author: C. WARREN EATON, Special Commissioner.

text:
    Edmund BURDETTE, Appellant, v. William Roger THOMPSON, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.

      James F. Clay, Clay & Clay, Danville, for appellant.
    Robert M. Spragens, James L. Avritt, Lebanon, for appellee.
   C. WARREN EATON, Special Commissioner.

The appellee, William Roger Thompson, a 41-year-old farm worker with a fourth-grade education, was injured while employed by the appellant, Edmund Burdette. The injury occurred when his right hand was caught in the rollers of appellant’s corn picker, necessitating the amputation of four fingers. Upon a trial of his claim for damages a jury awarded him $17,000. The only two grounds presented on this appeal by appellant are (1) there is no liability, and (2) the verdict is excessive. Appellant’s contention that there is no liability must depend upon whether there was sufficient evidence to justify submitting the case to the jury.

On the day of the accident appellant was using a one-row corn picker pulled by a tractor. While another employe operated the tractor appellant stood on the picker to prevent the corn stalks and fodder from clogging the machine. After the picker separated the corn it was carried by moving parts and deposited in a wagon to the rear of the picker. Appellee, driving a tractor, would pick up the full wagon, leave an empty wagon in its place, and take the fully loaded wagon to the crib to be emptied. He would repeat the process by returning to the picker to pick up a full wagon and leave the empty one to be filled.

The work continued in this manner until 5:00 p. m. when appellant had to leave to open up another crib, at which point he directed the appellee to stand on the picker and perform the work that appellant had been performing. It was shortly after this that appellee, while engaged in keeping the machine clear of corn stalks and fodder, was injured when a corn stalk caught his sleeve and pulled his hand into the rollers whch ejected the stalks at the rear of the machine.

Appellee had done daywork from time to time for appellant for seven or eight years. The corn picker in question was 10 or 12 years old and had been purchased by appellant second-hand four years prior to the accident. Appellee had never had any experience with it, and had never operated any farm machinery except a tractor.

There was evidence that when the appel-lee was directed to mount the corn picker the only warnings given him by appellant were not to catch his pants in the chain drive located beneath the cross bar where he stood and to be careful. There was no evidence that the appellant pointed out the rollers or in any manner warned him of this specific danger. Appellee testified that he did not see the rollers at any time while working that day and did not know of their presence. From the pictures filed in evidence it is clear that the rollers were not so obvious that they would or could have been seen by appellee from the position he occupied while working on the corn picker. Indeed the appellant himself conceded that the rollers were “difficult to see unless you were looking for them.” Certainly it would not have been unreasonable for the jurors to find that they were concealed from the appellee’s view and that in fact he did not see them.

The jury was justified also in determining that appellee was employed in a dangerous place, that the machine was not properly operating, and that it was not suited to the work being performed. This is disclosed by following questions and the answers of the appellant:

Q. “Now, actually, the way that corn picker was designed it wasn’t supposed to have a stalk, or anything, come back in there?”
A. “If it did, it was supposed to go on out through the rollers.”
Q. “But nobody was supposed to be riding back there, is that correct ?”
A. “That is right.”
Q. “And the machine wasn’t operating the way it was designed to be operated that day, was it?”
A. “No, I guess it wasn’t.”
Q. “And Bill was trying to operate it too fast for its capacity?”
A. “The biggest trouble — it wasn’t made for the kind of corn that grows now.”
Q. “And you knew that at the time, didn’t you?”
A. “That is my opinion.”
Q. “You knew it wouldn’t do the job right.”
A. “I knew it was slow.”

The appellant also admitted in his testimony that he knew it was dangerous to ride on the machine in the manner in which the appellee was instructed to ride, and that there was a plate with safety rules attached to the machine warning, among other things, “Keep off implement unless seat or platform is provided.” Appellee was unable to read and had no knowledge of the contents of this warning. In fact, appellant admitted that he also was not aware of what was said on the warning plate.

The duties owed by an employer to his employe are set out in Monroe v. Standard Sanitary Mfg Co., 141 Ky. 549, 133 S.W.2d 214, wherein it is stated: “The law imposes upon every one the duty to use reasonable care in the conduct of his business to avoid injuring others. It likewise imposes upon him other duties, such as the duty to provide and maintain for his employes a reasonably safe place in which to work, which, of course, varies with the character and nature of the business; to provide and keep in proper condition tools and appliances reasonably well adapted and suited to the business for which they are to be used; and to instruct his employes in the dangers incident to their employment, and in the use of the tools and appliances with which they are required to work where the business is hazardous or dangerous * *

We have examined the record and are convinced that the lower court properly submitted the case to the jury on the issues of appellant’s negligence and appellee’s contributory negligence and assumption of risk. The evidence was sufficient to justify submitting to the jury the issues of whether appellant had furnished a reasonably safe place for the appellee to work, whether the implement in question was reasonably adapted and suited to its use, and whether the appellant had reasonably instructed the appellee in the use of the implement and sufficiently warned him of the dangers incident to the work.

Appellant relies on the principles stated in Capps v. Pence, Ky., 280 S.W.2d 168; McCormick Harvesting Mach. Co. v. Liter, 23 K.L.R. 2154, 66 S.W. 761; and Louisville & A. R. Co. v. Wilson, 30 K.L.R. 734, 99 S.W. 634, as barring recovery on the theory that when one engages in the service of another with knowledge of the dangers incident thereto, he, not the master, assumes the risk. Appellant contends the danger from the rollers in this instance was visible and obvious to the appellee, and that ap-pellee was bound under the circumstances to have known of the rollers and their danger to him; therefore, under the rulings in the cited cases he was barred from any recovery.

In the Capps case the plaintiff was injured when his arms were caught between a roller and belt of a tractor-drawn hay baler which he was operating by himself. The baler was not functioning properly. He got off the tractor to make an adjustment on the baler, but left the power takeoff in gear so that the belts and rollers of the baler continued to run. Had he disconnected the power he would not have been injured. Though he had not previously run the baler by himself, he had operated other types of balers and farm machinery for 12 years and on one or two days before had ridden on the tractor while the baler was being operated by his employer and had observed the latter several times perform the same adjustment he was seeking to make when injured. He did not remember whether in so doing the employer had disconnected the power. In upholding a directed verdict for the employer we said that an employer has no duty to give warning of a danger that is obvious, and that when there is a safe way to do the work but the employe voluntarily chooses an unsafe way he may not recover for an injury resulting from that choice. Significantly, we think, the case was distinguished from a line of decisions affirming verdicts of liability where injured laundry employes had been directed by their superiors to work in close contact with moving rollers. Cf. Ross-Paris Co. v. Brown, 121 Ky. 821, 90 S.W. 568.

In the McCormick Harvesting Mach. Co. case the plaintiff was injured when his hand was caught in the snapping rolls of a corn shredding machine into which he was feeding stalks of corn. He was fully aware of the way in which the machine operated and knew that a safety lever, which otherwise might have prevented the accident, had been tied back. The moving parts into which his hand was drawn were directly in front of and plainly visible to him as he worked. When he took the job at an increased rate of pay he assured the foreman that he could feed the machine. He had observed that particular operation and had received instructions on the ground from a representative of the manufacturer. Under these circumstances it was held that he, and not the employer, was responsible for the accident.

In the Louisville & Atlantic Railroad Company case a 40-year-old plaintiff’s fingers were cut off while he was operating a planing machine. According to the opinion, the evidence disclosed that “several times before he was injured he had worked about this machine, assisting in its operation, and, on one occasion, was the chief operator. It also shows that the knives could plainly be seen by any person using the machine.” A protective guard or fender originally attached to the machine had been detached and discarded. After recognizing that “the master is further exempted from liability in respect to dangers which are open, visible, and obvious, to the comprehension of the servant, considering his years, experience, and understanding,” and “ Whatever may be the moral obligation resting upon those who employ people in hazardous work to furnish them the safest possible means to protect them from injury, the law does not forbid a laborer from undertaking a hazardous employment with full knowledge of its dangers, if he wants to,’ ” this court nevertheless affirmed a verdict and judgment in favor of the injured employe, commenting as follows:

“It is true that the knives were in plain view, and the danger of coming in contact with them was an obvious one; but appellee was not an experienced operator, and did not know that using the machine without guards increased the hazard of his employment or the danger attending the operation of the machine. There is no evidence that he failed to exercise ordinary care for his own safety, and we do not conceive that holding that appellant on the facts presented was not entitled to a peremptory instruction is in conflict with any of the cases cited by counsel, and which have been heretofore mentioned. If this machine had never been equipped with safety appliances, or if such appliances were not in general and common use, or if appellee had been an experienced operator fully acquainted with the duties of his employment and the risks incident to it, then the law, as laid down in McCormick Harvesting Machine Co. v. Liter, and kindred cases, would deny appellee the right to recover.
“There is, of course, a marked distinction between cases where an employe of mature years, in the possession of his faculties, suffers injuries by failing to discover patent dangers that are obvious to the simplest understanding, as in. using a ladder that is too short for the work intended, * * * or when an employe who has had experience and full opportunity for examination is injured by coming in contact with exposed machinery that was in no wise defective, * * * and that class, of which the one before us is a fair illustration, where an operator of no practical experience is put to work with defective machinery.” (Emphasis added.) [99 S.W. 634, at 636.]

