author: W. R. KNUCKLES, Special Commissioner.

text:
    William BOBINCHUCK et al., Appellants, v. James LEVITCH, Appellee.
    Court of Appeals of Kentucky.
    June 19, 1964.

      Edward S. Bonnie, Louisville, for appellants.
    Edward A. Dodd, Louisville, Wm. B. Gess, Lexington, for appellee.
   W. R. KNUCKLES, Special Commissioner.

On November 9, 1960, Clarence R. Mitchell, trainer and agent of the appellee herein, entered appellee’s horse, “Royal Spy,” in the fourth race, a claiming race, at Churchill Downs. On that day the appellants, William Bobinchuck, Thomas Bobin-chuck- and Mary Bobinchuck, in the manner prescribed by the Kentucky State Racing Commission, submitted through their trainer and agent, Ward Stucker, a claim to the Racing Secretary of Churchill Downs and deposited therewith $4,250, plus $127.50 Kentucky sales tax, for “Royal Spy.” The claim was allowed by the Racing Secretary.

Two pertinent provisions of the Rules of the Racing Commission are:

“108. Every person who subscribes to a sweepstakes, enters a horse or in any way participates in any race or racing under these rules, thereby obligates himself to accept these rules upon all questions relating thereto.”
“221. Claims are irrevocable. Title to a claimed horse shall be vested in the successful claimant from the time said horse leaves the paddock for the starting post, and said successful claimant shall then become the owner of the horse whether he be alive or dead, sound or unsound, or injured before, during the race, or after it. A claimed horse shall run in the interest and for the account of the owner from whom claimed.”

Some months before the race appellee had caused “Royal Spy” to be placed in the care of a veterinarian, and a high neu-rotomy had been performed on the horse, severing certain nerves in the upper third of the metacarpus of the right foreleg.

“Royal Spy” ran last in the race, and when he was delivered to appellants’ trainer in the paddock, it was ascertained that neurotomies had been performed on him. Consequently, appellants refused to accept him. They filed a complaint with the Stewards of Churchill Downs November 10, 1960. On November 18, 1960, the Stewards entered orders (1) suspending appellee’s trainer, Clarence R. Mitchell, (2) refusing entry of “Royal Spy” in any Kentucky race, and (3) directing appellee to return the claiming price to appellants and'repossess the horse.

Pursuant to KRS Chapter 230 and § 60 of the Kentucky Racing Commission’s rules of racing appellee promptly filed a written protest to the foregoing ruling; and by a letter dated December 3, 1960, the assistant secretary of the Racing Commission notified appellants “that there will be a Commission meeting on Monday, December 19, 1960. The meeting will convene at 11:00 A. M. (E. S. T.), in the Commission office, 1630 North Broadway, Lexington, Kentucky. Placed on the agenda for the above meeting is the Royal Spy case.”

On December 29, 1960, the Racing Commission reversed the ruling of the Stewards except for the provision barring “Royal Spy” from further racing in Kentucky. Appellants received copies of this order on January 3, 1961, and did not take an appeal from it.

On May 17, 1961, appellants brought this suit in the Jefferson Circuit Court alleging, in substance, fraud annd breach of warranty, and seeking appropriate relief. A motion to dismiss was sustained for lack of jurisdiction.

Appellants contend that:

1. KRS Chapter 230 limits the power of the State Racing Commission to assessment of fines and the denial, suspension and revocation of licenses.
2. If the legislature has given the Racing Commission the right to determine controversies .affecting only the private property rights of individuals, it is an unconstitutional delegation of authority.
3. The letter sent appellants by the Racing Commission on December 3, 1960, did not meet the notice requirements of due process.

On this appeal from the Jefferson Circuit Court it must first be determined whether the Kentucky Racing Commission had its right properly delegated by the Kentucky Legislature to:

Adopt binding rules controlling claiming races and the obligations purportedly set up thereunder of the owner, as well as the claimer, and to determine and enforce such obligations.

This appeal is predicated upon the Racing Commission’s requiring the appellants to pay for and accept “Royal Spy” as their property, which order of the Commission they attempted to circumvent by filing their action in the Jefferson Circuit Court relative to a determination of a property right.

The Kentucky Legislature has created numerous commissions whose duties and purposes are to determine property interests. The courts have long upheld the rights of such commissions to perform the functions created by Statute. KRS 131.110. The Kentucky Department of Revenue in assessing taxes against any person is dealing with a property-right by requiring such person to pay taxes, and provision is made for appeals from the Department of Rev-cnue’s rulings to the Kentucky Tax Commission. KRS 131.110. It is further provided by statute that appeals from the orders of the Kentucky Tax Commission are directed to the Franklin Circuit Court concerning any question of law, including adequacy of evidence. KRS 131.120.

The statutes provide that the Public Service Commission may regulate the rates and services of any utility furnishing services to a city. KRS 278.200 and KRS 278.-270. It is also provided that an action may be brought against the Commission in the Franklin Ciircuit Court to vacate or set aside the order of the Commission. KRS 278.410. The Tax Commission, or the Public Service Commission, in assessing taxes, or in requiring the payment of higher or lower utility rates, is dealing with property rights of individuals or corporations. Each commission is granted by statute certain discretionary powers as to what is reasonable, just or sufficient, and may substitute their judgment where they, after hearings, determine that existing conditions are improper.

In creating the Kentucky Racing Commission, the Kentucky Legislature authorized the Commission to make rules and regulations governing horse racing in Kentucky, as well as persons and associations having to do with the conduct of racing meets.

' In State Racing Commission v. Latonia Agricultural Ass’n, 136 Ky. 173, 123 S.W. 681, 25 LRA, NS, 905, this court upheld '.the constitutionality of the State Racing Act under the police powers of the state, ’and again in Douglas Park Jockey Club v. Talbott, 173 Ky. 685, 191 S.W. 474, [err. dis. 249 U.S. 619, 39 S.Ct. 260, 63 L.Ed. 804], where the Racing Commission placed minimum limits on the size of the purse for races, this court held such regulation to be constitutional and therefore delegable by the legislature to an administrative agency. It is clear then that the power of the Racing Commission is not limited to the granting, refusing or suspension of licenses.

Appellants contend that the notice of hearing of the “Royal Spy” case, dated December 3, 1960, was insufficient It was held in Thomson v. Tafel, 309 Ky. 753, 218 S.W.2d 977, that notice need only be reasonable. Since appellants had no pending motion before the Commission, (having theretofore received a favorable ruling of the Commission), the notice would indicate a hearing pending on behalf of someone else; and the statement that the “Royal Spy” case was on the agenda constituted reasonable notice of the hearing and the subject matter thereof.

Appellants’ further contention that the proceeding of the Commission was not known to them until January 3, 1961, and that their ten days for appeal therefrom had passed before they could procure a copy of the evidence taken before the Commission is without merit, because sufficient time remained after January 3, 1961, to perfect their appeal by a statement of appeal and an attested copy of the order appealed from. When a practical impossibility, beyond the control of the appellants, prevents filing of the transcript of evidence in time, the appeal may be perfected by filing the transcript later. Bauer v. Alcoholic Beverage Control Board, Ky., 320 S.W.2d 126. In such cases the statute requiring filing of the transcript is directory. Middleton’s Adm’x v. Middleton, 297 Kv. 109, 179 S.W.2d 227.

It appearing that:

1. The Kentucky Racing Commission was properly invested by the legislature with authority under the police powers of the state to make and enforce rules for the conduct of horse racing in Kentucky, including claiming races.
2. Appeal was provided for aggrieved parties from such actions of the Commission to the Franklin Circuit Court for review.
3. Appellants received sufficient and timely notice of the pendency of the Commission’s hearing in the “Royal Spy” case, and received notice of the Commission’s action in time to perfect an appeal.
4. Appellants entered upon the claiming procedure voluntarily pursuant to the Commission’s Rules. Certainly, under such circumstances, the validity of the claim, as well as incidents connected with it, are proper subjects for the Commission’s determination.

When an administrative agency acts within its jurisdiction, the court’s review is limited to determine whether the agency’s action was arbitrary. It may not be said that the action here challenged was arbitrary. Pritchett v. Marshall, Ky., 375 S.W.2d 253.

It is our recommendation that the judgment in this case be affirmed.

The opinion is approved by the court, and the judgment is affirmed.

PALMORE, J., not sitting.


source: Caselaw Access Project

author: Stewart, Judge.

license: Public Domain

text:
    Thomas Walker OAKES, Petitioner, v. W. R. GENTRY, Larue Circuit Judge, Respondent.
    Court of Appeals of Kentucky.
    June 19, 1964.

      Thomas Walker Oakes, pro se.
    Shelby M. Howard, Hodgenville, for respondent.
   Stewart, Judge.

Petitioner, Thomas Walker Oakes, was convicted of storehouse breaking in Larue Circuit Court and sentenced to two years’ imprisonment. He filed a notice of appeal, but never appealed. Eight months later, he began asking the circuit court for copies of the record. He claims he has never received them, and asks for a writ of mandamus, directing the Honorable W. R. Gentry, judge of the Larue Circuit Court, “to furnish him with the records as soon as possible, and to furnish him with any and all other information pertinent and available * *

Judge Gentry responded that every request by Oakes has already been complied with in every possible manner. He includes a copy of an order on motion to vacate judgment in this case, entered February 3, 1963, which states:

“ * * * The movant demands a transcript of the evidence as well as the other records, in his case. In disposing of motion the court had a transcript of the various papers, orders, instructions to the jury prepared, but not the evidence as it was not reported.”

Following a conviction, a defendant’s only legitimate use for a record of the proceedings in a criminal case is for the purpose of a judicial review. An indigent person’s right to a record upon that ground was established in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.

