text:
    James R. YOCOM, Commissioner of Labor, etc., Appellant, v. Henry B. LAYNE et al., Appellees.
    Supreme Court of Kentucky.
    June 10, 1977.

      Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, Gemma M. Harding, Dept, of Labor, Louisville, for appellant.
    C. Kilmer Combs, Kelsey E. Friend Law Firm, John H. Baird, Baird & Baird, Pike-ville, for appellees.
   STERNBERG, Justice.

This appeal brings in issue the proper application of the apportionment statute of the Workmen’s Compensation laws. KRS 342.120.

On July 19, 1972, Henry B. Layne sustained a work-related injury. He had been working for the T. E. Rogers and Son trucking company since July 1, 1951, and had been a truck driver for about 35 years. It is stipulated that the wages of Layne were sufficient to justify his receiving the maximum award, if any. The only question raised on this appeal is the formula to be used in the computation of the amount of money due under the award of the Board.

The Board found, and it is not contested, that:

1. Layne is permanently totally disabled;
2. Prior to the injury Layne had a non-compensable disability;
3. Layne’s injury of July 19, 1972, independently would not have produced his entire disability but only contributed 35% to the result;
4. The preexisting noncompensable disability contributed 30% to the total disability; and
5. The extent of the disability remaining, after deducting the portion attributable solely to the July, 1972 injury and the portion which is noncom-pensable, is 35%.

For the period of time with which we are presently concerned, the maximum payment for permanent total disability was $60 per week and the maximum payment for permanent partial disability was $54 per week.

Since claimant is a person mentioned in KRS 342.120(1), his compensation benefits are determined pursuant to the provisions of subsections (3) and (4) thereof.

In a December 8, 1975, award the Board established the liability of the employer by multiplying the maximum recovery for permanent partial disability ($54) by the percentage of occupational disability attributable to the July, 1972 injury (35%), thus fixing the employer’s liability at $18.90 per week. The liability of the Special Fund was arrived at by multiplying the maximum recovery for permanent total disability ($60) by the percentage of occupational disability remaining after deducting the portion of disability attributable solely to the 1972 injury (35%) and the portion which is noncompensable (30%), which resulted in 35% occupational disability, thereby establishing a base of $21 per week. To this basic sum of $21 the Board added the difference between 35% permanent partial disability ($18.90) and 35% total disability ($21), which is $2.10, thus fixing the Special Fund’s total liability at $23.10. Petitions for reconsideration were filed with the Board by both the claimant and the Special Fund. Claimant’s petition was sustained, and on January 5, 1976, an amended award by the Board was issued. In the amended award the Board did not change the liability of the employer. It did, however, increase the liability of the Special Fund from $23.10 per week to $24.90 per week. This increased liability was arrived at by taking the 35% permanent partial disability of $18.90 per week and adding to it the difference between the maximum recovery for permanent total disability ($60) and the maximum recovery for permanent partial disability ($54), or $6, thus arriving at a new computation and fixing the liability of the Special Fund at $24.90 per week.

The Special Fund appealed to the Pike Circuit Court, where the action of the Board was adopted. Hence, this appeal by the Special Fund.

The formula set out in Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971), adequately lays down the ground rules for the resolution of this controversy.

Although this court, on many occasions, has considered the application of the apportionment statute and has been confronted with the formula which the Board has followed, we have never been called upon to apply the facts to the formula. This, we shall do. Both the claimant and the employer are satisfied with the award and the method by which it was arrived at. The Special Fund, however, argues that its liability, as well as the liability of the employer, should be 35% of permanent total disability.

The employer is liable only for the degree of disability which would have resulted from the July 19, 1972, injury, had there been no preexisting disability. This subsequent injury contributed only partially to the employee’s total disability. Therefore, since the subsequent injury contributed only 35% to the total disability, the employer is liable only for 35% of the maximum payment for permanent partial disability of $54 per week, or $18.90 per week.

Next, we consider the noncompensa-ble disability that existed prior to the July, 1972 injury. This was found to be 30%. This noncompensable injury, as did the injury of July 19,1972, contributed only partially to the total disability. Therefore, since the preexisting, noncompensable injury contributed only 30% to the total disability, the noncompensable exclusion is 30% of $54 per week, or $16.20 per week.

We now turn our attention to the liability of the Special Fund. After considering the liability of the employer and the noncompensable disability, the remaining compensation to which claimant is entitled is the liability of the Special Fund. This figure is arrived at by adding the liability of the employer, $18.90 per week, to the noncompensable amount, $16.20 per week, and subtracting the result of $35.10 from the maximum payment for permanent total disability of $60 per week, for an award against the Special Fund of $24.90 per week. The sum total of the liability of the employer and the Special Fund and the noncompensable disability must amount to $60 per week. This, it does.

We are fully cognizant of the fact that in those instances where an injured employee had a prior noncompensable injury and the sum total of the current injury, together with the preexisting, noncompensable portion, is less than total permanent, the liability of the employer and the non-compensable exclusion and the liability of the Special Fund will be computed by using this same formula, except that the sum total of all of the awards must equal only the maximum award for permanent partial disability.

The order of the Workmen’s Compensation Board of January 5, 1976, correctly fixed the liability of the parties and the circuit court properly adopted the awards.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: REED, Chief Justice.

license: Public Domain

text:
    James E. STINNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. SC-69-MR.
    Supreme Court of Kentucky.
    July 1, 1977.
    Jack Emory Farley, Public Defender, Joe A. Jarrell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., B. F. Radmacher, III, Asst. Atty. Gen., Frankfort, for appellee.
   REED, Chief Justice.

Appellant, James E. Stinnett, was convicted of the offenses of assault in the first degree [KRS 508.010(l)(a)] and attempted assault in the first degree [KRS 508.-010(l)(b)]. He was sentenced to 20 years on the assault charge and 8 years on the attempted assault charge. The trial judge ordered that the sentences be served consecutively.

The Public Defender in this appeal asserts a single ground of error that was not mentioned in the trial court. The ground is that the trial court failed to instruct the jury “on the whole law of the case.” The record establishes beyond cavil that the trial court did properly instruct the jury and also establishes that appellant neither objected to the instructions given nor tendered any instructions to be given.

In our view, this appeal is patently merit-less and evidences an unnecessary waste of time and public money.

Appellant and two other men went deer hunting on a wildlife preserve in Breckin-ridge County. When they came upon a stake-out by conservation officers, shots were exchanged and appellant and Vernon Anderson, a wildlife biologist, were wounded. Appellant’s defense was that he had not fired except in self-protection and only then to put out a spotlight that was illuminating him as a target.

The State Public Defender’s brief filed on behalf of appellant asserts:

“The trial court in its instructions on the case at bar did not authorize a verdict of not guilty by reason that appellant acted in self-protection. In fact, the only mention of self-defense was part (c) of Instruction I and II where it was stated, ‘That in so doing he was not privileged to act in self protection (T.R., pp. 49-50).’ ”

We have carefully examined the instructions given by the trial judge. On the first degree assault charge, the instruction was in pertinent part:

“You will find the defendant, James E. Stinnett, guilty under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
“(a) ... he inflicted serious physical injury upon Vernon Ray Anderson by shooting him with a shotgun;
“(b) That in so doing:
(i) He intended to cause serious physical injury to Vernon Ray Anderson.
“(c) That in so doing he was not privileged to act in self-protection.”

As to the attempted assault charge, the trial court instructed the jury that in order to find Stinnett guilty they must believe from the evidence beyond a reasonable doubt that Stinnett fired a loaded shotgun at Jack Monarch, another conservation officer, and that in so doing he intended to cause serious physical injury to Monarch and that in so doing “he was not privileged to act in self-protection.”

The trial court defined the terms used in his instructions and the term “self-protection” was precisely delineated by the language recommended in Palmore and Lawson, Kentucky Instructions to Juries, Sec. 10.04. We cannot imagine a situation under which the instructions could have been fairer to the appellant.

The Public Defender’s brief acknowledges that RCr 9.54(2) specifically provides that error in the instructions may not be considered on appeal if the complaining party has failed to fairly and adequately present his position to the trial court by an offered instruction or by a motion or unless he makes objection before the trial court instructs the jury stating specifically the matter to which he objects and the ground or grounds of his objection. The Public Defender asserts that we should, nevertheless, review the claimed error in the instructions because it was of constitutional magnitude. The simple answer is there was no error to raise. The instructions were perfectly adequate.

Assuming, however, the instructions had been technically erroneous, the recent advice of the Supreme Court of the United States should be heeded. In Henderson v. Kibbe, — U.S. —, 97 S.Ct. 1730, 52 L.Ed.2d 203 (Decided May 16, 1977), Mr. Justice Stevens, in writing the majority opinion of the Court in which all Justices concurred except the Chief Justice who concurred in the judgment and Mr. Justice Rehnquist who did not participate, stated:

“An appraisal' of the significance of an error in the instructions to the jury requires a comparison of the instructions which were actually given with those that should have been given. Orderly procedure requires that the respective adversaries’ views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." (emphasis supplied).

In his opinion concurring in the judgment, the Chief Justice expressed his view that the federal court was precluded from considering collateral relief because the appellant in the case had failed to object to the jury instructions at the time they were given. The Chief Justice stated: “By that failure he waived any claim of constitutional error.”

We hold that the instructions properly presented the issues to the jury. We also hold that even if a technical error in the instructions had been presented, it would not have been considered on appeal. This record illustrates the type of situation which prompted the late Learned Hand to remark that the only thing he could commend about the appeal was the temerity of counsel in thinking that it could possibly succeed.