We feel that the appellant is in error in contending that the hazard confronted by the employe in this case was the same open, visible and apparent danger mentioned in the foregoing cases as placing upon the employe the sole responsibility for his own safety. There was evidence in this case that the appellee did not see the rollers and that they were not plainly visible or discernible by him in his operation of the machine. This fact is further borne out by the photographs, which indicate that the rollers were only visible to a person standing directly behind the machine and who might, in the ordinary course of working behind the machine, have seen them.

The distinguishing feature here is that the evidence justifies a belief that appellee did not know or appreciate the danger, and that it was not so obvious, or such a matter of common knowledge, that a court could say as a matter of law that he must have known it. It may be true that all farm machinery is dangerous, but some machines are more dangerous, and the particular hazards less obvious to the uninitiated, than in the case of others. Certainly we cannot hold that no matter what the machine, or what the particular hazard, any man who works on a farm implement is perforce guilty of failing to exercise ordinary care for his own safety. We feel that this was properly an issue for the jury to determine on the question of appellee’s contributory negligence, or his assumption of the risk, both of which were submitted to and determined by the jury.

On the appellant’s final contention, that the jury award was excessive and rendered under the influence of passion and prejudice, the novel argument is advanced that there should be some reasonable relation between the right of a farm laborer to recover for injuries and the amount an employe would receive for such injuries under the Workmen’s Compensation Act. No supporting authorities are cited and the court sees no basis for the argument advanced by the appellant. The $17,000 verdict consisted of medical expenses of over $3,000, $1,500 for lost earnings during the period of convalescence, and the remaining $12,450.61 for pain, suffering and permanent disability. It is pointed out in appel-lee’s brief that had this been a compensation case there would have been a recovery for the loss of earnings and disability of perhaps $5,000 together with the medical expenses of $3,000 and in addition, the insurer or employer would have been required to pay for the services of the employee’s attorney, all of which would have amounted to perhaps 50% or less of the actual award under the verdict. It should be noted that in a tort action of this character other matters of recovery are permitted such as pain and suffering which are not considered under the Workmen’s Compensation Law, so that the provisions for recovery under the latter should not be a measure for recovery in a tort action.

We have examined the award from the standpoint of the disability of the ap-pellee and find that he has been practically totally disabled from performing such duties as he has previously performed, has endured extreme pain and suffering, has incurred substantial medical bills and has lost a substantial period of work. We are of the opinion that the award was neither excessive nor rendered under the influence of passion and prejudice.

The judgment is affirmed.

All concur except OSBORNE, J., not sitting.

      . This case was tried before the doctrine of assumed risk, as distinct from eontrib-utory negligence, was abolished in Parker v. Redden, Ky., 421 S.W.2d 586 (1967).


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    C. Leslie DAWSON, Commissioner, Department of Economic Security, Appellant, v. Mary Nell DRIVER, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.

      Robert Matthews, Atty. Gen., Paul E. Tierney, Forest Smith, Dept, of Economic Security, Frankfort, for appellant.
    Robert C. Carter, Glasgow, for appellee.
   PALMORE, Judge.

This is an appeal by the Commissioner of Economic Security from a judgment of the circuit court overturning an order of the appeal board affirming a referee’s decision to the effect that the appellee, Mary Nell Driver, was not eligible to receive public assistance for the support of her three dependent children. KRS 205.200, 205.231.

KRS 205.200(2) authorizes and directs the Commissioner to prescribe by administrative regulation, in conformity with the Social Security Act and federal regulations promulgated thereunder, the conditions of eligibility for public assistance. By appropriate regulation the definition of “needy child” set forth in KRS 205.010(5) has been particularized to mean a child who is deprived of parental support by reason of the death, continued absence, or incapacity of a parent. In like manner the term “incapacity” has been limited as follows:

“If incapacity of the father is involved, the incapacity must prevent him from working in an occupation in which he previously engaged, and prevent him from working at another job accessible in the county or community where he normally resides, for which [sic] he is equipped to do * * *. If a job opportunity exists * * * it shall be considered accessible irrespective of its immediate availability. In other words scarcity of work opportunities or inability to find work are insufficient grounds for a determination of eligibility unless there is a causal relationship between the current unemployment and the alleged incapacitating condition.” Regulation PA-58, Department of Economic Security (eff. July 27, 1961).

The ground on which the referee and the appeal board denied the application for relief is that James Bethel Driver, father of the three children, is not incapacitated within the meaning of the quoted regulation. Fully mindful of KRS 205.234(3), which confines the circuit court’s review to a determination, from the record certified to it, of whether (a) there was sufficient probative evidence to support the board’s order, (b) the dispositive regulations are reasonable, and (c) the board acted arbitrarily, unlawfully, or in abuse of its discretion, the learned chancellor concluded that under the evidence in the record Driver was incapacitated as a matter of law.

As pointed out in Lee v. International Harvester Company, Ky., 373 S.W.2d 418, 420 (1963), there are some cases in which no evidence whatever is required in support of a negative finding against one who bears the burden of proof before a fact-finding body. For example, if no evi-idence has been offered in a claimant’s behalf, obviously a denial of the claim would need no defensive evidence to support it. The same is true whenever the claimant’s evidence is not sufficiently persuasive to require a favorable finding as a matter of law. Since the claimant had the burden of proof in the administrative proceeding, the question before the circuit court in this case was whether, under the whole state of the evidence in the record, it was unreasonable and thus an abuse of discretion for the board to deny the claim. Applied to the particular fact situation, is there room for a difference of opinion among reasonable minds as to whether Driver, the father, is “incapacitated” within the meaning of the term as it has been defined by the regulation?

At the time of the hearing in April of 1965 Mr. Driver was 42 years old. He has a fourth-grade education. The only work he has ever done for a living has been as a common laborer. Prior to 1959 he had worked as a sawmill laborer, farm laborer, and hod carrier. In 1959 it was discovered that he had pulmonary tuberculosis. This led to surgery in 1961, by which one of the lobes of his right lung was removed. Shortly after the operation he developed a muscular twitching or spasm in the right scapular area. It bothers him all the time and he takes various medicines to palliate it. He worked for a day or two in the winter of 1963-1964 packing tobacco at a warehouse, but found it was too strenuous and could not stand inhaling the tobacco dust. He has applied for work at a cabinet-making plant but was told there was no opening at the time. One of the reports filed by a social worker for the Department indicates, however, that on the latter occasion he was advised that employment might be available later. There was filed in the record a “To whom it may concern” statement from the county judge of Barren County dated March 26, 1965, to the effect that from “my observation James Bethel Driver is a man who wants to work and make a living for his family. It is my opinion that he is unable to do so because of the surgery he has had.” Another such statement by a local physician, dated January 14, 1964, is as follows:

“Bethel Driver apparently has arrested tuberculosis and has a nerve lesion, causing a twitching and pain, which followed lung surgery. These two disorders place a stigma upon him, as far as obtaining employment. It is felt that his family should not suffer until rehabilitation procedures can be worked out for him.”

Still another local physician signed a similar statement on April 7, 1965, that “Bethel Driver has a disabling nerve condition of right chest following chest surgery. Doubt he is able to do manual labor.”

On October 3, 1963, Dr. William F. Meacham, a neurological surgeon at Vanderbilt University, had examined Driver and reported in part as follows:

“There is no organic neurological basis for this type of intermittent muscular contraction and [sic] is a manifestation of a functional disorder. This man can and should be rehabilitated. * * * In due course with appropriate readjustment and rehabilitation of this man, I think he could be cured and I recommend that some employment be considered for him within the range of his current physical ability. There are no neurological deficits existing at the moment that would preclude his doing anything other than very strenuous manual, physical labor.”

On April 14, 1964, Dr. Paul A. Pichardo, director of the state TB hospital at Glasgow, re-examined Mr. Driver and entered a report concluding: “The patient is disabled for any form of gainful employment due to painful clonic contraction of the right Latissimus Dorsi, residual of previous resectional surgery on the right.”

Faced with these apparently contradictory medical reports, the appeal board on April 28, 1964, held the Driver family eligible for public assistance subject to the qualification that a re-evaluation be made within six months.

Dr. Meacham examined Mr. Driver again in September of 1964 and found “no appreciable change.” He elaborated as follows :

“I have re-examined him and find absolutely the identical situation which is, in my opinion, mostly a psychosomatic type of disturbance and not an organic neurological difficulty.
“This man is poorly motivated. He is doing such work about the house as mowing the yard, and raising a garden, but steadfastly states that he could not do any other form of work. He also indicates that the state is the cause of his condition and that the state of Kentucky owes him and his family a living and that he feels he should be either supported or placed in some sedentary type work that he could do.
“The muscular contractions are not, in themselves, sufficiently severe to interfere with carrying out any form of sedentary type occupation and the fact that he mows his yard and raises a garden is indicative of the fact that he can, indeed, do mild muscular type activities without risk.
“I do not feel that there is any neurological treatment for him except the use of sedatives and would strongly be opposed to nerve root sections in an attempt to stop the muscular contractions which are, in themselves, not serious.”

