherty as supporting the appellee’s contention.

As we read KRS Chapter 342 and the decisions construing it pertaining to the question at hand, we conclude that the contention of the appellant is correct. KRS 342.125(1), in the treatment of reopening awards, specifically provides in part: “Review under this section * * * shall not affect the previous order or award as to any sums already paid thereunder.” KRS 342.095(1), in dealing with compensation for total disability, provides in part: “If the period of total disability begins after a period of partial disability, the period of partial disability shall be deducted from the total period of four hundred twenty-five weeks during which compensation for total disability may be payable.” This court has encountered the problem under discussion in several instances as may be seen by examination of the following decisions: Workmen’s Compensation Board v. United States Coal and Coke Company, 196 Ky. 833, 245 S.W. 900; Williams v. Gordon, 313 Ky. 377, 231 S.W.2d 89; Schaab v. Irwin, 298 Ky. 626,183 S.W.2d 814; Anderson v. Whitaker, Ky., 247 S.W.2d 980; and Thompson v. Harlan Wallins Coal Corporation, Ky., 256 S.W.2d 10.

In the Thompson case a detailed computation was recited for an award in instances strikingly similar to the case at bar. Since we are unable to discern the exact impact of the award as rendered in this case, and since the litigants are in direct disagreement as to its interpretation, this proceeding must be remanded to the Board so that it may compute the award according to the principles enunciated in Thompson v. Harlan Wallins Coal Corporation, Ky., 256 S.W.2d 10. The parties agree that interest shall be computed on unpaid installments from March 29, 1966, the date of the motion to reopen. See Williams v. Gordon, 313 Ky. 377, 231 S.W.2d 89, 92.

The judgment is affirmed in part and reversed in part with directions that the proceeding be remanded to the Workmen s Compensation Board so that the award of September 19, 1966, may be clarified as set out in the opinion.

WILLIAMS, C. J., and HILL, MILLI-KEN, OSBORNE, PALMORE, and STEINFELD, TL, concur.


author: OSBORNE, Judge.

text:
    William F. FISHER and Helen Fisher, Appellants, v. URBAN RENEWAL & COMMUNITY DEVELOPMENT AGENCY OF LOUISVILLE, Appellee.
    Court of Appeals of Kentucky.
    March 22, 1968.
    Charles W. Hebei, Jr., Marvin C. Werle, Louisville, for appellants.
    Robert W. Zollinger, Dennis J. Haugh, Louisville, for appellee.
   OSBORNE, Judge.

This is an appeal by the landowner from the judgment in a condemnation case in which his land was taken by an urban renewal agency. The only error the landowner alleges is the failure of the court to grant a jury view.

KRS 99.420(7) provides, “* * * upon request of any of the parties, the court may, in its discretion, send the jury to view the premises * * This statute is permissive in nature and leaves the determination of a jury view to the judge’s discretion. This differs from KRS 177.087, the highway condemnation statute, which makes a jury view mandatory if requested by either party. Therefore, we must look to the facts here to see if the judge abused his discretion under the statute.

Both parties requested a jury view. The trial judge overruled the joint motion stating, “ * * * in view of the fact that it is now seven years since the taking of the property, I think it would be best that the motion be denied.” Neither party presented any argument that a jury view was needed nor evidence that the conditions and circumstances were the same as or substantially similar to those at the time of the taking. The property was an older business and apartment building in downtown Louisville. The description given by the various witnesses was clear and unambiguous. There was no confusing or complicated testimony that a jury view would have cleared up.

The only case decided under the urban renewal jury view provision is Urban Renewal and Community Development Agency of Louisville v. Fledderman, Ky., 419 S.W. 2d 741. There the judge took judicial notice that a substantial change had taken place in the general area. We held that his action in refusing a jury view was not an abuse of discretion. In several cases decided under the Railroad Condemnation statute KRS 416.050 which like this statute provides for a permissive view, the denial of a jury view was upheld. Commonwealth v. Crutcher, Ky., 240 S.W.2d 605; Kentucky National Park Commission ex rel. Commonwealth v. Russell, 301 Ky. 187, 191 S.W.2d 214; L. & N. R. R. Co. v. Williams, 234 Ky. 661, 28 S.W .2d 982, and Kentucky and West Virginia Power Co. v. Saulsbury, 231 Ky. 788, 22 S.W.2d 281. In all of these cases the court considered the reasons why the view was refused in light of the nature of the testimony and the need for a jury view and found no abuse of judicial discretion. In C.J.S. the rule is stated as follows :

