author: HOWERTON, Judge.

text:
    Pauline A. HOOK, Appellant, v. Albert Warren HOOK, Appellee.
    Court of Appeals of Kentucky.
    April 8, 1977.
    Discretionary Review Denied June 29, 1977.
    David A. Lambertus, Louisville, for appellant.
    August A. Klapheke, Ford & Klapheke, Louisville, for appellee.
    Before HOWERTON, GANT and WHITE, JJ.
   HOWERTON, Judge.

Appellant and Appellee were divorced in 1970 by the State of Montana. Pauline A. Hook was awarded the care, custody and control of their infant child, Warren W. Hook. Both the Appellant and the Appel-lee subsequently left Montana. The Appellant and the infant child became residents of Texas, and the Appellee became a resident of Kentucky in 1972.

On October 27, 1975, Pauline brought Warren to his father in Kentucky. The child was brought here due to difficulties he was having in school as a result of his retardation disability. It was stated that this was done in the belief on the part of either or both parents that the change of environment might be helpful to the child. Subsequently, the father made arrangements for medical care including enrollment in a school for retarded children.

On April 2, 1976, five months and one week after the time the child was brought to Kentucky, Appellee instituted an action for custody of the child. He sought legal custody after he determined that he might otherwise have difficulty enrolling his child in the school for retarded children.

The initial issue between the parties and the question to be decided on this appeal is whether the Kentucky court has jurisdiction in this matter. The trial court found that it would be in the best interest of the child if this state assumed jurisdiction for the reasons: 1) The child and at least one contestant had a significant connection with this state and 2) There is available in this state substantial evidence concerning the child’s future care, protection, training, and personal relationships, and there is no showing that any other state has or may validly assume jurisdiction.

We are of the opinion that the findings of fact by the trial court were not clearly erroneous and that the court correctly held that it had jurisdiction to make a child-custody determination in this case. Ample findings existed to meet the requirements of KRS 403.260, which are:

(1) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if
(B) it is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one (1) contestant, have a significant connection with this state; and
2. There is available in this state substantial evidence concerning the child’s present (and) future care, protection, training, and personal relationships

We believe that Turley v. Griffin, Ky., 508 S.W.2d 764 (1974) and Hawley v. Shaver, Ky., 528 S.W.2d 669 (1975), are distinguishable from the present fact situation. The facts presented in this case exemplify maximum rather than minimum contact with this state. While there are several distinguishing factors, the major one is that the possession of the child in Turley and Hawley was the result of an agreed short visitation of the child. The Appellant also cited three recent decisions of the Kentucky Supreme Court. They were Freeman v. Freeman, Ky., 547 S.W.2d 437 (Decided January 14, 1977); Honigsberg v. Goad, Ky., 550 S.W.2d 471 (Decided December 17, 1976); and Bryant v. Bryant, Ky., 545 S.W.2d 938 (Decided January 28, 1977). These cases are likewise distinguishable from the case at bar. In Freeman, the Kentucky court gave full faith and credit to the Florida court, refused to take jurisdiction, and as to time, considered the fact that the parent in Florida did not know where the child had been taken. In the Honigsberg case, a Kentucky circuit judge was prohibited from considering a change of custody during a brief return visit after the custodial parent had moved her residency from Kentucky to Oklahoma. Similarly, in Bryant, the Henderson Circuit Court, which granted a divorce and awarded custody, lost control when the custodial parent moved with the child to Tennessee for three years and only permitted the child to return to Kentucky for short visits with the father.

Appellant contends that if the Kentucky court assumes jurisdiction over the question of the custody of this child that all custodial non-resident parents will be fearful of sending their children to Kentucky for visitation with the non-custodial parent. We see no reason for any such fear, however, and the cases cited by the Appellant should adequately dispel any fear.

We need not decide whether the State of Texas had jurisdiction of the child, nor need we decide the question of exactly when the Kentucky court became justified in assuming jurisdiction. There must be a point in time when the circumstances of a situation dictate that jurisdiction of an interstate child pass to the place where the child presently resides.

Here it was found by the trial court that the child was brought to Kentucky due to difficulties he was having in school as a result of his retardation disability. We are in agreement with the trial court that something more than a mere short visitation was intended by the parents in this situation. There was a need by the Appel-lee to obtain custody in order to enroll the child in the school. The child and the Ap-pellee had a definite connection with this state. The Appellant was personally before the Kentucky court. At the time the action was brought, the Kentucky court was in the best position to consider the best interest of the child, although the question of the child’s best interest and custody remain to be determined.

Appellee also argues the issue of “unclean hands,” but we need not decide that issue herein. We would add, however, that the action of Appellant in removing the child from the hospital without the consent or knowledge of his doctor reassures us that the trial court’s finding was correct when it determined that it was in the best interest of the child that a court of this state assume jurisdiction.

For the foregoing reasons, we affirm the order of the trial court overruling the Appellant’s motion to dismiss this action and assuming jurisdiction to make a child custody determination, and we remand this case for further proceedings.

ALL CONCUR.


source: Caselaw Access Project

author: WHITE, Judge.

license: Public Domain

text:
    Herman R. POWELL, Appellant, v. The WINCHESTER BANK, Trustee under the Will of W. M. Powell, et al., Appellees.
    Court of Appeals of Kentucky.
    April 8, 1977.
    David B. Redwine, Winchester, for appellant.
    Beverly P. White, White, McCann & Stewart, Winchester, for The Winchester Bank, Trustee, and Elbert Adams and Hazel Adams.
    Henry R. Wilhoit, Jr., Wilhoit & Wilhoit, Grayson, for Kentucky Christian College.
    William Hays, Robert H. Hays, Hays & Hays, Winchester and Lexington, for Anderson College, Board of Church Extension and Home Missions of the Church of God, First Church of God, Bernard L. Hudson and Lorraine Hudson.
    H. Gene Baldridge, Ashland, for Hope Hill Children’s Home.
    Robert L. Rose, Winchester, for William P. Vance and Elsie Mae Vance.
    Blake Page, Winchester, for Dewey Smallwood and Geneva Smallwood.
    Before WHITE, COOPER and HOWARD, JJ.
   WHITE, Judge.

On May 3, 1946, the appellant, Herman Powell, was adjudged incompetent and of unsound mind by the Clark Circuit Court upon a petition signed by W. M. Powell as Petitioner. W. M. Powell was the father of appellant. On July 23, 1963, Kate Powell, appellant’s mother, died intestate leaving a one-half undivided interest in a certain tract of real property that descended equally one-fourth to appellant and one-fourth to W. M. Powell, the surviving husband.

On August 5, 1963, Herman, while still under the disability, executed a deed to his father whereby he conveyed his one-fourth interest in and to the tract so inherited; and on January 2, 1964, W. M. Powell conveyed all the same property in issue to others and through mesne conveyances same is now owned by appellees, Adamses, Hudsons, Smallwoods, and Vances.

W. M. Powell died testate in June, 1967, and in his will named the appellee, Winchester Bank, as trustee. On September 28, 1967, the appellant upon his own petition, was legally restored to competency. On June 30,1970, the Winchester Bank, trustee under the will of W. M. Powell, brought an action in the Clark Circuit Court seeking interpretation of the will of the decedent. Herman Powell, who was then competent, and all remaindermen under said will and testamentary trust were parties defendant to that action. The will shows that decedent placed substantially all of his estate in trust for the use and benefit of Herman during his lifetime with the principal to be distributed to the remaindermen. The proceeds from the sale of the property on January 2, 1964, were a part of the estate. All of the parties to the 1970 action were properly before the court, including Herman. No one opposed the action or the judgment declaring the interpretation of the will. The appellant took and received from the trustee all benefits enumerated by the will and as so interpreted by the court.

On November 14,1973, the appellant filed his complaint in this action whereby he seeks to have the deed of conveyance of August 5, 1963, declared null and void, and that he be awarded one-fourth interest in the sales price realized by W. M. Powell in his deed of January 2,1964, in an amount of $13,950. All of the appellees filed motions to dismiss, and in their respective answers set out the defenses of statute of limitations, laches, and collateral estoppel. These appellees, who are the present owners of the tract of real property in issue, also pleaded their respective purchase as bona fide purchases without notice of the disability of appellant, because the notice of the judgment of the Clark Circuit Court relating to appellant’s disability had not been certified and filed with the clerk of the Clark County Court as required by Ky.Rev. Stat. § 203.026 (hereinafter cited as KRS).

On June 10,1974, the lower court entered a judgment in favor of appellees dismissing the complaint of appellant and hence this appeal is prosecuted.

Appellant contends that his action is for cancellation of his deed of August 5, 1963, while under disability; and since he did not allege fraud or mistake, and because this was an action for the recovery of real property, that the statute of limitations KRS 413.010 allowing fifteen years, rather than KRS 413.120 allowing only five years should be applied. It strains the logic of reason to ask that a deed be cancelled on the basis of invalidity while denying that the statute of limitations which sets forth the grounds for such invalidity does not apply. Appellant has cited only one case on this point, being Spicer v. Holbrook, Ky., 66 S.W. 180 (1902). A careful reading of that holding is precisely in keeping with the lower court’s judgment here. The holding in Spicer, supra, is to the effect that a suit by one who was under disability at the time the deed was made was predicated as a fraud upon such person.