Following a “routine check-up” on November 17, 1964, Dr. Pichardo filed a report stating that the patient was “asymptomatic, except for persistence of muscular twitching of right latissimus dorsi * * *. Mr. Driver has completed his treatment for pulmonary tuberculosis. His condition has been considered as minimal, inactive for several years. The intermittent muscular contractions of the posterior scapular groups are of the psychosomatic type and not an organic neurological difficulty * *. The patient would benefit from rehabilitation training. He should continue with Phenobarbital indefinitely and periodic check-ups in our OPD.”

The latter report quotes Dr. Meacham’s last report at length, and in a letter to Mrs. Driver’s counsel dated March 8, 1965, Dr. Pichardo said, “I am not a Neurologist and I accepted Dr. Meacham’s report as the true findings of his examination of this tient. Therefore, in view of Dr. Meacham’s report and the fact that Mr. Driver’s pulmonary tuberculosis has been considered minimal inactive since 1962, I changed my recommendation regarding the patient’s employment status.”

We have set forth rather fully the salient information in the record. Counsel for Mrs. Driver argued in the circuit court (but did .not submit a brief to this court) that ■“the ability of a 42 year old manual laborer to engage in ‘sedentary type occupation’ and/or ‘mild muscular type activities’ * * is not the ability to engage in a substantially gainful employment.” Clearly the chancellor was of the same persuasion, concluding “that a forty-two year old man with only a fourth grade education and by occupation a common laborer, and by reason of either his physical or mental condition is only able to do work of a sedentary type, is, within the meaning of the law * * * fas represented by the definition of ‘incapacity’ hereinbefore quoted] * * * incapacitated.”

In the field of workmen’s compensation this court has accepted (with some degree of misgiving) the proposition “that if a workman is totally disabled from the performance of work in his former occupational classification and his capacity to perform other kinds of work is impaired,” he is totally disabled. Cf. E. & L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240, 241, 84 A.L.R.2d 1102 (1960); Leep v. Kentucky State Police, Ky., 366 S.W.2d 729, 730 (1963). However, in the type of case now before us the regulatory definition forbids such a conclusion. “Incapacity” means that which in fact renders the man unemployable in the community of his residence.

After all the evidence has been considered there still remains an area of judgment in which the administrative department, with its superior experience and expertise, must be allowed broad latitude as against the power of the courts to interfere. Perhaps what is really needed in the proliferate field of governmental administration is an ombudsman, a role for which the courts are not equipped or staffed. But even if we should assume that avuncular province in the case now before us, it would be difficult to say that the decision of the administrative officials was arbitrary. The record demonstrates a great deal of constant effort and careful consideration devoted to the case over a period of several years by various social workers, doctors, supervisory personnel, and hearing examiners. At least upon its face, the record would appear to refute any inference of arbitrariness in approach or attitude on the part of the departmental employes whose services have been engaged in the case.

The referee and the appeal board were not satisfied that Mr. Driver was in fact unemployable at the time his case was heard. It should be borne in mind that he had the burden of proving the inaccessibility of work in the community. The evidence in that particular respect was not enlightening. On the face of the record we are of the opinion that the administrative decision was not arbitrary or in abuse of its discretion, and that the judgment of the circuit court was in error. Events which have transpired since the time of the hearing may, of course, very well call for a different result upon a new application.

The judgment is reversed with directions that the order of the appeal board be confirmed.

All concur.

OSBORNE, J., not sitting.


author: CLAY, Commissioner.

text:
    William Frederick THIELMEIER, Jr., Appellant, v. Patricia Vetter THIELMEIER (Now Holliger) et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.

      S. Russell Smith, Kirby A. Scott, Louisville, for appellant.
    Edwin A. Schroering, Jr., Louisville, for appellees.
   CLAY, Commissioner.

Appellant and the principal appellee were divorced in 1961, and he was ordered to pay $330 a month for the maintenance of his two infant daughters. In 1964 appellant sought to have these payments substantially reduced on the ground that his financial condition had radically changed. Almost two years after this motion was made the Chancellor reduced the payments by approximately $25 a month and allowed appellee an attorney’s fee of $650. The appeal is from this order.

Appellant’s only source of income was a one-half partnership interest in a dairy business in Jefferson County, and at the time of the divorce it was substantial. (Appellee was allowed lump sum alimony of $31,500.) In 1963 the business had experienced a loss of customers due to urban renewal development. Appellant and his partner purchased another dairy and borrowed $40,000 to reorganize their business. To meet the new financial obligation the partners voluntarily reduced their monthly withdrawals from the business. Appellant contends he suffered a 61 percent reduction in disposable income and had reduced his own personal living expenses by 42 percent. It was because of this situation he requested a substantial reduction in the maintenance payments for his children.

The Chancellor found the immediate cause of appellant’s sudden loss of income was “self-inflicted”. He apparently took the view that while the voluntary reduction of withdrawals from the business may have constituted good business judgment, appellant did not give sufficient consideration to his obligations to his children. There was substantial evidence that appellant’s business was prospering after the purchase of the new dairy, and the future prospects were bright. This would support a finding that the self-imposed reduction of income was of such a temporary nature that it did not justify a substantial reduction in maintenance payments.

Admittedly this is a matter that addressed itself to the sound discretion of the Chancellor. A very difficult question was presented which merited, and was given, very careful consideration. In the light of all the facts shown by this record, we cannot conclude there was an abuse of discretion.

We find no merit in appellant’s contention that the allowance for maintenance was in excess of that reasonably required for the support and education of the children.

It is also contended by appellant that no award of a fee to appellee’s attorney was justified in view of the fact that under KRS 403.090 the Fiscal Court of Jefferson County had appointed a “friend of the court” who could have performed the same services without charge to the litigants.

The question of whether a court may properly allow an attorney’s fee incurred by the wife in a custody or maintenance proceeding, initiated or developed after the divorce, has not been finally settled in Kentucky. The apparent inconsistency of some of our cases was pointed out in Wilkerson v. Wilkerson, Ky., 335 S.W.2d 552. That was a custody proceeding initiated by the mother, and we denied the allowance of an attorney’s fee on the ground that she appeared to be “in as good financial condition as the father”.

In two old divorce cases, where an attorney’s fee allowed the wife in the circuit court was not questioned, it was held no such allowance could be made in this court for services here when the only issue on appeal was the right of custody. The reasoning of those opinions was that after a divorce the parties are “independent litigants” in a custody controversy, the same as in any other controversy. Thomas v. Thomas, 70 Ky. 665; Wills v. Wills, 168 Ky. 35, 181 S.W. 619.

Two later opinions took a different approach when the controversy concerned maintenance payments rather than custody. In Ginter v. Ginter, 305 Ky. 513, 204 S.W.2d 596, a mother moved to increase the maintenance allowance ordered in a prior divorce action. Without reference to the prior cases or other authorities, it was held that since the proceeding was brought for the benefit of the infant child, the employment of an attorney by the mother was a “legitimate and necessary expense”. In Wyatt v. Webb, Ky., 317 S.W.2d 883, by counterclaim (in a custody proceeding) the mother sought delinquent maintenance payments. It was adjudged the mother was entitled to a reasonable fee for her attorney’s services in recovering the delinquent payments since this service was for the benefit of the infant child.

We believe the latter cases are sound and controlling where the controversy involves a maintenance allowance or the collection of delinquent payments. Such proceedings are solely for the benefit of the child, and attorneys’ fees are necessary expenses in securing adequate income for the child’s maintenance (at least when the father is financially able to assume this additional expense).

It is appellant’s contention, however, that even if such attorney fee allowance is proper under certain circumstances, it was not proper in this case. It is insisted that the “friend of the court”, authorized and acting under KRS 403.090, was available and should have performed at no charge the services for which the fee allowance was made. We do not find in this statute any authority for the “friend of the court” to represent a child or any other party in an independent proceeding to change a maintenance allowance. His principal duty is to aid the court in divorce actions where the rights of children are involved. He does have authority to bring before the court persons who are delinquent in making payments for support, and it is contended by appellant that the allowance to the attorney in this case was substantially based on his efforts to obtain a contempt ruling against appellant for nonpayment.

While appellee could have called upon the ■“friend of the court” to assist her in one phase of this proceeding, we know of no law or principle which would require her to do so. It is only reasonable that an attorney representing the mother (actually the child) in resisting an application to reduce support payments should be called upon to perform the related service of collecting those past due. We do not find the fee allowance here to be beyond the scope of the Chancellor’s discretion.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY- and PALMORE, JJ., concur.

OSBORNE and STEINFELD, JJ., not sitting.


text:
    Sterling HOSKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.
    Rehearing Denied Dec. 8, 1967.
    Sterling Hoskins, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAY, Commissioner.

This is an appeal from a judgment denying, without a hearing, appellant’s motion for relief under RCr 11.42. Appellant was sentenced to life imprisonment upon conviction of being an accessory before the fact to a murder. At the original trial and on appeal appellant was represented by competent counsel employed by him. His conviction was affirmed in Hoskins v. Commonwealth, Ky., 374 S.W.2d 839.

In this proceeding it is questionable that any of the grounds for setting aside the original judgment of conviction were sufficient even if proven upon a hearing. Some were raised on the original appeal. Some do not raise a question of the violation of any constitutional right. All pertain to matters well known to appellant and presumably his counsel at the time of trial. There is no allegation that appellant did not have competent, adequate and effective counsel.

