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    P- D-, Plaintiff-Respondent, v. C- S-, Defendant-Appellant.
    No. 8404.
    Springfield Court of Appeals. Missouri.
    Sept. 11, 1965.

      Keith V. Williams, Springfield, for defendant-ap.pellant.
    Douglas & Douglas, Neosho, for plaintiff-respondent,
   STONE, Judge.

This appeal brings in review another in the endless caravan of broken homes and separated families moving across the judicial scene. We cloak the actors with anonymity that the innocent child, whose custody is in issue, may not be humiliated further in years to come by a recorded recital of parental conduct. On May 10, 1961, the circuit court entered a decree in a divorce suit brought by the mother finding that she was of “good moral character” and was the innocent and injured party, granting her a divorce, awarding to the father major custody of the child, a son then nine years of age, and to the mother minor custody during the months of June, July and August each year, and ordering the father to pay $12 per week to the mother while the son was in her custody. The pleadings in the divorce suit are not before us, and we are not informed as to the ground on which the mother sought and was granted a decree or as to what considerations motivated the custodial provisions. We learn from the record in this custody proceeding that the parents also had two daughters, both of whom were married and accordingly were not mentioned in the decree. One of these daughters (to whom we hereinafter refer as daughter P), then twenty-two years of age, resided with her husband and child in the county seat town in Southern Missouri where the parents had lived. The other daughter (to whom we refer as daughter B), then twenty years of age, resided with her husband in a metropolitan area in California. The father was forty-three years of age at the time of the divorce. The mother’s age is not disclosed.

The present proceeding was instituted by the filing of the father’s motion to modify on June 20, 1964, in which he prayed that the mother’s minor custody during June, July and August each year be terminated and that he be awarded full care and custody of the son. On June 24, 1964, the mother answered the father’s motion and filed a counter-motion to modify in which she prayed that the father’s major custody be terminated and that she be awarded full care and custody of the son. At the conclusion of the trial on August 7, 1964, the court denied the father’s motion to modify, found that “conditions have changed as alleged in [the mother’s] counter-motion to modify,” awarded major custody to the mother for eleven months during each year and minor custody to the father for the month of July each year with -the father to pay the son’s travel expenses between the mother’s home and the father’s home, granted permission to the mother to take the son out of the state, ordered that other provisions of the original decree remain in force, and taxed the costs against the father. He appeals.

It is a trite principle that a custodial order once made becomes as conclusive as any other order [Schumm v. Schumm, Mo.App., 223 S.W.2d 122, 126; Brake v. Brake, Mo.App., 244 S.W.2d 786, 801; Lehr v. Lehr, Mo.App., 264 S.W.2d 35, 37] and may be disturbed only upon proof of changed conditions subsequent to entry of the order coupled with a showing that modification of the order would promote the best interests of the child or children involved. Hirsch v. Hirsch, Mo.App., 366 S.W.2d 484, 489(3-5); Hurley v. Hurley, Mo.App., 284 S.W.2d 72, 73(1-3); Frame v. Black, Mo. App., 259 S.W.2d 104, 108(4).

As is so frequently true, the charges in the respective motions outdistanced the proof, the father’s charges more egregiously (so we think) than the mother’s. And, since our decision must be predicated on the evidence adduced rather than on the accusations pleaded, we pass the formal motions without comment concerning their content and proceed to a review of the pertinent and material facts.

After entry af the decree of divorce on May 10, 1961, the mother with the father’s permission (so she said) took the son with her to the home of daughter B in California. Shortly after July 4, 1961, the father made a trip to California for the purpose of returning the son to Missouri, pursuant to the mother’s request (so the father testified) “because she couldn’t do nothing with him .[the son].” The father’s description of the “kind of deal” he found was that “I had to get his [the son’s] hair cut, it was -growed down to his shirt, and he had his shoes kicked off his feet and he didn’t look good at all.” The mother testified, without denial by the father, that he did not pay the child support of $12 per week, as required by the original decree, while the son was in her custody.

After the father and the son returned to Missouri in July 1961, both resided in the home of daughter P and she cared for the son until about June IS, 1962, when the father announced that “he was getting married and . . . was moving” to a smaller Missouri town some fifteen miles distant. During the remainder of the Summer of 1962, the son was in the care and custody of the father’s fiance. During July 1962 (so the fiance testified) or during August-1962 (so the father said), the father moved to a larger Missouri city some ninety miles distant; and during “the last of August” 1962 his fiance and his son moved to the same city where, on September 18, 1962, the father and his fiance (hereinafter referred to as the stepmother) were married and thereafter continued to reside to the time of hearing, to wit, August 7, 1964. The stepmother’s age is not disclosed, but she had two sons by a prior marriage, one of whom was (at the time of hearing) fifteen years of age and lived in the home with her, the father and his son, and the other of whom was twenty years of age, married, and not a member of the same household.

The mother did not see the son between July 1961, when the father returned him from California to Missouri, and June 1963, when the mother came to the home of daughter P in Missouri and, for a period of some seven weeks thereafter, had custody of the son in 'that home. During the Summer of 1962, the mother “didn’t feel too good” and “was sick.” Being unable to come to Missouri, the mother anticipated that daughter P “was going to visit us [in California] that summer for sure” and would bring the son with her, but “something went wrong” and daughter P did not make the trip. The-mother asserted, and the father denied, that through daughter P, as an intermediary, the mother unsuccessfully had endeavored to arrange for the father to send the son to California by airline. In any event, the mother had no custody of the son in the Summer of 1962.

At this point, we take notice of the evidence pertaining to -several incidents during the winter following the marriage of the father and -the stepmother on September 18, 1962. The first of these was the stepmother’s refusal and return of a Christmas package mailed by the mother to the son. The father’s testimony concerning this was: “Q. Were you at home when a package addressed to [the son] was refused? A. There wasn’t no package at the house to be refused. Q. You are sure of that? A. Positive.” The stepmother quickly conceded that she had received “a notice . . that there was a package” from the mother addressed to the son and that she had refused that package. Her “reasons” for refusal were: “Well, his [the son’s] mother had -never contacted him in no way since I had took the child, and I really felt like she had been unfair to him, and it did irritate me and I returned it, and I wrote her a note, and I am very sorry; I am very sorry for that”

The “note,” to which the stepmother alluded, was dated January 8, 1963, and (omitting the date and the one-word salutation, to wit, the mother’s given name) read as follows: “Just a line to let you know we did not claim the package you sent so it will be returned to you. Since you walked out on [the son] and denied .yourself a mother’s rights — we just ask one favor of you and that is — (To Leave us alone)’. We don’t need any charity from you so all your packages and letters to here will he unclaimed.” The father admitted that he had read the “note” before the stepmother had mailed it.

We pause to agree with the father’s counsel that prior transgressions of the moral law do not necessarily require that a parent be denied or deprived of custody of a minor child [Johns v. McNabb, Mo., 247 S.W.2d 640, 643], but we hasten to observe that we perceive no strong and impelling evidence of repentance and that the trial judge was in a far better position than we are to make a judgment as to whether the stepmother’s protestation that she was “sorry” {not accompanied by any acknowl-edgement of wrongdoing or indication of penitence on the part of the father) was a manifestation of soul-centered sincere repentance or simply a skin-deep superficial offering motivated by the exigencies of litigation.

Daughter P testified that, when the father came to her home during the Christmas season of 1962, “I told him since I hadn’t seen [the son] to give him his gift, that there it wasr and I started to hand it to him and he gave it back to me and said that [the son] could not have the gift, that [the stepmother] would not accept it and he wouldn’t accept it.”

When their grandfather died in February 1963, both daughter B (from California) and daughter P saw their father at the grandparents’ home in the county seat town where the parents had lived prior to their divorce and where daughter P still lived. Learning from the father that he and the son were staying temporarily at the nearby town where the stepmother had lived prior to her marriage, daughter B and daughter P drove there to see their younger Brother. They found him in a trailer where the stepmother’s older son and his wife lived. As daughter B related it, when her brother saw her “he started crying and threw his arms around my neck.” The stepmother’s younger son also was present on that occasion; and, when asked to describe “the way the two boys were dressed,” daughter B said that “[the stepmother’s younger son] was dressed very nicely, he had on- new clothes, had a good grooming, his hair had been cut and everything, and [her brother] had some very ragged jeans- that had been patched several times and a sweat shirt that was absolutely filthy, and his hair was hanging, down over his ears.” The father permitted the son to spend one night with the daughters.

On cross-examination, daughter B readily conceded that “I told him [the father} that considering the way that he was treating my brother and my sister, that I felt it hard to consider him as a father to me either.” In subsequent answers, daughter B said that “he stood back and watched his wife [the stepmother] try to hide in the trailer and refuse to let me see my little brother; and he didn’t want me to talk to him”that “he threatened my mother, and his wife [the stepmother] threatened my sister”; and that “lots of times” while drinking he had threatened that “he might kill some members of the family.”

Daughter P had not attempted to visit her brother [the son] in the home of the father and the stepmother because the stepmother had told her “to stay away, that I couldn’t see him if I came up there.” Although agreeing that she had never seen the stepmother “hit” the son, this daughter also stated that “I have never seen her love him — I mean kind words or anything.” Daughter P liked the stepmother “at first” but frankly admitted that the stepmother had not been in her home for some two years and was not welcome there at the time of hearing.

Witness Mary S-, called by the mother’s counsel, testified that in 1963 she had had several conversations with the stepmother, in one of which the stepmother had commented “that she had found out that she could draw social security on [the son] if anything happened to [the father]” and also had told the witness about returning the mother’s Christmas package to the son.