Perhaps no one else in this action knew of Herman’s condition, but his father certainly did because he had signed as petitioner in May, 1946, when such incompetency was adjudged, and was still in force on August 5, 1963. The taking of a deed from a known incompetent most surely must be fraud.

Such an action to set aside a conveyance so obtained can be nothing less than an action to which KRS 413.120(12) is clearly applicable, and must be brought within five years from the date the disability is removed or it is barred. Appellant has failed to comply therewith.

As to the various appellees who now own the real property, the court is of the opinion that their motions to dismiss were well taken. KRS 203.026 requires the circuit clerk, upon rendering of a judgment of incompetency, to immediately file an attested copy of same in the office of the clerk of the county court of the county where the judgment was rendered. The copy shall be filed and indexed in the book in which notices and encumbrances are indexed. The statute specifically provides that if said judgment is not so filed, “the judgment shall not constitute notice to any subsequent bona fide purchaser for value . . ”

Appellant pleads and relies upon the judgment declaring himself incompetent. He must not only plead the judgment but must plead its filing and indexing with the county clerk to charge a bona fide purchaser with notice. The complaint, as amended, fails to do this. It does not plead actual notice nor allege the purchasers were not bona fide. It is fatally defective in this regard and must be dismissed.

There is a more serious problem in this matter than either statute of limitations or bona fide purchaser for value without notice, for these conditions are dependent to some extent upon the opposite parties and what they may or may not do. The problem of laches and collateral estoppel involved in this action is much more serious, since these are a result of the appellant’s own failure to act where there is a duty upon him to do so.

CR 12.02 requires every defense, in law or fact, to a claim for relief in any pleading, to be asserted in the responsive pleading. The subject matter in the 1970 action, insofar as the trustee and the remaindermen are concerned, that is, the corpus of the estate and whatever interest any party to the action might have in same, is identical to the subject matter of the instant action as to those parties, Herman Powell, the Winchester Bank, and the remaindermen. Herman did not then assert his claim in that action. Different results should not grow out of the same dispute between the same litigants by reason of a fragmentation of claims and law suits when the entire matter could have been resolved in one action, indeed, when same had to be resolved in one action under the mandate of CR 12.02. To prevent just such a splintering of claims as is here attempted, the courts have now recognized the doctrine of collateral estoppel whereby a litigant is estopped to later assert a claim that existed and could have been asserted in a prior action involving the same subject matter and parties.

The appellees affirmatively asserted as one of their defenses collateral estoppel and the lower court, in deciding this matter, has reiterated the same terminology. Cases of this type refer to it as res judicata. When the case holdings of this jurisdiction are carefully analyzed, it appears that, whichever it may be called, the rule of law applicable to this kind of situation is that aspect of res judicata that is referred to as collateral estoppel; and it is binding upon the appellant. As was said in the case of Newman v. Newman, Ky., 451 S.W.2d 417, 419 (1970), which quoted from Combs v. Prestonsburg Water Co., 260 Ky. 169, 84 S.W.2d 15, 18:

The rule is elementary that, when a matter is in litigation, parties are required to bring forward their whole case; and “the plea of res judicata applies not only to the points upon which the court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” (Emphasis added).

For the reasons above stated, the judgment of the lower court is affirmed.

All concur.


author: COOPER, Judge.

text:
    Iley BROWNING, Jr., Appellant, v. Elizabeth L. BROWNING et al., Appellees.
    Court of Appeals of Kentucky.
    April 22, 1977.
    Discretionary Review Denied June 29, 1977.
    Robert P. Hastings, Louisville, for appellant.

      Spencer D. Noe, Stoll, Keenon & Park, Lexington, James F. Clay, Sr., Clay & Clay, Danville, for appellees.
    Before COOPER, HOGGE and REYNOLDS, JJ.
   COOPER, Judge.

This is an appeal from a judgment in the Fayette Circuit Court wherein the Appellee, Elizabeth L. Browning, instituted an action on or about August 19,1974, seeking a legal separation. The Appellant, Iley B. Browning, Jr., answered and countered for an absolute dissolution and subsequent thereto the Appellee amended her complaint seeking an absolute dissolution of marriage.

The Appellant, Iley B. Browning, Jr., and the Appellee, Elizabeth L. Browning, were married in Lexington, Fayette County, Kentucky, on June 11,1949. As a result of this marriage four (4) children were born to-wit: Elizabeth Graeme Browning, September 20, 1951; Iley B. Browning, , III (Trip), February 10, 1956; Larry Ann Browning, July 28, 1958; and Winlock Davidson Browning, June 29, 1965.

At the time of the trial of this case, two of the children were adults and two were minors. The two minor children were living with the Appellee, Elizabeth L. Browning, as it was stipulated earlier that she should have their care, custody and control.

The trial court, among other items, granted the Appellee one-third of the Appellant’s undivided interest in the 6.1% of the property known as the Harkins Mineral property owned by the Appellant, granted Appellee $300.00 per month maintenance for a period of five (5) years, and $7,000.00 on her attorneys’ fees.

This presents three questions to the Court of Appeals as follows:

1. Is Appellant’s 6.1% of undivided interest in the Harkins Mineral properties non-marital in that it was a gift from his mother?
2. Was the trial court in error in awarding Appellee maintenance in the sum of $300.00 per month for a period of five (5) years?
3.Did the trial court err in requiring Appellant to pay $7,000.00 toward Appellee’s Attorney’s fees?

The Appellant contends that the 6.1% undivided interest was a gift to him and that the trial court should not have included that in the marital property of the parties. The Appellee contends that the same was not a gift but was transferred to Appellant in consideration of the work that the Appellant- had done and was continuing to do for Appellant’s mother and the Harkins Mineral Corporation in which Appellant’s mother had a substantial interest.

The Appellant’s 6.1% undivided interest in the Harkins Mineral property originally came to him in the form of 1,240 shares of Harkins Mineral Corporation stock, which was later transformed to the 6.1% when the Corporation was dissolved, and the Appellant elected not to go into the partnership that was formed.

The testimony in the record is very voluminous by both Appellant and Appellee concerning the acquisition of the interest of the Appellant in the Harkins Mineral property.

On cross-examination Josephine H. Browning was asked certain questions, and she gave certain answers, as to the work her sons, Walter and Iley B. Browning, Jr., had done for her and Harkins Mineral Corporation, a part of which are as follows:

Q38: Have you ever made any type of statement that Walter and Iley earned their stock in the Corporation?
A: Not to my knowledge.
Q40: You could have made that statement though?
A: I could have made that statement. * * * * * *
Q42: You feel like Walter and Iley have earned their portion of the shares though?
A: I certainly do.

The Appellee’s testimony concerning the acquiring of stock in Harkins Mineral property by Appellant is supported by the testimony of their two adult children. Iley B. Browning, III testified in part as follows:

D4: Mr. Browning, have you ever heard your mother or grandmother, Josephine H. Browning, make any statement to you in the presence of your father concerning how the various interests of the Harkins Mineral property was transferred?
. . _ objection, ruling of Court, etc. _ _ _
A: My grandmother said many times how much work was done for the Corporation by my father and by my uncle, and has at one point talked to me about working for the Corporation, and by doing this they would transfer stock to me and I would work for the Corporation.

Elizabeth Graeme Browning, daughter, testified in part as follows:

D5: Do you recall any occasion when your father was present and a discussion was taking place between your grandmother and your father, or anyone else in your presence, in regard to how she happened to transfer shares of stock or interest in the Harkins Mineral properties to your father?
(The answer is really brought out in question D8)
A: On many occasions ever since I was a child, on holidays, Thanksgiving and Christmas, family gatherings, would say, “The boys have been working so hard for me. They are taking care of my interests.” When the subject of Harkins Mineral was brought up.

The question of non-marital or marital property rests on whether or not the Har-kins property was a gift or was received as a result of a consideration.

“A ‘gift’ in a common, ordinary, popular sense is a voluntary and gratuitous giving of something by one without compensation to another who takes it without valuable consideration.” Bowman’s Admr’s v. Bowman’s Ex’r, 301 Ky. 694, 192 S.W.2d 955 (1946).

The burden is on the Appellant to prove by clear and convincing proof that he acquired his interest by gift. The presumption that it is marital property has not been overcome by the Appellant during the trial of this action. We, therefore, find that the interest in the Harkins Mineral property is marital property and must be considered as such.

The next question concerns the awarding of maintenance to Appellee in the amount of $300.00 per month for a period of five (5) years.

This is a matter that comes within the discretion of the trial court. KRS 403.-200(2), (2)f, 403.210. In the case of Bell v. Bell, Ky., 494 S.W.2d 517 (1973), the Court of Appeals held that matters of maintenance and child support were within the sound discretion of the trial court.

