author: JONES, Justice.

text:
    William Earl MARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. George T. CHENAULT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 2, 1978.
    Rehearing Denied July 3, 1978.
    Terrence R. Fitzgerald, Deputy Dist. Defender, Louisville, for appellant William Earl Martin.
    Daniel T. Goyette, Associate Director, Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant George T. Chenault.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

William Earl Martin and George T. Che-nault were each indicted on a charge of first-degree burglary. KRS 511.020. A second count of the indictment charged Chenault as a persistent felony offender. KRS 532.080. The jury returned verdicts finding both of them guilty of first-degree burglary. It fixed Martin’s punishment at 20 years’ imprisonment, and Chenault’s sentence at 10 years’ imprisonment. On a second stage of a bifurcated proceeding on the persistent felony offense the jury found Chenault guilty and his sentence was enhanced to a term of 25 years’ imprisonment. Judgment was entered accordingly. Martin and Chenault were not satisfied with the result and each of them prosecutes a separate appeal from the convictions. The appeals have been consolidated and are considered together.

There are two questions in these consolidated cases that merit this court’s consideration. The first is whether Martin and Chenault were entitled to an instruction on criminal trespass. The second is whether the evidence was sufficient to support Che-nault’s conviction as a persistent felony offender in the first degree.

Willa Mary O’Neal was visiting her mother on the evening of March 6, 1977. Between 11:00 and 11:30 P.M. her mother received a phone call from someone, whose identity was not established, that Willa’s home was being broken into. Willa called the police, and then accompanied by her father, returned to her home. The police were there when Willa and her father arrived. Officers Lampkin and Dossett went to the front of the house and were unable to open the front door although, according to Lampkin’s testimony, the lock was “very loose, to where it had been jimmied, or forced.” The officers were able to enter the house when Willa arrived with her key.

Another police unit arrived on the scene at the same time Officers Lampkin and Dossett drove up. These two officers, Cul-ver and Hill, were at the rear of Willa’s dwelling while the other team was entering the front door. The two officers heard someone coming through the kitchen and observed a black male, walking in a crouched position, come out of the house. Both men identified Chenault as the black man they had seen. Chenault was arrested and taken away by Officer Hill; meanwhile, Officer Culver entered the rear of the house. As he was entering the kitchen, Martin walked into the room, held his hands up, and said, “You got me.” Martin was immediately handcuffed and placed under arrest.

Neither burglary tools nor any of Willa’s property was found on Martin or Chenault. Officer Culver testified that the house had been “ransacked.” Officer Lampkin went through the house but didn’t notice the condition of the furnishings because he was watching the two suspects. When asked about Chenault’s sobriety, Officer Culver testified that he did not stagger or slur his words and did not smell of alcohol. Cul-ver’s testimony was confirmed by Officer Hill. Officer Lampkin testified that Martin was in a very stable condition and therefore did not undergo any sobriety tests. Neither Martin nor Chenault was arrested at the scene for intoxication although both testified they had been drinking all day. They testified that they passed Willa’s house that evening while on the way to a bootlegger. Martin, who lived next door to Willa, testified her door was “broke down, cracked open” and he thought someone had broken into her house. Martin said he and Che-nault went in to investigate because he knew Willa was visiting her mother.

Counsel for Martin and Chenault moved for a directed verdict at the close of the Commonwealth’s case on the ground that the crime of first-degree burglary had not been proven and the case should be submitted to the jury on criminal trespass. The motion was overruled. The motion was renewed at the close of all the evidence and again denied. Martin and Chenault each tendered an instruction on first-degree criminal trespass which was refused by the trial court. At the second stage of the trial Chenault was tried as a persistent felon. His counsel made a motion for a directed verdict on the ground that all the essential elements of the persistent felony offense were not proven; i. e., it was not shown that Chenault was discharged from probation or parole within five years of his latest felony conviction. An objection was also made to the instructions given by the trial court and the instructions tendered by counsel for Martin and Chenault were placed in the record.

Throughout the trial Martin and Che-nault readily admitted that they had entered Willa’s home without her permission. However, they both denied they had committed a crime in the dwelling or had intended to do so. There was also an attempt to prove that both were too drunk at the time of the entry to form any culpable intent.

The offense of criminal trespass is a lesser crime which is included in the crime of burglary. Burglary may be committed when someone knowingly enters or remains unlawfully in a dwelling with the intent to commit crime and when such entry occurs at night. KRS 511.020. Criminal trespass in the first degree is committed when one “knowingly enters or remains unlawfully in a dwelling.” KRS 511.060. Certainly there was evidence that would support a conviction of the lesser offense. In Trimble v. Commonwealth, Ky., 447 S.W.2d 348 (1969), this court upheld a conviction of rape where the trial court failed to instruct the jury on the offense of detaining a woman against her will with intent to have carnal knowledge of her. The court noted that, “Nothing in the evidence tended to prove any lesser degree of the offense.” Trimble, supra, at 350. The court stated however:

“The rationale of the applicable rule seems to be that instruction (sic) should be given covering the whole law of the case as the whole law of the case is determinable from all the evidence. When the prosecution adduces evidence warranting an inference of a finding of a lesser degree of the charged offense; the court should instruct on the lesser degree even though the defendant presents the defense of alibi.” Trimble, supra, at 350.

The trial court’s failure to instruct the jury upon criminal trespass was error. It is always the duty of a trial court to instruct a jury on lesser included offenses when it is so requested and it is justified by the evidence.

The Commonwealth contends that there is no evidence of criminal trespass because both Martin and Chenault denied any “unlawful” intrusion into Willa’s home. This argument can be answered in two ways. First, the Martin and Chenault claim that the entry was lawful does not make it so; the jury is entitled to draw its own conclusion as to the nature of the entry from all of the evidence. And second, even if a defense is inconsistent with an instruction, that instruction must be given if it is warranted by the evidence. Trimble, supra, cited Harris v. Commonwealth, Ky., 389 S.W.2d 907 (1965), where a murder conviction was reversed for failure of the trial court to give an instruction on voluntary manslaughter although the defendant tried to establish an alibi defense. Harris is analogous to this case where an instruction on a lesser included offense was warranted and should have been given.

At the second stage of the trial, Chenault was convicted of being a persistent felony offender in the first degree. His punishment was enhanced from 10 to 25 years. Since the principal offense for which Che-nault was convicted occurred on March 6, 1977, the enhanced penalty was rendered under the provisions of KRS 532.080(3) as it stood at that time. The controlling statute provides in part:

“A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided:
(a) That a sentence to a term or imprisonment of one year or more or a sentence to death was imposed therefore; and
(b) That the offender was over the age of eighteen (18) years at the time the offense was committed and was discharged from probation or parole within five (5) years of the date of commission of the felony for which he was last convicted.”

It is contended that there was insufficient evidence to support a conviction under KRS 532.080(3). The proof is specifically attacked in that there is no evidence that Chenault was discharged from supervision, probation, or parole on the 1963 or 1967 convictions. Such proof is mandatory under the persistent felony statute. In Newton v. Commonwealth, Ky., 558 S.W.2d 167 (1977), this court reversed a persistent felony conviction under the same version of KRS 532.080(3) as there was no proof that the appellant was discharged from probation or parole for the previous felonies for which he was convicted. In Newton, supra, as in this case, there was undisputed proof of the two previous felony convictions— which occurred two years before the principal offense — and proof that Newton was 18 years of age at the time of the prior convictions. Nonetheless, the failure of the evidence to show that Newton was discharged from probation or parole for the earlier felonies required reversal. This court stated:

“We are of the opinion proof of this fact is an essential element of the offense of being a persistent felony offender. The statute is clear, concise, and not ambiguous. Absent proof of an essential element of the offense, the conviction cannot stand.” Newton, supra, at 168.

The evidence showed that Chenault was born on June 7, 1927, and was twice convicted for storehouse breaking. The offenses took place on January 30, 1963 and August 13, 1967. He received a two-year sentence on each conviction. There was no evidence concerning his discharge from supervision, probation, or parole on either of these charges. It was further shown that on January 18, 1973, Chenault was sentenced to one year for a storehouse breaking which had occurred on September 20, 1972. The evidence reveals that Chenault was released from supervision, probation, or parole on either July 18 or September 18, 1973. Therefore, only the 1973 conviction can qualify as a previous felony conviction under the clear language of KRS 532.080. The evidence was not sufficient to prove that Chenault had been convicted of two prior felonies within the definition of the statute.

The corrections officer testified that she had no records showing that Chenault was released on parole and probation on either the March 7,1963 conviction, or the November 30, 1967 conviction. Thus, it appears that upon a new trial, if the evidence be the same, Chenault could be convicted only as a second-degree persistent felon because the evidence demonstrates that only the 1973 conviction is within the purview of the persistent felony offender statute. KRS 532.-080(2).

The failure of the trial court to give a criminal trespass instruction, and the failure of proof as to Chenault’s persistent felony offense mandate a new trial.