As we have noted, the mother returned to Missouri in June 1963 and, for a period of about seven weeks, had custody of the son in the home of daughter P. She returned again in 1964 and, after having notified the father over long distance that she would come for the son the following day, the mother accompanied by her brother and sister on June 3, 1964, drove to the home of the father and the stepmother in the larger Missouri city. When the father and the son came outside, the mother told the son that she had come for him. His reply was, in substance, that he did not want to go with her. A single witness,, the stepmother, supplemented the narrative of this incident by stating that the son twice asked the mother, “why did you run off and leave me?” The mother sought the father’s assistance — as he put it, the mother asked him to “make [the son], go.” Rut the father's reply, repeated several times in similar language, was that “if he wants to, its perfectly all right; I can’t keep him from it, but I am not going to make him- go.” Finally, so the mother’s brother testified, the father “went to stomping his feet and he said he would stomp hell out of anybody that tried to take the boy, and that’s when I got out of the car.” In further conversation with the father for some thirty minutes, the mother’s brother unsuccessfully sought to persuade the father “to get the boy ready, let him come on home.” During this incident, the son was crying and (in the language of the mother’s brother) “was scared to death and he would look at his dad every time he said anything.” The father’s attitude is exemplified by this question and answer on cross-examination, immediately following his testimony that he had known, at the time of the incident under diseussion, that the original decree awarded custody of the son to the mother for three months: “Q. But you made no effort to have [the son] comply with this court order, did you? A. I didn’t have nothing to do with it.” The incident of June-3,1964, was terminated by the mother’s departure without the son.

Within a few days, the mother instituted a proceeding in habeas corpus to obtain custody of the son; and, when the father consulted counsel after service of the writ, arrangements were made for eustody of the son to be transferred to the mother in the office of the father’s counsel on June 17, 1964. During the period of about thirty minutes in counsel’s waiting room on that date, the son (then in the company of the father and the stepmother) “sat with his eyes on the floor,” and he and the mother had no conversation with each other. After counsel had, in his office, told the mother that “she wasn’t supposed to take [the son] out of the state . . . and important things like that,” the mother prepared to leave. The father’s version was that the son started to cry, said “I don’t want to go,” and implored the father and his counsel “don’t let her [the mother] take me,” but that the mother, with the son- still crying, “got him by the arm and drug him out the door with him holding the door facing, trying to hold back.” The account of witness Fern J-, who had accompanied the mother on this mission, was that, after the son had told the father and the stepmother goodbye, he said that “he didn’t want to go”; that he did “not really cry, he fretted some”; that the son- went out the door “in front of her [the mother]” and the witness followed with the son’s suitcase; that, “by the time we got to the street he [the son] was laughing and conversed with us”; and that, on the drive to the home of daughter P, the son seemed to relax, “was happy and laughing,” and displayed much affection for the mother.

The mother and the son lived in the home of daughter P from June 17 to August 7, 1964, the date of hearing. When asked to tell the trial judge how the son “is getting along,” daughter P said that “he is perfectly happy, he laughs and he plays ... he never said anything about wanting to go back” to the city where the father resides.

The father’s home, where the son had lived for about two years prior to the date of hearing, was a three-bedroom house which the mother’s counsel conceded' to be “adequate.” The son attends a public school across the street, twice identified erroneously by the father as “Cameron” school. The father gave a simple affirmative answer when asked by his counsel whether the son went “to Sunday school and church,” but the further query as to “what church” elicited only the laconic, undeveloped reply “Baptist.” When taken with his testimony as a whole, these unconfirmed statements by the father concerning the son’s religious training lack the “naturally compelling ring of sincerity” [Clemens v. Clemens, Mo., 235 S.W.2d 342, 346] and leave us unconvinced. Cf. Graves v. Wooden, Mo.App., 291 S.W.2d 665, 668. The father, the stepmother, and witness Eloise H — —, a neighbor, averred that the son and the father’s stepson “get along fine.” Both the father and the stepmother solemnly asserted that they had done nothing to alienate the son from the mother, and witness Eloise H-said that she had not heard either the father or the stepmother “say one word against the boy’s mother.”

In the latter part of 1961, the mother remarried one E- D- (hereinafter called the stepfather) in California. For several months after their marriage, they resided next door to daughter B. Thereafter, they lived in a four-room “duplex house” or “apartment” and perhaps for a time at another address. After the mother had returned to Missouri in the Summer of 1964 and shortly prior to the hearing, the stepfather leased a house, because (as the mother put it) “he knew it was important to get a place for [the son].” Since this house was one of two residences owned by her sister, the mother was familiar with it and (so she said) the father also had seen it. Although there was no testimony detailing the facilities afforded by this house, a picture of it made by a commercial photographer and received in evidence indicates that it is a one-story dwelling with surrounding yard which should be adequate for a family group of three, namely, the mother, the stepfather and the son.

The father’s counsel comments that the stepfather “was conspicuous by his absence” at the hearing and suggests that this is an important factor, citing Graves v. Wooden, supra, 291 S.W.2d at 669. In that case, the stepfather resided in a county adjoining that in which the hearing was held [291 S.W.2d at 668] but did not testify. 291 S.W.2d at 667. In those circumstances, we thought that “the utter absence of any indication as to [the stepfather’s] disposition or feeling toward [the child], may he significant.” 291 S.W.2d at 669-670.

In the case at bar; the mother and the stepfather, obviously of limited financial means, reside in California. As the mother explained without objection, the stepfather was employed (apparently in a floral shop) at the time of hearing and “it is costing so much with all this, that he wanted to he present but couldn’t.” Daughter B, a resident of the same metropolitan area in California, who manifestly was devoted to “my little brother” (the son), appeared in person at the hearing and testified, without objection, that she had visited frequently in the home of the mother and the stepfather; that the stepfather knew the son; and that “he [the stepfather] told me how he would like to have him [the son] live with them, how much he loved children.” Of course, the quoted statements in the last two preceding sentences might have been excluded on timely and proper objections; but, having been received without complaint, the probative worth and effect of this testimony were for the trial judge, as trier of the facts. Fellows v. Farmer, Mo.App., 379 S.W.2d 842, 846(2), and cases cited in footnote 3; Turner v. Yellow Cab Co. of Springfield, Mo.App., 361 S.W.2d 149, 154-155(1); Edmisten v. Dousette, Mo.App., 334 S.W.2d 746, 753, and cases cited in footnote 13. The trial court also had for consideration the following testimony of the mother, likewise received without objection: “Q. . [I] f this court saw fit to award this child to you on the full-time basis, could you care for him? A. I certainly could. Q. And would your husband [the stepfather] be willing'to care for him ? A. Yes.”

Pointing to certain inconsistencies (principally as to home addresses) between the mother’s testimony in a deposition and at the hearing which he characterizes as “verging on perjury,” the father’s counsel urges that the mother thereby is shown “to be unfit to have the custody of the son.” As counsel reminds us, we have said (as have other courts) that perjury demonstrates moral unfitness to have the care and custody of minor children. L- v. N-, Mo.App., 326 S.W.2d 751, 756(9); E-v. G-, Mo.App., 317 S.W.2d 462, 467; S- v. G-, Mo.App., 298 S.W.2d 67, 77(14). See Shepard v. Shepard, Mo.App., 194 S.W.2d 319, 328. We are still of the same mind. But the revolting brand of perjury is not to be applied' with indifference or unconcern; and painstaking analysis of the mother’s testimony, together with that o-f daughter B who also was subjected to searching cross-examination in some of the same factual areas, leaves us wholly unpersuaded that the mother has defiled herself with perjury, i. e., with “ ‘wilful false swearing to a substantially definite material fact.’ ” State v. Swisher, 364 Mo. 157, 163, 260 S.W.2d 6, 11(7). Upon trial, the mother frankly acknowledged that, as to certain answers in her deposition, “I was confused; the address and house numbers out there are longer than they are here; it is hard to remember every house number and every place right off.” But neither inconsistency nor confusion is synonymous with perjury; and this is particularly true where, as here, the inconsistency and confusion are dissipated by explanation and clarification in the testimony of the mother and daughter B. The father’s charge that the mother is morally unfit by reason of testimony “verging on perjury” cannot be honored.

The father also assigns error on account of the trial court’s rejection of the suggestion of the father’s counsel at the conclusion of the hearing that the court “confer with the boy outside the presence o-f any of the parties or their counsel.” The answering comment was that “the court doesn’t believe it would be helpful to talk to the boy in this case,” to which counsel made no objection and took no exception at the time. The cases cited by counsel to this point do not demonstrate error in the instant case. In M— v. G-, Mo.App., 301 S.W.2d 865, where the principal factual issue was as to whether a daughter, twelve years of age, had been mistreated By her mother and stepfather, the trial court erred in refusing to permit the daughter to testify when called as a witness by the father. 301 S.W.2d at 868-869(3-5). The other cited cases [Graves v. Wooden, supra, 291 S.W.2d at 669(4); Fordyce v. Fordyce, Mo.App., 242 S.W.2d 307, 313(2)] announce the indubitably sound principle that, although entitled to consideration, a child’s wishes are not to be indulged if they are inconsistent with attainment of the paramount objective, namely, the furtherance of the child’s welfare.

No doubt the trial judge in the case at bar understood that the suggestion of the father’s counsel was motivated by a calm confidence that the son would express a preference for custody by the father. However, in rejecting the suggestion, the trial judge acted with the advantage of having observed the conduct and demeanor of the parties and their witnesses who had passed in review before him, and with the benefit of the evidence fresh in his recollection, including the hereinbefore-noted testimony that, when the mother had sought unsuccessfully on June 3, 1964 (only about two months prior to the hearing), to exercise her right to summer custody, the son “was scared to death and . . . would look at his dad every time he said anything,” and the mother’s further statement that the son’s conduct on that occasion “was a shock to me . . .he didn’t do that last year, he was fine.” We would not be misunderstood as condemning the frequently-indulged practice of trial judges to confer privately with children involved in custody cases. However, no case has been brought to our attention in which a trial judge has been convicted of reversible error in rejecting a suggestion that he so confer, and we are of the opinion that the advisability of so conferring is a matter which properly should rest in the sound judicial discretion -of the trial court. In the particular circumstances of the record presented, we cannot say that the trial judge was guilty of an abuse of judicial discretion in rejecting the suggestion of the father’s counsel.

