author: HOGAN, Judge.

text:
    Juanita BOONE, Plaintiff-Respondent, v. Evelyn RICHARDSON, Defendant-Appellant.
    No. 8347.
    Springfield Court of Appeals. Missouri.
    Feb. 19, 1965.

      Harold D. Jones, Bock & Jones, New Madrid, for defendant-appellant.
    Web A. Welker, Welker & Young, Por-tageville, for plaintiff-respondent.
   HOGAN, Judge.

In this action against Evelyn Richardson, Juanita Boone sought to recover $10,000.00 damages for personal injuries, loss of wages and impairment of earning capacity sustained as a result of a collision between the plaintiff’s and defendant’s automobiles. The collision occurred at an intersection in Portageville, Missouri, on January 31, 1963. Upon trial of the case on January 10, 1964, a jury returned a verdict finding the issues generally for the plaintiff and against the defendant, but assessing plaintiff’s damages at the sum of “$ 0 .” The plaintiff subsequently filed a motion for new trial on the issue of damages only, and the defendant filed an after-trial motion for judgment as authorized by Rule 72.02, V.A. M.R. The trial court granted a new trial on the issue of damages only, and denied defendant’s motion for judgment. The defendant appeals. The principal questions before us, therefore, are: (1) whether the plaintiff made a submissible case upon the ground or grounds of negligence actually submitted to the jury, Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 667 [3]; and (2) whether the jury’s verdict can reasonably be construed as a general verdict for the plaintiff with an inadequate assessment of damages so as to authorize the discretionary grant of a new trial on the ground that the verdict was against the weight, of the evidence. Underwood v. Brockmeyer, Mo., 318 S.W.2d 192, 193-194 [1-4].

The plaintiff, a 27-year-old legal secretary, having been to “mother’s for lunch,” was returning to work about 12:45 p. m. on the day in question. It was a bright, sunshiny day, the visibility was good and the pavement was dry. The plaintiff was driving south on King Avenue, which is described as a “two-lane blacktop” street. The defendant was driving east on Fourth Street, which is also referred to as a “two-lane blacktop” street. At the place in question, King Avenue, which runs north and south, is intersected by Fourth Street, an east and west street. King Avenue has been designated as a "through” street by ordinance, and vehicles proceeding east or west on Fourth Street are required to come to a complete stop before entering onto or crossing King Avenue. The intersection in which the collision occurred is presumably a right angle intersection, and there is a stop sign at the southwest corner of the intersection, according to the defendant, “maybe half a foot back west of the intersection.”

As Mrs. Boone related the incident, she was going south on King Avenue, wholly in the west (southbound) lane, “driving about 20.” When she was “about a fourth of a block” from the intersection, she saw Mrs. Richardson approaching from the west about “half-a-block” from the intersection, and Mrs. Richardson appeared to be slackening her speed. “ * * * I saw Mrs. Richardson’s car approaching and it appeared to be slowing.” Assuming that the defendant would stop, the plaintiff proceeded into the intersection without looking further. As the plaintiff got in the “middle of the intersection, or as I passed her lane of traffic, why, she hit me.” Mrs. Boone testified that her vehicle was struck at the right rear door, damaging the right rear door and panel.

The defendant’s testimony was that she stopped at the intersection four or five feet west of the intersection, looked both ways, and “started to pull out on King.” After she had proceeded three or four feet, she then saw the plaintiff, “slammed [the] brakes on,” and swerved to the left, attempting to avoid the plaintiff. The defendant’s statement was that “she [plaintiff] was on me and I was on her before I even saw her. * * * ” Mrs. Richardson’s testimony indicates that her field of vision was clear both to the north and to the south as she entered the intersection. The damage to the defendant’s automobile was described as being only “a few scratches” on the hood and front end.

Though the force of the impact was not sufficient to leave a visible mark on her body, Mrs. Boone maintained that she suffered painful and disabling injuries as a result of the accident. Her evidence was that shortly after the casualty she began having headaches and pain in her shoulders and arms, and that she had sustained an injury to her back. For six or seven months the headaches and neck pain had been severe. At trial time the severity of her symptoms had abated somewhat, but she still had stiffness in her arms and shoulders and “still [had] headaches also but not as extreme as thgy were in the beginning.”

Mrs. Boone had consulted a local physician within a day or two of the accident, and he had prescribed medicine for pain, muscle relaxants and tranquilizers. The plaintiff had remained on this medication until midsummer 1963. The plaintiff’s evidence was that her husband was in military service and that she had planned to leave her job in Portageville about the end of March 1963, but because of her injuries she had been obliged to quit sooner than she anticipated. During the last few weeks of her employment she had been unable to work full time, and by means of her employer’s office records she estimated her loss of wages at $324.00. It was brought out on her cross-examination that after she and' her family moved to Charleston, South Carolina, in April 1963, she cared for her two children and her husband, prepared all the family’s meals, did all the laundry, and managed their five-room house substantially without assistance.

Two physicians testified concerning the plaintiff’s injuries. Dr. James Grable, who appears to have been the plaintiff’s family doctor when she lived at Portageville, saw the plaintiff a short time after the accident, and he had diagnosed the plaintiff’s injuries as a sprain of her neck and a muscle strain of her back. Upon examination, the plaintiff had given a history of being involved in an automobile accident, but no bone injuries were apparent in her X-rays, and Dr. Grable’s treatment had consisted primarily of supportive measures. At first the doctor had prescribed only muscle relaxants and local heat. The plaintiff did not respond satisfactorily and Dr. Grable testified that he had increased her medication in strength and had prescribed a corticosteroid to reduce inflammatory reaction. At a still later date he had prescribed a tranquilizer for Mrs. Boone. Dr. Grable had seen the plaintiff on five occasions between February 2, 1963, and March 26, 1963; after an initial period during which there was no marked improvement, the plaintiff’s symptoms had gradually subsided, although when the doctor examined the plaintiff on November 23, 1963, apparently in preparation for the trial, she was still complaining of tenderness about the neck and the left side of the baek. At the November examination, the plaintiff had also complained of pain radiating out into her arms, especially the left arm. Dr. Grable had no opinion as to whether the plaintiff’s condition was permanent or temporary. He was, however, of the opinion that she had been totally disabled for a period of about two weeks following her accident, and he indicated that in his opinion she was still partially disabled at the time of trial.

The defendant produced a Dr. Raymond Ritter, who had examined the plaintiff at the defendant’s request some ten months after the accident. Dr. Ritter’s findings were negative as to the existence of any substantial injury on the plaintiff’s part. On November 25, 1963, this physician made what he described as a “complete physical examination” of the plaintiff, and found that she had a full range of motion of her head in all directions, a full range of motion in her arms and hands, and that the contour of her back was normal, which indicated to him that there was no straightening of the contour from muscle spasm. Dr. Ritter’s X-ray examination of the plaintiff’s spine indicated no abnormality or deformity of the structure, and he concluded by saying that there had been “no objective sign” of any injury upon his examination, although in his opinion the plaintiff had sustained a sprain of her neck and possibly of her back.

Turning first to the contention that the plaintiff made no submissible case for the jury, our attention is directed to the fact (and we note) that the plaintiff submitted her case both upon primary and humanitarian negligence. However, if the plaintiff made a submissible case on any theory actually submitted, there was no error in refusing the defendant’s motion for directed verdict, and the trial court’s action in that respect must be affirmed. Nelson v. Wabash Railroad Co., Mo., 300 S.W.2d 407, 409 [1]; DeLay v. Ward, 364 Mo. 431, 435, 262 S.W.2d 628, 630 [2]; Fuzzell v. Williams, Mo.App., 288 S.W.2d 372, 373 [1]. We must, of course, take that view of the evidence most favorable to the plaintiff and give her the benefit of all reasonable inferences that may be drawn from all the evidence, disregarding the defendant’s evidence except where it aids the plaintiff’s ease. Brown v. Wooderson, Mo., 362 S.W.2d 525, 526 [1]; Highfill v. Brown, Mo., 340 S.W.2d 656, 658 [2-4]; Fenneren v. Smith, Mo., 316 S.W.2d 602, 606, 608. We also note that the defendant has objected— in this court — to two of the instructions given as being misdirection to the jury. We think, however, that we may not consider the defendant’s assignments of error directed to the instructions, for the defendant filed no motion for new trial, but only an after-trial motion for judgment. In general, only the submissibility of the plaintiff’s case is preserved for appellate review by a defendant’s after-trial motion for judgment, Millar v. Berg, Mo., 316 S.W.2d 499, 501-502, and allegations of error relating to instructions must be preserved in the motion for new trial. Rule 79.03, V.A. M.R.; see Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 609 [11].

