author: CLAY, Commissioner. HILL, Judge

text:
    Willie T. PUCKETT, Appellant, v. CITY OF MULDRAUGH, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    March 11, 1966.
    Rehearing Denied June 24, 1966.
    Pearl & Trevathan, Louisville, for appellant.
    J. R. Watts, Brandenburg, Cubbage & Cubbage, Leitchfield, for appellees.
    H. Bemis Lawrence, Louisville, amicus curias.
   CLAY, Commissioner.

In this declaratory judgment action the basic bone of contention is whether the owner of rental property may be required by a city, operating a water system, to pay for such utility services furnished to his premises. The trial court decided that question in the affirmative and the property owner appeals.

In 1958, the City of Muldraugh (a fifth class city) began the operation of a water and sewage system. The ordinance in controversy provides in part:

“The rates and charges aforesaid shall he billed to the owner of the premises except that upon application by the tenant of any premises, who is not the owner thereof, filed with the Board of Trustees of said city, an application to have water and sewer services rendered to said tenant, renter, or party occupying premises. Application must have a cash deposit in the sum of one hundred dollars ($100.-00) plus five dollars ($5.00) to turn water on.” (Our emphasis.)

Appellant owns 20 houses which are usually rented to enlisted personnel from Ft. Knox, the rent ranging from $40 to $65 per month per rental unit. He paid for the installation of separate water meters for each of his rental units, but the service charges have always been billed to him and penalties imposed if not promptly paid.

Appellant poses the principal question as being whether or not a landlord can legally be required to guarantee and pay his tenant’s utility bills, but that is hedging somewhat on the real issue. The ordinance does not require a property owner to guarantee or pay his tenant’s bills — it simply requires him to pay for those services rendered to premises which he owns. Ultimately we believe the question must resolve itself into the right of a city operating a public utility to treat the owner of property as the consumer.

Appellant relies heavily on City of Covington v. Ratterman, 128 Ky. 336, 108 S.W. 297, 17 L.R.A.,N.S., 923. In that case the city refused to furnish water to a purchaser of property until he had paid a delinquent bill of a former tenant of his vendor. The Court properly held that the purchaser could not be required to pay the debt of another. In the course of the opinion it was said that the purchased building could not contract for the water, and further, “[liability for the water rent, therefore, rests upon the person or persons to whom the water was furnished * * This case is not very helpful. Clearly a water service charge is not (in the absence of a lien created by statute) an encumbrance running with the land, but the above quoted language leaves open the question as to just who may be the party to whom water is furnished.

Appellant cites other authorities to the general effect that, in the absence of a statute specifically authorizing the imposition of such liability, the property owner is not liable to pay for water furnished his tenant. Etheredge v. City of Norfolk, 148 Va. 795, 139 S.E. 508, 55 A.L.R. 781, is cited as a controlling case. There the general factual situation was similar to the one before us. The suit was initiated to recover the amount paid on a delinquent water bill by the owner of the premises. The ordinance in question provided that the owner “shall cause the water rent for the use of water on said premises to be paid”. The city billed the water rent not to the owner or the occupant, but to the premises. (This may or may not have significance.)

The court stated that the question involved was whether the imposition of liability on the owner for the water rent had deprived him of his property without due process of law. On this ground the court held the ordinance invalid. As far as we can observe, the Virginia court never came to grips with the question of whether an owner could be reasonably classified as a consumer, or whether there might be an implied contract between the city and the owner which arose when water was supplied to his premises. The court said (page 510 in 139 S.E., page 785 in 55 A.L.R.):

“The authorities are also practically unanimous that the regulation of a water company or ordinance of a municipality which requires the property owner to pay a delinquent bill for water furnished the tenant of the premises, which the owner has not contracted to pay, is unreasonable and void, unless a lien is given on the premises by statute, or there is at least some statutory authority therefor by virtue of the charter or otherwise.” (Emphasis in the opinion.)

There is case law support for this'statement, but it refers to a “delinquent” bill as if this was the debt of another, and it assumes the nonexistence of a contractual relationship. The matter of statutory authority we will discuss later. The court went on to say (page 511 in 139 S.E., page 787 in 55 A.L.R.):

“The city can adopt any reasonable plan it chooses to collect its water rents from the consumers who obligate themselves to pay them, in lieu of the present arbitrary and unreasonable policy of attempting to exact such rents from those who are in no way liable, in the absence of state legislative enactment making them so.”

This language patently begs the basic question by assuming that (1) the owner is not liable and (2) any attempt to impose liability on him is arbitrary and unreasonable. In our opinion the reasoning in that case is not persuasive.

At this point it may be well to discuss the statutory authority question. The cases almost without exception acknowledge that a legislature may authorize a public utility to impose liability for water rents upon the owner of property without violating the doctrine of due process. See 43 Am.Jur., Public Utilities and Services, section 62 (page 610); 94 C.J.S. Waters § 302 b, page 212; Waldron v. International Water Co., 95 Vt. 135, 112 A. 219, 13 A.L.R. 340. This would seem to effectively extinguish such ground as a valid legal basis for declaring a public utility regulation invalid. If the matter was really one of due process, a state legislature could no more violate this right than could a public utility acting independently.

The matter of legislative authority is not one of due process. It involves the power of the municipality to act. For example, (as some cases indicate) a municipality would probably not have the power to impose a lien on property to secure the payment of a water bill in the absence of statutory authorization. We do not have that question here, although some of the opinions we have read allude to it when denying the right to charge the owner with the water bill. See cases annotated in 13 A.L.R. 346.

In this case we find no difficulty on the question of statutory authority. KRS 106.210 grants the city extensive powers to do those things necessary for the acquisition, operation and maintenance of a water system, including the right to charge and collect reasonable rates for services rendered. The method adopted by the city was clearly within the scope of its statutory authority. In Pfau v. City of Cincinnati, 142 Ohio St. 101, 50 N.E.2d 172, it was expressly decided that general powers granted a municipality to operate a water works constitute sufficient authorization for a regulation of this sort.

Having disposed of the due process and the statutory authority objections (which were rather obliquely raised by appellant), the remaining question on this point is whether the regulation is arbitrary and unreasonable to the extent it violates section 2 of our Constitution. Just what is arbitrary and unreasonable about a regulation that treats the owner of premises as the consumer and requires him to pay the water bill? After extensive research we have not found a case which satisfactorily explains this.

We may acknowledge that this method of charging and collecting water bills is not the one customarily adopted by public utilities. We may further recognize that it may result in the changing of lease provisions and in many instances cause inconvenience to property owners. We have before us, however, a legal question. The property owner must take the position that it is unlawful for a municipality to charge him for a public utility service furnished to his premises. Wherein lies the illegality of such a regulation?

It is interesting to note here appellant expressly concedes that where two or more residential units are served by a single meter it is not arbitrary or unreasonable to make the owner responsible for the charges. As a matter of fact, one of the cases which tends to support appellant’s principal argument specifically found such practice was “reasonable and practicable”. Millville Improv. Co. v. Millville Water Co., 92 N.J.Eq. 480, 113 A. 516. See also Cox v. City of Cynthiana, 123 Ky. 363, 96 S.W. 456. This of course is a recognition that the property owner may be classified as the consumer and there is no legal reason why a public utility should be required to collect water charges from each tenant who ultimately benefits from the service.

The Supreme Court of Ohio has had no difficulty with this problem. Pfau v. City of Cincinnati, 142 Ohio St. 101, 50 N.E.2d 172. There an ordinance provided that any owner of real estate installing or maintaining water service connections should be considered as agreeing to be liable for the charges whether the accounts for such premises were carried in the name of such owner, or his tenants, or other persons. There was no specific statutory authority to enact such an ordinance. The court could find nothing unauthorized, arbitrary or unreasonable in such a regulation. It is significant that the Ohio court considered the difference immaterial between such an ordinance and a similar statute upheld in City of East Grand Forks v. Luck, 97 Minn. 373, 107 N.W. 393, 394, 6 L.R.A.,N.S., 198, 7 Ann.Cas.1015.

While we have not heretofore considered this question in Kentucky, we have recently decided a case in which the governing principle is the same. In Cassidy v. City of Bowling Green, Ky., 368 S.W.2d 318, a city ordinance required the owners of property to be responsible for garbage disposal service charges which were furnished in conjunction with water and sewer services, the ordinance further providing that water and sewer services could be discontinued if the garbage disposal service charge was not paid. The validity of the ordinance was attacked by landowners whose premises were occupied by tenants. In answering the precise contention here made by appellant we said (page 320 of 368 S.W.2d):

“The contention that this service charge may not be imposed upon the property owner when the service is rendered to the tenant is without merit. This service is rendered to the property and the benefits accrue to the owner as well as the tenant. The question is again one of reasonableness and it is certainly not unreasonable to require property owners to contribute to the support of a system which benefits all property and all inhabitants within the City.”

We are of the opinion this reasoning is sound and applies to the problem before us. See Rand v. Marshall, 84 Vt. 161, 78 A. 790. The water service is furnished to the property owner. He primarily benefits from this service even though the ultimate consumer is one of his tenants. He is the consumer to the extent water is supplied to and used on his premises. If he requests this service or accepts it, he impliedly agrees to pay the service charge as provided in the ordinance. See Dunbar v. City of New York, 177 App.Div. 647, 164 N.Y.S. 519. There is nothing arbitrary or unreasonable about such a method of collecting water rents, it is not requiring the owner to pay the debt of another, and there is no taking of his property without due process of law. See Dunbar v. City of New York, 251 U.S. 516, 40 S.Ct. 250, 64 L.Ed. 384. As we have before pointed out, the principal case relied upon by appellant assumed that the obligation was that of another, assumed that the owner could not be liable, and assumed the regulation was arbitrary and unreasonable. None of these assumptions strikes us as justifiable.