In another point, the father avers that there was “no substantial evidence to overcome the presumption that the son needs his father and that custody was properly awarded , . in the original divorce decree.” But the guidance and supervision of an understanding father, profoundly beneficial as they would be for the son, now thirteen years of age [Davis v. Davis, Mo.App., 354 S.W.2d 526, 531; Fordyce v. Fordyce, supra, 242 S.W.2d at 314; Green v. Perr, Mo.App., 238 S.W.2d 924, 927], could never constitute an adequate and complete substitute for all that is implicit in, and flows from, the love and devotion of a dedicated mother. Thus it is that our cases uniformly recognize that, where neither parent is unfit, the best interests of a minor child will be served by an arrangement which will enable his association with both parents [Davis v. Davis, supra, 354 S. W.2d at 531 (6); Lewis v. Lewis, Mo.App., 301 S.W.2d 861, 863(5); Fago v. Fago, Mo.App., 250 S.W .2d 837, 842; Lambert v. Lambert, Mo.App., 222 S.W.2d 544, 548(d); Baer v. Baer, Mo.App., 51 S.W.2d 873, 879 (11)], and that our courts so severely condemn any conduct on the part of one parent which is calculated to, or has the effect of, instilling in the child fear, disrespect or hatred for the other parent that it frequently is said that such conduct may be sufficient to justify and require a change of custody [Chilcutt v. Baker, Mo.App., 384 S.W.2d 854, 860-861; S- v. G-, supra, 298 S.W.2d at 76-77(13); Luethans v. Luethans, Mo.App., 243 S.W.2d 801, 803; Rone v. Rone, Mo.App., 20 S.W.2d 545, 549; Kaplun v. Kaplun, Mo.App., 227 S.W. 894(2) ], regardless of whether or not the condemned result is intended by the offending parent. Fago v. Fago, supra, 250 S.W.2d at 841-842; R- v. E-, Mo.App., 364 S.W.2d 821, 828.

In the case at bar, the original decree declared that the mother was of “good moral character” and was the innocent and injured party, and there was no showing that she was in any respect unfit to associate with and have the custody of her son. Regardless of whether or not the father so purposed (a subject upon which the record leaves us with a definite opinion perhaps better left unrecorded), his conduct and that of the stepmother in the same home have pointed toward a complete estrangement between the son and his mother and an irreparable rupture of the parental-filial tie — a grossly unnatural and unjustifiable result not warranted by anything here disclosed and not tolerable at a bar of justice.

Furthermore, the father’s attitude and conduct with respect to the custodial provisions of the original decree, which would have deprived the mother of the son’s custody during the Summer of 1964 but for her resort to the extraordinary writ of habeas corpus, evidenced a lack of respect for constituted authority, not mitigated or excused by the fact that he subsequently recognized the decree upon the insistence of his counsel. Wise and discerning jurists have pointed out that interference with or deprivation of decretal rights of visitation or custody is a factor properly to be considered in determining the welfare of a child [S- v. G-, supra, 298 S.W. 2d at 76(11); Green v. Perr, supra, 238 S.W.2d at 928(4); Williams v. Williams, Mo.App., 211 S.W.2d 740, 742(5) ], “not for the purpose of punishing [the disrespectful or disobedient parent] — but rather for the purpose of measuring her [or his] mental attitude toward law and order,” for “[a] person with such little regard for constituted authority can hardly lay claim to being an ideal person to direct the training and upbringing of a young child.” Shepard v. Shepard, supra, 194 S.W.2d at 327; Foster v. Foster, Mo.App., 300 S.W.2d 857, 869, And other equally wise and discerning jurists have written that such interference with or deprivation of decretal rights constitutes a changed condition which may justify and require a modification. Rutstein v. Rutstein, Mo.App., 324 S.W.2d 760, 763(4); Wilson v. Wilson, Mo.App., 260 S.W.2d 770, 780(11); Green v. Perr, supra, 238 S.W.2d at 927(2); Olson v. Olson, Mo.App., 184 S.W.2d 768, 773(13). See Patterson v. Patterson, Mo.App., 375 S.W.2d 614, 621-622(6).

We agree with the father’s counsel that custody of a child never should be awarded or changed with any thought of meting -out punishment upon either parent [McKenzie v. McKenzie, Mo.App., 306 S.W. 2d 588, 591(4); Graves v. Wooden, supra, 291 S.W.2d at 669(3); Schumm v. Schumm, supra, 223 S,W.2d at 125(4)], but we cannot concur in his statement that “the inescapable conclusion” is that the trial court’s decree of modification was “intended to punish” the father. - On the contrary, we are satisfied that the capable and conscientious trial judge had in mind, as we certainly do, that the only rigid, inflexible and unyielding principle in custody cases -is that the welfare of the child is paramount and supreme [L- v. N-, supra, 326 S.W.2d at 755 (7); I- v. B-, Mo.App., 305 S.W.2d 713, 719(7) ] and that pressing problems of custody must be resolved not by applying academic rules or by mouthing pious platitudes but rather by determining, insofar as is humanly possible, what will best serve and promote the child’s welfare. C- v. B-, Mo.App., 358 S.W.2d 454, 459.

In discharging the unwelcome and unpleasant task thrust upon us in this case, we have been acutely conscious of the finite limitations imposed by human frailty and fallibility upon courts, counsel and parties alike, -and we have been inexpressibly burdened with the grave responsibility attendant upon discharge of our duty bearing upon the sacred relationship between parent and child and involving the future course of an innocent boy. Cognizant that no judicial decree could be entered whieh would not engender sorrow or bitterness in some interested party .[Abel v. Ingram, 223 Mo.App. 1087, 24 S.W.2d 1048, 1049] and that no earthly power could recapture for this unfortunate boy the blessings of which he has been deprived by the tragic failure of his parents’ marriage [Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458, 460; Ballew v. Ballew, Mo.App., 288 S.W.2d 24, 26], it may not be amiss to remind the parties, scant comfort though it affords to us, “that we are in no way responsible for the causes which have unhappily brought about the situation with which we are confronted.” In re Krauthoff, 191 Mo.App. 149, 152, 177 S.W. 1112, 1113.

In this category of cases, the court frequently is confronted with the necessity of making an exceedingly difficult choice as to which may be the lesser of two evils in respect to the child’s future [E- v. G—, supra, 317 S.W.2d at 468], and the evidence ofttimes does not enable the court to say with certainty that the best interests of the child will be served by any given disposition. C- v. B-, supra, 358 S.W.2d at 459-460. Although we are in no doubt but that the evidence abundantly justified changing the major custody from the father to the mother, we readily agree that additional details concerning the environment and surroundings -in California, into which the son is to be taken, would be desirable. However, we are not impressed by the complaints in the father’s brief concerning the lack of detail in certain evidentiary areas, e. g., as to the school facilities in California, the son’s “athletic program” there, and whether he “would have the companionship of other children.” For we apprehend that adequate public school facilities are available in the metropolitan area where the son will reside with his mother and stepfather; that boys engage in baseball, basketball, football, tennis, swimming, and other sports in California as they do in Missouri; and that, even though the son may be deprived of “the companionship” of the stepbrother, now sixteen years of age, he will have in California not only the companionship of schoolmates and neighborhood playmates of his own age but also the precious opportunity (presently denied to him) freely to associate with one of his older sisters, daughter B, to experience the warmth of her companionship and to know the depth of her love for him. So we think that justice should not be denied and that the right of the matter should be no longer delayed, if there was sufficient evidence in the record, as we have concluded that there was, on which the perspicacious trial judge reasonably might have reached an informed conclusion as to what would further the best interests of the son.

The cases are legion in which it has been declared that, although not binding upon the appellate court, the findings of the trial court as to custody of a minor child are not to be lightly regarded or easily disturbed, but that the appellate court should defer to such findings unless it is firmly convinced that the child’s welfare requires some other disposition. Yount v. Yount, Mo.App., 366 S.W.2d 744, 748(4); Davis v. Davis, supra, 354 S.W.2d at 532 (7); Tootle v. Tootle, Mo.App., 329 S.W. 2d 218, 224(9); Ragan v. Ragan, Mo.App., 315 S.W.2d 142, 147(3); I- v. B-, supra, 305 S.W.2d at 720(8). That principle becomes applicable in the instant case, where the trial judge had an opportunity to see and appraise the parties and their witnesses, and where a meticulous search and agonizing consideration of the transcript leave us unable to say that the son’s welfare would be best served by some disposition other than that decreed nisi. Of course, the circuit court retains continuing jurisdiction, notwithstanding the award of major custody to the mother, to modify the custodial provisions of the decree [Davis v. Davis, supra, 354 S.W.2d at 532, and cases there cited] upon sufficiently compelling proof of changed conditions prior to the son’s majority or the death of one parent, whichever first occurs. Hayes v. Hayes, 363 Mo. 583, 589, 252 S.W.2d 323, 327(5); In re Wakefield, Mo.App., 274 S.W.2d 345, 347(5); Schumm v. Schumm, supra, 223 S.W.2d at 125(1).

The judgment is, in all respects, affirmed.

RUARK, P. J., and HOGAN, J., concur.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, Appellant, v. Charles Bussell HALL, Appellee.
    Court of Appeals of Kentucky.
    Sept. 24, 1965.
    Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., Carl C. Ousley, Jr., Commonwealth’s Asst. Atty. Gen., Louisville, for appellant.
    Robert Delahanty, Delahanty & Terry, Louisville, for appellee.
   PALMORE, Judge.

In Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the Supreme Court held unconstitutional a California law making it a crime to be a drug addict. Pursuant to that decision the Jefferson Circuit Court held that KRS 218.250 is likewise invalid and dismissed the -indictment in this case. The Commonwealth appeals. KRS 21.140(3).

Omitting subsection (2), which authorizes probation, KRS 218.250 reads as follows:

“(1) Any person who habitually uses narcotic drugs as defined in KRS 218.010 shall be imprisoned in the workhouse or county jail for twelve months.
* * * * * *
“(3) Any peace officer who apprehends a person under the influence of a narcotic drug, or who hears a person state that he is addicted to the use of narcotics, shall immediately arrest such person and take him before the proper court to be dealt with according to law.” (Emphasis added.)

