author: DAVIS, Commissioner.

text:
    Dennis Neal WILLIAMSON, By and Through his next friend, Jess J. Williamson, etc., Appellants, v. Raymond GARLAND, Appellee.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    Rehearing Denied May 20, 1966.
    Albert Karnes, Paducah, for appellants.
    Earl T. Shoup, Paducah, for appellee.
   DAVIS, Commissioner.

Dennis Neal Williamson, a minor nearly 12 years old, was injured when he was riding a bicycle which collided with the automobile of appellee Raymond Garland. In this damage suit the trial court directed a verdict for appellee; in announcing its decision, the trial court expressed the view that there was no showing of appellee’s negligence and appellant was guilty of contributory negligence as a matter of law. This appeal challenges each of these rulings as erroneous.

The accident occurred on a clear day in August, on Jackson Street at or near its intersection with 29th Street in Paducah. Jackson Street is the preferred street. Jackson is a four lane street, running in an east-west direction; 29th Street runs north-south.

Appellant was riding a bicycle northwardly on 29th Street just before the accident. He was “ahead” in a bicycle race being engaged in between Bruce Johnson, also 11, and himself. Appellee was driving his car eastwardly on Jackson at about 20-25 mph; he was driving in the lane nearest the right curb of Jackson. A hedge and slight embankment on the west side of 29th Street partially obstructed the views for travelers going north on 29th and east on Jackson.

According to Bruce Johnson, who was trailing appellant on his bicycle, appellant applied his brake as he approached Jackson Street, but skidded in some loose gravel, entered Jackson Street, turned eastwardly on Jackson, and started “pumping” the bike down Jackson. Bruce expressed the opinion that appellant “tried to outrun” the approaching car of appellee. The boy said that he thought the collision occurred “by a telephone pole.”

There is contrariety in evidence as to the point of impact. A police officer who came to the scene just after the event testified that appellant was lying by a “light pole” near the sidewalk on the south side of Jackson Street, about 60 feet east of the intersection of Jackson and 29th Streets. The bicycle was near the same pole, although slightly nearer 29th Street than was appellant. The automobile “ * * * was just past where the bicycle lay, but it wasn’t past the little boy, the way I remember it. I think it had passed possibly the bicycle where it was laying there against the pole,” according to the exact testimony of the officer.

The officer related that the appellee’s car was situated about three feet from the south curb of Jackson Street. He observed scratches on the car’s right front fender, beginning with a light scratch 12 or 18 inches back of the right headlight. The scratches “got a little heavier” as they “come on back,” the officer said. In the top of the car, just over the right side of the windshield, was a dent. There was a “small dent” at the back part of the cowl. The officer testified that appellee told him the scratches and dents had resulted from the collision.

The appellant sustained a fractured skull and brain injury in the collision; he was unable to recall the details of the accident with any degree of eertainty. The appellee was called to testify briefly on cross-examination, and said that he did not see appellant before the impact. Appellee said that in his best judgment the collision occurred at the extreme east side of 29th Street at its intersection with Jackson.

During the trial appellant was not able to recall details of the accident, although ap-pellee’s counsel elicited answers from him in which he stated that he knew traffic was heavy along Jackson Street, that he should have stopped before entering Jackson, he should have looked to his left but did not think he had, and the accident would not have occurred if he had stopped and looked for traffic. In another portion of the cross-examination appellant spoke of having observed the hedge on his left — to this extent, at least, contradicting his statement that he had not looked to the left.

We examine the question of contributory negligence. Appellant’s counsel concedes that the act of appellant would constitute contributory negligence as a matter of law if done by an adult, but asserts that the same rule is not applicable here because of appellant’s age. The litigants recognize that our cases have uniformly followed the rule that children ranging from seven through 14 years of age are presumed incapable of contributory negligence, although the presumption is a rebuttable one. Baker v. Sizemore, Ky., 338 S.W.2d 386. Appellant contends that in no case has this court held a child guilty of contributory negligence as a matter of law, when its age ranged between seven and 14 years. Appellee points to Nett v. Zellars, Ky., 353 S.W.2d 379 and Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448, in which this court held that the question of the child’s capability to be contributorily negligent was properly determined as a matter of law. Of like import is the more recent decision in Willoughby v. Stilz, Ky., 387 S.W.2d 10. Appellant calls attention to 77 A.L.R.2d 917 et seq., wherein appears an exhaustive Annotation concerning modern trends as to contributory negligence of children. The cited text adverts to decisions of other jurisdictions which have held children contributorily negligent as a matter of law, but recognizes that “ * * * normally, if not always, a question of fact for the jury is presented, rather than one of law for the court.” 77 A.L.R.2d 932.

An anomaly appears in the rebuttable presumption rule. Since the rule fixes a prima facie lack of capacity to all children in the seven through 14 age bracket, it must be based on the notion that the average child in that age group is incapable of contributory negligence. Yet, the same rule permits a factual showing relating to the age, intelligence and experience of the particular child — and, as was done in Nett v. Zellars, Ky., 353 S.W.2d 379 (as well as Dixon v. Stringer, supra, and Willoughby v. Stilz, supra) — may allow the court to conclude as a matter of law that the child has ample capacity for contributory negligence. Or, the court may submit to the jury whether the facts presented warrant imposition upon the child of the responsibility for contributory negligence. The anomaly arises, however, when the standard of care for the child is defined. It is observed that virtually all authorities agree that the child’s conduct is to be measured by the standard of care to be expected under the same or similar circumstances, from the ordinary child of like age, intelligence, and experience. See 77 A.L.R.2d 930; Baldwin v. Hosley, Ky., 328 S.W.2d 426, 430; Richie v. Chears, Ky., 288 S.W.2d 660, 662. It would seem that the rule envisions that the ordinary child in the exempted age bracket is not capable of contributory negligence — so evidence is adduced showing that the particular child has the capacity and is thus above average — and in turn the duties imposed on him are those expected of the average child possessing like experience, etc.

It seems to us that the better rule would be to impose on the child-plaintiff the duty to exercise that degree of care reasonably to be expected from the ordinary child of like age, intelligence and experience under like or similar circumstances. It is quite obvious that the normal seven year old child should not be charged with the same degree of care to be expected of the normal 14 year old child, so the blanket rule of rebuttable presumption as to all children encompassed within these age limits lacks basis in reason.

We believe there is no longer any useful purpose in the rebuttable presumption against capacity for contributory negligence as to children within the seven to 14 age group. Rather, we consider it appropriate in cases involving such litigants that they be charged with contributory negligence to the extent that their acts may be deemed vio-lative of the degree of care usually exercised by ordinarily prudent children of the same age, intelligence and experience under like or similar circumstances. This is not to say that no case could arise in which it would be proper to find a child in the 7-14 age group guilty or free of contributory negligence as a matter of law, but it is to say that the case at bar is not such a one. Our earlier decisions to the contrary shall no longer be authoritative as to the presumption against capacity as it relates to children seven to 14, inclusive. Henceforth, when an issue is presented respecting the contributory negligence of a minor plaintiff seven or more years of age, unless the contributory negligence (or lack of it) is established as a matter of law, the jury shall be instructed that the minor is charged with the duty to exercise care for his own safety, commensurate with that degree of care usually exercised by an ordinarily prudent minor of the same age, intelligence and experience of the plaintiff.

This brings us to the question of whether any negligence of the appellee appears in this record. We conclude that the physical facts, considered with the testimony of Bruce Johnson and the appellee, are sufficient to create a jury issue whether appellee was negligent. It will be recalled that appellee said he did not see appellant until the moment of impact — the injured hoy and his damaged bicycle were found about 60 feet past the intersection — Bruce Johnson thought the collision occurred by the pole, and that appellant had made his turn and started pumping his pedals as if to “beat” the oncoming car. The marks on the car are not incompatible with the appellant’s theory that the car sideswiped the bicycle after the latter had taken its course in the stream of Jackson Street traffic. This leaves the question of appellee’s lookout and whether he exercised ordinary care to avoid colliding with the appellant under the circumstances. The jury might well have believed that the car necessarily overtook the bicycle, and that its driver had ample opportunity to avoid the collision in the exercise of ordinary care. In this state of record we hold that it was error to adjudge that the appellee was as a matter of law free of negligence.

Appellant urges that the last clear chance doctrine permits him to recover in this instance. This argument is based on the idea that if appellee had been keeping a proper lookout he would have seen appellant in an inextricable position of peril in time to avoid the accident. We agree. The evidence warranted the inference that ap-pellee had a last clear chance to avoid the collision despite any contributory negligence of the appellant. If the evidence upon another trial is substantially the same as upon the first trial the court will qualify the contributory negligence instruction by submitting the issue of last clear chance.

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

MONTGOMERY and STEWART, JJ., dissenting.

      . These multiples of seven are criticized by Prosser, who says that the great majority of courts have rejected such fixed and arbitrary rules of delimitation. Prosser on Torts, 3d ed., p. 158.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    Henry B. McFERRAN, Appellant, v. POSTAL SERVICE, INC., Appellee. Pendleton SANDERFUR, Appellant, v. POSTAL SERVICE, INC., Appellee. John A. LEWIS, Appellant, v. POSTAL SERVICE, INC., Appellee.
    Court of Appeals of Kentucky.
    Feb. 4, 1966.
    H. Solomon Horen, Louisville, for appellants.
    John L. Bennett, Hogan, Taylor, Denzer & Bennett, Louisville, for appellee.
   HILL, Judge.

These actions for personal injuries growing out of an automobile accident were consolidated for the purpose of trial and were dismissed on motion of appellee in a novel proceeding in which the trial court enforced a verbal stipulation settling the claims after claimants and their attorney declined to accept the amounts of the alleged settlement. Attorney for claimants denied the finality of the verbal stipulation of the settlement. Appellants denied authorizing their attorney to settle on the terms enforced by the court.