It might be suggested that since appellant had separate tap-ins on the waterline for each of his rental units, the water flowing through the meter must be charged to the occupant who actually uses it. The nature of a connection, however, has nothing to do with the question of liability for water rent. A meter is simply a device to register consumption. If the owner connects his property to the waterline, he thereby utilizes the service and properly may be charged therefor. It was so held in Dunbar v. City of New York, 177 App.Div. 647, 164 N.Y.S. 519, affirmed 223 N.Y. 597, 119 N.E. 1039; affirmed 251 U.S. 516, 40 S.Ct. 250, 64 L.Ed. 384.

We are aware that it is customary to charge utility services to tenants, and many landlords prefer it that way. Doubtless the ordinance involved will cause appellant inconvenience. On the other hand, and particularly in such a city as Muldraugh, with a very transient population, good business practice would seem to require this method of charging and collecting water bills. It is not arbitrary or unreasonable, and we can find no taint of illegality. The Chancellor correctly decided this issue.

Our next question is whether the city is required to enact an ordinance which would permit the tenant to apply directly for water services for which he would be exclusively responsible. The ordinance in question did contain such a provision, but because it required a cash deposit of $100 the Chancellor held this part of the ordinance “invalid as being arbitrary”.

Although the city contends to the contrary, we are inclined to follow the Chancellor to the extent that his finding may be construed as meaning that the deposit required was so excessive that for practical purposes it foreclosed a tenant’s independent application for service. (This was obviously the purpose of the excessive cash deposit required.) The city’s principal contention on this point is that appellant, being the property owner, has no standing in court to assert the possible rights of his tenants.

There is substance to this argument, but assuming appellant can raise the question of the reasonableness of this provision, it is, as the Chancellor decided, an academic one insofar as appellant is concerned. His position must be that because this right of a tenant is an illusory one, liability for the water service charges will always be imposed upon him. Since we have decided that this may be done legally by the municipality, he has no valid ground upon which to assert the impairment of his rights when the city has done by indirection what it could do directly. He cannot properly insist that the city relieve him of a liability which it has the authority to impose. The independent rights of tenants with respect to this water service are not before us.

What we have just said disposes of appellant’s contention that the trial court should have fixed a reasonable cash deposit charge.

Appellant’s final contention is that the city was without authority to make a minimum monthly service charge when the property was vacant and no water was being consumed on the premises. Appellant does not claim the charge ($2.20 a month) is unreasonable but insists no charge whatever could be made. The city in its brief fails to answer this argument but we will attempt to do so.

The right of a public utility to make a fixed or minimum service charge is generally recognized. 43 Am.Jur., Public Utilities and Services, section 51 (page 605); 94 C.J.S. Waters § 300, page 208. Appellant takes the position that this charge is in effect “meter rent” and that such a charge is not proper. There is apparently a conflict of authorities on this question. See 94 C.J.S. Waters § 301, page 209.

Appellant relies on Louisville Gas Co. v. Dulaney, 100 Ky. 405, 38 S.W. 703, 36 L.R.A. 125. The holding in that case was that the public utility could not charge a “meter rent” because this charge would require the consumer to pay for gas services an amount in excess of the maximum rate which the utility was permitted to charge. The opinion then goes on to suggest that but for this limitation the Court would have been inclined to approve an additional charge, if reasonable, provided it did not violate the provisions of the corporate charter.

We can find nothing illegal in a minimum charge per se, which is compensation for the availability of service. Like other charges, the criterion is one of reasonableness. Appellant does not contend this charge is unreasonable.

The judgment is affirmed.

HILL, Judge

(dissenting).

I respectfully dissent from the majority opinion of this Court for the two following reasons: First, because the opinion is unsupported by and contrary to the great weight of authority; and second, because appellee, City of Muldraugh, in good conscience and according to every rule of equity should be estopped from imposing liability on appellant for the individual water bills of the occupants of twenty separate rental houses which he owns.

It should be kept in mind that appellant’s twenty units of rental property are not contained in an apartment house but are, in fact, twenty separate houses located on individual lots. (I do not, however, mean to imply that a different rule should apply to apartment houses containing separate apartments.) Also to be remembered is the fact that appellee required appellant to pay $3,000 for twenty tap-ins at the time service was initially provided. I shall refer to this later in connection with the element of estoppel.

The result of the majority opinion is to hold the owner of property liable for utilities furnished to the tenant of the property. To me this result is unjust, unreasonable, confiscatory, and devoid of any rhyme or reason. As authority for my position, I quote from 55 A.L.R., p. 781:

“A municipal corporation engaged in the business of furnishing water to its inhabitants by means of a permanent waterworks stands on the same footing, and has exactly the same right to make and enforce reasonable rules and regulations, as a private corporation upon whom a franchise for that purpose has been conferred, and therefore an ordinance prescribing such regulations has the same force, and no more, as a by-law of a private corporation whose powers are of like character and conferred for the same purpose.”

And quoting further from the same page of 55 A.L.R.:

“A municipal ordinance, requiring a property owner, in the absence of contract, to pay rent due the city for water consumed on the premises by a tenant, which is obviously designed to enforce the collection of the water rents, and not a regulation conservative of the tenant’s health, with which it is but remotely connected, is not only unreasonable and unnecessary, but unconstitutionally deprives the owner of his property without due process of law.”

Following the general rule and the great weight of authority 43 Am.Jur., Public Utilities and Services, section 62 states:

“In the absence of statute affecting his rights, however, the occupant of premises dependent upon a public service corporation for service, if otherwise entitled to such service, cannot be denied because he is the tenant and not the owner of the premises; nor, in the absence of statutory authority therefor, justification under the police power, or a contract with the landlord in such respect, can a public service company by regulation or a municipal corporation by ordinance render a property owner subject to charges for service furnished a tenant.”

The general rule is also followed by text writers as indicated in Nichols on Public Utilities Service and Discrimination, p. 215, from which I quote:

“In the absence of a statutory provision there is no lien on the premises occupied by a customer for unpaid bills of a tenant; and a provision in the rules and regulations of a water utilities attempting to make a water bill a lien on property is directed to be entirely without the authority of either the utility or the Commission.”

The following states have followed the general rules above announced: State ex rel. Milsted v. Butte City Water Co., 18 Mont. 199, 44 P. 966, 32 L.R.A. 697; Farmer v. City of Nashville, 127 Tenn. 509, 156 S.W. 189, 45 L.R.A.,N.S., 240; City of Galveston v. Kenner, 111 Tex. 484, 240 S.W. 894; Waldron v. International Water Co., 95 Vt. 135, 112 A. 219; Etheredge v. City of Norfolk, 148 Va. 795, 139 S.E. 508, 55 A.L.R. 781. The Waldron case, supra, is discussed in 13 A.L.R., p. 340 from which I quote: “A regulation of a water company unauthorized by statute, requiring a property owner to pay for water furnished his tenant, is unenforceable.” It is true some of the states of this Union have announced a contrary view on the present subject, but the number so doing can be counted on the fingers of one hand with fingers to spare, and I can find no reasoning in any of the opinions justifying their conclusions except those based upon police powers exercised in the interest of health.

The majority opinion wants to know the reason for the general rule above announced. Here are some of the reasons. The City has elected to operate its own utility rather than grant a franchise to a private utility. It does so voluntarily. Clearly, it is bound by the same rules and regulations as a private utility and is in the utility business for a profit. It has its paid employees, protected by workmen’s compensation, to install and keep its lines in repair. It employs meter readers to determine the service rendered; it must maintain bookkeepers and clerks to send and collect bills for service. For all this service, the City is authorized to collect not only the cost of the service but a reasonable profit for rendering it.

The City is empowered to require a reasonable deposit to insure against loss on account of delinquent bills. In this connection, I concur with the majority that the lower court was correct in holding that so much of the ordinance as required a $100 deposit for service is arbitrary and unreasonable. Certainly, a deposit of $30 or thereabout would be reasonable and sufficient to protect the City against loss from delinquencies.

The majority opinion forces the owner of a number of houses, or the owner of an apartment house, to go into the utility business, by reading meters, keeping them in repair, and collecting utility bills, as well as many other menial functions incident to the operation of a utility. It is an unjust discrimination against a property owner and an undue burden upon the property. Such a rule cannot be justified by any rule of right, reason, or justice with which I am familiar. '

Under the majority opinion, a lazy or avid city may force owners of rental property or apartment houses to enter the utility business, read meters, keep records, collect bills, and otherwise assume detail duties that have been assumed by the city when it voluntarily undertook to provide those services.

The only justification for invoking such a ridiculous rule as the majority opinion authorizes is to enable the City to collect its bills. The City has another remedy as above pointed out, that is, to require a reasonable deposit. Therefore, it is unnecessary to the welfare of the City to invoke such a rule of law.

So far as my research has disclosed, this Court has not specifically passed on the questions presented in the present case. However, a question was answered in the closely analogous case of City of Covington v. Ratterman, 128 Ky. 336, 108 S.W. 297, 17 L.R.A.,N.S., 923 (1908), wherein the City sought to withhold water service to an applicant, or property owner, because a former owner had not paid his water bill. The following is a quotation from Ratterman:

“In other words, it is asserted that the water rent is a debt or demand against the building to which the water was furnished, for which reason a change of ownership or in the possession of the property cannot interfere with the right of the water commissioners to refuse further use of water to the building until all past due water rents, no matter by whom owing, are paid. We think the foregoing contention is based upon an erroneous hypothesis. It assumes that the ‘building’ in which water was furnished appellee’s vendor or his tenants owes or is liable for the water rent in controversy. As a matter of law and of fact, this is not true. The building could not contract for the water. * * * Liability for the water rent, therefore, rests u-pon the person or persons to whom the water was furnished, and does not attach to the building or lot; indeed, such liability could not attach to or be placed upon the building or lot without express authority derived from some legislative enactment, which has not been shown to exist and is not claimed in this case.”