Though it did not categorically say so, the majority opinion in Robinson v. State of California rather clearly implied that if the courts of California had construed the statute in question as “operative only upon proof of the actual use of narcotics within the State’s jurisdiction” it would not have offended the Constitution. Cf. 370 U.S. at p. 665, 82 S.Ct. 1417 at p. 1419, 8 L.Ed.2d 758 at p. 761 et seq. In State ex rel. Blouin v. Walker, 244 La. 699, 154 So.2d 368 (1963), construing statutory language not substantially dissimilar from ours, the .Supreme Court of Louisiana availed itself of that distinction. In State v. Margo, 40 N.J. 188, 191 A.2d 43, a statute making it an offense to use or be “under the influence” of narcotics for a purpose other than authorized treatment was distinguished from the California provision invalidated in the Robinson case and was upheld. See also Browne v. State, 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169 (1964). As we understand it, however, KRS 218.250 already has been construed as making the mere “status'” of narcotics addiction a criminal offense. See Andrews v. Commonwealth, 312 Ky. 677, 229 S.W.2d 311 (1950). Construing the statute literally, a person addicted to narcotics commits a crime the moment he sets foot within the state, even if he comes here for hospitalization and treatment. So does a person who becomes addicted innocently through medical treatment. Presumably, the addict could be prosecuted and jailed an unlimited number of times for the same addiction. The Robinson decision leaves no alternative but to declare KRS 218.250 invalid. The appropriate method of amendment is by direct legislative action.

“The broad power of a State to regulate the narcotic drugs traffic within its borders is not here in issue. More than forty years ago, in Whipple v. Martinson, 256 U.S. 41, 41 S.Ct. 425, 65 L.Ed. 819, this Court explicitly recognized the validity of that power: ‘There can be no question of the authority of the state in the exercise of its police power to regulate the administration, sale, prescription and use of dangerous and habit-forming drugs * * *. The right to exercise this power is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.’ 256 U.S. at 45, 41 S.Ct. at 426.

“Such regulation, it can be assumed, could take a variety of valid forms. A State might impose criminal sanctions, for example, against the unauthorized manufacture., prescription, sale, purchase, or possession of narcotics within its borders. In the interest of discouraging the violation of such laws, or in the interest of the general health or welfare of its inhabitants, a State might establish a program of compulsory treatment for those addicted to narcotics. Such a program of treatment might require periods of involuntary confinement. And penal sanctions might be imposed for failure to comply with established compulsory treatment procedures. Cf. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. Or a State might choose to attack the evils of narcotics traffic on broader fronts also — through public health education, for example, or by efforts to ameliorate the economic and social conditions under which those evils might be thought to flourish. In short, the range of valid choice which a State might make in this area is undoubtedly a wide one, and the wisdom of any particular choice within the allowable spectrum is not for us to decide.” Robinson v. State of California, 370 U.S. 660, at pp. 664-665, 82 S.Ct. 1417 at pp. 1419-1420, 8 L.Ed.2d 758 at pp. 761-762 (footnotes omitted).

The law is so certified.

      . Under the “cruel and inhuman punishments” proscription of the 8th Amendment, made applicable to the states by the due process clause of the 14th Amendment.


author: CULLEN, Commissioner.

text:
    Taylor EVERIDGE, Appellant, v. NICKELLS COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 24, 1965.

      Harold G. Wells, Hazard, for appellant.
    Richard D. Cooper, Hazard, for appellees.
   CULLEN, Commissioner.

The Workmen’s Compensation Board awarded compensation to Taylor Everidge on the basis of 25 percent permanent disability. Everidge appealed to the circuit court, claiming that he should have had an award for total permanent disability. The circuit court entered judgment affirming the order of the Board and Everidge has appealed to this Court from that judgment.

Everidge, a coal miner, received an injury to his leg which resulted in a limitation of the flexion of one knee. The medical testimony was that he could not perform such of the duties of a miner as required squatting. The lay testimony was that in the particular mine in which Eve-ridge had been working the coal seam was low, so that squatting was necessary to work the coal. The testimony, both lay and medical, as to Everidge’s disability was that he could not work “in a mine with low coal” or “in that type of coal.”

Everidge’s contention seems to be that his occupational classification is that of a low-coal miner, and since he is disabled to work in that classification he is totally disabled, under the rule stated in such cases as E. & L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240, 84 A.L.R.2d 1102, and Leep v. Kentucky State Police, Ky., 366 S.W.2d 729. It is our opinion that Everidge is not entitled to claim so narrow a classification. His “general occupational classification,” which is the term used in the Hayes and Leep cases, is that of a coal miner. There is no evidence in this record that there are not ample work opportunities for Everidge in mines with high coal. Cf. McDonald v. Goodwin Brothers, Ky., 379 S.W.2d 54.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Beckham GARLAND et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 24, 1965.

      Robert Matthews, Atty. Gen., Wm. A. Lamk'in, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellant.
    Charles G. Cole, Jr., Barbourville, for appellees.
   DAVIS, Commissioner.

The appellant Department of Highways seeks to reverse the judgment for $14,000 rendered in behalf of appellees in this condemnation action. To this end four points are presented by appellant: (1) Appellee Beckham Garland, owner of the land, was one of three jury commissioners who selected the names for jury service for the term at which the trial occurred; (2) prejudicial error was committed by the court’s failure to admit photographs of the improvements which had been situated on the condemned property; (3) the trial court erred in refusing to strike certain evidence adduced by appellees; and (4) the trial court erred in refusing to permit the jury to view the premises.

No brief has been filed for appellees. Pursuant to RCA 1.260(c) (2) we reverse the judgment as appellant’s brief reasonably appears to sustain such action. We need not detail the facts, except to observe that the taking in this case was of a lot, approximately 85' x 310', upon which were situated! a dwelling and some appurtenant outbuildings. The taking encompassed the entire lot, and at the time of the trial the improvements had been removed from the original site, but relocated just across the road on other property owned by appellee Beckham Garland. Construction work had progressed at the time of the trial to the extent that some grading and filling had occurred on the lot, but the boundary lines of it were discernible.

The Department and the landowners had appealed to the circuit court from the county court in February, 1963. This case was tried at the January Term, 1964, of the Knox Circuit Court. In January, 1964, appellee Beckham Garland was appointed as one of three jury commissioners for the Knox Circuit Court for 1964. KRS 29.055. The entire array of jurors at the January, 1964, term of the court had been selected by the jury commissioners of which appellee Beckham Garland was a member. Appellant made timely challenge to this jury array before the introduction of any evidence or final acceptance of the jury. The trial court was of the view that since appellee Garland was only one of three commissioners, and since the panel had stated on voir dire examination that they knew nothing of the case and had not been approached about it by anyone, there was no showing of any prejudice; consequently, the trial court denied appellant’s motion for a continuance of the case for trial before another panel selected without appellee Garland’s participation as a jury commissioner. As an additional reason for his ruling, the trial court noted that any other ruling would preclude a trial of the case during all of 1964.

It is our view that the trial court committted reversible error in so ruling. We accept, without question, the premise that appellee Garland did not make any sinister or improper use of his position as jury commissioner; nonetheless, 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. “I wished my wife to be not so much as suspected,” said Caesar, when asked why he had parted from her. (Plutarch, Lives, Caesar, .p. 860.) The same principle is controlling here,

It Is noteworthy that one of the qualifications for a jury commissioner is that be be one “ * * * having no action in the court requiring the intervention of a jury * * KRS 29.055(1). We are not to be understood as saying that jury commissioner Garland was so disqualified (because he did have this very action pending, requiring jury intervention) as to vitiate every jury trial in Knox Circuit Court during 1964 — but we do hold that he was so disqualified as to vitiate a trial of his own case during 1964 before jurors drawn from the list he had helped select. No matter how honestly appellee Garland performed his functions as jury commissioner, the hard fact remains that he did have a hand in selecting the potential personnel of his own jury — this makes suspect, ipso facto, the impartiality of the jury in a case involving rights of one of the commissioners who helped select the jury. The subtle factors of personal friendship, knowledge of the propensities and philosophies of potential jurors, and “having a hand” in their selection, simply forbid approval of the situation at hand. See Sullivan v. Commonwealth, 260 Ky. 471, 86 S.W.2d 135, 136, in which it was written, perhaps as obiter dictum, but soundly: “Of course, such juries [selected by a jury commissioner having an action pending requiring jury intervention] could not sit in the actions against the particular jury commissioner, but as to other proceedings, we think some prejudice or fraud must be shown before we would be at liberty to reverse a case for this reason.”

Since there may be another trial of this cause, we advert to the other claimed errors. We hold that it was error to refuse admission of photographs proffered by appellant. These pictures purported to depict the residence and some of the other buildings on the lot prior to the time of taking. For the appellant it was testified that the pictures fairly represented the scene as of the taking date; there was no contrary showing. Under these circumstances, the photographs of the property taken should have been received. Commonwealth, Dept. of Highways v. Arnett, Ky., 390 S.W.2d 187. Our decisions have noted that the matter of admission- of such photographs lies within the sound discretion of the trial court, but this is not to say that failure to admit such pictures when a proper foundation is laid may not be reversible error. Cf. Robinette v. Commonwealth, Dept. of Highways, Ky., 380 S.W.2d 78; W. G. Duncan Coal Co. v. Jones, Ky., 254 S.W.2d 720, 723.

What has been said fs equally applicable to the appellant’s tendered photograph of the residence located on a lot deemed as a comparable sale. In the absence of evidence rebutting the accuracy of the photograph of the comparable property, there is no sound reason that the photograph should be excluded.

It was not error for the trial court to refuse appellant’s motion to strike the evidence of certain of appellees’ witnesses. The appellant contends that the evidence of the witnesses should have been stricken because on cross-examination the witnesses admitted that they had put prices on the various items, such as the residence, the other outbuildings, and the land, which they totaled to arrive at their evaluation. However, a fair reading of the evidence does not warrant the assertion, since the witnesses, in essence, merely stated that they had considered these various things in reaching their appraisals. We do not consider this to be objectionable, nor is it the type of itemizing or placing of price tags as is condemned in Commonwealth, Dept. of Highways v. Wireman, Ky., 388 S.W.2d 606.