“The courts generally regard a jury view of the premises to be advisable in condemnation proceedings, and it has been said that the granting of a view should be the rule, and that it should be denied only for good and cogent reasons. In the exercise of its discretion the court may properly deny a view where the premises have been adequately described in the testimony and where visual evidence has been introduced which the court deems to be sufficient, * * *. In determining whether a jury view should or should not be permitted the court may properly consider whether there have been such changes in the premises as to impair the value of the view.” 30 C.J.S. Eminent Domain § 288, p. 60.

Also see 27 Am.Jur.2d Eminent Domain, pp. 298-301 §§ 413, 414, and 5 Nichols on Eminent Domain, pp. 169-171 § 18.3(3). This rule seems entirely in line with our previous cases.

Here, there was no evidence that any substantial change had or had not taken place; however, in the absence of any evidence, the mere passage of seven years would indicate that some changes had occurred. The property was well described by the witnesses, and their descriptions were not confusing or conflicting in any way. Under this state of facts we do not believe the trial judge abused his discretion.

The judgment is affirmed.

All concur.


author: CLAY, Commissioner. OSBORNE, Judge

text:
    Orvill CLARK, Appellant, v. Gay Berry CLARK et al., Appellees.
    Court of Appeals of Kentucky.
    March 1, 1968.

      G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, for appellant.
    Douglas Keen, Titus G. Lyle, Keen & Lyle, James S. Secrest, Scottsville, for ap-pellees.
   CLAY, Commissioner.

Both husband and wife appeal from a divorce judgment on several grounds. It is necessary to recite the developments in this somewhat unusual case.

The parties had lived together for almost 20 years until shortly before the husband filed suit for divorce. The wife subsequently filed such a suit and the two were consolidated. After substantial proof was taken, the husband proposed, and the parties entered into, a written “Reconciliation Contract”. It provided the parties would attempt to effect a reconciliation and in the event this failed: they “shall be divorced”; the wife shall have the custody of the three infant children; the husband shall pay $75 a month per child for their support; and the husband shall pay the wife the sum of $50,000 in full and final settlement of all property and alimony rights.

The husband moved back into the home and stayed there a month. The reconciliation failed and the husband applied to the court for enforcement of the agreement. Eventually the Chancellor granted an absolute divorce to each of the parties, and set aside the agreement on the ground the husband had not entered into it in good faith. He awarded the wife lump sum alimony in the amount of $60,000, and decreed that the wife and children should have the right to the use and occupancy of the parties’ residence for two years. The decree also allowed the same support payments as had been provided in the agreement, and directed that each party pay his own attorneys’ fees.

The husband contends the reconciliation agreement should have been upheld and enforced. It is the wife’s contention, and was so found by the court, that the husband did not enter into it in “good faith”. The parties tried this issue as if the question was whether the husband actually made a good faith attempt at reconciliation. The trouble with this approach is that no one is seeking to enforce reconciliation, and the only enforceable terms of the agreement contemplated failure of reconciliation, regardless of the reason. There is respectable authority for the proposition that a reconciliation agreement on conditions is void as contrary to public policy. See Miller v. Miller, 78 Iowa 177, 35 N.W. 464, 42 N.W. 641; Mathie v. Mathie, 12 Utah 2d 116, 363 P.2d 779; McKay v. McKay, Tex.Civ.App., 189 S.W. 520. There is authority to the contrary. Restatement, Contracts, section 585; Hoyt v. Hoyt, 213 Tenn. 117, 372 S.W.2d 300.

Without deciding whether such an agreement ipso facto violates the public policy of this state, there are other reasons why the one before us is contrary to public policy or should not be enforced. The agreement itself, which provides, “(a) The parties shall be divorced”, convinces us that it was made to facilitate the obtention of a divorce. Such a contract is contrary to public policy. 24 Am.Jur.2d, Divorce and Separation, section 889. Even if it was not such a contract, it is in the same category as a property settlement in contemplation of a possible future separation, which is contrary to public policy. See Hartley v. Hartley, 305 Ky. 350, 203 S.W.2d 770.