My second ground for dissent is based on facts which I think justify the invocation of the doctrine of estoppel against the appellees. Appellees collected from appellant $3,000 for twenty separate tap-ins. It was contemplated by both the City and appellant that separate service would be furnished each separate house and that separate meters would be and were installed. The City undertook to render separate service. Had the property owner known he would later be held liable for all water bills, he could have installed his own meters for much less than the tap-in charge.

After requiring appellant to pay such a stupendous sum for connecting charges in anticipation of separate service, appellee in good conscience should be estopped to claim appellant is liable personally for the payment of his tenants’ water bills solely by reason of ownership of the houses.

Neither can liability be attached to the owner of the property upon the cry of financial need of the City, be it a small incorporated hamlet or a great teeming city.

I am mindful of the fact appellee is a small town and that it is near Fort Knox and may not enjoy a large annual revenue. It is also true appellant is a member of the legal profession and that during one year of the pendency of this action he was called by patriotic duty for military service with the 100th Division. But this Court is not concerned with charity or sentiment. It is not the province of this Court to grant an unnecessary and unjustified poverty package to this little City just because of its size, location, or because appellant is a non-resident of the City.

For these reasons I would reverse the judgment insofar as it authorizes the City to look exclusively to the appellant, property owner, for its water bills. I would affirm the judgment holding the $100 deposit requirement arbitrary and unreasonable with directions to fix an amount in the neighborhood of $25.

My views in the present case are better expressed by a prominent writer in the January 1966 issue of Reader’s Digest, page 208, in these words: “And the authorities should make sure that the hand that turns the faucet writes the check.”

      . It may be divined that the ancient sacredness of property ownership lies at the root of the conclusion that it is arbitrary and unreasonable to impose a burden on the owner which customarily has been and may be shifted to the tenant.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant, v. William H. HILANDER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    Rehearing Denied June 24, 1966.

      E. Durward Weldon, Georgetown, for appellant.
    Gardner L. Turner, Sturgill, Moreland & Turner, Lexington, Henry Prewitt, Paris, Robin Griffin, Miller, Griffin & Marks, Lexington, for appellees.
   HILL, Judge.

This is an appeal from an order granting summary judgment in favor of appel-lees, who were defendants' below. The suit was filed by appellant, plaintiff below, to recover annual installments, which matured February 1, 1963, and February 1, 1964, under a note and mortgage dated March 1961 executed by William H. Hi-lander and his wife, Wilma Hilander, to appellant to secure a $64,000 loan payable in annual payments over a period of twenty-five years.

The Hilanders, being in default two annual installments, conveyed the mortgaged farm to Lexington Mall, Incorporated, on December 6, 1963, and the latter exchanged the same property with Aaron Burchell and wife for other property. These two transactions were made subject to the mortgage. All these parties, being anxious to clear the mortgaged property of debt by paying the entire balance of the mortgage debt, entered into discussions with J. L. Bennett, representative of appellant at Georgetown, Kentucky, intending to ascertain the exact amount necessary to release the mortgage. The note and mortgage did not give appellees (the Hilanders) a right to accelerate the maturity of the debt or to pay more than twenty percent of the balance in any one year. The mortgage note provides:

“Makers reserve the privilege to make, without premium, on any installment payment date, prepayments of principal, subject to the limitation that not more than $12,800 in the aggregate may be prepaid in any single loan year (not calendar year). No partial prepayment shall relieve the makers from having to pay on the first day of each year, the regular annual installment of principal and interest above specified.”

The note and mortgage also provide that upon default by mortgagors in the payment of any annual installment, the mortgagee has an option to accelerate the maturity of the entire balance of principal and interest, or that it may extend or re-extend any principal and interest without impairing its lien.

Appellant contended that inasmuch as the loan was so recently made and was of long-term duration, it did not.want,to allow mortgagors to pay the entire debt or more than the limit provided in the above quoted provision of the note and mortgage without being compensated by mortgagor for so doing. It was the policy of appellant at the time of these discussions to allow mortgagors to pay off entire balances on such loans, provided they complied with a rule or regulation of appellant requiring a “prepayment penalty” of three percent of the balance, which in the present case amounted to about $1,873. However, neither the note nor mortgage provided for such a penalty. In other words, appellant proposed to charge appellees a penalty of $1,873 for the right to pay the entire indebtedness before maturity. All parties agree appellees did not have a right under the note and mortgage to pay more than $12,800 in any one “loan year.”

Through appellant’s representative Bennett, efforts were made to persuade appellant to waive this three percent penalty, which were apparently unsuccessful.

Thereafter, and on December 6, 1963, a meeting was held in Lexington, Kentucky, at which all appellees and their attorneys were present, as well as Mr. Bennett representing appellant. After some discussion, one of the attorneys made a telephone call to the home office of appellant admittedly in order to seek a waiver of the penalty. It is apparent that Bennett had declined to waive the penalty or to accept payment of the debt and interest without the penalty. Otherwise, there would have been no occasion for the telephone call.

The telephone call was made by Henry C. Prewitt, attorney for the Hilanders, to the home office of appellant in New York City where Harold W. Anway (the proper authority) and his assistant, Ralph W. Shaw, on an extension, spoke for appellant.

Prewitt states Anway declined to waive the three percent penalty, whereupon he (Prewitt) consented to pay the penalty but desired to pay it by separate check and signify his involuntariness by showing on the check it was being paid “under protest.” Prewitt stated Anway responded “that will be all right, give Mr. Bennett the money.” Mr. Bennett had stepped into the room during this conversation, and upon the conclusion of the telephone conversation, Pre-witt and Bennett went into another room where all the other interested parties and their attorneys were waiting for the result of the call. The two checks were prepared. The check for $1,873, representing three percent penalty, contained a notation “paid under protest.” Bennett requested that they be certified and inquired the address to which releases should be mailed.

Shaw did not testify on motion for summary judgment, but Anway gave his affidavit in which he did not specifically deny agreeing -to accept payment by two checks as contended by Prewitt. Although Anway did state, “I know that plaintiff expressed no concurrence in accepting payments on a basis which would leave it open to the payer to subject the plaintiff to continued controversy.” At most, this is a conclusion and not a denial of Prewitt’s evidence. The checks were mailed to appellant’s home office, from which they were promptly returned to appellees on account of the notation on the penalty check “paid under protest.”

Thereupon appellant elected to sue for the two, past due, annual installments, but not to accelerate the maturity of the entire indebtedness.

Appellees filed answers charging that the appellant authorized the acceptance of the principal, interest, and penalty as tendered; that Bennett had actual and apparent authority to, and did, accept payment as tendered.

After the filing of affidavits on the issues thus .presented, the trial court entered summary judgment directing the clerk to pay appellant its entire indebtedness with interest amounting to $69,573.25; but adjudged appellant was not entitled to recover the penalty. To repeat, the complaint only asked for $10,012 with interest. Appellant has at all times since refused to accept the amount so directed to be paid it in the summary judgment.

Appellees contended in the motion for summary judgment that the home office spokesman for appellant unqualifiedly agreed to accept the debt, interest, and penalty, so long as the total of the two checks equaled appellant’s demands. Appellant denied it agreed to accept the two checks as tendered. It contends that it refused and returned the two checks because of the notation on the penalty check that it was being “paid under protest.” But all parties concede an agreement was reached providing that the Hilanders might precipitate the maturity of the entire debt upon payment of the debt, interest, and three percent penalty. This leads us to the question whether the tender of the two certified checks, one with the notation thereon “paid under protest,” was legally sufficient tender to require its acceptance by appellant. Or the converse, whether appellant had a legal right to refuse to accept the check.

Ordinarily, a tender may be defined as: “[T]he act by which one produces and offers to a person holding a claim or demand against him the amount of money which he considers and admits to be due, in satisfaction of such claim or demand, without any stipulation or condition.” 86 C.J.S. Tender § 1 p. 558. (Emphasis added.)

Formerly, payment by check was not legal tender. This legal philosophy was timely abandoned in this jurisdiction in McGregor v. Mills, Ky., 280 S.W.2d 161, 162, 163 (1955), wherein this Court said:

“A tender of the money received was made by certified check at the time Mrs. Mills’ reply was filed. This, we believe, was a sufficient tender. It was made timely, and a certified check, while not a legal medium of payment, is a substitute for money which is commonly and generally used in business and commercial transactions ; and likewise in legal proceedings and may be considered as so much money. 36 Am.Jur., Money, section 10.”

This leads to the narrow inquiry, is a notation “paid under protest” such a condition under the above definition of “tender” as to render the tender ineffective.

It is written in 52 Am.Jur., Tender, secion 24, p 232, that:

“A tender is not rendered conditional by reason of the fact that it is made under protest, where no conditions are imposed and it is made involuntarily in that it is made under coercion of law for the purpose of saving the debtor’s rights. A tender by the debtor of the amount due on a debt, which requires nothing of the creditor except his acceptance of the money, is not rendered conditional by the debtor’s statement that he intends to sue the creditor for damages.”