The last question concerns the requiring of the Appellant to pay $7,000.00 toward the payment of Appellee’s attorney fee. In Wilhoit v. Wilhoit, Ky., 521 S.W.2d 512 (1975), the Court of Appeals, in speaking of the trial court’s discretion in awarding fees made the following comments:

“If there had ever been any doubt regarding the discretionary authority of the trial court to allocate court costs and award an attorney’s fee, KRS 403.220 laid that doubt to rest once and for all. As matters now stand, an allocation of court costs and an award of an attorney’s fee are entirely within the discretion of the court.”

We have examined the record in this proceeding and the finding of fact and conclusions of law, and have determined that the judgment of the Court was supported by substantial evidence and there was no abuse of discretion on the part of the Court in this matter.

The judgment is affirmed.

All concur.


author: HOWARD, Judge.

text:
    VOLVO OF AMERICA CORPORATION, and Volvo Capitol, Inc., Appellants, v. J. K. WELLS, and Volkswagen of Huntington, Inc., Appellees.
    Court of Appeals of Kentucky.
    May 27, 1977.
    Gregory L. Monge, Vanantwerp, Hughes, Monge & Jones, Ashland, for appellants.

      John V. Porter, Michael J. Schmitt, Wells, Porter & Schmitt, Paintsville, for J. K. Wells.
    S. H. Johnson, Paintsville, for Volkswagen.
    Before HOWARD, LESTER and PARK, JJ.
   HOWARD, Judge.

This is a suit for revocation of acceptance and/or breach of warranty in regard to the purchase of a new Volvo automobile by the appellee, J. K. Wells. On January 18, 1975, the plaintiff purchased from the defendant, Volkswagen of Huntington, Incorporated, one 1974 Volvo automobile. The purchase was made at the dealer’s place of business in Huntington, West Virginia, but the Volvo was delivered to the plaintiff-appellee in Paintsville, Kentucky, where the bill of sale was also delivered and the plaintiff-appellee delivered his trade-in which was a 1974 Oldsmobile Cutlass and his bill of sale.

The proof is uncontradicted that the plaintiff-appellee had considerable trouble with the vehicle which developed the habit of completely stalling on high speed highways without any warning to the plaintiff-appellee. This happened on several occasions and the testimony of the plaintiff-ap-pellee and his wife are very graphic as to the danger and difficulty they encountered because of the failure of this vehicle to perform. The car was taken back to the dealer on several occasions and the testimony shows that there was a defective computer control and electronic and electrical ignition system which caused the motor to die or stall and it would take from one-half (½) hour to a couple of hours for the vehicle to cool off and start again. On the occasions that the vehicle was taken in the plaintiff-appellee was assured that the new parts would remedy the situation, but he continued to have trouble. Within a reasonable time, Wells returned the vehicle to the dealer and demanded a return of the purchase price.

The suit was brought and a trial by jury had resulted in a verdict for the plaintiff-appellee for the purchase price and a directed verdict in favor of the defendant-appel-lee, Volkswagen of Huntington, Incorporated, on its plea for indemnity. To the finding of the jury and court on all these matters the defendant-appellants hereby appeal complaining of these errors:

(1) That the Johnson Circuit Court did not have jurisdiction under the long arm statute of Kentucky of the defendants-appellants.
(2) That the Court should have ruled that the implied warranties were properly disclaimed.
(3) That the Court was in error in directing a verdict for the dealer on its plea of indemnity.

The Kentucky Revised Statutes Section 454.210 is the so called long arm statute in Kentucky. Subsection 5 reads as follows:

Causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when the seller knew such person would use, consume, or be affected by the goods in this Commonwealth if he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth.

The defendants-appellants claim that this statute is not sufficiently broad to give the Johnson Circuit Court in personam jurisdiction or, if so, that same is not constitutional. We disagree with this contention since the evidence shows that these companies handle the manufacturing and distribution of Volvo automobiles in the United States of America. Although this particular automobile was bought from a dealer in Huntington, West Virginia, it is not unreasonable to require the Volvo companies to be responsible for their product after the product enters the main stream of commerce. It must be assumed that these defendants-appellants knew or should have known that the vehicles they shipped to this particular dealer in Huntington, West Virginia, would be likely to end up being owned and driven by citizens and residents of the state of Kentucky, the state of Ohio, as well as West Virginia, since Huntington is the commercial center of the tri-state area of these three (3) states. Furthermore, the record shows that Volvo advertises in the state of Kentucky. Also, Volvo states in its driver’s manual that its dealers are authorized to service Volvos anywhere in the country, including dealerships in Kentucky. This is sufficient to qualify for in personam jurisdiction under the phrase in the statute . . . “if he also regularly does or solicits business . . . ” and . “engages in any other persistent course of conduct”. Although there was no direct evidence in the record, it must be assumed that Volvo derived substantial profits from the sale of Volvo automobiles in the state of Kentucky.

As to the constitutionality of this particular statute in regards to this case we feel that the trial court was correct on this issue. In the case of Eyerly Aircraft Company v. Killian, 414 F.2d 591 (1969) the Fifth Circuit upheld the Texas long arm statute in a suit where a child was injured at a carnival on a ride manufactured by Eyerly Aircraft Company in Oregon and sold in Chicago. The Company had no direct contact with the state of Texas. The Court held that considering the manufacturer had reason to know or expect that its product would be brought into the state of Texas that it was sufficient to support the Texas long arm jurisdiction over the manufacturer. In this Opinion it is stated that “What is essential in each case is that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus involving the benefits and protections of its laws.” The Court further stated that this result (upholding in person-am jurisdiction) obtains where the manufacturer has elected to distribute his wares through independent wholesalers instead of through its own corporate apparatus so that it is only very indirectly responsible for the product reaching the injured consumer. The present trend is to take the next logical step and hold that a corporation is answerable where it introduces its product into the stream of interstate commerce if it had reason to know or expect that its product would be brought into the state where an injury occurred. Also it is stated “where a defendant does business of such volume or with such a pattern of product distribution, that he should reasonably anticipate that his product may be ultimately used in any state, he has done the act required for the exercise of jurisdiction by the state where the injured user resides.” Furthermore, the court citing Keckler v. Brookwood Country Club, 248 F.Supp. 645, 649 (N.D.Ill.1965) states:

“When a manufacturer voluntarily chooses to sell his product in a way in which it will be resold from dealer to dealer, transferred from hand to hand and transported from state to state, he cannot reasonably claim that he is surprised at being held to answer in any state for the damage the product causes. Nor can he deny the substantial interest of the injured person’s state in providing a convenient forum for its citizens.

It was not unreasonable for the trial court to hold that the section of the statute above quoted applied to the defendants-appellants in this case. If the contentions of the defendants-appellants in this case were upheld there would be no way that you could have a products liability case or breach of warranty case brought in any state except where the manufacturer or distributor of the product had its place of business. Certainly that would be an illogical and unfair doctrine and contrary to the trend of the federal cases on this particular point.

Secondly, it is complained that the warranties other than the expressed warranties were disclaimed by the wording of the warranty booklet. On page 8 of the warranty booklet which was introduced in evidence there is a disclaimer which is in slightly different print than the other provisions and printing on the warranty manual. However, it is very difficult to ascertain this difference and it is certainly not a bold print or an enlarged print of the disclaimer as we believe was contemplated by the decisions in the cases of Massey-Ferguson, Inc. v. Utley, Ky., 439 S.W.2d 57 (1969) and Childers & Venters, Inc. v. Sowards, Ky., 460 S.W.2d 343 (1970). Therefore, the trial court was correct in overruling the motion for directed verdict on this particular point made by the defendants-appellants in this case. It is true that in cases of rescission or revocation of acceptance that the buyer's remedy is against the seller, but Volvo would be liable for damages for breach of warranty. Voytovich v. Bangor Patna Operations, 494 F.2d 1208 (Sixth Circuit 1974); Conte v. Dawn Lincoln Mercury, 374 A.2d 144 (Conn.Supreme Court 1976). Volvo does not argue that the instruction on measure of damages is erroneous. It allowed the jury to find for Wells for recovery of the sale price and expenses against all the defendants. No objection to this instruction is noted in the record, and therefore Volvo is bound by it. Duo-Therm Div., Motor Wheel Corp. v. Sheergrain, Inc., Ky., 504 S.W.2d 689. As the dealer was entitled to indemnity as discussed below, the result would have been the same as far as Volvo is concerned.

