author: MOREMEN, Chief Justice.

text:
    Hubert L. MARCUM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 21, 1965.

      William P. Runnels, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

This is an appeal of three cases that were tried together in the Fayette Circuit Court on separate appeals from the Lexington Police Court.

On July 7, 1960, appellant’s license to operate a motor vehicle was revoked because he had been convicted of driving while intoxicated, and it has never been re-issued.

On May 10, 1963, appellant was arrested and charged with the offense of operating a motor vehicle without a license.

On May 16, 1963, appellant was again arrested and charged with operating a motor vehicle without a license and while under the influence of intoxicating liquor.

Appellant was convicted of driving without a license on May 10, 1963. He was convicted of driving without a license on May 16, 1963. He was convicted also of driving while intoxicated — second offense —on May 16, 1963.

Appellant urges as grounds for reversal that (1) there was an improper joinder of offenses and each one should have been tried separately, (2) improper testimony was admitted, and (3) no instruction concerning driving while intoxicated should have been given.

RCr. 6.18 provides:

“Two or more offenses may be charged in the same information or two or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.”

RCr 9.12 provides that the court may order two or more indictments or informa-tions or both to be tried together if the offenses can be joined in a single indictment or information.

It is important, however, that the offenses be of the same or similar character in order that they be properly joined for trial. It is difficult to lay down a rule by which such similarity may be recognized, and the trial court in the exercise of sound discretion should be given broad power in deciding which offenses have similar characteristics. The admissibility of evidence of other crimes in separate trials is a significant factor in determining whether joinder of crimes for trial is prejudicial. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85. On the other hand there is no prejudicial effect from joinder of crimes for trial when evidence of each crime is simple and distinct even though such evidence might not have been admissible in separate trials. This rule rests upon the assumption that a properly instructed jury can easily keep such evidence separate in their deliberations and therefore the danger of cumulative effect of evidence is substantially avoided. United States v. Crosby, C.A.N.Y., 314 F.2d 654. It appears also that time is of some importance in deciding whether offenses may be tried together. In Chambers v. United States, 112 U.S.App.D.C. 240, 301 F.2d 564, it was held that consolidation of counts arising out of three acts of housebreaking and larceny allegedly committed by the defendant on three dates within one month was proper. See also Langford v. United States, 106 U.S.App.D.C. 21, 268 F.2d 896.

We have no difficulty in deciding that the offenses for which appellant was tried were similar; in fact, the whole sequence of events and the punishment imposed could have been considered one integral crime; his driver’s license was revoked because he was convicted of driving while intoxicated; he was later arrested and convicted for operating a motor vehicle without a license; less than a week later, he was again arrested for operating a car without a license and while drunk. In a way each one of the public offenses was contingent and resulted from the offense which had been previously committed. The punishment was also made more severe by statute because of the prior offense. The charges were properly tried together.

Appellant next complains that the assistant to the commissioner of public safety was permitted to testify concerning matters of the previous revocation of his driver’s license under circumstances above related, but failed to produce either his official records or the actual court records concerning such convictions and therefore violated the best evidence rule. That rule requires one to introduce the most authentic evidence which is within the power of one to produce, but in practical application it applies almost exclusively to documentary evidence. Napier v. Com., 306 Ky. 75, 206 S.W.2d 53 and 22A C.J.S. Criminal Law § 692. It is concerned with the content of a written instrument. Bower v. Com., Ky., 357 S.W.2d 333. For instance, when the meaning of a contract is at issue it is best to require the production of the written instrument — or account for its absence — but where its content is not directly in issue, the subject of documents which are not the foundation of the action may be proved by parol evidence. Bower v. Com., Ky., 357 S.W.2d 333, and Catlin v. Justice, 288 Ky. 270, 156 S.W.2d 107.

In the case under consideration, there could be no issue as to the interpretation of the words used in making an entry in the records of the department of safety concerning whether appellant’s license had been revoked. The matter in issue was whether the department had, in fact, performed the act. The evidence given by the assistant to the commissioner of public safety was competent. Moreover, appellant took the stand in his own behalf and testified that he had been convicted of driving while under the influence of intoxicating liquor and as a consequence his driver’s license was revoked. It is a general rule that a judicial admission by accused of his former conviction dispenses with the need of further proof of such fact. 24B C.J.S. Criminal Law § 1968. While this was not strictly a judicial admission, nevertheless we believe that where the accused voluntarily takes the stand and upon cross-examination admits his prior conviction, such a statement is sufficient proof of it. See Anderson v. Com., 176 Ky. 373, 195 S.W. 974, and Nash v. Com., Ky., 272 S.W.2d 464.

If we understand appellant’s final contention, it is this: Officer Traynor arrested appellant Marcum on May 10, 1963, for driving without an operator’s license. He testified that “Marcum was well under the influence, but not hardly enough to charge him with drunken driving.” Mar-cum was therefore charged with one offense only. On cross-examination counsel for appellant attempted to ask the officer about a statute — evidently KRS 189.520— but the court properly intervened and sustained an objection to the question. KRS 189.520 deals with the offense of operating a motor vehicle on a highway while under the influence of intoxicating liquors or narcotic drugs, and subsection (3) reads: “No peace officer or State Police officer shall fail to enforce rigidly this section.”

On this appeal appellant argues that the jury should have been instructed concerning subsection (3) or, in any event, the jury should have been admonished that he was not being tried under that particular count for driving while under the influence of intoxicating liquors at the time he was arrested. We find no substance in this argument. The instruction in this regard given by the court made no reference to an offense other than that of driving without a license. The offense of driving while intoxicated was covered by another instruction.

Judgment affirmed.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    Joseph Leon SCHUMAKER, Petitioner, v. Hon. Coleman WRIGHT, Judge Shelby Circuit Court, Respondent.
    Court of Appeals of Kentucky.

    May 21, 1965.

      Joseph Leon Schumaker, pro se.
    Lucien L. Kinsolving, Commonwealth Atty., Shelbyville, for respondent.
   HILL, Judge.

This original action was filed in this Court in which petitioner contends his constitutional rights have been violated, in that, the respondent in the judgment provided that his sentence should run consecutively with a judgment theretofore entered by the Jefferson Circuit Court. The petitioner contends that under RCr 11.04 the respondent had no such authority. RCr 11.04 provides :

“A judgment of conviction shall set forth the plea, the verdict or findings, the adjudication and sentence, a statement as to whether the defendant is entitled to bail, the amount of bail and the day of the execution of a death sentence, which shall be at least thirty days after the entry of the judgment. If two or more sentences are imposed, the judgment shall state whether they are to be served concurrently or consecutively.”

Appellant interprets this rule to limit the power of the trial judge to judgments within his jurisdiction. This Court has taken a contrary view.

The identical question here presented was decided in Delk v. Commonwealth, Ky., 285 S.W.2d 169, 57 A.L.R.2d 1406 (1955), wherein this Court said:

“We conclude, therefore, that Section 288 authorizes the trial court, in its discretion, to impose a cumulative sentence where the defendant has been sentenced previously in another Kentucky court.”

Section 288, referred to above, is now RCr 11.04.

Under the authority of Delk, the relief sought is denied.


author: WILLIAMS, Judge.

text:
    Donald T. SHANKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 21, 1965.

      Weldon Shouse, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, G. L. Tucker, Commonwealth’s Atty., Cynthiana, for appellee.
   WILLIAMS, Judge.

Appellant Donald T. Shanks was convicted of voluntary manslaughter and sentenced to five years in the penitentiary by a jury in the Harrison Circuit Court. From a judgment pronounced upon the verdict he appeals.

Appellant, along with several other boys from Lexington, attended a New Year’s Eve party in Cynthiana at the Colored Odd Fellows’ Lodge. At 10:30 p. m., some sort of disturbance caused the chaperons to announce that the party was over and that the young people should go home. About this time appellant and Carlton Henry entered into a conversation which resulted in a fight. Henry struck appellant and knocked him down, whereupon appellant got up and quite a battle ensued. The two ended up lying on the floor fighting. When the fight was over Henry had received a stab wound which caused his death.