The plaintiff’s theory of her primary submission was that the defendant failed to yield the right-of-way by stopping before she drove into the intersection, although the plaintiff’s vehicle was then already in the intersection or approaching so closely as to constitute an immediate hazard. In this connection, it must be borne in mind that the City of Portageville had designated King Avenue as a favored thoroughfare, or “through street,” and had erected a stop sign at the southwest corner of the intersection; it had, by ordinance, required all vehicles to come to a complete stop on Fourth Street before proceeding onto King Avenue, and incidentally to yield the right-of-way to other vehicles approaching so closely as to constitute an immediate hazard. The mutual rights and duties of the parties were analogous to those created by Section 304.021(4), RSMo (1959), V.A.M.S., which, to some extent, distinguishes this case from the cases cited by the appellant, e. g., Major v. Davenport, Mo.App., 306 S.W.2d 626, and Douglas v. Whitledge, Mo.App., 302 S.W.2d 294, both of which deal with uncontrolled intersections.

It is true, as the defendant argues, that Mrs. Boone gave conflicting statements as to the defendant’s position west of the intersection as Mrs. Boone approached. In her pre-trial deposition, the plaintiff placed the defendant one-fourth of a block west of the intersection, and then on trial stated that she was half a block west when plaintiff was still one-quarter of a block north. However, the plaintiff was not conclusively bound by her own estimates of speed and distance, Fenneren v. Smith, supra, 316 S.W.2d at 608, and the jury was at liberty to accept either the statement in the plaintiff’s deposition or her trial testimony as true. Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 20 [2, 3], The plaintiff estimated her speed at “about 20,” and the defendant estimated hers at “probably 15 to 20 miles an hour,” as the vehicles approached the intersection. Without indulging in precise calculations, the jury could infer at least that as plaintiff and defendant approached the area common to both streets, Mrs. Boone was somewhat closer to the intersection on the favored street, Mrs. Richardson was somewhat further away, and that they were simultaneously approaching at a fairly constant rate of speed. It would then reasonably follow that the plaintiff came to and entered the intersection first. The intersection was described as “open,” so that either driver was infer-ably visible to the other as she approached.

The point of impact might have been more precisely developed, but it was shown that the damage to the plaintiff’s automobile was located at the right rear, and that to the defendant’s vehicle upon the front of the automobile, including the hood. The location of the damage to the vehicles would in itself be some evidence of their relative positions at the time of impact, Thompson v. Jenkins, Mo., 330 S.W.2d 802, 805-806; Curtin v. Benjamin, 305 Mass. 489, 26 N.E.2d 354, 355 [3, 4], 129 A.L.R. 433, and in addition the plaintiff testified that she was struck “just as I got in the middle of the intersection, or as I passed her lane of traffic. * * * ” This evidence, in our view, tends to locate the point of impact in the southwest quadrant of the intersection, and we believe a jury could reasonably infer that Mrs. Boone had entered the intersection and was more than halfway through when she was struck.

The defendant argues that there is no evidence in the record that she did not stop, as required by the ordinance, pointing to the testimony of the plaintiff that she made no observation of the defendant’s vehicle after she saw the defendant approaching one-fourth to one-half block west of the intersection, and to the defendant’s evidence that she stopped at the stop sign “about four foot, maybe five,” west of the intersection. The defendant’s duty to the plaintiff would not be discharged, however, merely by making a stop and then proceeding into the intersection. After she stopped west of the stop sign, the defendant still had the duty to observe the plaintiff’s vehicle and, if it was approaching so closely as to constitute an immediate hazard, to yield the right-of-way by stopping again, to the extent that it was possible for her to do so. Herr v. Ruprecht, Mo., 331 S.W.2d 642, 648 [5, 6]; see James v. Berry, Mo.App., 301 S.W.2d 530, 533 [5]. Mrs. Richardson testified that after she stopped west of the intersection she then proceeded, “not more than five miles an hour,” and could have stopped again almost instantly. The evidence justifies an inference that when' the defendant stopped the plaintiff’s vehicle was in or closely approaching the intersection and was visible to the defendant. The defendant had a clear field of vision and the ability to stop at once. Mrs. Richardson described the sequence of events by saying “ * * * she was on me and I was on her before I even saw her * * * ”; and when she was asked if she had seen the plaintiff before the collision, she stated that she had not. We believe there was no error in submitting the plaintiff’s negligence in failing to stop before entering the intersection.

The defendant also maintains that the plaintiff was guilty of contributory negligence as a matter of law, because, defendant says, it was incumbent upon the plaintiff to maintain a lookout ahead and continue her observation of the intersection as she approached. While we agree that a jury might have found the plaintiff guilty of contributory negligence, the defendant’s argument takes no account of Mrs. Boone’s testimony, at least twice repeated, that when she saw the defendant approaching the defendant appeared to be slowing. This is entirely consistent with the defendant’s testimony that she did stop, at least momentarily, at the intersection. It is true that the plaintiff had a duty to maintain a lookout ahead, but this did not impose any duty to observe the defendant’s vehicle continuously, if it reasonably appeared that defendant was slowing. Pitts v. Garner, Mo., 321 S.W.2d 509, 517-518. If the defendant appeared to be slowing or slackening her speed, we believe the plaintiff had a right to assume that the defendant’s non-emergency vehicle approaching the favored thoroughfare would obey the ordinance and stop. Pitts v. Garner, supra, 321 S.W.2d at 518; Collier v. St. Louis Pub. Serv. Co., Mo.App., 298 S.W.2d 455, 460; Anno., 164 A.L.R. 8, 73-74, Section g. (3) (1946). It must be borne in mind that plaintiff had, by defendant’s own calculations (which are of course only approximations), only slightly over 2.5 seconds in which to look again and appreciate the situation after she first saw the defendant, for the plaintiff would have covered the distance to the intersection, which we assume to be 75 feet, Lilly v. Boswell, 362 Mo. 444, 452-453, 242 S.W.2d 73, 76 [4], in about 2.5 seconds at 20 miles per hour, or 29.3 feet per second. We think we cannot say that the plaintiff was guilty of contributory negligence as a matter of law, though we do not say or intimate that the facts compel the conclusion either that the defendant was negligent or that the plaintiff was not contributorily negligent. We merely say that, in our view, if all the evidence and the reasonable inferences therefrom are considered, reasonable minds could differ, and therefore these issues were properly submitted to the jury. Alvey v. Sears, Roebuck & Co., Mo., 360 S.W.2d 231, 236; Nelson v. O’Leary, Mo., 291 S.W.2d 142, 147 [4]; Brandt v. Thompson, Mo., 252 S.W.2d 339, 341 [1].

The defendant next argues that the trial court erred in granting a new trial on the issue of damages only because the jury’s verdict was in fact a finding for the defendant. She argues, at least by inference, that a judgment for the defendant should have been entered by the trial court, or that we should direct the entry of such a judgment. The plaintiff counters with the argument that since the new trial was granted on a discretionary ground, as indeed it was, we have only the function of ascertaining whether the trial court abused its discretion in awarding the new trial solely on the issue of damages.

The transcript before us shows that after the cause had been submitted and the jury had deliberated for some time, they returned to the court room to ask for information from the trial court, and made the following inquiry:

“A JUROR: Your Honor, we the jury find that we are running into a problem. Frankly we have two jury men that didn’t vote for the defendant, (our emphasis) finding her negligent on her part, and then on the amount of the amount, we have nine that is agreed on one amount, and we are wondering should our names be put on into it, this paper here.
“THE COURT: Just recheck the instructions and particularly the last instruction. You will be guided by the instruction and you will find that situation covered in the instruction.
“A JUROR: We read it, and of course, they were a different number of men on the finding the defendant negligent and the number of men that the amount of money that we decided on for her, for the plaintiff.
“THE COURT: Of course, you can only return one verdict so that any who may agree on one verdict must sign the verdict, but they must be in agreement on both points that you have discussed. You think that answers your question?
“A JUROR: Yes, sir, I believe it does.”

The jury again retired. Somewhat later they returned and were then asked:

“THE COURT: Have you reached a verdict?
“THE FOREMAN: We have.
“THE COURT: ‘We, the jury in the above entitled cause, find the issues in favor of the plaintiff and against the defendant, and assess plaintiff’s damages at no dollars.’ You gentlemen step back in the jury room, will you? (The jury was returned to the jury room, and after discussion off the record, was returned to the courtroom.)
“THE COURT: Now, gentlemen, the verdict which I read, is that the verdict of the jury?
“THE FOREMAN: Yes, it is, Your Honor.
“THE COURT: The ones that have signed it, that is your verdict. All right.”

This verdict was then received by the trial court without immediate objection on the part of either party, though within six days the plaintiff filed a motion for new trial on the issue of damages alone. The transcript does not contain the actual judgment entered, but from the minute entry, which is not really a judgment, Byrd v. McGinnis, Mo., 299 S.W.2d 455, 460 [7, 8], we take it that the trial court regarded the verdict as a verdict for the plaintiff with a wholly inadequate assessment of damages. In this respect, we think the trial court erred.