However, unless the person demanding a record at public expense shows that (1) he is an indigent; that (2) he has taken the timely steps (furnishing the relevant dates and the pertinent details) necessary to preserve his right of appeal; and that (3)he has made an appropriate demand upon the proper, official for a record and it has been refused, he is not entitled to mandamus to compel the judge of the court in which he was convicted to see to it that he is furnished a record.

In proceeding under RCr 11.42, a prisoner is not entitled to a record before or at the time he makes his initial move under that Rule because the hearing thereon will be had in the circuit court in which he was convicted and the record will be presumed to be in the circuit clerk’s office of that court. When counsel has been appointed or otherwise appears, he may take action to obtain the appropriate record if it is necessary.

It seems clear a petitioner who seeks relief before this Court, or in any circuit court, must specify with particularity a ground or grounds in support of his claim that some substantial right of his has been violated. Petitioner has alleged no ground whatsoever that would entitle him to be supplied with the record out of which his conviction grew.

A proceeding before this Court or a motion made pursuant to RCr 11.42, reciting in general terms the violation of a constitutional or statutory right, or the want of jurisdiction in the trial court, does not present anything for determination, and the giving of any consideration to such a matter would simply waste the time of the court it is brought before and any attorney representing the Commonwealth therein.

Therefore, when a proceeding or motion in circuit court or in this Court in a criminal case fails to state a specific ground which on its face would entitle the petitioner or movant to relief, or substantially fails to conform to the procedure outlined above, the proceeding may be dismissed and the motion may be overruled.

Wherefore, the petition is dismissed.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Robert YOUNG, Appellee.
    Court of Appeals of Kentucky.
    June 19, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Harold K. Huddleston, Eliza-bethtown, for appellant.
    J. Smith Barlow, Jr., Bardstown, for appellee.
   STEWART, Judge.

Appellee, Robert Young, received an award from the Board of Claims for $7559.05 for personal injury and property damage against the Commonwealth of Kentucky, Department of Highways, appellant herein. The latter appealed to the Nelson Circuit Court, which affirmed the award. The Court of Appeals affirmed the judgment of the Nelson Circuit Court in Commonwealth, Department of Highways v. Young, Ky., 354 S.W.2d 23.

On March 24, 1962, appellant tendered to appellee the sum of $7559:05 in full satisfaction of the judgment. ’ Appellee demanded interest from appellant, at 6% per annum, for the period from January 28, 1960, when the judgment was entered in the Nelson Circuit Court, to March 24, 1962, the date payment was tendered. Appellant declined to pay this item. Appellee then moved the Nelson Circuit Court to order appellant to pay interest, and it was so ordered on May 14, 1962. Appellant moved for an appeal from that order, and the motion was sustained.

Neither the award of the Board of Claims nor the judgment of the Nelson Circuit Court contained any provision for the payment of interest on the amount of the award or judgment. .

Appellant argues that the Commonwealth and its agencies are not liable for interest on judgments against them in the absence of a statutory mandate.

Recovery under KRS 44.070 et seq., the Board of Claims Act, is restricted to the authority of that Act. There is no specific provision in the Act for the payment of interest on a recovery against the Commonwealth. Therefore, appellee must base his claim on the general provisions of KRS 360.040, wherein it is stated that “[a] judgment shall bear legal interest from its date * * *

Appellant contends that because there is neither a specific statutory provision for the recovery of interest nor a waiver of the state’s immunity against the recovery, appellee is not entitled to interest in this action and the trial court’s order was erroneous. Furthermore, the position is taken that the point in issue is controlled by Bankers Bond Co. v. Buckingham, 265 Ky. 712, 97 S.W.2d 596, 599, wherein the following rule is set forth: “ * * * it is a well-settled principle that neither a state nor any subdivision thereof may be held to the payment of interest on their public debts ‘unless bound by an act of the legislature or by a lawful contract of its executive officers made within the scope of their duly constituted authority’ * * * .”

Appellee answers that KRS 44.140(2) prescribes the nature and effect which a judgment of the circuit court shall have when entered on an appeal from the Board of Claims. This subsection provides, in part: “The court shall enter its findings on the order book as a judgment of the court, and such judgment shall have the same' effect and be enforceable as any other judgment of the court in civil causes.” (Emphasis added.) Thus, if any other judgment in the Nelson Circuit Court would draw interest from the date of its entry, then so would this one.

While Bankers Bond Co. v. Buckingham, supra, under the “immunity doctrine,” stated that the Commonwealth need not' pay interest, the question was reconsidered in Humphreys v. J. B. Michael & Co., Ky., 341 S.W.2d 229. Although overruled on another point by Foley Construction Company v. Ward, Ky., 375 S.W.2d 392, this Court held there the Department of Highways was obligated to pay interest to a contractor which was due by reason of the department’s failure to pay the amount due on the semifinal estimate at the time prescribed by the contract. The opinion in that case said (341 S.W.2d pp. 235-236):

“Upon reconsideration of this question, the Court has concluded and now holds that when an agency of the state is duly authorized to enter into contracts for the construction of its highways it is divested, to that extent, of the attributes of sovereignty and invested with the attributes of a private person.”

Appellee argues that such divestment of sovereignty applies herein, since the legislature permits the state to be held accountable for its negligent acts within a prescribed limit.

In Commonwealth v. Lyon, 24 Ky.Law Rep. 1747, 72 S.W. 323, a suit to recover for services rendered to the state, this Court said on the question of the right of the plaintiff (Lyon) to recover interest (72 S.W. p. 324):

“When the Legislature gave its consent that the sovereign might be sued, it left it to the court to determine what, if any, recovery should be had, and the same discretion existed with reference to interest as in other cases. The only difference between the sovereign and an individual is that it requires the sovereign’s consent to be sued, but, when that consent has been obtained, then the court has the right to determine the question of interest as it would have in a suit of one citizen against another.” (Emphasis supplied.)

Appellant further asserts that, even if under some circumstances it could be held liable for interest, it cannot be so held in this case because the judgment herein did not provide for interest.

In 47 C.J.S. Interest § 21, p. 34, it is stated: “Although the rule is otherwise in some states, it has generally been held that the fact that a judgment or decree is silent as to interest will not prevent the recovery of interest thereon.” Cited as following this rule is Noel’s Adm’x. v. Black’s Adm’r., 244 Ky. 655, 51 S.W.2d 955. See also Stuart v. Troutman’s Adm’r., 6 Ky.Law Rep. 447.

We conclude the judgment carried with it interest under the general statutes and the case law of Kentucky, and that the Commonwealth is not immune from being chargeable with such. The statute authorizing the procedure in this case provides in substance that the judgment of the circuit court shall be enforceable against the Commonwealth as any other judgment would be enforceable, which is the equivalent of saying that all the attributes of any other judgment would follow this one. Then, too, when the Commonwealth waived its immunity by authorizing this proceeding it must have intended to place the Commonwealth, within the limits of the amount permitted to be recovered, on the same plane as an ordinary defendant, as there is no expressed reservation to the contrary.

Wherefore, the judgment is affirmed.


author: PALMORE, Judge

text:
    LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Sim DUNN, Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.
    Glenn W. Denham, Middlesboro, Henry L. Bryant, Pineville, R. H. Daugherty, Marvin D. Jones, James M. Terry, Louisville, for plaintiff in error.
    Farmer Helton, Pineville, Doyle & Doyle, George E. Reams, Harlan, for defendant in error.
   PALMORE, Judge

The appellee, Sim Dunn, received $8800 on a jury verdict for personal injuries and property damage sustained when his truck was hit by an L & N train at a public crossing. The railroad company appeals on the ground it was entitled to a directed verdict because Dunn was contributory negligent as a matter of law. In our judgment the railroad’s contention is correct.

The time of the accident was about 5 P. M. on March 4, 1961. The place was what is called the Mocking Bird crossing in rural Bell County. The railroad is a single track running north and south. On its west side, and generally parallel with it, is a county road connecting the villages of Ely and Four Mile. To the east of the railroad is a small community of some nine families known as Mocking Bird Hollow, the only access to which is a dead-end gravel road leading northeastwardly from the Ely-Four Mile road and crossing the railroad at a 40-degree angle. Dunn’s vehicle was struck midships on its right side by a northbound train as he was traveling toward Mocking Bird Hollow.

• The distance along Mocking Bird road from the county road to the west rail of the track is 205 feet. The county road lies about 15 feet below the level of the railroad. Facing northward from Four Mile toward Ely, Mocking Bird road splits off from the county road at a very narrow angle, goes up an 8-degree incline, curves gently to the right and flattens as it reaches the railroad bed. There was formerly a second set of rails immediately west of the present track, and this portion of the roadbed is now used by the railroad as a maintenance road. From the exhibits introduced at the trial it would appear that the distance from the center of the existing rails to the west edge of this flat roadbed, measured along Mocking Bird road, is at least 30 feet. (Measured at right angles from the track it is about 20 feet).

The plaintiff, Dunn, has lived in Mocking Bird Hollow all his life, and the railroad has been there most of that time. On the occasion of the accident Dunn had been to Ely and was driving homeward in his 21/£ ton GMC dump truck. He let a passenger out of the truck near a crossing located some % mile north of the Mocking Bird road and at that point observed a “long train” moving north (the opposite direction from that in which he was traveling). When he arrived at the Mocking Bird crossing a few minutes later he says he cut his wheels to the right to get a better view up the railroad, stopped his truck 15 or 20 feet from the nearest rail, leaned forward and looked to his right (south) along the railroad. There was nothing to obscure his view, “Not a tiling, it was as clear a view as you ever looked at.” He neither saw nor heard anything to suggest the approach of a train.