Regardless of the merits of the appeals, and in the interest of consistency, we dismiss the appeals on the authority of Hawks v. Wilbert, Ky., 355 S.W.2d 655 (1961). The judgment appealed from in these consolidated cases provided that $15,000 paid into court by appellee be paid over to appellants, and their suits dismissed. The judgment was dated and entered December 9, 1963. On the following day appellants filed written motion to set the judgment aside. On December 28, 1963, the court overruled appellants’ motion to set aside the order of December 9.

The notices of appeal were filed January 27, 1964. One is as follows: “Notice is hereby given that the Plaintiff, Henry B. McFerran, hereby appeals to the Court of Appeals from the judgment signed herein on December 28, 1963, wherein this Court overruled Plaintiff’s motion to vacate this Court’s order of December 9, 1963, dismissing this action.” Three notices of appeal were filed. They are identical. Appellants appealed from an order overruling their motion to vacate the judgment. Such an order is not an appealable order. They could have, should have, and probably intended to appeal from the final judgment dated December 9.

CR 73.03 provides: “The notice of appeal * * * shall designate the judgment or part thereof appealed from.” In the construction of the foregoing code provision, this Court said in Hawks v. Wilbert, supra:

“In considering this and similar failures of counsel to follow the rules of appellate practice, the Court is confronted with many hard decisions. The choice presented is whether it is better to adhere strictly to the rules with some seemingly harsh decisions resulting, or to permit a substantial compliance when no prejudice is shown to have been occasioned by the dereliction. This problem has plagued the Court many times. However, rather than having to decide whether each dereliction is prejudicial, the Court has adopted the policy of strict compliance in the belief that the legal profession should by now be adequately informed on these rules. The necessity of strict compliance and the supporting reasons have been thoroughly discussed in the White case and in United Mine Workers of America, Dist. No. 23 v. Morris, Ky., 307 S.W.2d 763 * * *.”

Wherefore the appeals are dismissed.


author: NOLAN CARTER, Special Commissioner.

text:
    Frank C. BELL, Appellant, v. COURIER-JOURNAL AND LOUISVILLE TIMES COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    Rehearing Denied May 20, 1966.

      William A. Carter, Bedford, for appellant.
    George Williamson, LaGrange, Edgar A. Zingman, H. Wendell Cherry, Wyatt, Grafton & Sloss, Louisville, for appellee.
   NOLAN CARTER, Special Commissioner.

This is an action brought by appellant, Frank C. Bell, against the Courier-Journal and Louisville Times Company seeking damages for alleged libelous and derogatory statements printed in its newspapers on August 23, 24, 25, and 26, 1961, at which time Bell was the duly elected and acting police judge of Bedford, Kentucky.

The articles complained of, except Number 4, dealt with the handling of the case of one Philip Scholtz, who was charged with exceeding the speed limit in Bedford.

The complaint alleges that the following excerpts from articles appearing in appel-lee’s papers were “falsely and maliciously” published concerning appellant.

1. “Scholtz said that * * * Bell took him aside and offered to change the charge to disorderly conduct, thus avoiding points toward the loss of Scholtz’ driver’s license, if Scholtz would pay the fine then and forget about a trial.”
2. “The police judge, who apparently greatly wanted to avoid a jury trial, offered to switch the charge from speeding to disorderly conduct, so the motorist would not have any points assessed against his driving permit.”
3. “It is difficult to tell how much has been collected so far this year due to poorly kept records.”

It alleges also that the appellee “maliciously” published the following:

4. “According to * * * records Bell is $58.09 delinquent, plus interest in his 1960 personal and property taxes.”

After appellant’s deposition was taken under cross-examination the case was submitted to the trial court on appellee’s motion to dismiss the complaint, supported by appellant’s deposition. The trial court treated the motion to dismiss as one for summary judgment pursuant to CR 12.02 and in a well-considered opinion granted a summary judgment in favor of appellee.

Upon appeal counsel for appellant argues that the complaint alleges facts on which relief can be granted, and that therefore appellee’s motion to dismiss should have been overruled. Since the trial court treated the motion to dismiss as a motion for summary judgment, the question for its determination was not whether the complaint stated a claim upon which relief could be granted, but whether the record, including appellant’s deposition, as submitted to the court disclosed a genuine issue as to any material fact. CR 56.03.

In his deposition appellant was closely interrogated concerning the truth of the allegedly libelous statements. With reference to the first statement, the deposition discloses that appellant did offer to change the charge against Scholtz from a traffic violation to disorderly conduct, “thereby avoiding points toward the loss of Scholtz’ driver’s license, and eliminating the necessity of a trial.” Thus it is manifest that the statements contained in Number 1 are at least substantially true.

Coming now to Number 2, we agree with the trial judge that there is nothing in Number 2 which is libelous. The statement that “the police judge, who apparently greatly wanted to avoid a jury trial, offered to switch the charge from speeding to disorderly conduct so the motorist would not have any points assessed against his driving permit” in our opinion does not subject appellant to hatred, ridicule, contempt, or disgrace, or tend to induce an evil opinion of him in the minds of right-thinking people. In order for the statement to be actionable per se, that is actionable without averment of special damage, which was not made, the statement complained of must do one of those things. See Digest Pub. Co. v. Perry Pub. Co. Ky., 284 S.W.2d 832.

Moreover, we think that as in the first statement complained of, statement Number 2 is at least substantially correct.

In his deposition appellant made these answers to questions propounded:

“I said, ‘Maybe we could arrange a different charge,’ which is done every day in court, in any court particularly in the Louisville Courts if you keep up with it, charges amended.”
Q. “And you say that this is normal practice ?”
A. “It is in every court that I know anything about.”
Q. “Was it normal practice in your court ?”
A. “Yes, I think I had amended one or two charges before that under similar circumstances.”
Q. “Then in essence you did forget about having a trial, it was over with ?”
A. “That’s the way he wanted it, sir.”
Q. “And that was the way it was done?”
A. “Correct.”

In this state, truth is a complete defense to an action for libel. See Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964. And this is so although the publication may have been inspired by malice or ill will and be libelous per se. Baskett v. Crossfield, 190 Ky. 751, 228 S.W. 673; Pennington v. Little, 266 Ky. 750, 99 S.W.2d 776.

Where the defendant is a newspaper, the rule is that it is not to be held to the exact facts or to the most minute details of the transactions that it reports. What the law requires is that the publication be substantially true. State Journal Co. v. Redding, 175 Ky. 388, 194 S.W. 301; Plummer v. Commercial Tribune Pub. Co., 208 Ky. 210, 270 S.W. 793.

Measured by these rules, and in the light of the admissions made by the appellant in his deposition, we find that the trial judge correctly determined that the first two allegedly libelous statements relied on by appellant were not actionable.

As for the third allegedly libelous statement, we cannot improve upon the trial court’s disposition of this count. The trial court said:

“The third item which the plaintiff claims to be libelous is the statement that he had poorly kept records. This statement has reference to the handling of fines collected by the plaintiff. Plaintiff has testified that at the time Mr. Scholtz came before him, his ‘docket book was about three months behind.’ The procedure in collecting fines is to first record them in a receipt book and then make comparable entries in the docket book. Since the docket book, according to plaintiff’s own testimony, was three months behind at this time, the only way to determine from the records as to the number and amount of fines was to review the receipt books. This would entail going through three to five different receipt books, and these receipt books were kept in various drawers of plaintiff’s desk at his newspaper office. * * * At some times these receipt books were in the possession of the Town Treasurer and on one occasion some of them had disappeared while at the Town Hall. Considering plaintiff’s own testimony as to the condition of his records at the time Philip Scholtz was brought before him, it is the opinion of the Court that the adjective [sic] ‘poorly’ would fairly describe the state of his records at that time. It must be remembered that a public official is subject to reasonable and fair criticism of acts done in his official capacity. The policy behind this rule is clear and obvious. If a newspaper cannot attach the word ‘poorly’ to the record keeping of this plaintiff, established by his own testimony, then the policy behind this rule of law will be absolutely thwarted and responsible newspapers will be prevented from carrying out their duty to inform the public of the conduct and performance of its elected officials. Criticism of public officials, however severe, is not libelous if it be confined within the limits of fair and reasonable criticism. Vance v. Louisville Courier-Journal, 95 Ky. 41, 235 [23] S.W. 591.”

Coming now to the fourth statement of which appellant complains, to the effect that according to the records Bell was $58.09 delinquent plus interest in his 1960 personal and property taxes, appellant admitted it was true; but he alleges that it was maliciously published and contends that it is actionable as an unlawful invasion of his right of privacy.

Counsel for appellant is correct in his statement that while truth is a complete defense to an action for libel, it is not a defense to an action for invasion of the right of privacy. 41 Am.Jur. “Privacy” § 13; Brents v. Morgan, supra.

In Brents v. Morgan, which is relied on by appellant, the owner of a garage caused a large placard to be displayed in the window of his garage stating that: “Dr. W. R. Morgan owes an account here of $49.67. And if promises would pay an account this account would have been settled long ago. This account will be advertised as long as it remains unpaid.” The Court of Appeals held that this notice constituted an unlawful invasion of plaintiff’s right of privacy and was actionable.

There are distinctions between the Morgan case and the case at bar. As stated by counsel for appellee in their brief, the Morgan case “dealt with the publication of a private debt owing by the plaintiff (a private individual), while in this case we are concerned with the right of the public to know whether or not its elected public officials pay the taxes they administer.”

One who holds public office subjects his life to the closest scrutiny for the purpose of determining whether the rights of the public are safe in his hands. 41 Am.Jur., “Privacy”, § 18; Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101.

Matters which are so public as to be spread upon a public record (such as delinquent taxes) come within the knowledge and possession of the public and cease to be private; and it has been held that the republishing of such a record is not an actionable invasion of the right of privacy. Melvin v. Reed, 112 Cal.App. 285, 297 P. 91.

We therefore conclude that the publishing of the fact that appellant was delinquent in the payment of his personal and property taxes is not actionable as an invasion of his right of privacy. The result we have reached in this case is in keeping with the principles announced in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). We recommend that the judgment be affirmed.

The opinion is approved and the judgment affirmed.


author: WADDILL, Commissioner.

text:
    Homer DOBBS, Appellant, v. INLAND STEEL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1966.
    Rehearing Denied May 20, 1966.