The judgment is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    MIDDLESBORO HOUSING AUTHORITY, Appellant, v. KENTUCKY COMMISSION ON HUMAN RIGHTS and Ricardo Sisney, Commissioner, Appellees.
    Court of Appeals of Kentucky.
    June 10, 1977.

      William A. Watson, Watson & Watson, Middlesboro, for appellant.
    Thomas A. Ebendorf, Compliance Director, The Kentucky Commission on Human Rights, Louisville, Robert F. Stephens, Atty. Gen., Frankfort, for appellees.
    Before HOWERTON, GANT and PARK, JJ.
   HOWERTON, Judge.

This action originated with the filing of two complaints with the Kentucky Commission on Human Rights alleging unlawful practices of racial discrimination in municipal housing by the Middlesboro Housing Authority.

On October 3, 1973, Rose Buckner, a black, female temporarily residing in Mid-dlesboro, Kentucky, filed a complaint with Appellee alleging the unlawful practice of racial discrimination by the Appellant. The Buckner complaint was subsequently dismissed because the party did not have standing to secure public housing in Mid-dlesboro. On May 23,1974, Ricardo Sisney, a commissioner of the Kentucky Commission on Human Rights, filed a similar charge pursuant to the authority granted him by KRS 344.200(1). The complaint also alleged that the Appellant was maintaining public housing projects segregated by race which constituted “a pattern and practice” of racial discrimination in violation of KRS 344.360.

Administrative hearings were conducted on May 31, 1974, and again on November 15, 1974, at which time the hearings were concluded. On September 22,1975, the Ap-pellee issued its findings of fact, conclusions of law and order holding that the policies and practices of the Appellant had resulted in the segregation by race of the public housing projects under Appellant’s control, in violation of Kentucky statutes.

The Appellant sought judicial review in the Bell Circuit Court. On May 26, 1976, the circuit court dismissed the appeal and affirmed the Commission’s Order on the basis of the limits of judicial review. It is from the Order of the circuit court that the Appellant has filed this appeal.

The Commission’s findings of fact, conclusions of law and Order are the focal points of controversy in this litigation, and since the essential facts are set forth in the document, it will be quoted, at this point, in its entirety.

FINDINGS OF FACT
1. Complainant Buckner who filed complaint No. 158-H on October 3, 1973, alleging discrimination against herself individually and a general pattern and practice of discrimination by Respondent Middlesboro Housing Authority, was found on investigation not able to meet resident requirements of the Authority. A finding of “no probable cause” was made as to her individual complaint, and it was dismissed by the Commission.
Complaint Buckner’s complaint of a general pattern and practice, on which the staff made an initial finding of probable cause, was consolidated at the beginning of this hearing with the Commissioner complaint of Commissioner Sisney, No. 175-H filed May 24, 1974.
2. Complainant Sisney is a Commissioner of the Kentucky Commission on Human Rights and he filed a complaint pursuant to KRS 344.200 and HR-2 020(b).
3. Respondent, Middlesboro Housing Authority, at all times mentioned herein; maintained, operated, and controlled and continues to maintain, operate, administer and control the public housing projects in Middles-boro, Kentucky.
4. Racial composition of these housing projects at the time the complaints were filed and at the commencement of the hearing was as follows:
5. The original policy of the Middlesboro housing authority [sic] was to segregate its housing on the basis of race, and to place a tenant only in housing assigned to persons of his race.
6. From 1965 to 1968 the policy was changed to one of so-called “freedom of choice”. Applicants were asked to indicate which housing projects they would accept and which they would refuse. They were not offered housing unless a unit was available in a project of their choice.
7. From 1968 down to the present, the policy of the Housing Authority has been one of “limited freedom of choice” or the “three-refusals policy”. As a housing unit is available it is offered to the tenant having the highest preferance [sic] and priority of application, but the tenant may refuse it (and automatically any subsequent vacancies in that project “location”) without losing his position of preference and priority on the waiting list. Only if the applicant refuses three such project “locations” is he penalized by having his name placed at the end of the waiting list.
8. The present policy of the Authority enables a white applicant to refuse housing in both the locations that are all-black without being penalized. The present policy of the Authority enables a black applicant to refuse three all-white projects without being penalized, leaving only one chance in three that the crucial fourth offer would be in white housing.
9. A study of the records of the Authority by the staff of the Kentucky Commission on Human Rights revealed a number of cases in which white applicants were offered housing in all-white projects before blacks who were higher on the waiting list, and other cases where blacks were offered housing in all-black projects ahead of whites who were higher on the waiting list. Although a witness for the Authority in rebuttal testified that some of these apparent violations of the policy were due to inadequacies of record keeping, lack of information or misinformation on priority status of applicants, preference for telephone over mail for making offers, and the use of an “inactive” file for some applications, there is substantial evidence that the employees of the Authority in some instances failed to follow even its stated policy — one of almost unlimited freedom of choice under the “three-refusal” policy.
10. As a result of the aforesaid policies and practices the racial composition of Respondent’s aforesaid public housing projects were and are segregated by the race of the tenants thereof.
CONCLUSIONS OF LAW
1. Respondent Authority is a “real estate operator” as defined by KRS 344.010(7), engaged in the business of renting or leasing real estate.
2. Because of its tenant selections and assignment policies, procedures, and practices Respondent has maintained and continues to maintain public housing projects under its supervision, direction and control in which the tenants are segregated by their race, an unlawful practice in violation of KRS 344.360.
3. The Kentucky Commission on Human Rights has exclusive primary jurisdiction of a claim arising under KRS Chapter 344 and as such has the power to fashion an adequate and complete remedy.
4. The Kentucky Commission on Human Rights has the power to require Respondent to take such affirmative action as in its judgment will carry out the purpose of KRS Chapter 344. Said affirmative action may include but is not limited to:
a. requiring Respondent to change its tenant selection and placement procedures so as to eliminate unlawful practices in violation of KRS 344.-360.
b. advertise that Respondent has a policy of “Equal Housing Opportunity” and circulate this information to the black community of Middlesboro.
c. requiring Respondent to report to the Kentucky Commission on Human Rights giving information on the racial composition of applicants, tenants and projects.
5.Imposition of a ratio remedy is appropriate, and the Commission has the authority to so, order.
ORDER
IT IS THEREFORE ORDERED that Respondent, Middlesboro Housing Authority, its agents, servants, employees and each of their respective successors cease and desist from the unlawful practice of discrimination against individuals because of race or color.
IT IS FURTHER ORDERED that Respondent cease and desist from employing its present tenant and [sic] selection and assignment procedures.
IT IS FURTHER ORDERED that Respondent post and maintain the “Equal Housing Opportunity” poster prepared by the Kentucky Commission on Human Rights in conspicious [sic] places in every housing project and in every project office where it may be easily seen and read by every tenant and applicant.
IT IS FURTHER ORDERED that as vacancies occur Respondent shall extend to all current tenants an invitation to transfer from their present unit to a vacant unit in a project in which the racial composition of the project reflects a lower percentage of the tenant’s race than is reflected among thé occupants of all projects within the Housing Authority.
IT IS FURTHER ORDERED that Respondent, after first accommodating existing tenants as outlined in the preceding paragraph, shall plainly state in public advertisement that its accommodations will be assigned under a plan to attain desegregation in all projects.
IT IS FURTHER ORDERED that Respondent shall cease and desist from leasing housing accommodations to white families in those projects which reflect a higher percentage of whites than in all public housing projects of the Respondent and to black families in those projects which reflect a higher percentage of blacks than reside in all public housing projects of the Respondent until such time as the racial composition of each project reflects the ratio of black to white tenant families in all projects. Provided however, that if in implementing the above ratio it is necessary for Respondent to maintain a vacancy in a project which could otherwise be filled by a qualified applicant whose occupancy will not contribute to desegregation, then Respondent may, if it believed the continued maintenance of a vacancy will create an undue hardship upon Respondent, apply to the Commission for a waiver and the Commission may waive the application of this provision and permit the vacancy to be filled.
IT IS FURTHER ORDERED that Respondent shall develop and submit to the Kentucky Commission on Human rights [sic] for its approval within thirty (20) [sic] days of the effective date of this order, an affirmative action program designed to achieve in Respondent’s public housing projects the racial composition set forth above and upon obtaining said approval, shall forth with [sic] effectuate said program.
IT IS FURTHER ORDERED that Respondent shall adopt, maintain and implement a policy of insuring that the racial composition of each of Respondent’s public housing projects reflects the ratio of black to white tenant families in all public housing projects under Respondent’s supervision, direction and control.
IT IS FURTHER ORDERED that Respondent shall provide the Kentucky Commission on Human Rights every three (3) months for a period of five (5) years from the date of this order with a report showing the name, address, number of bedrooms in the unit, family size, date of application, and preference accorded the applicants, date of offer and date of lease of all new tenants in each of Respondent’s projects for the previous three (3) months.
IT IS FURTHER ORDERED that Respondent shall provide the Kentucky Commission on Human Rights every three (3) months for a period of five (5) years from the date of the order with a report showing name, new address, number of bedrooms in the new unit, number of bedrooms in former unit, family size, race and date of transfer of all tenants who transferred housing accommodation in the projects for the previous three (3) months.
IT IS FURTHER ORDERED that Respondent shall provide reports to the Kentucky Commission on Human Rights every three (3) months for a period of five (5) years from the date of this order showing the racial composition of each public housing project and the ratio of black families to white families in the combined total of all projects under Respondent’s supervision, direction and control.
IT IS FURTHER ORDERED that Respondent shall seek to place a Black on the Middlesboro Housing Authority Board in the first vacancy which shall occur and shall at all times maintain at least one Black representative on the Board; and that Respondent shall seek to obtain a Black office employee for the first vacancy which shall occur and shall at all times maintain at least one Black office employee.
This the 22nd day of September, 1975.