It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should have been raised in the original proceedings when the competency, adequacy and effectiveness of his own counsel are not in good faith questioned, and where the grounds of his RCr 11.42 motion are matters which must have been known to him at the time of trial. Those matters should be presented then and not in a postconviction proceeding. From the entire record it is evident appellant had a fair trial, and none of the grounds stated in his 11.42 motion are sufficient to justify a collateral attack upon the judgment of conviction. Therefore, it was not error for the trial court to deny this motion without a hearing.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    Emma Jean PACE (Formerly Emma Jean Thomas), Petitioner, v. Honorable J. M. WOLFINBARGER, Judge, Estill Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.
    Benjamin Mazin, Lawrence S. Grauman, Louisville, for appellant.
    J. M. Wolfinbarger, Irvine, pro se.
   DAVIS, Commissioner.

Emma Jean Pace has invoked the original jurisdiction of the court pursuant to Kentucky Constitution § 110, seeking an order of prohibition against Honorable J. M. Wolfinbarger, presiding judge of the Estill Circuit Court. The controversy arises by virtue of certain proceedings held by the respondent on a child custody motion. A resume of the factual background is required before stating the questions involved.

The petitioner, Emma Jean Pace, was formerly married to James Thomas from whom she was divorced by a judgment granted to her in the Estill Circuit Court on March 20, 1957. By the terms of that judgment, Emma Jean was awarded custody of Bobby Gene Thomas until further orders of the court. It appears from the scant record before us that Emma Jean found it necessary to place Bobby Gene in the home of Mrs. Sarah Jones Barnes in Estill County, but no order granting the custody of the child to Mrs. Barnes was entered. Mrs. Barnes is a great-aunt of Bobby Gene.

Emma Jean married Clyde Powell in 1958, and that marriage was terminated by the death of Powell. Emma Jean then married her present husband, Shelby Pace. It appears that she and Pace have been married about seven years and lived in Baltimore, Maryland, from 1961 to July 4, 1965, when they removed to Louisville where they now reside.

It appears that Bobby Gene was left in the physical custody of Mrs. Barnes even after Emma Jean and her husband returned to Kentucky, although Emma Jean visited with her son about twice a month and spent weekends with him. According to the allegations of the petition before us, Bobby Gene visited his mother and her husband in their home in Jefferson County during the summer of 1967, spent about three weeks with them, and “expressed a fervent desire to live with his mother and her husband at their home in Jefferson County, Kentucky, and to attend school in Jefferson County, Kentucky, and pursuant to the request of Bobby Gene she and her husband enrolled him in a very fine school * * The petition for prohibition alleges affirmatively that Emma Jean and her husband are ready, willing, and able to furnish a suitable home for Bobby Gene, who is now twelve years of age.

On August 29, 1967, Emma Jean received through the mail a notice of a motion for change of the custody order. The motion was filed in behalf of James Thomas, the boy’s father, and the notice recited that the motion would be brought on for hearing in the Estill Circuit Court on September 1, 1967.

Emma Jean appeared in the Estill Circuit Court on September 1, 1967, in company of Bobby Gene, her husband, and her attorney. The attorney for Emma Jean objected to any hearing on the motion upon the ground that insufficient time had been given to enable proper preparation. The respondent-judge denied a continuance to Emma Jean, heard statements from the attorneys for both sides, and proceeded to enter an order changing the custody of Bobby Gene from Emma Jean to Sarah Jones Barnes. It is alleged in the petition before us that the respondent refused to permit introduction of evidence and declined to conduct a requested interview in chambers with Bobby Gene.

The present petition seeks an order against Judge Wolfinbarger “ * * * prohibiting and restraining the respondent * * * from enforcing the Order entered September 1, 1967, taking the custody of Bobby Gene Thomas from the petitioner and giving the custody of said infant to Sarah Jones Barnes, and [prays] that this Court adjudge that the aforesaid Order entered by the respondent is void and that the respondent be prohibited from presiding at any future hearing that might be had in the Estill Circuit Court with reference to changing the custody of Bobby Gene Thomas, now vested in the petitioner under the Judgment and Order of March 20, 1957.”

In essence, the petitioner asserts that she was denied due process and that the court proceeded to divest her of the custody of her son without any hearing in contravention of the fundamental rules of judicial procedure. It should be noted that the respondent-judge recited in the order of September 1, 1967, a finding of facts upon which he premised his legal conclusion that the custody of Bobby Gene should be awarded to Mrs. Barnes. In his response the judge alleges that he based his factual finding upon statements made to him by ■counsel for both of the litigants, and that he did not deem it necessary to hear evidence in the circumstances.

It is fundamental that this court will not exercise its constitutional power to issue orders of prohibition unless it appears (1) that inferior court is threatening to proceed or is proceeding in a matter in which it has no jurisdiction and that there is no remedy through an application to intermediate court, or (2) that although proceeding within its jurisdiction, it is exercising or about to exercise it erroneously and that there exists no adequate remedy by appeal, or otherwise, and that great injustice or irreparable injury would result to applicant if it should do so. Childers v. Stephenson, Ky., 320 S.W.2d 797; Wright v. Ropke, Ky., 393 S.W.2d 796; Barker v. Breslin, Ky., 329 S.W.2d 578; Bender v. Eaton, Ky., 343 S.W.2d 799. In the case at bar, appeal from the order of September 1, 1967, was readily available to the petitioner. It is unquestionable that the Estill Circuit Court had jurisdiction of the subject matter and the parties involved. Whether the notice of motion afforded proper time to the petitioner within purview of CR 6.04 and 6.05, we need not here determine; challenges to the validity of the order on that basis would have been available upon due appeal. Custody orders are subject to review by the circuit court in appropriate circumstances. KRS 403.070. There was no motion that the respondent should vacate the bench as permitted by KRS 23.230(1). We regard as premature the present effort to “swear off the bench” a judge before whom no motion is pending. In light of all these circumstances, we conclude that the present proceeding is not one warranting the extraordinary remedy of prohibition.

It is ordered that the relief sought be, and it is, hereby denied.

All concur.


author: CULLEN, Commissioner.

text:
    Daniel HARMON, Jr., etc., Appellant, v. Richard J. RUST, M.D., Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.

      Howell W. Vincent, R. Barry Wehrman, Stuard Wegner, Covington, for appellant.
    John J. O’Hara, Covington, for appellee.
   CULLEN, Commissioner.

In this suit against appellee doctor for damages for alleged malpractice the trial court directed a verdict for the defendant at the close of the plaintiff’s evidence. The plaintiff has appealed, contending that his evidence was enough to create a jury issue.

The alleged malpractice was in the treatment of a severe burned condition of the appellant’s right leg, which involved transplanting some skin from the left leg. Both legs became infected and for a long period they did not heal.

Appellant introduced no expert testimony that the appellee in any respect failed to meet the applicable standards of care. In fact, the only expert witness he employed testified that the appellee in every respect conformed to the applicable standards of knowledge, skill, diligence and care. The rule in malpractice cases is that negligence must be established by medical or expert testimony unless the negligence and injurious results are so apparent that laymen with a general knowledge would have no difficulty in recognizing it. Johnson v. Vaughn, Ky., 370 S.W.2d 591. We do not believe laymen have sufficient general knowledge to “recognize” that infection and slow healing, in treating severe burns and making transplants, are the results of negligence.

Appellant suggests that an inference of negligence can be drawn from the fact that the left leg as well as the right leg became infected. However, the rule in this and other jurisdictions is that the presence of infection following an operation or in an area under treatment is not prima facie evidence of negligence (i. e., does not warrant an inference of negligence). See Stacy v. Williams, 253 Ky. 353, 69 S.W.2d 697; Annotation 82 A.L.R.2d 1298.

The judgment is affirmed.

All concur except OSBORNE, J., who did not sit.


text:
    William Travis TIREY, Appellant, v. Thelma C. TIREY, Administratrix, et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.

      Earle M. Nichols, Nichols & Nichols, Madisonville, for appellant.
    Carroll Morrow, Moore, Morrow & Fry-mire, Madisonville, for appellees.
   DAVIS, Commissioner.

This litigation arises out of a one-car automobile accident which occurred on a rainy afternoon in July 1964, near the community of Richland in Hopkins County. Appellant Tirey was driving the automobile and was accompanied by his father-in-law, John B. Cox, and Ruby Jewell Chappell who was serving as a practical nurse for Mr. Cox. Mr. Cox and Mrs. Chappell were injured when Tirey’s car skidded off Highway 70 and turned over in a ditch. Suit was instituted against appellant Tirey by Mrs. Chappell and by the administratrix of the estate of Mr. Cox (who died from causes unrelated to the accident). Judgment was rendered upon the jury’s verdict in favor of Mrs. Chappell for $3,180.00 and for the estate of Mr. Cox for $1,262.85.

Appellant contends (1) that he was entitled to a directed verdict, and (2) if not, reversible errors were committed in giving and refusing to give certain instructions.