      H. B. Noble, C. A. Noble, Jr., Noble & Noble, Hazard, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, Howard, Francis & Howard, Prestons-burg, Stuart Alexander, Louisville, for appellees.
   WADDILL, Commissioner.

Homer Dobbs appeals from a judgment which affirmed an order of the Workmen’s Compensation Board which refused to permit him to recover compensation benefits for disability allegedly due to silicosis.

Appellee, Inland Steel Company, employed Dobbs as a coal miner from 1946 until 1964 when he became ill. Subsequently he filed a claim for compensation against Inland Steel and the latter caused the Special Fund (KRS 342.120) to be made a party to the proceeding.

Three physicians, testifying on behalf of Inland Steel, stated that Dobbs does not have silicosis and it was stipulated that two other physicians would testify to the same effect. Two physicians, one of whom examined Dobbs at the request of the Special Fund, testified that Dobbs is totally disabled from silicosis.

In Horton v. United States Steel Corporation, Ky., 384 S.W.2d 73, as in the instant case, there was a sharp conflict in the expert opinion evidence as to whether the claimant had silicosis. It was there held that the Board’s determination upon conflicting evidence is conclusive. Also see Roark v. Alva Coal Corporation, Ky., 371 S.W.2d 856. The principle as set forth in the above cited cases is determinative of the instant one.

The judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Delphus ATTEBERRY et al., Appellees.
    Court of Appeals of Kentucky.
    April 22, 1966.
    Robert Matthews, Atty. Gen., H. C. Smith, Dept, of Highways, Frankfort, Til-don H. McMasters, Dept, of Highways, Elizabethtown, for appellant.
    Davis Williams, Munfordville, for appel-lees.
   MOREMEN, Chief Justice.

This is a highway condemnation case. Appellees, Delphus Atteberry and his wife, Juanita Atteberry, owned an 87 acre farm on the east side of U. S. 31W near Bonnieville. The Highway Department condemned 4.99 acres in fee simple, and .18 acres for a permanent easement to be used in the construction of Interstate 65. The condemned strip divided the farm into two parts; one tract of 57.4 acres fronts on, and is still accessible to Highway U. S. 31W. The remaining 24.19 acres are completely landlocked and inaccessible by means of any road. All of the improvements, however, are on the 57.4 acre tract.

The witnesses for the Highway Department estimated that the difference in the value of the land before and after the taking was about $600. The differences, as estimated by appellee Atteberry and four other witnesses, were as follows: $3500, $2000, $3000, $2500, and $1827.50. The jury returned a verdict of $3000 and, from the judgment entered on that verdict, this appeal has been taken.

At the trial the court permitted the witnesses to describe in detail the character of the land taken. It was generally agreed that the original farm contained 30 acres of tillable land, 25 acres of pasture land and 32 acres of woodland. The approximate 30 acres, which constituted the landlocked portion and the part taken for highway purposes, was woodland. A timber cruiser had testified that there were about 27000 feet of marketable timber on this land. The state’s witnesses were permitted, as we have said, to describe in detail the nature of the land and, after appellees had introduced all the evidence in their behalf, the state recalled their principal witness, Robert Crab-tree, in rebuttal and, among other things, he was questioned about the comparable sale of Homer Jagger’s farm, and as to how he broke down his overall figures on a per acre basis. His answer related how much the house, barn and garage contributed to the overall value of the entire farm.

The court then requested the attorneys to come to the bench and there was had a discussion which is not reported. The attorney for the landowner objected to the question and the objection was sustained. Counsel rephrased his question and the witness gave a detailed answer concerning the method he used in making the valuation. He was permitted to testify that he had valued the Atteberry farm in the same manner as he had the other comparable farms and had placed different values on the various types of land. In the absence of an avowal which would disclose the nature of the testimony appellant desired to elicit— other than that which was introduced — we have no question before us for decision.

We gain the impression from appellant’s brief that Mr. Crabtree was not permitted to make a specific breakdown of his appraisal of the Atteberry property and to place separate money values on the improvements, tillable acres, pasture land and woodland. It is stated that had he been permitted to do so the jury would have understood why he valued the land taken and landlocked at only $20 per acre. The answer to this contention lies in the fact that the witness was never asked this specific question and the court was not called to rule upon the question. It is therefore not before us.

Appellant’s second contention is that the court erred in permitting counsel to argue to the jury that appellees were unwilling sellers and they should, therefore, be given the benefit of any doubt. This Court has on several occasions stated that such arguments are improper—Commonwealth, Dept. of Highways v. Darch, Ky., 374 S.W.2d 490; Commonwealth, Dept. of Highways v. Sanders, Ky., 396 S.W.2d 781—particularly where there is prolonged and persistent argument which, when considered with other errors, may cause prejudice. In Commonwealth, Dept. of Highways v. Musick, Ky., 400 S.W.2d 513, decided March 11, 1966, we concluded, under similar conditions, that such an argument taken alone was not so prejudicial as to justify a reversal and we assume the same position in this case.

Judgment affirmed.


author: CLAY, Commissioner.

text:
    William H. ABELL et al., Appellants, v. Kathleen H. MEGUIRE, Appellee.
    Court of Appeals of Kentucky.
    April 22, 1966.
    As Modified May 5, 1966.

      Marshall P. Eldred, Louisville, for appellants.
    S. J. Stallings, Louisville, for appellee.
   CLAY, Commissioner.

We have before us a motion to dismiss this appeal. In sustaining the motion we are writing this opinion to reiterate the reasons for our disapproval of a practice which constitutes a clear violation of the Rules of Civil Procedure.

The ground of appellee’s motion to dismiss is that appellants, after taking an appeal, did not “promptly” serve upon ap-pellee and file with the circuit court a designation of the record as required by CR 75.01. The pertinent steps taken in the case are as follows:

September 15, 1965, judgment entered.
October 12, 1965, notice of appeal filed.
November 29, 1965, motion to extend time for filing record on appeal to 120 days (which motion was sustained).
December 21, 1965, designation of record served and filed.

Normally the record on appeal must be filed with the Court of Appeals within 60 days of the date of the filing of the notice of appeal. CR 73.08. In order to begin compliance with this requirement, obviously appellant must designate the record to be prepared for filing. With this deadline in view, CR 75.01 enjoins the appellant to serve and file a designation of the record upon which the appeal is based “Promptly after an appeal to the Court of Appeals is taken ' * * (Our emphasis) The appeal is “taken” by filing the notice of appeal.

The word “prompt” is defined in Webster’s New International Dictionary, Second Edition, as “Ready and quick to act as occasion demands; responding instantly; alert; as, prompt in obedience, prompt to go”. Referring to this procedural step, it is stated in Clay, Kentucky Practice, Vol. 7, CR 75.01, Comment 4 (page 366):

“No specific time limit is fixed, but this should be done at the earliest reasonable time that practical considerations permit.”

Bearing in mind that CR 73.08 directs the filing of the record in the Court of Appeals within 60 days from the filing of the notice of appeal, the Rules require some expedition on the part of the appellant in taking the initial step in this process. By no stretch of the imagination, in the absence of most extraordinary circumstances, could it be said that an appellant who has failed to designate the record on appeal within 60 days after filing his notice of appeal has acted “promptly”. As a matter of fact, he has not acted at all within the time prescribed for perfecting his appeal. We have recently written at length on such an obvious violation of Rule 75.01. Bailey et al. v. Ashland Discount Association, Inc., Ky., 400 S.W.2d 508. To forestall the contention that what we said in that case was dictum, we now adopt that reasoning as decisive of the single issue here presented.

It has been called to our attention that some attorneys assume they have a right to take 120 days for filing the record on appeal (upon motion), and the time of designating what record they will appeal on is an incidental matter. In the interest of all parties concerned, we condemn these concepts of proper appeal procedure. There are several reasons for this.

To condone a custom of violating the clear mandates of our Civil Rules would eventually destroy them altogether. While it is natural in appealed cases to consider the rights of the appellant, the appellee also has some rights. Having been successful in the trial court, he should not be subjected to unwarranted delay by the opposing party who seeks review. It is incumbent upon the appellant to bestir himself, and if he may utilize appeal procedure for the purpose of delay, it not only violates appellee’s rights but also both the spirit and the letter of the Civil Rules. As we have emphasized in so many of our cases, an appeal is a serious matter and the Civil Rules may be fairly administered only if strict compliance is required equally of all. They have sufficient built-in flexibility.

A dissatisfied party is allowed 30 days after the entry of judgment to determine whether the record justifies the taking of an appeal. If a litigant has so decided, he must, at the time of filing his notice of appeal, have some idea of the grounds of his appeal and the record he will require. The Rules perhaps would not be too harsh if they required an appellant to designate the record at the time he filed his notice of appeal. To avoid possible hardship, the drafters of the Federal Civil Rules and our Civil Rules granted the appellant a reasonable time after deciding to appeal within which to direct the preparation of his record. By the use of the word “promptly” in Rule 75.01, notice is given that the time is beginning to run against him immediately upon the filing of his notice of appeal. With the normal 60 day limit to complete the record, the appellant has the duty to initiate the process in the “earliest reasonable time that practical considerations permit”.

As before noted, in the absence of most extraordinary circumstances, an appellant who does not order the preparation of a record within 60 days has not only failed to do what he was required to do promptly, but he has failed to do it at all. As pointed out in Bailey v. Ashland Discount Association, Inc., Ky., 400 S.W.2d 508, it is difficult to understand how an appellant could, under CR 73.08, present a proper gi ound for extending the time to file the record when he has not even started to have his record prepared.

In the present case appellants took almost all of their allotted time before filing a notice of appeal. They took no further steps for a month and a half, when they filed a motion to extend the time to file the record in the Court of Appeals. They then waited almost a month before serving and filing their designation.