After reviewing and considering the record, the applicable law, and the arguments of counsel, this court must also accept each and every one of the ten findings of fact. Where the findings of fact of the Kentucky Commission on Human Rights are supported by substantial evidence, they are conclusive under KRS 344.240. Although the evidence is conflicting in part, there is substantial evidence of probative value to support the findings and they are not clearly erroneous. This is not to say, however, that there are sufficient facts to support each and every portion of the Order or to give the broadest meaning which could be given to the Commission’s conclusions of law. We concur with some and we disagree with others.

The real questions raised by the Appellant are primarily addressed to the points of whether or not the Appellant, Middlesboro Housing Authority, has been engaged in an unlawful practice of discrimination, and whether or not the Appellee may dictate a quota-remedy.

Appellant defends the past practices of tenant selection by assuring the court that there was no intention to maintain segregated housing. The Appellant also attacks the Order of the Appellee by contending that the Appellee did not prove a willful, malevolent or invidious practice by the Authority.

Bad faith or discriminatory intent do not appear to be necessary elements for violation of KRS Chapter 344. KRS 344.010(4), reads:

“Discrimination” means any direct or indirect act or practice of . segregation ... or any other act or practice of differentiation or preference in the treatment of a person or persons because of race .

KRS 344.360 provides, in part, as follows:

344.360. Unlawful Housing Practices. It is an unlawful practice for a real estate operator, or for a real estate broker, real estate salesman, or an individual employed by or acting on behalf of any of these:
(1) to refuse to . lease or otherwise deny to or withhold real property from an individual because of his race. . .;
‡ * ‡ £ ⅝: jfc
(3) to refuse to receive or transmit a bonafide offer to lease real property from an individual because of his race . . .;
⅜ sfc ‡ ‡ ⅜ ⅜:
(8) to otherwise deny or to withhold real property from an individual because of his race .

Racial discrimination may be shown by proof of either discriminatory purpose or discriminatory effect. Griggs v. Duke Power Company, 401 U.S. 424 at 432, 91 S.Ct. 849 at 854, 28 L.Ed.2d 158 (1971) was an employment case in which the Supreme Court stated, “Good intent or absence of discriminatory intent does not redeem employment procedures that operate as ‘built-in headwind’ for minority groups . . .” Actual intent or malevolent motive would be difficult to prove in any civil rights action, and they need not be proven. See also, Banks v. Perk, 341 F.Supp. 1175 (E.D. Ohio 1972) and Hawkins v. Town of Shaw, Mississippi, 437 F.2d 1286 (5th Cir. 1971).

In Banks v. Perk, supra, the court, after ruling that intent could not be the standard by which discriminatory conduct is judged, went on to note that:

Any municipal action or inaction overt, subtle or concealed which perpetuates or reasonably could perpetuate discrimination, especially in public housing, cannot be tolerated. (Emphasis added)

Statistics often speak loudly, and courts listen. In United States v. Reddoch, 467 F.2d 897 (5th Cir. 1972), Reddoch was an owner of a large apartment complex. Several black applicants had applied for occupancy, and had filed a charge of racial discrimination. Although there had been a 100% turnover in the units during the past several years preceding the trial, no black applicant had ever secured housing in the complex. The court stated that “Nothing is as emphatic as zero” (citing United States v. Hinds County Board of Education, 417 F.2d 852, 858 (5th Cir. 1969)).

The Appellant has provided zero integration and this fact strongly supports a finding of discrimination. Mere segregation is not unlawful or discriminatory, but practices and procedures which tend to perpetuate segregation in public housing are unlawful. The Appellee found in its second conclusion of law that because of its tenant selection and assignment policies, procedures and practices, Appellant has maintained and continues to maintain public housing projects under its supervision in which tenants are segregated by their race which is an unlawful practice in violation of KRS 344.360. We, therefore, concur with this finding and add that it is also supported by the specific findings in item no. 9 of the findings of fact. Finding no. 9 provided that some white applicants were offered housing in all-white projects before blacks who were higher on the waiting list, and some blacks were offered housing in all-black projects ahead of whites who were higher on the waiting list. We agree with the Appellee that all of these violations cannot be explained by inadequate record keeping, lack of information on priority status, preference for telephone over mail in making offers, and the use of an “inactive” file for some applications.

Although most tenants are undoubtedly satisfied with the project in which they live, it is nevertheless incredible that there has been absolutely no integration of the projects. The “three refusal” policy has provided almost unlimited freedom of choice and guaranteed segregated housing.

When an unlawful violation of KRS Chapter 344 has been determined, the Ap-pellee not only has jurisdiction of the claim, but does have broad powers to provide an adequate remedy as set out in conclusion no. 3, at least within reasonable limits. We further agree with Appellee’s first conclusion that the definition of a real estate operator in KRS 344.010(7) would clearly include the Appellant. Also the provisions of KRS 344.230 authorize the Appellee to take all of the affirmative action set out in item no. 4 of the conclusions.

As to the Order, we can therefore clearly accept those portions directing the Appellant to cease and desist from unlawful discrimination and from the present method of tenant selection. We also approve of those portions of the Order requiring an affirmative action program, the posting of notices and the submission of reports, although on remand the Commission should consider the adequacy of receiving copies of Appellant’s periodic reports to the United States Department of Housing and Urban Development.

The Appellee also provided in conclusion no. 5, “Imposition of a ratio-remedy is appropriate and the Commission has the authority to so order.” This is the basis for the next area of controversy and involves not only the question of whether or not the Appellee may establish a quota remedy, but, if so, whether the ratio-remedy provided for in this case is reasonable, necessary, and based on adequate facts.

The question of whether or not the Kentucky Human Rights Commission can impose a ratio-remedy in a housing discrimination case is new to Kentucky. Although quota remedies have been used to resolve racial discrimination problems in such areas as employment and schools, there have been very few decisions relating to this problem and remedy in housing.

In Otero v. New York Housing Authority, 484 F.2d 1122 (2nd Cir. 1973), the court was faced with a problem of self-imposed quotas established by the New York Housing Authority to insure desegregation and racial balance. In that case, the court stated at 1140:

The Authority may limit the number of apartments to be made available to persons of white or non-white races, including minority groups, where it can show that such action is essential to promote a racially balanced community and to avoid concentrated racial pockets that will result in a segregated community.

The Otero case creates a precedent for the imposition of quotas as they relate to the leasing of units in the future. The case of Taylor v. City of Millington, 476 F.2d 599 (6th Cir. 1973) did not approve or deny a ratio-remedy in housing, but it did express doubt as to the propriety of ordering such a remedy which would uproot present tenants. We would point out at this time that the remedy offered by the Appellee applies only to future tenants or voluntary moves by present tenants.

The case that provides the strongest authority for a ratio-remedy to be imposed by a Human Rights Commission is Pennsylvania Human Relations Commission v. Chester Housing Authority, 458 Pa. 67, 327 A.2d 335 (1974). The Pennsylvania Human Relations Commission was established and empowered by a statute somewhat comparable to Chapter 344 of the Kentucky Revised Statutes. The Pennsylvania Court upheld the right of the Pennsylvania Human Relations Commission to impose a quota-remedy to accomplish racial desegregation in public housing.

The purposes of Chapter 344 are set forth in KRS 344.020. The statute provides as follows:

344.020. Purposes of Law, Construction —Effect.
(1) The general purposes of this chapter are:
(a) to provide for execution within the state of the policies embodied in the Federal Civil Rights Act of 1964 (78 Stat. 241) [title VIII of the Federal Civil Rights Act of 1968 (82 Stat. 81), and the Federal Age Discrimination in Employment Act of 1967 (81 Stat. 602)];
(b) to safeguard all individuals within the state from discrimination because of race .; thereby to protect their interest in personal dignity and freedom from humiliation, to make available to the state their full protective capacities, to secure the state against domestic strife and unrest which would menace its democratic institutions, to preserve the public safety, health and general welfare, and to further the interests, rights and privileges of individuals within the state;
* * * * * *
(2) This chapter shall be construed to further the general purposes stated in this section and the special purposes of the particular provisions involved.
⅜ ⅜ % % ⅜ ⅝:

The Federal Civil Rights Act of 1964 prohibits discrimination in federally assisted housing, which is the type facility operated by Appellant. Title VIII of the Civil Rights Act of 1968 provides for states to establish substantially equivalent laws in the field of discrimination and it defers the authority for action on complaints to agencies of such states. Clearly, the Appellee has jurisdiction over this particular Appellant.

A quota remedy is not prohibited by any Kentucky statute, case law or the Constitution. Our so-called “color-blind” U.S. Constitution has also taken race-conscious action to avoid illegal state action which tended to be discriminatory. Examples of this appear in Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2nd Cir. 1968) on dislocations from Urban Renewal, and El Cortez Heights Residents and Property Owners Association v. Tucson Housing Authority, 10 Ariz.App. 132, 457 P.2d 294 (1969) on site selection procedures. See also, Shannon v. HUD, 436 F.2d 809 (3rd Cir. 1970).