The leading case of Jaynes v. Heron, 46 N.M. 431, 130 P.2d 29, 142 A.L.R. 1191 (1942), commenting on a similar factual situation, followed the rule announced in Am.Jur., supra, in this manner:

“We think the following statement from Hunt on Tender points out the difference between ‘Offer made under protest’ which does not effect (sic) the tender, and some conditional offers which will invalidate a tender:
‘Sec. 243. Offer under protest.— There are decisions holding that a tender under protest, reserving the right to dispute the amount due, if it does not impose any conditions on the creditor, is good. As when the mortgagee is in possession and the mortgagor makes a tender of the amount claimed to be due, and at the same time reserving the right to review their account. So, when the tender was in this form: “If you insist upon being paid the amount demanded before satisfactory explanations have been given, our clerk will hand you a checque (sic) this morning for the amount (£1,596 3s. 6d.), but you must consider the payment as under protest, and our clients will seek to recover back what is overpaid afterwards,” it was held sufficient. Sending a check for the amount of a call, and at the same time protesting against the payment upon certain grounds, and declaring that the money must be held in trust until the cause of complaint is settled, was held to be a good tender of payment, and that the concluding words imposed no obligation or liability on the directors of the corporation. So, where a debtor claimed certain deductions from the amount claimed by the creditor, which the latter would not allow, it was decided that the use of the term “under protest” did not vitiate the tender.’ ⅜ ‡ ‡ »
“Being of the opinion that the offer to pay under protest was something which the deputy county treasurer could not control, and that if said deputy county treasurer accepted the money under protest, it would in no wise be prejudicial to him or anyone else, and something which he did not have a right to refuse, we are of the opinion that a redemption was effectuated * *
“The judgment is reversed and the cause remanded with direction that the defendants be permitted to pay, to the Treasurer of Rio Arriba County under protest * *

The notation “paid under protest” on the certified check for the three percent penalty required by mortgagee did not enlarge or improve the rights of mortgagors or their successors. Neither did such notation require any further act or concession on the part of mortgagee or jeopardize its position. The legal effect of the payment under protest was merely to show that the payment was involuntary and to preserve any right theretofore enjoyed by mortgagors. In this case, mortgagors had no right to complain of the imposition of the penalty. The amount could not have been recovered by them regardless of whether they paid the amount willingly or involuntarily. So long as mortgagors paid the total demands of appellant in accord with the agreement, the latter will not be allowed to refuse acceptance because mortgagors paid involuntarily.

We conclude the parties agreed on the amount due for unpaid principal and interest as well as the penalty; that the notation “paid under protest” appearing on the certified check for the penalty did not invalidate the tender; that the appellant was duty bound to accept tender and is now estopped to refuse payment in full.

Appellant is not entitled to interest after the date of tender, but it is entitled to judgment for $1,873 representing the three percent penalty. Appellant should recover the cost of this appeal, but appellees are entitled to recover the cost incurred in the lower court.

The legal propositions above discussed are not specifically discussed by either appellant or appellees.

Appellant contends: (1) this case is not a proper case for the invocation of summary judgment under CR 56.03; (2) that the circuit court erroneously held that plaintiff was not legally entitled to demand and receive from the borrowers a consideration for permitting early payment of the mortgage loan; and (3) the motion of appellee Lexington Mall, Incorporated for summary judgment against plaintiff should in any event have been denied on the grounds its papers demonstrated no ownership in or lien upon the land described in the complaint.

Appellant’s first argument that this is not a proper case for summary judgment, because there was an issue of a material fact, vanishes in the face of our conclusion that the tender of payment under protest was immaterial, unimportant, and did not enlarge appellees’ rights or jeopardize the rights of appellant. It may be said in passing that notwithstanding appellant made the motion for summary judgment, it may in a proper case insist on appeal that there was really an issue of a material fact and therefore was not a proper case for summary judgment. Cf. Watts v. Carrs Fork Coal Co., Ky., 275 S.W.2d 431 (1955).

Appellant next takes the position that the trial court erred in adjudging appellant was not legally entitled to collect the penalty. The trial court concluded appellant was estopped to collect the penalty because it had theretofore elected to treat the entire indebtedness as due by threatening foreclosure. This we think was an erroneous conclusion. It is our opinion the imposition of the penalty was reasonable; that appellant agreed to accept the balance due including penalty with “under protest” attached, and having once agreed thereto, it would not be heard to refuse acceptance. It should be noted further in regard to the telephone conference and the agreement, that Mr. Bennett did not deny it was agreed appellant would accept the debt and penalty “under protest,” and he was in the room at the time. Furthermore, the fact that the amount was tendered under protest is im- , material.

The final contention of appellant relates to the summary judgment sustaining the motion by Lexington Mall, Incorporated, that it be discharged. No relief was sought against Lexington Mall, Incorporated. Appellant was not prejudiced by this part of the summary judgment.

The judgment appealed from is affirmed in part and reversed in part with directions to enter judgment consistent herewith.


author: MILLIKEN, Judge.

text:
    Malinda S. LAREAU, Administratrix of the Estate of Daniel Craig Lareau, Deceased, Appellant, v. Felix TRADER et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Rehearing Denied June 24, 1966.

      Morton Holbrook, Ridley M. Sandidge, Sandidge, Holbrook, Craig & Hager, Owens-boro, for appellant. '
    John Dorsey, William Sullivan, Dorsey & Sullivan, Henderson, for appellees.
   MILLIKEN, Judge.

This appeal is from a judgment entered on a verdict absolving the appellees-defend-ants from liability for the death of a thirteen year old boy bicyclist who was struck by the appellees’ automobile which was traveling in the same direction as he was. Alleged errors in the instructions are the principal grounds urged for reversal of the judgment.

Craig Lareau, decedent, was killed while riding his bicycle on Highway 54, or Zion Road, in Henderson County, Kentucky, at approximately 9:30 a. m., on April 7, 1962, when struck by an automobile driven by Mrs. Nancy Turley Trader, a school teacher. The decedent was the son of the appellant-plaintiff, Malinda S. Lareau, his adminis-stratrix, who brought this wrongful death action against the appellees-defendants, Mr. and Mrs. Felix Trader, under authority of KRS 411.130.

Highway 54 is a paved highway that runs generally east and west, and at the time of this accident it intersected U. S. Highway 41 east of the City of Henderson, forming a “Y” intersection. This “Y” intersection was around 200 yards west of the point of collision.

On the day of the accident Craig Lareau was 13 years, 8 months old. It was a Saturday morning and he was on his way to the Echo Lanes Bowling Alley in Eastgate Shopping Center, proceeding on Highway 54 in a westerly direction, and was about one-quarter of a mile from his destination. Mrs. Trader was driving her 1959 Oldsmobile in a westerly direction on Highway 54 with her daughter Kathy in the front seat beside her, her destination being the First Christian Church in Henderson where she was taking her daughter to a church school function.

Mrs. Trader passed a slower moving vehicle that had just entered on Highway 54 from the left side of the road. She said when she first noticed Craig he was “about two city blocks” in front of her, riding a bicycle and proceeding toward the west. He was around a foot from the edge of the pavement and in the right traffic lane. The road was straight and her vision was clear and unobstructed. Mrs. Trader said Craig was riding in a steady, careful manner straight down the road and that she was traveling at a speed of from “40 to SO” miles an hour in a zone about which there is some dispute in the record as to whether the mile per hour limit is 60 or 35. Mrs. Trader admitted she did not use her horn and that she pulled to the left with her left wheels being around the center line of the highway.

Mrs. Trader and Kathy both testified that at this point the decedent turned sharply to the left and directly into the path of her car and that Mrs. Trader had no time to stop. The boy was thrown onto the- hood and then to the top of the car. Kathy testified, as did Mrs. Trader, that she started screaming the moment Craig cut over into the path of the car. It was around 300 feet from the point of impact to the point where Mrs. Trader stopped the car. The body had fallen from the roof of the car by then. Mrs. Trader and her daughter were the only surviving eyewitnesses.

The plaintiff contends that by the admission of Mrs. Trader she pulled over to where her left wheels were on or around the center marked lines of the highway which did not leave Craig enough clearance and resulted in her hitting him from the rear. The road at point of impact was 19 feet 3 inches wide and the right lane in which Mrs. Trader and Craig were traveling was 10 feet wide. The 1959 Oldsmobile of Mrs. Trader’s was 6 feet 9 inches wide, and Craig’s bicycle from tips of the handlebar was 21 inches. By testimony of Mrs. Trader, Craig was at least one foot from the edge of the pavement and there was testimony that he was two feet from the edge. It is obvious she gave Craig very little clearance.

In submitting the case to the jury, the trial court gave a contributory negligence instruction. It was the contention of the appellant that it was improper to give it under the circumstances because such an instruction was not justified by the testimony offered. It was the position of the appellant that the testimony did not rebut the presumption that a youngster from seven to fourteen years of age is incapable of negligence and that the giving of the contributory negligence instruction thus negated the presumption and made Craig Lareau as accountable for negligence as if he were an adult. Appellant contends that it must be shown that a youngster from seven to fourteen has above average judgment for one of that age to overcome the presumption that he was not responsible for his negligence.

We do not think the criterion of judgment in this sort of situation means judgment generally, but rather is confined to judgment in the particular situation in which the minor is involved. The testimony here did show that Craig was an intelligent young man and had average judgment generally for one of his age. In addition, it was shown that Craig was healthly, athletic, self-sufficient and had been riding a bicycle since he was six years old and had had the bicycle involved in the accident for over two years. His parents had instructed him about observing precautions in using the bicycle on the public highways, and he was thoroughly familiar with the highway over which he was traveling at the time of the fatal accident. We conclude that there was sufficient evidence to show that his judgment in this particular — handling a bicycle in traffic — certainly was above the judgment of minors generally in that respect.

Whether the issue of his judgment should have been submitted to a jury or decided by the trial court as a matter of law is fraught with confusion, as commented upon in Baldwin v. Hosley (1959), Ky., 328 S.W.2d 426, where we said:

“In reviewing our many cases, we find a cloud of confusion. Several held it to have been proper to give a contributory negligence instruction where the youth was between seven and fourteen years old without referring to the question or effect of the presumption. And we have cases holding it proper to have given such an unconditional instruction where there was uncontradicted evidence that the injured child was unusually bright or had sufficient intelligence and discretion to understand that he was in danger of being struck while crossing a street. Trent v. Norfolk & W. R. Co., 167 Ky. 319, 180 S.W. 792, 793; Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448; Ward v. Music, Ky., 257 S.W.2d 516. However, we have said in several cases that where there may be reasonable differences of opinion, the question of fact whether or not the child in the individual case was capable of contributory negligence should be submitted to the jury.”

(See, also, 7 Am. Jur.2d Automobiles; Blashfield 2d Ed., Sec. 151.3.)