It appears appellants are appealing on a single clear-cut question of law. Accepting as true everything appellants state in their Response to appellee’s motion to dismiss the appeal, we find nothing extraordinary which would justify this unreasonable delay in deciding upon and designating the record required to present the single ground of appeal. The late designation was a manifest violation of CR 75.01, and in spite of our high regard and respect for the attorneys involved, we cannot condone the very type of practice which we so recently condemned in Bailey v. Ashland Discount Association, Inc., Ky., 400 S.W.2d 508.

During the pendency of the motion to dismiss, appellants timely perfected their appeal by filing the record and a brief on the merits of the controversy. We have examined the record before us and are of the opinion that there were no reversible errors in the judgment.

The appeal is dismissed.

      . Electric Plant Board of City of Hopkinsville v. Stephens, Ky., 273 S.W.2d 817; Wallace v. Walters & Keene Motor Co., Ky., 280 S.W.2d 493; Belk-Simpson Co. v. Hill, Ky., 288 S.W.2d 369; Hargis v. Dumbacher, Ky., 293 S.W.2d 637; Motors Ins. Corp. v. Fields, Ky., 294 S.W.2d 518; United Mine Workers of America, Dist. No. 23, v. Morris, Ky., 307 S.W.2d 763; Davenport v. Martin, Ky., 310 S.W.2d 775; Coyle v. Capital Engineering Services, Inc., Ky., 314 S.W.2d 541; Maslow Cooperage Corporation v. Hofgesang, Ky., 316 S.W.2d 126, 127; Knight v. Resolute Insurance Company, Ky., 321 S.W.2d 255; Hawkins v. Hoskinson, Ky., 324 S.W.2d 399; Commonwealth v. Black, Ky., 329 S.W.2d 192, 193; Taylor v. Warman, Ky., 331 S.W.2d 899; Jackson v. Jones, Ky., 336 S.W.2d 565; Louisville Gas & Electric Company v. Patterson, Ky., 343 S.W.2d 371; Davidson v. Davidson, Ky., 344 S.W.2d 823; Bottom v. Bybee, Ky., 358 S.W.2d 542.

      . Clay Kentucky Practice, Yol. 7, CR 75.-01, Comment 4 (page 366).


text:
    C. E. MONTAGUE, Jr., Individually, etc., Appellants, v. BOARD OF EDUCATION OF ASHLAND INDEPENDENT SCHOOL DISTRICT, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    April 22, 1966.

      J. W. McKenzie, Ashland, for appellant.
    W. H. Dysard, Dysard, Johnson & Welch, Ashland, Jo M. Ferguson, Grafton, Ferguson, Fleischer & Harper, Louisville, for appellees.
   DAVIS, Commissioner.

This is a declaratory judgment proceeding, in which the appellants (defendants below) represent, as a class, the owners of taxable property within the boundaries of the Ashland Independent School District. The fundamental questions involved relate to the validity of certain agreements between the appellees, Board of Education of Ashland Independent School District (hereinafter Board) and the Board of Trustees of the University of Kentucky (hereinafter the University), as those agreements affect the junior college program in Ashland and the seven (7‡) cent special tax approved by Ashland voters in 1937 for a junior college program. The trial court declared the plans of the ap-pellees legal in all respects. Before delineating the issues we state the background of this controversy.

In Pollitt v. Lewis, 269 Ky. 680, 108 S.W.2d 671, 113 A.L.R. 691, this court sustained the validity of legislation authorizing a second-class city to establish a junior college program. The cited opinion directed that no tax could be levied for junior college purposes without approval of the electorate of the district. Following the rendition of that opinion the electorate of the Ashland Independent School District did approve a tax levy of seven cents per hundred dollars’ worth of taxable property in the district for the purpose of establishing and maintaining a junior college at Ashland. The pertinent legislation, as modified since the Pollitt decision, is now compiled as KRS 165.210 through 165.260.

The junior college at Ashland was established and has flourished; demands for its services so increased that the revenue derived from the annual special tax became inadequate to afford the educational program desired. The Ashland Board entered into a written agreement with the University in 1957, by the terms of which the two entities recognized their mutual responsibilities in the junior college field of education. In order to fulfill these responsibilities it was agreed that (1) the Ashland Junior College be recognized as the Ash-land center of the University of Kentucky, (2) the University would provide courses of study and administration for the junior college, ample to comply with the Board’s obligation respecting the junior college program, (3) the Board would provide the buildings, land, equipment and other facilities for the program — to the extent of the existing junior college property — and such additional as might be needed, as it might procure from the special tax revenue, (4) all other expenses, including salaries for teachers, would be defrayed by the University, and the University would receive the tuition and other fees arising from the operation. The 1957 agreement contained provisions enabling the Board to terminate the agreement upon written notice, in the event of failure to accomplish its responsibilities under the statutes.

The junior college program has been conducted within the framework of the 1957 agreement, and the special tax has continued to be levied. The continued growth in demand for an expanded educational program has made it apparent that the existing facilities are inadequate. The physical situation of the present campus is such that it is not practicable to undertake any enlargement or expansion at that site. In a combined effort to cope with the recognized problems the Board and University entered into a Supplemental Agreement, December 31, 1964, the terms of which we now summarize.

The University has by appropriate resolution recorded its fixed intention to provide for the enlargement and expension of the “Community College” (the junior college) at Ashland, subject to the condition that the Board shall furnish to the University, without cost to the University, a fee simple unencumbered site suitable and adequate for such purpose. The Board and University have mutually selected a suitable forty-three acre site for relocation of the campus, and they covenant with each other to acquire the site, upon the terms and conditions hereafter related, subject to a judicial determination of the legality of the project.

The proposed plan, 'for which judicial sanction is sought in this action, is as follows: the Board will effect the formation of a non-profit, no-capital-stock corporation pursuant to KRS Chapter 273; the corporation shall serve as an agency and instrumentality of the Board in the acquisition of the proposed new campus site. The Board will transfer title to the present campus to the non-profit corporation; title to the newly acquired site shall also be placed in the corporation. The latter will issue its first mortgage bonds, secured in part by a mortgage on the present campus and upon the to-be acquired site; the proceeds of the sale of the bonds shall be applied solely to payment of the purchase price of the new site and the expenses incident to such purchase. It is contemplated that the Board will lease the present site from the corporation, upon a year to year basis (with exclusive options permitting the Board to renew from year to year, one year at a time, upon such terms as will be payable solely from the proceeds of the special seven (7‡) cents voted tax). This plan envisions that the corporation will retire the principal and interest of the bonds solely from the rentals received from the Board.

The agreement provides that the first mortgage bonds shall contain provisions authorizing the release from the mortgage lien of certain parts of the new site, when and if the University has properly demonstrated its purpose to erect upon that portion of the new campus one or more buildings suitable for educational purposes in connection with the junior college. In such instances, the fee simple title to the released portion of the tract shall be conveyed to the University. It is provided that the existing campus site may be sold — when adequate facilities shall have been provided at the new campus — and the proceeds of such sale shall be applied to the principal and interest of the first mortgage bonds. The Supplemental Agreement provides that “the total acreage which may be so released and conveyed without other consideration shall not exceed, in the aggregate, eighty per cent (80%) of the total area or acreage of the new site herein referred to * *

The appellants present these assertions of error as bases for reversal: (1) The seven cents special tax voted in 1937 has served its purpose and may no longer be collected, because (a) the proceeds of the tax will be paid over to a nonprofit corporation for payment of bonds, (b) the tax levy is discriminatory and arbitrary and results in double taxation, and -(c) a continued collection of the special tax would violate Section 184, Kentucky Constitution; (2) the contracts between the Board and the University are void because the Board has unlawfully surrendered and delegated its powers to the non-profit corporation and the University, and (3) the City of Ashland was a necessary party to this action, but not brought before the court.

The basis for the assertion that the special tax has served its purpose is the bald statement that since there is no outstanding indebtedness against the junior college there is no need for the tax. The short answer to that contention is that the enabling statute (KRS 165.220) provides that the special taxes collected under it shall be for the purpose of “ * * * establishing, acquiring and operating the college.” The fact that there is no debt to be paid from the tax is without .significance. The college must be operated.

The contention that the tax is discriminatory and arbitrary, and effects double taxation, is interwoven with the argument that tax assessments in 1937— when the tax was voted — were substantially less than the fair market value of the taxable property. Now, in light of this court’s decision in Russman v. Luckett, Ky., 391 S.W.2d 694, that the Constitution requires property to be assessed at its fair cash value, it is argued that the voters in 1937 would not have voted for the tax if they had known that assessments would rise. The seven cent levy now becomes a twenty one cent levy, it is said, and this results in taxation at more than double the voted rate. We think it may not be said that voters in 1937 were "entitled to assume that assessed values would be fixed in violation of the Constitution. We are not persuaded by that phase of the argument.

It is reasoned that since the University has established community colleges in other Kentucky cities without any local special levy, it is discriminatory to continue the seven cent levy in Ashland. What has occurred in this respect in other communities is not pertinent. What inducements may have influenced the location of community colleges is not shown in this record, nor would it have been material anyway. The fact is that the method here employed presents a feasible and propitious opportunity for the Board and the University to present an educational opportunity to an important segment of the Commonwealth, which opportunity neither entity may have been able to afford without the other’s co-operation.

What we have said disposes of the claim that to enforce the seven cent special tax is to violate Section 184, Kentucky Constitution. The people have voted the tax in compliance with the cited section of the constitution.

Neither do we agree that the Board has unlawfully surrendered or delegated its powers to the non-profit corporation and the University. The 1957 agreement and the 1964 Supplemental Agreement provide for the Board’s participation in and approval of the educational program. The agreements enable the Board to withdraw from the plan whenever it is seen that the Board’s responsibilities and obligations are not being served. It seems plain that the purpose of the special tax was to assure a junior college facility for the people of the Ashland community. The record discloses that but for the joint efforts of the Board and the University the continuation of Ash-land’s junior college program would have been a doubtful thing. We hold that the Board’s acceding to the University’s supplying the faculty and prescribing the curriculum is not a surrender of power. The Board reserves the right to be assured that these services comport with the best interests of the objective — the presentation of the best possible junior college program. Certainly there is no surrender to the non-profit corporation; that body is a mere agency designed to sub-serve the purposes of the Board.