Tirey was traveling east on Highway 70, which is a blacktop road with which he was quite familiar. A gravel side road intersects Highway 70 at or near the site of the accident. Tirey presented evidence to support the view that oil had been tracked onto Highway 70 from the gravel road so as to create an abnormally slick condition of which he was unaware. There was evidence that the unusually slick and oily condition had persisted for two or three weeks prior to the accident, and Tirey explained that he had been out of the state during that time and had not learned of the condition. There was other evidence suggesting the presence of the oil on the road for a much longer period. Tirey stated that he had driven along Highway 70 on the day of the accident for about five or six miles in the rain and without incident. He said that without any activity on his part, such as applying the brakes or turning the steering wheel, the car went into a skid when it came upon the unusually oily portion of the road. Tirey said that he could not discern the presence of the oil on the highway as he approached it and explained that the rain and black oil on the blacktop road combined to present a hazardous condition not readily detectable by one driving upon the highway. Mrs. Chap-pell, seated in the back seat of the automobile, testified that she did not observe any activity on Tirey’s part to which she could attribute the accident.

As respects the contention that Ti-rey was entitled to a directed verdict, we conclude that the rationale of Vernon v. Gentry, Ky., 334 S.W.2d 266, 79 A.L.R.2d 1, furnishes basis for a jury issue in this case. Admittedly, Tirey’s car ran off the road while he was in charge of it, and the alleged injuries resulted from that incident. Under ordinary circumstances such an accident should not have occurred, absent negligence of the driver. It was for Tirey to satisfactorily explain the occurrence. The jury was not required to accept the explanation he offered. Cf. Jones v. Carr, Ky., 382 S.W.2d 853.

Appellant contends that the instructions given by the court did not adequately present appellant’s theory of defense, and with this we agree. The first instruction given contained the following language in part: “It was his further duty to keep his vehicle under reasonable control, to keep a lookout and not to operate his vehicle at a greater speed than was reasonable and proper, considering the condition and use of the highway at said time and place.” It is apparent that the quoted portion of the instruction placed upon Tirey the absolute duty of comporting his driving to the abnormally slick road (at least abnormally slick as claimed by Tirey and his witnesses) without reference to whether Tirey knew, or, in the exercise of ordinary care, could have known of that condition.

We believe the issues in this litigation may be fairly submitted by utilizing the following modification of the quoted portion of the first instruction: “It was his further duty to keep his vehicle under reasonable control, to keep a lookout and not to operate his vehicle at a greater speed than was reasonable and proper, considering the condition and use of the highway at said time and place, insofar as the condition of the highway was known to him, or should have been known to him in the exercise of reasonable care.”

The appellant asserts that he was entitled to an instruction on sudden emergency and unavoidable accident. We believe that the entire theory of the defendant-appellant will be adequately presented to the jury by the instruction just quoted. Farrington Motors, Inc. v. Fidelity & Cas. Co. of N. Y., Ky., 303 S.W.2d 319. No instruction on sudden emergency or unavoidable accident is needed.

The appellant complains that some of the instructions given failed to state that the jury should believe that the defendant “negligently failed” to perform one or more of his duties, and others omitted to say that the jury should “believe from the evidence” the propositions set out in the instructions. It seems to us that it would be redundant to insert the words “negligently failed” as a prerequisite to liability for the failure to observe one or more of the duties prescribed by an instruction. In Atlantic Greyhound Corporation v. Franklin, 301 Ky. 867, 192 S.W.2d 753, 756, the trial court was directed to insert the word “negligently” in a skidding case. That decision was prior to Jones v. Carr, Ky., 382 S.W.2d 853, and the reason advanced in Atlantic Greyhound Corporation v. Franklin, supra, for use of “negligently” no longer obtains. It is necessary that the jury formulate its verdict from the evidence and appropriate language so advising the jury should always be used. It is our view that the instructions as given complied with that rule when viewed in series.

Appellant complains that the trial court refused to give instructions on contributory negligence of the passengers in his car. We think there is no merit in this complaint, because the evidence is devoid of any suggestion of any act on the part of either of the passengers which could be considered an act of contributory negligence. Neither of them had undertaken to exercise any control of the operation of the car, and there is nothing in the record to indicate that either of them could have done anything to cause or prevent the accident.

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

WILLIAMS, C. J., and EDWARD P. HILL, MILLIKEN, MONTGOMERY, PALMORE and STEINFELD, JJ., concur.

OSBORNE, J., not sitting.


author: EDWARD P. HILL, Judge.

text:
    Elizabeth G. SOTAK, Appellant, v. Michael Joseph SOTAK, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.
    Wheeler B. Boone, Lexington, for appellant.
    Harry B. Miller, Jr., Miller, Griffin & Marks, Lexington, James F. Clay, Clay & Clay, Danville, for appellee.
   EDWARD P. HILL, Judge.

By this appeal, Elizabeth G. Sotak contends (1) the chancellor was clearly erroneous in refusing to restore certain property she claims to have acquired by gift or inheritance from relatives, and (2) that the judgment appealed from is erroneous in that it divested her of property “conveyed” to or placed in her name by the husband for a valuable consideration. Appellant has moved this court to dismiss the appellee’s appeal or cross-appeal for failure to comply with RCA 1.070 or 1.080.

First to the motion to dismiss appellee’s attempted appeal, be it a direct or cross-appeal. Inasmuch as the only “question presented” by appellee relates to the amount of attorney fee adjudged against him, and in view of our conclusion that the amount of such fee is not excessive, we deem it unnecessary to rule on appellant’s motion to dismiss the appeal.

It is shown in this divorce action, instituted by the wife, appellant herein, that the parties were married in April 1939. At the time of the commencement of the action she was sixty years of age, and he was fifty-five. Two children were born to this marriage (a married daughter, who is the older, and a son sixteen years of age). The marriage was solemnized in New York state, where a large part of their married life was spent. Elizabeth was a dutiful homemaker. Michael started from the “bottom” with Canada Dry Corporation. At the time of the trial of this case, he occupied a prominent position as one of the vice-presidents of the company with annual salary, including bonuses, of approximately $32,000.

At the time of their marriage, appellant possessed money and personalty of about $1,000, while appellee owned an automobile and practically nothing more. Appellant contends she was virtually given $3,900 by her aunt and mother and in addition inherited $4,650 in cash and securities. She claims from her personal estate thus acquired and from accumulation she had in savings accounts $14,847.27 at the time of trial.

Several years prior to moving to Kentucky, the parties hereto consulted an “estate planner,” and pursuant to his suggestions they made certain transfers of their money and property. Appellant contends those transfers were and are irrevocable and that the chancellor was powerless to disturb them.

During their marriage appellee was liberal with his allowance to appellant. For some time prior to their estrangement he allowed her $1,000 monthly for household expenses and to use as she saw fit. She was frugal with this allowance, at times depositing part of it in either her savings account or in their joint savings account.

The judgment in addition to granting appellant an absolute divorce and custody of the son adjudged her the sole owner of their home at 340 Andover Drive, Lexington, Kentucky, purchased for $42,580. The house was impressed with a mortgage on which $13,500 was still due. The chancellor found the market value of this home to be $41,950.80, making appellant’s equity worth $28,450.80.

During the period the parties resided in New York, they owned a town house and a summer home, both of which were sold at substantial profit. Appellee contends he personally performed a large remodeling job on the summer home, resulting in a profit on it of $12,000.

The judgment appealed from divided the savings accounts equally between the parties and required appellant to transfer to appellee half of the total savings.

Appellee was adjudged life insurance policies carried upon his own life having values totaling $13,296.68. He also was adjudged “photo” equipment worth $3,000, a Buick car valued at $2,500, and tools worth $500.

Left undisputed in appellant’s name was stock in AT&T worth $10,410 and in Union Carbide worth $1,010. She was also adjudged jewels and furs valued at $5,374 and household goods at $4,500.

Appellee was adjudged the owner of stock in Canada Dry Corporation valued at $17,-475.00 and debenture bonds of a value of $1,800.

In addition to the allowance of a lump sum alimony in the form of real estate equity and other property above referred to, the chancellor allowed her periodic alimony of $500 per month and $250 per month for the benefit of the son. Cf. Hall v. Hall, Ky., 380 S.W.2d 231 (1964).

It is apparent from the thorough and painstaking opinion and judgment of the chancellor that a fair and equitable division has been made of the property of the parties. The chancellor has untangled a backlash created by the parties over a period of at least twenty-six years. Certainly this court cannot say the judgment is clearly or at all erroneous.

The judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    WEST FORK CLARKS RIVER WATERSHED CONSERVANCY DISTRICT, Appellant, v. Nona Beach RANSBOTTOM et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.
    Wm. Donald Overbey, Overbey & Over-bey, Murray, for appellant.
    John A. Gregory, Jr., Hughes & Gregory, Murray, for appellees.
   STEINFELD, Judge.

Nona B. Ransbottom with her husband, James Ransbottom, owns a farm in Callo-way County consisting of about 86 acres. It is located about 15 miles from Murray, Kentucky. The West Fork Clarks River Watershed Conservancy District sued to condemn a permanent easement over 16.5 acres of bottom land. KRS 262.745. The taking left about 4 acres of the remaining land without access. The district was formed under the provisions of Chapter 262 of the Kentucky statutes. From a judgment awarding the owners $4,500.00 the district appeals. We reverse.