Dunn approximated the distance of his clear view southward along the railroad as 800 or 900 feet, beyond which it curves away toward the east. A civil engineer employed by the railroad introduced a scale map and testified without objection that an experiment showed that a man standing in the road where Dunn says he was stopped can see a man standing on the track 913 feet to the south. From the testimony and exhibits, we think it is established beyond dispute that Dunn could have seen a train 900 feet away.

Having taken his look, Dunn straightened up, put his truck in “bull dog” gear (extra low) and moved forward a distance of 20 to 30 feet before being hit by the train. He did not again look in either direction up or down the track after putting the truck in motion and was oblivious to the presence of the train until after it had struck. He insisted that 35 to 45 seconds elapsed from the time the truck started forward until the moment of impact and buttressed this estimate with testimony (permitted over objection) to the effect that he had since made several experiments at the same place with a lighter and faster truck, which tests had shown that it takes 3154 seconds to move 19 or 20 feet from a standing position on the road to the nearest rail of the track.

According to the evidence most favorable to the plaintiff, the train scooted the truck a distance of 533 feet up the track before coming to a stop. Dunn, one of those most fortunate of men who can say they were able to walk away after being hit by a railroad train, says that from the rate at which the trees passed by as he was swept along in front of the engine he estimates the speed of the train at 40 m. p. h. His brother, standing on a porch nearby, also saw this phase of the event and places the speed of the train at 35 m. p. h.

The evidence being in conflict as to whether the whistle or bell had been or were being sounded, it is assumed for purposes of this scrutiny that the noise of the diesel motor or motors was the only audible sign of the train’s approach. Dunn’s right window was closed and the left one open. His hearing was normal. He says the crossing was rough and bumpy, causing his truck to make more noise than otherwise. At any rate, he did not hear the oncoming train.

Two of Dunn’s chief witnesses, Estell Pannell and his wife, Thelma, live in a house fronting the west side of the Ely-Four Mile road between the mouth of Mocking Bird road and the railroad crossing. It is 120 feet from the railroad track straight in front of the house and about 150 feet from the intersection of the track with Mocking Bird road. A line drawn eastward from the middle of the house at right angles with the track would strike the track about 50 feet south of Mocking Bird crossing. At the time Dunn turned up Mocking Bird road the Pannells were seated in the front room. The windows of the house were closed. The front door was open, but a storm door covering it was closed. Mr. Pannell was about 5 feet from a front window through which he could and did see the railroad crossing. He saw Dunn’s truck pull up to the crossing and stop. We continue the narrative with pertinent excerpts from his testimony under cross-examination:

“Where did you first hear this train ?”
“About the time he pulled up and stopped at the crossing I heard the train.”
jfc if? * * *
“You could see his truck pull up and stop before he got to the crossing?”
“Yes, sir.”
“Did you see the train at that time ?” “No.”
“But you heard the train coming?”
“Yes, sir.”
“You said something about jumping up and running to the window of your house, when did you do that?”
“When I saw Sim Dunn start across the crossing.”
“Why did you jump up and run to the window?”
“I heard the train and figured it was going to hit him.”
******
“How long did it take you to get from where you were sitting to that window ?”
“About two steps, I don’t know how long.”
“After you got to the window, how long was it before the train collided with Sim Dunn’s truck?”
“About the time I looked out the train hit him.”
“In other words, by the time you stood up and made the two steps to the window the train hit the truck?”
“Yes, sir, about the time I got to the window.”
“In actual time would you say it took you more or less than five seconds to get up and get to the window?”
“I wouldn’t know. I took about two steps, but I wouldn’t say how many seconds.”
******
“It was just long enough for you to get out of the chair and take two steps to the window?”
“Yes, sir.”

Mrs. Pannell, from her position in the front room, could see a portion of Mocking Bird road but not the crossing. She saw Dunn turn off the county road and heard the noise of the train as she observed him going up Mocking Bird road approaching the crossing. She also saw the train go by and heard the crash “right at once.” As in the case of her husband, she declined to venture any time estimates.

Rounding out the picture, the train crew’s version of the accident was that Dunn approached the crossing at a “moderate” speed but did not stop, and the train was within a car length of the crossing when it became apparent that Dunn was not going to stop. The emergency brakes were applied immediately, but by the time this was accomplished the engine had hit the truck. These witnesses testified that the train was traveling under a caution signal (resulting from the presence, not far ahead, of the “long train” Dunn had noticed when he let his passenger out of the truck a few minutes earlier) and was moving at a slow speed of 12 to IS m. p. h.

So there is the case. Is there room for fair-minded, disinterested people to differ on the question of whether Dunn was partially to blame for the accident, or was the verdict in his favor simply another raid on a railroad company by a hometown jury?

We shall not undertake to dissect and present a comparative autopsy of the numerous railroad cases that have been cited and considered. As in most fields of law in which there is frequent litigation, and hence a continuing search for and exposition of what is thought to be the law by men of succeeding generations, the older precedents generally are less persuasive than those of more recent vintage. So it is, for example, that in view of Louisville & Nashville Railroad Co. v. Fisher, Ky., 357 S.W.2d 683 (1962), the basically inconsistent opinion of this court more than 40 years ago in Davis v. Davis, 195 Ky. 522, 242 S.W. 870 (1922), is valueless and must be considered as overruled.

The law of contributory negligence today in automobile-railroad cases is exemplified in Nashville, C. & St. L. Ry. Co. v. Stagner, 305 Ky. 717, 205 S.W.2d 493 (1947); McCarter v. Louisville & Nashville R. Co., 314 Ky. 697, 236 S.W.2d 933 (1951); Hunt’s Adm’r v. Chesapeake & O. Ry. Co., Ky., 254 S.W.2d 705 (1952); Louisville & N. R. Co. v. Troutman, Ky., 351 S.W.2d 516 (1961); Louisville & Nashville Railroad Co. v. Fisher, Ky., 357 S.W.2d 683 (1962); and Hargadon v. Louisville & Nashville Railroad Co., Ky., 375 S.W.2d 834 (1963). These opinions lead to the conclusion that a motorist has the same responsibility of care at a railroad intersection as he would have in entering a superior highway.

Accepting at face value the rather incredible estimate of Dunn that it took him 35 to 45 seconds to travel a distance of 25 feet or so, due care required that he cither continue his lookout or at least look again during the interim. A train approaching from the south at 50 m. p. h. would move 75/z feet per second and reach the crossing 12 seconds after coming into view around the curve. At 40 m. p. h. the gap would close in 15.3 seconds, at 30 m. p. h. in 20.4 seconds, at 20 m. p. h. in 30.7 seconds, and at 15 m. p. h. in 40 seconds. Having used this crossing nearly all his life, how could Dunn reasonably have ignored the possibility of a train’s approach for a period of half a minute or more between the time he looked and the time he entered on the track? In this respect we accept as valid the railroad’s argument that every person has a continuing duty of caution for his own safety, and this duty is not discharged by a momentary caution that is prematurely abandoned.

If, as he apparently contends, Dunn had a right to rely solely on the hell and whistle of the train, then there really was never any need, nor could he have been under a duty, to look at all. That cannot be the law, and if it were, not much room would be left for the theory of contributory negligence. This was the substance of the problem considered in Hargadon v. Louisville & Nashville Railroad Co., Ky., 375 S.W.2d 834 (1963), and the net effect of the opinion was that a person crossing a railroad track cannot discharge his own duty of reasonable care by depending on the railroad.

If in this case the railroad track had been a through highway, and the train a bus, truck or automobile with the right-of-way, unquestionably Dunn would have been contributorily negligent as a matter of law. We see no reason to justify a different law for railroads. So long as the doctrine of contributory negligence as a bar to recovery remains in the law it ought to be enforced equally.

The cause is reversed with direction that appellant’s motion for judgment n. o. v. be sustained.

      . He was 41 years old at the time of the trial.

      . Dunn testified he had counted 2114 rails (839 feet) from the crossing “to the curve,” but did not indicate what point in the curve he used as a terminus.

      . This would put his speed at less than % m. p. h.

      . Which consisted only of two diesel engines coupled back to back and a caboose.

      . The only evidence relating stopping distance to speed was the train engineer’s estimate that at 12 to 15 m. p. h. it would have required 12 to 15 car lengths (at 40 . feet per car) for him to halt the train with the emergency brakes on. That is the speed at which the train crew testified the train was moving.

      .Thus a person standing in the front door of the Pannell home would see across the county road, Mocking Bird road and the railroad, in that order.

      . The brakeman sai<l 12 to 15 m. p. h.


author: MOREMEN, Judge.

text:
    E. L. TABOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.

      J. Luke Quertermous, Princeton, for appellant.
    Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., James P. Hanratty, Commonwealth’s Atty., Hopkinsville, for appellee.
   MOREMEN, Judge.

Appellant, E. L. Tabor, was convicted of the possession of alcoholic beverages for the purpose of sale in dry local option territory. His punishment was fixed at a fine of $100 and sixty days in jail.

On March 2, 1963, while driving on a road in Lyon County, appellant lost control of his car. It ran off the road into a ditch and hit a telephone pole. Tabor and his wife, both of whom were injured in the accident, were taken from the car and to a doctor. About that time, or just after, the sheriff of Lyon County came to the scene of the wreck. He radioed the chief of police of Eddyville to come to the scene. They examined the car and found one-half pint of whiskey right on the floor board of the car. The sheriff stated that the back seat of the car “was slid out from the impact with the light pole, which we could see under the back of the seat some boxes which, well, I would have to say in my opinion, were beer and whiskey boxes.” They did not examine the car further at that time, but called a wrecker and had the car hauled to a garage in New Eddyville. About an hour and a half later they searched the car and found quantities of beer and whiskey. Appellant Tabor had not been arrested at the time and the officers did not have a search warrant.