It is suggested that should the University fail to renew the contract from year to year the college program would collapse and the monies derived from the special tax would be lost. That is a possibility. On the other hand, if the local efforts to maintain the junior college program had become so inadequate as to require the abandonment of the effort, about the same result would have occurred. It is true that in the latter hypothesis the Board could salvage something by disposing of the assets — but the question would then arise as to the legal disposition of the proceeds. It must be recalled that the special tax levy was not for common school purposes, so any monies thus realized likely could not have been channeled into common school funds. Obviously it would be impracticable to undertake a refund of any of the “special tax” assets.

We hold that the City of Ashland was not a necessary party to this declaratory judgment action. As the tax levying authority for the Board, it is the duty of the the City of Ashland to levy the voted special tax, but the City’s role in the premises is merely ministerial and perfunctory. As often noted in such cases, the tax levying authority in such instances is a “conduit” only. Cf. Franklin County v. Franklin County Board of Education, 267 Ky. 554, 102 S.W.2d 1024; Fyfe v. Hardin County Board of Education, 305 Ky. 589, 205 S.W.2d 165; Ranier v. Board of Education of Prestonsburg Independent School District, Ky., 273 S.W.2d 577.

Appellants assert that the effect of the judgment before us is to require the perpetual levy of the special tax. We do not so construe it. The Board yet retains the option to withdraw from the program, as before noted.

The judgment is affirmed.


text:
    Henry WARD, Commissioner of the Department of Highways of the Commonwealth of Kentucky, and Department of Highways of the Commonwealth of Kentucky, Appellants, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellee.
    Court of Appeals of Kentucky.
    April 22, 1966.

      Robert Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Paul E. Hun-ley, Highway Dept., Glenn McDonald, Highway Dept., Frankfort, for appellants.
    Marion Rider, Frankfort, for appellee.
   DAVIS, Commissioner.

This appeal arises from a declaratory judgment action testing whether Department of Highways (hereafter Department) may comply with contracts it has entered into with appellee (hereafter Railroad) respecting the Department’s paying the maintenance expenses incident to electric warning signals and gates at eleven grade crossings of the Railroad’s tracks over the public highways of this state. The trial court entered judgment declaring the contracts legal in all respects. The Department appeals, asserting that expenditure of public funds for maintenance of such devices will be violative of Kentucky Constitution Sections 49, SO, 177 and 230. It is also asserted for the Department that payment of such expenses will be an illegal abrogation of police power, and that KRS 277.065 does not authorize the Department to make such expenditures.

For convenient reference we quote Kentucky Constitution, Section 177:

“Commonwealth not to lend its credit or become stockholder in corporation.— The credit of the Commonwealth shall not be given, pledged or loaned to any individual, company, corporation or association, municipality, or political subdivision of the State; nor shall the Commonwealth become an owner or stockholder in, nor make donation to, any company, association or corporation; nor shall the Commonwealth construct a railroad or other highway.”

The Department first contends that the Department’s participation in the outlay of funds for electric warning signals and gates at railroad crossings amounts to “construction” of a railroad, and thus runs afoul the just quoted Section 177. In support of this contention the Department calls attention to KRS 277.160 which requires that every railroad shall cause signal boards to be placed and constantly maintained at each public highway crossing (with certain exceptions not material here). The Department observes that the common law requires railroads to give reasonable and timely warning to the public of the approach of trains to public crossings, citing Louisville & N. R. Co. v. Craig, 310 Ky. 43, 219 S.W.2d 954, and other authorities to that effect. From this, it is reasoned that such signals are required as a part of the railroad, hence outlay for construction or maintenance of them is to construct a railroad. We are not so persuaded.

To say that the law, whether statutory or common law, requires that a railroad give reasonable and timely warning of the approach of its train to a public crossing is not to say that an electric signal and a safety gate are required. Neither is it to say that the Department, charged with the responsibility for promoting highway safety, may not provide additional safeguards for the public at railroad crossings. The Department’s efforts are for the protection of the public in use of the highways. The fact that fewer accidents at grade crossings may diminish the exposure of the railroads to liability suits is merely a by-product, not the objective of this activity.

In our view, increased traffic safety is definitely a public project for which public funds may be expended. Incidental or collateral benefits which may accrue to the Railroad do not constitute a donation or loan of credit to the Railroad by the Department within the purview of Section 177, Kentucky Constitution. The Department relies on Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky., 266 S.W.2d 308, in support of its contention that outlay of public funds for maintenance of the devices at hand will constitute a donation or loan of the state’s credit within the meaning of Section 177, Kentucky Constitution. In that case the court held that the utility was required to remove its facilities to accommodate a new highway by the very terms of its franchise. It was there said that had the franchise required the removal of the facilities at the expense of the state it would have violated Section 177. Whether that statement was obiter dictum may be argued, but in any event we do not regard that precedent as dispositive of the case at bar. That decision dealt with the construction of a new highway; the removal and relocation of the facilities of the telephone company was a prerequisite to the construction of the new road. There the question was not the improvement of safety conditions on an existing highway, but whether the utility installations should be permitted to preclude the construction of a new project.

Next it is urged that the use of highway funds for maintenance of the signal devices contravenes Section 230, Kentucky Constitution. This argument is premised on the contention that the maintenance of these devices is not for highway purposes. We think the promotion of safety for members of the public who use the highways is a “highway purpose.” Reason and precedent impel that view. Cf. Grauman v. Department of Highways, 286 Ky. 850, 151 S.W.2d 1061; Keck v. Manning, 313 Ky. 433, 231 S.W.2d 604.

The Department maintains that the contracts create an obligation against future public revenues contrary to Sections 49, 50 and 230 of the Kentucky Constitution. The Department is not committed for any definite time to maintain the signal devices. Apart from this, however, the maintenance of these safety promoting signals is simply a matter of maintenance of a part of the highway system. The reasoning enunciated in Guthrie v. Curlin, Ky., 263 S.W.2d 240, 243, 244, is applicable here. In Guthrie this court held that the agreement of the Department of Highways to maintain a toll road was not an unconstitutional creation of a debt.

The Department suggests that the challenged contracts effect an illegal abdication of the state’s police power. Reliance is had upon South Covington and C. St. Railroad Co. v. Berry, Mayor, 93 Ky. 43, 18 S.W. 1026, 15 L.R.A. 604, and Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky., 266 S.W.2d 308. It may be conceded that the cited authorities and others hold that a state may not by contract or otherwise abdicate or bargain away its police power. We are of the view that this case does not present an instance of the state’s abdication of its police power. See City of Louisville v. Weible, 84 Ky. 290, 1 S.W. 605, 8 K.L.R. 361, and Bond Bros. v. Louisville & Jefferson County Met. Sewer Dist., 307 Ky. 689, 211 S.W.2d 867, in which this court recognized the principle that a governmental unit does not abdicate its police power by contracting with private persons to perform police power functions. Many reasons appear which warrant the state’s utilizing the means here employed as the most efficient way in which to effectuate the police power purpose of providing signal devices at railroad crossings. For example, it may not be doubted that the questioned method is far less cumbersome to the state than would be its independent effort to furnish the same service to the public.

Finally, the Department asserts that KRS 277.065 does not permit the state to pay the maintenance of the signal devices. It is true that the cited statute does not expressly mention signal devices, but we regard the following language in the statute as ample to embrace the signal devices :

“The cost of maintenance of all structures for the elimination of railroad grade crossings, and of installations for the protection of existing grade crossings * * * shall be borne by the governmental unit or units constructing them.”

The judgment is affirmed.


text:
    Robert Stuart BERRYMAN et al., Appellants, v. Nan E. ELMORE, Indv., et al., Appellees.
    Court of Appeals of Kentucky.
    April 22, 1966.
    Nathan Elliott, Jr., Sidney C. Kinkead, Jr., Harbison, Kessinger, Lisle & Bush, Lexington, for appellants.
    Paul D. Rehm, Gentry E. McCauley, Jr., Leonard K. Nave, Versailles, for appellees.
   CLAY, Commissioner.

This is a suit to have the terms.of a deed construed and obtain specific performance of a contract of sale. The relief sought by plaintiff appellees was granted.

Plaintiff Elmore had entered into a contract to sell one Range certain land in Woodford County. This land had been acquired by Elmore as three separate tracts. He and his father had each inherited an undivided one-half interest in Tracts 1 and 2 under a will. Tract 3 had been acquired by him and his father under a 1948 deed from John Gay. This deed contained the following restriction and reverter provision:

“This conveyance is made, however, subject to the restrictions which shall be a covenant running with the land that no buildings of any kind shall be built thereon as long as the land on the north side of said road of which the land hereby conveyed was formerly a part, is in the possession of John T. Gay, Mattie B. Gay, Martha Gay Berryman, Robert Stuart Berryman and Joan Gay Berryman or any one of the same and in the event that anyone should build or allow to be built any such building on the land hereby conveyed in violation of this covenant then same shall revert to the then owner of the land on the north side of the said Highway.”

In 1955 (by deed recorded in 1959) the father conveyed to Elmore his undivided one-half interest in all three tracts. This deed gave a metes and bounds description of each of the tracts, and following those descriptions the identical restriction and reverter provision above quoted was inserted. On the face of this deed it appears that this provision related to all three tracts, and that is the bone of contention here. The Chancellor upheld plaintiffs’ contention that it applied only to Tract 3.

Defendants’ principal argument is that this is a suit to reform the 1955 deed for mistake, and the action is barred under KRS 413.120(12) and KRS 413.130(3). The Chancellor found, and we believe correctly so, that this is not a suit to reform an instrument or to correct a mistake. While plaintiffs in their complaint alleged mistake, clerical misprision and inadvertence of the draftsman of the deed, they disavowed any mistake of the parties and did not ask reformation. Their position is that a latent ambiguity exists in the deed and the controversy revolves about its construction. In our opinion this position is sound.