We conclude that among Appellee’s arsenal of remedies is the use of quotas. The imposition of a quota-remedy, however, may have drastic consequences on both the landlord and tenants, present and future, and no such remedy will be approved where the remedy proposed is not itself supported by substantial evidence and findings of fact which indicate the relevant problems have been considered, that such a remedy is needed to correct the situation which exists, and that the prescribed method is workable.

The Human Rights Commission has established through its findings of fact that there is a need to require affirmative action by the Appellant to correct discriminatory practices and to achieve some balance of integration in its public housing facilities. The Appellee has not, however, indicated through its findings of fact that any consideration has been given to the rights and needs of the tenants. Tenants may not be parties to this litigation, but their rights will be affected just as the rights of children are affected by a dissolution of a marriage.

Likewise, there is nothing in the findings to indicate that the Appellee has considered any recommendations by the Appellant or the consequences of its proposed remedy on the operation of the housing projects. See, for example, KRS 80.010 as it defines the purposes of public housing; KRS 80.190 and KRS 80.240 as they relate to income and the application of receipts; KRS 80.200 as it relates to rentals and priorities in tenant selections, and KRS 80.230 as it relates to the funding of projects through the sale of revenue bonds.

A legal justification for a quota-remedy would require an assertion that such controls are necessary to serve those preferring integrated housing. The record in this case is void of evidence to support any contention that a quota system is essential to achieve desirable integration.

Appellee has ordered the Appellant to cease renting to whites in white projects until each such project attains 14 percent black occupancy, which is the present percentage of black occupancy in all projects. Also, the Order requires Appellant to cease leasing units to blacks in black projects until a ratio of 86 percent white and 14 percent black is attained. These hard and fast figures seem to be somewhat both “access” and “integration” quotas as they set a minimum and maximum limit for whites in black projects and for blacks in white projects. There is no evidence in the record to cause one to suspect that such percentages might realistically be achieved, or that this particular result is necessary or desirable.

Appellee’s Order also proposes that as vacancies occur, Appellant shall invite current tenants to transfer to a vacant unit in a project where the racial composition reflects a lower percentage of the tenant’s race. This sounds nice but is unrealistic. A blanket request to have interested families sign up for such moves would be appropriate and workable; but to extend invitations to all tenants to transfer as vacancies occur, which appears to be the intent of the Order, is time consuming and unreasonably costly, both as to notices and delays in filling vacancies. Some delays, however, are and may be part of a legitimate remedial effort to overcome the effects of housing discrimination.

The Order also requires the Appellant to insure that the racial composition of each project reflects the ratio of black to white tenant families in all public housing projects under Respondent’s supervision, direction and control. This directive illustrates another deficiency in the findings by the Appellee. No consideration was given to the number of applications or to changes in future housing demands. Current occupancy is a consideration, but it may not be a sole criterion.

On remand, the Appellee should consider alternatives to quotas while attempting to justify a need. Quotas should be a last resort remedy. Alternatives to promote integration and to eliminate discrimination have already been provided in part by the Order to cease the “three refusal” option and to use a first-come, first-served, no refusal option. This plan allows for such considerations as required priorities and the size of units available. The plan does not, however, make any allowance for the establishment of criteria to permit a refusal when one is offered a unit, but is absolutely unable to accept and move at that time, without going to the bottom of the list. This would be a desirable consideration.

We note that KRS 344.200(4) provides, in part, “The Commission staff shall endeavor to eliminate the alleged unlawful practice by conference, conciliation and persuasion.” The record does not indicate whether or not this effort was made. We also note, however, that Appellee’s Order required the Appellant to “develop and submit . an affirmative action program” and then continued to direct how and to what extent desegregation was to be achieved. We believe the primary burden of designing a plan of desegregation should be on the Housing Authority, and only if the Authority fails in that duty should the Commission impose its own plan of desegregation. After all, the Appellant should know its own problems better, although the Appellee may and should “confer” and advise the Authority of what must be the objective and of what methods of desegregation have worked in other similar situations.

A recent decision by the Supreme Court of California is pertinent to the issues in this case. See, Crawford v. Board of Education of the City of Los Angeles, 17 Cal.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28 (1976). In that case, the trial court had found that although the schools in Los Angeles were severely segregated and were becoming increasingly segregated, the school board had failed to take any steps to alleviate the segregated condition. On the basis of such findings, the court ordered the defendant school board to prepare and implement a reasonably feasible plan for the desegregation of its schools. The court also attempted to define “segregated” schools in the terms of specific racial and ethnic percentages. The Supreme Court affirmed the order requiring the Board of Education to prepare and implement a plan, but it declared the trial court to be in error for specifying racial and ethnic percentages. The Court pointed out,

The Constitution does not require a school board to achieve a particular or identical “racial mix” or “racial balance” in each school; rather, the Constitutional evil inheres in the existence of segregated schools. It is the elimination of such segregation and the harms inflicted by such segregation that is the ultimate Constitutional objective.

Because of the significance of the Crawford opinion to the issues in this case, we will take the liberty of presenting further quotations.

. Experience has taught that the task of integration is an extremely complex one which entails much more than the assignment of specified percentages of pupils of different races or ethnic groups to the same school.
In light of the realities of the remedial problem, we believe that once a court finds that a school board has implemented a program which promises to achieve meaningful progress toward eliminating the segregation in the district, the court should defer to the school board’s program and should decline to intervene in the school desegregation process, so long as such meaningful progress does, in fact, follow. A court should, thus, stay its hand even if it believes that alternative techniques might lead to more rapid desegregation of the schools. We have learned that the fastest path to desegregation does not always achieve the consummation, of the Constitutional objective; it may, instead, result in resegregation. In the absence of an easy, uniform solution to the desegregation problem, plans developed and implemented by local school boards, working with community leaders and affected citizens, hold the most promising hope for the attainment of integrated public schools in our state. (Id. 130 Cal.Rptr. at 727, 551 P.2d at 31.)

Although, as in Crawford, the school boards and, as in this case, Middlesboro Housing Authority, should clearly have the initial and primary responsibility for choosing between alternative methods for desegregation, the courts and Human Rights Commissions may nevertheless be required to play a vital role in enforcement of the rights of minorities. On pp. 741-742 of 130 Cal.Rptr., on pp. 45-46 of 551 P.2d of the Crawford opinion, the Court continued:

The key to judicial deferment to the judgment of a local school board in this area, however, must lie in a school board’s demonstration of its commitment to the necessity of immediately instituting reasonable and feasible steps to alleviate school segregation. If such a commitment is translated into on-going desegregation program [sic] which produces meaningful progress in the elimination of segregated schools, a court has reason to be confident that the Constitutional rights of minorities are not being ignored and that a quality desegregated education for all of a district’s school children will be provided.
If, however, a court finds that a local school board has not implemented such a course of action, the court is left with no alternative but to intervene to protect the Constitutional rights of minority children. Faced with a recalcitrant or intractable school board, a trial court may exercise broad equitable powers in formulating and supervising a plan which the court finds will insure meaningful progress to alleviate the harmful consequences of school segregation in the district. When a local school board defaults in its Constitutional task, a court may no longer be justified in relying upon the board to implement programs which hold a reasonable promise for securing the rights of minority children.

Like the trial court in the Crawford case, the Human Rights Commission has undertaken to define “desegregation” in terms of racial ratios without first providing the Housing Authority an opportunity to satisfy its duty to provide a practical and feasible plan of desegregation. The Commission must rely upon the circuit courts of this state for enforcement of its orders. (KRS 344.240) The enforcement powers of the Commission are no greater than the equity powers possessed by the California trial court in the Crawford case. Consequently, we conclude that the holding of the California Supreme Court with respect to the powers and duty of the trial court in carrying out a plan of desegregation is equally applicable to the Kentucky Commission on Human Rights. Although the desegregation of public schools and the desegregation of public housing present different problems, the underlying principles are the same. The local Authority has the initial and primary responsibility and authority to formulate a feasible plan of desegregation. If the local Authority fails to produce or implement such a plan, the Commission is free to impose its own plan of desegregation.

This court will provide a liberal interpretation to the law in Chapter 344, but it will nevertheless look carefully at the work of any agency which acts with its personnel as the prosecutor, judge and jury. Judicial review is available to determine that not only the findings of fact are supported by substantial evidence, but also that the conclusions of law and the orders of administrative agencies are supported by substantial and appropriate facts, and that the conclusions and orders are not arbitrary and capricious. Although we have recognized Appellee’s broad powers to eliminate segregation in public housing, including the power to impose a quota-remedy, we are confident that the legislature’s delegation of authority to the Human Rights Commission does not justify the breadth of adjudicating or rulemaking as Appellee has attempted in this case without more fact finding and without first “conferring” with the Appellant. This court will not recognize in or grant to any such agency more discretionary power than is reasonably required to fulfill its legislative purposes.

We have concurred with the findings of fact and conclusions of law, including the fact that Appellant’s segregated housing is a violation of law. We conclude, however, that the Commission was in error for establishing the quotas and specific ratios without additional findings and without first providing the Housing Authority the opportunity to present and try its own affirmative action program to desegregate its public housing. Therefore, on remand, the circuit court is directed to enter judgment placing the initial and primary burden of designing a plan of desegregation upon the Appellant. If the Appellant fails in that duty, or if the proposed plan is patently inadequate, the Appellee may impose its own plan of desegregation, including a ratio-remedy, subject to the basic requirements set forth in this opinion.