The appellant, brushing aside the Missouri decisions, cites us to cases from other jurisdictions, some of which hold, as she says, that the return of a verdict for the plaintiff affirmatively stating that it is for no amount of damages warrants the entry of a judgment for the defendant. Anno., 49 A.L.R.2d 1328, 1334-1336, Section 8 (1956). We find it unnecessary for the purposes of this appeal to collect and distinguish the authorities in other jurisdictions, for we believe that past rulings in Missouri make it necessary to reverse and remand the cause for a new trial, both on the issue of liability and damages.

Nor is it necessary to reiterate at length all the general principles applicable where defective verdicts have been presented, since those principles have been recently and fully reviewed by the Supreme Court. Thorne v. Thorne, Mo., 350 S.W.2d 754, 757-758. The statutes and rules applicable here require the jury to return a general verdict, which must include a finding or pronouncement on the issue of damages, where that issue is submitted. Thorne v. Thorne, supra, 350 S.W.2d at 757. While it is doubtless true that a verdict should be considered in light of the record to see if the court can ascertain the jury’s intent, even when the verdict is inartfully expressed, Thorne v. Thorne, supra, 350 S.W.2d at 757; 53 Amjur., Trial, Section 1036, pp. 716-717, it is also true that a verdict is the sole basis for the entry of a judgment, and if it is not sufficient to sustain the judgment, the judgment is void. Thorne v. Thorne, supra, 350 S.W.2d at 757 [1].

In this particular case, however, by whatever avenue we approach, we find ourselves unable to construe the verdict with certainty. It is not only possible, but even likely, that the jury was confused. The plaintiff’s proof of injury was weak, contradictory and sketchily presented. Coupled with this, it was shown that plaintiff’s husband had filed a separate suit arising out of the same transaction, and the defendant carefully instructed the jury that no recovery could be had by the plaintiff for medical expenses or damages to the vehicle, since recovery for those losses was being sought in a separate action. It would doubtless be possible for a jury to conclude that in the respects for which recovery was sought, there was no damage to the plaintiff shown. Further, it is possible to construe the comments preserved in the record (“ * * * we have two men that didn’t vote for the defendant * * * ”) as an indication that ten jurors desired to find generally for the defendant. On its face, however, the verdict begins by finding the issues generally for the plaintiff, and then it goes on to state positively that the plaintiff had suffered no damage whatever. The verdict, as finally returned and accepted, was signed by nine of the jurors.

The parties were entitled to the unconditional judgment of the jury, rather than a court’s interpretation of its finding, Ralston Purina Co. v. Kennedy, Mo.App., 347 S.W.2d 462, 467, and in our view the verdict received is, on its face, so contradictory as to be a nullity. Granted, there may be instances in which a finding for a small amount of damages in a personal injury case is consistent with a pronouncement of liability on the defendant’s part, at least where the damages awarded are substantial enough to represent “an effort at measured compensation.” Davidson v. Schneider, Mo., 349 S.W.2d 908, 913 [2-5]. Still, there must be some injury before there can be any actionable negligence, and if the defendant’s breach of duty causes no actual damage to the plaintiff, the defendant is entitled to a verdict. Schaefer v. Accardi, Mo., 315 S.W.2d 230, 233-234 [6, 7] [8, 9]; Biscoe v. Kowalski, Mo., 290 S.W.2d 133, 137-138 [3] [4] [5, 6]; Eickmann v. St. Louis Pub. Serv. Co., 363 Mo. 651, 665-666, 253 S.W.2d 122, 131 [12]; Wise v. Towse, Mo.App., 366 S.W.2d 506, 509-511; 2 Harper & James, Torts, Section 25.1, p. 1300 (1956); Prosser, Torts, Section 35, pp. 165— 166 (2d ed. 1955).

It would probably serve no useful purpose here to point out that the trial court might properly have called the defect in the verdict to the attention of the jury and required its correction before it was received. Thorne v. Thorne, supra, 350 S.W.2d at 758 [9]. Apparently the trial court — for whose judgment we entertain considerable respect — construed the verdict as a finding for the plaintiff, with a wholly inadequate assessment of damages, and therefore ordered a new trial upon the issue of damages only. However, upon careful consideration, it is our view that the verdict returned is not merely equivocal or uncertain; the jury’s finding of the issues for the plaintiff flatly contradicts its finding that the plaintiff suffered no damages whatever. To take either the first clause (“we * * * find the issues in favor of the plaintiff and against the defendant”) or the second (“and assess plaintiff’s damages at the sum of $ 0 ”) as the true judgment of the jury is to disregard the balance of the sentence. The verdict cannot be fairly resolved into a definite finding for either party, and therefore it will not support the entry of any judgment. Thorne v. Thorne, supra, 350 S.W.2d at 757 [1]; Hall v. Martindale, Mo.App., 166 S.W.2d 594, 603; Lindstrom v. Kansas City Southern Ry. Co., 202 Mo.App. 399, 401-402, 218 S.W. 936, 937; Singleton v. Kansas City Baseball & Exhibition Co., 172 Mo.App. 299, 305-306, 157 S.W. 964, 965-966 [1]; Newton v. St. Louis and S. F. R. Co., 168 Mo.App 199, 206, 153 S.W. 495, 498. Cf., Carnes v. Thompson, Mo., 48 S.W.2d 903, 904-905 [4, 5]. The cause must be reversed and remanded for a new trial upon all issues. It is so ordered.

RUARK, P. J., and STONE, J., concur.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    Bishop C. Ewbank TUCKER, Appellant, v. Robert KILGORE, Appellee.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    As Modified on Denial of Rehearing March 26, 1965.

      Charles J. Lunderman, Jr., James A. Crumlin, Louisville, for plaintiff in error.
    Harry S. McAlpin, Louisville, for defendant in error.
   PALMORE, Judge.

Robert Kilgore, a Louisville policeman, brought this, action against C. Ewbank Tucker, a bishop of the Zion Methodist Episcopal Church, for libel. He recovered $3,000 compensatory and $1500 punitive damages. The jury found against the bishop on his counterclaim for assault and battery. He appeals on the grounds that the evidence was insufficient to support the amount of the verdict and that the trial court erred in refusing to give an instruction on qualified privilege and in overruling his motion for a mistrial.

In December of 1961 the Alpha Phi Alpha Fraternity held a national convention at the Sheraton Hotel in Louisville. At the request of one or more of its officers the police department of the city assigned Patrolman Kilgore to duty at the hotel. Kilgore, a University of Louisville graduate, was a member of the fraternity. He had been on the city police force for 23 years. Bishop Tucker, who was not a member of the organization, came to the hotel and entered the room in which one of its meetings was being held. He was asked to leave and refused, whereupon Kilgore, who had been called to the scene, laid hold of him and escorted him out of the hotel. A week or so later the bishop distributed some 2,000 copies of the handbill that is the basis of Kilgore’s complaint. It read as follows:

“NEGROES OF LOUISVILLE— WAKE UP — AND GET WISE TO THESE ORGANIZATIONS WHO LOOK DOWN WITH DERISION UPON THE MASSES OF THE PEOPLE.
“The Tea Sippers and pseudo-aristocrats have held their convention at the Sheraton Hotel — The Alpha Boys have departed, unwept, unhonored and unsung as far as the masses of Negroes in Louisville are concerned — and we have got ‘good riddance’ of ‘bad rubbish’.
“This Greek letter Fraternity — like others of its kind operates on the theory of the exclusion of what they term the ‘common people’.
“Some of these society — crazy folk— members of the Alpha Phi Alpha Fraternity would not recognize a Greek letter if they saw it written in box car letters. Among them Robert Kilgore— of limited training, no culture and a professional moocher, who strikes you for SOc or a dollar every time he meets you on the streets. This man was used in an attempt to embarrass me at the Sheraton Hotel — without justification or warrant of law — illegally using his temporary authority as a policeman, and acting at the behest of his masters — in this phony race organization. I asked him to arrest me but he did not have the nerve to do so. C. Ewbank Tucker is never embarrassed when he fights for the Civil Rights of his people, and when he smokes out organizations like the Alpha Phi Alpha Fraternity which never made any contribution to the integration fight in Louisville. I shall continue to do so, and to fight until hell freezes over against any charlatan group that sets itself up as an aristocratic oligarchy.
“C. Ewbank Tucker,
“Presiding Bishop Ky. Conference of Methodist Episcopal Zion Church President of Louisville Chapter of the Congress of Racial Equality
Co-Chairman of the Integration Committee.”

Published words are actionable per se if they directly tend to the prejudice or injury of any one in his profession, trade or business. Baker v. Clark, 186 Ky. 816, 218 S.W. 280, 283 (1920); Hill v. Evans, Ky., 258 S.W.2d 917 (1953); Restatement of Torts, § 569, Comment e. There is no question but that the references to Kilgore in the handbill were, in the absence of a valid defense, actionable per se. The two defenses pleaded by the bishop were truth and qualified privilege. The trial court instructed on the defense of truth but not on qualified privilege.