Assuming the agreement did not violate public policy principles, it is of such a nature as to require careful scrutiny in a court of equity. Since the parties planned to live together (rather than separate), the close confidential marital relationship continued between them and equity will not countenance overreaching by either party. It may be pointed out that even if a contract of this nature is fair when made, it may not be fair as between the parties when, at some future date, a divorce becomes effective.

Considering the nature of this agreement, the situation of the parties, and the subsequent developments, the Chancellor properly held it was not binding on the wife. He could have done so on public policy grounds. His finding of a lack of “good faith” on the part of the husband also could be justified as relating to the contract as a whole. It is apparent the husband was seeking to arrange in advance the terms of a divorce decree with respect to alimony and maintenance, and the terms were greatly to his advantage.

We do not mean to intimate that all separation or property settlement or reconciliation agreements are unenforceable, but are of the opinion that under the particular circumstances of this case the Chancellor properly refused to enforce the terms of the agreement.

The husband contends that, disregarding the agreement, the alimony allowance was excessive. We will discuss this question in considering the cross-appeal of the wife.

When the parties were married in 1948 the husband’s net worth was approximately $4,000 or $5,000. The following year he went into the sawmill business and was quite successful. At the time the divorce suit was filed he was building a $100,000 home and had a gross estate of almost $400,000.

Throughout their marriage the wife worked closely with her husband in the conduct of the sawmill business. She performed manual labor and did all the bookkeeping, and there is substantial evidence that her participation in the business contributed very much to its success. The Chancellor found that she “substantially contributed” to the accumulation of her husband’s estate.

In Heustis v. Heustis, Ky., 346 S.W. 2d 778, we decided that with certain qualifications, in the absence of unusual circumstances, and when the wife did not have sufficient estate of her own, it was equitable to allow her a minimum of one-third of the estate accumulated from the income of the husband during the marriage. See also Porter v. Porter, Ky., 394 S.W.2d 456, and Hunt v. Hunt, Ky., 394 S.W.2d 743. This is not an immutable rule but is a practical and proper basis for consideration of the difficult and delicate question of alimony. In Broida v. Broida, Ky., 388 S.W.2d 617, we observed that as the size of the husband’s estate increases it is less important that such an award conform precisely to a formula. An equitable allowance out of the husband’s estate is specifically authorized by KRS 403.060(1).

In the present case the wife had no property of her own nor was she charged with moral delinquency. Not only had she fulfilled her duties and responsibilities as a housewife for many years but she had also contributed a great deal to the husband's accumulation of his wealth. In view of the Chancellor’s findings and in the absence of special considerations which would render such a division inequitable, it is our opinion that an award of one-third of the husband’s net estate should have been decreed. The husband contends the wife was at fault, but this is not a controlling factor. Coleman v. Coleman, Ky., 269 S.W.2d 730; Patterson v. Patterson, Ky., 323 S.W.2d 862; Hunt v. Hunt, Ky., 394 S.W.2d 743. In fact the nature of the decree indicates that both parties were at fault, so that factor may not be invoked by one against the other.

On the basis of the Chancellor’s finding that the husband’s net estate was $300,000, we are directing an allowance of $100,000 lump sum alimony. The Chancellor will determine whether this allowance will be paid in cash and/or property, and will make provision for the manner in which this obligation shall be liquidated, by installments or- otherwise, with necessary security being given the wife. Attention is directed to Broida v. Broida, Ky., 388 S.W.2d 617, with respect to proper provisions which may be included in the judgment.

The wife contends the support allowance for the children is inadequate, but we find no basis for disturbing this award. Likewise, we find no sound reason to disturb that part of the judgment which allowed the wife and children the use and occupancy of the residence for a period of two years.

The wife complains of that part of the judgment which requires her to pay her attorney fee. Under KRS 453.120 the husband is required to pay the wife’s attorney fee if she has not ample estate of her own. We held in Patterson v. Patterson, Ky., 323 S.W.2d 862, that her estate does not include the amounts which will be paid in the future under the judgment. The husband should be directed to pay a reasonable fee to her attorney. Denham v. Denham, Ky., 285 S.W.2d 176.