It was error for the trial court to refuse to permit the jury to view the premises. The mere fact that the residence had been removed (just across the highway) was not sufficient to deprive appellant of the right to a jury view, because there was no showing of any substantial change in the conditio» of the house. See Commonwealth, Dept. of Highways v. Hackworth, Ky., 383 S.W.2d 372. If the situation is substantially the same at the time of another trial as it was at the time of the trial on appeal here, the trial court will permit the jury to view the original- lot, and the residence removed therefrom.

The judgment is reversed for proceedings consistent with the opinion.

HILL, J., not sitting.


text:
    John William MORGAN, Appellant, v. JOHN DEERE COMPANY OF INDIANAPOLIS, Inc., Appellee.
    Court of Appeals of Kentucky.
    Sept. 24, 1965.

      L. M. Ackman, Williamstown, for appellant.
    James E. Thompson, Shackelford, Bur-nam & Thompson, Richmond, for appellee.
   CULLEN, Commissioner.

John William Morgan purchased a John Deere tractor, with several attachments, from S. & W. Industrial Sales of Lexington, Kentucky. For a portion of the purchase price he executed a note and conditional sales contract which were assigned to John Deere Company of Indianapolis, Indiana. Morgan defaulted in his payments and John Deere Company brought action to recover on the note and contract. By way of answer and counterclaim Morgan sought to be relieved of liability, and to recover damages, on the ground that the tractor was structurally defective and was totally incapable of performing the work it was designed and warranted to perform. The trial court entered summary judgment awarding full recovery to John Deere Company and denying any relief to Morgan. He has appealed from that judgment.

John Deere Company is a wholesale distributor of John Deere products and was not the manufacturer of the machinery sold to Morgan. It was not a party to the contract of sale and S. & W. Industrial Sales was not its agent.

The contract of sale contained a waiver of defenses in the following language:

“I will settle all claims of any kind against Seller directly with Seller and if Seller assigns this note, I will not use any such claim as a defense, setoff or counterclaim against any effort by the holder of this note to collect the amount due on this note or to repossess the Goods.”

In Walter J. Hieb Sand & Gravel, Inc. v. Universal C.I.T. Credit Corp., Ky., 332 S.W.2d 619, an almost identical waiver clause was held to be valid and binding so as to preclude the buyer of trucks from asserting a breach of warranty as a defense in an action by the assignee of a note and conditional sales contract executed to the seller for a portion of the purchase price. The Hieb case is controlling here, and the circuit court properly relied upon it in denying relief to Morgan.

Morgan contends that the case was not a proper one for summary judgment. However, on the key point in the case, namely, the waiver clause, there was no genuine issue of a material fact, so-we think summary judgment was proper.

The judgment is affirmed.


author: STEWART, Judge.

text:
    William C. TYLER, Jr., Appellant, v. Susanne S. BRYANT, Appellee.
    Court of Appeals of Kentucky.
    Sept. 24, 1965.

      Harry L. Hargadon, Hargadon, Harga-don, Lenihan & Harbolt, Louisville, for appellant.
    Randolph A. Brown, Brown, Ardery,.Todd & Dudley, Louisville, for appellee.
   STEWART, Judge.

This appeal is from a judgment which awarded Susanne S. Bryant, plaintiff below, $3000 for attorney’s fee against her ex-husband, William C. Tyler, Jr., for services rendered in the ex-wife’s behalf by Randolph A. Brown. It was ordered that this amount be taxed as court costs and that execution issue forthwith thereon in her favor.

At the outset the position is taken that this matter is not properly before this Court because the record shows Randolph A. Brown, the attorney, is not a party to this appeal. We conclude this contention has merit.

This Court has uniformly held that any question concerning the fee of counsel, directed to be paid pursuant to KRS 453.120, cannot be reviewed by it unless the attorney to whom the specific allowance is granted is made a party to the appeal. See McDowell v. McDowell, Ky., 378 S.W.2d 814; Wright v. Thomas, 306 Ky. 763, 209 S.W.2d 315; Flood v. Flood, 302 Ky. 167, 194 S.W.2d 166.

In the instant case no such fee was awarded to the attorney by name. As indicated, the fee was allowed to the wife and ordered to be included as a court-cost item. Cf. Maher v. Maher, 295 Ky. 263, 174 S.W.2d 289.

We conclude the attorney should be made a party in either instance. Although the fee for the services performed was not adjudged to be paid directly to him; nevertheless, the award was made for his benefit, with the result that he is the real party in interest as regards the allowance.

We therefore are adopting the rule in all future appeals to this Court wherein the fee is made to the wife instead of to the attorney, the latter will be deemed a necessary party.

Assuming, arguendo, the attorney-fee question was properly before this Court, we still cannot say it is an excessive allowance. No evidence was introduced to refute the four affidavits filed in support of appellee’s motion that her attorney had earned and should be paid a fee of $3952. On the basis of this proof the judgment granted a fee of $3000. There is no counter statement before us to indicate in any wise what sum would be a reasonable award. The only argument advanced is the assertion that “the $3000 fee allowance is excessive and should therefore be reduced.”

Wherefore, the judgment is affirmed.


text:
    Edith PORTER, Appellant, v. Leonard S. PORTER, Appellee.
    Court of Appeals of Kentucky.
    Sept. 24, 1965.
    David O. Welch, Ashland, for appellant.
    A. W. Mann, John C. Vigor, Ashland, for appellee.
   FREDERICK M. WARREN, Special Commissioner.

This is an appeal from the Boyd Circuit Court, and the controversy arises out of the marital difficulties of the appellant, Edith Porter, and the appellee, Leonard S. Porter.

Edith and Leonard S. Porter were married April 14, 1917. On November 8, 1961, Edith filed a complaint seeking a divorce, and asking for alimony; on December 1, 1961, Leonard filed his answer and counterclaim in which he sought the divorce; and thereafter Edith filed an amended complaint in which she requested lump-sum alimony. On March 1, 1963, the chancellor entered his findings of fact and judgment; such judgment was subsequently amended or modified, the ultimate result of which was to divorce the parties from the bonds of matrimony; and award the wife a certain home valued at $21,000, $10,000 in cash, $1,000 burial fund, and $250 per month for the remainder of her life (subject in the event of her remarriage, to termination at the end of 124 months or the date of such remarriage, whichever is later). The chancellor established a “commuted value” (based on Edith’s life expectancy) of $34,372 upon the total monthly payments and gave the defendant (appellee) the option to pay such sum in full at such commuted value or in monthly installments as aforesaid. Hereafter, for brevity, we shall refer to this award in the aggregate of $66,372.

The appellant (plaintiff below) has appealed from such final order, and has presented to this court three separate matters for review:

(1) The divorce itself, appellant contending she was entitled thereto.

(2) The amount and manner of paying alimony.

(3) The allowance made to appellant’s attorney for his services.

We will dispose of item (1) and (3) first.

This court has repeatedly and consistently declined to disturb the chancellor’s findings or rulings respecting a judgment for divorce, in view of the long-existing statutory prohibition thereto. In the most recent case in which we had occasion to pass upon this question, DeSimone v. DeSimone, Ky., 388 S.W.2d 591, this court said:

“We need not consider the merits of appellant’s argument that the chancellor erred in granting appellee a divorce since we have no jurisdiction over that portion of a judgment granting a divorce. KRS 21.060(1) (b); Hinton v. Hinton, Ky., 377 S.W.2d 888.”

In accordance with such decision, historically followed by this court, so much of the appeal as concerns the divorce decree is dismissed.

Respecting the allowance made to appellant’s attorney, in the DeSimone case, supra, this court held also that “Since appellant’s attorney was not made a party to this appeal the questioned adequacy of the amount allowed him as a fee is not before us. McDowell v. McDowell, Ky., 378 S.W. 2d 814.” See also Tyler v. Bryant, Ky., 394 S.W.2d 454, decided September 24, 1965.

We cannot find that appellant’s attorney has been made a party to this appeal, and under such circumstances, and the authorities cited, this is not a matter for review by this court.

The only other question remaining, then, is that of alimony, the amount, if any, to be paid, and how it should be paid.

That there should be some fair property settlement or award of alimony appears to be one of the few matters in agreement — but there is disagreement as to the amount thereof and manner of payment. The ap-pellee, without acknowledging liability therefor and without waiving any of his rights, at the very outset voluntarily offered his wife a home and $30,000 cash; the master commissioner who heard the proof recommended a sum equal to 45% of the jointly accumulated estate which he estimated at $155,000; the chancellor awarded $66,372 of an estate which he found to total $141,750; and the appellee seems content with the chancellor’s order, at least he has not appealed therefrom.

Edith and Leonard Porter had been married for a considerable period of time when this action was commenced — some 44 years, or for i/z of their entire lifetime. They were then advanced in years, and of course are now more so; and their children are grown. Marital problems are difficult and unfortunate at any time, but more difficult and more unfortunate, it seems to the court, at the age of the parties hereto.

As so often occurs in this type of contested action, the voluminous testimony is conflicting and contradictory — but of this much we are reasonably assured by the record — this couple started life together with no material possessions, with nothing but confidence in themselves and each other; they struggled and worked diligently together; they raised a family of two children, now mature and both married; and during their joint enterprise in life acquired some degree of affluence. But as frequently happens in our hectic society, in their struggle for existence, and then their desire to acquire and accumulate more and more, perhaps only to assure themselves of independence and tranquility in the twilight of life, differences arose, and for some years the -marital relations have been less than desirable to both of them.

If they cannot live together peaceably and amicably, they should enjoy their remaining .years separately, but independently of each other and comfortably, if the-ir jointly acquired estate will permit — and it will.