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

All concur.

      . KRS 532.080 was amended in 1976 with the new version effective as of January 2, 1978.


source: Caselaw Access Project

author: STEPHENSON, Justice. JONES, Justice,

license: Public Domain

text:
    BOARD OF TRUSTEES OF the UNIVERSITY OF KENTUCKY et al., Appellants, v. PUBLIC EMPLOYEES COUNCIL NO. 51 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, etc., et al., Appellees. Nancy SPILLER et al., Appellants, v. PUBLIC EMPLOYEES COUNCIL NO. 51 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, etc., et al., Appellees.
    Supreme Court of Kentucky.
    May 23, 1978.

      John P. Sandidge, Woodward, Hobson & Fulton, Louisville, John C. Darsie, Jr., Sp. Counsel, Lexington, for appellants Bd. of Trustees of the University of Kentucky.
    John W. Morgan, Lexington, for appellants Nancy Spiller et al.
    Herbert L. Segal, Walter Lapp Sales, Se-gal, Isenberg, Sales, Stewart & Nutt, Louisville, for appellees.
   STEPHENSON, Justice.

The Board of Trustees of the University of Kentucky instituted an action for declaratory judgment, KRS 418.040 et seq. The subject of the action concerned the duties and powers of the Board with respect to collective bargaining with the nonacademic employees of the University.

The trial court in answer to the questions presented adjudged:

“1. The non-academic employees of the University of Kentucky at the Lexington campus have the right to join a national labor union, and to organize themselves to carry out their collective wishes, including notifying the Board of Trustees of the University of Kentucky of their positions concerning conditions of employment.
“2. The Board of Trustees of the University of Kentucky, or its designated agents or representatives, have the power to meet with employee representatives for the purpose of discussing wages, hours and other working conditions of the non-academic employees of the University of Kentucky at the Lexington campus.
“3. The Board of Trustees of the University of Kentucky has the power to recognize a bargaining agent specifically authorized by a group of non-academic employees of the University of Kentucky to represent them on matters pertaining to their employment, and the Board of Trustees has the power to negotiate with any such bargaining agent concerning the terms and conditions of employment of such employees.
“4. The Board of Trustees of the University of Kentucky has the authority to enter into collective agreements with such bargaining agents specifically authorized to represent any group of non-academic employees of the University of Kentucky regarding the wages, hours and working conditions of such employees, so long as such collective agreements are not in conflict with any of the statutes governing the administration of the University of Kentucky.
“5. The Board of Trustees of the University of Kentucky has no legal enforceable duty to recognize, negotiate or bargain with any group of non-academic employees of the University of Kentucky at the Lexington campus, or any bargaining agent specifically authorized by such a group of employees to represent them regarding wages, hours and working conditions of such employees.
“6. The Board of Trustees of the University of Kentucky has the authority to recognize, negotiate and bargain with the duly authorized bargaining agent of a group of non-academic employees of the University of Kentucky at the Lexington campus and to decline to recognize, negotiate and bargain with other non-academic employees or their duly authorized bargaining agent. The Board of Trustees of the University of Kentucky does not have the power to enter into a lawful and binding agreement with a duly authorized bargaining agent of a group of non-academic employees which would prohibit the Board of Trustees of the University of Kentucky from recognizing, meeting, bargaining, or contracting with other non-academic employees or their duly authorized bargaining agents.
“7. No group of non-academic employees of the University of Kentucky at the Lexington campus has the right to strike or otherwise engage in other concerted forms of work stoppage for collective bargaining purposes.
“8. The plaintiff shall notify each of its non-academic employees at the Lexington campus of the entry of this judgment, and the plaintiff shall either give each such non-academic employee a copy of this opinion and judgment or make such copy available to the employee at convenient time and place.
“9. This is a final judgment, and to the extent the pleadings of the parties ask for any additional relief, such pleadings are deemed dismissed.
“10. The court costs shall be taxed by the Clerk against the plaintiff.”

The Board of Trustees of the University of Kentucky is a body corporate existing by virtue of KRS 164.100 et seq. and is charged with the responsibility of operating and maintaining the University of Kentucky. The Board of Trustees is an independent agency and an instrumentality of the Commonwealth of Kentucky with exclusive jurisdiction, power over and control of appointments and removals, qualifications, salary and compensation, as well as promotions, regulations and retirement benefits of all employees of the University of Kentucky. The nonacademic employees are public employees.

An international representative of the Public Employees Council No. 51, American Federation of State, County and Municipal Employees, AFL-CIO informed the Board of Trustees that the Union had been contacting University of Kentucky employees with regard to organizing a union. The Board of Trustees was further informed that as a result of the organizing effort a substantial number of nonacademic employees had signed cards designating the Union as their bargaining representative in all matters pertaining to their employment. The Union requested a meeting to discuss a procedure for recognition. The director of personnel of the University of Kentucky met with the representative of the Union. At the meeting, the positions of the parties were discussed with particular reference to the duties and powers of the University in this situation. Subsequently, the Board of Trustees filed a declaratory judgment action posing questions as to the duties and powers of the Board of Trustees, with regard to recognizing and bargaining with a union, resulting in adjudication by the trial court on certain of the questions presented. The trial court declined to consider the request for certain guidelines asked for by the Board of Trustees.

The Board of Trustees appeals from paragraphs one, two, three, four, six, eight, nine and ten of the judgment.

The defendants Nancy Spiller, Ruby Land, James Evans, Sylvia Hardin, and Earl J. Hilton, nonacademic employees of the University who do not wish to be represented by a union as bargaining agent, appeal from paragraph six of the judgment.

The defendant Union and the defendant nonacademic employees who wish to be represented by the Union as bargaining agent attempted to cross-appeal from paragraph five, a portion of paragraph six and paragraph seven of the judgment. The motion to docket the cross-appeal was denied on procedural grounds.

Paragraph five of the judgment held that the Board of Trustees has no legal duty to recognize, negotiate or bargain with any group of nonacademic employees or any bargaining agent authorized by such group of employees to represent them. Paragraph seven of the judgment held that no group of nonacademic employees has the right to strike or otherwise engage in other concerted forms of work stoppage for collective bargaining purposes. Although the Union et al. failed to properly present these issues on appeal, we feel that these issues represent the fundamental background of the other issues on appeal and should be addressed briefly.

Under the common law, it is well settled that public employees do not have the right to strike or to engage in concerted work stoppages. The right to strike on the part of public employees is not protected by either the Federal or the Kentucky Constitution, nor has the legislature granted such right to public employees. Jefferson County Teachers Association v. Board of Education of Jefferson County, Ky., 463 S.W.2d 627 (1971). There the teachers’ association asserted that the legislature had recognized the right to strike in KRS 336.130. This assertion was answered in a review of the background of the “collective bargaining statute”:

“In 1940 the legislature enacted the Hunnicutt Act as Chapter 105 of the Acts of the General Assembly. This Act related to employer-employee relations, and recognized the right to collectively bargain, strike picket, etc. Article V of this Chapter provided specifically that there were exempted from all of the provisions of the Act ‘ * * * employees of the United States, the State and any and all political subdivisions or agencies thereof.’ In Baldwin’s February 1941 Supplement to Carroll’s Kentucky Statutes this Act was incorporated as Chapter 42bb. The exemption provision (Article V) appears as section 1599c-39.
“In 1942 the statutes were completely revised as the Kentucky Revised Statutes. In the revised statute, Carroll’s Chapter 46bb was incorporated in KRS Chapters 336, 337 and 338. What had been Carroll’s section 1599c-39 (Article V) was compiled in KRS 336.050, 337.010 and 338.010. The exemption provision was incorporated in KRS 337.010(2), for Chapter 337, relating to ‘Wages and Hours’, and in KRS 338.010(3), for Chapter 338, relating to ‘Safety and Health of Employes’, but was not included in KRS 336.050, nor in any section of Chapter 336.
“The original Act pertaining to employer-employee relations clearly and expressly excluded public employees from the granted right to strike. The apparently inadvertent omission of this exclusion in Chapter 336 when the statutes were revised cannot be held to have changed the legislative policy and the law. Therefore, appellants cannot properly claim the legislature has granted them such right, and their principal contention must fall.”

By the same reasoning, the Board of Trustees has no duty to recognize, negotiate or bargain with a union, other authorized bargaining agent, or with individual employees. Jefferson County Teachers Association clearly excludes public employees from the provisions of KRS 336.130; consequently, there is no duty placed by the legislature on the Board of Trustees to recognize, negotiate or bargain with the group of nonacademic employees here.

This exclusion from the provisions of KRS 336.130 cannot be applied with respect to paragraph one of the judgment which holds that the nonacademic employees have a right to join a national labor union and to organize themselves to carry out their collective wishes. We are of the view that this right emanates from the rights of freedom of expression and association guaranteed by the Constitution of Kentucky and the United States Constitution, and the Board may not, without showing a paramount public interest, lawfully prohibit its nonacademic employees from membership in a union. Cf. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). The Board of Trustees is under no duty to recognize or negotiate with the Union or any representative of the nonacademic employees. It does not follow that this denies the nonacademic employees the right to join a labor union or to form their own association. The authorities relied upon by the Board of Trustees are inappo-site.