The significance of the defense of qualified or conditional privilege is that it removes the conclusive presumption- of malice otherwise attaching to words that are actionable per se and thereby casts on the plaintiff a technical burden of proof in that respect. Thompson v. Bridges, 209 Ky. 710, 273 S.W. 529, 530 (1925); Tanner v. Stevenson, 138 Ky. 578, 128 S.W. 878, 882, 30 L.R.A.,N.S., 200 (1910). This does not require any greater degree of proof by the plaintiff, because the offensive character of the words still is sufficient by itself to support an inference of malice. The practical difference, therefore, is that in the one case the instructions do not require a finding of malice as a condition of recovery and in the other they do. Cf. McClintock v. McClure, 171 Ky. 714, 188 S.W. 867, Ann.Cas.1918E, 96 (1916).

“A publication is conditionally or quali-fiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts- which he in good faith proceeds to do.” 33 Am.Jur. 124 (Libel and Slander, § 126). “Qualified privilege * * * comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has an interest, or in respect to which he has a duty, public, personal, or private, either legal, judicial, political, moral, or social, made to a person having a corresponding interest or duty.” 53 C.J.S. Libel and Slander § 89, pp. 143-144. See also Miller v. Howe, 245 Ky. 568, 53 S.W.2d 938 (1932), enumerating the requisites of the defense.

“The condition attached to all such qualified privileges is that they must be exercised in a reasonable manner and for a proper purpose. The immunity is forfeited if the defendant steps outside of the scope of the privilege, or abuses the occasion. Thus qualified privilege does not extend * * * to the publication of irrelevant defamatory matter with no bearing upon the public or private interest which is entitled to protection,” etc. (Emphasis added.) Prosser on Torts (2d ed.), p. 625.

Bishop Tucker, for many years a prominent member of the bar in Louisville before his accession to the clerical office he now holds, has been a leader in advancing the cause of his people. Their interests being his interests, it may be assumed without argument that the activities of other persons and organizations in the same area provide the occasion for reasonable comment, criticism and warning by him to the members of his community. Even, however, had it been true (and the jury evidently found it was not) that Kilgore was a moocher, a common panhandler, what was the occasion for or proper purpose to be served by advertising it?

The bishop testified that during his practice of law Kilgore had approached him for money in return for suborning the absence of witnesses or for seeing to- it that charges against his clients were dropped, that on more recent occasions he had solicited him (unsuccessfully) for small sums of money, and that he had a general reputation for such activities. As to his own motives, the bishop answered as follows:

“Q — Now, what was the purpose in having these handbills printed, Bishop?”
“A — My purpose in having these handbills printed was not out of malice to Mr. Kilgore as such, but I wanted the public to know just what was going on as it concerned Mr. Kilgore as a public officer in the City of Louisville, as far as I was concerned.”

Still assuming that the charges had been true, the information imparted by them was long known to the bishop and, if Kilgore bore the general reputation ascribed to him by the bishop, was already known to the community as well. Hence there was no particular occasion for its publication at the time in question.

It might be argued that publication of the derogatory references to Kilgore was qualifiedly privileged incident to a good faith effort to show the Alpha Phi Alpha Fraternity in what Bishop Tucker considered to be its true light, as being composed of unworthy members. Conceding (without deciding) this to have been a proper purpose with a proper occasion, we are of the opinion that to single out an individual member of a large organization, particularly one who is not one of its officers or leaders, and expose him to public scorn transcends the scope of the privilege, because the means is unreasonably disproportionate to the end.

“One purveying such information about one person to protect another is obliged to consider the likelihood and the extent of benefit to the recipient, if the matter is true, as compared with the likelihood of injury and the extent thereof to the subject, if it prove false, or improper to reveal. Whether the privilege exists, depends upon generally accepted standards of decent conduct.” Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814, 818, 73 A.L.R.2d 315, 322 (1958).

In short, if there was a privileged occasion in this instance, our conclusion nevertheless is that Bishop Tucker’s actions with respect to Kilgore were so clearly unfair and unreasonable as to constitute an abuse as a matter of law.

There is yet another reason why the bishop was not entitled to an instruction on qualified privilege-. To the extent that he relied on his own knowledge of Kilgore’s activities, truth was a complete defense, and if the jury believed him in that respect the further defense of qualified privilege was superfluous. On the other hand, if the jury did not believe the testimony based on his personal observations, the only evidence left to satisfy the requirements of good faith and reasonable grounds was his testimony regarding Kilgore’s general reputation. When published as a fact, what one person has merely heard about another is not a sufficient foundation for the defense of qualified privilege. Miller v. Howe, 245 Ky. 568, 53 S.W.2d 938, 939 (1932). “It seems hardly necessary to state that one cannot pass on derogatory information indifferent to its truth, or the consequences thereof, but failure to exercise reasonable care and diligence to ascertain the truth destroys the privilege.” Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814, 73 A.L.R.2d 315, 323 (1958).

Thus the references in the handbill either were the truth or they lacked sufficient basis to support a claim of privilege.

We are of the opinion that the trial court did not err in refusing to instruct on qualified privilege.

Citing the recent case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964), Bishop Tucker invokes the protection of the 1st Amendment of the U. S. Constitution, which “delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct” by requiring proof (beyond the inference naturally arising from the offensive character of the words themselves) of actual malice. That Kilgore was a policeman, however, was no more than a coincidental circumstance in the attack made upon him by the bishop. That attack was directed not at Kilgore’s official conduct as a policeman, but at his fitness and character as a man, exemplifying the low quality of Alpha Phi Alpha, the real object of the tirade. It is obvious from the contents of the pamphlet that it was not aimed at governmental oppression. Its object was to vilify a rival organization, and this purely personal attack on Kilgore was a handy means to that end. The freedom of “uninhibited, robust, and wide-open” debate on public issues guaranteed by the 1st Amendment cannot sensibly be turned into an open season to shoot down the good name of any man who happens to be a public servant.

Kilgore did not prove any damages, but when the defamatory publication is actionable per se there is a conclusive presumption of both malice and damage. Baker v. Clark, 186 Ky. 816, 218 S.W. 280 (1920).

“In cases of defamation the courts tenaciously hold the parties to the damages found by the jury, because there is no scale by which the damages can be graduated with certainty and they admit of no other tests than the intelligence of the jury governed by a sense of justice.” Annotation, “Excessiveness or inadequacy of damages for defamation,” 35 A.L.R.2d 218, 222, quoting Davenport v. Armstead, Mo.App., 255 S.W.2d 132 (1952). See Miller v. Woods, Ky., 338 S.W.2d 412, 413 (1960), and Restatement of Torts, § 569.

No proof of damage was necessary, and we do not regard the verdict as excessive.

During the trial Kilgore suffered some kind of physical collapse and was not present at the end. The only contemporaneous reference in the record to the occurrence is the reporter’s notation of counsel’s motion that the court “discharge the Jury and declare a mistrial in view of the sudden faintirfg of Officer Kilgore which we feel if communicated to the Jury might cause them to be sympathetic with the Officer and his side of the case.” The motion was overruled, and the same ground was stated in support of a subsequent motion for new trial.

Matters of fact stated only in a motion and grounds for new trial cannot be considered on appeal, because the trial court’s certification of the record does not establish their authenticity. Senibaldi v. Commonwealth, Ky., 338 S.W.2d 915, 919 (1960); Equitable Life Assur. Soc. of United States v. Fannin, 252 Ky. 600, 67 S.W.2d 964, 966 (1934); Belcher v. Sandy Valley & E. Ry. Co., 207 Ky. 560, 269 S.W. 729, 731 (1925). The same is true with regard to the contents of any other motion. They are simply allegations. The trial court did not direct the reporter to record what had happened, nor did he cause it to be verified by some other appropriate entry in the record. In the briefs one party says it happened in the presence of the jury and the other says it did not, but the point is that there is no way for this court to know. We must therefore presume that there was no error.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Amos MOUNTS et al., Appellants and Cross-Appellees, v. Anne ROBERTS et al., Appellees and Cross-Appellants.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.

      Henry D. Stratton, Pikeville, for appellants and cross-appellees.
    Jack T. Page, Pikeville, for appellees and cross-appellants.
   WADDILL, Commissioner.

The trial court determined that under the terms of a deed executed in 1904 by Anderson Mounts, and following the life estate of Rebecca Mounts (now deceased), each of Mounts’ 7 sons and 3 daughters was entitled to an undivided Yio interest in the coal and each of his sons received an undivided Vi interest in the minerals other than coal underlying a certain tract of land. From a judgment accordingly entered Mounts’ sons have appealed contending that the daughters are not entitled to any interest in the coal. One daughter of Mounts and the heirs and devisee of his two deceased daughters have cross-appealed contending they are also entitled to a remainder interest in all the minerals.