Appellant’s version of the story is that he did not do or say anything to occasion the fight, that while the fight was in progress some of Carlton Henry’s friends kicked him in the head, and while he was on the floor he remembers reaching into his pocket and opening his knife, but he cannot remember striking Henry with it. He testified as follows:

“Q. Did you get the knife open?
“A. I guess. It closed on my thumb. I don’t remember cutting him though.
“Q. You don’t remember cutting him?
“A. No sir. I remember getting it out but I don’t remember stabbing him with it.
“Q. Were you concerned about your own life?
“A. Yes, I was.
“Q. Were you attempting to defend yourself?
“A. Yes sir.
“Q. Were you attempting to protect yourself?
“A. Yes sir.”

The other version of the altercation differs only in who provoked it and who' continued to he the aggressor. Some of the witnesses saw appellant on his feet with the knife in his hand in a striking position.

The court instructed on murder, voluntary manslaughter, and self-defense. Appellant maintains he was entitled to an involuntary manslaughter instruction.

Involuntary manslaughter is defined by common law as the unintentional killing of another occasioned by a person engaged at the time in doing some unlawful act not amounting to a felony and not likely or naturally tending to endanger life, or engaged in the doing of a lawful act in an unlawful manner. 26 Am.Jur., Homicide, section 18.

In 40 C.J.S. Homicide § 56, it is said:

“To constitute involuntary manslaughter the homicide must have been unintentional and without malice; but even though unintentional, malice may be presumed where the accused’s acts were likely to cause death, as where he used a deadly weapon.”

It has long been the law in this state that, if the intention to kill is present, the doctrine of involuntary manslaughter has no place in the case. Maulding v. Commonwealth, 172 Ky. 370, 189 S.W. 251 (1916). In that case it was said:

“But where the killing is done in such manner and under such circumstances as to exclude the idea that it was not intended to kill, the crime falls under the definition of murder or of voluntary manslaughter, as the case may be, and no instruction on the subject of involuntary manslaughter should be given.” Citations omitted.

Appülau* pitches his case on the fact that no one actually saw the stabbing, that he cannot remember stabbing Carlton Henry, that Henry could have fallen or rolled upon the open knife, and, consequently, his death could have been accidental. However, under the common law, as we have pointed out, the killing must have been unintentional and under such circumstances as to exclude the idea that it was intentional. Where a deadly weapon was used, and where the accused admits that he was attempting to defend and protect himself with the deadly weapon, there is no room for argument that he did not intend the result of the actions taken by him.

Involuntary manslaughter was defined by the Legislature in 1962 as follows:

“KRS 435.022(1). Any person who causes the death of a human being by an act creating such extreme risk of death or great bodily injury as to manifest a wanton indifference to the value of human life according to the standard of conduct of a reasonable man under the circumstances shall be guilty of involuntary manslaughter in the first degree and shall be confined in the penitentiary for not less than one nor more than fifteen years.
“(2) Any person who causes the death of a human being by reckless conduct according to the standard of conduct of a reasonable man under the circumstances shall be guilty of involuntary manslaughter in the second degree and shall be imprisoned in the county jail for a term not exceeding twelve months or fined a sum not exceeding five thousand dollars or both.”

In Lambert v. Commonwealth, Ky., 377 S.W.2d 76 (1964), “wanton” and “reckless” as used in KRS 435.022 were defined. Although appellant was doubtless guilty of both wanton and reckless conduct, his action is not fully encompassed by the definition of either. By his own testimony his action was taken, not merely in disregard or indifference of the rights of another, but for the purpose of defending and protecting himself. It is hardly consistent to say that appellant was doing what he could to defend himself but at the same time doing it wantonly or recklessly. His use of a knife, a deadly weapon, while engaged in a fight with the deceased precludes the supposition that such action would fall within the purview of the statute defining involuntary manslaughter.

There is another reason why it was not prejudicial for the court to refuse to instruct on involuntary manslaughter. The jury found appellant guilty of voluntary manslaughter and fixed his punishment at five years in the penitentiary. The limits of the penalty for voluntary manslaughter are not less than two nor more than twenty-one years. The five-year penalty fixed by the jury is within the range permitted for involuntary manslaughter. In Bartley v. Commonwealth, 300 Ky. 152, 188 S.W.2d 102 (1945), an involuntary manslaughter instruction was not given. The jury fixed the penalty at 15 years, which prompted this Court to say that had the involuntary manslaughter instruction been given it would have been ignored. The Court went on to say that:

“Had the penalty been fixed at the minimum for voluntary manslaughter, then there would be reason to say that had the jury been authorized to fix a lesser penalty, they might have done so.”

The identical situation exists in this case. The penalty fixed was within but greater than the minimum penalty for both voluntary and involuntary manslaughter.

Upon the whole case we do not find appellant was prejudiced by failure to instruct on involuntary manslaughter.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    George William CURRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 21, 1965.
    George William Curry, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Appellant was sentenced to imprisonment, for life upon his conviction in the Jefferson Circuit Court under the Habitual Criminal Act. KRS 431.190. He had been indicted for violation oí KRS 433.180 (dwelling-housebreaking) and his prior felony convictions were included in the indictment under the Habitual Criminal Act.

The present appeal arises from the circuit court’s order overruling appellant’s motion to vacate that conviction. RCr 11.42. Appellant proceeds in forma pauperis.

In the RCr 11.42 motion appellant asserted a number of vaporous grounds upon which he deemed himself entitled to relief; we need not advert to them. King v. Com., Ky., 387 S.W.2d 582.

However, it is our view that certain allegations of the RCr 11.42 motion were sufficiently specific and pertinent to require a hearing; the circuit court denied the motion without formal hearing, and for that reason we must reverse and remand for an appropriate hearing.

The appellant asserted in his motion to vacate that his court-appointed counsel “refused to appeal the case, or to make a motion for new trial.” If this did occur, it may well he that appellant is entitled to some affirmative relief. Whether it occurred is not determinable from the face of the record, and may be ascertained only by a hearing.

Appellant alleged in his 11.42 motion that the jury returned into open court with a verdict fixing his punishment at confinement in the penitentiary for two years (the minimum sentence for dwelling-housebreaking) KRS 433.180. According to appellant, the trial judge then thanked and discharged the jury, and called appellant before the bench to be sentenced. Then the attorney for the prosecution interposed an objection to the court’s sentencing appellant for just two years, and insisted that the jury be reassembled for further consideration. Whereupon, appellant was remanded to a holdover for safekeeping while one of the jurors was located and returned to the court room. According to appellant, an hour or more elapsed while the missing juror was relocated. Then it was, appellant alleges, that the reassembled jury was directed by the court to reconsider its verdict. It was after the reconsideration that the life sentence was imposed.

For the Commonwealth it is averred that nothing of the sort occurred. It is explained that the trial court supplied the jury with forms of verdicts under which the jury might have (1) found appellant not guilty, or (2) found him guilty of Count No. 1, Dwelling-Housebreaking, or (3) found him guilty under Instruction No. 2, Habitual Criminal Act. When the jury returned its verdict the foreman had inadvertently filled in the verdict form relating to Dwelling-Housebreaking, but had filled in the blank space showing that the jury’s verdict was for life imprisonment. Since the offense denounced by KRS 433.-180 has penalty limits from two to ten years, it was apparent that a clerical error had occurred; this was promptly called to the court’s attention, says the Commonwealth, and before the jury was discharged or had left the courtroom, the error was called to the attention of the jury and the appropriate space for the verdict was completed.

The position of the prosecution is bolstered by an affidavit furnished by Honorable Thomas Jefferson Knight, who was the presiding judge at the original trial. Judge Knight refutes the factual assertions made by appellant as to the jury’s having been discharged and later reassembled.