Appellant urges as grounds for reversal that the court erred (1) in summoning bystanders to serve on the trial jury; and (2) in admitting evidence obtained by the search of the car by the officers.

The rules of criminal procedure became effective on January 1, 1963. This case was tried on August 27, 1963. Subsection (c) of RCr 9.30(1) reads: “When it appears that the names in the jury box are about to become exhausted, the judge may obtain additional jurors by drawing from the drum, or, with the consent of the parties, by ordering the sheriff or a bailiff appointed by the court to summon any number of qualified persons.” Appellant did not consent. He specifically objected to the procedure. Under the circumstances the court should not have summoned bystanders. The Commonwealth relied upon Smith, Jr. v. Commonwealth, Ky., 375 S.W.2d 242. That case was tried under the old Criminal Code of Practice and this Court refused to adopt the policy evidenced by the new criminal rules which were not yet effective. It was said: “We see no compelling reasons for not continuing to apply, in cases tried under the Criminal Code, the long-standing authorization for use of bystanders.” However, when cases are tried under the new rules, bystanders are permitted only as authorized by RCr 9.30.

We believe it was also prejudicial error to admit the evidence obtained by the search of appellant’s car. We have several times held such evidence inadmissible where it was not made incident to an arrest or in the accused’s immediate presence. Flannery v. Commonwealth, Ky., 324 S.W.2d 128; Ross v. Commonwealth, Ky., 275 S.W.2d 424; and Commonwealth v. Lewis, 309 Ky. 276, 217 S.W.2d 625.

Judgment reversed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant. v. William A. LINDON, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    June 26, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen!, James J. Shannon, Dept, of Highways, Frankfort, for appellant.
    E. E. Bach, Campton, Chat. Chancellor, John D. Darnell, Frankfort, for appel-lees.
   DAVIS, Commissioner.

Following an accident in the course of his employment with the Kentucky Department of Highways in which he sustained a minor, temporary injury to his left foot, William A. Lindon, Jr., developed a condition described by one doctor as a “psychoneurosis conversion hysteria which was superimposed on a minor foot injury.” Lindon became convinced in his mind that he had constant pain in his foot and leg and as a result he was unable to work. The Workmen’s Compensation Board gave him an open-end award for total permanent disability, based on a finding that he was suffering from “compensation neurosis” (a medically recognized mental aberration distinguished from conscious malingering). On appeal to the circuit court judgment was entered upholding the award. The Department of Highways has appealed here from that judgment.

We find merit in the appellant’s contention that the compensation board erred in holding that Lindon’s refusal to submit to certain psychiatric treatment was not unreasonable. (KRS 342. 035 provides that no compensation shall be payable for disability of an employe “in so far as his disability is aggravated, caused or continued, by an unreasonable failure to submit to or follow any competent surgical treatment or medical aid or advice.”)

A psychiatrist who treated Lindon recommended that he submit to a sodium amytal interview, which would involve administering a sedative similar to “truth serum,” would make the patient drowsy and less resistant and more amenable to suggestion. The purpose would be to overcome the neurosis by suggestion. The psychiatrist stated that if the treatment were successful a cure could be effected in two or three sessions. Lindon refused to take the treatment. His personal physician stated that he did not believe the psychiatric treatment alone would effect a cure.

The compensation board expressed the views that the proposed treatment might further deter Lindon’s improvement, and that the treatment would be of no good effect if Lindon resisted its purpose. There is no evidence in the record to sustain these views. No doctor testified that the treatment might be harmful, or that Lindon’s resistance would make the treatment completely ineffectual.

The appellee argues that the board’s ruling should be upheld under the rule that if there is a difference of expert opinion as to the danger or efficacy of medical or surgical treatment the employe’s refusal to submit is not unreasonable. See Black Star Coal Co. v. Surgener, 297 Ky. 653, 181 S.W.2d 53; United States Coal & Coke Co. v. Lloyd, 305 Ky. 105, 203 S.W.2d 47; City of Olive Hill v. Parsons, 306 Ky. 83, 206 S.W.2d 41; Melcher v. Drummond Mfg. Co., 312 Ky. 588, 229 S.W.2d 52; Pioneer Coal Co. v. Sparks, Ky., 249 S.W.2d 725; 58 Am.Jur., Workmen’s Compensation, sec. 330, p. 805. However, the cases stating that rule all involved operations, where there was some degree of physical suffering involved from the operation. Here there is nothing to indicate that the treatment would involve any suffering or even material discomfort. Under such circumstances, in our opinion, the mere fact that there is a difference of expert opinion as to the possible success of the treatment is not sufficient to support a refusal to take the treatment. We think this is particularly so in the case of mental disturbances, where the methods of treatment have not yet reached the stage of development where successful results can accurately be predicted.

It is our conclusion that the compensation board erred in finding that Lindon’s refusal to submit to the proposed treatment was not unreasonable. Upon remand of the case the board will enter an order withholding compensation payments until Lindon submits to the treatment.

The appellant makes a further contention that the evidence does not support the board’s finding that there was a causal connection between the traumatic injury and the disability. We believe there was adequate proof of causal connection. Dr. Maddox stated in a written report that the accident was the only cause of Lindon’s condition. Dr. Wiesel testified that the injury precipitated the condition. It no doubt is true, as stated by Dr. Maddox, that Lindon’s psychoneurotic tendencies existed before the injury; however, he had no disability until the tendencies were activated by the injury. We agree with the authorities holding that the injury is the cause of the compensation neurosis disability in such circumstances. See Larson, Workmen’s Compensation, Volume I, sec. 42.24.

No question of apportionment has been raised in this case. Cf. Messer v. Drees, Ky., - S.W.2d - (decided June 5, 1964).

The judgment is reversed with directions to enter judgment remanding the case to the Workmen’s Compensation Board for further proceedings in conformity with this opinion.


author: MILLIKEN, Chief Justice.

text:
    Carl R. SCHROADER and Harley Dupin, Petitioners, v. Hon. A. J. BRATCHER, Judge, Ohio Circuit Court, Hartford, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    June 26, 1964.
    Carl R. Schroader, pro se.
    Harley Dupin, pro se.
    A. J. Bratcher, Earl F. Martin, Walter L. Catinna, Hartford, for respondent.
   MILLIKEN, Chief Justice.

The petitioners were convicted of armed robbery in July, 1963, and now seek to mandamus the respondent-trial judge, Hon. A. J. Bratcher, to supply them the record of their trial, and to obtain their release from the penitentiary. The respondent denied the substance of their assertions and the relief requested.

On June 16, 1964, we dismissed, in Oakes v. Gentry, Judge, Ky., 380 S.W.2d 237, a similar petition couched in such generalities that no specific violation of the prisoner’s constitutional rights was indicated.

The petition for mandamus is dismissed.


author: DAVIS, Commissioner. PALMORE, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. CARDINAL HILL NURSERY, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    March 20, 1964.
    As Modified on Rehearing June 26, 1964.

      John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, C. Dant Kearns, Lyndon, for appellant.
    R. Vincent Goodlett, Rudy Yessin, Frankfort, for appellees.
   DAVIS, Commissioner.

The Department of Highways appeals from a judgment entered by the Franklin Circuit Court, based upon a jury verdict awarding appellee $40,048.00 in a Chapter 177 (KRS 177.081-177.089) highway condemnation proceeding. An earlier procedural dispute in the same case was resolved in Commonwealth of Kentucky. Department of Highways v. Cardinal Hill Nursery, Incorporated, Ky., 343 S.W.2d 842.

After our decision just cited, the case was tried to a jury in the Franklin Circuit Court. That trial resulted in a verdict of $20,000.00 for the landowners. However, upon motion of the landowners, the trial •court set aside the verdict and granted a new trial. It was upon the second jury trial that the verdict of $40,048.00 was awarded. From judgment entered upon the second verdict the Department appeals urging (1) that the first verdict be restored, or (2) alternatively, that the second verdict and consequent judgment be reversed for a third trial. The numerous contentions of the parties will be discussed in the course of the opinion.

The Department is acquiring a strip of land containing 33.81 acres from a tract originally consisting of 209.13 acres. The acquisition is incident to construction of a nonaccess interstate highway, designated as 1-64. The tract from which the right of way is taken lies in Franklin County on the east side of the Kentucky River, approximately 2}4 air miles southeast of Frankfort; it is contiguous to and served by Glenns Creek Pike, the L. & N. Railroad, and the river. The right of way tract of 33.81 acres is carved from the original tract in such manner as to leave two severed tracts, one tract of 111.42 acres remaining on the north side of the condemned area and another tract of 63.82 acres remaining on the south side of the condemned area.

The date of the taking by the Department was December 18, 1959. By a written contract dated April 2, 1958, the then fee simple owner of the entire tract, Cardinal Hill Nursery, Inc., entered upon a lease agreement with Derby Construction Company. By the terms of the lease Derby was granted all of Cardinal’s interest in and to the limestone in and under the surface of the entire tract. The lease accorded Derby complete mineral rights to the limestone, including rights to enter upon the premises to search for, explore, mine, quarry and remove limestone from the premises. Derby was granted the privilege to sink shafts and to deposit the waste minerals from such shafts on the land surface.