The petition alleged that the action was filed in the circuit court. KRS 262.745, 104.170, 94.680 and 94.720. The court appointed three commissioners. The record shows that they “were duly sworn to faithfully and impartially discharge their duties under the provisions of KRS 262.700, 262.745, 104.170, 94.680, 94.720.” These commissioners filed a report awarding the owners $2,500.00 but furnished no information as to the basis of that award. The district filed no exceptions but voluntarily paid into the court the amount of the award. The owners moved that the commissioners be required to reappraise the property and make a detailed finding of damages. The district then joined in that motion. It was sustained and the commissioners made a second report in which they fixed “the sum of $2,750.00 as the value of the use and occupation and ownership of the land to be taken, * * * $250.00 as the incidental damages resulting to the adjacent lands * * but they deducted $500.00 by reason of advantages and benefits from the project. The second award was the same as the first $2,500.00. Again the district filed no exceptions but the owners excepted to the report.

When the case came on for trial the district moved for a continuance on the claim that the second report was improper but this motion was denied. A pretrial conference was held and pretrial order was entered. CR 16.

Since the condemnors had filed no exceptions to the commissioners’ report the burden of proof was on the owners. KRS 94.710.

Counsel for the owners, in his opening remarks to the jury, among other things said:

“Now, pursuant to these proceedings as a part of the taking, there is an appraisal made by persons appointed by the court.
⅝ * * * * ⅜
Appraisers are appointed by the Court. They go to the property. They appraise it. They submit their appraisal. Mrs. Ransbottom and her husband looked it over, if they do not agree that this is what they think is a fair appraisal of their property, they object to it.
This means that they do not accept the amount that is awarded by the commissioners that have been appointed. This is what happened in this case.
******
The amount that we have excepted to was twenty-five hundred dollars ($2,500.-00).”

The attorney for the district objected and moved that the swearing of the jury be set aside and a mistrial declared. The motion was overruled. No motion was made that the jury be admonished not to consider the statement.

Contending among other things that the court was in error in not discharging the jury because counsel for the owners stated in his preliminary remarks the amount of the award made by the commissioners, the district insisted that a new trial should be granted. That is one of the principal points on which it relies in this court. It cites Com., Dept. of Highways v. Swift, Ky., 375 S.W.2d 691 (1964). In Swift and the case before us, the lawyer for the owner in the opening remarks, told the jury the amount of the commissioners’ award. In both cases the condemnors’ counsel objected and moved for a mistrial but the motion was overruled. In Ransbottom no admonition was requested and none was given. In Swift the jury was admonished that it should not consider the remarks. In both cases the verdicts of the jury were larger than the amount which the commissioners awarded. In departing from some earlier rulings of this court we said in Swift:

“This statement appears in Orgel in his treatise on Valuation Under Eminent Domain, 2nd ed., Vol. 1, sec. 153, p. 644, footnote 41: ‘In the absence of statute, other courts have held that it is not proper to permit the jury to be informed of the amount of the award made by the commissioners.’
“We believe the reference to the commissioners’ report in the case at bar was stated to the jurors with a questionable purpose in mind. That purpose was to give them a false standard by which to measure their verdict. An analogous situation is where counsel for one of the parties in a tort action involving an automobile accident undertakes by adroit tactics to inform the jury that the opposing party has liability insurance coverage. The case of Potter v. Trent, Ky., 262 S.W.2d 186, not only condemned such tactics but reversed the judgment because such tactics were employed. In that case the insurance angle was injected into the case by the artful questioning of two prospective jurors on voir dire examination in the presence of the other jurors who were already selected to try the case.
“We conclude the trial court erred in this case in failing to sustain the Commonwealth’s timely motion to declare a mistrial, because we are of the opinion that an admonishment under the circumstances did not remove the prejudicial result of the statement of appellees’ counsel.”

Although counsel for-the owners attempts to show a difference in these cases we perceive no distinction, except that in Swift the admonition was given. Here none was requested or given. The law announced in Swift and reaffirmed in Com., Dept. of Highways v. McQuown, Ky., 395 S.W.2d 586 (1965) is applicable to the case before us. In Com., Dept. of Highways v. Johnson, et ux., Ky., 403 S.W.2d 691 (1966) we said:

“ * * * the three witnesses, New-berry, Long, and Dickinson, testified that in his capacity ‘as county court commissioner’ he fixed the damages at $5,000. This is a clear and unequivocal violation of the rule in Commonwealth, Department of Highways v. Swift, Ky., 375 S.W.2d 691 (1964). This Court has consistently considered such evidence incompetent and prejudicial. See also Commonwealth, Department of Highways v. Brubaker, Ky., 375 S.W.2d 404 (1964); Commonwealth, Department of Highways v. Raleigh, Ky., 375 S.W.2d 384 (1964); Dinwiddie v. Urban Renewal and Community Development Agency of Louisville, Ky., 393 S.W.2d 872 (1965).”

The attorney for the Ransbottoms improperly told the jury that the appraisal made by persons appointed by the court was $2,500.00. The failure of the trial court to sustain the motion for the mistrial was error.

Other errors are claimed but to discuss them would unnecessarily lengthen this opinion. The many decisions we have rendered in eminent domain proceedings since the trial of this case will furnish the information needed for a new trial according to the law as it exists today.

The judgment is reversed.

All concur except OSBORNE, J., who did not sit.


author: MILLIKEN, Judge.

text:
    J. D. ROBERTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.
    Thomas F. Manby, Jr., Clark, Manby & Williamson, LaGrange, for appellant.

      Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MILLIKEN, Judge.

The appellant, J. D. Roberts, was found guilty of cattle stealing and sentenced to six years in the penitentiary. He seeks a reversal of his conviction upon the ground that the indictment was inadequate and that the Commonwealth’s evidence was insufficient to sustain the conviction.

The indictment expressly charged him with stealing eight cows, two calves and one Hereford bull of the approximate value of $2,500.00, the property of Charlie Kephart and Pleas Mitchell, on July 31, 1966, in Henry County, Kentucky, in violation of KRS 433.250, the statute governing cattle stealing. The indictment fully conformed to the new rules governing procedure in criminal cases, namely, RCr 6.10, for it was a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant was charged. Although reference to the value of the cattle was unnecessary, it was not misleading and was mere sur-plusage and did not invalidate the indictment. RCr 6.14. Since the indictment expressly stated that it was under KRS 433.250, governing cattle stealing, it is difficult for us to conclude that the surplus language as to value confused defendant in any way.

The testimony shows that Roberts lived in Henry County and was there the day the cattle were stolen. It was also established that he had pasturage rights to the farm about an hour away in Jefferson County, Indiana, where the cattle were located a couple of weeks later. It was further shown that Roberts had fenced an enclosure on the Indiana farm in the previous May and that there had been no cattle pastured there until the early morning hours of August 1, when Roberts’ Indiana neighbors heard the bawling of the cattle as they were unloaded from a truck. On the afternoon of that day Roberts informed these same neighbors that he had bought the cattle at a sale. Roberts also owned a black and red truck and black, and red scuff marks were found on the entrance of the barn from which the cattle had been stolen. It appears to be conceded by all that the cattle were those stolen from the barn of Kephart and Mitchell in Henry County, Kentucky.

The only evidence of consequence offered in behalf of Roberts was that of his stepdaughter who said that he was at home all day the day of the theft and that Roberts and his wife baby-sat her small daughter while she attended a drive-in movie at Sli-go. She testified that Roberts was sound asleep when she returned home about 11:30 p.m., and was there about 5:30 a.m. when she got up to get ready for work.

We think the skein of evidence linking Roberts with the theft of the cattle, when not explained away, was clearly sufficient to sustain the jury’s verdict that Roberts was guilty beyond a reasonable doubt.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MONTGOMERY, PALMORE and STEINFELD, JJ., concur.

OSBORNE, J., not sitting.


author: WILLIAMS, Chief Justice.

text:
    John E. WISE, Appellant, v. KENTUCKY HOME MUTUAL LIFE INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.
    Richard C. Oldham, Dorothy G. Cox, Oldham, Burroughs & Miller, Louisville, for appellant.
    John P. Sandidge, John A. Fulton, Woodward, Hobson & Fulton, Louisville, for appellee.
   WILLIAMS, Chief Justice.

This is the second appeal taken in this case. On the first appeal the judgment of the Jefferson Circuit Court was reversed on the ground an erroneous instruction was given to the jury. Kentucky Home Mutual Life Ins. Co. v. Wise, Ky., 364 S.W.2d 338 (1963). Upon a second trial a jury returned a verdict disallowing recovery by appellant John E. Wise. From the judgment entered on that verdict this appeal is taken.

The facts were adequately stated in the first opinion and will be only briefly summarized here. Wise alleged he was injured when an elevator in the Kentucky Home Life Building fell a short distance with him. The defense was that all required safety measures had been taken and requisite inspections made by Kentucky Home Mutual Life Insurance Company and Otis Elevator Company, between which an elevator maintenance and service contract existed. Evidence was offered that a fuse blew as a result of the grounding of one of the armature coils inside the motor due to a breakdown of the installation which could not have been discovered by visual inspection except by dismantling the motor at great cost and possibly could not have been detected even then by a visual examination. Under the circumstances, we stated in the first opinion that the case was one for a jury to decide. The proof did not change on a second trial and was not of such character as to entitle appellant to a directed verdict.