Under the circumstances presented we are impelled to the conclusion that appellant was entitled to a hearing on the 11.42 motion. It is clear that if his allegations as to the “refusal” of his court-appointed counsel to appeal or move for a new trial are true a serious question is presented whether he had effective and adequate representation. Moreover, if it should be demonstrated that the jury actually did render a verdict fixing punishment at less than imprisonment for life, and was then discharged, grave doubt would arise as to the legality of reassembling the jury for further deliberations.

Since these matters do have prima facie substance, it is requisite that a hearing be afforded to resolve them. Moreover, appellant has requested the trial court to appoint counsel to assist him on the 11.42 hearing. This should be done.

We are not to be understood as holding that either of the matters asserted, as they now stand, would ipso facto entitle appellant to have the conviction judgment vacated. What we do hold is that the matters claimed have sufficient substance to require a hearing and judicial determination of them.

The judgment is reversed with directions to appoint counsel for appellant and afford a hearing on the two issues herein discussed.


author: CULLEN, Commissioner.

text:
    McKinley WHITTAKER, Appellant, v. Lucas (Luke) COLE, Appellee.
    Court of Appeals of Kentucky.
    March 5, 1965.
    As Modified on Denial of Rehearing June 11, 1965.
    J, K. Wells, Paintsville, Earl R. Cooper, Salyersville, for appellant.
    Marcus Mann, Arnett Mann, Salyersville, for appellee.
   CULLEN, Commissioner.

Upon a jury verdict Lucas Cole recovered judgment against McKinley Whittaker in the amount of $25,000 as damages for personal injuries sustained by Cole when he was struck by Whittaker’s automobile. Whittaker appeals, contending that (1) a verdict should have been directed in his favor because Cole as a matter of law had assumed the risk, and (2) the damages are excessive.

Cole owned and operated a small commercial garage in which there was a hydraulic hoist or grease rack used to raise cars for greasing and similar servicing. There was a space of four feet between the back wall of the garage and the back ends of the two hoist beams (over which the automobile is driven to be raised). Whit-taker, a regular customer of Cole’s, drove in one day to have the tires on his car rotated. Cole told him to drive the car onto the rack. Cole took a position at the back end of the rack, with his back against the wall, and gave directions to Whittaker with hand signals as the latter drove onto the rack. Whittaker moved slowly onto the rack, stopping and inching forward in response to Cole’s signals. When the front of his car reached a point a few feet from the back wall of the garage his foot slipped off of the brake pedal and onto the accelerator and the car leaped forward, pinning Cole against the wall and breaking both of his legs.

Whittaker pitches his argument, that Cole as a matter of law assumed the risk, entirely on statements made by Cole in his testimony that “It is pretty dangerous any time you are in front of a car”; he felt that he was in danger any time he was in front of a ear; he stood in front of the car and signaled it forward because “That was my job. That was what I was expected to take”; and he felt that he was “expected to take that risk if I done the work I did.” In substance the argument is that assumption of risk is a purely subjective matter; that if the injured person thought there was a risk it doesn’t make any difference what other persons would have thought.

Our cases consistently have used objective standards in applying the doctrine of-assumption of risk. In a number of cases we have said that in order to charge a person with assumption of risk the danger must be so obvious that a person of ordinary prudence would not subject himself to it. See Kentucky & West Virginia Power Co. v. Goodman, Ky., 257 S.W.2d 553; Beam v. Calvert, Ky., 277 S.W.2d 35; City of Cold Spring v. Ross, Ky., 358 S.W.2d 507. A similar view is expressed in Restatement of Torts, sec. 466, Comment (a) c, as follows :

“ * * * his intentional exposure of himself to the known danger must be unreasonable. In order that it may be unreasonable it is necessary that a reasonable man in his position would not expose himself to it. * * * ”

It may be that the foregoing test is not the best one, and that the test should be whether an ordinarily prudent man would recognize and appreciate the existence of a substantial risk, rather than whether a reasonable man would chance the risk. Cf. Morrison & Conklin Const. Co. v. Cooper, Ky., 256 S.W.2d 505. However, under either test the standard is the ordinarily prudent man. The appellant would have us measure the seriousness of the risk by the apprehensions of the particular plaintiff rather than by the appreciations of the ordinarily prudent man. We think this is not acceptable, because it would penalize the overly fearful man who envisioned substantial danger in a situation that an ordinary man would consider reasonably safe.

The instructions in the instant case (of which there is no complaint) called for a finding of assumption of risk if the jury believed the situation was unsafe, or for a finding of contributory negligence if the jury believed Cole did not exercise the care of an ordinarily prudent man. In our opinion the jury was entitled to find that the situation was not unsafe in that it did not present an unreasonable risk and the jury also was entitled to find that Cole did not fail to exercise ordinary care. There was no serious danger apparent in the situation. The only possibility of danger was in an uncommonly negligent handling of the car by Whittaker1, and we cannot say as a matter of law that a reasonable man would have considered this a substantial risk. Most drivers have no difficulty at all in controlling a vehicle at snail speed. Therefore, Whittaker was not entitled to a directed verdict.

We think the damages are not excessive. ■ Cole was 51 years of age, and was earning $200 per month from his garage work. It is true that he had been receiving a partial disability pension from the Veterans’ Administration based on a 40 percent disability evaluation, but this partial disability had not prevented him from working as a mechanic. He was hospitalized for some two months after the accident, and at the time of the trial, almost a year after the accident, he was still confined to a wheel chair. He had incurred hospital and medical expenses of almost $2,000. His doctor testified that his chances of ever being able to walk normally were zero, and that he was totally and permanently disabled from performing physical labor such as that required of a mechanic. In our opinion this evidence amply supports the award of damages.

The judgment is affirmed.


text:
    Albert FLEISCHER et al., Appellants, v. JEFFERSON COUNTY, Kentucky, et al., Appellees. John A. ANDERSON et al., Appellants, v. JEFFERSON COUNTY, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.
    Rehearing Denied June 25, 1965.
    Richard H. Nash, Louisville, for appellants.
    E. P. Sawyer, County Atty., James T. Carey, Asst. County Atty., Louisville, for appellees.
   HILL, Judge.

Separate suits were filed in the Jefferson Circuit Court, one by Albert Fleischer and others, the other by John A. Anderson and others, against Jefferson County. They involve common defendants and questions of law, and were briefed jointly. They will, therefore, be disposed of in one opinion.

The lower court determined the question of law and fact in favor of the defendant, Fiscal Court, and entered judgment accordingly. The plaintiffs below, now appellants, prosecute this appeal and rely for a reversal upon the three following grounds:

(1) That the Fiscal Court acted beyond its legal right in stopping the automobile allowance to them. * * *
(2) The provisions of KRS 64.210 are mandatory and not discretionary with the court.
(3) That they were entitled to judgment against the defendant, Jefferson County, Kentucky, for the amounts demanded in their complaints and mandatory injunctions against the Fiscal Court directing it to authorize the payment of the amounts claimed by them.

KRS 64.210 provides:

“Fiscal courts of counties containing a city of the first class shall authorize the payment of fifty ($50.00) dollars per month out of the county treasury to constables and deputy constables using their own automobile in the performance of their official duties.”

KRS 446.010 says “shall” means mandatory.

It is suggested we point out that in 1960 the Legislature amended KRS 64.210, increasing the car allowance. Apparently this amendment is being complied with.

The appellants, all constables or deputy constables of Jefferson County, seek to recover $80,500.00, which they allege was due for unpaid statutory automobile allowances between July 1, 1950 and July 1, 1960, under KRS 64.210 and 446.010. The statute, first above quoted, was enacted in 1948, and apparently Jefferson County commenced paying appellants $50.00 each per month, as the statute provided, soon after the statute became effective about June 7, 1948. These payments were made until July 1, 1950. The General Assembly of Kentucky, in 1950, enacted KRS 64.710, which was interpreted, perhaps incorrectly, by the county attorney of Jefferson County to authorize the Jefferson Fiscal Court to discontinue these monthly payments to the appellants. Acting on this advice, the Jefferson County Fiscal Court, on July 1, 1950, discontinued the $50.00 monthly payments to each of the appellants, but on the same date it gave the appellants, along with the other county employees, salary increases. Most of the county employees, outside of the classification in which the appellants were included, received an average increase of $20.00 per month. Appellants’ increases averaged $70.00 per month. Three of the county commissioners testified that, in voting this increase in salaries for the appellants, they intended to include the $50.00 automobile expense allowance. No objection was made to this evidence.