Thirdly, the defendants-appellants complain of the directed verdict against them on the question of indemnity. The trial court sustained the motion of the dealer who was a defendant, namely Volkswagen of Huntington, Incorporated, for indemnity against these defendants-appellants as there was no evidence of any failure on the part of the dealer which would have contributed to the difficulty encountered in the operation of this automobile. The evidence shows that all the problems involved were the resuit of defective parts and the dealer was forbidden by the manufacturer from making repairs on these. It merely replaced these parts. The evidence was clear that .the dealer had made attempts to remedy all the problems encountered by Mr. Wells and had loaned him a car at its expense while the Volvo was being repaired. There was a joint judgment against all the defendants including Volkswagen of Huntington, Incorporated, in favor of Mr. Wells, and the plea for indemnity was properly made and we believe under the evidence that the trial court made the right decision. Kroger Company v. Bowman, Ky., 411 S.W.2d 339 (1967), Brown Hotel Company v. Pittsburgh Fuel Company, 311 Ky. 396, 224 S.W.2d 165 (1949), Liberty Mutual Insurance Company v. Louisville & Nashville Railroad Company, Ky., 455 S.W.2d 537 (1970).

The judgment of the trial court is affirmed.

All concur.


author: MARTIN, Chief Judge.

text:
    Bruce BRAINARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1977.

      Jack Emory Farley, Public Defender, Com. of Kentucky, Frankfort, for appellant.
    Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and GANT and HAYES, JJ.
   MARTIN, Chief Judge.

On October 25, 1974, Bruce Brainard left the basketball floor at Alumni Gym on the campus of the University of Kentucky in Lexington to get a drink of water. He did not return and was arrested on May 29, 1975, for escaping from confinement. On February 11, 1976, he was indicted for this by the Oldham Circuit Court grand jury and charged with violating KRS 432.390. On February 24, 1976, he was found guilty by a jury and given a sentence of three years.

The defendant who was twenty-two years old when tried in Oldham Circuit Court has not been a stranger to the criminal process. His confinement in October, 1974 had begun with a commitment to the Kentucky Department of Corrections on July 14,1974. He had been found guilty of storehouse breaking in the Fayette Circuit Court and sentenced to the Kentucky State Reformatory at LaGrange, Kentucky. On October 21, 1974, he was delivered to the Off Broadway House, a drug rehabilitation center in Lexington. This transfer by the Kentucky Department of Corrections was under an order of the Fayette Circuit Court. He began the therapy but developed difficulty in adjusting to the living arrangements and four days later went AWOL.

While the indictment for the escape did not follow the statute verbatim, it was sufficiently detailed to advise Brainard of the charge he faced.

While showing great restraint, the trial judge at the trial allowed both the Commonwealth Attorney and defense counsel to develop each side of the case as they saw fit. A reading of the whole record allows only one conclusion to be drawn. Brainard received a fair trial. We affirm.

At the beginning of the trial, the defendant, his attorney, and the Commonwealth Attorney met with the Judge in his chambers. Brainard’s defense was to be that he escaped because he was fearful of an assault by fellow prisoners. The incident, which created this fear, was a homosexual assault which took place in the Fayette County Jail two and a half years before the 1974 escape. Brainard’s argument was he had reported the incident and those involved had been tried and convicted and they were “out to get me.” He further stated that fellow inhabitants of the drug center were also out to punish him because he had revealed the homosexual incident during a therapy session.

The trial began and the Commonwealth substantially proved the offenses. Brai-nard testified in his own behalf. On cross-examination the Commonwealth elicited the fact that Brainard had walked away from a similar half-way house in Louisville sometime before the Lexington incident. The trial judge sustained the objection of defense counsel to this line of questioning. On this appeal Brainard contends, even though the objection was sustained, he did not receive a fair trial because of his affirmative response to the question by the Commonwealth Attorney, referring to the Louisville incident, “and you escaped from there and got caught?”

In all probability both the defense of the incident two and a half years earlier and the prior escape should have been excluded. However, in an abundance of caution the trial court allowed both sides wide latitude in developing their case. Testimony relating to both matters was not so substantially damaging so as to result in a denial of due process.

As was pointed out in Rake v. Commonwealth, Ky., 450 S.W.2d 527 (1970), the prosecution is given wide latitude in ascertaining the motive that actuated the commission of the crime charged. The purpose of the question by the Commonwealth was to show an intent to escape even before Brainard’s transfer to Lexington. Through the careful admonition of the trial court, no substantial error was committed.

The judgment of the circuit court is affirmed.

All concur.


author: WILHOIT, Judge:

text:
    OWENSBORO-ON-THE-AIR, INC., Appellant, v. James M. TINIUS, Daviess County Property Valuation Administrator, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1977.
    Morton Holbrook, Jesse T. Mountjoy, Sandidge, Holbrook & Craig, P. S. C., Ow-ensboro, for appellant.
    William P. Sturm, Legal Staff, Ky. Dept, of Revenue, Frankfort, for appellee.
    Before MARTIN, C. J., and WILHOIT and WINTERSHEIMER, JJ.
   WILHOIT, Judge:

The principal question presented on this appeal is whether the Daviess Circuit Court erred in holding that the County Property Valuation Administrator properly refused to exempt from local ad valorem taxes for the years 1975 and 1976 the coaxial cable owned by appellant as a part of its Cable Television (CATV) system.

KRS 132.200 sets out certain classes of personal property which are subject to taxation for state purposes, but exempt from local ad valorem tax. Subsection 5 of that statute exempts from local taxation:

(5) Commercial radio, television and telephonic equipment directly used or associated with electronic equipment which broadcasts electronic signals to an antenna; however, radio or television towers not essential to the production of the wave or signal broadcast shall not be included. (Emphasis added).

The trial court concluded that the coaxial cable owned by appellant did not come within the exemption and that the cable was therefore subject to county, city, school and other ad valorem taxes. The court found as fact in support of its conclusion that broadcasting involves transmitting to the public in general whereas appellant’s system transmits only to those persons allowed by the appellant to receive its signal, and that no antennas are used by appellant in transmitting its cable television signals via coaxial cables from its stations to a subscriber’s television set.

Appellant argues that in arriving at its decision the trial court improperly assigned a popular meaning to the term “broadcasts” as used in the statute since the term “broadcasting” has a technical meaning apart from its popular meaning. Under the rule stated in Katzman v. Commonwealth, 140 Ky. 124, 130 S.W. 990 (1910), appellant believes the court was obliged to use the technical meaning of the term as understood by the trade or profession to which it applies in construing the statute. The only technical definition of the term “broadcasting” appearing in the record is that assigned to the term by appellant’s expert witness and appellant insists that the court improperly rejected that definition.

Appellee counters that KRS 446.080(4) provides that in statutory construction all words shall be construed according to the common and approved use of language except technical words which have acquired a peculiar and appropriate meaning in the law. The purpose of this statute according to appellee is to encourage the use of common word meanings whenever possible in interpreting statutes. Further, appellee argues that the majority view of courts which have considered the question is that the term “broadcasting” as used in various statutes refers to its popular definition.

We do not believe the trial court erred in refusing to accept the definition of broadcasting as given by appellant’s expert witness. Even if the term has acquired a technical meaning it is clear that this witness was testifying as to “my own conception of what I consider broadcasting” and not as to the meaning of the term in any accepted technical sense or as understood in the trade or profession. In fact, we are more persuaded that appellant’s CATV system involves “broadcasting” within the common and approved usage of the term than we are that it comes within a possible technical meaning of the term. See Ohio Valley Cable Corp. v. Porterfield, [1971] State Tax Cas. Rep. (CCH) ¶ 200-473 (Ohio Board of Tax Appeals). The technical term for appellant’s operation appears more likely to be “cablecasting” than broadcasting. See, e. g., 47 C.F.R. § 74.11010) and Hoffman v. Capitol Cablevision Systems, Inc., 82 Misc.2d 986, 372 N.Y.S.2d 482 (1975).

In any event, we do not need to reach the question of whether a CATV system “broadcasts” within the meaning of KRS 132.200(5) since it certainly does not do so to an “antenna” as that term is used in the statute. Appellant sought to establish through the testimony of its expert witness that the transformer used in connection with receiving CATV signals performs a similar function to that performed by an antenna in receiving standard radio or television signals and that consequently a transformer is actually an “antenna”. Although the expert admitted that a transformer is “formally called a transformer” and is also called a transformer in “common terminology”, he opined that in one definition you could call it an antenna. That one definition turns out to be “my own conception in my opinion what I consider to be an antenna”. He does state that the most experienced radio communications engineers would agree as to what present day antennas are but we find no persuasive evidence in his testimony or elsewhere in the record that the term “antenna” either in its common use or in any generally accepted technical sense has acquired a meaning which embodies a transformer. Both may perform similar functions, but they are not the same. We, therefore, find no basis for holding that the Legislature intended to include a transformer within the meaning of the word “antenna” as used in the statute and the judgment of the trial court is affirmed.

All concur.


text:
    James R. YOCOM, Commissioner, Department of Labor of Kentucky, for Himself and on Behalf of Rick Burke, James Stewart and John Webb, Appellant, v. FRANKLIN COUNTY FISCAL COURT et al., Appellees.
    Court of Appeals of Kentucky.
    May 27, 1977.
    E. H. Tingle, Asst. Counsel, Dept, of Labor, Frankfort, for appellant.
    William A. Young, County Atty. of Franklin County, Frankfort, for appellees.
    Before MARTIN, C. J., and PARK and GANT, JJ.
   MARTIN, Chief Judge.