Where there is serious doubt of a minor’s capability of being contributorily negligent, the issue should be submitted to the jury as suggested, but in the case at bar we think the court properly ruled as a matter of law that Craig had sufficient judgment to be held for any negligence he may have shown.

The instruction on contributory negligence given in this case was the same type that would have been given had Craig Lareau been an adult. However, Instruction No. 5, the ordinary care instruction, stipulated that ordinary care as “applied to the decedent Daniel Craig Lareau, means that degree of care usually exercised by ordinary careful and prudent boys of that age, intelligence and experience of the said decedent under circumstances like or similar to those of this case,” which, we think, saved the instructions as a whole from being erroneous and misleading in this respect.

We are much more concerned about an aspect of the contributory negligence instruction which required Craig “to exercise ordinary care not to turn his bicycle from a direct course upon the highway unless and until such movement could be made with reasonable safety and not to turn his bicycle to the left if any other vehicle could be affected by such movement without giving a signal to turn left by extending his hand and arm horizontally for at least the last 100 feet traveled by his bicycle before turning.” This instruction apparently was based upon KRS 189.380(1) and (2), which direct:

“(1) No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety, and only after a clearly audible signal has been given by sounding the horn if any pedestrian shall be affected by the movement. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.
“(2) A signal of the intention to turn right or left shall be given continuously for not less than the last one hundred feet traveled by the vehicle before turning.”

It must be remembered that Craig admittedly was in his own lane of traffic, close to the shoulder of the road, had had no statutory warning of the approach of the Trader automobile when the accident happened, and that the point where he normally would have turned to go to the bowling alley was a substantial distance ahead. Although Mrs. Trader and Kathy testified that Craig “turned suddenly,” the clearance she allowed him in passing was so frugal at most that he had little space for deviating from his course. If we concede arguendo that the statute was intended to cover deviations of direction in one’s own lane of traffic, we must still conclude that it was not the words used to describe Craig’s movements which should govern invoking the statute, hut the factual situation itself which should govern. We conclude that the imposition of this statutory duty upon Craig by the instruction in these circumstances was not justified and was so prejudicial that we must reverse the judgment.

The appellant offered an instruction, which the court refused, to require Mrs. Trader to operate her automobile with particular awareness of the propensity of very young children to come suddenly into positions of peril and to apply the principle to bicycle riders like Craig. The principle has been applied to young children darting into the street. Lehman v. Patterson (1944), 298 Ky. 360, 182 S.W.2d 897, 899; Davis’ Adm’x v. Gordon (1948), 309 Ky. 121, 216 S.W.2d 409; Johnson v. Gaines (1958), Ky., 313 S.W.2d 408. The principle has not been extended in this jurisdiction to youngsters operating vehicles on the public highways, vehicles like bicycles. We believe that extension of the principle to vehicles operated by minors on the public highways would unduly emphasize the duty of the ordinary driver in this area, and that the “ordinary care” instruction requiring Mrs. Trader to exercise “that degree of care usually exercised by an ordinarily careful and prudent person to avoid injury to a child the size and age of Daniel Craig Lareau under circumstances like or similar to those proven in this case” adequately covered this aspect of the case.

The appellant insists that she is entitled to a directed verdict and cites the fact that Mrs. Trader did not slacken her speed, did not give a warning signal, did not give enough clearance when the whole left lane was open to her, and admittedly was looking ahead rather than at Craig when the accident happened. On the other hand, it is contended by Mrs. Trader that Craig turned sharply from his course right in front of her car, a contention on her part which must be given some weight when considering whether to direct a verdict for the appellant. As heretofore stated, we do not consider Craig’s movement at the time as justifying giving the instruction on turning even if KRS 189.380(1) and (2) were intended to cover deviation of direction in one’s own lane of traffic, but that does not mean that Craig’s turn, if it be called that, was not negligently performed. We think there is enough of a doubt about the degree and direction of his movement to justify leaving it to a jury to determine whether he was negligent. There certainly was no justification for a last clear chance instruction as sought by the appellant, for it is obvious Mrs. Trader had no last clear chance to avoid the accident. On this record, it is the concensus of the Court that neither of the litigants is entitled to a directed verdict.

The judgment is reversed for proceedings consistent herewith.

MONTGOMERY, J., dissenting.

PALMORE, J., not sitting.


author: HILL, Judge. WILLIAMS, Judge

text:
    R. R. THOMAS, County Court Clerk, et al., Appellants, v. CITY OF ELIZABETHTOWN, Appellee.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.
    As Modified on Denial of Rehearing June 24, 1966.

      W. Burton Cowley, Hardin County Atty., Elizabethtown, Cyril E. Shadowen, William S. Riley, Dept, of Revenue, Frankfort, for appellants.

      J. Howard Holbert, Elizabethtown, William T. Carroll, Owensboro, for appellee.
   HILL, Judge.

This is an appeal from a judgment exempting appellee, a fourth-class city, from the payment of taxes under KRS 138.460 on automobiles purchased by the city for municipal use.

Here is the pertinent part of the above statute:

“(1) A tax levied upon ninety percent of its retail price at the rate of three percent shall be paid on the use in this state of every motor vehicle, except those exempted by KRS 138.-470, at the time and in the manner provided in this section.”

KRS 138.470 exempts vehicles sold to the United States or to the Commonwealth of Kentucky and vehicles registered or licensed in this state during the same or immediately preceding license period.

Prior to July 1, 1960, KRS 138.470 expressly exempted cities and other political subdivisions from the payment of this tax. By the 1960 amendment, the Legislature clearly demonstrated its intention not to exempt cities. There is no exemption, then, unless Section 170 of the Constitution of Kentucky provides one. It states: “There shall be exempt from taxation public property used for public purposes * *

In City of Louisville v. Cromwell, 233 Ky. 828, 27 S.W.2d 377, (1930), this Court thus stated the cardinal rule of interpretation:

“It seems to be the universal rule, and which is admitted by counsel for both sides in this case, that exemption from taxation is a matter of grace, to be granted or withheld by the sover-eighty levying and collecting the tax, either by constitutional or statutory provisions. * * * ”

And the same opinion so clearly states the proper rule of construction of such an exemption, we quote further:

“The general rule applicable to asserted rights of exemption from taxation is that the language of the instrument conferring the exemption must be strictly construed, since the right is a carved out one for the benefit of the claimant and which is not enjoyed by the inhabitants generally, and it is therefore a species of conferred special privilege which must be clearly stated and set forth before it will be given. * * * ” (Emphasis added.)

Not only does the rule of strict construction apply to the kind of property, but the rule applies equally to the character of tax included in the exemption. We quote further from Cromwell cited by appellants:

“ * * * the rule of strict construction applicable to rights of exemption from taxation applies, not only to the existence of the right at all, but likewise to its scope; i. e., the character of taxes to which the exemption applies. So that, although the right may be clearly given as to a particular class of property, still, unless the exempting language be such as to extend it to all classes of taxes, it will be confined to the one wherein it is so clearly made to appear. With the law in the condition, as so declared by the cited text authorities, we repeat that it would seem to clearly appear, under the strict construction rules above referred to, that the exemption provided for in section 170 of the Constitution refers only to ad valorem taxes. * * * ” (Emphasis added.)

Let us see now whether appellees are exempt under Section 170. This involves a definition of what is meant by “public property,” “public purposes,” and “ad valorem.” To take the easy phrase first, there can be little doubt but that the police automobiles are used by the city for purely “public purposes.” Neither can we detect any mystery or uncertainty in the meaning of “public property.” Now, let us determine what is meant by “ad valorem” tax. Webster’s New International Dictionary, Second Unabridged Edition, defines “ad valorem” as: “Literally, according to the value; — used especially to designate a duty or charge laid upon goods at a certain rate per cent upon their value as stated in their invoice, in opposition to a specific sum upon a given quantity or number; to designate an assessment of taxes against property, etc.” This definition fits the tax in question like a pocket in a shirt. The rate is three per cent of ninety per cent of the value; so, it is clearly a tax based on value.

Inasmuch as Cromwell, supra, relied on so heavily by appellants, held that a flat rate per gallon tax on gasoline was not exempt under Section 170, we should undertake, if we may, to distinguish the Cromwell case from the case at bar. First, it was found in Cromwell that Section 170 applied only to an ad valorem tax. There the tax rate was a flat one per gallon, regardless of whether it be “regular or ethyl,” “octane or otherwise.” The question of value did not enter into the Cromwell tax; hence, the levy in Cromwell was not ad valorem. Therefore, the conclusion we reach herein, that the tax in question violates Section 170 of the Constitution, is not in conflict with the opinion in City of Louisville v. Cromwell. Of course, the distinction is fine, but we do not intend to be boastful or apologetic when we say that often the wheels of justice must grind “exceedingly fine.” See also City of Owensboro v. Commonwealth, 105 Ky. 344, 49 S.W. 320, 44 L.R.A. 202 (1899); and Board of Education of Kenton County v. Talbott, 286 Ky. 543, 151 S.W.2d 42 (1941).

The fact that the Legislature stated in 138.460 that the tax was being levied on the “use in this state of every motor vehicle,” does not remove the tax from the exemption provided in Section 170. The nature and character of the tax is measured by its features and not by the name given it by the Legislature. It is fair to presume the writers of the statute in question did everything possible to avoid allowing an exemption.

It may be said there is no difference between the tax in question and the general sales tax, but as pointed out in Marcum v. City of Louisville, Ky., 374 S.W.2d 865 (1963), the sales tax involves a transaction of purchase and sale, and is fixed upon the seller, whereas the use tax is not excised from or by reason of a transaction. Being a tax on the use and enjoyment of property, it is more akin to a tax on the property itself, an ad valorem tax, than it is to a simple excise tax such as the sales tax in the Marcum case and the gasoline tax in the Cromwell case.

Finally, it is our conclusion appellee and others like situated are exempt from the payment of the tax in question. The judgment is therefore affirmed.

WILLIAMS, Judge

(dissenting).