That the raise effective July 1, 1950, was intended to cover the statutory car allowance is further evidenced by the letter written May 23, 1951, signed by three of the constables, Shultz, Rushing and McGoff. We quote from this letter:

“Effective July 1, 1950, the car allowance was taken away and straight salaries of $3300.00 for Constables and $2950.00 for Deputies. When all deductions are made from the $600.00 there is added expense which amounts to no raise in salary whatever.” (Our emphasis.)

The trial judge found that the increase of approximately $75.00, effective July 1, 1950, included and was in lieu of the specific $50.00 allowance theretofore made by the Fiscal Court under KRS 64.210, and that such was the intention of the Fiscal Court. We think the Fiscal Court had a right to do so. Furthermore, the appellants accepted this arrangement.

After considering the conflicting contentions of the respective parties we have little, if any, doubt of the correctness of the findings of the chancellor. Should we entertain some doubt we would be obliged to follow the well settled rule to uphold the chancellor. See Mitchell v. Perkins, 309 Ky. 785, 219 S.W.2d 45, Combs v. Turner, 304 Ky. 179, 200 S.W.2d 288.

The appellants insist in their brief that this court pass on the question of limitation and that of laches discussed in parts 2 and 3 of appellants’ brief. In view of our conclusions, above expressed, we think it unnecessary to determine these questions.

The judgment of the trial court in these cases is affirmed.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Roy HOLBROOK and Lorainne Holbrook, wife, Appellees.
    Court of Appeals of Kentucky.
    June 18, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Edmond H. Tackett, Dept, of Highways, Prestonsburg, for appellant.
    Cordell H. Martin, Hindman, Rudy Yes-sin, Edward L. Fossett, Frankfort, for appellees.
   CLAY, Commissioner.

In this highway condemnation case the landowners were awarded $7,000 compensation for the taking of 3.11 acres from the hack end of approximately 11 acres of overflow bottom land fronting on Kentucky Highway 114 and sloping back to Burning Fork Creek. The taking also severed .8 of an acre. Appellant questions the competency of appellees’ evidence and contends the verdict is obviously excessive.

Three witnesses testified for appellees. One was an owner of the land, another was a neighboring farmer and the third was a real estate broker and auctioneer. They testified that the difference in value before and after the taking was approximately $10,000, based on an estimated before value of $19,000.

The testimony of the landowner lacked probative value from many standpoints, one of which was that he valued his tract at $1,000 an acre (including valuable improvements) and then said the taking of a little over three acres caused damage about triple the value of the land in the first place. Another witness considered speculative factors and based his opinion of damage upon what he would take for the loss of acreage if it were his farm.' The only witness who appeared well qualified as an expert showed lack of adequate knowledge of the property involved and included as a factor a certain condition not shown to be related to the taking.

To begin with, the landowners’ valuation evidence was unsatisfactory in many respects and demonstrated a tendency grossly to inflate the before value and grossly minimize the after value without sound reasons therefor. The most glaringly incom prehensible thing about the testimony of ap-pellees’ witnesses is that they estimated the loss of the least valuable one-third of the tract caused the landowners damage in a sum greater than one-half the value of the whole tract. While the jury would not go this far (thereby evincing their opinion that the evidence of the landowners’ witnesses was not fully credible), this verdict which allows appellees more than $2,000 an acre for bottom land subject to periodic overflow is at first and last blush excessive. See Commonweatlh, Department of Highways v. George, Ky., 387 S.W.2d 580.

The judgment is reversed for a new trial.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Anna Coleman Van Meter PREWITT, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.
    As Extended on Denial of Rehearing June 11, 1965.
    John B. Breckinridge, Atty, Gen., William A. Lamkin, Jr., Asst. Atty. Gen., C. E. Skidmore, Frankfort, Deddo G. Lynn, Lexington, for appellant.
    Stephen T. Davis, White, McCann & Stewart, Winchester, for appellees.
   MILLIKEN, Judge.

The judgment in this condemnation case was entered November 30, 1962, prior to our decisions in Commonwealth, Department of Highways v. Carlisle (1962), Ky., 363 S.W.2d 104, Commonwealth, Department of Highways v. Tyree (1963), Ky., 365 S.W.2d 472, and Commonwealth, Department of Highways v. Sherrod (1963), Ky., 367 S.W.2d 844. The appealed judgment involves the taking of 46 acres of land in Clark County for the construction of Interstate 64.

Throughout this litigation is the assumption by counsel for the Department of Highways and the landowners that the loss of access to U. S. 60 is a substantial factor in estimating the damage to the remainder, an assumption which was not unwarranted before the above decisions.

The farm affected by this condemnation, containing 710 acres, was used as a unit before the taking, but was left in three separate tracts after the taking; it was roughly in the shape of a U with the western arm of the U fronting 2,200 feet on the north side of U. S. 60 and the eastern arm of the U, which was about a mile away, fronting 200 feet on U. S. 60. The 46 acres taken cut off both arms of the U and landlocked a small portion of land within the curve of the U, leaving the main tract of the farm — 470 acres — on the northern side of Interstate 64 and cut off from direct access to the western arm or tract containing 185 acres and the eastern arm or tract of 9 acres, both of which were left on the south or other side of Interstate 64 with their original access of U. S. 60 unimpaired. Counsel for the Department apparently felt at the trial, and certainly contend in their brief, that the main tract was so far from U. S. 60 — 3,500 feet by way of one arm and 2,200 feet by the other, over dirt roads — that any decrease in market value to the main tract allowed for loss of its direct access to U. S. 60 was based on a shaky premise because the new access roads constructed by the Department afforded as good or better access to U. S. 60 by public highways. The jury allowed $32,200 for the 46 acres taken, and $37,299.20 “less $6,000 enhancement by virtue of Frontage Roads” or $31,299.20 as consequential damage to the remainder. An additional $1,140 was allowed for fencing, making a total verdict and judgment of $64,639.20.

The removal of the 470-acre tract from direct access to U. S. 60 resulted in diminution of the value of that tract according to the landowners’ witnesses because it removed the tract from the U. S. 60 “community” or “influence.” It was their contention that farms on U. S. 60 have a greater market value than exactly equal farms located on minor highways — and this may well be true. The difficulty is that any reduction in value of the 470-acre tract attributable to its loss of the U. S. 60 “community” or “influence” is a noncompensable item for the same reason that impairment of access to a public highway is noncompensable and any damages allowed therefor are improper. See Commonwealth, Department of Highways v. Carlisle (1962), Ky., 363 S.W.2d 104; Commonwealth, Department of Highways v. Denny (1964), Ky., 385 S.W.2d 776. In the event of another trial the jury should be so instructed. See Jennings v. Commonwealth, Department of Highways (1965), Ky., 388 S.W.2d 133. No property owner has any assurance that his property will always enjoy a favored highway status.

It will not be necessary to discuss other points raised, because they will not recur at a retrial after the Sherrod, Carlisle, Tyree and later decisions such as Commonwealth, Department of Highways v. Denny, Ky., 385 S.W.2d 776; Commonwealth, Department of Highways v. Lawton, Ky., 386 S.W.2d 466, decided January 29, 1965.

The judgment is reversed.


author: PER CURIAM.

text:
    In re R. Everett RAY.
    Court of Appeals of Kentucky.
    May 21, 1965.

      Redford H. Coleman, Frankfort, for complainant.
    Harry S. McAlpin, Louisville, for respondent.
   PER CURIAM.