Paragraphs two, three, four and six of the judgment deal with the authority of the Board of Trustees to meet with, recognize and negotiate with employee representatives for the purpose of discussing wages, hours or working conditions if the Board of Trustees chooses to do so.

We are advised on oral argument that the Board of Trustees does not wish to recognize the Union or to engage in negotiations or to bargain with the Union. Thus, in our view, it would have been preferable to leave these issues to the future. In discussing these issues, we are delving into theoretical questions in areas where all the implications are not readily discernible. In dealing with these issues we treat them as broad, general propositions.

The authority of the Board of Trustees regarding its public employees is stated in KRS 164.220, KRS 164.225 and KRS 164.-230. These statutes confer upon the Board express authority to determine compensation, hiring, qualifications, suspension or termination, retirement ages and benefits, and promotion of all its employees.

We are of the opinion as to paragraphs two and three of the judgment that the Board has the implied authority to perform acts which are incidental and collateral to its express authority. Thus, the Board has the authority to meet with representatives of a group of nonacademic employees, including a union representative, to discuss wages, hours and working conditions for those nonacademic employees authorizing such representation. Negotiating with two or more employees, or their chosen representative, cannot logically be held to exceed the implied authority of the Board. The Board has no duty to do so, but it may do so if it so desires. Recognition of a bargaining agent, as used here, simply means the act of agreeing to enter into discussion with such agent.

As to paragraphs four and six of the judgment, it is our view that the Board is authorized to contractually commit itself to a specified wage scale, employee retirement plan, work schedule or other authorized condition of employment with an individual employee or with authorized representatives of groups of employees, including a Union representative authorized to represent a group of employees insofar as permitted by statute. There being no duty on the part of the Board to discuss or negotiate with any employee or representative of a group of employees and the Board having exclusive jurisdiction by statute to control appointments, removals, qualifications, salary and compensation, as well as promotions, regulations and retirement benefits of all the employees of the University, it follows that the Board does not have the power to enter into an agreement with the authorized representative of one group of employees which would prohibit it from negotiating or contracting with an authorized representative of any other group of employees. Thus, in our view the Board does not have the authority to enter into an agreement recognizing a union designated as bargaining agent by a majority of the nonacademic employees as the exclusive representative of all employees. Appellees argue that the principle of exclusivity is not prohibited by statute and is a necessary concomitant to any effective bargaining relationship. This principle may have validity as it applies to bargaining relationships in private industry, but it has no application to the public employees of the University. We are of the opinion that application of the principle to the nonacademic employees of the University would be a clear violation of the statute imposing exclusive jurisdiction, power and control in the Board with regard to all aspects of employment.

The power, authority and duties of the Board are derived from the statutes enacted by the General Assembly pertaining to the Board, and we decline to go beyond broad, general principles in discussing the authority of the Board to do that which it desires to do and is not compelled to do by law.

As to paragraphs eight, nine and ten of the judgment, we are advised that notice of entry of judgment in compliance with paragraph eight has already been given to the nonacademic employees, so paragraph eight is no longer an issue.

The Board requested the trial court to go into detail as to appropriate bargaining units, methods of election, etc., should the Board desire to recognize the Union. The trial court wisely declined to get into this theoretical quagmire; also, in our view, the trial court did not commit error in taxing costs against the Board.

The judgment is affirmed.

All concur.

JONES, J., files a separate concurring opinion.

JONES, Justice,

concurring.

I concur in the result of the majority opinion which holds that the Board of Trustees has no duty to recognize, negotiate or bargain with a union, authorized bargaining agent, or with individual employees. There is no duty imposed by the Legislature on the Board of Trustees to recognize, negotiate or bargain with a group of nonacademic employees.

The authority of the Board of Trustees regarding its public employees is defined in KRS 164.220, KRS 164.225, and KRS 164.-230.

In my view the Board of Trustees of the University of Kentucky has the authority and the duty to meet with representatives of a group of nonacademic employees, to discuss wages, hours, and working conditions for such employees. However, it is under no duty to meet with a union bargaining agent, nor does it have authority to agree to the recognition of a bargaining agent, even if it so desires.

In my opinion, no actual controversy existed so that the Board could seek or obtain a declaration of rights in this matter. See KRS 418.040.

It is not the purpose of the Declaratory Judgment Act to impose on courts the burden of answering abstract and speculative propositions of law simply to satisfy the curiosity or fears of parties about possible controversies that may or may not arise. Since relief by way of declaratory judgment is conditioned on the existence of an actual controversy, it is not incumbent on the courts to decide questions that not only may never arise, but under the facts of this case, could not have arisen.

For the reasons stated, I am of the view that this cause should be remanded to the trial court with directions to dismiss the complaint.

      . Employees may organize, bargain collectively, strike, picket — Conduct prohibited. — (1) Employes may, free from restraint or coercion by the employers or their agents, associate collectively for self-organization and designate collectively representatives of their own choosing to negotiate the terms and conditions of their employment to effectively promote their own rights and general welfare. Employes, collectively and individually, may strike, engage in peaceful picketing, and assemble collectively for peaceful purposes. (2) Neither employers or their agents nor employes of associations, organizations or groups of employes shall engage or be permitted to engage in unfair or illegal acts or practices or resort to violence, intimidation, threats or coercion. [KRS 336.130]


author: COOPER, Judge. WILHOIT, Judge,

text:
    HUMANA, INC. (Formerly Extendicare, Inc.) and Humana of Kentucky, Inc. (formerly Extendicare of Kentucky, Inc.) and Ostertag Opticians of Kentucky, Inc. and Southern Optical Company, Appellants, v. Frank R. METTS and Miller Kimbrough, Jr., co-trustees, and the Old Kentucky Real Estate Investment Trust (a Kentucky business trust) and Saint Matthews Co., Inc. and Professional Towers Corporation and Richard H. Leslie and Beatrice S. Leslie, Appellees.
    Court of Appeals of Kentucky.
    Discretionary Review Denied Oct. 24, 1978.

      Marvin J. Hirn, Greenbaum, Doll, Matthews & Boone, Louisville, for appellants.
    Marvin M. Sotsky, Louisville, Walter L. Porter, St. Matthews, for appellees.
    Before COOPER, HOWARD and WIL-HOIT, JJ.
   COOPER, Judge.

This is an appeal from an order and judgment of the Jefferson Circuit Court, Chancery Branch, permanently enjoining the appellants herein from conducting various business ventures due to certain restrictions as contained in a deed of conveyance. There is also an amended order and judgment being appealed in this case.

On April 17, 1969, Frank R. Metts and Miller Kimbrough, Jr., as co-trustees, who hereinafter for brevity will be referred to as Metts, purchased a 95.48 acre tract of unimproved land in Jefferson County, Kentucky, for the sum of $2,387,000.00. It has been subdivided into acreage tracts and is known as the “Village Subdivision”.

On the same day that Metts received the property, they conveyed about twenty (20) acres of the area to the appellant, Extendi-care, Inc., for the sum of $800,000.00. In January of 1974, the name Extendicare, Inc. was changed to Humana, Inc. and all references hereinafter will be referred to as Humana. It is provided in the deed as follows:

It is hereby agreed and understood that the property herein conveyed shall be used for hospital, extended care nursing home facilities and for professional office use only.

On September 9,1969, nearly five months after the conveyance in which the limitation is contained, a “deed of correction” was executed between the parties and duly recorded in the office of the County Court Clerk of Jefferson County, Kentucky. In this deed of correction it is set out that Metts attempted to convey to Humana the property described in the April 17, 1969, deed “ . . but through error the draftsman of said deed did not properly and fully describe the property to be conveyed therein, and, whereas it is the desire of the parties hereto to correct said error”. Thereafter follows another lengthy metes and bounds description which purportedly accurately and correctly describes the land therein conveyed. The deed is properly executed and recorded. It is provided in this deed that Metts:

(h)ereby releases, remises, relinquishes, quitclaims and conveys unto the party of the second part, in fee simple, with covenant of general warranty, any and all right, title, interest and claim they may have in and to the hereinafter described real estate situated in Jefferson County, Kentucky.

Likewise, Humana:

(R)eleases, remises, relinquishes, and conveys unto the party of the first part in fee simple any and all right, title, interest and claim in any to any of the property described in the original deed dated April 17, 1969, recorded in Deed Book 4269, page 75 in the office of the clerk aforesaid, which is not included in the hereinafter described property.