If a ratio-remedy is proposed, an excellent article providing an in-depth view of the pro’s and con’s of quota remedies appears in 26 Stanford Law Review 245. The 1974 article is entitled, “Integration for Subsidized Housing and the Question of Racial Occupancy Controls”. The writing provides significant statistical data and discusses such problems as the “tipping phenomenon”. The article concludes at page 309 with this statement: “In spite of the problems raised by any quota-type proposal, the approach offered in this article provides flexibility and safeguards for dealing with the sensitive issue of housing integration.” The Appellee would be well-advised to consider the information in the article before proceeding to formulate a ratio-remedy.

Appellee’s Order finally provides, “Respondent shall seek to place a Black on the Middlesboro Housing Authority Board in the first vacancy which shall occur and shall, at all times, maintain at least one Black representative on the Board. . . ” This portion of the Order must be set aside and reversed on the ground that the Appellant is not the appointing authority for its Board members. The Mayor of Middles-boro is the appointing authority (KRS 80.-030) and he is not a party to this action. The judgment of the Bell Circuit Court is therefore affirmed in part, reversed in part and remanded in part for further action consistent with this opinion.

All concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph Lee TWIGGS, Defendant-Appellant.
    No. 37371.
    Missouri Court of Appeals, St. Louis District.
    May 31, 1977.
    Richard E. Snider, Cape Girardeau, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, A. J. Seier, Pros. Atty., Cape Girardeau, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction for rape of a twelve year old girl and his sentence of 75 years therefor.

No question is raised concerning the sufficiency of the evidence, except as to venue. The evidence overwhelmingly proved that defendant, 37 years old, forcibly abducted and raped twice the twelve year old victim, then abandoned her in an isolated area. Defendant raises three claims of error: (1) the verdict-directing instructions were repetitious and conflicting, (2) venue was not proved, (3) the punishment provisions of Sec. 559.260 are an unconstitutional delegation of legislative power because no maximum penalty is fixed.

Point 3, if properly preserved, would require transfer to the Supreme Court. We do not find it to have been properly preserved. The motion for new trial complained only that the punishment imposed combined with the age of defendant was greater than a life sentence which defendant contended to be the maximum punishment. Failure to present a point raised on appeal in the motion for new trial prevents the point from being properly preserved for appellate review. State v. Brewer, 338 S.W.2d 863 (Mo.1960); State v. Spencer, 486 S.W.2d 433 (Mo.1972). Constitutional error must be preserved from the earliest opportunity. State v. Graham, 527 S.W.2d 936 (Mo.App.1975). Defendant’s point 3 has not been preserved for review, as it was not raised in the motion for new trial.

We find defendant’s venue point to be without merit. Venue is not an integral part of the offense and need not be proven beyond a reasonable doubt, but may be inferred from all the evidence. State v. Garrett, 416 S.W.2d 116 (Mo.1967). While the precise location of the rape was not established, the victim testified it occurred within two or three blocks of the house to which she fled after the episode. That house was on North Rand in the City of Cape Girardeau. We take judicial notice that the City of Cape Girardeau is located in the southern portion of the County of Cape Girardeau. We think it reasonable to infer that North Rand is in the northern part of the city and that any location within two or three blocks of that house would still be within the boundaries of Cape Girardeau County, where defendant was tried.

We turn to defendant’s challenge to the instructions. Defendant pleaded not guilty and not guilty by reason of mental disease or defect. These are not inconsistent defenses and defendant may rely on both. State v. Valentine, 506 S.W.2d 406 (Mo.1974). We set out in an appendix the instructions given by the Court related to defendant’s point.

Basically defendant contends that Instruction 9 is repetitious, that both Instructions 5 and 9 cover the entire case but each fails to cover one of defendant’s defenses.

The instructions given are all MAI-CR. Number 5 is 2.04 and 6.42; Number 6 is 3.06; Number 7 is 3.70; Number 8 is 2.32; Number 9 is 6.42 and 2.30; and Number 10 is 2.33. Confusion on how the jury is to be instructed in this type of case, occurs because of the Notes on Use found under MAI-CR. 2.30. In paragraph 2 of those notes it is stated “Where ‘mental disease or defect excluding responsibility’ is relied upon as a complete defense . . . .” (emphasis added) and then sets forth certain rules to be followed. One of those rules is that “None of the state’s verdict directing instructions should include the general converse reading, ‘However, if you do not find and believe etc.’ Omit that paragraph.” (Emphasis in the original.) MAI — CR. 2.30 specifically stated in bold face type “Do not include a general converse.” The confusion occurs in the meaning of the word “complete” in the Notes on Use. It could mean “only” in which case the Notes on Use would not apply to the defendant’s case. It could mean “complete” as contrasted to “diminishing the seriousness of the offense,” in which case the Notes would presumably apply in this case. It is apparent the Court interpreted the Notes to apply where mental disease was the only defense.

We do not find it necessary, however, to resolve the question of whether the Notes on Use were followed in this case. Rather we conclude that when the instructions are read as a whole they could not have misled or confused the jury. Instructions 5 and 6 covered defendant’s plea that he did not commit the offense and utilized the proper instructions (with one minor and here unchallenged deviation) for that aspect of the case. Instructions 7, 8, 9 and 10 covered the defense of mental disease or defect and utilized the proper instructions for that defense. The law was properly stated and the jury was required to find the facts necessary to negate each defense. The jury was required to consider each defense before it could arrive at its verdict of guilty. While the instructions were somewhat repetitive we find no prejudice for that reason. We find no error prejudicial to defendant. State v. Valentine, 506 S.W.2d 406 (Mo.1974); State v. Williams, 515 S.W.2d 463 (Mo.1974).

Judgment affirmed.

McMILLIAN, P. J., and STEWART, J., concurs.

APPENDIX

“INSTRUCTION NO. 5

If you find and believe from the evidence beyond a reasonable doubt:

FIRST, that on or about the 6th day of December, in the County of Cape Gir-ardeau, State of Missouri, the Defendant inserted his sexual organ (to any extent) into the sexual organ of Desiree Filer, and,
SECOND, that at that time Desiree Filer was less than Sixteen years of age,

then you will find the Defendant guilty of Rape.

However, if you do not find and believe from the evidence beyond a reasonable doubt any one of the foregoing, you must find the Defendant not guilty of that offense.”

“INSTRUCTION NO. 6

If you do not find and believe from the evidence beyond a reasonable doubt any one of the following:

FIRST, that in the County of Cape Girar-deau, State of Missouri;
SECOND, that on or about the 6th day of December, 1974, the Defendant inserted his sexual organ (to any extent) into the sexual organ of Desiree Filer;
THIRD, that at said time and place Desiree Filer was less than Sixteen years of age,

then you must find the Defendant not guilty.”

“INSTRUCTION NO. 7

The Defendant has denied that he is guilty of the offense charged against him. The Defendant has also asserted that even if you find and believe from the evidence beyond a reasonable doubt that he committed the conduct charged against him, he is entitled to a verdict of “not guilty by reason of a mental disease or defect excluding responsibility” because he had such a mental disease or defect at the time of the conduct with which he is charged.

The Defendant is presumed to have been free of such a mental disease or defect at the time of the conduct charged against him. This presumption places upon the Defendant the burden of proving by the greater weight of the credible evidence that he is not guilty by reason of such mental disease or defect.”

“INSTRUCTION NO. 8

The phrase ‘mental disease or defect,’ as used in these instructions, means any mental abnormality regardless of its medical label, origin or source except alcoholism without psychosis.

In determining under other instructions given to you, whether the Defendant had a mental disease or defect at the time of the commission of the offense charged against him and, if so, the extent and effect of it, the jury may take into consideration all of the facts, circumstances and opinions given in evidence. However, it is for the jury alone to decide this issue under the law as given to you in these instructions.”

“INSTRUCTION NO. 9

If you find and believe from the evidence beyond a reasonable doubt:

First, that on December 6, 1974, in the County of Cape Girardeau, State of Missouri, the Defendant inserted his sexual organ to any extent into the sexual organ of Desiree Filer; and
Second, that at the time Desiree Filer was less than sixteen (16) years of age,

then you will find the Defendant guilty of Rape, unless you find and believe from the greater weight of the evidence that the Defendant is not guilty by reason of a mental disease or defect excluding responsibility as submitted in Instruction No. 10.”

“INSTRUCTION NO. 10

If you find and believe from the evidence beyond a reasonable doubt that Defendant committed the conduct charged against him, you will then decide whether or not at that time he had a mental disease or defect excluding responsibility.

If you find and believe by the greater weight of the credible evidence:

First, that at the time of the conduct charged against the Defendant he had a mental disease or defect, and
Second, that as a result of it he did not know or appreciate the nature, quality or wrongfulness of his conduct, or that if he did, he was incapable of conforming his conduct to the requirements of law,

then you must find the Defendant not guilty by reason of mental disease or defect excluding responsibility.”


author: WEIER, Judge.

text:
    Harold H. KNOESEL and Eunice I. Knoesel, Plaintiffs-Respondents, v. FIBER-LUM, INC., et al., Defendants-Appellants.
    No. 37238.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 31, 1977.

      Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Leonard D. Vines, Clayton, for defendants-appellants.
    Kappel, Neill, Staed & Wolff, Robert E. Staed, St. Louis, for plaintiffs-respondents.
   WEIER, Judge.

Defendants appeal from a judgment and decree of the trial court determining that a deed of trust purportedly signed by the plaintiffs in favor of defendants was null and void and of no force and effect. The judgment further ordered that the defendants be permanently enjoined from foreclosing on the plaintiffs’ real estate in St. Louis County. Plaintiffs entered into a contract with the defendant Fiber-Lum, Inc., for remodeling work on their home. The work was never completed and that which was done was performed in an unskillful manner. Plaintiffs did not complete payment to defendants for the contract price and defendants attempted to foreclose on plaintiffs’ property for default on a note secured by deed of trust. The plaintiffs alleged these instruments were obtained by forgery or by fraud. The trial court in its findings of facts and conclusions of law found that the alleged note and deed of trust were obtained by deceit, forgery and fraud, and the plaintiffs never executed either instrument in favor of the defendants.