Section 170 of the Kentucky Constitution exempts from taxation public property used for public purposes. Unfortunately for cities, in this instance, that exemption relates to property taxes and not to excise taxes. City of Louisville v. Cromwell, 233 Ky. 828, 27 S.W.2d 377 (1930).

The tax levied by KRS 138.460 is to be calculated by multiplying ninety percent of the retail price of the motor vehicle by three percent. The tax is based on the use of the motor vehicle and the statute says so. It is purely and simply a use tax.

By statute (KRS 138.470), motor vehicles sold to the United States or the Commonwealth of Kentucky are exempt from the use tax. Cities are not included.

The case of Marcum v. City of Louisville Municipal Housing Commission, Ky., 374 S.W.2d 865 (1964), stands only for the proposition that institutions of purely public charity are exempt from payment of the use tax. A city is not an institution of purely public charity. Charitable institutions are exempt from payment of taxes of every class by Section 170 of the Kentucky Constitution. Board of Education of Kenton County v. Talbott, 286 Ky. 543, 151 S.W.2d 42 (1941).

Use taxes are turned over to the State Treasurer for the benefit of the State Road Fund. KRS 138.460 and 186.260, and Kentucky Constitution, Section 230. It follows the same reasoning applies to a consideration of use taxes as was applied to the consideration of gasoline taxes in City of Louisville v. Cromwell, supra.

A general statement of the prevailing law is found in 51 Am.Jur., Taxation, Section 558:

“While generally it is assumed, in the absence of expression of clear intent to the contrary in the taxing statutes, that property of municipal corporations and other subdivisions of the state is exempt from property taxes, such exemption does not, according to many courts, exist with reference to excise and privilege taxes, and as to such taxes municipal corporations are liable unless there is an express exemption in the tax statute. Moreover, when there is an express constitutional or statutory provision for the exemption of municipal corporations from taxation, such provision will be construed to apply only to ad valorem taxes on specific property, and not to exempt such bodies from license and excise taxes. * * * ”

I recognize the need of cities for financial relief, but, under the law, they are not exempt from payment of the use tax. I therefore respectfully dissent from the majority opinion.

Judge MILLIKEN joins in this dissent.


author: CULLEN, Commissioner.

text:
    John CARROLL et al., Appellants, v. KENTUCKY & WEST VIRGINIA GAS COMPANY, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1966.

      Jean L. Auxier, Pikeville, for appellants.
    C. Kilmer Combs, Tucson, Ariz., Francis L. Rice, Pikeville, for appellee.
   CULLEN, Commissioner.

The dispute in this case concerns the location of the boundaries of a 300-acre tract of mountain land conveyed by a deed of 1890. The plaintiff (appellee) claimed that the boundaries were so located as to embrace a gas well which the plaintiff has been operating for some 20 years. The defendants (appellants) maintained that the tract lay south of the well and did not embrace it. The trial court, accepting the testimony of the plaintiff’s surveyor, entered judgment locating the boundaries as claimed by the plaintiff. The defendants, appealing, argue the case solely on the proposition that the testimony of the plaintiff’s surveyor is incredible and without probative value.

The surveyor testified that a portion of the northeastern line of the tract in question was a common boundary with a John Harris tract. The appellants maintain that the evidence shows this testimony to be false; therefore, they argue, all of the surveyor’s testimony becomes unbelievable. The argument is not sound because, accepting the premise, the conclusion does not follow. The record shows that the surveyor merely cited the claimed coincidence of the boundary lines as supporting the accuracy of his survey of the tract in issue, in the course of which survey he claimed to have physically located the boundaries. Assuming that there was no coincidence of lines, and thus no support, that alone would not render incredible or without probative value his direct testimony as to the location by his survey of the lines of the tract in issue.

The 1890 deed contained 32 calls. The seventh call is for a “chestnut oak on top of the ridge at the head of Jack Fords Branch”. The seventh call as located by the appellee’s surveyor is on a ridge at a chestnut oak stump but the ridge is not at the head of Jack Fords Branch; in fact, it is some 2,400 feet from the head of the branch. The appellants argue that this fact destroys the credibility of the surveyor’s testimony. From a topographical map in the record it appears that the call as located by the surveyor is at or near the mouth of Jack Fords Branch. This indicates that the call in the deed inadvertently may have used “head” instead of “mouth.” If the deed were taken literally in respect to this call it would locate the tract much farther south than anyone in the case contended. In fact, the appellants take the position that the point at which the ap-pellee’s surveyor located the ninth call is actually the point of the fifth call. This would not put the seventh call anywhere near the head of the branch. Furthermore, to give the one call the controlling effect suggested by the appellants would be to ignore a number of other calls the location of which by the surveyor is not challenged. Under these circumstances we are not convinced that the surveyor’s testimony must be classed as incredible simply because of the discrepancy concerning the location of the seventh call.

In order to get his survey to close, the appellee’s surveyor was required to change the course of the closing call from 3" 74 E as set forth in the deed to N 74 E. The appellants point to this as being another reason why the surveyor’s testimony must be considered incredible. (The appellants’ counsel also argues, from his reading of the topographical map, that the closing line as run by the surveyor could not be “shot” and that the original surveyor would not have “shot his final call blind.” However, we are not capable of such expert reading of the map.) In view of the fact that the correctness of the location of the beginning point by the appellee’s surveyor is borne out by his having found specific monuments described in the deed by following the calls from that beginning point, and in view of the fact that the calls immediately preceding the closing call seem to have been definitely located, and since a typographical error in substituting “S” for “N” reasonably could have occurred, we think that the surveyor’s substitution of “N” for “S” in the closing call, which resulted in the survey’s closing properly, was reasonable and did not render his survey unacceptable or his testimony incredible. See Watlington v. Kasey, 293 Ky. 382, 168 S.W.2d 988.

It is our conclusion that the surveyor’s testimony had probative value sufficient to sustain the trial court’s findings of fact.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Eugene DECKER et al., Appellants, v. GLASSCOCK TRUCKING SERVICE, INC., Appellee.
    Court of Appeals of Kentucky.
    May 27, 1966.
    J. T. Hatcher, Hatcher & Lewis, Eliza-bethtown, B. M. Vincent, Brownsville, Charles B. Zirkle, Louisville, for appellants.
    H. L. James, Elizabethtown, for appellee.
   DAVIS, Commissioner.

The appeal before us questions the propriety of the trial court’s denial of interest upon judgments entered in behalf of appellants against appellee pursuant to the mandate of this court following our decision in Decker v. Glasscock Trucking Service, Inc., Ky., 397 S.W.2d 773. Appellants’ motion for appeal has been sustained. KRS 21.080.

It is to be observed that a directed verdict was returned at the original jury trial of the numerous claims arising out of the motor vehicle accident in this case, by which directed verdict the present appellee was absolved from responsibility as to the claims of the present appellants. That case proceeded to verdict and judgment against other defendants, and these appellants were awarded separate verdicts in varying amounts as to each. Judgment was entered upon those verdicts on May 4, 1964, by the terms of which the respective plaintiffs (present appellants) were allowed recovery of interest at 6% per annum upon their respective judgments from the judgment date, May 4, 1964. The effect of our decision in Decker v. Glasscock Trucking Service, Inc., Ky., 397 S.W.2d 773, was to reverse the granting of a directed verdict and consequent judgment to appellee Glasscock Trucking Service, Inc., with directions to enter judgment for each of the appellants against Glasscock Trucking Service, Inc., in accordance with the verdict rendered.

Upon remand of the case the circuit court entered judgment against Glasscock for the present appellants in the respective amounts awarded to them by the jury at the original trial, but denied appellants’ motion that the judgment bear interest at 6% per annum from May 4, 1964, (the date of the original judgment upon the verdict). Instead, the new judgment provided that interest upon the judgment should accrue at 6% per annum from February 22, 1966, the date of its entry.

The matter of interest upon judgments is treated in KRS 360.040 in these words and figures:

“A judgment may be for the principal and accrued interest; but if rendered for accruing interest, it shall bear interest only according to its terms. Provided, that when a claim for unliquidated damages is reduced to judgment, such judgment may bear less interest than six per centum (6%) if the court rendering such judgment, after a hearing on that question, is satisfied that the rate of interest should be less than six per centum (6%). All interested parties must have due notice of said hearing. (1942, c. 99. Eff. June 1, 1942.)”

When the judgment on the original verdicts was entered on May 4, 1964, the claims of these appellants became liquidated claims. As noted, the judgment of May 4, 1964, provided for interest to accrue on the money judgments from the date of the judgment. But for the error of the trial court in directing a verdict for Glasscock Trucking Service, Inc., the judgment against it would have borne interest at 6% from May 4, 1964. Virtually the same question as is presented here was adjudicated by this court in Elpers v. Johnson, Ky., 386 S.W.2d 267 in which it was written, in part:

“ * * * we are of the opinion that plaintiffs were entitled to interest from the date the judgment should have been entered.”

It is noted that KRS 360.040 reposes discretion in the trial judge in the matter of fixing an interest rate at less than 6% in instances of reduction of unliquidated claims to liquidated judgments. However, that statute requires a hearing on the subject, pursuant to notice. This partial record, appropriately before us upon a statement of points accompanying the designation for partial record, fails to disclose that any such hearing was had. Appellee did not avail itself of the opportunity to file a counter-designation of record to reflect any such hearing, nor is there any contention that such a hearing was had. In these circumstances, it is apparent upon the record that the trial judge did not purport to act pursuant to KRS 360.040.

The judgment is reversed with directions to enter a new one fixing the commencement date for computation of interest as May 4, 1964, as to each of the sums awarded the respective appellants.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. S. B. ALLEN, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    May 27, 1966.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., John P. Kirk-ham, Frankfort, Reed D. Anderson, Dept, of Highways, Jackson, for appellant.
    O. J. Cockrell, Jackson, Nickell & Walter, Ralph N. Walter, West Liberty, Rose & Short, E. B. Rose, Beattyville, for appel-lees.
   WILLIAMS, Judge.