The judgment is affirmed in part and reversed in part, with directions to enter an amended judgment consistent with this opinion.

OSBORNE, J., dissents.

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY, PALMORE and STEINFELD, JJ., concur.

OSBORNE, Judge

(dissenting).

In Long v. Long, Ky., 416 S.W.2d 353, this court held:

“We have many times held alimony and the method .of its payment are matters within the sound discretion of the trial judge and if this discretion is not abused the award must be upheld. The rule was most recently set out in Ballard v. Ballard, Ky., 411 S.W.2d 330 as follows :
“ ‘The amount of alimony to be awarded and the method of payment are matters within the discretion of the Chancellor. Hicks v. Hicks, Ky., 290 S.W.2d 483; Boggs v. Boggs, Ky., 330 S.W.2d 118; Ralston v. Ralston, Ky., 396 S.W.2d 775. The exercise of such discretion will not be set aside unless it is shown to be clearly erroneous. Somerville v. Somerville, Ky., 339 S.W.2d 940; Peavy v. Peavy, Ky., 351 S.W.2d 869. An abuse of discretion has not been shown.’ ”

This is the long-established rule in this jurisdiction. The facts here do not clearly show that the Chancellor abused his discretion. The court should decide on that basis alone and not on any arbitrary court-made rule, one-third or otherwise.

Therefore, I respectfully dissent.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Woodrow ARNETT and Lula Arnett, his wife et al., Appellees.
    Court of Appeals of Kentucky.
    March 22, 1968.
    Robert F. Matthews, Atty. Gen., H. C. Smith, C. E. Skidmore, Asst. Attys. Gen., Frankfort, for appellant.
    Earl R. Cooper, Marcus Mann, Salyers ville, for appellees.
   OSBORNE, Judge.

This is the second appeal in this highway condemnation case. At the first trial the jury returned a verdict for $18,000 which this court held excessive on the basis of the evidence. Commonwealth, Department of Highways v. Arnett, Ky., 390 S.W.2d 187. On the second trial the jury returned a verdict of $18,500, $500 in excess of the first verdict. The evidence on this trial was not substantially different from that at the first trial. The first decision, therefore, becomes the law of the case. Kentucky Road Oiling Company v. Sharp, 257 Ky. 378, 78 S.W.2d 38.

The judgment is reversed.

All concur.


author: PALMORE, Judge.

text:
    Ray REYNOLDS, Appellant, v. JUSTICE COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    March 15, 1968.
    Joseph W. Justice, Burke & Justice, Pike-ville, for appellant.
    E. R. Hays, Baird & Hays, Pikeville, Stuart E. Alexander, Louisville, for appel-lees.
   PALMORE, Judge.

Both sides appeal from a judgment affirming an order of the Workmen’s Compensation Board re-opening an agreed award and allowing the claimant, Ray Reynolds, additional compensation. KRS 342.-125, 342.285, 342.290. The employer contends the re-opening was not justified. The claimant contends the increase in compensation should be given retroactive effect to the beginning of the compensable period, whereas the Board made it effective from the time the motion to re-open was filed.

Reynolds was a shot-firer in the employer’s coal mine. On July 22, 1964, a lump of coal propelled by one of his shots struck him on the left knee and resulted in a com-minuted fracture and subsequent removal, by surgery, of the patella or kneecap. The surgeon who performed the operation was of the opinion that Reynolds had sustained a permanent partial impairment of 25'% to his body as a whole. On August 12, 1965, dealing directly with an adjuster for the employer’s insurance company, Reynolds accepted and the Board approved a settlement reflecting temporary total disability for 53 weeks and 25'% permanent partial disability for 347 weeks, totalling 400 weeks. The total disability period of 53 weeks had been paid, and the balance was commuted and paid in a lump sum.

The motion to re-open was filed with the Board on June 14, 1966. It was supported by the affidavit of Dr. David B. Stevens, an orthopedic specialist, stating that on the basis of a recent examination it was his opinion that Reynolds had a 10% permanent impairment to his body as a whole but because of muscular atrophy, limited flexion of the knee, and marked tenderness at the site of the surgical incision he would be unable to do any work requiring him to kneel for a substantial period of time, and the affidavit of Reynolds himself stating in substance that he misunderstood the agreement of August 12, 1965, that the condition of his knee had grown worse, and that as a result of the latter circumstance and the limitations of his education and experience he was unable to engage in any gainful occupation.