Humana has constructed two buildings on the premises, to-wit: Suburban Hospital (hereinafter referred to as the Hospital) and Suburban Medical Center (hereinafter referred to as the Medical Center). It has entered into leases for the rental of space in the Medical Center to Ostertag Opticians of Kentucky, Inc. (hereinafter referred to as Ostertag) and Southern Optical Company (hereinafter referred to as Southern Optical). It is also operating a pharmacy and a doctors club. Appellees contend that such use to which the building is proposed to be put by Humana and its lessees is in violation of the provisions of the deed and they seek to halt the use of the building in such a manner. Appellants deny that there is a use restriction in their deed and they also deny that their proposed use will violate any deed provisions.

The issues made and which are to be determined by the Court are set out in the trial court’s orders of January 25, 1974, and February 6, 1974, as follows:

A. Did the deed of correction dated September 9,1969, and of record in Deed Book 4305, page 411, in the office of the County Court Clerk of Jefferson County, Kentucky, eliminate the restrictive covenant in the deed dated April 17, 1969, and recorded in Deed Book 4269, page 75 in the aforementioned Clerk’s office?
B. Have the defendants, or any of them, wrongfully breached, the use restriction in the subject deed dated April 17, 1969, and recorded in Deed Book 4269, page 75, in the Jefferson County Court Clerk’s Office; and thereby caused damage to plaintiffs or any of them; provided, however, said plaintiffs or any of them have standing to enforce such use restriction, if any.
C. Does the phrase “for professional office use only” contained in the deed dated April 17, 1969, aforesaid, permit the type of business use and operations offered by the defendants, Ostertag Opticians of Kentucky, Inc., or Southern Optical Company; or a pharmacy business?
D. Have the plaintiffs, Frank R. Metts and Miller Kimbrough, Jr., co-trustees and The Old Kentucky Real Estate Investment Trust, by their conduct and actions subsequent to the execution of the aforementioned deed dated April 17,1969, waived the applicability of the restrictive covenant contained in the aforementioned deed?
E. Is the expression “for professional office use only” hereinabove mentioned and as set out in the aforementioned deed, void or unenforceable because it is an unlawful restraint of trade or an unlawful covenant not to compete?

After conference with counsel, the pretrial order of the trial court dated January 25, 1974, was amended to include as one of the issues to be determined by the court the following:

C. Does the phrase “for professional office use only” contained in the deed dated April 17, 1969, aforesaid permit the type of business use and operations offered by the defendants, Ostertag Opticians of Kentucky, Inc., or Southern Optical Company; or a pharmacy business, or a facility in the nature of an exercise club. (Underlined portion is language added to the original order.)

On March 6, 1969, which was prior to the date that Metts took title, they entered into a written contract with Humana for the sale and purchase of the subject property. One of the provisions of this contract states that:

10. It is hereby specifically agreed and understood that the property herein conveyed to Extendicare (Humana) shall be used for hospital, extended care nursing home facilities, and for professional office use only. Said restrictions to be appropriately set out in the deed of conveyance. Metts further warrants that the property is presently zoned for these uses. No other use shall be made of the subject property without the express written consent of Metts.

The lease with Southern Optical is dated March 28,1973, and the lease with Ostertag is dated February 26, 1973. Each provides for first floor space in the Medical Center. The pharmacy is on the first floor and the doctors club is on the lower level floor.

Although the club is named doctors club, it is not limited to doctors, but anyone who applies and is approved by the hospital administrator is eligible for membership. Of the 50 or 60 members, about twenty-five percent (25%) are tenants in the building, and of the membership about ninety to ninety-five percent (90%-95%) are doctors. The maximum capacity is about 200 and the annual dues are $72.00. The club offers squash and handball courts, a lounge and furniture, pool table, color television, sauna bath, showers, lavatories and an exercise room containing weights, pulleys and electric treadmills.

The pharmacy is equipped to and does furnish prescription drugs, patent medicines, first aid articles, tooth brushes and other items commonly found in a drug store to the general public.

The Old Kentucky Real Estate Investment Trust, hereinafter referred to as Old Kentucky, is as its name indicates a real estate investment trust corporation organized under the Kentucky laws. It owns an undivided one-half interest in a one story office building known as DuPont Square North, which adjoins the property of Hu-mana. The appellees, Leslies, personally own five plus acres of unimproved ground, and they are the major shareholders in the Professional Towers Corporation which owns four plus acres on which is located a seven-story office building called “Professional Towers”. These nine plus acres are just across the road and within 500 feet, more or less from the property owned by Humana. The office building is appraised at $5,350,000.00.

The St. Matthews Company is the leasing agent for and manager of the Professional Towers Building. The real estate owned by the Leslies and Old Kentucky is part of that conveyed to Metts by deed dated April 17, 1969. They are common grantees with Hu-mana from Metts, the grantor. All appel-lees, other than Metts, derived their interests subsequent to the deed from Metts to Humana in which the restrictive covenant is set out, and their ownership came from a common grantor as heretofore mentioned.

We must bear in mind at this time and at all times during the treatise of this case that we are talking about a purchase of land costing in excess of $2,000,000.00, the use of buildings valued in excess of $10,-000,000.00 and the future use and development of land, the original cost of which was $40,000.00 per acre.

The unrecorded contract for the sale of the land by Metts to Humana dated March 6, 1969, reserved to Metts the right to change, relieve or lift the use restriction. The subsequently executed deed from Metts to Humana dated April 17, 1969, did not reserve to anyone the privilege or right to change or grant relief from the restriction. According to the terms of the deed, the premises therein conveyed were to be used “for professional office use only.” The deed of correction was occasioned by a need to straighten out the boundary line, and had no further effect than to do so. Counsel for appellants, throughout the proceeding, has referred to the deed of correction as a quitclaim deed. It matters not what you call the instrument. The objective is to ascertain the intent of the parties. What did the parties mean by what they said? The terms, conditions, provisions and restrictions of the contract for the purchase were merged into the deed of conveyance. Any conflict between the two must be construed in favor of the latter. There is no authority given in the deed for anyone to grant relief from the restrictions.

In developing a subdivision such as the subject one, meticulous care must be taken so as to encourage an orderly and financially profitable project, at least a plan which speculators and developers can consider feasible and on which they can rely when undertaking a million dollar plus project. For a restrictive covenant to be personal, it must have been designed for the limited use of the grantor or a designated beneficiary. For a restrictive covenant to run with the land, it must be one that, when made, is designed for the protection of the grantor and property owners other than the grantor or its designated beneficiary.

Proper development of the subdivision inures to the benefit of each property owner. • Metts was confronted with the possibility of Humana constructing commercial mercantile undertakings to the prejudice of their use and development of the balance of the land by other purchasers. If the restrictive covenant did not run with the land, then the only person who could enforce its provisions would be Metts. On the other hand, if the restrictive covenant runs with the land, then Metts is not the only person with a right to challenge the present use being made of the property by Humana. Bagbey et al. v. Stewart’s Executor et al., Ky., 265 S.W.2d 75 (1954). It appears to the Court that the restrictive covenant ran with the land and was not wholly personal to Metts and Humana.

The phrase “professional office use” means just what it says, office use by a professional person, not a commercial undertaking. The evidence discloses that the pharmacy is being operated with very little difference from the usual and ordinary pharmacy or drug store prevalent throughout this area. Ostertag and Southern Optical, although possibly having a professional person in attendance, present themselves to the general public as retail merchandisers. The sale of merchandise can and usually is made by any clerk without any specialized training or professional ability.

The doctors club can hardly be classified as a professional office. It is purely and simply a place to rest and relax. It is not even limited to doctors, but anyone securing the consent of the business manager and having $72.00 to pay the dues may become a member and make use of its facilities. These types of undertakings are not permitted by, but are in violation of the restrictive covenant.

The Leslies, knowing of the restriction and relying on it, purchased two tracts of land. On one of these tracts of land there is a seven-story office building. The other is undeveloped.

Mr. Johnson, Vice-President of Old Kentucky, purchased an undivided one-half interest in “DuPont Square North” an office building adjacent to Humana’s property, only after he had checked into the validity of the restrictive covenant.

The deed to Humana was the first sell-off made by Metts after their acquisition. Ne deed restrictions were placed in any subsequent deed. It does not follow, however, that the restriction placed in the deed to Humana is improper or unenforceable by reason of the restriction not having been put in subsequent deeds. A reasonable restriction on the use of land, even though eliminating it from being used for a certain designated purpose is not necessarily improper.

In the case of Franklin v. Moats, Ky., 273 S.W.2d 812, at page 812 (1954), the Court of Appeals stated:

In order to carry out a general scheme or plan for a whole subdivision it is not necessary that every lot therein, regardless of the prominence of the street upon which it faces, must bear the same restrictions as all other lots in it.

In the case of Ladd v. Pittsburgh Consolidation Coal Co., 309 Ky. 405, 217 S.W.2d 807 (1949), the Court of Appeals said:

Contracts which tend to create monopolies are frowned upon by the courts, but we have uniformly held that the seller of real estate may impose special restraints on the use of the property. Such restrictions are valid if reasonable and limited as to territory or duration. Id. at 811. The authorities in Kentucky are of one accord that contracts or restrictive covenants in restraint of trade are enforceable if they are not unreasonable and do not have a tendency to unduly restrict competition, or to create monopoly, and are not inimical to the public interest. Id. at 811.