To acquire right of way for construction of the Mountain Parkway, the appellant Commonwealth of Kentucky, Department of Highways, condemned a strip of land comprising 18.45 acres through the appellees’ 131-acre farm. A jury in the Wolfe Circuit Court awarded $8,000 for the land taken and $8,000 for damage to the remainder. (The case was tried prior to Commonwealth Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, 1963). The Commonwealth appeals on the ground that the testimony offered by appellees’ witnesses did not have sufficient probative value to support a verdict of $8,000 for the land taken.

The farm consisted of approximately 60 acres of bottom land and 71 acres of hill land. The bottom land section of the property fronted on KY 15. A creek ran through the property, separating the bottom land (with the exception of three acres) from the hill land. The land taken by the Commonwealth included that three acres of bottom land plus 15.45 acres of hill land. Appellees were left with about 57 acres of bottom land on one side of the new parkway and 56 acres of hill land on the other. The hill property was landlocked after the parkway was constructed.

The witnesses for the appellees testified generally that the farm was worth $40,000 before the taking and $20,000 afterward. They ascribed a $9,000 value to the land taken and $11,000 damage to the remainder. Broken down, they allowed about $500 per acre for the land taken and $97 per acre for the land remaining. Of the 113 acres remaining, 56 were landlocked hill land and, consequently much reduced in value. But there also remained 57 acres of bottom land which fronted on KY 15.

Of course, breaking down overall estimates into acreage values does not always give an accurate picture of the competency of the appraisal. But in this instance there was absolutely no reason shown why there was such a radical discrepancy in the value ascribed to the land taken and to that remaining. Even if no value whatsoever were allowed for the landlocked hill property, the comparable value of the remaining bottom land was figured substantially lower than the land taken.

We held in Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963), that testimony such as was given here has some probative value, and a jury should accord it its proper weight and value. But, if the jury obviously and clearly gives the evidence more weight and value than the maximum it is entitled to, the verdict may be set aside. Here the testimony by appellees’ witnesses was wholly illogical, and the verdict of the jury which was based upon it was not supported by sufficient evidence.

The judgment is reversed.


text:
    Dorothy Mae GORDON, Appellant, v. JEFFERSON COUNTY FISCAL COURT and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    May 27, 1966.
    Edwin I. Baer, Kenny Grantz, Louisville, for appellant.
    C. Dant Kearns, Louisville, J. Keller Whitaker (Workmen’s Compensation Board), Frankfort, for appellees.
   MILLIKEN, Judge.

This case originated from an application for benefits under the Workmen’s Compensation law by the appellant, widow of one John R. Gordon who died as a result of an accident which occurred September 15, 1963. The Workmen’s Compensation Board refused compensation because of its conclusion that the deceased did not suffer his injury and subsequent death in an accident that arose out of his employment, and, upon appeal, the trial court held that the Board was correct and dismissed the appeal. The only question before the Board was whether or not the injury and death arose out of and in the course of the deceased’s employment.

The decedent was the watchman for the defendant-employer. On Sunday, September 15, 1963, he was on his job in the defendant’s garage. Shortly after 7:00 a. m., he was found with the rear end of his automobile on his chest and the front end of his automobile raised upon a grease rack. At that time decedent was still alive and he mentioned that his wallet was in his automobile and asked that it be taken care of. He was taken to the hospital and shortly thereafter he died. There was no proof on the part of either party as to whether or not the decedent was working on his automobile except for such inferences as may arise from the lack of tools at the site of the accident. There is no question that there was a rule by the employer to the effect that no personal work was to be done on the premises, but there was apparently no rule that an employee could not place his automobile on the grease rack.

In its opinion and award the Workmen’s Compensation Board refused compensation, stating:

“When the decedent placed his car upon the grease rack and raised it, he was not performing any duties incidental to his employment but was for some unknown personal reason. In the absence of an explanation as to why the decedent placed the car on the grease rack, or facts from which the Board may infer that such acts were in furtherance of defendant’s business, the Board finds that the accident did not arise out of his employment.”

We think the Board’s findings are reasonable. This is not a case where the employee used an automobile to further the business of his employer as was the situation in Corken v. Corken Steel Products, Inc., Ky., 385 S.W.2d 949, where we held that a salesman, who was killed by a demented stranger when returning to his car from a noon lunch at a nearby restaurant, was within the course of his employment at the time of his death and that it arose out of a hazard of his employment, employment which required use of a car to transport him from customer to customer. Rather, the automobile of the deceased in the case at bar was used solely for his personal convenience in going to and from his work, and he was permitted to park it in his employer’s garage, again solely for his personal convenience. We have no trouble, of course, in finding that the accident arose in the course of his employment, but we must agree with the Board that the other necessary prerequisite for recovery — that the accident arose out of the employment — cannot be found on the facts of this case.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Tom Frank REDMON et al., Appellees.
    Court of Appeals of Kentucky.
    May 27, 1966.

      Robert Matthews, Atty. Gen., H. C. Smith, Frankfort, Tildón H. McMasters, Elizabethtown, for appellant.
    W. R. Gentry, Jr., Bardstown, Richard J. Lowther, Ames, Iowa, for appellees.
   CLAY, Commissioner.

In this condemnation case the Commonwealth took 34.5 acres of the landowners’ 155-acre farm in Nelson County. The jury’s award was $7,150. The Commonwealth claims there was a duplication of damages and the award was excessive.

The basis of the Commonwealth’s claim that damages were duplicated by the landowners’ witnesses is that they in effect fixed a full value for the land taken and then added to that damages by reason of the fact that the remaining land was reduced in acreage to the extent of the land taken. The Commonwealth compares the situation with that in Commonwealth, Department of Highways v. Raybourne, Ky., 364 S.W.2d 814, wherein we condemned evidence which had the effect of awarding damages for the part taken and awarding the same value again as damages to the remainder. We do not think it fairly could be said that the landowners’ witnesses were taking this approach. Their position was that a 120-acre farm was not as valuable, per acre, as a 155-acre farm (when used as a dairy farm, as this one was).

The testimony of some witnesses was of questionable competency to the extent it may be construed as recognizing the loss to the owner, but upon careful consideration, we believe the evidence fairly related to market values.

With regard to excessiveness, the Commonwealth’s complaint is mainly directed to the value estimates of the landowners’ witnesses rather than the verdict. In our opinion the verdict is not excessive.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Orlan BINGHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1966.

      Orlan Bmgham, pro se.
    Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Orlan Bingham appeals from an order of the Laurel Circuit Court summarily overruling his RCr 11.42 motion to vacate the conviction and sentence pursuant to which, he is imprisoned in the Kentucky State Penitentiary.

The motion alleges that the movant was deprived of the effective assistance of counsel. The specific facts stated in support of the allegation are not sufficient to suggest a constitutional violation.

The order is affirmed.


text:
    Samuel LAWSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1966.
    Morris Butler, Greensburg, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for appel-lee.
   DAVIS, Commissioner.

Samuel Lawson appealed to the Hart Circuit Court from a judgment of the Police Court of Horse Cave convicting him of the offense of reckless driving, a misdemeanor. KRS 189.290; 189.990(1). Upon a jury trial in the circuit court, Lawson was found guilty and his punishment fixed at the minimum fine, $10.00.

Lawson has appealed to this court seeking to reverse that conviction and consequent fine of $10.00. He proceeds by motion for appeal as prescribed in KRS 21.140 (2).

The record before us contains no transcript of the evidence heard at the trial below. None of the procedures prescribed by RCr 12.68, 12.70 and 12.72 has been attempted. We have before us all of the record except the evidence. It is familiar law that in such circumstances the appellate court will presume that the evidence supported the judgment. Travelers Indemnity Co. v. Patrick, Ky., 386 S.W.2d 256; Cadden v. Commonwealth, Ky., 242 S.W.2d 409.

The affidavits of appellant and his counsel, filed in support of motion and grounds for a new trial, cannot be accepted as a substitute for a transcript of evidence. This is particularly true in view of the requirements of RCr 12.68, 12.70 and 12.72. Cf. Tucker v. Kilgore, Ky., 388 S.W.2d 112 and cases there cited.

The judgment is affirmed.


text:
    Lewis G. MARTIN, Appellant, v. Arthur GUTTERMUTH et al., Appellees.
    Court of Appeals of Kentucky.
    May 27, 1966.
    William D. Grubbs, Louisville, for appellant.
    Lively M. Wilson, Robert G. Breetz, Stites, Peabody & Helm, Louisville, for ap-pellees.
   CLAY, Commissioner.

This is a suit for contribution brought by appellant plaintiff against defendant ap-pellees. After a trial on the issue of negligence and the return of a verdict favorable to plaintiff, the trial court sustained defendants’ motion to dismiss on the pleadings, upon which issue the court had reserved its ruling.

An automobile collision took place between plaintiff’s automobile and defendants’ limousine. Plaintiff’s insurance carrier settled defendants’ claims by paying $650 to them and obtaining a release. Thereafter the insurance carrier settled claims of passengers in defendants’ limousine for $3,266.-30. This suit was brought by plaintiff (for the benefit of his insurance carrier) to recover as contribution one-half the amount paid the passengers on the theory that defendants were joint tort feasors.

Defendants’ defense, upheld by the court, was that the plaintiff’s payment of $650 in settlement of the defendants’ claims estop-ped him from making his claim for contribution.

Both parties discuss the effect of the insurance aspects of the case. We believe the problem may be solved by ignoring the part played by plaintiff’s insurance carrier. The narrow issue is whether one joint tort feasor who settles a claim with the other by making a payment of money thereby estops himself to assert against the other a claim for contribution subsequently accruing.