In the court-tried case the trial judge could have found and inferred from the evidence that the plaintiffs Harold and Eunice Knoesel signed a contract with the defendant Fiber-Lum, Inc., and its representative Robert Farrelli in June of 1968 for home improvements. The Knoesels had intended to finance improvements from outside sources and had no discussion at any time with any of the defendants concerning financing. Fiber-Lum commenced work about three weeks later and worked on and off until the end of September when they informed the Knoesels that they were through with the job. Plaintiffs presented testimony that the work was not finished and that which was done was done in an unworkmanlike manner. Defendant Don Garrison, officer of Fiber-Lum, offered plaintiffs $300 in materials to finish the job in exchange for their signing of the certificate of completion. Respondents refused the offer. Defendants presented no evidence denying the offer was made.

Don Garrison frequently went to plaintiffs’ home both during and after the work period. On one of the occasions in October 1968, he took from plaintiffs their copy of the original contract with Fiber-Lum. In its place plaintiffs testified that Garrison substituted a purported sales contract which plaintiffs denied signing and which differed from the original contract in several respects. Whereas Robert Farrelli had signed the original, the signature of a Mr. Simondson appeared on the contract in evidence as the representative of Fiber-Lum. Plaintiffs further testified that they never dealt with a Mr. Simondson and that the contract which was produced in evidence on behalf of the defendants omitted certain sentences and a clause which appeared in the original contract to the effect that “the job was to be completed to customer’s satisfaction.” The plaintiffs denied signing the note and deed of trust produced by defendants’ counsel and introduced in evidence.

On December 1,1968, the Knoesels moved to California where they lived until they returned to St. Louis in May of 1970. Prior to leaving they received a payment book and letter signed by one “Rosalie” from D & M Management Company stating that D & M Management Company had purchased a note secured by deed of trust from Fiber-Lum. Although the address of D & M Management Company which appeared on the payment book differed from that of Fiber-Lum and Rosalie’s signature had never appeared on any contract from Fiber-Lum, later testimony showed that Fiber-Lum and D & M Management Company were operated out of the same building, and that Rosalie was defendant Margaret Rosalie Garrison, president and treasurer of Fiber-Lum. D & M Management Company was registered under the “fictitious name law” of the State of Missouri and was owned by Fiber-Lum, Inc. Plaintiffs did not make payments because of their dissatisfaction with the work done.

On January 12, 1969, plaintiffs received a newspaper clipping from a relative describing a foreclosure sale on their property. Neither Fiber-Lum nor D & M Management Company had ever sent notice of foreclosure to the respondents. On advice of counsel respondents made fourteen payments totaling over $1400 to appellants in order to stop foreclosure. Respondents made payments during the time they were in California. While there they received a letter dated July 24, 1969, signed by one L. Garrison stating that he had been assigned their note and all future payments should be made to a certain post office box in East St. Louis, Illinois.

At trial a deposition of Lonnie Garrison was offered by plaintiffs and admitted into evidence in which the witness testified that the letter from “L. Garrison” dated July 24, 1969, was sent and signed by his son Don Garrison, one of the defendants. Further the initials “L.G.” which appeared numerous times on the payment book were put there by Don Garrison. Lonnie Garrison stated that he never saw the payment book but that he did trade some of his farm land in Illinois for the notes and deeds of trust including those of the Knoesels. The letter purported to have been signed by him was dated July 24, 1969. But deeds to Don and Margaret on land in Illinois were not executed until March 9, 1970, and June 28, 1972. Further testimony established that Don Garrison applied for the post office box in East St. Louis, the address to which payments were directed to be made and that checks sent to that post office box by the Knoesels were cashed by Don Garrison using the endorsement “L. Garrison.”

On July 21, 1971, without prior notice to plaintiffs, the defendants again published notice of foreclosure. This action was taken despite the fact that Fiber-Lum, Inc., was a defunct corporation since its certificate of incorporation had been cancelled by the State of Missouri on January 1, 1971. This suit followed. It alleged fraud, forgery, deceit, usury and a lack of consideration in Count I and fraudulent assignment of the note and deed of trust to L. Garrison in violation of a St. Louis County Circuit Court injunction in Count II. Both counts prayed that the court issue an injunction restraining defendants from foreclosure proceedings; that the court cancel the note and deed of trust and for damages. The court granted injunctive relief and can-celled the two instruments.

Defendants first contend that the court erred in finding that the plaintiffs did not sign the promissory note and deed of trust contrary to the overwhelming weight of the evidence. We review this case upon both the law and the evidence as in suits of equitable nature giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(3). This has been construed to mean that the decree of the trial court “will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976).

Both of the plaintiffs testified that they did not sign the promissory note and deed of trust. Neither the defendant Don Garrison nor the defendant Margaret Garrison took the stand to testify. This in itself without a valid explanation raises a strong presumption that their testimony would have been unfavorable. Ehrle v. Bank Building & Equipment Corporation of America, 530 S.W.2d 482, 493[14] (Mo.App.1975). Defendants did produce a handwriting expert who stated as his opinion that the signatures were the signatures of Mr. and Mrs. Knoesel. The court’s determination on this matter was based upon substantial evidence; and since the trial judge would be in a better position to judge the credibility of the witnesses, we defer to the trial court’s determination in this matter.

The defendants further contend that there was no proof as to any elements of fraud in the procurement of the deed of trust and therefore that the court’s finding was against the weight of the evidence. It is true that to prove a case of fraud the elements of fraud must be proven. “The essential elements are that (1) a representation was made of a material fact which was false and known to be false, or was recklessly made, (2) the statement was made with intent that it should be relied upon by the person and in the manner reasonably contemplated, (3) that the hearer was ignorant of the falsity of the statement, (4) that the hearer had a right to rely thereon and did in fact do so, and (5) that the plaintiff was induced thereby to act to his consequent and proximate injury.” Yeager v. Wittels, 517 S.W.2d 457, 463[4, 5] (Mo.App.1974). Although the burden of proof rests upon the parties asserting fraud, Powers v. Shore, 248 S.W.2d 1, 6[6] (Mo.banc 1952), fraud can be shown by circumstantial evidence. Blakeley v. Bradley, 281 S.W.2d 835, 839[2] (Mo.1955).

Defendants complain particularly that there was no evidence of a fraudulent misrepresentation. But the representation on the part of the defendants that the note and deed of trust had been signed by the plaintiffs, whereas in fact they were proved to be forged documents, is fraudulent. Such proof of forgery of a document in issue as to its validity satisfies the requirement that there be a representation of a material fact which was false. Universal C.I.T. Credit Corporation v. Tatro, 416 S.W.2d 696, 702 (Mo.App.1967).

The defendants further contend that the court erred in finding that the note and deed of trust was obtained by deceit, forgery and fraud because said findings are “mutually exclusive, inconsistent, antagonistic and contradictory.” In reply to this we can only say that trickery and deceit are frequently used to defraud and are in themselves badges of fraud. Smile v. Lawson, 506 S.W.2d 400, 403 (Mo.1974), See also Universal C.I.T. Credit Corporation v. Tatro, supra.

The judgment of the court is affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: MATHERNE, Judge.

text:
    Dr. John L. ARMSTRONG, Appellee, v. BOARD OF DIRECTORS OF FAYETTE COUNTY GENERAL HOSPITAL, Appellant.
    Court of Appeals of Tennessee, Western Section.
    Oct. 18, 1976.
    Certiorari Denied by Supreme Court July 5, 1977.

      J. P. Matthews, Somerville, Armistead P. Clay, Memphis, for appellant.
    James F. Schaeffer, Memphis, for appel-lee.
   MATHERNE, Judge.

The issue is whether the defendant hospital board acted illegally, arbitrarily and beyond its jurisdiction by the adoption and enforcement of a by-law which requires certification, or eligibility for certification, by the American Board of Surgery as a prerequisite to the granting of certain surgical privileges to physicians who apply therefor.

The by-law under consideration provides: “Types of major surgical procedures to be performed by a physician shall be dependent upon his demonstrated training and experience subject to approval of the Executive Committee of the medical staff and the surgical staff of the hospital. No member of the surgical staff shall be deprived of surgical privileges without two-thirds of the vote of the medical staff. Surgical procedures requiring advanced surgical skill and training shall be performed by a surgeon who is certified, or eligible for certification by the American Board of Surgery or equivalent specialty or subspecialty board joined under the auspices of the American Medical Association, and demonstrated competence and ability.”

The plaintiff applied for 44 specified surgical privileges; the hospital board granted him only 17 of these. The plaintiff appeared before the board and requested approval for those surgical privileges which had been denied. The board refused this request and the plaintiff obtained review by writ of certiorari from the Chancery Court sitting in Fayette County, Tennessee. The chancellor found that the board had denied the requested surgical privileges because the plaintiff was not certified, nor eligible for certification, by the American Board of Surgery. The chancellor found that action of the board to be illegal, arbitrary and beyond the jurisdiction of the board and remanded the cause to the board for a determination of whether the plaintiff was entitled to those surgical privileges based upon the plaintiff’s qualifications and experience.