The appellee, Metts, and the appellant, Humana, mutually agreed to the use description.

It is not for the Court to make a contract for the parties. It is not for the Court to ascertain what the parties meant to say. It is for the Court to determine what the parties meant by what they did say. In this subject action, the parties spoke loudly and clearly. The property was not one for mercantile business, but the property was for office professional persons only.

In view of the above, the trial judges, in both the original and amended judgments found that the restrictive covenants in the deed had been violated by the appellants, and that the appellees were entitled to in-junctive relief from continued violation and they were permanently enjoined from conducting the following business operations:

1. Optical dispensing and similar business operations customarily associated therewith, and those specifically identified as Ostertag Opticians of Kentucky, Inc. and Southern Optical Company;
2. Drug store and pharmacy; and
3. Any and all other uses, specifically including the exercise club presently in operation, except hospital, extended care nursing home facilities and professional office use.

With this we agree.

We find no merit in the appellant’s argument that Metts, by conduct and actions subsequent to the deed, waived the applicability of the restrictive covenant.

The judgment and amended judgment are hereby affirmed.

HOWARD, J., concurs.

WILHOIT, J., concurs in part, dissents in part.

WILHOIT, Judge,

concurring in part and dissenting in part.

I concur in the result reached by the majority except as to its conclusion that the pharmacy and optical dispensaries do not fall within the meaning of “professional office use” as used in the deed restrictions. I believe these establishments are ancillary medical services which were not intended to be prohibited by the restrictions.


author: VANCE, Judge: GANT, Judge,

text:
    Judi R. FUHS, Appellant, v. John J. RYAN and Ruth S. Ryan et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 13, 1978.
    As Modified On Denial of Rehearing May 19, 1978.
    Discretionary Review Denied Oct. 24, 1978.
    Rose Levada Shipp, Alan W. Roles, Roles, Yahng & Brown, Louisville, for appellant.
    Thomas W. Speckman, John K. Gordinier, Joseph H. Eckert, Louisville, for appellees.
    Before GANT, VANCE and WILHOIT, JJ.
   VANCE, Judge:

The principal issue in this case is the propriety of a summary judgment against appellant in her claim for damages resulting from a fall on her apartment building stairway on January 3, 1974. Appellees Ryan were appellant’s landlords, who are charged with negligence in allowing icy conditions to have occurred and continued on the stairway, which was allegedly unprotected from the weather in violation of a Louisville ordinance.

Appellant’s complaint also joined A1 Vo-gel and A1 Vogel d/b/a Vogel Master Builder because Vogel allegedly built the stairway in violation of the ordinance, and joined the City of Louisville, its mayor, and building inspector for having failed to force correction of the alleged defect. For reasons which follow, we affirm so much of the judgment which dismissed the City of Louisville and its agents from the lawsuit, and reverse the remainder of the judgment and remand the case for trial.

Appellant alleges that she had to be at work the morning of January 3, 1974 because she was in charge of processing a payroll that was due out that day. She had previously requested the day off but had been ordered to report. Precipitation during the night had turned the parking lot and the exposed stairway into an icy hazard, and the stairway was appellant’s only avenue from her third floor apartment to the ground. When appellant first looked out at 6:30 a. m. she decided the stairway was too hazardous to try a descent, so she waited inside for some one and one-half hours before her ultimate attempt. She phoned her place of work to say she would be late, but did not attempt to complain to the Ryans, who lived only a block or so away.

Feeling compelled to get to work, appellant finally made an attempt to descend, allegedly being very cautious, but after negotiating one flight successfully, she slipped, fell, and was injured.

Appellees assert that this theory of appellant’s case should not go to a jury because she was contributorily negligent as a matter of law. They cite Bryant v. Kathryn Shoppe, Inc., Ky., 457 S.W.2d 483 (1970), Standard Oil Co. v. Manis, Ky., 433 S.W.2d 856 (1968) and others which espouse the theory that when a slick and hazardous surface is conspicuous to all, particularly if caused by the weather, it is negligence per se to proceed across it.

Appellant, on the other hand, presents us with the older cases of Home Realty Co. v. Carius, 189 Ky. 228, 224 S.W. 751 (1920) and Rodgers v. Stoller, 284 Ky. 108, 143 S.W.2d 1047 (1940) which unlike appellees’ cases, are landlord-tenant cases. In Home Realty a jury verdict for plaintiff was affirmed for injuries due to a fall from a loose step that both plaintiff and landlord knew about. The theory of contributory negligence was overcome by the fact that the step was part of the only practical means of access to the tenancy. It was left for the jury to decide whether plaintiff exercised ordinary care under the circumstances. In Rodgers a landlord illegally failed to have a light in the hallway which plaintiff was trying to negotiate when she was injured. The court held she could not be contributorily negligent as a matter of law because she had a reasonable right to use the hallway even if she knew the light was out.

Thus, we see in Kentucky law, at least in the landlord-tenant realm, a consideration of the necessity or reasonable right of a tenant to proceed across a known hazard in certain cases. However, in Morrison & Conklin Construction Co. v. Cooper, Ky., 256 S.W.2d 505 (1953) an injured homeowner was held contributorily negligent for walking home in the dark across a known muddy and hazardous route even though it was the only route due to excavation work. Likewise, in City of Pineville v. Selvey, Ky., 312 S.W.2d 897 (1958), the court assumed that an injured plaintiff had to use the hazardous sidewalk to get to work, but held that she had assumed the risk of injury, and reversed her jury verdict.

We consider none of the appellees’ cases to be controlling. Bryant and Standard Oil, supra, and their kin, did not contain the elements of compulsion which a tenant might have in using the only exit way available. Morrison & Conklin is distinguishable in that the plaintiff carried no light, even though she had crossed the muddy way in the daytime and knew of its danger. City of Pineville relied on the theory of assumption of risk, a doctrine abolished in Parker v. Redden, Ky., 421 S.W.2d 586 (1967).

Rather than attempt to reconcile the cases presented to us, which date from 1920 to 1970, we choose to turn to Parker v. Redden, supra, for guidance in this case. Having decided to abolish the doctrine of assumption of risk in this jurisdiction, the court discussed the application of the doctrine of contributory negligence and stated at 593:

. if there was no substantial necessity or urgency for the plaintiff’s subjecting himself to the risk, or if the risk was one that easily could have been eliminated before the plaintiff took action, the plaintiff who took the risk must be considered as a matter of law to have acted unreasonably and he will not recover. On the other hand, if there was an urgent necessity for the plaintiff to incur the risk, such as to save a life, and if the risk could not easily have been eliminated, there is no reason why the damage suffered by the plaintiff should be borne by him rather than by the defendant who negligently created the risk. We think any problem can be eliminated by weighing reasonableness in the light of the necessity or urgency for the action and the difficulty of removing the risk before acting, keeping in mind that a person’s appreciation of danger may be affected in what appears to him to be an emergency situation. In this connection see Restatement, Torts, Second, sec. 466, Comments, pp. 512 to 514, sec. 472, pp. 521, 522; Prosser, Law of Torts, Hornbook Series, 3rd ed., sec. 67, pp. 450, 451.

In the case at bar, appellant has asserted a case which would present to the jury her view of the necessity of her decision to go down the hazardous stairway, which was her only way to get to work. We are not inclined, in light of Parker v. Redden, to hold her decision per se unreasonable. We do not find the facts at bar to be on par with those in Houchin v. Willow Ave. Realty Co., Ky., 453 S.W.2d 560 (1970), which reaffirmed the doctrine of Parker v. Redden while holding a tenant contributorily negligent who descended a darkened stairway to wash clothes.

The element of a compelling “substantial necessity or urgency” was conspicuously absent in Houchin and also in Dade Park Jockey Club v. Minton, Ky., 550 S.W.2d 188 (1977), but it is not so clear in this case. Therefore, the merits of appellant’s case should go to a jury.

However, we agree with the City of Louisville and its agents that the doctrine of sovereign immunity bars this action against it. Any failure of the city to detect and order correction of a situation in violation of its ordinance did not single out appellant in any way from the general population. See City of Louisville v. Louisville Feed and Seed Co., Ky., 433 S.W.2d 638 (1968); Fryar v. Stovall, Ky., 504 S.W.2d 701 (1974). Therefore, the judgment is affirmed to the extent that it dismissed the City of Louisville, Mayor Sloane, and the Director of Building and Housing Inspection from the suit.

The summary dismissal of appellant’s claim against appellees Ryan and Vogel on the ground of contributory negligence as a matter of law was erroneous and the judgment is reversed for further proceedings against them.

All concur.

GANT, Judge,

dissenting.