The lease provided an original term of five years; rental was based upon a royalty of 40 per ton for limestone quarried, mined and removed from the premises during the initial five-year term. Derby was extended the option to renew the lease in successive five-year terms, so that the ultimate term of the lease could be extended to fifty years. The per ton royalty rate was set at 50 per ton for any extensions of the lease beyond the original five-year term.. Certain minimum guaranteed rentals were prescribed, and a per acre payment for surface areas appropriated by Derby in quarrying was included in the contract. Cardinal expressly reserved to itself all rights to minerals or other substances except limestone,

Derby was permitted to construct a service road on the premises from the site of the proposed quarry to a public road known as Hanley Lane. Permission was also given for the construction of service roads from the quarry site to the Glenns Creek Pike and to the Kentucky River. The lease contract specifically recognized that a doubt existed whether Cardinal’s property extended to Hanley Lane, and it was agreed that Cardinal would acquire and make available to Derby a reasonable right of way from Cardinal’s property to connect with Hanley Lane.

The lease contained a provision referred to by the parties as a “condemnation clause.” By its terms, Cardinal and Derby recognized that an interstate limited access highway might be located on or across a portion of the leased property. Derby expressly relinquished to Cardinal any right to participate in any compensation or damages which might stem from the contemplated highway construction, with one exception. Derby retained the right to recover damages to Derby’s contemplated service road to reach Hanley Lane.

On February 2, 1960, Cardinal and Derby amended the “condemnation clause” of the lease. The substance of the amendment was that Derby did not waive its rights in condemnation proceeds for (1) damages for the taking or closing of Derby’s service road to Hanley Lane, (2) damage to any of its improvements placed on the leased premises, and (3) any damage or loss which Derby might sustain by reason of its inability to quarry and remove stone from right of way taken, or its inability to have reasonable access to stone in land not taken but made inaccessible by reason of the taking. A part of the consideration for this amended agreement was Derby’s release of any claim it may have had against Cardinal for Cardinal’s failure to obtain, or delay in obtaining, the required right of way for access to Hanley Lane.

On January 1, 1961, before the date of the first jury trial, Cardinal and Derby (acting through The Franklin County Stone Company, a division of Derby) entered into a contract of sale of the entire tract to-Derby. A deed from Cardinal to Derby’s, subsidiary was executed and delivered, bearing date January 1, 1961. In this transaction Derby bought from Cardinal the fee' simple title to the entire tract, together with all rights in the ultimate recovery to be had in the condemnation proceedings in the case-at bar. The purchase price agreed upon was $90,000.00.

Before the first trial the Department was permitted to amend its complaint to incorporate the provision that the landowners, shall have the right to quarry by tunneling-under the surface of the 33.81 acres of right of way at an elevation not to exceed 480-feet above sea level, to be performed so as-to provide adequate subjacent support to-the right of way.

At the first jury trial the lease, amended lease, sales contract and deed were admitted in evidence. The Department introduced appraisal witnesses who gave testimony indicating the entire tract had a before-value ranging between $83,456.00 and $90,000.00; these witnesses placed an after-value between $70,732.00 and $76,475.00. Their estimates of difference in the before and after values ranged from $12,624.00 to-$13,525.00.

The landowners adduced appraisal witnesses who placed before-values ranging from $234,700.00 to $260,000.00 and after-value at $90,000.00.

The first trial was in November, 1961, and before our decision in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844. The jury’s verdict on the first trial awarded $6,000.00 for the 33.81 acres taken and $14,000.00 as damages resulting to the remaining lands, for an aggregate verdict of $20,000.00. The landowners based the motion for new trial on: the premise that the verdict was inadequate and not supported by the evidence. The trial court was of the same view. We agree that the verdict was improper, but not that it was inadequate.

It is true that the verdict of $20,-000 was within the range of the outside limits of before and after market values. However, no witness on either side placed a value as low as $6,000.00 on the 33.81 acres taken. The case is governed by Pierson v. Commonwealth, Ky., 350 S.W.2d 487, since the amount of the item allowed for land taken is demonstrably erroneous. Here, as there, this unfounded item can receive no succor from the fact that the overall verdict falls within the scope of testimony. Since we conclude that the trial court correctly granted Derby’s motion for new trial after the first verdict on the ground just stated, we do not reach the other alleged errors urged by Derby as additional bases to support the granting of the new trial. What we have said is not an adjudication that $20,000 is inadequate; merely that it was not properly reached on the evidence at the first trial.

In some of our cases, in treating the particular circumstances involved, language relating to the admissibility of evidence fixing individual “price tags” on factors may have misleading effect on bench and bar. See Commonwealth, Department of Highways v. Sherrod, supra; Commonwealth, Department of Highways v. Stamper, Ky., 345 S.W.2d 640; and Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472. In an effort to clarify our viewpoint in this area we delineate the present consensus of the majority of the court:

It is the opinion of the court that appraisal witnesses on direct examination may, after proper qualification as to competence, testify to the before and after market value of the property involved. Such witnesses, on direct examination, may relate any pertinent factors considered by them in arriving at the values to which they have testified; in so doing they may state their estimate of the amount by which a major structure enhances the “before” value of the land to which it is affixed, and in support of that estimate may testify as to the cost, original or reproduction, less depreciation, of the structure, upon the conditions and under the limitations set forth in Commonwealth, Dept. of Highways v. Stamper, Ky., 345 S.W.2d 640. However, upon direct examination it is not proper for appraisal witnesses to ascribe an itemized price tag to “damage” factors.

But on cross-examination it is appropriate to make inquiry of the witness as-to whether he has indeed ascribed particular amounts to “damage” factors. This is. not to show “after” market value; it is to test the probative value of the evidence in chief from the witness. Some factors are not compensable; they are classified as damnum absque injuria. Certainly it would be fallacious to foreclose the cross-examiner’s right to elicit from the appraisal witness admissions that he has priced such factors in his “after” market value testimony.

Prior to the second trial, and after the first one, the trial court entered a pretrial order forbidding introduction of evidence of, or reference to, the lease and amended lease from Cardinal to Derby. The same pretrial order forbade evidence of the contract of sale and the subsequent deed from Cardinal to Derby’s alter ego, Franklin County Stone Company. It will be recalled that the contract of sale and the deed made pursuant to it reflect a total consideration of $90,000.00 paid by Derby to Cardinal. Appellant urges this as reversible error.

Our cases reflect that we are firmly committed to the admission of evidence of comparable sales in condemnation proceedings if such sales are indeed “comparable” within the legal meaning of that term. Cf. Stewart v. Commonwealth, Ky., 337 S.W.2d 880, and Miller v. King, 278 Ky. 151, 128 S.W.2d 621. In Commonwealth v. Fister, Ky., 373 S.W.2d 720, we observed that evidence of the price paid by a landowner is ordinarily competent. Cf. 5 Nichols, Eminent Domain, 3rd Ed., § 21.2.

Nevertheless, we consider that the transaction between Cardinal and Derby was not admissible under the particular ■circumstances of this case. It will be recalled that Derby had a long term lease on the premises, coupled with the limestone ■quarrying rights. Moreover, there was evidence of substantial monetary outlay by Derby looking toward preparing the property for its quarrying operation, to which evidence later reference will be made. The respective positions of Cardinal and Derby at the time of Cardinal’s sale to Derby may not be equated with the usual willing buyer and seller, dealing at arm’s length. Derby already had a substantial stake in the property; Cardinal had already divested itself of so much of its fee simple title that what it had left to sell could hardly be deemed reflective of full market value of the entire tract. We are not unmindful of the postulate that the value of the lease to the lessor and lessee might be deemed to be in equipoise, but under the factual situation before us we conclude that view untenable. What we have said is not to say that evidence of a sale by lessor to lessee could never be received as evidence of market value. But in this case we hold that the price paid by Derby to Cardinal was not reflective of market value for the reasons set forth.

The Department complains of testimony from Derby as to the depreciated cost of $200,000 to $250,000 for developing the site as a quarry. Evidence of cost, original or reproduction, less depreciation, of a major structure is proper if it conforms to the ■rules laid down in Commonwealth, Dept. of Highways v. Stamper, Ky., 345 S.W.2d 640, and is properly related to enhance.ment of market value of the property as a .whole. Upon another trial admission of .evidence of cost will be governed by these .rules.

The Department complains of the evidence by the appraisal witnesses for Derby. These witnesses were permitted to testify that they valued the limestone in place at $2,000 per acre, while placing the value of the surface for the 33.81 acres taken at approximately $200 per acre. Specific evaluation of the limestone separately was not proper. We said in Gulf Interstate Gas Co. v. Garvin, Ky., 368 S.W.2d 309 (as we had said in the same litigation reported in 303 S.W.2d 260), that the quantity and quality of minerals underlying condemned land may be considered as affecting the market value of the land, but the minerals cannot be valued separately. The reasons supporting the rule are fully enunciated in the opinions just cited and need not be repeated. While a witness for the Department in the instant case gave an estimate of acreage values of some of the stone he did so in response to a question asked by the trial judge, so it cannot be said that the Department “opened the door” to such evidence by the landowners. For the error in the admission of the evidence separately valuing the stone in place the judgment must be reversed.

The Department complains of admission of evidence relating to periodic temporary flooding of the remaining land by reason of the drainage of surface water from the right of way. The basis of the complaint is that no effort was made to condemn the right to cast surface water on Derby’s property; hence, it would be the proper subject of a separate action. We conclude that Derby’s injection of the matter into this case will preclude its right to make the claim the subject of any subsequent action; therefore, it was proper to receive evidence of the claimed damage. Bowling Green-Warren County Airport Board v. Long, Ky., 364 S.W.2d 167.

Appellant complains that it was deprived of showing the true status of the Hanley Lane right of way as of the taking date. However, the pretrial order of March 16, 1962, expressly permitted full development of the facts relating to that matter. The provisions of numerical paragraph 6 of the March 16, 1962, pretrial order should be followed in the event of another trial.