After hearing evidence on both sides the Board sustained the motion to re-open, finding that Reynolds had been totally and permanently disabled since July 22, 1964, and that the agreement of August 12, 1965, had been induced by mistake of the parties with respect to the nature and extent of the disability resulting from the injury. Accordingly, the weekly benefits were enlarged to $38 and the compensable period to 425 weeks under KRS 342.095, whereas the 25% agreement had been made with reference to KRS 342.100, which limited benefits for permanent partial disability to $33 per week for 400 weeks. Specifically, the employer was ordered to pay an additional $29.75 per week from June 14, 1966, until the expiration of the 400-week com-pensable period as originally computed, $38 per week for an additional 25 weeks, and all unpaid medical expenses not exceeding $2500.

In his testimony for the employer following the motion to re-open, Dr. William C. Rowland, who had performed the patellec-tomy on Reynolds in December of 1964, agreed that his estimate of 25% permanent disability referred to limitation of physical function. He did not believe, however, that his loss of the kneecap would keep Reynolds from performing his usual work. On the other hand, Dr. Stevens testified that “there are some patients after a patellec-tomy who could mine coal and some who couldn’t,” and “based on his complaints and my knowledge that certain patients after a patellectomy cannot kneel because of tenderness, it is my opinion that he probably will not be able to return to such coal mining.”

It was held in Messer v. Drees, Ky., 382 S.W.2d 209, 213 (1964), that a reopening is justified when events subsequent to the hearing on which an award was made reveal that it was substantially induced by a misconception as to the cause, nature or extent of disability. That is the basis on which the Board re-opened the agreed award in this instance. Though Dr. Rowland believed the injury would not substantially prevent Reynolds from performing his usual work, the testimony of Dr. Stevens furnished sufficient evidence to support the Board’s finding that this assessment, on which the original award was based, had proved to be incorrect. Being so supported, the Board’s finding cannot be disturbed on a judicial review. Cf. Department of Finance v. Wright, Ky., 425 S.W.2d 740 (decided February 9, 1968).

The manner in which the employer was given credit for that portion of the lump sum settlement reflecting the period between the beginning of the compensable period and the date on which the motion to re-open was filed is in conformity with Thompson v. Harlan Wallins Coal Corp., Ky., 256 S.W.2d 10, 13 (1953), the principles of which were approved and followed in Department of Finance v. Wright, Ky., 425 S.W.2d 740 (decided February 9, 1968). In the latter opinion the argument that a distinction should be drawn between “mistake” and “change of conditions” so as to make the new award in a case of mistake retroactive to the beginning of the compensable period was rejected. See Rex Coal Company v. Campbell, 213 Ky. 636, 281 S.W. 1039 (1926). The Thompson case is dispositive of the claimant’s contention on this appeal.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MILLI-KEN and STEINFELD, JJ., concurring.

MONTGOMERY, J., not sitting.

       As the statutes read at the time of the injury.


text:
    BIG RIVERS RURAL ELECTRIC COOPERATIVE CORPORATION, Appellant, v. BROWNS VALLEY LAND COMPANY. Appellee.
    Court of Appeals of Kentucky.
    March 22, 1968.
    Ridley M. Sandidge, Sandidge, Hol-brook, Craig & Hager, Owensboro, for appellant.
    Joseph H. McKinley, Garland W. Howard, McKinley & Howard, Owens-boro, for appellee.
   CLAY, Commissioner.

Appellant condemned an easement for the erection of a transmission line across the farm of appellee. This is an appeal from a jury award of $8,850, on the grounds that the verdict was excessive and not sustained by sufficient evidence of probative value.

The tract contains 923 acres, and its present and prospective future use is for farming purposes. The easement is 125 feet in width and 4,787 feet in length, traversing the tract at roughly midpoint. The transmission line consists of five wires supported by seven dual-pole settings. The landowner has the right to use the land encompassed by the easement except for the erection of buildings.