This is a disciplinary proceeding against attorney R. Everett Ray, of Louisville, in which the Board of Governors of the Kentucky State Bar Association has recommended a two-year suspension. Ray was found guilty by a Trial Committee of unethical conduct in a real estate transaction with one Clarence O. Bibb.

"Bibb was the owner of a piece of mortgaged real estate. He fell behind in his payments and was threatened with foreclosure. He then went to Ray seeking legal advice and assistance. It appeared that Bibb needed financial rather than legal aid. At Ray’s suggestion, Bibb deeded the land to Ray, as “trustee,” under an agreement that Ray would transfer it back to Bibb or to anyone Bibb named upon payment to Ray of his expenditures and his charges for use of Ms credit and for his services in saving the property from foreclosure. Subsequently the property was transferred at Bibb’s request to his brother-in-law, for a price of $4,000. After the mortgage and all expenses were paid including a fee to Ray for legal services, Ray had left a sum of around $1,300, which he claimed as his own.

The foregoing statement of facts consists only of facts asserted or admitted by Ray; it does not include disputed assertions by Bibb of fraudulent acts and representations by Ray.

Although the Trial Committee stated in its report that the only issue to be considered was whether Ray had acted “fraudulently” in the handling of the real estate transaction, actually the committee based its recommendation of disciplinary action on a finding of a breach of a fiduciary relationship.

By way of response in this Court, Ray asserts among other things (1) that he was denied the opportunity before the Trial Committee to show fully the motives behind the bringing of the charges against him, and (2) that the evidence does not warrant a finding of fraud on his part. It is our opinion that neither of these matters is of any significance.

What is significant is that Bibb came to Ray owning a substantial equity in a piece of real estate, and when his dealings with Ray were completed he had nothing while Ray had $1,300. Obviously there was a breach of professional ethics in the achievement of such a result, and it is immaterial by what name the breach be called. We think also it is immaterial (except as regards the degree of the offense) that Ray may have done what he did with full agreement of Bibb. It is our opinion that an attorney may not properly be permitted to switch hats, from that of an officer of the court to that of a money lender, in the middle of his dealings with a client.

We are not convinced that Ray was guilty of any fraudulent conduct or that he was deliberately seeking to take undue advantage of his client’s financial predicament. It appears that his offense was attributable mainly to his failure to appreciate fully the high trust responsibilities that rest upon an attorney in a financial transaction with his client. Under the circumstances we think a six-month suspension is adequate discipline.

It is ordered that the respondent, R. Everett Ray, be and he is suspended from engaging in the practice of law in Kentucky for a period of six months from the date of the issuance of the mandate herein.


author: PALMORE, Judge.

text:
    ROBERT SIMMONS CONSTRUCTION COMPANY et al., Appellants, v. The POWERS REGULATOR COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Jan. 22, 1965.
    As Modified on Denial of Rehearing June 4, 1965.

      Thomas W. Burks, Alexander G. Booth, J. Leonard Walker, Booth, Walker & Allen, Louisville, for appellants.
    Samuel Steinfeld, Marvin M. Sotsky, Steinfeld & Steinfeld, Louisville, for ap-pellee.
   PALMORE, Judge.

The appellant Simmons was a prime contractor in the construction of Franklin County High School. The appellant National Union is the surety on Simmons’s bond to the Franklin County Fiscal Court guaranteeing payment for all labor and materials furnished on the project. Powers, the appellee, supplied to one of Simmons’s subcontractors labor and materials for which it has an unpaid bill of $18,602. Simmons and National Union appeal from a summary judgment in that amount granted Powers in its suit against them, the defaulting subcontractor, and the latter’s surety.

There are two main questions in the case, one substantive and the other procedural. The substantive question is whether Powers’s actions in the handling of its claim against the defaulting subcontractor released the appellant guarantors of their obligation under the bond. The procedural problem is whether there is a genuine issue as to any fact essential to the disposition of the substantive question, hence whether the summary judgment was premature. Cf. CR 56.03.

The prime contract was entered into in June of 1957. Simmons let the plumbing and heating subcontract to Roy C. Dillow, an individual proprietor doing business as Roy C. Dillow Company, and shortly thereafter Dillow placed his order with Powers. In December of 1957 Dillow incorporated as Roy C. Dillow Co., Inc., the corporation assuming all of his business assets and liabilities. Thereafter all of Dillow’s work and correspondence were carried on in the name of the corporation.

Powers completed the furnishing of labor and materials in August of 1958, though Dillow had not yet completed his contract with Simmons. On July 10, 1959, Dillow owed Powers a balance of $23,602 and had a claim against Simmons for an unpaid balance of $14,000. At this time a meeting was had in Simmons’s office by representatives of Powers, Dillow, and Simmons, resulting in an assignment by the Dillow corporation to Powers of its $14,000 account against Simmons and the subsequent execution, under date of July 15, 1959, of a series of notes from the Dillow corporation to Powers in the principal amount of $9,302, payable over a period of six months from date. Technically, Simmons did not accept the assignment, but there is little doubt that its responsible officers knew of this entire arrangement between Dillow and Powers and, subject at most to its own set-offs against Dillow, tacitly approved of it. The Dillow corporation thereafter paid $1,000 on these notes and Simmons paid $4,000 on the assigned account.

The Dillow corporation was unable to pay on schedule, and in November of 1959 the unpaid notes were destroyed and replaced by a new installment note in the face amount' of $8,602, back-dated as of July 15, 1959, and payable over a period beginning January 15, 1960, and ending December 15, 1960. Evidently this transaction also took place in Simmons’s office and, according to the deposition of Powers’s credit manager, was instigated “at the request of Mr. Simmons and Mr. Dillow in order to ease Mr. Dillow’s position.” None of the installments called for by the new note were paid, and on May 5, 1960, Powers brought this action against Dillow the individual, Dillow the corporation, Simmons, National Union, and the surety on Dillow’s bond.

Simmons’s and National Union’s answer pleaded that they were released as sureties by reason of Powers’s acceptance of the notes and assignment on July 10, 1959, in lieu of Dillow’s pre-existing obligation. In the answer it was alleged that Simmons had not acquiesced in or in any way agreed to the transaction.

Following the taking of certain depositions a pre-trial conference was held and various facts were stipulated. It was stipulated also that Simmons and National Union are liable unless released by reason of the notes or the assignment heretofore mentioned. Further facts were developed through requests for admissions. CR 36. Simmons and National Union moved for summary judgment, which was denied. Powers then moved for and was granted a summary judgment against Simmons and National Union.

One of the oldest and best opinions dealing with the obligation of a surety company under a bond similar to the one given by Simmons and National Union in this case is United States Fidelity & Guaranty Co. v. United States, 191 U.S. 416, 24 S.Ct. 142, 48 L.Ed. 242 (1903), in which it was held that the rule of strictissimi juris, which originated to protect accommodation endorsers on fixed and precise obligations, does not extend to contracts such as the one in question. Some of the reasoning pertinent to that conclusion reads as follows:

“The guarantor is ignorant of the parties with whom his principal may contract, the amount, the nature, and the value of the materials required, as well as the time when payment for them will become due. These particulars it would probably be impossible even for the principal to furnish, and it is to be assumed that the surety contracts with knowledge of this fact. Not knowing when or by whom these materials will be supplied, or when the bills for them will mature, it can make no difference to him whether they were originally purchased on a credit of sixty days, or whether, after the materials are furnished, the time for payment is extended sixty days, and a note given for the amount maturing at that time. If a person deliberately contracts for an uncertain liability, he ought not to complain when that uncertainty becomes certain.” (Emphasis added.)

In a later opinion of the late Judge John J. Parker the rule was thus epitomized in a manner hardly susceptible of improvement:

“The law seems well settled that a corporate surety on a contractor’s bond is not released from liability to a claimant for labor or materials furnished, by reason of an extension of time of payment granted by the claimant to the contractor, where the extension is bona fide and not in excess of a reasonable, usual, or customary credit.” Maryland Casualty Co. v. Ohio River Gravel Co., 20 F.2d 514 (4th Cir. 1927).