In the first opinion we discussed with some particularity the doctrine of res ipsa loquitur and applied the analysis to the circumstances of this case. We held the doctrine applies in a case where a passenger is injured by the fall of an elevator; that the highest degree of care is required in the management and operation of an elevator; but such care does not place the manager and operator in the position of an insurer.

Wise introduced proof showing the elevator fell and he was injured. Kentucky Home and Otis countered with testimony concerning the care taken in the maintenance, operation and inspection of the elevator. The permissible inference of negligence drawn from Wise’s proof was rebutted by the testimony of Kentucky Home and Otis. In other words, after plaintiff presented his case the defendants assumed the burden of going forward with their defense which presented an issue to be decided by a jury.

In our first opinion we stated that on a new trial “an instruction adapted from Stanley’s Kentucky Instructions to Juries, vol. 1, section 252, page 399, sets forth the proper standard.” In compliance the trial court gave the following instruction:

“1. The defendant, Kentucky Home Mutual Life Insurance Company, is not an insurer of its passengers, but it was-the duty of the defendant and its agents and servants to exercise the highest degree of care for the safety of passengers it undertook to carry, and the management and operation of its elevators, in the care and inspection of its equipment, and in the care and inspection of the running gear of its elevators, and if the jury shall believe from the evidence that the defendant, Kentucky Home Mutual Life Insurance Company, failed to exercise the highest degree of care for the safety of the plaintiff, John Wise, and that as a direct and proximate result of such failure, if any, on their (sic) part the elevator car on which he was a passenger was caused to fall or to make a sudden or unusual stop and, as a result thereof, Wise sustained the injuries of which he complained, then the law is for the plaintiff and the jury should so find; unless the jury shall believe from the evidence that the accident and resulting injury aforesaid was brought about by some cause which the highest degree of care upon the part of defendant’s agents and servants could not have prevented or guarded against, in which later or latter event, the law is for the defendant, and the jury shall so find.”

Wise maintains that instruction puts the burden on him of showing how the accident was caused. He says those facts are exclusively within the knowledge of Kentucky Home and Otis, and he could not affirmatively prove negligence. The fallacy of the argument is that he was not required to prove specific negligent acts of Kentucky Home and Otis to prevail under that instruction. The instruction recites that the law is for Wise if the jury believe Kentucky Home failed to exercise the highest degree of care for the safety of its passengers, and unless the accident resulted from some cause which the highest degree of care would not have prevented. This is in conformance with the res ipsa loquitur doctrine and a specific instruction on that theory was unnecessary. Lee v. Tucker, Ky., 365 S.W.2d 849 (1963).

It will be noted that in substance the instruction (No. 1) set forth in section 252 of Stanley’s Instructions directs the jury to find for the plaintiff unless the accident resulted from a cause that that exercise of the highest degree of care by the defendant would not have prevented, whereas the instruction here under consideration directs a finding for the plaintiff if the accident did result from the defendant’s failure to exercise such care, and then follows with a restatement of the same criterion in the “unless” form. We think that either the “if” or the “unless” form is appropriate in that it states to the jury in an understandable way the legal premise on which it is to determine the issue of liability. The instruction here given was redundant in attempting to state the same basic proposition both ways. It would have been clearer and in better form had the “unless” clause been omitted. Nevertheless, we do not believe it was misleading or likely to confuse the jury.

Wise offered the following instruction which was refused by the court:

“The duty or obligation of the Kentucky Home Mutual Life Insurance Company to exercise the highest degree of care for the safety of John Wise is an obligation which cannot be avoided by its maintenance contract with Otis Elevator Company. As far as John Wise is concerned its obligation to him is unchanged.”

The court instructed on Kentucky Home’s ,'duty to exercise the highest degree of care and on Otis’ duty to exercise reasonable care. Under the circumstances it was unnecessary to give a separate instruction on non-delegability of the highest degree of care.

An objection to a portion of the closing argument made by appellee’s counsel was not ruled upon. No request for a ruling and no motion that the jury be admonished were made. Such failure operates as a waiver. Betzing v. Winn, Ky., 248 S.W.2d 727 (1952).

The judgment is affirmed.

All concur except OSBORNE, J., not sitting.


text:
    Vernon GRAHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.

      J. K. Beasley, Harlan, M. B. Fields, Hazard, for appellant.
    Robert Matthews, Atty. Gen., Howard E. Trent, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Having been convicted of voluntary manslaughter and sentenced to fifteen years’ imprisonment in the penitentiary, Vernon Graham appeals. He based his defense upon his claimed insanity and presents three grounds upon which he considers himself entitled to reversal of the conviction: (1) improper remark in the opening statement of the Commonwealth’s attorney; (2) improper rejection of testimony offered ; and (3) erroneous instructions given by the court.

Appellant Graham shot and killed O. J. Weldon as the victim was standing at the door of the residence of Lydia Shepherd. Graham and Lydia had lived together as man and wife for more than twenty years, although they were never married. A short time before the tragedy, Graham and Lydia had severed their relationship, and Graham evinced extreme jealousy, although the record fails to suggest that he had cause to be jealous of Weldon.

In his opening statement to the jury, the Commonwealth’s attorney used the following language in reference to the fact that the accused had been confined in a mental institution after the killing and before the trial: “Someone, I may be doing him an injustice, but someone, I suspect Dr. Goss, placed the defendant in a mental institution in Radford, Virginia.” The “Dr. Goss” apparently referred to Mr. Eugene Goss, of counsel for the accused. Objection to the statement of the Commonwealth’s attorney was made, along with a motion by appellant that the swearing of the jury be set aside and the case be continued. The court overruled the motion but admonished the jury to disregard the statement and not consider it for any purpose. Appellant relies on Shepperd v. Commonwealth, Ky., 322 S.W.2d 115, and Turner v. Commonwealth, Ky., 240 S.W.2d 80, but we consider those cases distinguishable. In both of them, the trial court not only denied the motion to set aside the swearing of the jury but failed to admonish the jury to disregard the statement. In each of the cited cases, the comments in the opening statements were definitely prejudicial, whereas in the case at bar we find no prejudice in the statement. The parties stipulated that the jury hear read an order of the trial court committing appellant to the hospital at Radford, Virginia; the sarcastic reference to appellant’s counsel as “Dr. Goss” does hot rise to the dignity of reversible error. Cf. Jones v. Commonwealth, Ky., 311 S.W.2d 190; Clark v. Commonwealth, Ky., 243 S.W.2d 52.

The complaint of rejected evidence occurred during the examination of Lydia Shepherd and is based upon the following colloquy:

“Q8 Lydia, based upon your observations of Vernon Graham, as you have described here, do you have an opinion as to whether or not Vernon Graham on the night of the shooting of Mr. Weldon was of sound mind?
The Commonwealth Objects. The Court Sustained Objection.
A I don’t think so.”

Appellant cites Feree v. Commonwealth, 193 Ky. 347, 236 S.W. 246, and other cases of like import to the effect that a non-expert witness may give an opinion as to the mental condition of another, provided the witness has testified to facts evincing a familiarity with the life, habits, and conduct of the one whose mental condition is at issue. We agree that the rule is as urged by the appellant and that technical error occurred when the court sustained the Commonwealth’s objection to the quoted question. Lydia had testified extensively of her observation of abnormal conduct and seeming mental aberrations of the appellant. No open-minded individual could have heard Lydia’s testimony without forming the conclusion that she considered appellant to be of unsound mind at the time of the shooting. It will be observed that despite the court’s ruling on the objection, Lydia expressed her opinion anyway. A detailed recitation of appellant’s mental condition was related to the jury by a psychiatrist. In these circumstances we consider that the error was harmless. RCr 9.24. See Bolin v. Commonwealth, Ky., 407 S.W.2d 431; 5 Am.Jur.2d, Appeal and Error, Section 806, Page 248.

The final attack upon the judgment is rested upon claimed error in the trial court’s instruction on insanity. The instruction as given was in the following language:

“1. Although the jury may believe from the evidence beyond a reasonable doubt that the defendant shot and killed the deceased, O. J. Weldon, yet if they further believe from the evidence that at the time of the killing the defendant was of unsound mind, then they should acquit him.
“2. The law presumes every man sane until the contrary is shown by the evidence. Before the defendant can be excused on the ground of insanity the jury must believe from the evidence that at the time of the killing, the defendant, as a result of mental disease or defect, (a) did not have substantial capacity to appreciate the criminal nature of the act, or, if he did have such capacity, (b) did not have substantial capacity to conform his conduct to the requirements of the law.”

It will be observed that the instruction as given is not in the exact language of the prepared instruction set out in Terry v. Commonwealth, Ky., 371 S.W.2d 862, 865. The form used by the circuit court appears to have been taken from the Model Penal Code and, in our view, substantially complied with the instruction suggested in Terry. We regard, it as safer and better practice to utilize the instruction as set out in Terry but are unable to say that the appellant’s theory of defense was improperly related to the jury by the terms of the instruction as given. It will be noted that the prime difference between the instruction given and the instruction set out in Terry is to be found in phrase (b) as used in the two instructions. In our view the two instructions express the same thought in different language, either of which adequately presents so much of the insanity defense as it purports to cover.

The judgment is affirmed.