There is disagreement respecting the size of the estate — the appellant, the appellee, the master commissioner, and the chancellor each arriving at a different amount ranging from the low of $141,750 to a high of $176,569.97. We do not deem it necessary to decide the value of this estate, since, regardless of the correct amount, as between such limits, we consider the chancellor’s total allowance of $66,372 as adequate, fairly equitable, and well within the 1/3 measure or rule of thumb suggested by this court in numerous other cases. At the lower level of the estimated value of the estate, the chancellor’s award represents slightly in excess of 45%, and at the maximum value the award amounts to something better than 37%. Therefore we are unwilling to change the aggregate amount of the chancellor’s award fo appellant. However, in accordance with the principle enunciated in Carlton v. Carlton, Ky., 286 S.W.2d 919, we are of the opinion that such aggregate amount should have been granted as a lump-sum award. In so far as the judgment is in conflict herewith it is reversed.

In accounting for the lump-sum award of $66,372, the appellee shall receive credit for $21,000 for the home (it appearing there is no disagreement as to such valuation); a credit for $11,000, the cash award and burial fund provided for in the judgment aforesaid -(assuming such sums have already been paid)-; be charged with interest at the rate of 4% per annum on $34,372 (the commuted value) from date of entry of the chancellor’s judgment until paid; and be given credit on such last-mentioned item for each $250 monthly payment made. The interest charged, and the monthly payments credited shall be computed on the so-called direct reduction loan plan.

Judgment should provide that the balance owing on the “commuted value” be paid within 4 months of date of remand, with a lien against appellee’s real estate to secure the payment thereof.

Wherefore we recommend that the cause be affirmed in part and reversed in part with directions to modify the judgment in accordance herewith.

The opinion is approved and the cause affirmed in part and reversed in part with directions to modify the judgment in accordance therewith.


author: CLAY, Commissioner.

text:
    Howard T. HOLMES et al., Petitioners, v. Cass R. WALDEN, Judge, et al., Respondents.
    Court of Appeals of Kentucky.
    Sept. 28, 1965.

      Marion Vance, Glasgow, for petitioners.
    Uhel Barrickman, Richardson, Barrick-man & Dickinson, Shelley Riherd, County Atty., Barren County, Glasgow, for respondents.
   CLAY, Commissioner.

This is an original proceeding in this Court seeking prohibition and mandamus to suspend the enforcement of an injunction judgment entered by the Judge of the Barren Circuit Court. It was heard with a motion to stay proceedings under CR 65.07 and another prohibition proceeding filed by the Barren County Fiscal Court, and all involve the same controversy. Orders were entered in these three proceedings on September 15, 1965, and this opinion will document the reasons for our rulings.

On June 14, 1965, as provided in KRS 160.470(1), the Barren County Board of Education (hereafter referred to as “Board”) submitted to the Barren County Fiscal Court (hereafter referred to as “Court”) a proposed general budget for the fiscal year 1965-66 and requested the latter, as the proper levying authority, to impose a tax for general school purposes at -the rate of $1.50 per $100 valuation of property subject to local taxation. Pursuant to such request, on June 29, the Court levied such a tax.

Shortly thereafter the Board apparently submitted the proposed budget to the State Board of Education for approval, as required by KRS 160.470(1). On July 13, pursuant to KRS 157.380(1), the Department of Revenue certified to the Superintendent of Public Instruction the equalized value of property in the tax district subject to taxation for school purposes. The Superintendent certified to the Board that the tax rate necessary to produce the required “local tax effort” to participate in the “public school foundation program fund” (hereafter referred to as “Foundation Program”) would be $1.57 per $100 of assessed valuation. This in effect was disapproval of the budget and required an amended tax levy under KRS 160.470(1).

On August 2 the Board submitted to the Court an amended budget and requested a tax levy at the $1.57 rate. The Court declined to fix this amended rate and thus precipitated the principal suit by the Board against -the Court to compel compliance. The circuit court granted the relief prayed by the Board and ordered the Court to levy and impose a tax at the rate of $1.57 for general school purposes, and prohibited the clerk of the Court from delivering to the sheriff of Barren County any tax bills not based on such rate.

Under the statutes referred to above, the method prescribed for the preparation and approval of the school budget and the levying of school taxes appears somewhat awkward. In certain statutes July 1 is fixed as the cutoff date when certain steps should 'be taken, but those same statutes specifically provide that failure to meet that deadline and other deadlines shall not affect the validity of subsequent proceedings. See KRS 157.380, KRS 160.460(2), and KRS 160.470(1). The procedure is further complicated by the fact that the statutes relating to the Foundation Program (KRS 157.310 through KRS 157.380) are not adequately correlated with the school district financing program dealt with in KRS 160.460 and KRS 160.470.

However that may be, petitioners and the Board do not directly attack the procedures above outlined as violating the statutory method prescribed and normally followed. Their principal contention is that KRS 160.475(1) fixes a maximum school purpose tax rate of $1.50 (annually on each $100 of property subject to local taxation), and the Court can levy no higher rate. That this statute, considered alone, fixes such a maximum rate there can be no -question. Two other statutes, however, clearly qualify the limitation of KRS 160.475(1).

KRS 157.380(4) provides:

“Any district’s levy shall be at such rate as is necessary to provide the required local tax effort.”

The “required local tax effort” is the amount of money from local revenue sources required to be provided by a school district in order that it may share in the distribution of funds from the Foundation Program <KRS 157.320(11); KRS 157.-350). While it might be suggested that participation in the Foundation Program is optional, it is clear that any school district, otherwise qualified under KRS 157.-350, has the right to qualify by requiring a sufficient tax levy.

Perhaps a serious -problem of statutory construction would be presented if we considered only KRS 160.475(1), fixing the maximum $1.50 rate, and KRS -157.380(4), requiring a tax rate sufficient to provide local funds necessary to participate in the Foundation Program. It is apparent, however, -that these two statutes are neither inconsistent nor ambiguous. They simply specify two possible maximum rates. Clearly the $1.50 rate would be effective as a maximum if the required local tax effort under the Foundation Program did not necessitate a higher rate. On the other hand, nothing in either of these statutes (or any other relevant statutes) would even suggest that the local tax effort rate could go up to $1.50 and no higher. If this were true, school districts such as the one in the present case, which must have additional income from local tax sources to comply with the Foundation Program, would be automatically knocked out of it (a consequence no school district -could afford). Inevitably these two statutes must be given effect as complementary and not mutually or unilaterally restrictive.

That these statutes serve different purposes and fix two different maximum tax rate limitations was settled by the legislature itself when it enacted KRS 157.440. We quote the pertinent part of that statute:

“In addition to the local tax effort required by KRS 157.380, for participation in the equalization account of the public school foundation program fund, such districts or any other district may exceed this levy or the maximum levy provided by KRS 160.475 provided that, upon request of the board, the tax levying authority of the district shall adopt an ordinance or resolution submitting to the qualified voters of the district, in the manner of submitting and voting as prescribed in subsection (1) of KRS 160.477, the question as to whether a rate of more than one dollar and' fifty cents or the required local tax effort, whichever rate is higher, shall be levied.” (Emphasis ours)

It is very plain the legislature in this statute has taken cognizance of the two entirely separate and distinct tax rate limitations of the statutes we have just discussed, KRS 157.380 and KRS 160.475. If the latter statute (fixing the $1.50 rate) were controlling, there could be no conceivable reason for the reference to KRS 157.380. Yet the legislature specifically provided that the maximum levy under either statute (thereby recognizing two different máximums) may be exceeded only by a vote of the people. To remove all doubt that one maximum may be higher than the other, the question to be submitted to the voters is whether an additional tax shall be added to that realized by the $1.50 rate or the required tax effort, “whichever rate is higher”. (Our emphasis)

There scarcely could be a plainer recognition that the required local tax effort may make necessary a rate in excess of $1.50. Since, as we have heretofore noted, a district is required to request and have levied a tax at such a rate as will qualify it to participate in the Foundation Program, and that rate has been properly certified to be $1.57, it is the maximum rate which the law allows. Only if the Board sought to exceed this rate would a vote of the people be required by KRS 157.440. Consequently the circuit court properly construed the law and properly required the Court to perform its duties.

The petitioners in this proceeding and the Court in the other proceedings have asserted several additional grounds why the judgment under attack is not only erroneous but void. All of these grounds, however, are anchored in the argument that since KRS 160.475 fixes a maximum tax limitation of $1.50, the circuit judge had no right, power or authority to compel the Court to levy a tax in excess of this rate without a vote of the people. Of course when this premise falls, all of petitioners’ contentions fall with it. It is our opinion that the circuit court had jurisdiction of the subject matter and the parties; that it had authority to enter the judgment complained of; that its construction of the statutory law was correct; and that petitioners have been deprived of no rights, constitutional or otherwise, by the judgment.

We herewith confirm our Order of September 15, 1965, denying relief.


text:
    The OWENSBORO NATIONAL BANK, Appellant, v. DEPARTMENT OF REVENUE of the Commonwealth of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 24, 1965.

      Ridley M. Sandidge (Sandidge, Hol-brook, Craig & Hager), Owensboro, for appellant.
    Robert Matthews, Atty. Gen., Wm. S. Riley,. Asst. Atty. Gen., Larry A. Carver, Robert J. Reickhoff, Dept, of Revenue, Frankfort, Henry M. Griffin, Owensboro, for appellee.
   DAVIS, Commissioner.

The appellant bank challenges the legality of the formula used in evaluating the bank’s stock for ad valorem tax purposes. KRS 136.280(2). The assessment involved is for the tax year 1963, so that all matters arose and were adjudicated below prior to our decision in Russman v. Luckett, Ky., 391 S.W.2d 694.

Fundamentally, two challenges of the evaluation process were made by appellant: (1) It was not appropriate for the assessor to compute the aggregate value of the bank’s assets by including the 100% cash value of its real estate among the gross assets, followed by adjustment of the gross value of all assets by subtraction of the lower assessed value of the real estate, and (2) the value of the shares (after deducting the 100% value of the real estate) should have been equalized with all tangible property in Daviess County by using only 35% of its true value. The trial court determined these points adversely to appellant, hence this appeal.

Determination of the issues requires construction of KRS 136.270, 136.280, and certain other related statutory provisions.