Omitting the description the 1904 deed reads as follows:

“THIS DEED OF CONVEYANCE made and entered into this 20th day of January, 1904, between Anderson Mounts of Pike County, Ky., party of the first part and Rebecca Mounts, his wife, of the second part.
“WITNESSETH:
“That the said party of the first part for and in consideration of One Hundred Dollars in hand paid, the receipt whereof is hereby acknowledged and for love and affection do hereby sell and convey all my property, both real and personal and all other effects together with all royalties due or to become due on account of a coal lease made by me to the Vulcan Coal Company, * * *.
“To have and to hold the same, together with all the appurtenances thereunto belonging, that is to say the said Rebecca Mounts is to hold and have full control of all of said property real and personal and all other royalties and effects hereinbefore mentioned so long as she remains the wife or widow of the said Anderson Mounts, party of the first part. And after the death or in case of remarriage of the said party of the second part then the said land is to convert [sic] to her lawful male children by the said party of the first part and after the death of the said male children then said land is-to convert [sic] to their lawful heirs. And provided further that after the death or remarriage of the said Rebecca Mounts then her lawful heirs both male and female shall share equally all royalties then due or coming due thereafter on account of the said coal least [sic] hereinbefore mentioned. And provided further that after the death of said heirs then said royalties are to be paid to their lawful heirs.
“IN TESTIMONY WHEREOF the party of the first part has hereunto subscribed his name the day and year aforesaid.”
his
“Anderson x Mounts mark”

In concluding that the appellees have an interest in the coal, the trial court relied on an order entered in a prior action wherein Mounts’ children had sought to cancel the life estate of Rebecca Mounts and collect damages for waste resulting from strip mining under a coal lease she had executed in 1948. The court concluded that she had no legal right to execute this lease and awarded damages. It is apparent that the only issue presented in that case was whether strip mining constituted waste but the court also decided that the fee to the remainder of the coal and the coal mining rights had vested in each of the Mounts’ children. However, any determination other than the adjudication of the issue raised in the former action is not res judicata of the entirely different issues raised in the instant action. Powell v. Bailey, Ky., 376 S.W.2d 532; Philpot v. Minton, Ky., 370 S.W.2d 402.

In the absence of ambiguity a written instrument will be strictly enforced according to its terms. McMahan v. Hunsinger, Ky., 375 S.W.2d 820; McIntire v. Marion Coal Co., 190 Ky. 342, 227 S.W. 298. The language of the deed under consideration is unambiguous. Each of Mounts’ children was to receive an equal share of the royalties paid under the Vulcan Coal Company lease after the death of Rebecca. Since Vulcan surrendered its lease and ceased its mining operation on Mounts’ property during the lifetime of Rebecca we conclude that the trial court erred in determining appellees’ present interest in the coal.

On cross-appeal the appellees contend that, as to the mineral rights, the deed violates the rule against perpetuities since after the successive life estates the remainder would go to the heirs of the sons, some of whom could be born more than 21 years and 10 months after the death of persons living when the deed was executed. They therefore maintain that the remainder interest in all the mineral rights reverted to the grantor and, since he died intestate, should, after the termination of the sons’ life estates, be distributed equally among the 10 children. The contention is sound and is in harmony with our decision in Taylor v. Dooley, Ky., 297 S.W.2d 905. The phrase “after the death * * * to their lawful heirs” in the 1904 deed when read in context is clearly not intended to be one of limitation as was the phrase “her heir after her death” considered in the instrument involved in Kentland Coal & Coke Co. v. Blankenship, Ky., 300 S.W.2d 570. Cf. Combs v. Hounshell, Ky., 347 S.W.2d 550. The trial court erred in failing to award the appellees a remainder interest in the coal and other minerals.

The judgment is reversed on appeal and on cross-appeal with directions to enter a new one consistent with this opinion.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Raymond WARD et al., Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Harold K, Huddleston, Elizabethtown, Reed D„ Anderson, Atty., Madisonville, for appellant.
    Paul M. Lewis, Hatcher & Lewis, Eliza-bethtown, for appellees.
   PALMORE, Judge.

The appellees owned a 102-acre farm fronting on the east side of old U. S. Highway 31W in Larue County. In this proceeding the highway department condemned a 15-acre strip running through it from north to south, leaving 67.5 acres on the west and 19.5 acres on the east. Access between the two parts of the farm will require a two-mile trip.

Witnesses for the landowners estimated the reduction in market value from a low of $10,500 to a high of $16,000. The jury awarded $9,000. Upon a careful review of the record we find no error and no issue of sufficient merit to warrant discussion.

Judgment affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Dorothy KNIGHT et al., Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.
    John B. Breckinridge, Atty Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Reed D. Anderson, Atty., Madisonville, Harold K. Huddleston, Elizabethtown, for appellant.
    Paul M. Lewis, Hatcher & Lewis, Eliza-bethtown, for appellees.
   PALMORE, Judge.

The highway department appeals from a $5,000 condemnation award to the appellee Dorothy Knight for about 10 acres taken from the back of her 47-acre farm in Larue County.

The case came to the Larue Circuit Court on the landowner’s appeal from a county court judgment in the amount of $2,260. Hence the amount in controversy here is $2,740, and the department’s appeal as a matter of right is technically proper. However, we note that none of its witnesses estimated the owner’s loss at less than $2,600, which means that the amount actually in controversy here is $2,400 at most. If the appeal were before us on a motion under KRS 21.080 we would overrule it. As it is, we have reviewed the record and find no error.

Judgment affirmed.


author: MOREMEN, Chief Justice.

text:
    James M. SHARP, Sr., Appellant, v. H. C. ROBINSON et al., Appellee.
    Court of Appeals of Kentucky.
    March 12, 1965.
    Frank S. G.’nocchio, Lexington, for appellant.
    Harbison, Kessinger, Lisle & Bush, Lexington, John S. Grimes, Indianapolis, Ind., for appellee.
   MOREMEN, Chief Justice.

Appellant instituted this action against Central District Warehousing Corporation, hereinafter called the Corporation, and the remaining members of its Board of Directors. The action sought a permanent injunction to prohibit the Board of Directors from unseating appellant as a director of the corporation. The annual meeting of the shareholders was held on July 13, 1959, at which meeting appellant was elected to the Board of Directors — the term of office to be one year. On July 18, 1959 a temporary restraining order was issued by the Fayette Circuit Court pursuant to a complaint filed by appellant. On July 29, 1959 appellant filed an amended complaint and again on the same day filed a second amended complaint. A final order was entered May 12, 1961 and the case was submitted to this Court October 3, 1961.

The only relief sought by appellant was an injunction to secure his position on the Board of Directors of the Corporation. Since his term of office was for one year only and had expired before the controversy was submitted to this Court, the point is now academic and moot. A decision on the merits of this case would be of no benefit to either party in that the controversy is no longer in existence.

It is a generally accepted rule, and a rule of this Court, that an appeal will be dismissed where, due to subsequent events, the circumstances have changed so as to make the determination of the question unnecessary. Com. by Breckinridge v. Woods, Ky., 342 S.W.2d 534, 535; see also, Civil Service Commission v. Tankersley, Ky., 330 S.W.2d 392, where we said:

“ * * * In order for a party to maintain an appeal from a judgment it is essential that he shall be aggrieved or prejudiced by the judgment, for appeals are not allowed for the purpose of settling academic or moot questions however interesting or desirable such disposition may be. Only parties to litigation who have rights that may have been erroneously injured or rights which may be enforced by law in whole or in part by obtaining a reversal of a judgment are entitled to maintain an appeal. Maddox v. Giltner, 226 Ky. 578, 11 S.W.2d 426; Mason v. Commonwealth, Ky., 283 S.W.2d 845, 54 A.L.R.2d 1158. 2 Am. Jur., Appeal in Error, § 152; 3 Am. Jur., Appeal in Error, § 733.”

We are of the opinion that the appeal should be and the same is herein dismissed.

Appeal dismissed.


author: JAMES C. CARTER, Special Commissioner.

text:
    George FAIRWEATHER et al., Appellants, v. Mildred NORD, Admr’x of the Estate of Ella H. Nord, et al., Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.
    James S. Welch, Malcolm Y. Marshall, Ogden, Robertson & Marshall, Louisville, for appellants.
    Robert J. Speckman, Philip P. Ardery, Louisville, for appellees.
   JAMES C. CARTER, Special Commissioner.

Ella H. Nord, a resident of Louisville, Jefferson County, Kentucky, died on January 29, 1961, leaving an instrument of writing which was, thereafter, offered for probate in the Jefferson County Court as her last will and testament.

On February 2, 1961, the instrument was produced in said court and after a hearing on that date an order was entered rej ecting the instrument for probate and appointing Mildred Nord, Administratrix of the decedent’s estate. Mildred Nord is the daughter-in-law of decedent and the person designated in the instrument as executrix (sic) of the estate of Ella H. Nord.