I disagree with the majority opinion herein on two grounds. First, there is no proof whatsoever of negligence on the part of the appellees or their agents. The evidence discloses that the hazardous condition of ice on the steps was from natural causes, not from any act of the appellees. The appellant admits that she made no effort at all to contact the resident manager of the apartment about cleaning the steps. A regular maintenance man arrived about 45 minutes after she made her ill-advised decision to take a chance on the steps which she knew were treacherous.

Second, the appellant was contributorily negligent as a matter of law. In fact, the evidence discloses that the injury resulted solely from the act of the appellant. There was simply no substantial urgency or necessity which would excuse her conduct as is required in Parker v. Redden, supra. There was certainly no urgency or necessity which precluded appellant from waiting until the maintenance man arrived. I cannot conceive that being an hour or two late to work qualified as the type of “urgent necessity . . . such as to save a life” required in Parker v. Redden. That case also points out that the claimant cannot recover if the risk could be easily eliminated. By not notifying the manager or giving anyone the opportunity to eliminate the risk, the appellant was guilty of negligence herself that would preclude recovery.

The court spoke the law in the case of Bryant v. Kathryn Shoppe, Inc., supra, when it said:

We have consistently held claimants con-tributorily negligent as a matter of law in situations involving hazards created by the natural elements on outside premises. Curtis v. Traders National Bank, 314 Ky. 765, 237 S.W.2d 76; Fisher v. Hardesty, Ky., 252 S.W.2d 877; and Weathers v. Morris’ Estate, Ky., 397 S.W.2d 770. See also Standard Oil Company v. Manis, Ky., 433 S.W.2d 856, and cases cited therein.

Additionally, the law in this jurisdiction is well stated in the case of Wooten v. White Trucks, 514 F.2d 634 (5th Cir. 1975). The headnote in that case sets out as follows:

Kentucky law, in respect to the assumption of risk defense, has repudiated economic necessity as an excuse for encountering a known or obvious hazard unless, possibly, it is established that plaintiff made an unsuccessful outcry against his conditions of employment so that loss of his job was the only alternative to going ahead under hazardous conditions.

While it is true that “conditions of employment” was not an issue here, Parker v. Redden, supra, is cited with approval in that case. In the instant case, we have a total absence of proof that the appellant would lose her job if she did not come immediately, merely evidence that the employer would be inconvenienced if she failed to timely arrive at work.


author: LESTER, Judge.

text:
    Armand PETERSON, Jr., d/b/a Tri-City Cooling and Heating, Inc., Appellant, v. Marshall BAILEY and his wife, Carol Faye Bailey, Ed Peterson and his wife, Katherine Peterson, Oscar H. Merideth and Hollis Merideth d/b/a Oscar Merideth & Son, Contractors, Appellees.
    Court of Appeals of Kentucky.
    Feb. 24, 1978.
    Rehearing Denied June 16, 1978.
    Discretionary Review Denied Oct. 24, 1978.

      Uhel 0. Barrickman, Clara Whitaker Allen, Richardson, Barrickman & Dickinson, Glasgow, for appellant.
    H. Jefferson Herbert, Jr., Wilson, Herbert & Garmon, Glasgow, for appellees.
    Before HOWERTON, LESTER and REYNOLDS, JJ.
   LESTER, Judge.

This is an appeal from a judgment entered upon an award of a jury of $29,952.45 to appellees for the loss of a house and tools and debris removal. Defendants below moved for judgment notwithstanding the verdict or a new trial which were overruled.

Oscar Merideth & Son were contractors who were engaged to build a residence by Marshall Bailey and Ed Peterson which the latter had a contract to sell to Thomas and Tomie Kiger upon its completion. The Merideth firm had a subcontract with appellant for installation of the central heating and air conditioning.

During the afternoon of August 19, 1975, one Kress Taylor, an employee of appellant, was attempting to solder the interior to exterior precharged refrigeration lines. These pipes were made of copper and covered with an insulation. Taylor was inexperienced in this particular function and in using the acetylene torch, which generated up to 1300° F. temperature in the copper lines, he used too much flame and failed to use any protective shields. Copper readily conducts the intense heat and this in turn burns the insulation along the pipe thus causing a great deal of smoke. Taylor was unsuccessful in his task because of a dense accumulation of smoke and while making a routine inspection, Mr. Pete Peterson, whom we assume is Armand Peterson, owner of appellant, stopped at the construction site and found the pipe insulation (arma-flex) smoking and found beads of fire or red hot spots on the celotex wall type insulation panel in the area of the soldering job. Peterson related that the burning of the armaflex was nothing unusual due to the heat and, employing a smaller flame, he completed the connection. Peterson testified that Taylor was using the wrong technique. Before leaving, the appellant emptied the contents of a fire extinguisher in the area behind the wall where the work was being done and then he and Taylor left.

While the above described operation was being conducted, Bailey, his wife and the prospective purchasers were inspecting the premises and in doing so, they observed the smoke in a utility room, a hallway and the garage but Mr. Bailey did not believe there was fire present because he relied upon Peterson’s competence. The Baileys lived across the street from the new house and upon leaving the Kigers, they went to another construction site and then returned home about 5:30 P.M.

About 7:00 P.M., Mrs. Bailey observed smoke coming from the vent pipe and upon telling her husband, Mr. Bailey first attempted to call Peterson and, his telephone being busy, he summoned the fire department. Upon arrival, Lieutenant Johnson of the Glasgow Fire Service found the source of smoke in the utility room under the electrical box near a point where the refrigeration line entered the structure and, removing the paneling from around the box, he found no flames but did observe indication of burning on some double studding. The area was watered down and the fireman proceeded to chop out another portion of paneling to explore for flames but at Bailey’s request, he refrained from doing so in order to prevent further damage. Further inspection by chopping, touch and observation satisfied the Lieutenant that there was no flame and after Bailey advised him he would check the house later, the fire company left. Thereupon Bailey notified Merideth and Peterson of what had happened. At 3:00 A.M. on August 20, 1975, the home burned to the ground.

The principal thrust of appellant’s argument before this court is directed at what is termed the superseding intervening cause of Bailey’s request or refusal of permission for the fire department to take out additional paneling on its first trip, the theory being that if that had been done, it would have been “[t]he only proper and sure procedure” to determine if there was no further fire. We disagree because Lt. Johnson testified that in spite of the fact that he did not remove the panel that “ . . . but, really, to my satisfaction, I thought the fire was out.”

Appellant admits its negligence but seeks to limit its liability upon the doctrine of intervening cause by charging an entity not a party to the litigation, namely, the Glasgow Fire Department, with being the intervening negligent actor whose actions or failure to act superseded the negligence of the air conditioning installer. We have examined Restatement (Second) Torts § 440 through 447 (1965) and based thereon, we perceive the law to be contrary to appellant’s position. This is particularly true when we consider § 442 and § 447(c), the latter being to the effect:

The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if
(c) the intervening act is a normal consequence of a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent (Emphasis Added).

§ 447 was cited in House v. Kellerman, Ky., 519 S.W.2d 380.

Quite applicable to this appeal is the commentary found at Restatement (Second) of Torts § 435, Comment d (1965) commencing at the first literal paragraph at 453. We invite the attention of the parties thereto.

In his discussion of normal intervening causes, Professor Prosser (W. Prosser, Torts § 44 4th Ed. 1971) examines the “rescue doctrine” as applicable to property and makes the following observation:

The scope of the risk created may still extend to the possibility that such defensive efforts may be negligent, and so may endanger others. It is only when they are so utterly foolhardy and extra ordi nary that they cannot be regarded as any normal part of the original risk, that they will be considered a superseding cause (Emphasis Added).

Nothing that Bailey or the fire department did can be termed negligent, utterly foolhardy or extraordinary. The mere fact that they acted in a manner contrary to the way that appellant thought they should have acted does not relieve or limit Peterson’s liability.

Marshall Bailey responded to the peril of his house emitting smoke, and that smoke and its attendant smoldering or fire were caused by appellant’s negligence. What ap-pellee did was an effort to avert or mitigate the apparent harm and he should not be taxed for so doing, since we note that 57 Am.Jur.2d Negligence § 222 at 601 enunciates the better view:

On the principle that a person charged with negligence may be held liable for anything which, after the wrong was committed or the injury was complete, appears to have been a natural and probable consequence of the act, the act of a third person, although negligently performed, in attempting to remedy the situation caused by the negligence of the original wrongdoer is not ordinarily an efficient intervening cause relieving the latter from liability for the resulting injury to the plaintiff.

Appellant’s contention as to the instruction regarding the measure of damages is without merit and requires no further discussion pursuant to Stewart v. Sizemore, Ky., 332 S.W.2d 281, 282 (1960).