There is no mistake in the wording of the deed. The ambiguity arises because of the physical position and typed spacing of a particular paragraph. We surmise that any ambiguity in a written instrument involves what may be characterized literally as a “mistake” by someone, but this is not the kind of mistake which requires reformation. If the instrument may be construed according to the intent of the parties, no change is made in its wording and there is nothing to reform. We may also observe that reformation could not be decreed in this case because of the lack of necessary parties. Consequently defendants’ plea of the statute of limitations is unavailing.

Defendants’ other contention seems to be that there is no ambiguity in the deed, and, therefore, the court may not construe it to mean something other than appears on its face. If this were so, we could have no such thing as a latent ambiguity of this nature. Defendants do not quarrel with the Chancellor’s consideration of certain extrinsic matters which exposed the ambiguity and supported his resolution of it. The court did sustain defendants’ objections to the oral testimony of certain witnesses, but took into account stipulations of the parties and certain deeds in the chain of title.

As we have before pointed out, the restrictive provision originally affected only Tract 3, which was acquired by Elmore from a different source of title. It had never before appeared in the chain of title to Tracts 1 and 2. The reverter provision was in favor of the grantors (and others) in the deed of 1948 conveying only Tract 3. No reason is apparent why Elmore’s father, in conveying his undivided interest in Tracts 1 and 2, would undertake to create a new estate in reversion in those persons. He, of course, could not benefit from it. Even where the same property was involved it has been held that repetition of an identical condition subsequent and right of reentry in a deed by an intermediate grantor will not be construed as creating a right of re-entry in such grantor. Hawkins v. Reyburn, 20 N.J.Super. 216, 89 A.2d 484. Since Elmore’s father would not be reserving any beneficial rights for himself by the insertion of this restriction on Tracts 1 and 2, it would be a strained construction to so apply it.

It may be further pointed out that there already existed buildings on Tracts 1 and 2, and the provision that “no buildings of any kind shall be built thereon” seems rather incongruous if applied to those tracts.

Considering the different sources of title, the nature of the language used, and the lack of purpose in having the restrictive provision apply to Tracts 1 and 2, in our opinion the Chancellor reached the proper construction of this deed. This restriction did not affect Tracts 1 and 2.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Mae Riordan TURNER, Petitioner, v. Hon. William R. GENTRY, Respondent.
    Court of Appeals of Kentucky.
    April 29, 1966.
    William J. Francis, Charles B. Zirkle, Louisville, for petitioner.
    Davis Williams, Munfordville, for respondent.
   WILLIAMS, Judge.

Joe Turner sued the petitioner Mae Riordan Turner for divorce in the Hart Circuit Court. Petitioner moved the court to dismiss the case on the ground that venue did not rest in that court because her residence was in Jefferson County. The respondent William R. Gentry, after a hearing at which testimony for both sides was offered, overruled petitioner’s motion.

Mae Riordan Turner now petitions this Court to prohibit the Hart Circuit Court from hearing and determining the divorce action. She alleges she has no adequate remedy at law, inasmuch as a judgment of divorce may not be appealed in this State, and she says she will suffer great and irreparable injury if she is required to defend the action in the Hart Circuit Court.

It has become well established that this Court will entertain a petition seeking to prohibit a circuit court from exercising jurisdiction in a divorce proceeding when the question of residence of the parties is raised. Russell v. Hill, Ky., 256 S.W.2d 508 (1953); Weintraub v. Murphy, Ky., 240 S.W.2d 594 (1951). As was said in the Russell case, the question is one of fact which must be determined from the proof taken in circuit court. We will not exercise our extraordinary power under Section 110 of the Constitution unless the need for such action is shown by specific allegations of facts, and acceptable proof of them. Parsley v. Knuckles, Ky., 346 S.W.2d 1 (1961).

In this case the circuit judge heard proof relating to the residence of the petitioner, but apparently no transcript of the evidence was made. At any rate it has not been filed here. Consequently we are in no position to say the circuit judge did not have ample evidence on which to base his decision when such evidence is not available to us. The presumption is that the proceedings in circuit court are regular. Parsley v. Knuckles, supra.

The petition for a writ of prohibition is denied.


author: CULLEN, Commissioner.

text:
    William P. SANDIDGE, Jr., et al., Appellants, v. The KENTUCKY TRUST COMPANY, Trustee, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    April 29, 1966.

      Charles I. Dawson, Louisville, Thomas E. Sandidge, Owensboro, for appellants.
    Wyatt, Grafton & Sloss, Stuart E. Lampe, Louisville, Morton Holbrook, San-didge, Holbrook, Craig & Hager, Owens-boro, James W. Stites, Stites, Peabody & Helm, Louisville, for appellees.
   CULLEN, Commissioner.

The two sons of W. P. Sandidge, Sr., deceased, by his first wife appeal from a judgment making a construction of his will as to how, following the termination of a life estate given to the testator’s second wife, his estate should be divided between the appellants and testator’s two sons by his second wife.

W. P. Sandidge, Sr., died in 1935, leaving surviving him his second wife, his two sons by his first wife, and his two sons by his second wife, all adults. His will directed that his estate be divided into eighths; that his sons Thomas and William (by his first wife) be paid immediately one-eighth each; that the remaining six-eighths be held in trust and the income be paid to his widow during her life; and then, that

“At the time of the death of my wife, my said trustee will distribute a sufficient sum out of the estate then in his hands as such trustee to Ridley M. Sandidge and Christopher C. Sandidge, to make them equal with my sons T. E. Sandidge and William P. Sandidge, Jr. After this has been done, the remainder of my estate then in the hands of my said trustee shall be divided equally between my four sons, T. E. Sandidge, William P. Sandidge, Jr., Ridley M. Sandidge, and Christopher Sandidge.” (Our emphasis.)

The testator’s net estate at time of distribution in 1936 was valued at $92,188.08. Thomas and William each were paid one-eighth of this, or $11,525.51. The balance was held in trust until the death of the widow in 1963.

The controversy arises from the fact that simply by reason of the spiralling prosperity in this nation during the period the property was held in trust, the property so increased in value that at the time of the widow’s death it was worth $223,292.18. The appellants, Thomas and William, took the position that to comply with the direction of the will that Ridley and Christopher be made equal, they should be paid only the same number of dollars that Thomas and William were paid in 1936, i. e., $11,525.51 each. Ridley and Christopher’s administrator (he having died in 1957) maintained that at the very least they were entitled to the benefit of the economic growth during the period between the time Thomas and William received their one-eighth shares and the time Ridley and Christopher were to receive “a sufficient sum * * * to make them equal.” The circuit court accepted the latter view and applied it by adjudging that the estate remaining at the widow’s death be divided into sixths; that Ridley and Christopher’s administrator each be paid a one-sixth share (worth $37,-215.53), and the remaining four-sixths then be divided equally among Thomas, William, Ridley and Christopher’s administrator.

We have no difficulty in concluding that the judgment is correct. We think it is quite clear that the testator intended his four sons to fare equally with but one exception — Ridley and Christopher were to be deprived of the use of all of their shares during their mother’s lifetime, whereas Thomas and William were to be deprived of the use of only half of their shares. By this plan the income that Ridley and Christopher otherwise would have received went to their mother. This was of direct benefit to their mother. But to deprive Ridley and Christopher, after the termination of the life estate, of an enhancement in value of the corpus of the estate which occurred during the life estate would not benefit the mother; it would benefit only Thomas and William. In other words, the construction contended for by Thomas and William would create an inequality for which the testator could have had no reason, whereas under the construction given by the circuit court the only inequality — loss of income — reasonably was intended to benefit the widow.

We think the situation should be considered the same as if the testator had created two trust funds for his widow; one consisting of half of his estate and the other consisting of Ridley’s and Christopher’s postponed one-eighth shares. In that situation it would be obvious that Ridley and Christopher would receive the ultimate benefit of any economic growth.

The appellants argue that had the testator meant for Ridley and Christopher to receive equalizing shares of one-sixth of the remainder estate at the termination of the life estate he would have said so by specific reference to such fractions. On the other hand the appellees contend that had the testator meant for Ridley and Christopher to receive only the same number of dollars that Thomas and William were paid, he would have directed that the former be paid the same amount rather than directing that they be paid “a sufficient sum * * * to make them equal.” This is a fruitless argument.

The appellants also maintain that the law of advancements should be applied, under which the advancement is “estimated according to the value of the property when given.” KRS 391.140. The advancement statute does not apply here, because there is no undevised estate. And we find no sufficient reason to apply the principle of the statute because it is merely an expression of the legislative view of what is fair in an advancement situation — not a rule for effectuating a testamentary intention to achieve equality among children. Actually, the statute ordinarily applies in cases where the deceased intended not to treat his children equally.

The construction placed upon the will by the circuit court achieves practical equality, which we believe the testator intended.

The judgment is affirmed.

PALMORE, J., not sitting.


author: HAMILTON, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Petitioner, v. James B. BRANTLEY, Respondent.
    No. A-11114.
    Supreme Court of Texas.
    April 6, 1966.
    Rehearing Denied April 27, 1966.
    Shafer Gilliland, Davis Bunton & Mc-Collum, Perry Davis, Jr., Odessa, for petitioner.
    Warren Burnett and Robert D. Pue, Odessa, for respondent.
   HAMILTON, Justice.

This is a workmen’s compensation case. In response to special issues the jury found that James B. Brantley, the claimant, sustained an accidental injury on February 26, 1958, resulting in a right inguinal hernia which could not be successfully repaired and which had resulted in total and permanent disability. Judgment was entered by the trial court on the verdict for Brantley awarding him compensation benefits in the lump sum of $8,774.30. The Court of- Civil Appeals affirmed. 394 S.W.2d 824. We reverse the judgments of the trial court and the Court of Civil Appeals and render judgment that the claimant Brantley take nothing.

The injury occurred on February 26, 1958, while Brantley was in the course of his employment for Gardner Brothers Drilling Company, Inc., in Ector County, Texas. However, he did not file his claim for benefits until July 7, 1960, some two years and four months after the date of his injury. Of course, unless the claimant has good cause for the delay in filing his claim, compensation is barred if the filing of the claim is not made within six months from the date of the injury. Article 8307, Section 4a, Vernon’s Ann.Texas Civil Statutes.