Both of the cases from which we have quoted involved a surety company’s liability after extensions had been given to its principal, whereas in this case the indulged person was a third party subcontractor. The rule expressed in the Restatement of Security, § 129, as applicable to a contract of this particular nature is that in the absence of an express reservation of rights a binding agreement by the creditor, without the surety’s consent, extending the principal’s time of payment will release the surety unless he is a compensated surety, in which event he will be discharged “only to the extent that he is harmed by the extension.” We perceive no substantial basie for distinguishing between the compensated surety and the prime contractor who together have undertaken to guarantee payment by third party subcontractors. This contingent liability on the part of the contractor is one of the risks he is paid, as part of the contract price, to assume. He is therefore in fact a compensated surety.

The trial court concluded that without a showing of injury resulting from the transactions between Powers and the Dillow corporation the two sureties, Simmons and National Union, are liable. We would go even further, and take Judge Parker’s succinct statement, quoted above, at face value. As we view it, the dispositive factual questions ought to be not only whether the sureties were injured but, if so, whether Powers, the creditor, giving due regard to' the interest of the sureties, acted reasonably in its efforts to collect from Dillow. The possibility that Dillow’s financial condition might worsen, or the fact that it did, should be merely one of the circumstances bearing on the reasonableness of the creditor’s conduct. It is well known in the business world that a debtor limping but still alive is likely to pay a better percentage than a sudden bankrupt.

The more difficult question to decide in this case is whether a summary judgment was in order, as against either or both of the appellant sureties. They take the position that they are entitled to a trial at which they will have the opportunity of attempting to prove that they were injured by Powers’s delay in collecting from Dillow, in that Dillow’s financial condition was deteriorating in the interim.

With respect to National Union we are of the opinion that this argument is well taken. There is nothing in the record to suggest that National Union ever was advised or consulted in connection with the difficulties encountered in collecting from Dillow, nor, indeed, that it was aware of the substitution of the Dillow corporation for Dillow personally, a transition that seems either to have been ignored or tacitly accepted by Powers and Simmons. Whether National Union should have been put on notice and given a voice in pursuing Powers’s claim, and to what avail such an opportunity would have been, are unresolved questions that are material to a determination of whether Powers acted reasonably.

“A party, to be entitled to a summary judgment, has the burden of showing that the facts, which would warrant judgment in his favor under applicable substantive law principles are indisputable. It does not follow from a party’s failure to meet that burden, that his adversary has satisfied a similar burden as to the facts which would entitle the adversary to summary judgment.” Moore’s Federal Practice, R. 56 § 56.13 (Vol. 6, p. 2092).

Since the burden of establishing the nonexistence of any genuine issue of material fact is on the moving party, for the purposes of the motion all doubts are to be resolved against him. Rowland v. Miller’s Adm’r, Ky., 307 S.W.2d 3, 6 (1956); Clay, Kentucky Practice, CR 56.03, Note 5 (Vol. 7, p. 165). Ordinarily, summary judgment is proper when it is manifest that the opposing party could not strengthen his case at trial and the moving party would be entitled ultimately and inevitably to a directed verdict. Adkins v. Greyhound Corporation, Ky., 357 S.W.2d 860, 862 (1962). There may be instances in which the opposing party, if he has countervailing evidence, cannot hold it back until trial — for example, if it consists of information to which he alone has access. See Moore’s Federal Practice, R. 56, § 56.15 [5] (Vol. 6, p. 2144 et seq.). But that situation cannot arise unless and until the moving party has properly shouldered the initial burden of establishing the apparent non-existence of any issue of material fact. Id., p. 2153. It is clear that one party cannot compel the other to try his case on a motion for summary judgment. Clay, Kentucky Practice, CR 56.03, Note 5 (Vol. 6, p. 166); Payne v. Chenault, Ky., 343 S.W.2d 129, 132-133 (1960).

We hold that the facts thus far developed in this case do not foreclose the material issues of whether Powers, having due regard for the interest and position of National Union, acted reasonably in its efforts to collect the Dillow account and, if so, whether National Union was thereby injured.

The posture of Simmons is quite different. Simmons was on the scene, dealing with Dillow every day. When Powers’s contract with Dillow was completed there was still work to be done by Dillow under his contract with Simmons. Though Simmons did not “accept” the $14,000 assignment, it was well aware that Powers was looking to Dillow’s account against Simmons as a substantial source of collection from Dillow. Simmons had the first and best knowledge that Dillow’s work was not satisfactory and was giving rise to set-offs against the balance that would otherwise have been payable to Dillow under their contract. If Dillow’s financial condition was deteriorating, Simmons must have been as well aware of it as was Powers. Clearly Simmons knew of the first series of notes and did not object or suggest any other course of action. The cancellation of these notes and substitution of the new installment note in November of 1959, resulting at worst in a delay of six months in filing suit, was accomplished, according to undisputed testimony, in Simmons’s office. Certainly the status of the Dillow-Simmons account lay at the very heart of Powers’s plans and efforts to collect from Dillow, and Sinu mons’s assistance and cooperation were actively sought by Powers all along the way. Had Simmons desired that Powers close in on Dillow we think it was incumbent on Simmons to say so at the time.

As to Simmons, it is our conclusion that the reasonableness of Powers’s handling of its claim against Dillow is so manifest as to preclude the possibility of a successful defense by Simmons. Hence the summary judgment against Simmons was proper.

It is further contended by Sim-, mons that the trial court abused its discretion in determining that there was “no just reason for delay” and in making the judgment against it final under CR 54.02 while numerous other related controversies remained unresolved. We agree that the power of the trial court under this provision is not unlimited. However, we do not observe any prejudice to Simmons in this instance. Its liability does not depend on any of the remaining issues. Neither does the determination of priorities as between Simmons and other defendants who also have been or may be held liable to Powers require that all the liabilities be adjudged at one and the same time.

To the extent that judgment is granted against National Union the cause is reversed for further proceedings consistent with this opinion; to the extent that judgment is granted against Simmons it is affirmed.

      . It developed that Simmons had offsetting claims against Dillow for certain failures in performance of the subcontract.

      . This was done by a check payable to the Dillow corporation and Powers, which was endorsed over to Powers.

      . Powers has taken a default judgment against the Dillow corporation. Its claims against Dillow personally and his surety, and cross-claims by the various defendants against each other, had not been adjudicated when the summary judgment (made final pursuant to OR 54.02) attacked on this appeal was entered.

      . See Kentucky authorities cited in support, Pocket Supplement to Restatement of Security, Kentucky Annotations (1950).

      . Whether the successive notes were or were not intended technically to supplant the original obligation, or to effect a novation, is a question of no material substance.

      .Eventually (during the pendency of this litigation) tbe ubiquitous Internal Revenue Service swept in and attached such funds, if any, as are owed by Simmons to Dillow.


author: DOERNER, Commissioner.

text:
    Theresa HOPKINS, Plaintiff-Respondent, v. SEFTON FIBRE CAN COMPANY, Defendant-Appellant.
    No. 31960.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.

      Whalen, O’Connor, Grauel & Sarkisian, Fred B. Whalen, Warren Grauel, St. Louis, for defendant-appellant.
    Mogab & Hughes, Richard L. Hughes, Charles A. Mogab, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

This is an action for damages for personal injuries claimed to have resulted from a fall. Plaintiff obtained a verdict and judgment below for $6500 and defendant appealed.

Defendant contends that the court erred in refusing to direct a verdict in its favor because plaintiff failed to make a submissible case, in giving Instruction No. 1, in refusing Instruction A, and it also maintains that the judgment is excessive. We shall, therefore, review the evidence from a standpoint favorable to plaintiff and give her the benefit of any part of defendant’s evidence favorable to her which is not contradicted by her own testimony and not contrary to her theory of recovery, and we shall also give her the benefit of all favorable inferences arising therefrom. Yarrington v. Lininger, Mo., 327 S.W.2d 104; Ukman v. Hoover Motor Express Co., Mo., 269 S.W.2d 35.