The appellants, George Fairweather, Blanche Craven and Cecil Penny instituted this action in the Jefferson Circuit Court, to vacate or set aside the order of the Jefferson County Court, Probate Division in Action No. 88699, rejecting for probate the writing which had been offered as the holographic will of Ella H. Nord.

Upon the case being submitted to the court below, on motion of appellees for a judgment on the pleadings and record, judgment was entered affirming the order of the county court, and from that judgment this appeal was prosecuted.

This instrument of writing dated July 8, 1959, purporting to be the last will and testament of Ella H. Nord consisted partly of a printed form and partly of handwriting being written by deceased, Ella H. Nord, except the signature and address of a witness.

The entire instrument is as follows with the handwritten portion emphasized by capital letters:

“In the name of God, Amen, I, ELLA H. NORD, 1124 WALTER AVE. LOUISVILLE IS KY being of sound and disposing mind and memory, and considering the uncertainty of this life, do make, publish and declare, this to be my last will and testament as follows: First, after my lawful debts are paid, I give TO MY NEICE (sic) BLANCHE CRAVEN 108-05-97th AVE. RICHMOND HILL, NEPHEWS GEORGE FAIRWEATHER 21 PINEWOOD AVE. EAST GREENBUSH, N. Y. AND CECIL PENNY 14 HOFFMAN RD. L. I. ALL MY REAL AND PERSONAL AFFECTS OF WHICH I MAY DIE POSSESSED, PROVIDED THEY TAKE GOOD CARE OF THEIR AUNT MAME, MY SISTER MAME McCarthy living with me now as long as she may LIVE.
“SHOULD ANY OF THESE BENEFICIARIES DIE BEFORE DISTRIBUTION, SUCH SHARES WILL BE DIVIDED AMONG THE SURVIVING FAMILY.
55 SHARES STANDARD OIL OF KENTUCKY
250 “ UNION PACIFIC RAILROAD
89 “ PUBLIC SERVICE OF NEW JERSEY
210 " AMERICAN TEL & TEL
“THE SAVINGS ACCOUNT IN GREATER LOUISVILLE IS FOR THE CARE OF MY SISTER MAME McCARTHY.
“I hereby appoint MRS. MILDRED NORD-DAUGHTER-IN-LAW to be Executrix of this my last will and testament: hereby revoking all former wills.
“ELLA H. NORD
“In witness whereof, I have hereunto subscribed my name, and affixed my seal, the 8TH day of JULY in the year of our Lord, one thousand nine hundred 59.
“Witnesses:
“Mrs. T. E. Chapman
1121 Walter Ave
Louisville Ky.”

An order was entered by the Jefferson Circuit Court on May 1, 1962, filing certain exhibits tendered by administratrix including an affidavit of descent, birth certificate and marriage certificate purporting to show that the appellee, Patricia Lois Nord Otter-stedt, is the grandchild and sole heir at law of the decedent, Ella H. Nord. Formerly, and on February 2, 1961, Mildred Nord, upon making application for Probate of Will and Appointment of Executrix listed the heirs at law and next of kin of Ella H. Nord as a sister, Mame McCarthy, a niece, Blanche Craven, and nephews, George Fairweather, Ceeil Penny, Leslie Penny and Harry McCarthy.

The persons named as devisees and legatees in the rejected will are the appellants, and the appellees are Mildred Nord as administratrix of the estate of Ella H. Nord, and Patricia Lois Nord Otterstedt, the alleged granddaughter and sole heir at law of decedent.

The instrument, deleting the printed portion, wholly in the handwriting of Ella H. Nord, is as follows:

“Elia H. Nord 1124 Walter Ave. Louisville 15 Ky to my neice Blanche Craven 108-05-97th Ave. Richmond Hill, nephews George Fairweather 21 Pinewood Ave Greenbush, N. Y. and Cecil Penny 14 Hoffman Rd. L. I. all my real and personal affects of which I may die possessed, provided they take good care of their Aunt Marne, my sister Mame McCarthy living with me now as long as she may live. Should any of these beneficiaries die before distribution, such shares will be divided among the surviving family
55 shares Standard Oil of Kentucky
250 “ Union Pacific railroad
89 “ Public Service of New Jersey
210 “ American Tel & Tel
“The Savings Account in Greater Louisville is for the care of my sister Marne McCarthy
“Mrs. Mildred Nord-daughter-in-law (Execut)rix (S) Ella H. Nord 8th July 59”

Appellees contend that the instrument which is not wholly in the handwriting of decedent should not be considered a holographic will; that although her intent was testamentary, it was not her intent to make a holographic will but a formal will; and that her effort simply failed to meet the standard prescribed by KRS 394.040, and they rely upon the case of Blankenship v. Blankenship, 276 Ky. 707, 124 S.W.2d 1060.

True, the Blankenship case is the leading case in Kentucky on the point at issue here, but we should take a closer look at the language this court used in the Blankenship case. After quoting from the case Re Wolcott’s Estate, 54 Utah 165, 180 P. 169, 4 A.L.R. 727, this court said:

“We think this reasoning is sound and inescapable. Any other conclusion necessarily would deny effect, to the provision that the will must be ‘Wholly’ written by the testator if no witnesses attest it. Even though written or printed matter may appear on the same paper as the will The Instrument Itself May Still Properly Be Said To Be Wholly Written By The Testator Where The Intent Is Clear And The Instrument Is Complete In Itself.” (Emphasis added.)

This court is, therefore, of the opinion that that portion of the instrument written by the testatrix in her own handwriting is complete in itself; that the printed words are surplusage and that the written portion, without the printed words, is sufficient to constitute a testamentary disposition of all her property.

In 57 Am.Jur. 433 (Wills, Sec. 634), relied upon -by appellees, we find this language:

“ * * * The mere fact that the testator used a blank form whether of a will or some other instrument does not invalidate an otherwise valid will if the printed words may be entirely rejected' as surplusage.”

In the case of Hopson v. Ewing, Ky., 353 S.W.2d 203, 91 A.L.R.2d 733, this court said:

“ ‘Of all instruments a will is least governed by form, the form being unimportant, except as indicating intent.’ Dixon v. Dameron’s Adm’r, 1934, 256 Ky. 722, 77 S.W.2d 6, 7; 57 Am.Jur. 51 (Wills, § 20). The absence of dis-positive words such as “give,” “devise,” or “bequeath” does not necessarily stamp an instrument as nontestamen-tary. Id., p. 54, § 21. We have no difficulty in concluding that the paper before us in this case was intended as a will and was sufficient in form and substance for that purpose.”

The signature of Ella Nord appearing at the close of the instrument but prior to the date thereof meets the requirements of KRS 446.060 that the signature appear at the “end or close of the writing.” Flood v. Pragoff, 79 Ky. 607, 3 K.L.R. 372; Ward v. Putnam, 119 Ky. 889, 85 S.W. 179, and Parrott v. Parrott’s Adm’x, 270 Ky. 544, 110 S.W.2d 272.

For the foregoing reasons it is recommended that the Jefferson Circuit Court be reversed and said court be directed to admit the hand written provisions of the instrument to be probated as the last holographic will and testament of Ella H. Nord.

The opinion is approved and the judgment is reversed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. James B. MAYES et al., Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst Atty. Gen., Ded-do G. Lynn, Lexington, for appellant.
    W. Earl Dean, Harrodsburg, for appel-lees.
   PALMORE, Judge.

The appellees own a small motel on the east side of U. S. Highway 127 within the City of Harrodsburg. In connection with a reconstruction and widening of the highway to accommodate 4-lane traffic, the state in this proceeding has condemned a 5-foot strip of ground along the entire 72-foot frontage of the motel property, and it appeals from an award of $7,000 to the owners.

Before the improvement project the traveled portion of the highway was 33 feet wide, which allowed for two lanes of traffic with parking on each side. The new thoroughfare is 48 feet from gutter to gutter and is designed for two lines of traffic moving in each direction. Parking will not be permitted.

The motel proper is situated to the rear of a frame residence which faces the street. The old right-of-way line was eight feet and the road pavement 13 feet from the house, and although the new pavement comes only 21/2 feet closer than the old, a 4-foot sidewalk has been laid between the house and the curb. The sidewalk is one foot from the new right-of-way line, or four feet from the house.

Acquisition of this 5-foot strip necessitated the destruction of a large shade tree and a number of well-developed shrubs bordering the house front. Photographs introduced in evidence demonstrate that as a result the property is less attractive, and there was testimony that the space left between the building and the sidewalk is not sufficient for comparable replacements.

One of the state’s witnesses testified that the value of the property was reduced $500, to which he added $100 for a temporary easement which is not now in controversy. The other of its valuation witnesses estimated the owners’ loss at $1,300 plus $100 for the temporary easement.

The property owners used two local real estate brokers, John Sullivan and Edwin Freeman, as their only witnesses. Both of them valued the whole property at $32,000 before the taking, as had one of the state’s witnesses. Sullivan estimated the value afterward at $20,000 and Freeman at $21,-000.