The before value appraisals ranged between $230,500 and $400,000, and the jury found such value to be $270,000. The principal controversy relates to the after value of the land subjected to the easement. Appellant’s experts, who had made a special investigation of this particular subject, testified that the after value was not substantially affected, the highest difference being estimated at $1,000. On the other hand, the landowner’s witnesses testified to a difference in value ranging from $13,830 to $18,440. It is appellant’s contention that the after value appraisals of the landowner’s witnesses, which they were unable to justify, resulted in an exorbitant differential between the before and after values, and that this evidence, lacking probative value, led the jury to make an excessive award.

The land involved is a large tract, substantially level, which is well suited to the growing of such “row crops” as corn and soy beans. The jury could properly find, as it did, that the farm land without the easement had a value of $293 per acre. It is apparent from the evidence that the existence of the transmission line will interfere with the farming operations in a minimal degree. (The tract was already traversed by the transmission line of another power company.) The land actually occupied by the poles is about one-eighth of an acre and the entire easement area is approximately 14 acres.

Since the ground in the easement area not occupied by the poles remains useable for farming purposes, it was the opinion of the expert witnesses testifying for appellant that the existence of the transmission line over a large tract such as this had no appreciable affect upon the market value of the property. While there was testimony that “farmers don’t like those things”, the question is the extent to which the encumbrance of the easement depreciated the farm’s market value.

The witnesses for the landowner testified that such a line would substantially depreciate the value of the property. Their method of appraisal is attacked by appellant. They simply gave the before and after value figures without explaining the nature of or the reason for substantial depreciation. It was not shown why the land outside the easement would be depreciated in value. They did not explain in what respect the existence of such a transmission line on a large tract such as this, used for farming purposes, would impair the sale value of the entire tract or any part thereof. Yet we have held in a case of this character that a “reasonable basis” should be given to support estimates of damage caused by a transmission line. Salt River Rural Electric Co-op. Corp. v. Thurman, Ky., 275 S.W.2d 780.

An examination of the landowner’s witnesses’ damage estimates (based on after value) developed a discrepancy they were unable to explain, though asked concerning it. For example, the sole stockholder of the appellee company testified the tract (before the easement) had a value of $320 an acre. With the encumbrance, he depreciated the value $16,000. Since only 14 acres were immediately affected by the easement and no reason was given why the market value of the other land would be adversely affected, this in effect was giving the encumbered land a loss value of approximately $1100 an acre. Even if the 14 acres had been taken in fee, which they were not, the witness’ own figures would show such a material inconsistency as to require explanation.

It is true the value of the land actually taken (even assuming it was taken in fee) would not necessarily limit the amount of compensation to which a landowner is justly entitled. His remaining land may be depreciated in value by the taking. However, we are unable to find in this record any substantial evidence that the value of the landowner’s two large tracts lying on each side of the easement were in any way impaired or depreciated by reason of its existence.

The difference in value figures given by the landowner’s witnesses are arbitrary figures. All appraisal figures of an expert are in a certain sense arbitrary, but to have probative value they should have some reasonable relationship to market value factors. Such factors may be matters of common knowledge, or may be apparent, or may be known or acknowledged in real estate transactions. They need not be necessarily referred to by the witness. However, when the figures of a witness on their face are extravagant or show a substantial discrepancy, specific supporting facts are necessary to give those figures full probative value. East Kentucky Rural Electric Co-op. Corp. v. Phelps, Ky., 275 S.W.2d 592; Kentucky Utilities Company v. Jett, Ky., 391 S.W.2d 677.

It can be argued that the verdict is sustainable because the jury substantially discounted the damage estimates of the landowner’s witnesses. In this case the jury found a difference in value of $8,850 rather than $16,000. However this verdict far exceeds the highest per-acre valuation of any witness if we treated the easement as taking in fee the 14 acres which it encompasses. Since the easement takes a much lesser estate, the verdict does not rest on an adequately proven depreciated market value. In our opinion it was based on evidence lacking sufficient probative value to sustain it and is patently excessive. See Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472; Commonwealth, Dept. of Highways v. Holbrook, Ky., 390 S.W.2d 897.