Plaintiff, a lady then 62 years of age, went to work for Food Service Management, Inc., on June 14, 1961. Under an oral arrangement with the defendant, which furnished the space in its plant and the physical equipment, Food Service operated a cafeteria for the convenience of the defendant’s employees. Defendant’s plant was located on the west side of Big Bend Boulevard in the City of Maplewood, Missouri. The front or east side was back from the street about 12 or 15 feet, and the building extended 541 feet westwardly. On the north side of the building was a parking lot approximately 100 feet in width and in excess of 500 feet in length, for the accommodation of the automobiles of defendant’s employees and business visitors. It was also used by the employees of Food Service, with the knowledge and tacit consent of the defendant. Illumination was provided by four one .thousand watt floodlights placed at equally spaced intervals on the north wall of the plant, at the roof line. The lights were operated by a single switch. Mr. Rasmussen, defendant’s safety director, testified that if a light was not operating the maintenance foreman would direct an electrician to replace the bulb. The two electricians work separate shifts, the first starting at 7:00 A.M. and the second ending at midnight, and they are on call during the remaining seven hours of the day. There were 8 rows of lane dividers or bumpers, each eighty feet in length, which extended from the north side of the lot towards the south, the rows being spaced forty-five feet apart. The lane dividers were timbers 6 feet in length, resembling railroad ties, about 6 inches in height and 8 inches in width, and were anchored to the surface. An interval of a few inches was left between the individual ties to designate a single parking space, and cars were parked against the dividers on an angle, with one row of automobiles on each side facing into the dividers. The ties were creosoted, and dark, and the surface of the lot was paved with asphalt, gray in color.

Plaintiff’s hours of employment were from 6:30 P.M. to 9:30 P.M. On the day she began to work for Food Service, June 14, 1961, she walked to defendant’s plant from her home, about 4 blocks away. When she arrived at the northeast corner of defendant’s property she walked straight west, a distance of over five hundred feet, down a twenty-two foot driveway which was on the north side of the parking area. When she came opposite the employees’ entrance to the plant, located on the north side of the building and towards the west end, she walked straight south to the door. On leaving at 9:30 that night she went out by the same door and walked directly east, on a narrow pathway which ran along the south side of the parking area, between the south ends of the rows of ties and a cyclone wire fence, until she reached Big Bend Boulevard.

Upon entering the plant the second day plaintiff traversed the same route on her way in to the building that she had followed the previous night. When she and her fellow-worker, Mrs. Martha Harris, prepared to leave around 9:30 P.M. it was raining, and Mrs. Harris offered to drive plaintiff home. They left the building by the employees’ entrance, and, according to plaintiff, walked an unspecified distance eastwardly on the pathway, Mrs. Harris leading and plaintiff following. At that point Mrs. Harris, who had no umbrella as did plaintiff, remarked that she would go ahead and open the door to her car. Mrs. Harris then left the pathway and walked on an angle, in a northeastwardly direction, to where her car was parked near the center of the parking area. It is not clear from plaintiff’s testimony whether she continued to walk eastwardly along the pathway, or if so, how far. She did testify that after Mrs. Harris left it thundered and lightning flashed, and that she stopped to get her footing. She then called out and Mrs. Harris answered, “ * * * ‘I’m over here/ * * Plaintiff thereupon started to walk on an angle, northeastwardly across the parking area, and tripped and fell forward when she came to the first row of ties, injuring herself. Mrs. Harris helped plaintiff to arise, retrieved her umbrella, and assisted her to the car. Plaintiff testified that she did not know that there were ties stretching in rows across the parking area and that, although it was daylight when she entered the plant on the 14th and 15th, she had not observed the ties because they were covered by the overhang of the cars parked on the lot. Plaintiff also stated that she did not see the ties before she fell because it was too dark, and that the middle two of the four floodlights were out. Because of the conclusion we have reached regarding the issue of submissibility it is unnecessary to state the nature and extent of plaintiff’s injuries.

The merits of defendant’s appeal appear to center primarily on Instruction No. 1, plaintiff’s only verdict directing instruction. In their respective briefs both parties agree that the plaintiff thereby submitted her case in the conjunctive, upon two predicates of negligence: (1) insufficient illumination by reason of two of the floodlights being out at the time plaintiff fell; and (2), the placing of the dividers or ties by the defendant on and about its parking lot. Loath as we are to differ with learned counsel, we cannot bring ourselves to share their view. The instruction is long and involved, and in the interest of brevity we shall not quote it. But as we read the instruction, and as we think normally intelligent laymen serving as jurors would undoubtedly understand it, we believe that the jury was in effect instructed that the parking lot with the dividers on it created a hazardous condition to one walking on it at night, not independently of the illumination, but only because of the inadequate lighting due to the non-functioning of two of the floodlights. Be that as it may, we shall treat the points raised by defendant as the parties have done in their briefs.

As to the lack of illumination, defendant asserts that plaintiff failed to make a case on that issue because there was no evidence adduced that the defendant had actual or constructive notice that the lights were out. Plaintiff does not dispute the legal principles regarding notice upon which defendant’s argument is based, Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Brophy v. Clisaris, Mo.App., 368 S.W.2d 553; nor does plaintiff contend that she produced evidence of actual knowledge on the part of defendant. Her sole contention in that regard is that; “There was ample evidence that poor lighting conditions had existed for some time * * so that defendant should be charged with constructive notice. In support of that assertion plaintiff attempts to piece together two independent bits of evidence; the first, plaintiff’s testimony that at the time she fell two of the four floodlights were out; and the second, that part of the testimony of defendant’s witness, Mrs. Harris, in which she was asked:

“Q. Were there any differences in the lighting that was there that night and that was there any other night that you went there?
“A. No, I don’t think so.”

From this tenuous premise plaintiff argues that such evidence was “ * * * sufficient to allow the jury to conclude that the condition had existed for a matter of days. * * t- ”

With that conclusion we cannot agree. In the first place, the foregoing part of Mrs. Harris’ testimony is lifted out of context. The question and answer which immediately preceded it, for example, were:

“Q. Were there any of those lights out on this particular night?
“A. Not that I know of.”

Furthermore, the substance of Mrs. Harris’ testimony was that the lot was “well lighted” at the time plaintiff fell, and that the witness had no difficulty in seeing the ties as she walked to her car. Of even greater importance, however, is the fact that plaintiff’s own testimony conclusively rebuts any supposed inference that the lights had been out for days. On direct examination by her own counsel plaintiff stated:

“Q. The first night that you had left, not the night you had fallen, had you noticed whether or not any parking light was lit ?
“A. Yes, it was.
“Q. Now, on the night that you fell did you notice anything different about the lighting conditions?
“A. Yes, there were two lights out.” And to the same effect:
“Q. These lights that you spoke about in the parking lot, the night before, when you left the building and walked up this walkway, did you notice whether the lights were on or not at that time?
“A. Yes, they were on that night.”

In a material matter of this kind, a plaintiff is conclusively bound by his own testimony, Williams v. Kansas City Transit, Inc., Mo., 339 S.W.2d 792; Brooks v. Stewart, Mo., 335 S.W.2d 104, 81 A.L.R.2d 508; Taylor v. Vestal, Mo., 304 S.W.2d 820, And a plaintiff may not predicate a recovery upon a theory which is contrary to his own positive evidence, Tomlin v. Alford, Mo., 351 S.W.2d 705. In view of plaintiff’s unequivocal and reiterated testimony that all of the floodlights were burning on the night previous to her fall it is futile to now assert, as she does, that the jury could draw the inference that the lights had been out for a matter of days. The fact of the matter is that there was absolutely no evidence introduced to show how long the two floodlights had been out before plaintiff fell. It is a matter of common knowledge that electric light bulbs burn out from time to time and that it is virtually impossible to know in advance when such a failure will occur. For all that plaintiff’s evidence showed, the non-functioning floodlights may have burned out only a few minutes before plaintiff fell. In any event, plaintiff’s evidence was insufficient to show that the condition existed for a length of time sufficient to charge the defendant with constructive knowledge, and plaintiff therefore failed to make a submissible case on her first predicate of negligence. Robinson v. Great Atlantic & Pacific Tea Co., 347 Mo. 421, 147 S.W.2d 648; State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W.2d 99; Brophy v. Clisaris, supra.