The first question arises from the state’s contention that Sullivan’s testimony should have been stricken because his opinion was founded partially on a non-compensable factor, to-wit, the loss of parking on the public way in front of the motel.

The witness did admit that he had taken this improper factor into consideration, and in response to a motion to strike the trial court carefully and fully admonished the jury to disregard the testimony because the freedom -to park on the highway had never been a right, but only a permissive privilege existing by grace of the highway department. Sullivan was then permitted to “re-cast” his testimony so as to explain the extent to which this factor had entered into his calculations. He answered by saying that he had not really meant to place any emphasis on the parking, that his “prime consideration” was the loss in beauty and desirability of the premises, in that what little front yard had been there was now gone, and that because of that circumstance and the increased proximity of the road to the house the property had a market value of only $20,000 after the taking.

The state complains, with some justification, that instead of being disqualified this witness was permitted to weasel his way out of an untenable position. That may be so, but we are satisfied that the trial court utilized the proper approach for handling this type of situation. A professional real estate man accustomed to think and deal in terms of the valuation factors ordinarily present in a voluntary transaction between private individuals may inadvertently take into consideration some circumstance that actually does influence the value of the property (e. g., the loss of parking space, or the loss of traffic) but for a special reason, as in this case, must be eliminated from his calculations. When this appears to be so it would be senseless to banish the witness from the stand. If he is able to revise his figures by eliminating the improper factor and give an opinion on the correct basis he should be permitted to do so. It must be remembered that the objection applies to the invalid testimony, not to the witness himself.

The witness Sullivan’s facile switch in emphasis without altering the figures to which he had theretofore testified does strain the outer limits of credulity. But that is a matter of weight and credibility rather than competence of his testimony. As the verdict shows, the jury accepted it at only 58% of face value.

It is next contended that the estimates of both Sullivan and Freeman were based to some extent on improper duplication of factors, as denounced in Smick v. Commonwealth, Ky., 268 S.W.2d 424 (1954). The Smick case is a classic illustration of what so often happened before Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963), ended the separate assessment of “land taken” and “damages to the remainder.” The owners contended that in addition to payment for the land taken, which included a garage building, the cost of building a new garage should have been included as an element of damage to the remainder. Had they prevailed they would have collected for the garage twice. Such a duplication can hardly occur, however, when there is no separate appraisal of the portion of the property that is taken by the condemnation, and it did not occur in this case.

Neither of the witnesses in question made any attempt to evaluate the 5-foot strip that was taken, nor did either of them place a specific value on the tree, shrubs, or any other individual item or factor. The following excerpts provide a fair example of the testimony (under cross-examination) at which the state’s complaint is directed:

Q—“By taking the shrubs that were located within that area taken, would you say that you placed a value on those shrubs that were taken?”
A—“Of course, there was a value on the shrubs, value on the trees, value on the grass.”
* * * * * *
Q—“Would you say that the property is damaged because the shrubs and the trees were taken?”
A—“Of course, you damage the property when you take the shrubs and trees.”

In other words, shrubs and trees have value, and when they are destroyed what is left has less value. That is just an obvious fact, not a duplication of values. A duplication of damages can occur only if at least two items are added to arrive at a total. These witnesses gave (a) the market value o-f the whole property before the taking, (b) the market value of what was left after the taking, and (c) the difference. There is no indication that either of them added any figures together for any purpose, and if not, a “duplication” was impossible.

Finally, it is argued that the verdict was patently excessive. It does seem rather stout, but it was well under the maximum limits of the evidence. We are not in a position to say the testimony given by Sullivan and Freeman was so outlandish that it must be disregarded. The local jury was best able to judge the extent to which it was worthy of belief.

Judgment affirmed.


author: MILLIKEN, Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Willie J. RILEY, Executrix of the Will of Bartley J. Riley, et al., Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Richard Peek, Paducah, for appellant.
    Adrian H. Terrell, Paducah, for appel-lees.
   MILLIKEN, Justice.

This is an appeal by the Department of Highways from a judgment rendered in November, 1962, which awarded the ap-pellees $20,000 for the condemnation of 2.07 acres plus $10,000 resultant damage to the remaining one-tract 5.77 acres of their farm. The Department contends the award is excessive and based largely on noncom-pensable factors, and on the latter point we agree. The county court had awarded a total of $19,500 and both sides appealed to the circuit court.

The farm fronted 820 feet on U. S. Highway 641 and a strip approximately 100 feet in width was taken along the entire frontage for construction of a portion of the relocation of the road near Eddyville, occasioned by the building of Barkley Dam. The condemnation and relocation put the new road in a cut about ten feet from the appellees’ residence, took their barn and closed both ends of their semicircular driveway into the farm as well as destroying trees and shrubbery. The appellees obviously have suffered substantial damage, but we think the amount allowed may be excessive because of violations of the principles and factors announced by our recent decisions for the governance of highway condemnation proceedings, decisions which neither the trial court nor counsel had available for guidance at the time of this case. Commonwealth, Department of Highways v. Carlisle, Ky., 362 S.W.2d 104; Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472; Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844; Commonwealth, Department of Highways v. Gearhart, Ky., 383 S.W.2d 922; Commonwealth, Department of Highways v. Oliver, Ky., 385 S.W.2d 173; Commonwealth, Department of Highways v. Denny, Ky., 385 S.W.2d 776.

The property here involved was being used for residential purposes and as a farm. There were no commercial businesses upon it and no testimony that such businesses were planned for it in the reasonably proximate future, nor that subdivision of the property into lots for commercial use was planned soon although the property was adjacent to the City of Eddyville. In Commonwealth, Department of Highways v. Gearhart (1964), Ky., 383 S.W.2d 922, we said:

“Our cases have consistently observed the rule that it is appropriate to admit testimony of the adaptability of property for particular uses, even though the property is not then being so used. However, the rule is subject to the qualification that if the land is reasonably adaptable to another use, there must be an expectation or probability in the near future that it can or will be so used. See East Ky. Rural Elec. Co-op. Corp. v. Smith, Ky., 310 S.W.2d 535, and Bowling Green-Warren County Airport Bd. v. Long, Ky., 364 S.W.2d 167, and cases discussed therein.”

See, also, Commonwealth, Department of Highways v. Oliver, Ky., 385 S.W.2d 173.

The two factors which were improperly emphasized by the valuation witnesses for the property owners were loss or change of access and the availability of the property for commercial use when no reasonable expectation was shown to so use the property. In the present case the loss of access factor and the commercial use factor were closely intertwined, for without the ready access to the highway the property’s potential for commercial use was greatly limited. The valuation which controls is the value at the time of the taking — in this case, as residential or farm property unless it can be shown that it is transitional property reasonably expected to be soon used as business property.

The landowners assert that the verdict should be permitted to stand because specific objections were not made by the state to testimony as it was offered, but motions to exclude the evidence of certain witnesses were made at the close of their testimony upon the ground that their valuations were made after consideration of Improper factors. When this sort of error required cross-examination to develop as it did here, the use of a motion to exclude at the end of the testimony of the witnesses was about the only practical way of reaching it. Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472, at page 479.

When the judgment is as obviously liberal as it is here, we cannot say valuations based on noncompensative factors are not prejudicial. See Commonwealth, Department of Highways v. Napier, Ky., 387 S.W.2d 861, decided March 5, 1965.

The judgment is reversed.


author: CHARLES M. ALLEN, Special Commissioner.

text:
    EVANS ELKHORN COAL COMPANY et al., Appellants, v. Willard OUSLEY et al., Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.
    C. Kilmer Combs, Ashland, Joe Hobson, Prestonsburg, for appellants.
    W. W. Burchett, Hollie Conley, Pres-tonsburg, for appellees.
   CHARLES M. ALLEN, Special Commissioner.

This is an appeal from an order of the Floyd Circuit Court. allowing the appellees to redocket the case for further proceedings, the order having been entered approximately sixteen months after the entry of an order dismissing the complaint and striking the case from the docket.

Counsel for appellants frankly admit that they have grave doubts as to whether or not the order redocketing is appealable. Their doubts are well founded since KRS 21.060(1) specifically states that appeals can he taken to the Court of Appeals as a matter of right from all final orders and judgments of circuit courts in civil cases with certain exceptions.

CR 54.01 provides in part that a final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding or a judgment made final under Rule 54.02.

The order of the Floyd Circuit Court redocketing the case did not in any way adjudicate the rights of the parties and was in no way a final order adjudicating their final rights. As stated in Brumley v. Lewis, Ky., 340 S.W.2d 599, the final and appealable character of an order should be tested on the basis of whether the order grants or denies the ultimate relief sought in the action or requires further steps to be taken in order that the parties’ rights may be finally determined. In this action the order redocketing obviously requires further steps to be taken in order that the parties’ rights may be further determined.

The appeal is dismissed.