Article 8306, Section 12b, Vernon’s Texas Civil Statutes, provides as follows:

“In all claims for hernia resulting from injury sustained in the course of employment, it must be definitely proven to the satisfaction of the board:
“1. That there was an injury resulting in hernia.
“2. That the hernia appeared suddenly and immediately following the injury.
“3. That the hernia did not exist in any degree prior to the injury for which compensation is claimed.
“4. That the injury was accompanied by pain. * * * ”

Prior to the injury in question the claimant had been operated on for a hernia on two occasions. Both operations were apparently successful according to the respondent. The record indicates that on the day of the injury respondent was lifting a 150-200 pound crossover sub into the back of his car when he experienced a sharp pain. Later that night it “kept getting sore in there and I looked and it was kind of a swelling or puffed out place there.” His employer was notified about the accident and respondent went to the doctor on March 8, 1958. The claimant himself testified that he did not believe that it was a serious injury and that the doctor thought it was a strain and would get all right. Respondent testified that he sat in a tub of hot water each day as the doctor had directed and wore a truss for comfort and protection. Respondent’s physician, Dr. Marinis, testified that about six weeks after this first visit respondent returned for a re-evaluation of his condition, and at that time he advised the respondent that he had a recurrence of his right inguinal hernia and that he should report it to his employer. This was undisputed. While the claimant was lifting a drill bit in the latter part of March or the first part of April of 1960, the hernia “broke down” completely. Respondent was discharged from his job in May, 1960, and after taking his vacation went back to see Dr. Marinis in June, 1960. He had not seen the doctor since 1958. On June 23, 1960, claimant was operated on for a “recurrent hernia.”

In relying upon good cause for failure to file within the statutory period, the claimant is charged with the duty of prosecuting his claim with that degree of diligence which a reasonably prudent person would have exercised under the same or similar circumstances. Watson v. Texas Indemnity Ins. Co., 147 Tex. 40, 210 S.W.2d 989; Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370; Hartford Accident & Indemnity Co. v. Hardin, 252 S.W.2d 752 (Tex.Civ.App., writ refused). Although the question of whether the claimant used the degree of diligence required is ordinarily one of fact, the evidence in a particular case may point to a lack of diligence on the part of the claimant as the only reasonable conclusion and this then becomes a question to be decided as a matter of law. Texas Casualty Insurance Company v. Beasley, 391 S.W.2d 33 (Tex.Sup., 1965); Hawkins v. Safety Casualty Co., supra.

It is our holding that the evidence in this case shows as a matter of law that the claimant did not exercise the degree of diligence in the filing of his claim for compensation which a reasonably prudent person would have exercised under the same or similar circumstances. Therefore, no good cause existed to justify the respondent in delaying in the filing of his claim until July 7, 1960. This case is controlled by our recent opinion in the case of Texas Casualty Insurance Company v. Beasley, supra, which was handed down after the Court of Civil Appeals had written its opinion in the case before us. Both the Court of Civil Appeals and the respondent relied upon the opinion of the Court of Civil Appeals in the Beasley case. Our opinion is contrary to that one. 391 S.W.2d 33.

In Beasley, supra, the claimant was examined by three doctors after the accident and on their advice submitted to back surgery on May 8, 1961, the injury occurring on April II, 1961. Within eight weeks the claimant was back on the job working and, in spite of the constant pain, continued to work at this same job until February 10, 1962. He quit his job and became employed on a ranch on February 15, 1962. In July of 1962 he reinjured his back and was put in the hospital for five days and released on July 23, 1962. He did not file his claim for compensation until November 13, 1962, some nineteen months after the date of the injury. This court treated the issue of good cause as whether good cause existed from the middle of July, 1962, until the date of the filing of the claim. We assumed without deciding that good cause for failure to file his claim existed until Beasley was hospitalized in July, 1962. 391 S.W.2d at 35. Therefore, we did not deal specifically with the claimant’s argument there that his reason for not filing his claim was that he thought that he was going to get well. Under the view taken there by this court, when the claimant concluded that he was not going to recover after he was released from the hospital, he still made no effort to file his claim until some two and one-half months later, and offered no explanation for his delay. This we held showed as a matter of law to be a lack of diligence on the claimant’s part and no good cause existed to justify the late filing of the claim.

We also said in the Beasley case that:

“It is not enough to satisfy the statutory requirement to prove that good cause for failure to file existed during the six-month period; an injured workman owes a duty of continuing diligence in the prosecution of- his claim, and must prove that good cause for failure to file continued up to the date of filing (citing cases).”

Again, as in Beasley, supra, we assume without deciding that good cause for failure to file a claim existed until Brant-ley’s hernia completely “broke down” around the first of April, 1960. Claimant testified that after the hernia “broke down” he knew he would have to have an operation to correct that situation. Even so, respondent did not file a claim for compensation benefits from the first of April, 1960, until July 7, 1960, and gave no reason for his delay. It does not matter that the claimant at first thought his injury was only a strain and would heal. If later, after six months have expired from the date of the injury, the claimant finds out that his injury is serious, he must not delay further in proceeding to file his claim. Here, respondent did delay for almost three months after he knew his injury was serious, to wit, when the hernia completely “broke down.” No reason was given for the delay in filing. Under these circumstances, this is too long for a person who is both reasonable and prudent to stand by and do nothing about filing a claim for compensation benefits. Texas Casualty Insurance Company v. Beasley, 391 S.W.2d 33 (Tex.Sup.1965).

Respondent cites the case of Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, for the proposition that a reasonable time should be allowed for the investigation, preparation and filing of a claim after the seriousness of the injuries is suspected or determined. Respondent argues that the lime lapse between April and July, 1960, was a reasonable time for preparing, investigating and filing the claim. This is not borne out by the record. In fact, the record shows that respondent went to see his attorney during the first week in July, 1960, and his claim was filed on July 7, 1960. No effort was made before by respondent to file his claim after he knew the seriousness of his condition in April of 1960 until the first week in July of 1960. As we have said before, no good cause existed for the delay in the filing of respondent’s claim. Respondent’s authorities are distinguishable on the facts.

Petitioner’s amended motion for judgment non obstante veredicto should have been granted. The judgments of the Court of Civil Appeals and the trial court are reversed, and judgment is here rendered that the plaintiff take nothing.


author: CALVERT, Chief Justice.

text:
    Marie BJORGO, Petitioner, v. Donald BJORGO, Respondent.
    No. A-10906.
    Supreme Court of Texas.
    April 13, 1966.
    Rehearing Denied May 18, 1966.

      Dee D. Miller, Dist. Atty., Amarillo, B. G. Compton, Asst. Dist. Atty., for petitioner.
    Wayne B. Barfield, Amarillo, for respondent.
   CALVERT, Chief Justice.

In a proceeding by Marie Bjorgo against Donald Bjorgo under Article 2328b, Vernon’s Texas Civil Statutes, the Texas version of The Uniform Reciprocal Enforcement of Support Act, the trial court denied a motion by the defendant for summary judgment, granted a motion by the plaintiff for summary judgment, and rendered- judgment ordering the defendant to pay $10.00 weekly for the support of his illegitimate child in Kentucky. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause to that court for further proceedings in accordance with its opinion. The tenor of the opinion is that the motion of the plaintiff for summary judgment should have been denied, and that the defendant’s motion for summary judgment should have been granted and judgment rendered that the plaintiff take nothing by her suit. 391 S.W.2d 528. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

The admitted or uncontroverted facts established by the summary judgment proofs will be stated. On May 26, 1954, the Jefferson County Court, Juvenile Division, of the Commonwealth of Kentucky, entered a judgment in the case of Marie Bjorgo v. Don Bjorgo which recited that the defendant was accused by Marie Bjorgo by affidavit and by warrant sworn to on March 24 as being the father of Shirley Marie Bjor-go, and continued: “It is therefore considered, ordered and adjudged that the defendant, Don Bjorgo, pay to the complainant the some [sic] of $520.00 per year for 16 years in weekly installments of $10.00 each for the benefit of said child. * * * ” The parties agree that Kentucky has a statute, known as the Bastardy Act, which authorized the judgment.

This proceeding was begun in Kentucky as the initiating state under that State’s Uniform Support of Dependent’s Act and was transmitted to Texas as the responding State. Regularity of the proceedings under the Kentucky and Texas Support Act statutes is not questioned.

The summary judgment entered by the trial court did not award the plaintiff a recovery of the accrued weekly payments which were delinquent under the Kentucky judgment. Instead, it ordered the defendant to make future weekly payments. In reversing the trial court’s judgment, the Court of Civil Appeals at Amarillo, with the Chief Justice dissenting, held that (1) the law of Texas, the responding state, not that of Kentucky, the initiating state, governs in deciding whether the defendant has a duty to support his illegitimate child; (2) the judgment of the Kentucky court is not entitled to full faith and credit in the courts of this State under Article IV of the Constitution of the United States; and (3) enforcement of the Kentucky judgment would deny to the defendant equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States. We are satisfied that the reasons thus given for reversing the trial court’s judgment are unsound.

In support of its holding that the duty of the defendant to support his child is determinable by the law of Texas and not by the law of Kentucky, the Court of Civil Appeals cited Freeland v. Freeland, Tex. Civ.App., 313 S.W.2d 943 (1958), no writ history, and several decisions, to be noticed later, by the courts of New Jersey, Maine, Nevada, the District of Columbia and Florida.

Freeland v. Freeland is not in point on the facts. It involved an indirect effort through use of the Indiana Reciprocal Support of Dependents Law to obtain a judgment in a district court of Dallas County, Texas, altering and enforcing a child support judgment of a district court of Tarrant County, Texas. The Court of Civil Appeals in that case held that under our decision in Ex parte Goldsmith, 155 Tex. 605, 290 S.W.2d 502 (1956), the only Texas court having jurisdiction to alter or modify the judgment was the court which entered it, and that under our holding in Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957), the original support order of the Tarrant County district court could only be enforced by contempt proceedings. The holding thus was that jurisdiction of one Texas court to alter and enforce a child support order of another Texas court is governed by the law of Texas, and that jurisdiction as fixed by Texas law cannot be changed by initiating a proceeding in another state under a Uniform Support of Dependents Law. That is not the problem before us in this case.