Through the medium of a reply brief, appellant raises the issue that he was entitled to a “sole cause” instruction dealing with the negligence of the fire department. Based upon the record and what we have said regarding the absence of negligence upon the part of the firemen, we do not consider this last contention to be so persuasive so as to require reversal. Moreover, appellant never raised by any pleading in the record the “sole cause” defense and therefore, an instruction thereon is not available to him, for as was pointed out in Allen Co. v. Thoroughbred Motor Court, Ky., 272 S.W.2d 343, 345 (1954):

It is unnecessary to cite the many cases in which we have consistently held that the instructions must be confined to the issues formed by the pleadings.

The judgment is affirmed.

All concur.


author: MARTIN, Chief Judge.

text:
    Chester CAUDILL, Appellant, v. JEAN COAL COMPANY, Special Fund and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    April 7, 1978.
    Rehearing Denied July 21, 1978.
    Discretionary Review Denied Oct. 24, 1978.

      R. Roland Case, Kelsey E. Friend Law Firm, Pikeville, for appellant.
    John Riehl, Jr., Louisville, for Special Fund.
    J. W. Craft, Jr., Craft, Barret, Haynes & Ward, Hazard, for Jean Coal Co.
    Kenneth Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for appellees.
    Before MARTIN, C. J., and REYNOLDS and WILHOIT, JJ.
   MARTIN, Chief Judge.

This is an appeal from the Letcher Circuit Court setting aside an award of the Workmen’s Compensation Board. The decision there was that the evidence was insufficient to support the conclusion of the Board that a claim had been timely filed.

The claimant was awarded compensation for permanent and total disability as a result of the occupational disease of pneumo-coniosis, or black lung disease. The opinion of the Board of February 21, 1977, disregarded the allegation of the employer that the claimant had failed to notify the company within a reasonable time of his disability-

The claimant has worked in the coal industry for some twenty-seven (27) years. In 1971 he consulted his family physician and was advised he should be examined further as he showed signs of silicosis. No x-rays were taken and the claimant did not consult another physician as suggested by his family physician.

In July, 1973, claimant filed for federal black lung benefits. In November, he terminated his employment claiming he was unable to work because of a shortness of breath. In December, his claim for federal benefits was denied. A second claim for federal benefits was filed in early 1974. In August of 1975, he was diagnosed as having pneumoconiosis. On November 10 of that year, he filed his claim for benefits under our Workmen’s Compensation Act. We agree with the conclusion of the circuit court that these facts, as found by the Board, do not support an award for benefits.

On appeal, the only issue we have before us is whether the award of the Board is supported by substantial evidence. The threshold question is whether the record supports timely notice of the disability to the employer. KRS 342.316(2) provides:

(2)(a) The procedure with respect to the giving of notice and determination of claims in occupational disease cases and the compensation and medical benefits payable for disability or death due to such disease shall be the same as in cases of accidental injury or death under the general provisions of this chapter except that notice of claim shall be given to the employer as soon as practicable after the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease, or a diagnosis of such disease is first communicated to him, whichever shall first occur.

This section of the Workmen’s Compensation Act was best interpreted in Blue Diamond Coal Company v. Stepp, Ky., 445 S.W.2d 866 (1969), as follows:

We are persuaded that the workman should be deemed to be disabled from silicosis, for the purpose of notice requirements, when circumstances exist from which the workman realizes or reasonably should realize that his capacity to perform his work is impaired by reason of silicosis. Id. at 868.
[Disability must exist before notice of claim for compensation for silicosis is required to be given, because that was the holding in Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167, which holding has since consistently been followed. It is not enough (as the board seemed to think in this case) that the workman simply have been advised by a doctor that he has the disease. Id. at 868. (Emphasis in original.)
. We have held that disability may be established by the claimant’s own testimony. Id. at 869.

In Blue Diamond Coal Company v. Blair, Ky., 445 S.W.2d 869 (1969) the court held:

In view of the fact that the notice requirement of KRS 342.316(2) is “notice of disability,” it necessarily follows that no notice need be given until the employee has a disability from an occupational disease. Consequently, this subsection means that before such notice is required to be given by the employee to his employer the following conditions must occur: (1) The employee has a disability from an occupational disease which impairs his capacity to perform his work, and (2) the employee knows or should know by the exercise of reasonable care and diligence that he is suffering from the disease.

The claimant argues that the notice was proper because his disability was not discovered until the summer of 1975. We disagree. We believe the record clearly indicates that in late 1973 and early 1974, the claimant was sufficiently aware of his condition to file two federal claims for black lung benefits. Even though they were denied, he should have proceeded with all possible claims.

A case strikingly similar to the present case is Yocom v. Harrison, Ky., 517 S.W.2d 231 (1971) where the employee quit work in March, 1969, because of shortness of breath. He filed a federal black lung claim in January, 1970, but failed to file a workmen’s compensation claim until February, 1971. On this evidence the court found that the claim was not timely filed despite the contention of the employee that he was not aware of having pneumoconiosis until it was diagnosed in November, 1970.

As this Court pointed out in Harry M. Stevens Co. v. Workmen’s Compensation Board, Ky.App., 553 S.W.2d 852 (1977), the threshold question in any workmen’s compensation claim is the filing of a timely claim. The failure to file a timely claim precludes recovery. While the purpose of the workmen’s compensation law has always been to compensate workers who were injured during their employment, the Board cannot disregard proof in the record that notice of the claim was not promptly filed.

The judgment of the Letcher Circuit Court is affirmed.

All concur.


text:
    Steven B. ELLIS and City of St. Matthews and City of Woodlawn Park, Appellants, v. Stephen J. JORDAN, Appellee. CITY OF WOODLAWN PARK, City of St. Matthews, and Steven B. Ellis, Appellants, v. Stephen J. JORDAN, Appellee.
    Court of Appeals of Kentucky.
    April 7, 1978.
    Rehearing Denied June 2, 1978.
    Discretionary Review Denied Oct. 24, 1978.

      C. Alex Rose, Louisville, for Steven B. Ellis and City of St. Matthews.
    Woosley M. Caye, Louisville, for City of Woodlawn Park.
    Thomas A. Dockter, Richard D. Heide-man, Louisville, for appellee.
    Before HOWERTON, LESTER and WHITE, JJ.
   LESTER, Judge.

This appeal arises from a judgment based upon jury verdict for compensatory ($4,000.00) and punitive ($1.00) damages rendered against the appellants occasioned by appellee’s complaint for false arrest and false imprisonment.

Stephen J. Jordan, a former resident of Waynesville, Ohio, was an employee of the United States Army Corps of Engineers whose duties required him to be in the Jefferson County area during a portion of October, 1974. While so engaged, Jordan was temporarily staying at a residence in the community of Woodlawn Park which is adjacent to the City of St. Matthews, a municipal corporation of the fourth class. The home was occupied by Mary Ann Goodwyn whose estranged husband was Frank Goodwyn, a fellow employee of ap-pellee’s both of whom had been long-time friends of Jordan.

Appellant, Steven B. Ellis, was a member of the regular police department of St. Matthews, who was referred to in the testimony as a twenty-four hour patrolman because he kept the city’s cruiser in his possession around the clock.

On October 28, 1974, appellee and Frank Goodwyn decided to get something to eat. Mary Ann testified they left her house between 2:00 P.M. to 3:00 P.M. while Jordan maintains the time was around 7:00 P.M. to 7:30 P.M. The pair went to the Pizza Hut on Shelbyville Road where they ate and Jordan had one or two beers. Leaving the restaurant, they travelled to a local bistro known as Dutch’s Tavern arriving there sometime between 8:00 P.M. and 9:00 P.M. whereat they indulged in a bit of malt beverage consumption. Appellee admitted having consumed four or five beers while Goodwyn’s recollection on the particular point was “cloudy”. Close to midnight, Frank drove his friend back to Ashland Avenue in Woodlawn Park and stopped the car about four doors from his wife’s house, and for some undisclosed reason, they turned the dome light on.

During the late evening of October 28, 1974, appellant, Ellis, had been working on an assignment for the St. Matthews Police Department in civilian clothes. He was armed and had his handcuffs with him. In order to get from his place of employment to his home, it was necessary for Ellis to travel through a portion of Woodlawn Park, and upon termination of his duties on the night in question, he was driving along Ashland Avenue at about the same time Jordan and Goodwyn were sitting in the latter’s car with the interior light on. The sight aroused the officer’s “curiosity”, and so after passing the stopped car, he turned around and proceeded in its direction. While Ellis was doing this, appellee Jordan alighted from Frank’s vehicle and started to walk to Mary Ann’s house, and Frank drove away.

Having set the scene, we now come to the actual confrontation that resulted in three court actions and this appeal.

Officer Ellis pulled his cruiser to within a short distance of appellee. There is a diversity of opinion as to whether the headlights were on or not with Jordan saying they were not and Ellis agreeing with him at one point while later stating that not only were they on but also that the spotlight was on the appellee. For that matter, there are two distinctive views as to the parties’ demeanor which vary from appellee’s description of himself as sober and apprehensive of the unidentified stranger’s approach to Ellis’ view that Jordan was “incoherent”, “babbling”, “clumsy”, “abusive” and had the “smell of alcohol all over him.” Both asked each other for identification. Jordan said Ellis refused to make any available while Ellis says that he had his badge in his hand. Appellee denies seeing it or that appellant told him he was a policeman. In any event, the officer searched Jordan by leaning him against the cruiser for the purpose of determining if there were any weapons present. Ellis maintains that ap-pellee attempted to hit him while Ellis was patting him down. On the other hand, Jordan testified that appellant drew his gun from his waistband, cocked it, and held it to appellee’s head. Ellis denies this portion of the story.