The opinion is approved by the Court.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPT. OF HIGHWAYS, Appellant, v. William L. SCHMEHR et al., Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.
    Robert Matthews, Atty. Gen., Wm. A» Lamkin, Jr., Asst. Atty. Gen., Frankfort, Thomas L. Withers, Henderson, for appellant.
    William L. Sullivan, Dorsey & Sullivan,, Henderson, for appellees.
   DAVIS, Commissioner.

This condemnation case presents questions touching the effect of a prior settlement by the appellant-condemnor with appellee Schmehr (relating to other property than now being condemned). A corollary question arises as to whether appel-lee Goehring should have been precluded from participation in the condemnation proceeds ■ this point involves the assertion that the deed to Goehring was ehampertous.

The property immediately involved is Lot 9 in Block U of North Parkland Addition in Henderson. Appellee Schmehr acquired record title to Lots 6, 7 and 8 by deed dated April 1, 1944; the deed was duly lodged for record, and appellee Schmehr entered upon possession of the lots forthwith. There was a structure, partly located on Lot 8, at the time Schmehr acquired the title. He substantially remodeled and improved the structure so as to change it to a dwelling, in which he lived. At or near the same time he took record title to the three lots just mentioned, Schmehr took possession (but not record title) to Lots 9 and 10 of the same subdivision. Lot 9 adjoined Lot 8. The major portion of the structure referred to was situated upon Lot 9, although a triangular part of it (estimated to constitute 10-15% of the entire building) was on Lot 8. Schmehr said that he obtained a “Bill of Sale” for Lot 9 — not a deed. Whatever he received was not put to record. It appears that the “bill of sale” was from a stranger to the record title anyway. Schmehr’s possession of Lots 9 and 10 was punctuated by the enclosure of the lots by fence.

In 1947 appellee Goehring acquired title to Lot 9. He did not record his deed until 1956. Appellee Goehring said that he supposed he was buying a vacant lot when he acquired Lot 9, and that he did not know that the building occupied by Schmehr was chiefly situated on Lot 9. In fact, Goehring did not gain such knowledge until negotiations were begun to obtain the right of way presently involved.

The appellant Department negotiated with appellee Schmehr for Lots 6, 7 and 8. One of its appraisers offered $24,497.10 to Schmehr, but the offer was declined. The appraiser said that he had considered the entire value of the residence (although he knew that most of it was on Lot 9) when he made the offer. In fact, he testified that he had furnished an appraisal “breakdown” to Schmehr, in which the item for the residence was listed at $3,850. Schmehr denied receiving such “break-down.”

At any rate, the compromise efforts collapsed. Thereupon the Department instituted condemnation proceedings in the Henderson County Court, seeking to acquire all of Lots 6, 7 and 8. Before that action came to trial there was a settlement agreement between the litigants, by the terms of which the Department paid Schmehr $24,497.10 (exactly the amount of the prelitigation appraisal) in return for which Schmehr executed and delivered a deed conveying Lots 6, 7 and 8 to the Department.

The deed to the Department recited a consideration of $24,497.10. After the recitation of the consideration, the granting clause and the description, etc., the following words and figures appear in the deed:

“Of the consideration mentioned above, $24,497.10 is for the value of the property conveyed by this deed, and the balance thereof is for all other damages to the remainder of the grantors’ property.”

The Department argues that this language clearly imports that the Department was buying something else — or at least that it was paying Schmehr for all damages to “the remainder” of his property. Then, it is reasoned that this must be held to mean the damages to the' “remainder” of the house over on Lot 9.

In this the Department is, we believe, in error. In the first place, fairly read, the deed shows that $24,497.10 was all of the consideration, so that there was no “balance thereof” to apply toward compensating “for all other damages to the remainder of the grantors’ property.” (Though it is not particularly pertinent here, it is common knowledge that the impact of capital gains taxes may be different as between resultant damages and the price paid for the land taken; hence, the quoted sentence, “rubber-stamped” into the Department-prepared deed, probably appears as a routine procedure, even though meaningless in this particular transaction.)

We argee that KRS 371.030 permits by pleading the impeachment or denial of the consideration of any writing. It is also conceded that the true consideration of any instrument may be shown by parol, even without a charge of fraud or mistake. Deatley v. Phillips, 311 Ky. 698, 225 S.W.2d 296. The difficulty is that there is no showing by the Department that the consideration for the deed from Schmehr was in anywise different from that recited in the instrument. The Department’s appraiser certainly had included the entire house in his appraisement figure, and if Schmehr had accepted that offer and made the deed, a different question would appear. But he rejected the offer — then a condemnation suit was instituted wherein the Department invoked its eminent domain power to acquire Lots 6, 7 and 8 — and no more. That condemnation suit was settled “out of court,” but no witness for the Department stated in this record that the settlement was intended to include the portion of the house on Lot 9. We cannot escape the conclusion that the Department thought it was acquiring Schmehr’s interest in the building, but it woefully failed to say so in the deed or in the testimony offered in this case. Under these circumstances there was no jury issue as to whether the $24,497.10 was intended to include that portion of the dwelling situated on Lot 9.

The Department insists that even if the parol evidence rule inhibits a showing» that the entire residence was included in the deed from Schmehr, there is such an ambiguity in the deed as will permit parol evidence to show payment for the residence and to describe what was conveyed. We doubt that the deed does contain such an ambiguity; but even if so construed, the short answer to that argument is found in the fact that there was no evidence that the deed was intended to include anything other than Lots 6, 7 and 8.

We do not find it necessary to determine whether the deed to Goehring was cham-pertous by reason of Schmehr’s open adverse possession of Lot 9 when Goehring received the deed. For the purposes of this condemnation proceeding the Department very properly included Goehring and his wife, along with Schmehr, as condemnees, so that the entire title could be acquired. It is shown that as between Goehring and Schmehr an agreement has been reached as to the distribution of the proceeds of the condemnation award. The Department’s concern is that it acquire all of the title for one — and only one — payment of the award; it is of no moment to the Department as to how Schmehr and Goehring divide the award.

We have examined the related arguments presented by appellant, but conclude that all of them fall when it is determined that Schmehr did not convey any of the residence on Lot 9 by the terms of his deed for the other lots.

The judgment is affirmed.

PALMORE, J., not sitting.


author: CULLEN, Commissioner.

text:
    J. R. JENNINGS et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    March 12, 1965.

      Ted L. Igleheart, Shelbyville, for appellants.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

J. R. Jennings and wife appeal from a judgment awarding them $10,500 for land condemned by the state for highway purposes. Their only contentions are that the trial court erred in excluding testimony relative to loss of access to the highway and in instructing the jury that any loss of access should not be considered as a damage factor.

The appellants’ land will have the same access after th.e condemnation that it had before, which access was adequate for the use to which the land was being devoted (farming). The state did not condemn or take any property right of access. Under Commonwealth, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104, and Commonwealth, Department of Highways v. Denny, Ky., 385 S.W.2d 776, the ruling and instruction of the trial court were proper.

The judgment is affirmed.


author: WADDDILL, Commissioner.

text:
    Dewitt BURTON, Appellant, v. SOMERSET CITY HOSPITAL et al., Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.
    Leslie C. Gay, Somerset, for appellant.
    John G. Prather, Fritz Krueger, Viley O. Blackburn, Somerset, for appellees.
   WADDDILL, Commissioner.

While appellant was a patient in the Somerset City Hospital which is operated pursuant to KRS 216.080, he claims he was injured when he fell from his hospital bed. He brought this action to recover damages alleging that his injuries were caused by the negligence of the hospital, the City of Somerset and certain other persons.

Relying on the doctrine of municipal immunity from liability for tort the trial 'court dismissed appellant’s claim against all parties defendant except Charles Long and Dr. Robert Long. This judgment was made final pursuant to CR 54.02.

Subsequent to the entry of this judgment this Court in Haney v. City of Lexington, Ky., 386 S.W.2d 738 (rendered May 22, 1964) determined that municipal corporations are liable for torts of this character. This decision is controlling in the instant case and requires a reversal of the judgment.

The judgment is reversed for further proceedings consistent herewith.

MONTGOMERY, j., dissenting.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Walter M. MILLER, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Deddo G. Lynn, Department of Highways, Lexington, for appellant.
    George R. Silliman and William M. Disfaman, Jr., Danville, for appellees.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, appeals from a judgment awarding the appellee landowners $3,500 for property taken for highway purposes. The appellant’s witnesses had placed a value of only $600 on the property.

There is nothing in the legal issues here raised that has not in previous decisions of this Court fully been belabored (and we use this word in all of the meanings given it by Webster, including worked carefully upon, beat soundly, thwacked repeatedly, drubbed, and assailed verbally).

We are not convinced that such of the errors (there were some) as were properly preserved for appellate review affected the substantial rights of the appellant or caused a result inconsistent with substantial justice. See CR 61.01. There is no basis for a reasonable expectation that upon another, error-free trial, the result would be sufficiently different to make worthwhile a reversal of the judgment here appealed.

The judgment is affirmed.