The board appeals the decision of the chancellor and also questions the admission of certain evidence in the chancery court which did not bear upon the issue of whether the board acted illegally, arbitrarily and beyond its jurisdiction.

The Fayette County General Hospital, a public hospital, has been rather recently constructed, equipped, staffed and placed in full operation. Fayette County, Tennessee is a rural county and there are about six physicians practicing medicine in that county. Dr. Armstrong has practiced his profession of medicine and surgery for about 30 years. He is now practicing medicine and surgery in Fayette County.

The 17 surgical procedures approved by the board for Dr. Armstrong are procedures of a minor nature as compared to those procedures which were refused. The record and oral argument before this Court establish that Dr. Armstrong was allowed more surgical procedures than was any other physician in Fayette County and that no other physician in that county is qualified to perform the surgical procedures which were denied to Dr. Armstrong. The medical staff of the hospital as originally constituted consisted of all the physicians practicing in Fayette County. Dr. Armstrong was admitted to the staff under the surgical restrictions noted.

Eight of the nine members of the board of directors testified before the chancellor. Each director stated that the reason the surgical privileges of a major nature were denied to Dr. Armstrong was that he was not certified, or eligible for certification, by the American Board of Surgery. It is also important to note that these witnesses testified that no evidence was submitted to the board of directors which would establish Dr. Armstrong as incompetent to perform these procedures, and each admitted that evidence was submitted to the board that tended to establish the competency of Dr. Armstrong to perform these procedures. In short, the members of the board of directors closed their minds to the competency of Dr. Armstrong and denied him major surgical privileges because he was not certified as the by-law required.

We agree with the chancellor that this action of the board of directors of this public hospital was arbitrary, capricious, discriminatory and beyond its jurisdiction. We hold, under the authority of Nashville Memorial Hospital, Inc. v. Binkley (Tenn.1976) 534 S.W.2d 318, that Dr. Armstrong cannot be deprived of his right to practice his profession, or any part thereof, by the unreasonable, arbitrary, capricious or discriminatory actions of the governing body of a public hospital.

Based upon the fact that the board of directors had not considered the qualifications of Dr. Armstrong, the chancellor remanded the cause to the board of directors with the instruction that within 30 days from the entry of the order—

(T)he board of directors of the hospital afford a hearing to the petitioner to reconsider his application for those certain surgical privileges pursuant to a fair procedure based upon his qualifications and experience.

We agree with this holding of the chancellor. We hold that a requirement of certification by any particular society as a mandatory prerequisite for the right of a duly licensed physician to practice his profession in a public hospital is illegal, arbitrary, capricious and beyond the jurisdiction of the governing body of the hospital. The governing body of a public hospital may accept a certification of a certain board or society and, based upon that certification alone, grant a physician specified hospital privileges. But, in the absence of the acceptable certification the governing body of the hospital, acting in a quasi-judicial capacity, must determine from evidence presented to it whether the applying physician is competent to perform the surgical procedures requested by him.

The chancellor further decreed as follows:

(T)hat the Board of Directors of the Fa-yette County Hospital be and is hereby directed to amend its by-laws to eliminate the aforesaid discriminatory provision therein and to adopt a by-law which does not make membership in any particular society a requirement for hospital privileges and that the basis for privileges be in conformity with those recommended by the American Medical Association and as so required in the aforesaid hospital board resolution adopted on April 26, 1972.

We disagree with that holding and we strike the quoted sentence from the decree. Hospital boards and officials are vested with a large measure of management discretion in the selection of members of the medical staff of a hospital. State ex rel. Carpenter v. Cox (1969), 61 Tenn.App. 101, 453 S.W.2d 69. For the reasons herein stated we hold the by-law and its enforcement as here attempted to be illegal. However, the courts should abstain from directing a hospital board to repeal or to enact any certain provision in its by-laws. The hospital board has the authority to promulgate reasonable rules and regulations as pertain to staff members and their privileges. It is for the courts to determine under factual situations as presented whether the rule or regulation as enforced is illegal, arbitrary or beyond the jurisdiction of the board. It is sufficient to now hold that the by-law quoted is illegal and cannot be enforced as here attempted.

We also disagree with the reference to the American Medical Association contained in the portion of the chancellor’s decree quoted above. The proof establishes that the criteria presently recommended by the American Medical Association for the granting of hospital privileges to be “on the bases of individual competency, judgment, [and] ethical character.” The board of directors cannot, however, pass to that organization the responsibility of spelling out, for the present or in the future, what will or will not be constitutionally acceptable. Much less should a court so decree. The burden is on the board of directors to accomplish due process and to protect the right of the licensed physician to practice his profession in a public hospital, subject to reasonable rules and regulations.

The board of directors complain of the admission of evidence in the chancery court concerning the qualifications of Dr. Armstrong. The chancellor repeatedly stated that any evidence admitted would be considered only as it related to whether the board acted illegally, arbitrarily, capriciously or beyond its jurisdiction. This is the proper basis for the admission of evidence in chancery on common law writ of certio-rari to a board or commission. Bayside Warehouse Co. v. City of Memphis (1971), 63 Tenn.App. 268, 470 S.W.2d 375, and the authorities therein cited. The decree of the chancellor which remanded the cause to the board of directors for a hearing based upon Dr. Armstrong’s qualifications indicates that the chancellor did properly apply the rule concerning the admission and consideration of evidence on this review by common law writ of certiorari.

The decree of the chancellor as herein modified is affirmed and a decree may be accordingly entered in this Court. The cost in this Court is adjudged against the defendant-appellant, for which execution may issue.

CARNEY, P. J., and NEARN, J., concur.


author: SANDERS, Judge.

text:
    Gail W. KERLEY, as wife of E. Gary Kerley, Deceased v. The STANLEY WORKS, Massey Electric Company, Vinylex Corporation, and George W. Reagan Company Incorporated.
    Court of Appeals of Tennessee, Eastern Section.
    Feb. 1, 1977.
    Certiorari Denied by Supreme Court May 31, 1977.

      Norman H. Williams, Knoxville, for appellant.
    Arthur D. Byrne, Knoxville, for the Stanley Works.
    Robert R. Campbell, Knoxville, for Massey Electric Co.
    Joseph B. Yancey and Patrick G. Kelly, Knoxville, for Vinylex Corp.
    Calvin N. Taylor, Knoxville, for George W. Reagan Co., Inc.
   OPINION

SANDERS, Judge.

The Plaintiff, Gail W. Kerley, as wife of E. Gary Kerley, deceased, has appealed from a directed verdict in favor of the Defendants in her suit for the wrongful death of her husband.

The Defendant, Vinylex Corporation, contracted with the Defendant, George W. Reagan Company, Incorporated, to construct a building for it in Knox County. Defendant Reagan, in turn, let a contract to Defendant Massey Electric Company as a subcontractor for the electrical work. Reagan also subcontracted the installation of the doors in the building. This subcontractor then subcontracted this work to the now-deceased E. Gary Kerley.

While working on the installation of the doors and using an electric power drill manufactured by the Defendant, The Stanley Works, the decedent apparently received an electrical shock and fell from a 20-foot ladder to his death on a concrete floor.

The Plaintiff-Appellant, Gail W. Kerley, wife of the deceased, E. Gary Kerley, filed suit in the Circuit Court of Knox County against the Defendants-Appellees for the wrongful death of her husband. The Plaintiff’s suit against The Stanley Works, manufacturer of the electric drill, is predicated upon the theory of strict liability and negligent design. Her suit against Massey Electric Company is predicated upon the theory it was negligent in the way and manner it installed the electric breaker-switch panel box to which the drill was connected at the time of decedent’s electrical shock. She contends in her suit against Vinylex Corporation, as owner of the building, and George W. Reagan Company, as general contractor, each had a nondelegable duty to provide the decedent a safe place to work. She says the negligence of the Defendant; Massey, is imputable to Defendants Vinylex and Reagan.

The case was tried before a jury and at the close of the proof the Court directed a verdict in favor of all Defendants.

The Plaintiff has appealed and assigned the action of the Court as error.

There is little or no dispute as to the material facts in the case. Approximately one year prior to the accident the decedent purchased an electric power drill manufactured by the Defendant, Stanley. The decedent used this drill regularly in his work as a subcontractor. There is no evidence of any malfunction of the drill prior to the date of the accident.

A short time prior to the accident the drill started malfunctioning. Sparks started flying from the bridge of the drill while it was running and the motor began stalling. It was apparent from the function of the drill there was a short or a defect in the wiring. The decedent undertook repairing the drill. The electrical cord which connects the motor with the electric source for the drill extends out through the base of the drill handle. At this point there was a rubber boot welded to the cord which covered the wiring and served as a tension arres-ter to keep tension off the wires on the inside of the drill when tension was exerted on the extended portion of the cord. There were three separate wires in the cord to the drill, a white wire, a black wire and a green wire. The white and black wires provided the electric current and the green wire served as a ground. To make the repairs the decedent removed the handle of the drill and upon doing so it was discovered there was a dark spot or burned place on the white wire inside the boot. The boot was cut away and removed. It was then apparent the white wire had burned in two. The insulation was removed from the two ends of the white wire, the ends twisted together, taped, and inserted into the handle of the drill.

After this repair a brief use of the drill indicated it was functioning normally. The decedent took the drill up a 20-foot ladder to drill holes in a metal plate on an overhead door. He had been using the drill for several minutes when one of his employees heard him make a sound like a grunt. The employee said the decedent was leaning back on the ladder holding on to the ladder with one hand and holding the drill, which was still running in the other. The employee sensed the decedent was being shocked and he unplugged the extension cord to which the drill was attached. The employee started up the ladder after disconnecting the drill but before he could reach the deceased he fell, striking his head on the concrete floor. The decedent died immediately thereafter.