The officer handcuffed Jordan, put him in the rear of the cruiser with the seat belt around him, and after charging him with being drunk in a public place and disorderly conduct, lodged him in the Jefferson County jail. On November 18, 1974, appellee was convicted upon an amended charge of breach of the peace which he appealed to the Jefferson Circuit Court resulting in a dismissal of the charge. This civil litigation followed. The trial court directed the jury to find that an assault and battery and a false imprisonment had been committed upon the plaintiff below since Ellis had searched Jordan before he told him he was under arrest. On the other hand, the jury found that appellee had committed the misdemeanor of drunk in a public place and/or disorderly conduct in the presence of appellant and that there was no false arrest or imprisonment. The jury next determined, under the court’s instructions, that Ellis used no more force than was necessary in transporting Jordan to jail. In addition to the compensatory damages of $4,000.00 under the directed verdict for assault and battery, the panel awarded $1.00 in punitive damages. Finally, the jury concluded that Ellis was acting on behalf of both appellant cities.

At the conclusion of plaintiff’s case, all defendants moved for directed verdicts, and after trial, all moved for judgment notwithstanding the verdict. In part, all of the motions had as their foundation the question of agency, and it is upon that issue of law that we must reverse as to the cities.

The doctrine of respondeat superi- or applies to the liability of a municipality the same as it does to any other corporation or individual, and it must therefore appear that the agent was acting within the scope of his authority at the time the act complained of occurred. 57 Am.Jur.2d Municipal, School, and State Tort Liability § 88 at 99 and 63 C.J.S. Municipal Corporations § 757 at p. 45. Moreover, in 57 Am.Jur.2d Municipal, School, and State Tort Liability § 254 at 221, we note that a municipality may or may not be liable for acts done or injuries inflicted by an off-duty policeman, depending on whether the policeman was acting in furtherance of the municipality’s business and incident to the performance of his duties. Where, however, the act was clearly not in furtherance of municipal business, there is no liability on the part of the city. There can be no argument with the facts that Ellis was “off-duty” as related to his employment with St. Matthews and that what he did in connection with the Jordan affair certainly was not in the furtherance of the municipal business of appellant St. Matthews. Moreover,

A municipality is not liable for an assault and battery committed by a policeman beyond the territorial limits of the municipality. See 57 Am.Jur.2d Municipal, School, and State Tort Liability § 246 at 215.

We do not subscribe to the foregoing principle in all situations, but we consider it applicable under the circumstances where the officer is off-duty. It must be remembered that St. Matthews employed Ellis to perform police functions in that city and not in Woodlawn Park, either on or off-duty. We have closely examined the kinds of conduct necessary to bring an act within a scope of employment as set forth in Restatement (Second) of Agency § 229 (1958) and have concluded that nothing done by Ellis would impose any responsibility upon St. Matthews.

We now turn to the liability of Woodlawn Park. Woodlawn Park employs only one police officer, Chief Jerry Melloy. On a single occasion and in the course of a casual conversation, Chief Melloy discussed with Ellis his (Ellis’) homebound route from St. Matthews through Woodlawn Park and indicated to Ellis that while so traveling

he would appreciate it if we would take a look in or cut through, drive through the city as it was a fairly easy cut through on that end of town, to drive through the city and take a look at things, and if we saw anything out of the ordinary, let him know. (Deposition of appellant Ellis).

Chief Melloy neither requested Ellis to take any action whatsoever or make any arrests or function as a law enforcement officer of Woodlawn Park. Based upon the above mentioned conversation and certain facts not related to the creation of principal and agent, appellee urges this court to hold as a matter of law that the agency was created. We hold as a matter of law that it was not.

It requires no citation of authority to state that a city of the fifth or sixth class designates or appoints police officers through its legislative body and that there is no authority, expressed or implied, conferred upon a chief of police to employ officers or, in other words, to create a principal-agent relationship on behalf of the municipality. Even a fleeting glance at Restatement (Second) of Agency § 220 (1958) and the comments thereunder would have made it abundantly clear that Ellis was not an employee, officer, or servant of Woodlawn Park, and we must accordingly reverse the judgment as to that appellant.

We believe one word is necessary concerning submission of the question of agency to the jury. In Restatement (Second) of Agency § 220 (1958) in Comment C to Subsection (1) at 487 we find:

If the inference is clear that there is, or is not a master and servant relation, it is made by the court; otherwise the jury determines the question after instruction by the court as to matters of fact to be considered.

The law, as we have discussed above, is clear that the appellant cities had no master and servant relationship with Ellis at the time he arrested Jordan, but if other inferences could have been drawn and the matter properly submitted to the jury, the instructions should have set forth the factual matters to be considered by that panel. The present record reveals that no pertinent facts to be deliberated were submitted on the question of agency.

Having disposed of the corporate appellants, we now direct our attention to police officer Ellis. The court directed a verdict against him upon the theory that he had committed an assault and battery and falsely imprisoned Jordan because he came into physical contact with him prior to informing him verbally that he was under arrest. On the other hand, the jury found, under another instruction, that Jordan had committed the offense of drunk in a public place and/or disorderly conduct in the presence of Ellis and that the arrest was lawful. The only way these two apparently inconsistent verdicts can be reconciled is that the court distinguished what happened before the utterance of the words denoting the arrest from what took place thereafter. The entire incident could have consumed no more than a minute, and we quote the officer’s version as repeated in appellee’s brief:

I then told him if he didn’t give me some identification or at least explain why he was there, I could place him under arrest for nothing less than being drunk in a public place.

AND:

I told him I was going to put him on the fender, pat him down and see if he had any weapons.

FURTHER:

While I was patting him down, I had stooped down and was patting the legs of his trousers, he then violently jerked around with his right arm swinging back over my head as I was crouched down. As he did this I came back with my right hand and took his right hand and put it against the small of his back, leaning him forward over the vehicle. He was struggling and cursing and shouting.
I reached in my waistband and took out my handcuffs with my left hand. I advised him I was placing him under arrest at this time for disorderly conduct and being drunk in a public place.

Appellee cites Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) as authority that a search incident to a lawful arrest may not precede the arrest and serve a part of its justification. In the case at bar, the search did not serve as justification for the arrest because the probable cause for Jordan’s apprehension was that he was committing an offense in the officer’s presence. Sibron, supra, stands for the principle that a law enforcement agent, absent probable cause, cannot first search an individual and then, based upon the fruits of that search, place him under arrest. We are not faced with those circumstances in the case at bar. The fact that Jordan’s conviction was reversed upon appeal is no evidence of lack of probable cause. Reid v. True, Ky., 302 S.W.2d 846 (1957). Moreover, officer Ellis merely patted down the appellee and did not conduct a general exploratory search by invading the clothing of plaintiff below, and there is a distinction between the two types. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In this last mentioned case, the Chief Justice went on to point out that the limitations upon protective seizure and searches for weapons should be developed in the concrete factual circumstances of individual cases.

Since appellant had justification for arresting Jordan, we must now determine when the seizure of his person was made. In Terry, supra, the Court said:

Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.

In the present litigation, not only did Ellis advise the appellee that he could place him under arrest, but he did in fact do so by restraining his liberty when he placed him against the fender of the cruiser. Arrests are not made in a check list procedure similar to starting an aircraft, and since we believe that appellee was under arrest at such time as appellant placed him against the cruiser, then the directed verdict as to Ellis must be reversed.

Appellants tendered instructions to the court which were rejected. The record is not clear whether the trial judge dictated his own instructions while the several attorneys were present, but at the time objections thereto were raised, they had not been reduced to written form. The court advised counsel that once they had been typed that he would entertain no further objections, and the attorneys had to be satisfied with attempting to make their exceptions known from what the court’s secretary read to them from her notes. The lawyers complained that they could not adequately make proper complaint if they could not see the written documents, but the court believed it was unnecessary that they have them. The transcript would indicate that the in-chambers conference occurred during a late afternoon after both sides had rested their cases and the jury Was instructed upon the opening of court the following morning. '

We must remind the interested parties that C.R. 51 requires at subsection (2) in part that

. the court shall show the parties the written instructions it will give the jury . . . (emphasis added)

The use of the word “shall” makes the rule mandatory, and it is our opinion that the written instructions must be given to the attorneys prior to submission to the jury.

For the reasons herein stated the circuit court should have sustained the motions of the several appellants for judgment notwithstanding the verdict, and it is hereby directed to do so.

The judgment is reversed.

All concur.