The conclusion we have reached is not inconsistent with our decision in Big Rivers Rural Electric Cooperative Corporation v. Royer (rendered March 8, 1968), wherein a somewhat similar easement was involved. Two distinguishing features are (1) the nature and potential use of the property involved, and (2) the character of the expert testimony.

Appellant contends we should direct the entry of a judgment based on the highest difference in value figure presented by its witnesses, but the landowner is entitled to have the jury fix the damages.

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

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY, PALMORE and STEINFELD, JJ., concur.

EDWARD P. HILL and OSBORNE, JJ., dissent.

      . The damage estimates of the landowner’s other witnesses show a similar discrepancy. Whereas they valued the whole farm on a $250 to $433 an acre basis, the depreciated value, applied to 14 acres, would come to $987 to $1317 an acre.

      . It is unfortunate that so many condemnation cases resolve themselves into a game in which the parties’ experts oppose each other with such apparently extravagant underestimations and overestimations of depreciated value that the jury cannot rest its verdict on particular evidence, but must in effect make an independent appraisal. It would be refreshing to see a ease in which the expert testimony for one side or the other was so consistent and of such a fair and convincing character that the jury would accept it.


text:
    COLUMBIA COAL COMPANY and Old Republic Insurance Company, Appellants, v. Clyde GRIFFIE et al., Appellees.
    Court of Appeals of Kentucky.
    March 8, 1968.
    Fred G. Francis, Howard, Francis & Howard, Prestonsburg, for appellants.
    W. W. Burchett, Prestonsburg, Thomas R. Emerson, Frankfort, for appellees.
   CLAY, Commissioner.

In this workmen’s compensation case the circuit court confirmed an award of total and permanent disability benefits against the appellant employer. The only issue on appeal is whether the Board should have apportioned the award between the employer and the Special Fund in accordance with the report of a physician who was appointed under KRS 342.121.

In 1944 the employee had severely injured his right leg and was disabled for several years (for which he received compensation). After returning to work with appellant, he received an injury to his back which resulted in the present claim. Admittedly he is now totally disabled.

It appearing that the employee’s present disability was to some extent attributable to his prior injury, on motion of both parties the Special Fund was made a party to the proceeding. KRS 342.120. The Board appointed Dr. T. Rothrock Miller to make a determination of the proper apportionment of liability under the provisions of KRS 342.121. He filed his report in which his findings were in substance that the employee’s total disability was SO percent, the latest injury produced a disability of IS percent, and the preexisting injury and an arthritic condition contributed 35 percent. The deposition of Dr. Miller was taken and he testified that his percentages related to “functional” disability, which must be distinguished from “vocational” disability.

Under KRS 342.121(4) the findings of Dr. Miller with respect to medical questions were conclusive upon the Board “unless specific objections thereto” were filed with the Board. The employee did make timely application for review and did object to Dr. Miller’s findings. These objections, however, were that the employee was totally and permanently disabled and Dr. Miller’s percentages should have equaled 100 percent (rather than SO percent). No objection was made to the percentage apportionment of disability as between the employee’s latest injury and his pre-existing condition. Those findings must be accepted as conclusive since they are neither inconclusive, incomplete nor ambiguous. Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905.

In Ed Hall Drilling Company v. Profitt, Ky., 424 S.W.2d 403, we held that the unequivocal findings in such a report (responsive to the medical question involved) must be accepted by the Board to the extent they are not questioned by specific objections. Here the employee’s only objection was that the percentages should be in terms of vocational rather than functional disability, but no question was raised as to the correctness of the apportionment. Such being the case, the Board was bound by the apportionment.

The employer admits and the proof establishes that the employee, from a vocational standpoint, is totally and permanently disabled. To convert Dr. Miller’s percentages of functional disability into vocational disability simply requires the doubling of his figures. Since the employee is 100 percent disabled, 30 percent is attributable to the last injury and 70 percent to the pre-existing condition. Therefore the award should have apportioned liability as between the employer and the Special Fund on that basis.

The judgment is reversed, with directions to remand the case to the Workmen’s Compensation Board for the entry of an award consistent with this opinion.

All concur.

      . The employee’s objection to Dr. Miller’s report raised only the question of translating functional disability into vocational disability, which was a matter that should have been addressed to the Board rather than to the report.