The Kentucky Department of Labor by a complaint filed in the Franklin Circuit Court alleged that the Franklin County Fiscal Court was liable for overtime pay due three deputy jailers. The Franklin Circuit Court disagreed, dismissing the complaint on the basis that any liability rested with the Franklin County Jailer, an elected constitutional official who was not a party to these proceedings. This appeal followed, and we affirm.

As determined in the findings of the trial court, this dispute began in the Spring of 1976 when the Department of Labor conducted an audit of the time and pay records of certain employees of the Franklin County Jailer. Without a great deal of investigation and supported by the affidavits of the deputy jailers, it was determined by the department that the Franklin County Fiscal Court owed these men $6,500.00 for overtime work. This computation was based on alleged work performed by these deputy jailers in excess of forty hours per week for which they were paid. The Fiscal Court refused to pay since they had never been employees of the county.

The Jailer of a county may under KRS 71.060 appoint two deputy jailers. Any additional deputy jailers must be approved by an appropriate order of the county court. In the present case the Franklin County Court has no record of approving the employment of the deputies who are the beneficiaries of the claim brought by the Department of Labor.

The Department of Labor has failed to show why the case of Todd County Fiscal Court v. Frey, Ky., 285 S.W.2d 499 (1956), is not controlling in the present circumstance. In that case the County Treasurer of Todd County made claim against the Fiscal Court for office rent and supplies which the court was to have provided during her term of office. In denying the claim even though the statutes required that such items be supplied, the court held no such arrangements are binding upon the county without the appropriate order of the county fiscal court.

As was pointed out in Knott County Fiscal Court v. Duke, 157 Ky. 499, 502, 163 S.W. 459, 461 (1914), the Jailer of a county has “no authority whatever to expend any money for any purpose, intending to make it a charge against the county, without first obtaining the consent and direction of the fiscal court.”

The reasoning by which the trial court reached its decision is sound and the Judgment dismissing the complaint is affirmed.

All concur.


author: HAYES, Judge.

text:
    Danny D. JOHNSON, Appellant, v. William E. SMITH, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1977.
    Paul H. Twehues, Jr., Newport, for appellant.
    Bernard Blau, Newport, for appellee.
    Before HAYES, HOWERTON and REYNOLDS, JJ.
   HAYES, Judge.

This appeal is from a judgment of the Campbell Circuit Court granting the defendant/appellee’s motion to dismiss the plaintiff/appellant’s complaint as to him and to quash the return of summons served upon the defendant under the “long arm statute”, KRS 454.210.

Danny D. Johnson was a student at Silver Grove High School. Apparently while testing some chemicals during class, an explosion occurred and Danny was seriously injured. William E. Smith was a teacher. Danny filed a complaint on October 16, 1974, against Smith, Bernard Sandfoss, Jr., the principal, and Paul Wright, the Superintendent of the Lawrence County Schools, claiming the negligence of the defendants was the cause of the explosion that resulted in the severe and permanent injuries to Johnson. The incident occurred in February, 1973, at which time Johnson was a minor.

Smith had moved from the Commonwealth of Kentucky to either Michigan or Ohio and was a non-resident when the suit was filed. Service of process was had on Smith through the Secretary of State under the provisions of the “long arm statute”, KRS 454.210.

Smith, without entering his appearance, filed a motion to dismiss the complaint for lack of jurisdiction and to quash the return of summons served upon him because at the time of the injury to Johnson, he, Smith was a resident of Kentucky, and therefore, the long arm statute did not apply.

The Circuit Court entered an order on May 23, 1975, granting the appellee’s motion to dismiss as to Smith only, leaving Sandfoss, Jr., and Wright as parties to the original action. The trial court stated that the order was a final and appealable order. This order was modified on June 16, 1975, a result of the appellant’s motion filed June 2, 1975. The modified order deleted the statement that the order was a final and appealable order; otherwise it was the same as the original order of May 23rd.

Almost a year later, on May 21, 1976, an order of dismissal of the complaint was entered since the case had been settled by and between Johnson and Sandfoss, Jr., and Wright. From this final order, the appellant filed his notice of appeal. Two issues arise by virtue of this appeal:

(1) Is the appeal timely?

(2) Whether or not a non-resident defendant upon whom process is served pursuant to KRS 454.210 is amenable to the jurisdiction of the courts of Kentucky for a tortious act committed in this state when the defendant was a resident of this state.

We answer both questions in the affirmative and, therefore, reverse the judgment of the trial court. In fairness to the trial court, we must state that this decision results in a rule of law not heretofore stated in this commonwealth.

CR 54.02 states that where there are multiple parties involved in a suit and an order is entered granting a final judgment as to one or more but less than all the parties, the judgment must recite that it is final and that there is no just reason for delay. (Emphasis added). If the order does not recite this then it is not final and appeala-ble and is therefore subject to modification at any time before entry of the judgment adjudicating all the claims. (Emphasis added).

CR 54.02(2) states:

When the remaining claim or claims in a multiple claim action are disposed of by judgment, that judgment shall be deemed to readjudicate finally as of that date and in the same terms all prior interlocutory orders and judgments determining claims which are not specifically disposed of in such final judgment.

Even though the original order of the trial court stated that it was a final and appealable order, the motion on behalf of Johnson under CR 59.05 to amend was timely and the trial court did “modify” (amend) the “order” (judgment) and delete the language required by CR 54.02. This “modified order” then under 54.02(2) became final and appealable on May 21, 1976, almost a year later, when the final disposition of all claims was entered by Campbell Circuit Court. See Garrison v. White, Ky., 332 S.W.2d 289 (1960) and Linkous v. Darch, Ky., 299 S.W.2d 120 (1957).

The second issue involved is apparently one of first impression in Kentucky. KRS 454.210 states, inter alia:

(1) As used in this section, “person” includes an individual, . . . who is a non-resident of this commonwealth.
(2)(a) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a claim arising from the person’s: ... 3. Causing tor-tious injury by an act or omission in this commonwealth.

The Kentucky legislature also enacted another so called long arm statute found in Chapter 188 of the Revised Statutes in regard to non-resident motorists. Of particular importance here is KRS 188.070: “The provisions of KRS 188.010 to 188.060 shall apply to any operator or owner of any motor vehicle who is a resident of this state at the time any accident or collision or damage occurs and who thereafter becomes a nonresident.”

Appellee contends this is an indication of the intent of the legislature not to extend KRS 454.210 to persons who are residents of this commonwealth when the tortious act, other than an auto accident, is committed. That line of reasoning continues that long arm statutes generally are contrary to common law, and that in construing statutes that are contra to common law, the intent of the legislature must be ascertained as nearly as possible and the statute narrowly construed. See Mann v. Humphrey, 257 Ky. 647, 79 S.W.2d 17 (1935). This line of reasoning, which the appellee would have this court adopt, is followed by a great many jurisdictions. See Fagan v. Fletcher, 257 Iowa 449, 133 N.W.2d 116 (1965), and general comments on the subject found in 62 Am.Jur.2d Process, Section 79, (1972).

Some courts, however, have used rather resourceful means to extend the particular long arm statute to apply to persons who are residents at the time of the act. The U.S. District Court in Garcia v. Frausto, 97 F.Supp. 583 (D.C.Mo.1951) used the wording in the title of the statute in question to indicate that the Missouri legislature meant by “an act to provide for the bringing of civil action against non-resident owners, users and operators of motor vehicles” that only one class of defendant was contemplated and that was a non-resident at the time of the “bringing” of the suit.

This court adopts the same reasoning in interpreting KRS 454.210. By use of the words, “(2)(a) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a claim arising from the person’s: . . .”, the legislature meant that only defendants against whom a claim has been filed are contemplated, and the determining factor is whether that person is a non-resident at the time the claim is asserted in court. (Emphasis added).

It would appear any other construction placed upon KRS 454.210 would be unjust and defeat the intention of all “long arm” statutes, that intent being to give the courts jurisdiction over defendants who have caused injury to someone in a state and who now live elsewhere when a claim for that injury is presented. This idea conforms to traditional notions of fair play and substantial justice. It is of no significance where the defendant resided at the time of the tortious act. The Kentucky legislature recognized this and enacted KRS 188.070. And even though this particular statute may have been enacted as a result of the commonwealth’s exercise of its police powers, there is no valid reason why this protection should not be extended to the citizens of this commonwealth under KRS 454.210. It is so held.

The judgment of the lower court on this issue is reversed and the trial court is directed to deny the motion to quash the serving of the summons on Smith.

All concur.


text:
    DEPARTMENT OF REVENUE, Commonwealth of Kentucky, Appellant, v. CUMBERLAND PRODUCTION CREDIT ASSOCIATION, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1977.