The cases cited from other jurisdictions either do not support the holding that the defendant’s duty of support is determinable by the law of the responding state rather than the law of the initiating state or they are distinguishable. The New Jersey court in Pfueller v. Pfueller, 37 N.J.Super. 106, 117 A.2d 30 (1955), the Maine court in Rosenberg v. Rosenberg, 152 Me. 161, 125 A.2d 863 (1956), and Lambrou v. Berna, 154 Me. 352, 148 A.2d 697 (1959), and the Nevada court in State ex rel. Lyon v. Lyon, 75 Nev. 495, 346 P.2d 709 (1959), held nothing more than this: That a mere certificate of a duty of support by a court of an initiating state, based upon an affidavit or sworn pleading of a complainant or upon an ex parte hearing and forwarded to a court of a responding state, all as authorized by the Uniform Support Law, does not establish the duty or the extent thereof ; and that it is the obligation of the court of the responding state to determine duty and the extent thereof from evidence adduced in a hearing before it. None of the cases held that in determining duty and extent the court in the responding state must apply that state’s substantive law. The Florida Uniform Support Law, unlike the Texas law at the time this proceeding was filed and judgment was entered, has provided since 1952 that an obligor’s duty of support is determined by the law of the state in which he is found or in which he was present during the period for which support is sought. The Florida decisions in Jackson v. Hall, 97 So.2d 1 (1957) and Clarke v. Blackburn, Fla.App., 151 So.2d 325 (1963) grew out of proceedings by the states of Illinois and North Carolina, respectively, to extradite Florida residents under the criminal enforcement provisions of the Uniform Support Laws of those states. The Supreme Court of Florida held, in keeping with its own statutory provision, that whether the persons sought to be extradited owed duties of support, and the extent thereof, could only be determined by the Florida courts according to Florida law. With these Florida decisions before it, the Municipal Court of Appeals for the District of Columbia, in Cobbe v. Cobbe, 163 A.2d 333 (1960), ordered a trial court to certify to a Florida court that it found a support relationship between a Florida resident and his minor daughter in the District of Columbia, leaving determination of actual duty of support and the extent thereof to the Florida court according to the substantive law of that state.

We have analyzed the foregoing cases at some length because the Court of Civil Appeals seemingly regarded them as establishing a uniform holding in all state jurisdictions that in cases of this kind whether there is a duty of support is always to be determined by the substantive law of the responding state. Our analysis discloses that only the Florida court has so held. Unlike the Florida statute, Article 2328b-3 contained the following provision when this case was tried and judgment was entered:

“Sec. 7. Duties of support enforceable under this law are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought or where the obligee was present when the failure to support commenced, at the election of the obligee, but shall not include alimony for a former wife.”

The Texas statute thus gave the obligee, Shirley Marie Bjorgo, a “choice of law” to be applied in determining defendant’s duty of support, the choice to be exercised by Marie Bjorgo, the plaintiff. See Smith v. Smith, 125 Cal.App.2d 154, 270 P.2d 613, 618 (1954). She chose the law of Kentucky where Shirley Marie was present when the failure to support commenced. This brings us to a consideration of the holding by the Court of Civil Appeals that the Kentucky judgment is not entitled to full faith and credit.

The holding of the Court of Civil Appeals that the Kentucky judgment is not entitled to full faith and credit seems to us to be based upon a misconception of the nature of the judgment of the Texas trial court. The trial court’s judgment was interpreted as ordering the defendant to make future weekly support payments in compliance with the terms of the Kentucky judgment. Proceeding to apply the law on that premise, and citing Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1909), Gard v. Gard, 150 Tex. 347, 241 S.W.2d 618 (1951), Criteser v. Gaffey, Tex.Com.App., 222 S.W. 193 (1920), and Quinn v. Quinn, Tex.Civ.App., 216 S.W.2d 1001 (1949), writ refused, no reversible error, as authority for the proposition that a judgment ordering support payments which, before they accrue, are subject to change or modification is not a final judgment and is not entitled to full faith and credit, the Court observed that the plaintiff had the burden, which she did not discharge, of pleading and proving that under the law of Kentucky the unaccrued support payments were not subject to change or modification by the Kentucky courts. If we interpreted the trial court’s judgment as did the Court of Civil Appeals, we would be compelled to deal with that problem; but we do not so interpret it.

We interpret the trial court’s judgment as giving effect to the Kentucky judgment only to the extent that the judgment imposes a duty on the defendant to support his child, and as then fixing, independently of the terms of the Kentucky judgment, the amount of the payments to be made. The record reflects that the parties filed a written agreement in this cause on June 8, 1964, in which they agreed that “assuming there is a duty upon Donald Bjorgo to support Shirley Bjorgo under the laws of the State of Texas, which the Defendant denies, said duty shall be in the amount of $520.00 per year, payable in installments of $10.00 per week.” The trial court entered its judgment on the same day. In the judgment the court found that based upon Article 2328b and the Kentucky judgment the defendant has “a legal duty” to support Shirley Bjor-go, and then made an independent finding “that the defendant is able to pay the sum of $10.00 per week to said Shirley Bjorgo until said Shirley Bjorgo shall have reached the age of eighteen years.” The judgment ordered the defendant to pay $10.00 per week to the District Clerk “commencing on' June 15, 1964, and payable each Monday thereafter until further order” of the court. If the trial court’s judgment is interpreted as giving full faith and credit to and enforcing the Kentucky judgment’s provision for future support payments, the agreement of the parties serves no purpose, the finding that the defendant is able to pay until the child reaches the age of eighteen years, instead of sixteen years, is meaningless, and the reservation by the court of the power to change the payments is without authority. It is quite clear that the Kentucky judgment was given full faith and credit only to the extent that it adjudicated the defendant to be the father of the child and imposed a duty to support the child. To that extent the judgment is a final judgment and entitled to full faith and credit. See 16 A.L. R.2d 1098, 1100-1101.

Since the Kentucky judgment is final and is entitled to full faith and credit in so far as it imposed a duty on defendant to support his child, Sections 13 and 15(b) of Article 2328b-3 authorized the trial court to make an independent adjudication of the amount to be paid and intervals at which payments are to be made. Section 13 reads:

“Sec. 13. If the court of the responding state finds a duty of support, it may order the defendant to furnish support or reimbursement therefor and subject the property of the defendant to such order.”

Sec. 15 provides:

“Sec. 15. In addition to the foregoing powers, the court of this State when acting as the responding state has the power to subject the defendant to such terms and conditions as the court may deem proper to assure compliance with its orders and in particular:
“(a) * * *
“(b) To require the defendant to make payments at specified intervals to the district clerk or probation department or the obligee and to report personally to such clerk or probation department, at such times as may be deemed necessary.”

The defendant was entitled to a hearing in the Texas court on his duty of support and the extent thereof. He received it. The summary judgment proofs established the duty and its extent. The copy of the Kentucky judgment, entered with the defendant personally before the court, established the duty, and the agreement of the parties supports the trial court’s order that, subject to further orders of the court, the defendant make weekly support payments of $10.00 each. By recognizing that the trial court made an independent finding and order with respect to the amount of the support payments, we are not to be understood as holding that upon giving full faith and credit to the Kentucky judgment on duty of support, the trial court was without power, after hearing, to enforce the remainder of the judgment. We simply do not reach this question. We call attention, however, to Sec. 2(6) of Art. 2328b-l, which reads:

“ ‘Duty of support’ includes any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final * *

The holding of the Court of Civil Appeals that to require defendant to support his illegitimate child would deny him equal protection of the laws seems to rest on its further holding that the Kentucky judgment is not entitled to full faith and credit. See 391 S.W.2d 533. If that is the only basis for the holding, we have disposed of it. But the court may not have intended so to limit its holding since in the course of its opinion it quoted certain language concerning equal protection of the laws from this Court’s opinion in State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67 A.L.R.2d 758 (1958), and cited Commonwealth of Pennsylvania ex rel. Dept. of Public Assistance v. Mong, 160 Ohio St. 455, 117 N.E.2d 32 (1954).

In Copus we were concerned with the extraterritorial effect of a California support statute on a former California resident after he had become a resident of Texas. We specifically noted that the proceeding was not under the Uniform Law. We refused to give effect to the statute, and in the course of discussing the matter made this observation (309 S.W.2d 229):

“To say that the support statute compelled liability for that period of time after the respondent moved to Texas would seem to deny to him equality with other citizens of the state.”

In Mong the Supreme Court of Ohio rested its decision refusing to give effect to a Pennsylvania support statute on denial of equal protection of the laws. The decision was by a divided court and is analyzed and criticized in the dissenting opinion in Copus.

The passing comment in Copus was not intended to commit us to a holding that for courts of this State to give effect to support obligations incurred by Texas residents before moving to this State would violate constitutional rights to equal protection of the laws. If the comment carries that implication, it is now disavowed. A state may classify its citizens into reasonable classes and apply different laws, or its laws differently, to the classes without violating the Equal Protection Clause of the Fourteenth Amendment. 16 Am.Jur. 2d 859, Constitutional Law, § 494, et seq.; 12 Tex.Jur.2d 457 Constitutional Law, § 110, et seq. We do not consider unreasonable a classification which puts into one class those citizens of this State whose duties of support are incurred under laws of this State and into another those who have become citizens of this State after incurring obligations of support in another state. For comment on this question, see 13 Stanford Law Review 901, 911-913. It follows that to enforce against a resident of this State an obligation of support incurred in another state before residence here was acquired, which obligation cannot, under our law, be imposed upon a Texas resident who has not incurred the obligation elsewhere, is not a denial of equal protection of the laws.

The judgment of the Court of Civil Appeal's is reversed and the judgment of the trial court is affirmed.

      . Emphasis ours throughout unless otherwise indicated.