Appellant urges that the trial court should have dismissed the condemnation proceedings as to Derby and H. K. Gayle and Jennie H. Gayle. We do not agree. All of them were proper parties at the commencement of the action, and they were brought into the case by the appellant’s complaint. The Gayles are shown to have a lien interest by the sale contract and deed from Cardinal to Derby’s subsidiary. Ultimate title of the condemned land properly requires the presence of these parties in the case. No reason indicates that their presence could operate in any prejudicial manner.

Appellant presented evidence tending to show that the limestone lying under the condemned 33.81 acres would not be reached for quarrying for about thirty years, assuming normally expected operation of the quarry. We consider this evidence competent as one of the factors which would be taken into acount in a transaction between a willing buyer and seller.

We do not reach the question relating to the supersedeas bond required of appellant. Since the action of the trial court in this case CR 81A has become effective. Any questions arising by reason of that situation are reserved.

The judgment is reversed for proceedings consistent with this opinion.

MILLIKEN, C. J., dissenting.

PALMORE, J., dissenting.

PALMORE, Judge

(dissenting in part).

Insofar as the phase of the majority opinion holding that the assignment of a value to the limestone in place was inadmissible apparently amounts to a flat condemnation of this type of testimony. Chief Justice MILLIKEN and I respectfully dissent from it. If there is a market for mineral rights as such, we see no objection to evidence of their value. In large areas of Kentucky coal rights are commonly bought and sold separately. No man about to buy a tract of land in- such an area could sensibly evaluate it independent of the prevailing market value of the coal rights. We agree that the witness ought not be permitted to give this value without first estimating the sale value of the whole property, so that the part must be considered in the perspective of the whole; but if he is able to keep the value of a readily saleable part of or interest in a particular piece of real estate in proper focus, it is one of the factors bearing upon the value of the whole, and is fundamentally competent from an evidentiary standpoint. We all know that professional appraisers consider it; why force them to pretend they do not?

      . For convenience, Cardinal Hill Nursery, Inc., 'will be referred. to as “Cardinal”; Derby Construction Company as “Derby,” and tbe Department of Highways as “Department.”

      . However, during the course of the trial the court admonished the jury not to eon-sider the agreed sales price of the land from Cardinal to Derby.


author: WADDILL, Commissioner.

text:
    Elizabeth COOKE, Appellant, v. The LOUISVILLE TRUST COMPANY, Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.

      Thomas C. Carroll, Louisville, for appellant.
    Charles A. Robertson, John T. Ballantine, 'Ogden, Brown, Robertson & Marshall, Louisville, for appellee.
   WADDILL, Commissioner.

Elizabeth Cooke filed this action seeking ■cancellation of a note and mortgage she ■executed and delivered to the appellee, Louisville Trust Company. The trial court refused to grant the relief sought and entered judgment accordingly. Mrs. Cooke has appealed.

The validity of the note and mortgage is challenged on the ground that they were executed without consideration. A proper evaluation' of this contention requires a review of the pertinent facts.

For several years prior to 1960, appellant’s husband, Thurston Cooke, had been transacting business with appellee in behalf of several corporations he owned and operated in Jefferson County. During March, 1960, Cooke conferred with Ira Porter, an officer of the appellee, about obtaining a loan of $346,800 for the Louisville Equipment Rental Company (hereinafter called Rental Company. Cooke told Porter that he owned the stock of the Rental Company and that this company had entered into a contract with the Department of Highways of Kentucky to lease thirty-four trucks for two years at monthly rental of $14,450. On March 18, 1960, appellee loaned the Rental Company $346,800, repayable in twenty-four monthly installments of $14,450, the first payment due April 20, 1960. The loan was secured by a chattel mortgage on the above-mentioned trucks and by the assignment of the contract the Rental Company had entered into with the Department of Highways of Kentucky. Cooke personally guaranteed the payment of the note.

On April 19, 1960, the lease contract between the Department of Highways and the Rental Company was cancelled pursuant to the order of the Governor of Kentucky. When Porter was informed of this development he told Cooke that appellee would require Cooke to repay this loan. Cooke said he could not do so at that time but offered to give appellee a mortgage on property that he and his wife jointly owned and occupied as their home. Porter accepted this offer and on April 20, 1960, Cooke and his wife signed a note for $70,000 and executed a mortgage on their home. It is this note and mortgage that are the subject of the instant action.

The note executed by the Rental Company contained the provision that appellee would have the right to require additional security should the market value of the existing collateral decline, and on the failure to furnish such security, the obligation, at the election of appellee, would become due and payable. Thus, upon the cancellation of the lease contract the appel-lee had the right to demand additional collateral even though the Rental Company was not in default on the payment of its note.

The court determined that the forbearance of the appellee to demand payment of the Rental Company’s note which Cooke had guaranteed was sufficient consideration to support the note and mortgage in question. The conclusion reached by the trial court is correct for it is well-settled that forbearance to sue is a valid consideration to support a promise. Hall v. Fuller, Ky., 352 S.W.2d 559; Forsythe v. Rexroat, 234 Ky. 173, 27 S.W.2d 695; In Re Ciabattari, D.C., 29 F. Supp. 573.

Appellant further contends that she could not execute a valid note and mortgage to secure the debt of the Rental Company. KRS 404.010(2), as amended in 1954, has removed all former disability of a married woman to act as surety for her husband. The trial court properly held that, since Mrs. Cooke had the legal capacity to contract as surety, it was not essential to the validity of her contract that the consideration should move to her, but that it could consist entirely of a benefit to her husband.

In this connection, appellant urges that KRS 404.010(2) refers only to the “separate estate” of a married woman and points out that the interest she owned in the property which she mortgaged was that of a tenant by the entirety with the right of survivorship and, therefore, she could not act as surety with relation to this property. Under the provisions of KRS 404.010(2), as amended, a married woman is not required to set aside her separate estate if either (1) the obligation is that of her husband or (2) the obligation is that of some other person and her husband joins with her in the transaction. The trial court rejected this contention, and properly so, holding that appellant could be liable since her husband joined with her in the mortgage transaction.

Appellant finally contends that since appellee has not proceeded against the Rental Company, it is “barred from asserting its alleged rights to this real estate.” This issue was not raised by a pleading in the circuit court. However, we observe, as did the trial court, that this contention constitutes no basis for cancelling these instruments in this action.

We conclude that the trial court correctly refused to grant appellant the relief she sought.

The judgment is affirmed.


text:
    The KENTUCKY WORKMEN'S COMPENSATION BOARD et al., Appellants, v. Amos Eugene BAILEY et al., Appellees.
    Court of Appeals of Kentucky.
    June 26, 1964.
    J. W. Craft, Jr., Frankfort, Ben K. Wil-mot, Louisville, for appellants.
    Gavin H. Cochran, Robert M. Tiller, Louisville, for appellees.
   MILLIKEN, Chief Justice.

Since the filing of the appeal in the case at bar, this Court has decided the controlling question presented here. On the authority of Kentucky Workmen’s Compensation Board, et al. v. Haungs, et al., Ky., 373 S.W.2d 724 (decided January 24, 1964), the judgment is reversed.


text:
    James BARNES, Petitioner, v. Frederick WARREN, Judge, Campbell Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    June 26, 1964.
    James Barnes, pro se.
    Robert F. Matthews, Jr., Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for respondent.
   STEWART, Judge.

Barnes was convicted (no mention is made of the crime) and sentenced to imprisonment (no mention is made of the length of the term) during the April, 1963, term of the Campbell Circuit Court. On December 4, 1963, he filed a motion to vacate the judgment, and then filed a petition for a writ of mandamus in this Court to compel action on his motion by the judge of the circuit court, the Plonorable Frederick Warren. On March 18, 1964, the motion to vacate judgment was overruled.

On March 23, 1964, Barnes filed a notice of appeal with the Campbell Circuit Court. Receiving no answer, Barnes thought he had been denied the right to appeal. He then proceeded in the Federal District Court seeking a writ of habeas corpus. In reply to a show cause order, Assistant Attorney General Joe Nagle replied that Barnes had duly filed notice of appeal and the record of his case was being prepared. The Federal District Court is withholding further action, pending a decision by the circuit court on the appeal.

Barnes states he has never received a copy of the record. He asks that the Campbell Circuit Court be required to “forthwith forward the records of this cause, along with the trial transcript of evidence, including the closing arguments of both” petitioner’s and the Commonwealth’s attorneys. He also asks that counsel living near the penitentiary be appointed for him, as the Campbell Circuit Court has denied petitioner this right.

Respondent’s answer was filed by Assistant Attorney General Nagle who states that respondent has extended the time in which the record may be filed in the Court of Appeals and that Barnes will be allowed to appeal to the Court of Appeals. He states in part: “The Commonwealth is perfectly willing to give the petitioner * * * the right of appeal to the Court of Appeals. * * * We know of no particular authority to cite, except there is no need for mandamus when the petitioner is to receive all to which he is entitled in the ordinary course of the court’s business.”

Although it appears that both the respondent and Assistant Attorney General Nagle have been doing everything they have considered necessary to assist Barnes in the preparation of his appeal to this Court, a misunderstanding has arisen because it seems respondent has not been kept informed of the steps taken in his behalf. Undoubtedly, when it is brought to Judge Warren’s attention that Barnes is an indigent, he will provide him with an attor ney.

Wherefore, the petition is denied.


text:
    William R. KINNON, Petitioner, v. Hon. Ward YAGER, Judge, Boone Circuit Court, Burlington, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    June 26, 1964.
    William R. Kmnon, pro se.
    James R. Ford, Owenton, for respondent.
   MILLIKEN, Chief Justice.