      William S. Riley, Asst. Atty. Gen., William P. Sturm, Atty., Legal Staff, Dept, of Revenue, Frankfort, for appellant.
    John T. Mandt, Mandt & McEnroe, Somerset, for appellee.
    Before HOWERTON, COOPER and REYNOLDS, JJ.
   HOWERTON, Judge.

The County Court Clerk of Pulaski County, Kentucky, has collected the sum of $1.00 each time Appellee, Cumberland Production Credit Association, has recorded a mortgage in the Clerk’s Office. The tax has been collected under the authority of KRS 142.-010(l)(d) which provides for:

A tax of one dollar ($1.00) on each power of attorney to convey real estate or personal property; on each mortgage, financing statement, security agreement or conveyance of real or personal property, and on each lien or conveyance of coal, oil, gas or other mineral right or privilege; except that no tax shall be paid on any chattel mortgage, financing statement or security agreement unless the amount thereof exceeds two hundred dollars ($200); .

Cumberland Production Credit Association claims to be exempt from this tax under the provisions of KRS 136.300 which provides as follows:

(1) By July 1, succeeding the filing of the report provided for in KRS 136.290, each domestic savings and loan association and each production credit association shall pay directly into the State Treasury a tax of $1 for each $1,000 paid in on its capital stock as fixed in KRS 136.290. The individual shareholders shall not be required to list their shares for taxation for any purpose. The association shall not be required to pay local taxes on its capital stock, surplus, undivided profit, notes, mortgages or other credits and the tax provided by this section shall be in lieu of all taxes for state purposes on property of the association. Failure to make reports and pay taxes as provided in this section and in KRS 136.-290 shall subject the association or bank for cooperatives to the same penalties imposed for such failure on the part of the other corporations. . . .

The trial court found that KRS 136.300(1) did exempt the Plaintiff/Appellee from payment of the one dollar tax on its mortgages as provided for in KRS 142.010(l)(d). The Commonwealth prosecutes this appeal.

Clearly, the tax levied in KRS 136.300 is to take the place of all other state taxes on property. Thus, if the tax in KRS 142.-010(l)(d) is a tax on property, the credit association would not be liable for the tax. The question, therefore, is whether or not the one dollar tax is a tax on property.

KRS Chapter 142 deals with “Miscellaneous Taxes”. A separate chapter outlines “property taxes” which are taxes assessed on the fair cash value of the property involved. There was clearly no legislative intent that the tax of KRS 142.010(l)(d) be a tax assessed on the fair cash value of the property involved. Indeed, if the “tax” was a property tax, it would be in violation of §§ 172 and 174 of the Kentucky Constitution, requiring property taxes to be paid on value. Rather, it is our interpretation that the tax in that section is an excise tax, being one imposed directly by legislature without assessment and measured by amount of business done.

We do not question the fact that a mortgage itself is property. Rather, it is our conclusion upon a reading of the statute that it is not the property aspect of the mortgage which is being taxed, but the transaction of the recording of the mortgage. KRS 142.010(2) reads in part, “The tax imposed by this section shall be due when the process or instrument is filed or issued, or copies thereof furnished.”

Cumberland Production Credit Association is not exempt from the excise tax imposed by KRS 142.010(l)(d). The decision of the circuit court is reversed.

All concur.


author: LESTER, Judge.

text:
    Dwight MURPHY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1977.

      Jack Emory Farley, Public Defender, Edward C. Monahan, Andrew L. Vandergaw, Asst. Public Defenders, Benton, for appellant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, Woodson T. Wood, Commonwealth Atty., 19th Judicial Dist., Maysville, for appellee.
    Before HOGGE, LESTER and WHITE, JJ.
   LESTER, Judge.

Appellant, Dwight Murphy, was indicted for receiving stolen property valued in excess of $100.00 in violation of KRS 514.110. On September 7, 1976, Murphy appeared before the Mason Circuit Court, represented by counsel, and stated that he had been advised of his rights; that he desired to enter a plea of guilty from which there would be no appeal; that he had been informed that the Commonwealth would recommend a sentence of one year which recommendation would not be binding upon the court and that the maximum penalty could be five years incarceration. Moreover, the court advised appellant that he was not required to enter the plea and if he so desired, he could have a speedy jury trial. The circuit court then found that Murphy’s plea of guilty was voluntarily entered and appellant, his counsel, the Commonwealth’s Attorney and the trial judge signed the transcript. Thereupon, the court postponed sentencing until September 28,1976, and at that time the punishment was fixed at five years which was probated for a like period. Nothing in the record even suggests that Murphy objected to the five year probated sentence as opposed to the one year’s incarceration recommended by the Commonwealth nor did he move to withdraw his plea of guilty.

Sometime later on the same day, appellant went to the home of Gay Lang, a witness who appeared before the grand jury in Murphy’s behalf, who refused him admittance. Mrs. Lang returned to her bedroom on the second floor and saw her window being opened but she did not know who was attempting to get in her quarters. Thereupon, Gay ran out of the house and down the street to her employer’s home and during her journey, she claims she saw Dwight chasing her all of which resulted in appellant being charged with harassment although no warrant to that effect appears in the record. Moreover, we observe an order in the record which revoked Murphy’s probation reciting that he had violated his probation and in spite of a hearing having been held to so determine if he had in fact been guilty of harassment and violation of probation, there is nothing in the record making specific charges to that effect.

Defendant below first complains that it was error for the trial court not to afford an opportunity to withdraw the plea of guilty citing as authority therefor Wood v. Commonwealth, Ky., 469 S.W.2d 765 (1971) wherein the prosecutor agreed not to oppose probation but in fact did so to the probation officer who included such objection in his report. In the case at bar, the representative of the Commonwealth did everything that he said he would do, namely, recommend a one year sentence while in Wood the contrary is true. Appellee correctly directs our attention to Couch v. Commonwealth, Ky., 528 S.W.2d 712 (1975) where we note that a motion was filed for leave to withdraw the guilty plea (which was not done in the case at bar). Commissioner Catinna held:

Couch and his counsel were afforded opportunities down to the very last minute to withdraw the plea of guilty, and we can find nothing in this record to indicate that he was in any way misled and surely not to the extent that the plea became involuntary. This court is of the opinion that the trial court properly exercised its discretion under RCr 8.10 in denying Couch’s motion to withdraw his guilty plea.

A perusal of the record and the Couch decision indicate that the cases are almost identical the appellant’s reply brief notwithstanding to the contrary. If we adopted Murphy’s position in regard to the first issue standing alone, it would have the effect of exposing him to a year or more in the penitentiary in lieu of probation.

Appellant assigns as error three additional issues, to wit, the failure to serve upon him written notice of the charges against him or the nature of the proceedings to be held, failure to hold a bifurcated probation hearing and failure to require the Commonwealth to prove the charges against him by a preponderance of the evidence. In support of his position, Murphy relies upon Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) which deal with the minimal due process requirements attendant upon revocation of probation. In Morrissey, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, at 33 L.Ed.2d 484, 499 the criteria was set forth by Chief Justice Burger speaking for the majority. A parolee’s constitutional rights are protected when revocation is being considered if (1) a written notice of the claimed violations of parole are served, (2) a disclosure of the evidence to be used is made, (3) an opportunity is granted to be heard in person, present witnesses and documentary evidence, (4) confrontation and cross-examination of witnesses is afforded (unless a specific finding for good cause is made to the contrary), (5) a neutral and detached hearing body conducts the procedure and (6) a written statement is made by the fact finder(s) as to the evidence relied on and the reasons for revoking parole. We see no distinction between probation and parole because Gagnon deals with the former while Morrissey the latter. Since the appellant was tried by the circuit court, we do not believe that the Morrissey decision requires a preliminary hearing as well as a revocation hearing. The Supreme Court was speaking in the terms of a procedure before an independent administrative officer (not a parole officer nor necessarily a judicial officer) to determine if there is probable cause or reasonable ground to believe that an act has been committed constituting violation of conditions of probation, while the second hearing must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. We do not believe the foregoing procedure would apply where a court of competent jurisdiction, such as the Mason Circuit Court, conducted the appropriate inquiry.

Contrary to the argument propounded by appellant, the Supreme Court has not prescribed the double hearing procedure, for in Morrissey it held that:

(w)e cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds. Our task is limited to deciding the minimum requirements of due process.

Chief Justice Burger referred to this Commonwealth as one among twenty-nine others that have provided for some type of hearing. See Brickey, Kentucky Criminal Law, § 29.09 (1974) and KRS 533.050 formerly KRS 439.430(1).

There is no doubt that appellant was not served with notice that a hearing would be held for the purpose of determining whether there was probable cause to believe that he had violated his terms of probation with specificity and accordingly, we must return this cause to the Mason Circuit Court for compliance with the Mor-rissey due process requirements. At this hearing, it will be incumbent on the Commonwealth to show by a preponderance of the evidence that the appellant has violated the terms of his probation. We must reject the appellee’s argument that Murphy failed to preserve his position as to notice for appellate review pursuant to RCr 9.22 by failure to make timely objection for we believe that his constitutional rights should be afforded him regardless of the criminal rules.