WILLIAMS, C. J., and EDWARD P. HILL, MILLIKEN, MONTGOMERY, PALMORE, and STEINFELD, JJ., concur.

OSBORNE, J., not sitting.


text:
    Walter Howard STORY, Appellant, v. SIMPSON COUNTY BOARD OF EDUCATION et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.
    James A. Crumlin, Louisville, Louis P. McHenry, Hopkinsville, for appellant.
    Samuel R. McCracken, Jr., Franklin, John B. Breckinridge, Lexington, for appellees.
   DAVIS, Commissioner.

The appellant was ousted from his position as principal and teacher in the public school system of Simpson County by unanimous vote of the Board of Education of Simpson County after a hearing before the Board as prescribed by KRS 161.790. Upon his appeal to the circuit court from the ouster order, appellant was denied the right to introduce any evidence, and the action of the Board of Education was affirmed. Appellant seeks reversal on the primary ground that he was denied appropriate opportunity to present his appeal in the circuit court “ * * * both as to law and as to fact * * * ” as permitted by KRS 161.790(6).

In a well-prepared and reasoned opinion, the special judge in the trial court noted and followed Board of Education of Ashland School Dist. v. Chattin, Ky., 376 S.W.2d 693 (1964). Had there been no change in our case law since Chattin, the judgment here appealed likely would be affirmed.

In Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967), we-expressly overruled so much of Board of Education of Ashland School Dist. v. Chattin, supra, as denied the right to a trial de novo in the circuit court in appeals, taken pursuant to KRS 161.790(6). The present appeal is ruled by the rationale of Osborne v. Bullitt County Board of Education, supra. It was error to refuse appellant a trial de novo upon his appeal to the circuit court, and this cause must be remanded for proceedings consistent with this opinion. All questions presented in this appeal, except the question of a trial de novo in the circuit court, are reserved and not adjudicated.

The judgment is reversed for proceedings consistent with the opinion.

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY and STEIN-FELD, JJ., concur.

&OSBORNE and PALMORE, JJ., not sitting.


text:
    J. R. WESTERFIELD, Appellant, v. O & B COAL, INC., d/b/a Bartlett & O’Bryan Fertilizer Company, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.
    Paul E. Bugay, Bugay, Cooper & Hayden, Owensboro, for appellant.
    R. Scott Plain, Wilson & Wilson, Owens-boro, for appellee.
   CULLEN, Commissioner.

Appellee fertilizer company sued appellant Westerfield, a farmer, on an account-totalling $5,547.77 for fertilizer sold to' Westerfield in 1963. Westerfield admitted, the account but counterclaimed for damages-to his corn crops alleged to have occurred, from 1959 through 1963 as a result of alleged inferior quality of fertilizer purchased from appellee during those years. The trial court dismissed the counterclaim but, inexplicably, allowed the jury to give Westerfield a credit of $539.89 if the jury believed that there was a quality deficiency in one kind of fertilizer sold to Westerfield in 1963. The jury allowed the credit, whereupon judgment was entered against Westerfield for the amount of the account less the credit — $5,007.88. Westerfield has appealed, claiming error in the dismissal of his counterclaim, and the fertilizer company has cross-appealed, contending that no credit should have been allowed.

Westerfield operated a large farm and his annual purchases of fertilizers ran into thousands of dollars. Prior to 1959 he had been purchasing fertilizers from a source other than the appellee company. His evidence was that in 1958, using the fertilizers from those sources, his corn crop on 440 acres ran 100 bushels per acre. In 1959 he commenced buying from the appellee company and he continued to buy from them through 1963. However, his corn yield dropped to an average of 62 bushels per acre, under what he testified were similar growing conditions as concerned weather, rainfall, etc. One of the principal fertilizers he used was known as “5-20-20 muriate.” In the summer of 1963 he experimented in one field, using the appellee’s fertilizer in some rows of corn and fertilizer purchased from another supplier in other rows. He testified that the latter rows produced at a rate of 20 bushels per acre more than those on which the appellee’s fertilizer had been used. Finally, late in 1963, Westerfield had a test run by the Agricultural Experiment Station of the University of Kentucky on a 1000-pound bulk purchase of 5-20-20 muriate from the appellee. It tested only 77.6 percent of guaranteed value.

The foregoing facts constitute the basis of Westerfield’s claim that the appellee had been supplying him over the five-year period with defective fertilizer (i. e., fertilizer below the label standards) which caused his corn crops to be less than they would have been had the fertilizer met the label standards. The question on Westerfield’s appeal is whether the evidence of these facts was enough to have warranted submission of the claim to the jury.

The only direct proof of defective fertilizer consisted of the evidence of the test of 1,000 pounds of 5-20-20 muriate in 1963. Other facts of which there was direct proof were: (1) The appellant’s corn crops in the years in which he used the appellee’s fertilizers were less than in 1958 when he used another supplier’s fertilizers; (2) in an experiment run in 1963 rows on which another supplier’s fertilizer had been used produced more corn than rows on which appellee’s fertilizer had been used; (3) another farmer’s corn crop increased by 30 bushels per acre in 1961 when he changed from appellee’s fertilizer, which he had used for three previous years, to that of another supplier. From these facts, appellant argues, inferences can be drawn that all of the fertilizers purchased from the appel-lee from 1959 through 1963 were of inferior quality and that this was responsible for the low yield of the corn crops.

The court is of the opinion that this case is controlled by the decision in American Agricultural Chemical Co. v. McKinney, 173 Ky. 820, 191 S.W. 647. It was there held that under the statutes, KRS 250.360 to 250.480, the fertilizer seller’s “whole guaranty is contained in its label;” that unless the fertilizer is shown not to conform to the label guaranty, evidence as to crop failures is not competent; and that failure of the fertilizer to conform to the label guaranty can be established only by a test conducted in substantial compliance with KRS 250.440.

In the instant case the test of the 1,000-pound load of 5-20-20 muriate admittedly was not made in compliance with KRS 250.440, in that the sample was not taken ,in the presence of the seller or of substitute witnesses. Therefore, under the McKinney opinion, the test was not valid evidence that the fertilizer failed to conform to the label guaranty. Hence the evidence of crop failures was not competent. Thus there was no valid evidence to support the counterclaim. Likewise there was no valid evidence to warrant a credit against the price of the muriate that was bought in 1963.

On the direct appeal the judgment is affirmed. On the cross-appeal the judgment is reversed with directions to enter judgment in favor of the plaintiff for the full amount sued for.

All concur except OSBORNE, J., who did not sit.


author: IRA D. SMITH, Special Commissioner.

text:
    Joseph AVERITTE, Appellant, v. W. E. HUTCHINSON et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.
    Joseph R. Wilson, Louisville, for appellant.
    Victor W. Ewen, Jones, Ewen, MacKen-zie & Peden, Louisville, for appellees.
   IRA D. SMITH, Special Commissioner.

Appellant, Joseph Averitte, seeks reversal of an order overruling his motion to set aside an order dismissing his complaint in the Jefferson Circuit Court based upon his refusal to answer certain interrogatories filed.

Appellant contends that he is entitled to relief under CR 60.02. We agree with the appellant that every litigant should have his day in court; but he should abide by the rules. The mere fact that the appellant, Joseph Averitte, sustained bodily injury and property damage in an automobile accident and that his first attorney failed to obtain a successful settlement, filed a suit to protect his client from the Statute of Limitations, and then withdrew from the case, does not relieve appellant from the use of diligence in pursuing his cause. CR 60.02 provides six grounds for relief from a final judgment or order, the sixth providing “any other reason of an extraordinary nature that might justify relief.”

In Fortney v. Mahan, Ky., 302 S.W.2d 842, the court said:

“Two of the factors to be considered by the trial court in exercising its discretion are whether the movant had a fair opportunity to present his claim at the trial on the merits and whether the granting of the relief sought would be inequitable to other parties.”

In this case under review, it would appear that the appellant had full knowledge of the interrogatories to be answered and although they had been filed November 21, 1961, the trial judge did not enter the order dismissing the action until March 1, 1963; and it was not until June 1, 1966, that appellant’s present counsel filed his motion under CR 60.02 to set aside the order dismissing.

We believe that the trial judge fairly and accurately summed up the situation as follows:

“ * * * That the Court has the right to act in behalf of the plaintiff in this matter is beyond question, but the Court’s action must be predicated upon doing that which is just, correct and reasonable. The trial Court is of the opinion that the defendant is now placed in an untenable position to properly defend himself. Mr. W. Carey Thompson, counsel for the defendants has died in the interim, the files have long since been closed and stored. If there was dereliction upon the part of anybody in this pending action, it must be placed upon plaintiff’s counsel, who failed to properly represent him, if so they did. That he has suffered a wrong, there can be no question but his cause must be pursued against those who placed him in the situation he now finds himself in, rather than against the defendants, who were not a party to the dereliction, nor to any intention to defeat his claim, except by just and honorable means in a court of law.”

We can only conclude that the trial court in overruling appellant’s motion did not abuse his discretion and that this was not such an extraordinary case as to demand relief.

The judgment is affirmed.

WILLIAMS, C. J., and EDWARD P. HILL, MILLIKEN, MONTGOMERY, PALMORE and STEINFELD, JJ., concur.

OSBORNE, J., not sitting.