We cannot find a basis for such estoppel. When the plaintiff settled with the defendants he simply bought his peace with respect to any claim defendants might have against him. It may be that with respect to any claims then existing as between the- two parties, the transaction constituted a mutual release so that the plaintiff could not sue the defendants for his personal injury or property damage arising out of the accident. That is the type of situation which appears to constitute the basis of defendants’ plea of estoppel, their principal cases being: Wm. H. Heinemann Creameries v. Milwaukee Automobile Insurance Company, 270 Wis. 443, 71 N.W.2d 395, 72 N.W.2d 102; Giles v. Smith, 80 Ga.App. 540, 56 S.E.2d 860; Kelleher v. Lozzi, 7 N.J. 17, 80 A.2d 196.

It is unnecessary to decide if we should follow those decisions, although we question the reasoning that in a settlement of this nature either party admits the other is right or wrong. The release agreement in the present case expressly denied liability on the part of the plaintiff.

Whether the plaintiff could have sued the defendants for his personal injury or property damage after the payment to the defendants is not the question before us. It is whether plaintiff must be held to have agreed by implication or otherwise that he would not assert against defendants a subsequently accruing contribution claim. We believe Leitner v. Hawkins, 311 Ky. 300, 223 S.W.2d 988, followed in Edester v. Heady, Ky., 364 S.W.2d 811, is conclusive on the point. There the situation was reversed in that the joint tort feasor who had been paid money sued the other joint tort feasor to whom he had given a most comprehensive release. We held that such release did not bar a claim for contribution. In the course of the opinion we envisioned the precise situation we have here and recognized the right of each joint tort feasor to sue the other for contribution in spite of a prior mutual settlement between them. If, as in the Leitner case, a written agreement not to assert any claim is not a bar to contribution, we could not hold that an agreement arising by implication could have greater force and effect in the absence of such manifest intention.

We find no evidence of such an intention. Nor can we find a ground for estoppel. Plaintiff’s position is not inconsistent with the one he took to forestall the assertion of defendants’ claims, nor is it unconscionable to maintain this suit. Those are elements of equitable estoppel to which defendants refer us. See Louisville Joint Stock Land Bank v. McMurry, 278 Ky. 238, 128 S.W.2d 596. As a matter of fact, it would be unconscionable to relieve defendants of this liability in view of the fact that under the Leitner case, in spite of the complete release given by the defendants to the plaintiff, they could have sued the plaintiff for contribution had they been subjected to liability to the injured third-parties.

The judgment is reversed with directions to enter a judgment for the plaintiff upon the jury verdict.


text:
    William Sanford SHEWMAKER, Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1966.

      Peter Perlman, Fowler, Rouse, Measle & Bell, Lexington, for appellant.
    Denney, Landrum, White & Patterson, Charles Landrum, Jr., Edwin R. Denney, Lexington, J. Smith Hays, Hays & Hays, Winchester, James M. Terry, Eugene W. Herde, Louisville, for appellee.
   PALMORE, Judge.

The appellant, Shewmaker, brought this suit against the appellee railroad company for personal injuries and property damage sustained by him when his truck was hit by a train at a crossing in the city of Mt. Vernon. After a jury had returned a $15,757 verdict in his favor the trial court entered a judgment n. o. v. for the railroad company, and he appeals.

Shewmaker was driving his truck and a trailer of cargo southward on U.S. Highway 25. The highway curves to the right and crosses a double set of railroad tracks which for the sake of convenience may be considered as running east and west. The train was approaching from the east, or Shewmaker’s left, on the north track. As a motorist approaches the crossing his view of the railroad right-of-way is substantially obstructed by a service station and various signs in front of it, a large billboard situated parallel with the tracks and about 25 feet to the left of the highway, and an earth embankment along the north side of the tracks. The embankment is not as tall as a train engine, but it is one of the objects which in the aggregate reduce to an abnormal degree the opportunity of a southbound motorist to observe a train coming from the east.

In view of the extra-hazardous nature of the crossing the railroad company maintains automatic flasher lights and signal bells to warn travelers on the highway when a train is approaching. These signals are supposed to be electrically activated when the train reaches a point 1800 feet from the crossing. However, according to the testimony of both Shewmaker and Eula Day, a passenger in another vehicle simultaneously approaching the tracks from the opposite direction, they did not come on, nor did the train crew sound a bell or whistle, until the engine had almost reached the highway intersection. At this time Shewmaker was some 50 feet, or the length of his tractor-trailer, from the north track. He says he was moving at a speed of 20 to 22 m. p. h. and required a distance of 85' to 100' in order to stop. Hence he was not able to stop before reaching the track, and the left front portion of his vehicle was hit by the lead engine of the train.

The accident happened in the daytime. Photographs and charts were introduced in evidence from which it seems indisputable that at certain points along the highway as he drew near the railroad tracks Shew-maker could have seen the train in time to stop, if only he had looked at the right time and at the right place, or if he had ignored the highway in front of his truck and kept an uninterrupted lookout to the left.

Shewmaker had used the crossing on many occasions and was familiar with the physical circumstances. He admitted that instead of looking to his left (until the automatic signals came on) he depended on the mechanical warning system. The ground on which the railroad company was granted a judgment n. o. v. was that he was contributorily negligent as a matter of law. Cf. Southern Ry. Co. v. Feldhaus, Ky., 261 S.W.2d 308 (1953).

The railroad company’s brief places much reliance on such recent opinions as Cincinnati, N. O. & T. P. Ry. Co. v. Ferguson, Ky., 385 S.W.2d 947 (1965); Louisville & N. R. Co. v. Dunn, Ky., 380 S.W.2d 241 (1964); and Hargadon v. Louisville & N. R. Co., Ky., 375 S.W.2d 834 (1964). Those cases stand for the proposition that under ordinary circumstances a motorist approaching a grade crossing with an uninterrupted and unobstructed view (a) for a long distance up the track in the direction from which a train is coming, and (b) for an ample distance on the highway before reaching the intersection, cannot rely solely on a warning signal from the train, and if he drives heedlessly onto the track right in front of the train and is hit by it he must be held negligent. But that was not the situation in this case.

When the railroad crossing is equipped with gates or signal devices designed to warn the traveler of an approaching train, the silence or inaction of these protective devices is to some extent an assurance “that no train is then dangerously approaching the crossing, and that travelers can cross in safety.” Southern Ry. Co. v. Burkholder, 264 Ky. 796, 95 S.W.2d 589, 592 (1936), quoted in Chesapeake & O. Ry. Co. v. Pittman, 292 Ky. 331, 166 S.W.2d 443, 447 (1942). The apparent invitation and assurance are not absolute, but are nevertheless “well calculated to diminish the quantum of care considered as ordinary.” Vinson v. Southern Ry. System, 287 Ky. 625, 154 S.W.2d 734, 735 (1941).

In the Vinson case, last cited, it was held that the failure of the occupants of an automobile to look down the track until they were “right on” it did not convict them of contributory negligence, because it was questionable whether they could have seen the train before reaching that point anyway. In Southern Ry. Co. v. Feldhaus, Ky., 261 S.W.2d 308 (1953), an injured motorist was held contributorily negligent because, though he said he did look up the track but failed to see the oncoming train, the court took the view that his testimony was not credible and that he had not looked at all. The Vinson case was distinguished, but not to the satisfaction of all the court, or of the court today.

Shewmaker testified, “You can’t see until you get right up to the crossing whether the train is coming or not * * *. You have to be right up next to the crossing before you can see it * * *. If you’re moving, you can’t get a good view until you get right up to the track.” This last remark is the answer to the still photographs introduced in evidence. It is conceded in the railroad company’s brief that “there were intermittent obstructions to his view.” When a motorist is moving along a street or highway in a congested area and there are substantial obstructions to his view up and down an intersecting railroad track which is equipped with automatic signals to warn him of approaching trains, prudence may suggest that he keep his eye on the road and rely on the signals rather than attempt to peer around and between the signboards and buildings to his left and right. We do not say that in every such instance he may rely absolutely on the signals, but we are of the opinion that whether and to what extent ordinary care would demand any further or additional lookout on his part is definitely a question for the jury to decide. To the extent it is in conflict with this viewpoint, Southern Ry. Co. v. Feldhaus, Ky., 261 S.W.2d 308 (1953), is overruled.

The jurors were instructed that if they found for the plaintiff they should compensate him for (1) damage to his truck, (2) medical expenses incurred, (3) time lost from his employment, (4) pain and suffering, (5) permanent impairment (if any) of his earning power, and (6) loss of use of his truck during the time reasonably required to repair it. They first brought in a nine-man verdict awarding $5400 for item 1, $357.20 for item 2, and “No Damages” for each of the remaining items. On joint motion of the parties the tendered verdict was rejected and the jurors were sent back with instructions that if they awarded medical expenses (item 2) it would be necessary that they award something for pain and suffering (item 4). They returned presently and reported their inability to reach a verdict on item 4. Again the court instructed them, at the instance of the parties, that if they allowed anything for medical expenses they would have to allow something for pain and suffering, even if only $1.00. This time, after further deliberation, they returned a nine-man verdict for $15,-757.20 having lined out the words “No Damages” opposite item 4 and substituted the figure “10,000.”

Shewmaker was hospitalized for six days and was incapacitated for some time thereafter. He did endure pain and suffering. A verdict granting him any recovery at all must therefore have awarded something in that respect. Cf. Wall v. Van Meter, 311 Ky. 198, 223 S.W.2d 734, 20 A.L.R.2d 272 (1949). And, of course, the same may be true with respect to some of the other items of damage, such as lost time, but that is unnecessary to decide, because the question now before us is whether in reversing we should direct a new trial.

Both in a memorandum opinion and in the judgment the learned trial judge stated that if he had not granted a judgment n. o. v. he would have ordered a new trial because the $10,000 award for pain and suffering was excessive and because the change from a finding of “No Damages” to an obviously reluctant verdict of $10,000 showed “that something went wrong in the jury room.” Without determining whether the amount was excessive, and in accordance with CR 50.03, we accede to the discretion of the trial court in granting a new trial on all issues.

The judgment is reversed with directions for a new trial.