In conclusion, we hold that appellant’s conviction based upon his plea of guilty, was proper but that the cause is to be returned to the trial court with directions to grant appellant a new revocation hearing in conformity with this opinion.

The judgment is affirmed except so far as it is inconsistent with this opinion.

All concur.


author: PARK, Judge.

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Wilburn BUTCHER et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1977.
    Discretionary Review Denied June 29, 1977.

      G. C. Perry, III, Paintsville, Fred G. Francis, Prestonsburg, William L. Huffman, Workmen’s Compensation Bd., Frankfort, for appellees.
    William F. Gadd, Dept, of Labor, Frankfort, for appellant.
    Before HOWARD, LESTER and PARK, JJ.
   PARK, Judge.

The appellee, Wilburn Butcher, filed a claim with the Workmen’s Compensation Board asserting that he was totally and permanently disabled from silicosis as a result of being exposed to the hazards of silicosis while employed over a long period of years in the coal industry. March 14, 1972, was given as the date of Butcher’s disability. On December 17, 1973, the Board entered an order dismissing Butcher’s claim on the ground that he had failed to prove that he had been continuously exposed to the hazards of the disease for at least two years immediately prior to his disability. The Board found that there was a four months’ interruption in Butcher’s exposure to the disease in that he did not work in the coal industry from December 10, 1970, through April 19, 1971. Young v. Jones, Ky., 481 S.W.2d 268 (1972); KRS 342.316(4). The order dismissing Butcher’s claim was appealed to the Johnson Circuit Court. The circuit court ruled that the refusal of the Board to consider a deposition of Butcher taken October 18,1973, was arbitrary, capricious and an abuse of discretion. KRS 342.285(3)(e). The circuit court remanded the case to the Board with directions that the Board consider all of the evidence offered by Butcher. The Special Fund appeals.

The record before the Board reveals the following chronicle:

April 4, 1972 Butcher’s claim filed with the Board.
April 14, 1972 The Special Fund filed a motion that the Board hold Butcher’s claim in abeyance, or, in the alternative, dismiss the claim on the ground that Butcher’s application failed to set forth his work history as required by KRS 342.-316(2)(b)(l). The motion asserted that, “the work history contained in plaintiff’s application is a rambling and narrative account containing few if any specific dates of employment.”
May 4, 1972 The Board sustained the motion to hold the claim in abeyance until Butcher filed a further work history. May 15, 1972 Butcher amends his original application by tendering a handwritten work history. This work history revealed a four month interruption in Butcher’s employment in the coal industry running from the date his employment was terminated with the Lois Coal Company on December 10, 1970, until his employment by the Bonnie Coal Company on April 19, 1971.
June 12, 1972 The Board set aside its order holding the case in abeyance and ordered the amended work history filed. June 23,1972 Butcher’s claim was heard by the Board. During his testimony, Butcher’s attorney read the amended work history to Butcher and asked “is that right?” Butcher answered “that’s right.” Following the hearing, the Board granted Butcher 30 days within which to complete his proof by deposition.
July 25, 1972 Butcher filed a printed form motion for an extension of time within which to complete his proof. August 2, 1972 Transcript of June 23 hearing filed.
August 7, 1972 By order, the Board granted Butcher until August 23,1972, to complete his proof.
August 21, 1972 Butcher files a second printed form motion for an extension of time to complete proof.
September 6, 1972 Board grants plaintiff until September 23,1972 to complete proof.
September 8, 1972 Plaintiff files third printed form motion for an extension of time to complete proof.
September 25,1972 Board grants Butcher to October 23, 1972, to complete proof. November 14, 1972 The Special Fund moves for an extension of time to complete its proof in order that it may have Butcher examined, and a deposition taken if necessary.
December 4, 1972 The Board grants the Special Fund to December 23, 1972, to complete its proof.
December 13, 1972 The Special Fund files a second motion for an extension of time to complete proof.
January 3, 1973 The Board grants the Special Fund to January 15,1973, to complete proof. The Board’s order provided: “last extension to be granted.”
January 12,1973 The Special Fund files a third motion for an extension of time to complete proof.
February 5, 1973 The Board overrules the Special Fund’s motion for an extension of time.
February 8, 1973 Butcher files a fourth printed form motion for an extension of time to complete proof.
February 16,1973 Board orders the case submitted for opinion and judgment. March 8, 1973 Butcher files fifth printed form motion for extension of time to complete proof.
March 26, 1973 The Board sets aside its order of submission and grants Butcher an additional 30 days to complete rebuttal proof.
April 23, 1973 Butcher files sixth printed form motion for extension of time to complete proof.
May 7, 1973 The Board grants Butcher to May 26, 1973, to complete rebuttal proof.
May 29, 1973 Butcher files seventh printed form motion for extension of time to complete proof.
June 11,1973 The Board grants Butcher 30 days from May 26 within which to complete proof.
June 26, 1973 Butcher files his brief. September 10, 1973 The Board orders the case submitted for opinion and judgment.
September 20, 1973 The Special Fund files its brief in which it points out the four months’ interruption in Butcher’s employment between December 10, 1970, and April 19, 1971.
October 1, 1973 Butcher files a typewritten motion requesting fifteen days to take an additional deposition of the plaintiff concerning his work record. The motion states: “through error we failed to introduce this man’s entire work record during the last twenty-four month period.”
October 5, 1973 Butcher files eighth printed form motion for an extension of time.
October 18, 1973 By deposition, Butcher testifies that he was employed as a coal truck driver by Stambaugh & Blair between December 10,1970, and April 1971. October 22, 1973 The Board overrules Butcher’s motions of October 1 and October 5 for additional time to complete proof by deposition.
October 25, 1973 Butcher files supplemental deposition which was taken October 18.
December 17,1973 Opinion and order of the Board refuses to consider the deposition of October 18 “since the Board had previously overruled the plaintiff’s right to take this deposition.”

In support of his contention that it was an abuse of discretion for the Board to refuse to consider the deposition of October 18,1973, Butcher relies upon the decision in Searcy v. Three Point Coal Co., 280 Ky. 683, 134 S.W.2d 228 (1939). However, when fairly read and quoted, that decision does not support Butcher’s contention. The Court of Appeals stated:

“Necessarily the Workmen’s Compensation Board, or any other tribunal, in which is vested by law the power to hear evidence and make decisions thereon, has the power to compel the taking of evidence before it within reasonable limits of time and this power should not be subject to the control of courts unless such tribunal acts in an arbitrary or unreasonable manner such as to indicate an abuse of discretion. One of the cardinal purposes of the compensation act is to facilitate the hearing of those claims speedily and in an informal manner and in carrying out this purpose of the Act the Board is necessarily vested with authority to require proof to be taken promptly. * * *.
“The circuit court may, in a proper case, where the Board has arbitrarily refused to permit evidence to be introduced, set aside an award and remand the case to enable a party to produce his evidence but may not wrongfully adopt this procedure when every opportunity has been afforded by the Board for proof to be taken, and when the Board has exercised a reasonable discretion in denying an extension of time for taking proof.” 134 S.W.2d at 231-32.

The Court of Appeals held that the circuit court was in error when it remanded the case to the Board with directions to permit the employer to take further proof. This decision was followed in Shackelford v. Shackelford, Ky., 254 S.W.2d 503 (1953) in which it held the Board did not abuse its discretion in refusing to consider certain proof offered by the employer which was taken by stipulation of the employer, but after the order of the Board directing that the employee’s case be closed.

In Mitchell v. Jacks Creek Mining Company, Ky., 248 S.W.2d 926 (1952) the Court of Appeals reversed a judgment of the circuit court remanding the case to the Board with directions to consider a deposition taken by agreement of the parties. The case had been pending before the Board for over fourteen months and the Board had ordered the case submitted for decision. In holding that there had been no abuse of discretion by the Board, the Court of Appeals stated:

“If the Board should be required to grant ‘extensions of time’ on every motion made therefor without a right to exercise its discretion in passing upon the merits of the motion, it is conceivable that a case might continue indefinitely thereby denying to the parties the summary proceeding contemplated by the Compensation Act. The public policy of this Commonwealth favors the expediting by the administrative agency of hearings of this nature when it is possible to do so without violating our fundamental law.” Id., at 927.

In the present case, the four month gap in Butcher’s employment record was apparent from May 15, 1972, the date the amended work history was filed with the Board. A cursory examination of the transcript of the hearing held on June 23, 1972, would have revealed that there was no proof that Butcher had been employed in the coal industry between December 10, 1970, and April 19, 1971. If there was error in the practice of Butcher’s claim, the Special Fund in no way contributed to that error.