KRS 136.270(1) imposes an “annual tax of fifty cents on each one hundred dollars of their fair cash value” on the shares of stock of state and national banks doing business in Kentucky. The statute requires that the tax shall be paid by the bank “on behalf of the owners of the shares of stock.” Other subsections of KRS 136.270 provide for local taxes on such stock at a rate of twenty cents for the county and city, respectively, and at a rate of forty cents for the school district in which the bank is located. Before us is the levy as respects the state and county taxes, or an aggregate of seventy cents per hundred dollars of evaluation. It has been adjudicated, and the parties recognize, that the tax is one upon the stockholders, not on the bank. Board of Supervisors of City of Frankfort v. State National Bank of Frankfort, 300 Ky. 620, 189 S.W.2d 942.

KRS 136.280(1) requires each bank to make an annual- report to the Department of Revenue and to the assessing officer of the county, city or taxing district in which it is located. The statute enumerates the details of information required to be furnished in the report- Among the matters to be reported is the value of all tangible property located in this state.

KRS 136.280(2) provides that the assessing officer- of the county, city or taxing district in which the bank is situated shall assess its shares for taxation for state, county, city and taxing district purposes. This section further provides: “Each bank and trust company may have deducted from the total valuation placed on its shares the assessed value of its tangible property in this state.”

KRS 136.280(3) requires the bank to list its tangible property with the assessing officer, who is then to “make out and return the assessment to the proper authorities of the county and city” in- the manner and at the time provided for the returns of assessments for personal property therein.

KRS 136.280(4) provides:

“The equalization, collection, penalties and laws relating thereto provided for other personal property in the county, city or taxing district shall apply to the collection of the taxes provided' for in this section. Any county, city or taxing district may collect such taxes by suit.!’

The appellant insists that the rationale of Luckett v. Tennessee Gas Transmission Co., Ky., 331 S.W.2d 879, controls this case and impels, a result contrary to that reached below. We are unable to accept this contention. In Luckett it was held that for purposes of a franchise tax, on the corporation — as opposed to an ad valorem tax on the bank stock in this case — the 100% value of tangible property must be deducted from the 100% value of the al-locable capital stock. The true basis for that opinion rests in the fact that use of the “assessed” value (less than 100% cash value) for the tangible property, when subtracting the tangible value from the al-locable stock value, resulted in imposing more than 100% value on the allocable stock.

But the reasons for the Luckett decision are not present in the case at bar. Here the tax is not on the bank, but on the stockholders. We think there may be no doubt that the legislature could have imposed a tax on the bank stock at its fair cash value, without any provision for deducting anything for the value of the bank’s tangible property. Indeed, the tax as imposed by KRS 136.270 is a tax on the “fair cash value” of the shares of stock. The assessing officer is directed to assess the shares of the bank, and, we think as a matter of grace only, it is provided that the “assessed” value of the tangible property of the bank may be deducted from the total valuation placed on all the shares.

See Board of Sup’rs of City of Frankfort v. State National Bank of Frankfort, 300 Ky. 620, 189 S.W.2d 942, for a full discussion of the factors to be considered in determining the fair cash value of bank stock under KRS 136.270(1). It is to be observed that the determination of the fair cash value in the present case was based upon a formula, in which various factors were considered. But as is pointed out in the State National Bank of Frankfort opinion, just mentioned, it is appropriate to determine the fair cash value of the bank stock on actual sales of the stock, coupled with considerations of other elements entering into fair market value of the shares. In the cited case,, the “book” value, according to the assessing officer, was $228.62 per share, but the court found that the fair cash value was only $120 per share. It is apparent, therefore, that the fair cash value of bank stock is not controlled by mere addition of the value of the bank’s assets — whether they be the 100% cash value of tangible property, or various other assets, including good will, et cetera.

Thus, we return to consider the meaning of KRS 136.280(2) in its employment of the language: “Each bank and each trust company may have deducted from the total valuation placed on its shares the assessed value of its tangible property in this state.” Under long usage in Kentucky “assessed value” has come to have a meaning substantially different from “fair cash value.” Russman v. Luckett, Ky., 391 S.W.2d 694. Since it is our view that the legislature need not have provided for any deduction from the “fair cash value” of the bank stock, we have little difficulty in concluding that the shareholders (and the bank in their behalf) are without basis for complaint merely because the largess of the legislature is less than it might have been. Therefore, we conclude that the trial court correctly determined that appellant had no right to have the 100% cash value of its tangible- property deducted from the value of the shares.

Our conclusion is strongly buttressed when we look to the facts as stipulated in the record. It is shown that the appellant bank’s stock is comprised of 50,000 shares; there were nine sales of the stock during the pertinent year, in which 264% shares of the stock were transferred. The sales ranged from a high of $53 to a low of $48 per share. The “weighted” average price as shown on the report form was at $51.85 per share. However, the ultimate value at which the stock was assessed, and upon which the tax was computed, was at a rate slightly in excess of $46.50 per share. The appellant does not contend — a.:d obviously it could not — that the assessment is at a sum greater than the fair cash value of the stock. There is no challenge made here of the propriety of using the formula, and we express no opinion as to its legality. We are convinced, however, that under the showing in this record there is no basis upon which appellant may reasonably assert that the assessment exceeds the fair cash value of the stock.

There remains for discussion and resolution the question whether the ultimate value of the shares of stock must be “equalized” with other personal property in Daviess County. It is shown that 35% of fair cash value was the “equalization rate” for other personal property in Daviess County for the pertinent period. Although it is recognized that intangible property is assessed' at 100% value, as noted in Kentucky Finance Co. v. McCord, Ky., 290 S.W.2d 481, it is argued that bank stock is different, since it is the only intangible which is assessed at the local level. Thus, it is reasoned, as the language of KRS 136.280(4) provides that “The equalization, collection, penalties and laws relating thereto provided for other personal property * * * (Emphasis supplied)” in the taxing district shall apply; it must mean that the 35% rate prevailing in Daviess County for “other personal property” is to be applied to bank stock. We regard this argument as ingenious, but not convincing.

It would require placing inordinate significance upon the word “equalization” to reach the result urged by appellant. Particularly is this true in face of the explicit language of the statute (KRS 136.270(1)) which levies the tax on the bank stock at its fair cash value. Moreover, to adopt such a construction would require the assumption that the legislature specifically directed the assessing officer to violate Kentucky Constitution Section 172. We think that we would deviate from reason and settled rules of statutory construction to adopt the strained view advanced by appellant.

Appellees present a procedural challenge to appellant’s right to maintain this action, based on the premise that appellant is not the real party in interest within the purview of CR 17.01. We think there are at least three reasons demonstrating the lack of merit in the contention: (1) the bank is a real party in interest, because the statute lays upon it the duties of reporting assets for the ascertainment of the amount of tax due and the actual payment of the tax, albeit on behalf of the stockholders; (2). the “real party in interest” point was effectively waived when appellee failed to raise the defense until August 5, 1964, although it had filed its answer in circuit court on April 8, 1964, CR 12.08; (3) no cross-appeal has been perfected by the appellees, so the point is not properly preserved for appellate review. CR 74. The failure to raise the point upon cross-appeal, following a specific adverse ruling by the circuit court, precludes appellate review of the question. Johnson v. Chavies Coal Co., Ky., 299 S.W.2d 629.

The judgment is affirmed.

      . Ky .Const., Sec. 172, requires taxation of all property, not exempted from taxation by the Constitution, at its fair cash value; although the question is not argued, grave doubt exists whether the claimed statutory exclusion of tangible property value from the fair cash value of the bank stock would be constitutional.


author: HILL, Judge.

text:
    John W. GARNER, Judge, Pulaski County Court, Appellant, v. J. F. HARRIS et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 24, 1965.

      Charles C. Adams, Somerset, for appellant.
    H. K. Spear, Somerset, Randall Bertram, Monticello, for appellees.
   HILL, Judge.

This appeal undertakes to reverse a Pulaski Circuit Court judgment' setting aside an order and judgment of the Pulaski County Court entered September 30, 1964, pursuant to KRS 25.680 reapportioning Pulaski County into five magisterial districts in lieu of eight districts theretofore existing.

Appellant presents the three following questions (SIC):

“(1) Does the Circuit Court have the jurisdiction to grant the relief adjudged herein?
“(2) Does the record show a substantial failure to comply with the provisions of the statutes setting forth the procedure for reapportioning justices’ districts?
“(3) Does the action of the Commissioners and County Court appear arbitrary or an abuse of discretion?”

Inasmuch as questions one and two dovetail to warrant a single answer, we first dispose of those two questions. KRS 25.680-25700 empower the county court to reapportion a county into magisterial districts. The statute is silent as to who may apply. However, it is implied that an “application” must be made in that portion of the statute requiring notice to be given of the “application.”

Appellees contend the notices given in this case were insufficient. An original notice appears in the record along with various photographs taken showing the buildings and positions thereon where the notices were posted. The notices were printed on regular postal cards, and the printing thereon is rather small. However, they were posted at eye-level positions in places the public was accustomed to- pass by, and otherwise complied with the statute as to number to be posted and the places of posting in the county. No doubt larger handbills with bolder type would have been preferable, but we conclude the notices were sufficient. Certainly the public got the news as evidenced by the prompt filing of exceptions to the report and order redistricting and persistent opposition in the courts. This Court said in Lyon v. County of Warren, Ky., 325 S.W.2d 302, 305 (1959):

“In reaching a conclusion as to the sub-stantiality of the compliance with the law, or the effect of an irregularity in the official notice, the court has often considered whether the voters otherwise had full and actual notice of the election and of the question submitted and whether the great body of the people had actually expressed themselves at the polls.”

Appellee questions the sufficiency of the notices because some were posted on the Sabbath. Some or all of the notices were physically posted on Sunday. They remained posted a greater time than required by the statute. They served the purpose for which they were posted'. To say the notices were unlawful and ineffective just because they were manually tacked up on the Sabbath would distort the old Bible injunction to keep the Sabbath. Anyway, Lyon v. County of Warren, supra, answers this question contrary to appellee’s contention.