This petitioner, convicted for armed robbery, has sought to mandamus the respondent to supply the record of his post-conviction proceeding to this Court for consideration on appeal. The respondent has replied that the record will be supplied “within the due and normal course of business and within the said sixty days allowed by the Criminal Rules.” RCr 12.58.

Since the sixty-day period therefor does not expire until June 27, 1964, petitioner’s request for mandamus is dismissed.


text:
    Calvin T. BELL, Petitioner, v. W. R. GENTRY, Judge, LaRue Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    June 26, 1964.

      Calvin T. Bell, pro se.
    Shelby M. Howard, Hodgenville, for respondent.
   MOREMEN, Judge.

Petitioner, Calvin Bell, was convicted of being an habitual criminal and, on February 14, 1962, was sentenced to life imprisonment. On February 21, 1963, petitioner filed a petition for a transcript of record in the LaRue Circuit Court. On March 9, 1963, the court overruled the motion on the ground that more than one year had elapsed between the date of the conviction and the filing of the petition, and no appeal had been taken within the time prescribed by law. On June 21, 1963, petitioner filed a memorandum in support of motion to vacate judgment. The Court treated this as being a motion under RCr 11.42. On November 15, 1963, the LaRue Circuit Court entered a judgment which reads in part as follows:

“The court has painstakingly searched the record of this case and is unable to find any error in the proceedings which would entitle the defendant to have his judgment of conviction vacated, therefore all of his various pleadings are overruled except that it ■is ordered that he be furnished a transcript of all records involved in this matter by the Clerk of the LaRue Circuit Court as a pauper for the purpose of the defendant appealing the ruling of the court herein.
“It is ordered by the court that the Fiscal Court of LaRue County pay the Clerk-his'cost thereof as provided by law.”

In the meantime, on October 24, 1963, petitioner filed a petition to compel the circuit court “for a ruling on his notice of appeal and to grant him leave to appeal the decision of overruling the motion to vacate judgment.” The petition was dismissed by this Court on November 15, 1963.

The petitioner did not appeal from the final judgment the Court entered November 15, 1963, in the proceeding under RCr 11.42. On May 12, 1964, appellant filed in this Court a petition for a writ of mandamus in which he alleged, “Upon February 26, 1964, petitioner filed a motion to vacate judgment in the LaRue Circuit Court, claiming the judgment was erroneous, unauthorized, and not in accordance with the law,” and stated that the LaRue Circuit Court had jurisdiction under RCr 11.42, but had refused to enter any kind of judgment on the plaintiff’s motion.

In Oakes v. Gentry, LaRue Circuit Judge, Ky., 380 S.W.2d 237, decided June 19, this was said:

“A proceeding before this Court or a motion made pursuant to RCr 11.42, reciting in general terms the violation of a constitutional or statutory right, or the want of jurisdiction in the trial court, does not present anything for determination, and the giving of any consideration to such a matter would simply waste the time of the court it is brought before and any attorney representing the Commonwealth therein.
“Therefore, when a proceeding or motion in circuit court or in this Court in a criminal case fails to state a specific ground which on its face would entitle the petitioner or movant to relief, or substantially fails to conform to the procedure outlined above, the proceeding may be dismissed and the motion may be overruled.”

The petition for mandamus is denied in the case at bar because (1) the Court did pass on the original proceeding under RCr 11.42, and (2) the petition in this Court does not comply with the holding above quoted.

Wherefore, the petition is dismissed.


text:
    Charles H. BREWSTER, Appellant, v. John LUBY, Jailer of Fayette County, Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.
    Harold F. Dees, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Henri L. Mangeot, Deputy Atty. Gen., Frankfort, Donald P. Moloney, Lexington, for appel-lee.
   DAVIS, Commissioner.

Charles H. Brewster appeals from the order of the Fayette Circuit Court denying his petition for writ of habeas corpus. KRS 419.130. This court has denied the present appellant’s petition for order of prohibition. Brewster v. Bradley, Judge, Ky., 379 S.W.2d 480 (decided May 22, 1964). In that opinion we pointed out that the trial court would be justified in staying execution of the extradition order pending final adjudication of the habeas corpus proceeding.

On May 25, 1964, the trial court denied Brewster’s petition for habeas corpus, and directed the appellee, jailer of Fayette County, to retain custody of appellant and to deliver him to the agents of Michigan for extradition.

Appellant contends that he may not be extradited to Michigan because (1) Michigan waived its jurisdiction over him incident to surrendering him to Kentucky authorities, (2) returning appellant to Michigan would violate his constitutional right to speedy trial.

Appellant, a Kentucky convict, was released on parole in 1962; incident to that parole he was permitted to depart Kentucky to go to Wayne County, Michigan. This action was taken pursuant to KRS 439.560, which provides for interstate compacts relating to reciprocal supervision of parolees among the states.

On August 19, 1962, while at liberty pursuant to the parole, appellant was arrested in Michigan upon a felony charge. Shortly, appellant was dismissed from Michigan’s custody on that charge, after a preliminary hearing. There was no indictment nor trial upon the merits of the Michigan felony charge.

Then the Michigan administrator of the interstate parole compact communicated with his Kentucky counterpart advising him of the appellant’s behavior problems there. The Michigan officer recommended that appellant be returned to Kentucky for further institutional training and guidance.

Accordingly, Kentucky’s parole officers procured the requisite warrant and took ap•pellant in custody in Michigan, whence he was returned, in custody, to Kentucky’s reformatory from which he had been paroled. In January, 1963, appellant’s Kentucky parole was reinstated; he then moved to Lexington.

By requisition dated January 28, 1964, Michigan’s Governor demanded extradition of appellant to answer the felony charge contained in a criminal information there pending. It is conceded that the felony charged in the information arises from the same events which precipitated the preliminary hearing at which the charge was dismissed for lack of proof.

Appellant was arrested upon the authority of an extradition warrant issued February 5, 1964, by Kentucky’s Governor. This .proceeding challenges the legality of his being held under that warrant.

Appellant’s prime argument is posited on the premise that Michigan conclusively waived all jurisdiction of him when it surrendered him pursuant to Kentucky’s parole violation warrant. Appellant relies on Jones v. Rayborn, Ky., 346 S.W.2d 743; Davis v. Harris, Ky., 355 S.W.2d 147; Thomas v. Schumaker, Ky., 360 S.W.2d 215. To buttress these Kentucky authorities, appellant presents these decisions from other jurisdictions: In re Whittington, 34 Cal.App. 344, 167 P. 404; Cozart v. Wolf, 185 Ind. 505, 112 N.E. 241; People ex rel. Barrett v. Bartley, 383 Ill. 437, 50 N.E.2d 517, 147 A.L.R. 935; State v. Saunders, 288 Mo. 640, 232 S.W. 973; State ex rel. Falconer v. Eberstein, 105 Neb. 833, 182 N.W. 500; Ex parte Bell, Ohio Com.Pl., 75 N.E.2d 186; Anderson v. State, Okl.Cr., 386 P.2d 320; Carpenter v. Lord, 88 Or. 128, 171, P. 577, L.R.A.1918D, 674, and In re Hess, 5 Kan.App. 763, 48 P. 596.

We do not find these authorities controlling here. The Kentucky cases cited (Jones v. Rayborn; Davis v. Harris, and Thomas v. Schumaker, all supra) find their rationale in the fact that in those cases the surrender of the prisoner by Kentucky was not done pursuant to the executive authority of the Governor. It was the unauthorized manner and method of Kentucky’s surrender of the prisoner to another sovereign which was determinative of each of those cases. The decisions from sister jurisdictions are distinguishable on factual and statutory differences.

Even more impelling is the sound premise followed in Crady v. Cranfill, Ky., 371 S.W.2d 640. There we said that it would be inappropriate and contrary to sound policy for the courts of this state to assume jurisdiction to determine whether the demanding jurisdiction (Michigan here) has forfeited its right to enforce its laws against the petitioner. We adhere to that precept.

Our conclusion is further supported by KRS 440.200 (2), which provides:

“The Governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in KRS 440.180 with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily.”

Appellant asserts that extradition should be denied because to send him to Michigan would deprive him of his constitutional right to a speedy trial. In this regard he relies on Kentucky Constitution, §11. Kentucky will not try appellant, nor will our constitutional guaranty be applicable in Michigan. We consider the reasoning of Crady v. Cranfield, supra, applicable to this argument.

The judgment is affirmed.


text:
    Paul J. PRYOR, Petitioner, v. Hon. C. D. WADDILL, Judge, Hopkins Circuit Court, Madisonville, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    June 26, 1964.
    Paul J. Pryor, pro se.
    Robert Matthews, Atty. Gen., Henri L. Mangeot, Deputy Atty. Gen., for appellee.
   MILLIKEN, Chief Justice.

The petitioner requests mandamus for copies of warrants, transcript of the evidence, closing arguments, instructions to the jury, judgment of his conviction and copies of three indictments, claiming that he “needs the records to support his allegations in pending litigation” without specifying what the litigation is. The respondent asserts that he has not been asked to supply any such records to the petitioner, that he has not refused to do so, and petitioner has not shown himself entitled to the extraordinary relief he now seeks.

The petition is too vague to justify the granting of the relief sought, Oakes v. Gentry, Judge, Ky., 380 S.W.2d 237, decided June 19, 1964, and the mandamus is therefore denied.


text:
    William G. BURTON, Petitioner, v. JUDGE, OWENSBORO POLICE COURT, Owensboro, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    June 26, 1964.

      William G. Burton, pro se.
    Joseph L. Banken, Owensboro, pro se.
   MOREMEN, Judge.