The only case that remotely supports Butcher’s contention is Fayette County Board of Education v. Phillips, Ky., 439 S.W.2d 319 (1969). Neither party has cited this case to the court. However, we will discuss that case lest it appear that there are two parallel lines of authority, in direct conflict with each other. In that case, the Court of Appeals held that it was error for the Board to refuse to reopen a case in order for the employee to prove an element of her case which had been omitted by mistake. The employee was working under concurrent contracts of employment. In order to receive the maximum possible benefits, the employee had to prove that the defendant employer had knowledge of the other employment prior to the injury. In her amended application for benefits, the employee had specifically alleged that her concurrent employment was with the knowledge of the defendant employee. After an award had been entered based upon a finding that the defendant employee did not know of the concurrent employment, the employee sought to reopen the case under KRS 342.125 on the grounds of “mistake.” At a hearing before the Board on that motion, it was established beyond any question that the defendant employer did have prior knowledge of the concurrent employment. Nevertheless, the Board held that such failure of proof did not constitute a “mistake” within the meaning of KRS 342.125. The Court of Appeals held that it was an abuse of discretion for the Board to refuse to reopen the case to consider the additional proof. The court pointed out that there was no genuine issue with respect to the defendant employer’s knowledge of the concurrent employment. Because it was the defendant employer’s responsibility to apprise the Board of the concurrent employment in the employer’s first report of injury, the court specifically held that it was the “mistake” of the employer itself in failing to apprise the Board at the outset of facts within its knowledge which compelled a finding that the Board had abused its discretion in refusing to reopen the case.

The Phillips case can be distinguished from this case on two grounds. First, the facts omitted from the proof were not within the Special Fund’s knowledge. From the very beginning of the proceeding, the Special Fund questioned the work history of the employee. Butcher was the only person who could supply the information about the work history. Second, Butcher’s amended application for benefits never alleged employment between December 19, 1970, and April 19, 1971. The Special Fund was never notified that Butcher claimed that he was employed in the coal business during the period in question, until after the case had been submitted and the Special Fund had filed its brief raising the issue.

Taking into consideration the fact that the evidence in question was always within Butcher’s own knowledge, that the gap in his work history was apparent from his amended application, and that the Board gave Butcher numerous extensions of time within which to complete his proof, this court concludes that the Board did not abuse its discretion by refusing to consider the deposition of October 18, 1973.

For the foregoing reasons, the judgment of the circuit court is reversed, and the case is remanded to the circuit court with directions to affirm the order of the Workmen’s Compensation Board.

All concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Milo LENZING, Appellant.
    No. 59851.
    Supreme Court of Missouri, En Banc.
    June 14, 1977.
    Wayne T. Schoenberg, Warrenton, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

This appeal by Milo Lenzing (defendant) from a judgment of conviction of burglary, second degree, and stealing was transferred here from the Court of Appeals after opinion by its St. Louis District and a dissent and certification by a participating judge that he deemed the majority opinion to be contrary to decisions of this court.

Defendant was charged under § 560.070, with feloniously, etc., breaking and entering on August 24, 1973, a building owned by Alvin and Anna Mae Pettig, located on Schultzenground road two miles south of route “M” in Warren county, with intent to steal property kept therein and, under § 560.156, with stealing therefrom two electric guitars and an electric amplifier, the property of the Pettigs.

The sufficiency of the evidence to sustain the conviction is not challenged. Cary Lenzing, brother of defendant, testified that on August 24, 1973, he and defendant drove to a home on Schultzenground road with the intent to burglarize it; that when they arrived they drove into the driveway and stopped; that he turned the car around to head it out of the driveway and opened its trunk while defendant was determining whether anyone was at home; that having found that the house was unoccupied, defendant went around to the back and returned within a few minutes with two guitars and an amplifier; that these items were placed in the car trunk and they left. Alvin Pettig testified that when he and his family returned to their home late in the afternoon of August 24, they found that two electric guitars and an electric amplifier given by them to their daughter had been taken from her room without permission by someone who had entered the house by breaking a small glass in the basement door and reaching inside to unlock and open it.

The case was submitted to the jury on verdict directing instructions MAI-CR 7.32 and 7.34. Upon return of a verdict of guilty of both offenses, the court, under the second offender act, imposed a sentence of three years for the burglary and two years for the stealing. As indicated, it was from this judgment that defendant appealed to the Court of Appeals, St. Louis District.

The majority opinion of the Court of Appeals held that there was a variance in this case between the charge of “breaking and entering a building” with intent to steal and the proof of “breaking and entering a dwelling house” with intent to steal, the latter being a separate crime under § 560.-045. Relying heavily upon State v. Burnham, 501 S.W.2d 521 (Mo.App.1973), a decision of the Kansas City District, the court sustained the contentions of defendant, holding: (1) that this variance was fatal to the judgment; (2) that evidence that the “building” entered was the Pettigs’ “dwelling house” did not support the giving of MAI-CR 7.32; and (3) that §§ 560.070 and 560.045 describe offenses which are mutually exclusive; and, for these reasons this burglary conviction may not stand.

In State v. Burnham, supra, the court of appeals held that a defendant charged under § 560.070, relating to entering any building, could not be convicted under evidence showing entry into a dwelling. In Burnham the burglary charge was that of entering “a certain building,” the property of Robert Jarman, with intent to steal. The evidence was that the building entered was the “dwelling house” of Jarman. The burglary was submitted on the theory that the jury could return a verdict of guilty if it found defendant entered the dwelling house of Jarman with intent to steal. The only basic distinction between these two cases is that in this case both the charge and the submission were burglary of “a building,” whereas, in Burnham the charge was burglary of “a building,” but the submission was burglary of “a dwelling house.”

Section 560.070 and § 560.045 define and describe separate offenses both of which constitute burglary, second degree, and have the same range of punishment, but the offenses are not mutually exclusive. While it is true that under the facts of this case a charge of second degree burglary laid under § 560.045 would more specifically describe the building burglarized, that does not mean that the offense described in this section excluded charging the offense under § 560.070. A “dwelling house” is a “building”; as used in § 560.045 it is, within the meaning of § 560.070, a “building, the breaking and entering of which * * * [has not been] declared by any statute * * * to be burglary in the first degree.” Section 560.045 does not take a “dwelling house” out of § 560.070. State v. Stewart, 329 Mo. 265, 44 S.W.2d 100, 102[1] (1931). See also: State v. Barton, 379 S.W.2d 562, 564[2,3] (Mo.1964); State v. Fleming, 528 S.W.2d 513, 516[7] (Mo.App.1975); Latham v. State, 439 S.W.2d 737, 741[5] (Mo.1969). The evidence supported the giving of MAI-CR 7.32.

In State v. Koen, et al., 468 S.W.2d 625 (Mo.1971) defendants were charged under § 559.180 with assault with intent to do great bodily harm with malice aforethought. The evidence was that the person assaulted was a police officer. Defendants were convicted of the lesser offense of assault without malice proscribed by § 559.-190. Defendants contended that it was error to charge them with assault under § 559.180 when the offense, if any, was striking a police officer engaged in the performance of his duties, a violation of § 557.-215. Ruling on this contention, the court said: “It is often true that a single act will constitute an offense under two different statutes. In that situation it is generally held that the State may elect to prosecute for either offense. See State v. Skillman, 228 Mo. 434, 128 S.W. 729; State v. Shuls, 329 Mo. 245, 44 S.W.2d 94, and 22 C.J.S. Criminal Law § 9(1), pp. 20-23. We rule that the facts shown in this case would have supported a conviction for either assault or striking a police officer, and that the State could elect to prosecute either offense.” 468 S.W.2d at 629[2]. See also: Turnbough v. State, 533 S.W.2d 609, 613[6,-7] (Mo.App.1975); State v. Sterling, 536 S.W.2d 843, 850[6] (Mo.App.1976).

The facts in this case would have supported a conviction of either burglary of a dwelling house under § 560.045, the more specific statute, or burglary of a building under § 560.070, the more general statute. The facts support conviction of the offense charged in this case. State v. Burnham, supra, is overruled.

The judgment is affirmed.

SEILER, C. J., MORGAN, BARDGETT, FINCH, DONNELLY, JJ., and SHAN-GLER, Special Judge, concur.

RENDLEN, J., not sitting.

      . Section 560.070 is as follows: “Every person who shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree, or any booth or tent, or any boat or vessel, or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal or commit any crime therein, shall, on conviction, be adjudged guilty of burglary in the second degree.”
      References to sections of the statutes are to RSMo 1969.

      .MAI-CR 7.32, as given, is as follows:
      “If you find and believe from the evidence beyond a reasonable doubt: First, that on or about the 24th day of August, 1973, in the County of Warren, State of Missouri, the defendant broke into a building located on Schult-zenground Road, two miles south of Route M and owned by Alvin Pettig and Anna Mae Pet-tig, his wife, and entered therein, and
      Second, that he did so with intent to steal property therein, and
      Third, that at that time valuable things were kept therein, then you will find the defendant guilty of burglary in the second degree.
      However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.”

      . Section 556.280.

      . Section 560.045 is as follows: “Every person who is convicted of breaking into a dwelling house, with intent to commit a felony or to steal, but under such circumstances as do not constitute the offense of burglary in the first degree, shall be deemed guilty of burglary in the second degree.”

      . See § 560.095.