Having determined the notices sufficient and the other steps regular, the scope of our review is to determine whether the county court acted arbitrarily or abused its discretion. Wilson v. Dean, Ky., 177 Ky. 97, 197 S.W. 547, 550 (1917), has this applicable comment in a case involving the statute in question:

“The jurisdiction of the county court in the matter of reapportioning the county, in which it sits into justices’ districts is exclusive and complete, and as unlimited as the nature of the matter will admit of. No other court has or can exercise any original jurisdiction in regard to it. It is, indeed, a special statutory proceeding, but the jurisdiction to act in such a matter is common to all the- county courts in the state * * *»

The trial court not only found the notices insufficient, but it found the county court acted arbitrarily and abused its discretion. In fact, the trial court found the whole proceeding in the county court to be a “comedy of errors.” The evidence indicates some of the persons who posted notices were not well familiar with the county and its precincts. The same situation prevailed as to one or two of the commissioners. It may be true that the three commissioners were not as well acquainted with the county and the boundaries of its voting precincts as would be desired, but we think they were sufficiently acquainted with those boundaries, with other information, such as the results of previous voting records, to do a reasonably intelligent job of reapportioning. The reapportioned map indicates the districts resemble a wagon wheel with the county seat constituting the hub. The difference between the smallest and largest districts as reapportioned was only 474 based on the most recent voting records -r whereas, the previous difference was 6,038. From the evidence, we cannot say the county court either acted arbitrarily or abused its discretion.

The second question presented concerns whether or not there was substantial failure to comply with the provisions of the statute setting forth the procedure in such cases. We have discussed alt questions raised in this respect except the contention that the posting of some of the notices on Post Offices was not sufficient. In Mahon v. Buechel Sewer Construction District #1, Ky., 355 S.W.2d 683, 685 (1962), this Court said:

“If a notice is posted in a place where the attention of the public is likely to be attracted- to it, the purpose of the law is satisfied regardless of who may- own the property on which it is displayed.”

This case was decided by five members of this Court during vacation. The order was entered August 24, Í96S, providing for the opinion to follow. Since that time, it has been discovered by the county court clerk of Pulaski County that Voting Precinct 5 was not included in either of the five newly formed magisterial districts, and such fact has been called to our attention by ap-pellee. However, appellant has filed response containing a copy of a nunc pro tunc, order of the county court including such Voting Precinct 5 in Magisterial District 5. It appears to be a proper correction of a clerical error which does not go to the merits of this controversy.

Wherefore, the judgment appealed from is reversed with directions that it be set aside and another entered upholding the order and judgment of the county court.


author: PLEAS JONES, Special Commissioner.

text:
    LINCOLN INCOME LIFE INSURANCE COMPANY, Appellant, v. Florence BURCHFIELD, Appellee.
    Court of Appeals of Kentucky.
    July 2, 1965.
    Rehearing Denied Oct. 29, 1965.
    William A. Young, Frankfort, for appellant.
    Herbert D. Liebman, Frankfort, for appellee.
   PLEAS JONES, Special Commissioner.

This is an appeal from a summary judgment granted appellee, Florence Burchfield, by the Franklin Circuit Court on her motion against appellant, Lincoln InGome Life Insurance Company.

The only question to be determined on this appeal is the propriety of the ruling of the lower court.

James M. Burchfield died on November 2, 1961, survived by his wife, the appellee. At the time of his death he was insured by appellant under a contract of insurance designated as ordinary life insurance in the amount of seventy-five hundred ($7500.00) dollars. This policy of insurance had been issued to him on July 1, 1960.

After the death of appellee’s decedent, she, as the beneficiary, made claim with appellant for the proceeds of the policy. Appellant declined to pay and this action resulted.

In the lower court appellant defended its refusal to pay on the ground that appel-lee’s decedent made false answers in the application signed by him, that he likewise made false answers to the -questions asked him by appellant’s medical examiner and that these answers were material to the risk assumed under the contract of insurance.

Appellee contended that appellant is estopped from denying coverage on the ground of misrepresentation for the following reasons: (1) That the appellant secured an independent medical examination by a physician of its choice; (2) that it conducted a personal investigation prior to issuance of the policy through the services of the Retail Credit Corporation; (3) that it had actual information in its files regarding the applicant’s medical history at the time the policy in question was issued and, (4) that appellant’s agent had personal knowledge of applicant’s medical record and hospitalization prior to soliciting the application in question on June 10, 1960.

After the taking of the depositions of numerous witnesses, including officers and agents of appellant, eaeh of the parties moved for summary judgment. The matter having been decided adversely to appellant, the same contentions made in the lower court are reiterated in this Court.

The evidence reveals that from the period commencing September 22, 1958, to June 10, 1960, appellee’s decedent executed applications for insurance with appellant’s agent, R. L. Heaton, which resulted in the issuance of various medical and hospitalization contracts. These were referred to as “weekly debit” policies and required no medical examination.

On June 10, 1960, appellee’s decedent applied for ordinary life insurance in the amount of $7500.00. The policy was issued on July 1, 1960, after Dr. R. S. Long, a physician employed by appellant had submitted his medical examination report and after appellant’s underwriting department had an independent investigation of ap-pellee’s decedent through the Retail Credit Corporation.

Some six months prior to the issuance of the policy in question appellee’s decedent sought the professional services of Dr. W. H. Rush of Frankfort, Kentucky. He was hospitalized in King’s Daughters’ Hospital from January 23, 1960, to January 27, 1960. The cause of his illness was diagnosed by Dr. Rush as cardio-vascular renal disease and hypertension. While in the hospital, X-rays were taken of appel-lee’s decedent and he was .subjected to various tests, including blood analysis and blood sugar tests.

The evidence shows that Heaton, appellant’s agent in the numerous insurance transactions with appellee’s decedent for almost three years, saw appellee’s decedent every two weeks when he collected on the weekly debit policies which were all in force at the time of the death of appellee’s decedent. He testified that he delivered a check for $80.00 issued by appellant for the four days the decedent was in the hospital in January I960.

It is further shown by the evidence that Dr. Long, appellant’s medical examiner, examined appellee’s decedent on two occasions. On the first, his blood pressure was not within acceptable limits. Later, when his blood pressure had decreased, he was examined again, and approved by Dr. Long for insurance.

Appearing among other questions and answers on the application executed by ap-pellee’s decedent on June 10, 1960, were the following pertinent ones: “Are you now in good health and free from the effects of illness and injury? ” The response by appellee’s decedent was: “Yes.” “What medical attention have you had in-the past five years?” The reply of appellee’s decedent was: “None.” It is significant to note that the agent Heaton testified that all of the questions and answers on the application were in his handwriting, with the exception of the signature of appellee’s decedent.

Appellee testified that decedent was rejected from military service -in 1944 by reason of hypertension. Among other questions asked by Dr. Long and the answers given by appellee’s decedent, were the following: “Have you ever, for physi-cál or mental reasons * * * heen given a deferred draft classification ? ” “Have you ever had or been told you had or been-consulted or treated by a physician or other practitioner for any of the following: Disease of the heart or blood vessels, increased or abnormal blood pressure ? ” “Have you ever had any of the following.: Electrocardiogram, blood test of any kind, X-ray as treatment or diagnostic study ? " The appellee’s decedent answered “No” to each of these questions.

Thus, we see that the record is replete with misrepresentations made by appel-lee’s decedent in the application for insurance with appellant company. The question with which we are confronted is: Were they material to the risk assumed by the appellant?

KRS 304.656 reads:

•“All statements or descriptions in any application for an insurance policy nr in negotiations therefor, by or in behalf of the insured, shall be deemed to be representations and not warranties. Misrepresentations, unless material of fraudulent, shall not prevent a recovery on the policy.”

In a long line of cases, it has been very definitely established by this Court that a false answer is material if the insurer, acting reasonably and naturally in accordance with the usual practice of life insurance companies under similar circumstances, would not have accepted the application if the substantial truth had been stated therein. See Mills v. Reserve Life Insurance Co., Ky., 335 S.W.2d 955.

There is an exception to the rule that false answers to questions concerning matters material to the risk will void a policy of insurance and that exception is that where the insurer was fully cognizant of all the facts it cannot be said, as a matter of law, that it relied upon the written statements contained in the application. Suttles v. Kentucky Home Mutual Life Insurance Company, 300 Ky. 696, 189 S.W.2d 845.

In Am.Jur., Insurance, Volume 29A, Section 1018, page 192, the following rule is stated:

“Since an insurance company, like any other corporation, must act and contract through the aid and by means of officers and agents, the knowledge or notice which the company possesses is, generally, that with which it is chargeable or is deemed to have because of the knowledge of or notice to its duly authorized agents * * Continuing in Section 1020, page 193:
“ * * * Consequently, where the knowledge of an insurance agent relates to a material misrepresentation or breach of warranty or condition whieh would otherwise render the policy unenforceable at its inception, the insurer issuing the policy will not be permitted to take advantage of such breach, or cause of forfeiture. *

Douglas E. Nickens, assistant secretary of the underwriting department of the appellant, testified that the application of ap-pellee’s decedent was checked against an alphabetical master file to determine the experience appellant had with appellee’s decedent and that the records indicated a hospital claim paid by appellant in the amount of four days hospitalization from January 23, 1960, through January 27, 1960. The evidence of Nickens further shows that regardless of what was stated on the application, a medical examination was required prior to the issuance of the policy.

We have reached the conclusion that the appellant did not rely on the statements in the application in issuing the policy to appellee’s decedent. Appellant was fully cognizant of the facts in the instant case and, as a consequence, the lower court was justified in granting summary judgment to appellee. We are buttressed in this conclusion by the many insurance transactions between appellant and appel-lee’s decedent and-by the facts that: Appellant had in its files the hospital records of the decedent; appellee’s decedent had been examined by appellant’s doctor and, his medical record was known by appellant’s agent at the time of the taking of the application.

It is recommended that the judgment of the trial court granting a summary judgment to the appellee be affirmed.

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