Regarding Instruction No. 1, defendant maintains that plaintiff was aware that actual or constructive knowledge of the non-functioning lights was an essential element of her case because she did submit that issue in the instruction, as follows “ * * * and if you further find that the defendant knew or in the exercise of ordinary care should have known of the aforesaid condition, * * * ” the condition referred to being the two unlighted floodlights. From this defendant argues that the giving of the instruction was error because the foregoing portion lacked evidentiary support. Plaintiff’s response is that regardless of whether there was proof as to the time the lights had been out, the two predicates of negligence had been con-junctively submitted, and that where there is evidence to justify the submission of one of the conjunctively submitted predicates of liability no error is committed in giving the instruction even though the evidence may not have supported the other predicate. That is the rule. Beineke v. Terminal R. R. Ass’n of St. Louis, Mo., 340 S.W.2d 683; Wattels v. Marre, Mo., 303 S.W.2d 9, 66 A.L.R.2d 433; Adams v. Atchison, Topeka and Santa Fe Railway Co., Mo., 280 S.W.2d 84.

The other predicate on which plaintiff relies, as stated, is that the mere placing of the dividers on and about the parking lot, standing alone, was sufficient to establish defendant’s negligence. In support of her contention plaintiff cites McFarland v. Sears, Roebuck & Co., Mo.App., 91 S.W.2d 615. In that case, however, plaintiff testified that it was so dark that one could not see the ground, and that she was caused to stumble and fall over a wooden curbing, which she could not see, located in an approach from the parking lot to defendant’s store premises. In. short, it was the failure of the defendant to provide a reasonable amount of light to illuminate the approach, and the curbing, not the maintenance of the curbing alone, which the court held was sufficient to make a case for the jury. The factor of absence of light was also present in all but two of the other cases cited by plaintiff, Dean v. Safeway Stores, Inc., Mo., 300 S.W.2d 431; Cannon v. S. S. Kresge Co., 233 Mo.App. 173, 116 S.W.2d 559; Blake v. North East White Tower System, Inc., 258 App.Div. 1027, 17 N.Y.S.2d 91; Acme Markets v. Remschel, 181 Va. 171, 24 S.E.2d 430; Costello v. Wyss, Inc., 200 Pa.Super. 568, 190 A.2d 170; Great Atlantic & Pacific Tea Co. v. Lyle, 49 Tenn.App. 78, 351 S.W.2d 391. And in those two, Nary v. Parking Authority of Town of Dover, N.J., 58 N.J.Super. 222, 156 A.2d 42 and Crampton v. Kroger Co., 108 Ohio App. 476, 162 N.E.2d 553, the evidence was that the bumper and curbing over which the respective plaintiffs fell were painted the same color as the lane dividing lines and were therefore difficult to see.

Plaintiff maintains that she occupied the legal status of an invitee, a position with which defendant agrees. But the occupier of premises is not an insurer of the safety of an invitee. His duty, and the corresponding duty of the invitee, are succinctly stated in Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623, 628:

“ * * * Under the rule the defendant was only required to exercise ordinary care to prevent injury to plaintiff. The defendant, as the occupier of the premises in question, was not liable to plaintiff-invitee for injuries resulting from an open and obvious condition of the premises as well known to the plaintiff as to the defendant. Accordingly, if the plaintiff was aware of the condition, or it was such that she must have been conscious of it and of the consequences of disregarding it, she cannot recover. Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390, 393; Mullen v. Sensenbrenner Mercantile Co., Mo.Sup., 260 S.W. 982, 984, 33 A.L.R. 176; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723, 726; Harper v. First National Bank of Kansas City, Mo.Sup., 196 S.W.2d 265, 267; Schmoll v. National Shirt Shops of Missouri, 354 Mo. 1164, 193 S.W.2d 605, 608; Fletcher v. North Mehornay Furniture Co., 359 Mo. 607, 222 S.W.2d 789, 794. In the Schmoll case, supra, 193 S.W.2d 605, 608, the court said: ‘Defendant, who was not subject to liability for injuries resulting from dangers that were obvious, should not be obligated to anticipate that its patrons, in the exercise of ordinary care, would fail to appreciate dangers generally known to be inherent in conditions that were obvious.’ ”

With reasonably adequate illumination the presence of the dividers or ties was readily apparent to any one using the parking lot. The photographs introduced in evidence, taken on what appears to be an overcast day, show that the dark brown dividers were readily distinguishable from the light gray asphalt surface of the lot. The condition was open and obvious, more so, in our opinion, than that in Wilkins v. Allied Stores of Missouri, supra, where the court held that the evidence was insufficient to show negligence on the part of the defendant.

There is nothing unusual about the use of dividers, ties or bumpers on parking lots to designate and divide the area in which automobiles are to be parked in orderly rows. As was said in Brooks v. Sears, Roebuck & Co., 302 Mass. 184, 19 N.E.2d 39, 41: “ * * * It is a matter of common knowledge that similarly constructed curbs exist in parking spaces in this Commonwealth. They are incidental to the ordinary and common construction of such places and are structures the plaintiff should have expected to find in the parking space involved. Cowen v. Kirby, 180 Mass. 504, 506, 62 N.E. 968; Heaney v. Colonial Filling Stations, Inc., 262 Mass. 338, 341, 159 N.E. 916. They facilitate the orderly parking of motor vehicles and tend to prevent collisions. * * * ” Nor are such dividers inherently dangerous or unsafe obstructions. On that point it was stated in Downing v. Drybrough, Ct.App.Ky., 249 S.W.2d 711, 712, “The appellee insists that the division strip was not a dangerous or unsafe obstruction. We agree that it was not of itself dangerous or unsafe. It is common knowledge that many parking lots are so constructed and that people use them without injury or inconvenience. The troublesome question is, did this strip of concrete, 10 inches in height and 8 or 9 inches in width, become a dangerous or unsafe obstruction when considered in connection with the lighting conditions existing at the time of the accident? If the lot was not adequately lighted, we think the division strip might reasonably be said to constitute a dangerous obstruction amounting to a hazard to those using the lot. * * * ” And so, in the instant case, the dividers became unsafe or dangerous obstructions only when there was an absence of an adequate amount of illumination. It is therefore our conclusion that the mere placing of them on the parking lot was insufficient to show negligence on the part of defendant. Wilkins v. Allied Stores of Missouri, supra; McFarland v. Sears, Roebuck & Co., supra; Brooks v. Sears, Roebuck & Co., supra; Downing v. Drybrough, supra; Glennon v. Great Atlantic & Pacific Tea Co., 90 R.I. 113, 155 A.2d 330; Seal v. Safeway Stores, Inc., 48 N.M. 200, 147 P.2d 359.

In view of that conclusion it is unnecessary to consider other contentions of the defendant, not likely to arise on a retrial. Defendant insists that we should reverse the judgment and remand the case with directions to the trial court to enter judgment for defendant in accordance with its motion for a directed verdict at the close of all the evidence. But it is by no means certain that plaintiff will be unable to adduce evidence of the non-functioning of the lights for a length of time sufficient to charge defendant with constructive notice, under all of the circumstances, and “The furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had; * * East v. McMenamy, Mo., 266 S.W.2d 728, 732; Yarrington v. Lininger, Mo., 327 S.W.2d 104; Smith v. Arthur S. Baue Funeral Home, Mo., 370 S.W.2d 249.

Accordingly, the judgment should be reversed and the cause remanded for a new trial. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is reversed and the cause remanded for a new trial.

WOLFE, P. J., ANDERSON, J., and DOUGLAS W. GREENE, Special Judge, concur.