Prior to the date of the accident the Defendant, Massey, had installed a temporary circuit-breaker panel box from which electricity was distributed for use during construction. On the day of the accident the decedent had plugged an extension cord into this panel box for electrical current to operate his drill. The spot at which the decedent was working was approximately 150 feet from the panel box. Decedent had put three extension cords together to span this distance. Two of the extension cords contained three wires, two wires for the electrical current and one for ground. However, the ground plug had been broken off of one of the cords, making the ground ineffective. The third cord had no ground wire. Without a ground wire a short in the drill would permit the electrical current to flow through the body of the deceased.

The Plaintiff contends there was manufactured and available for installation on a panel box such as that installed by Defendant Massey a device known as a ground fault circuit interrupter (referred to as a GPI device) which would have prevented deceased’s being shocked. She contends the Defendant was negligent in not installing the GPI device and this was the proximate cause of decedent’s death.

The GFI device reacts to break the circuit of electrical current much more rapidly than either the fuse or circuit breaker. It reacts to an imbalance of current in mil-liamps and had one been in use at the time of the accident the deceased would have perhaps felt little or no shock even though he was using an ungrounded drill.

The GFI device was developed in Europe a number of years ago. Although it is used extensively there, its introduction in this country did not occur until about 1970. The proof indicates there had been a growing use of the device in this county at the time of the accident (1973) but it was not uniformly used nor was it a requirement of the National Electrical Safety Code. The National Electrical Code is recognized as the guideline for the electrical industry. It has been adopted as the general safety rules and regulations of the construction industry by the Department of Labor of the State of Tennessee. It insures an installation essentially free from hazards.

The panel box had been installed in compliance with the National Code and was described by one expert witness as being superior in quality to the accepted standards for such installations. There is no proof of any defect in the installation nor is there any contention by the Plaintiff of any deficiency other than the absence of the GPI device.

At the time of the accident the decedent was violating the National Electrical Code and the accepted rules of safety by using an ungrounded extension cord. Had the drill been properly grounded the accident would not have occurred.

In addressing the safety features of the panel box installation, one of Plaintiff’s expert witnesses testified, “GPI is obviously safer. Oh, this is . may I qualify that? To be perfectly correct about it. As long as the ground wire is functional, it’s safe too.”

While compliance with the standards of the National Electrical Safety Code is not conclusive as to Defendant’s negligence, there must be evidence in the record from which the jury could find the minimum standards of the Code were insufficient under the facts and circumstances of the case. City of Elizabethton v. Sluder, Tenn., 534 S.W.2d 115 (1976).

The undisputed proof shows there were no defects in the installation. The installation was safe. It was the negligence of the deceased, not that of the Defendant, which caused his injuries.

In the absence of any proof of negligence on the part of the Defendant, Massey, we find no error in the Court’s directing a verdict as to this Defendant.

Since the liability of the Defendants, Vi-nylex and Reagan, would be derivative from the negligence of Massey, we find no error in the directed verdict as to these Defendants.

The Plaintiff says it was error for the Court to direct a verdict as to Defendant Stanley. She insists the proof presents a jury question on defects in the drill at the time of the accident and negligent design of the drill.

An examination of the drill after the accident revealed a ground wire in the drill cord was broken. However, there is no proof as to when or how the wire was broken. Most significantly, there is no proof it was broken at the time it left the manufacturer.

Our courts have recognized the doctrine of strict liability upon manufacturers as outlined in 2 Restatement (2d) Torts, § 402A. Ford Motor Company v. Lonon, (1966) 217 Tenn. 400, 398 S.W.2d 240; Olney v. Beaman Bottling Co., (1966) 220 Tenn. 459, 418 S.W.2d 430; Ford Motor Company v. Eads, (1970) 224 Tenn. 473, 457 S.W.2d 28. Sec. 402A of the Restatement is as follows:

“Special Liability of Seller of Product for Physical Harm to User or Consumer
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or his property, if
“(a) the seller is engaged in the business of selling such a product, and “(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

In Ford Motor Company v. Lonon, supra, 398 S.W.2d at page 249, the court said:

“It should be noted that the above section requires the plaintiff to establish that the product, when it left the hands of the manufacturer or other supplier, was at that time in both a defective and an unreasonably dangerous condition.”
* * * * * *
“where the plaintiff can sustain the heavy burden of showing, as he must, that the product was in a dangerously defective condition at the time it left the hands of the manufacturer, it is quite likely that some negligence was involved even though this cannot be proved. See Wade, supra, 19 Sw.L.J. 5 (1965); Noel, Products Liability of Manufacturers — To Manufacturers of Products — The Drift Toward Strict Liability, 24 Tenn.L.Rev. 963, 1012-13 (1957).”

The drill had been in use for approximately a year before the broken wire was discovered. At the time the accident occurred the extension cord to the drill was tied to the ladder on which the decedent was working. When the drill was dropped it fell about 10 feet and, since the tension arrester had been removed, the full force of the jerk on the cord was extended to the wires within the drill and could have separated the ground wire.

The Defendant, Stanley, offered uncon-tradicted proof that every drill is tested before it leaves the factory. Two tests are conducted to make sure the drill is properly grounded by the ground wire. One test is a dialectric test. This test subjects the drill to high voltage and will reveal any defect in insulation or grounding. Even if the ground wire was broken when the drill left the manufacturer, this would not have contributed to decedent’s injuries since he was using an ungrounded extension cord.

The Plaintiff also insists the housing and component parts of the drill were negligently designed, which resulted in decedent’s injuries. The proof shows the wire between the reverse switch and the motor of the drill had been damaged to the extent the insulation had been cut away and the bare wires came in contact with the housing of the drill. It is the insistence of the Plaintiff the design of the drill was the cause of this wire’s being damaged. It is her theory that when the decedent put the handle back on the drill, after removing it for repairs, the wire was pinched by being caught between the housing and the handle, resulting in the damage. Plaintiff says there should have been more room for the wires inside the drill and the wires should have been contained in a harness to avoid loose wires being caught between the handle and the housing, resulting in such damage. The Plaintiff offered expert witnesses who testified that, in their opinion, the wire was damaged when caught between the handle and housing of the drill, but neither of these witnesses expressed an opinion as to any defect in the design of the drill which would make it inherently dangerous to the user.

“A manufacturer, ... is not an insurer of the product he designs, and it is not required that the design adopted be perfect, or render the product accident proof, or incapable of causing injury, nor is it necessary to incorporate the ultimate safety features in the product. Hence, a departure from the required standard of care is not demonstrated where it is simply shown that there was a better, safer, or different design which would have averted the injury.” 72 C.J.S. Supp. Products Liability § 21.

The assignments of error are overruled. The judgment of the Trial Court is affirmed and the cost of the appeal is taxed to the Appellant.

GODDARD, J., and ROSS W. DYER, Special J., concur.


text:
    Marvin RUDEES, Appellant, v. DELTA AIRLINES, INC., Appellee.
    Court of Appeals of Tennessee, Western Section.
    April 26, 1977.
    Certiorari Denied by Supreme Court July 5, 1977.
    James W. Surprise, Memphis, for appellant.
    Edward W. Kuhn, McDonald, Kuhn, Smith, Gandy, Miller & Tait, Memphis, for appellee.
   MATHERNE, Judge.

While riding as a fare-paying passenger on a regularly scheduled flight of the defendant airline, the plaintiff sustained personal injuries when a stewardess spilled scalding coffee on his lap. The plaintiff sued for damages, and the trial judge, at the conclusion of the plaintiff’s proof, directed a verdict for the defendant. The plaintiff appeals, assigning that action of the trial judge as error.

The plaintiff boarded the defendant’s DC-9 airplane at Memphis for a flight to Atlanta, Georgia. The passengers were asked to keep their seat belts fastened due to. the possibility that the plane might encounter air turbulence. At a point approximately 100 miles from Atlanta, a stewardess came down the aisle of the airplane carrying at waist level an open tray which contained several cups of scalding coffee. The plaintiff was seated on an aisle seat with his seat belt fastened; he had not ordered coffee. The airplane apparently hit some clear air turbulence which made the stewardess sway in the aisle and spill the contents of the cups on the plaintiff’s lap. This resulted in rather severe burns to the plaintiff’s thighs and groin area.

The defendant, on motion for directed verdict, argued that the plaintiff had not proved any negligence on its part. Counsel for the defendant argued, and the trial judge apparently agreed, that the plaintiff could not recover because he failed to prove that the pilot was negligent or that the defendant knew or should have known about the air turbulence.

The foregoing argument overlooks the basis of the lawsuit. The plaintiff alleged that the stewardess was negligent: (1) in spilling the coffee; (2) in her manner of carrying scalding coffee down the aisle of the plane; (3) in carrying the coffee in uncovered containers; and (4) in attempting to serve scalding coffee during flight. The issue is the negligence of the stewardess; therein lies the lawsuit.

Facts were proved from which the jury could have found the proximate cause of the plaintiff’s injuries was the negligence of the stewardess as charged. We hold that reasonable minds could well differ on this issue and that the trial judge erred in directing a verdict for the defendant.

The judgment of the trial court is reversed, and this lawsuit is remanded for a new trial. The accumulated costs in the trial court and in this Court are adjudged against the defendant-appellee. The cost of the new trial will be there adjudged.

CARNEY, P. J., and NEARN, J., concur.