Petitioner, William G. Burton, a prisoner confined in the Kentucky State Penitentiary, has filed an original action in this Court. He states that about 1957 a warrant was issued from the Owensboro Police Court and sent to the State Penitentiary where it has been filed as a detainer; that on several occasions he has requested a trial in said court but to date has not received one. It appears that over the years various authorities have shown no intention of returning him to Owensboro for trial and to all purposes the prosecution seems to have been abandoned. He prays that this 'Court issue a writ of mandamus ordering the Judge of the Owensboro Police Court to grant him an immediate trial or dismiss the charges against him, and to order the •detainer withdrawn.

The Hon. Joseph L. Banken, Judge of the Owensboro Police Court, has filed answer in which he states that he has requested the warrant in question to be withdrawn from the State Penitentiary at Eddyville and returned to the Owensboro Police Court. We assume that this evidences an intention by the court to dismiss the case pending against petitioner or to grant a speedy trial.

The petitioner has erroneously proceeded in this case: first, because the circuit court has jurisdiction to provide adequate relief in mandamus proceedings directed to courts inferior to it. CR 81. Hettich v. Colson, Ky., 366 S.W.2d 907; Cunnigan v. Jones, Ky., 371 S.W.2d 624; Coffey v. Anderson, Ky., 371 S.W.2d 624; and Howell v. Wilson, Ky., 371 S.W.2d 627; second, the petitioner proceeded in this case against, “Judge, Owensboro Police Court,” instead of proceeding against the judge himself which we have several times held to be improper. However, since Judge Banken did answer, and particularly in view of the fact that the matter complained of by the petitioner has been settled, we will ignore these technical defects in the proceeding.

Wherefore the petition for mandamus is dismissed.


author: WILLIAMS, Judge.

text:
    CITIZENS FIDELITY BANK & TRUST COMPANY, Trustee, et al., Appellants, v. Nora Bullitt LEAKE et al., Appellees.
    Court of Appeals of Kentucky.
    June 26, 1964.

      Raymond F. Bossmeyer, J. H. Gold, Louisville, for appellants.
    S.Russell Smith, Smith & Smith, Louisville, for appellees.
   WILLIAMS, Judge.

A chancellor of the Jefferson Circuit Court found that William Marshall Bullitt exercised undue influence upon his two daughters by inducing them to sign trust agreements naming the Citizens Fidelity Bank & Trust Company as trustee. From a judgment holding the trust agreements null and void ab initio, the Citizens Fidelity Bank & Trust Company has appealed.

Two days before her marriage in 1939, Nora Bullitt Leake executed a trust agreement naming the Citizens Fidelity Bank & Trust Company as trustee. Four or five days before her marriage in June 1942, Barbara Bullitt Christian executed a similar trust agreement naming the same trustee. By these two agreements the daughters of William Marshall Bullitt created discretionary trusts and sought to establish as the corpus of the trusts all their remainder interests in the estates of their grandfather, Oscar Iasigi, and their grandmother, Amy Gore Iasigi. The grandparents’ estates were created by Massachusetts wills which left life estates to Mrs. William Marshall Bullitt, with remainder upon her death to her children. Mrs. Bullitt is still living, still receiving the income from the estate, and has testified in this action.

William Marshall Bullitt died in October 1957. Following his death, Mrs. Leake and Mrs. Christian notified Citizens Fidelity Bank & Trust Company of their intention to rescind and revoke the trust agreements. A declaratory judgment action initiated by Citizens Fidelity Bank & Trust Company resulted in the judgment heretofore mentioned.

The appellees contended the trust agreements should be set aside on three separate grounds: (1) They were executed by reason of undue influence exerted upon the daughters by their father; (2) they are purely executory and, since they lack a valuable consideration, they cannot be enforced against the daughters; (3) Mrs. Iasigi’s will expressly prohibits the daughters from alienating their interests thereunder “by assignment or any other method” ; therefore, the purported assignment of their interests is void. The chancellor found for the appellees under the first point raised. It will be unnecessary to consider the other contentions.

In Brannin v. Shirley, 91 Ky. 450, 16 S.W. 94, 12 Ky.Law.Rep. 977 (1891), we said:

“ * * * the gift of all one’s estate, without any reservation or power of revocation, would be of itself a suspicious circumstance, and, aided by even slight proof 'of mistake, misapprehension, or misunderstanding1 on the part of the grantor, will be suf■ficient to set aside the deed.”

There the grandson, who was a spendthrift, conveyed certain property in trust to his grandmother, with the agreement that she would pay him the income from the property until he married. Upon his marriage the income was to be paid to his wife and children. Upon his death the principal was to go to his children or, if none, to his sister. This Court observed that “the grandson was subject to the absolute influence of his grandmother and sister when about them; they dominated his will, and in fact it was necessary they should do so, on account of his reckless habits that he seems now to be rid of.” The influence exercised over the donor by his grandmother and sister was prompted by their affection for him and their desire to prevent him from wasting his estate. It was recognized that, although the grandmother and sister might benefit by the conveyance, no desire for personal gain induced the execution of the conveyance. Nevertheless, although the influence was exercised with a benign purpose, this Court considered it undue influence and set aside the conveyance with the observation:

“ * * * where the contents of the trust or settlement deprive the grantor of all his estate, it will take but slight testimony to induce the chancellor to say it was unreasonable.”

In this case the chancellor made a detailed findings of fact and conclusions of law. Under our Rules (CR 52.01), findings of fact shall not be set aside unless clearly erroneous. As we pointed out in Byerly Motors, Inc. v. Phillips Petroleum Co., Ky, 346 S.W.2d 762 (1961), that rule does not require this Court to accept findings which are unsupported by the evidence, but it does place upon the party seeking to have such findings vacated the burden of showing they are clearly erroneous conclusions from all the evidence. If there is evidence-of substance to support the findings of the chancellor, they will not be disturbed. Such evidence need not be conclusive beyond doubt but need only be such that upon consideration thereof reasonable minds might differ. To put it another way, if the evidence is such that the verdict of a properly instructed jury based thereon would stand, it is sufficient to sustain the finding.

The chancellor found that the influence exerted upon the daughters by William Marshall Bullitt, although benign, was sufficient to be classified as undue. He also found they were justified in waiting until after the death of their father before taking any action to avoid the instruments they signed. Although we might not have drawn the same conclusions from the evidence, nevertheless, if there is evidence of substance, the findings must be sustained. To that end we shall examine the situation existing at the time of the execution of the trust agreements as it was related by the witnesses to the chancellor.

The trust instruments were prepared under the direction of Mr. Bullitt, “one of the foremost attorneys in the State of Kentucky.” Mrs. Leake was 23 years of age at the time she executed her trust agreement and Mrs. Christian was 22 years of age. At the time Mrs. Leake was “very nervous and highstrung because of her father’s violent objection to her marriage.” Mrs. Bullitt testified that Mrs. Christian was “light-hearted and indifferent to anything except her marriage” at that time.

Mr. Bullitt was statutory guardian of each of his daughters. At the time she executed her agreement Mrs. Leake had an estate of approximately $3,500 in cash and securities which was in the complete control of her father and guardian. He did not make final settlement of his accounts as guardian until after her marriage and she did not receive the property until many years later. Similarly, Mrs. Christian, at the time she executed her agreement, had a personal estate of $5,500 in stocks and bonds, which also was in the complete control of her father as guardian. It was some time later that Mr. Bullitt made a settlement of this guardianship account and many years before Mrs. Christian received her property.

The dominance by the father over the daughters may he gleaned from excerpts from the testimony of the mother and the daughters. Mrs. Leake testified as follows:

“Q. Did your father tend to dominate your sister?
“A. Do I have to say a specific time that he dominated her?
“Q. What you have seen him do or what you know?
“A. He dominated all of us.
“Court: Objection sustained except as to Mrs. Christian.
“Q. Did your father tend to dominate Mrs. Christian?
“A. He tried to.
“Q. Was he successful?
“A. I would say in some ways, yes.
“Q. In business matters, property matters ?
“A. Yes.”

On cross-examination Mrs. Leake was asked:

“Q. When did your father die?
“A. In October 1957.
“Q. I want to ask you why you waited until after your father’s death to attempt to cancel or rev-voke the trust instrument?
“A. Did you know my father?
“Q. Only by sight.
“A. Well, because every time we tried to do anything he objected so violently to everything we did, it was just like banging your head against a stone wall.”
Mrs. Christian testified as follows:
“Q. To what extent, if any, did your father attempt to or succeed in dominating your sister?
“Judge Bossmeyer: Objection.
“Court: Overruled.
“A. He succeeded in certain specific things that happened and he attempted to dominate at all times.”
Mrs. Bullitt testified as follows:
“Q. In your family, Mrs. Bullitt, and I mean your whole family, on whom did the members of that family depend for advice in regard to the management of their property and things of that nature?
“A. I don’t think they depended; they were ruled.
“Q. By whom ?
“A. My husband.
“Q. By ruled, what do you mean?
“A. He told them what to do and they did it.”

No issue concerning limitations was raised by the parties and we conclude there was sufficient evidence to sustain the chancellor’s finding that the daughters remained under Mr. Bullitt’s dominance until his death. He maintained control of the property of the daughters long after they were entitled to possession. It is clear that each daughter’s mental state at the time she executed the trust agreement was not conducive to an understanding of what the agreement contained. Thus the lack of a full knowledge of what they signed, coupled with the futility of attempting to rebuff a domineering father, was sufficient reason for waiting until after his death before taking action to avoid the instruments. There was evidence of substance to • support the finding of the chancellor that Mr. Bullitt unduly, if benignly, influenced his daughters to sign the trust instruments.

The trust agreements were executed as a result of the undue influence exercised upon the daughters by their father, and the chancellor properly held them null and void ab initio.

The judgment is affirmed.

MONTGOMERY and MOREMEN, JJ., dissenting.