author: JONES, Justice.

text:
    Julian H. ADAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 11, 1977.
    Rehearing Denied July 1, 1977.

      Jack Emory Farley, Public Defender, J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., B. F. Radmacher, III, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

On November 10, 1975, Julian H. Adams was convicted of first degree robbery and of being a persistent felon. In conformity with the jury’s verdict, Adams was sentenced to a maximum term of 40 years’ imprisonment. From that judgment, Adams appeals. In his initial brief, Adams alleges three errors as grounds for reversal:

(1) A prior felony conviction, introduced to enhance his punishment, was inadmissible as he was not represented by counsel when sentenced for that offense;

(2) The trial court improperly shifted the burden of proof of the validity of a prior felony conviction from the prosecution to the defense;

(3) The prosecution failed to introduce any evidence that Adams was over the age of 18 when he committed the offense of voluntary manslaughter in 1941, thereby failing to establish an essential element of the offense of being a persistent felony offender. By supplemental brief, Adams further alleges that the trial court committed reversible error in ruling as a matter of law that the pistol used in the robbery was a deadly weapon.

To place these issues in proper perspective, a brief summary of the facts is necessary.

Adams and his codefendant, Phillips, were charged with first degree robbery by threatening the use of physical force while armed with a pistol in the course of a theft at Jackson’s Liquor Store. Subsequently, Adams was again indicted for the offense and charged with being a persistent felony offender because of two prior felony convictions:

(1) On September 25, 1941, the felony of voluntary manslaughter, for which he received a sentence of 21 years; and,

(2) On April 29,1971, the felony of housebreaking, for which he received a sentence of 8 years.

At Adams’ trial the court read the charges in the second indictment to the prospective jurors at the commencement of their voir dire. At the close of the voir dire of the jurors, but before they were sworn, Adams’ counsel moved for a mistrial.

The trial court conducted an in chambers examination of each juror, with all parties present, to ascertain whether the jurors had any recollection that Adams or Phillips were charged as persistent felony offenders. Concluding that, “apparently the jury does not consider [being a persistent felony offender] a charge,” the trial court ruled the error “not prejudicial” and overruled the motion.

An employee of Jackson’s Liquor Store testified that “about ten minutes after twelve,” on August 24, 1975, “this fellow (Phillips) walked up to the counter with a pistol in his hand and said, T don’t want to hurt you two fellows. This is a holdup.’ ” An employee “took a small sack and put the money in the sack and handed it to him.” The robber then “took off” and “headed south on Limestone.” The employee identified Phillips as the robber. Testimony of the officers who investigated the theft established that Adams was the “driver of a get-away car.” There was evidence that $310.00 was taken in the robbery. Approximately “an hour and fifteen minutes later,” officers apprehended Adams and Phillips in a car which Adams was driving. A search revealed $177.00 in Phillips’ wallet, $154.00 on Adams’ person and a ten-dollar bill on the floor of the automobile in front of the passenger seat, where Phillips had been seated.

Adams presented an alibi defense.

After the close of the robbery trial and while the jury was deliberating, Adams’ counsel challenged the validity of the 1941 manslaughter conviction on the ground that the record failed to show “the presence of counsel, either at trial or sentencing.” That motion was overruled. Counsel for Adams then challenged the 1941 conviction because the record “is silent as to the date of trial,” and the date “when the offense was committed.” Counsel for Adams persistently argued “that there is no proof that . Adams was more than 18 years of age at the time he committed the crime of which he was convicted.” (The 1941 conviction for voluntary manslaughter.)

When the jury returned a verdict of guilty on the principal offense, the persistent felony offender phase of the trial began. The prosecutor filed the record of the 1941 Pike Circuit Court conviction for voluntary manslaughter. He also offered evidence of Adams’ 1972 Jessamine Circuit Court conviction on a charge of dwelling house breaking. At the conclusion of the Commonwealth’s evidence, counsel for Adams renewed his motion challenging the sufficiency of the 1941 conviction because the record failed to establish that Adams was 18 years of age at the time he committed the offense of voluntary manslaughter. That motion was overruled.

Adams testified that he was represented by counsel at his 1941 trial, but that he was not represented by counsel when he was sentenced.

At the conclusion of Adams’ presentation, his counsel moved for a directed verdict on the persistent felony charge. That motion was overruled.

This court has repeatedly and consistently adhered to the principle that sentencing is not such a critical stage of the proceedings as to warrant the presence of counsel. Sentencing in this jurisdiction is perfunctory and merely a formality. In Steenbergen v. Commonwealth, Ky., 532 S.W.2d 766 (1976), this court stated:

“. . . This court has rejected the cloak of sanctity imposed by Oliver. [Oliver v. Cowan, 487 F.2d 895 (6th Cir.1973)]. In plain language, not subject to misinterpretation, the court has held that the guiding hand of counsel is not required in formal sentencing procedures because it is not a critical stage of the proceeding. This is particularly so when the accused has shown no prejudice in order to be entitled to the relief sought. . ” (Emphasis added). See Reams v. Commonwealth, Ky., 522 S.W.2d 853 (1975).

Adams alleges no prejudice by lack of counsel at sentencing. The judgment has stood unchallenged for 35 years without a showing of prejudice to his substantial rights. Lack of counsel at the sentencing stage does not invalidate the conviction of his 1941 trial.

The trial court did not shift the burden of proof to Adams to show he did not have counsel. The trial court required Adams to raise the issue of lack of counsel, nothing more. The burden of proof remained always on the Commonwealth to prove Adams had counsel at trial. It met that burden head-on. Adams testified that he had counsel at trial. He equivocated about counsel’s presence at the sentencing stage. He was not positive that counsel was not present at the sentencing stage. It was unnecessary that counsel be present at the sentencing stage. Adams relies on Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Burgett does not fit here. The court record is not silent. The record indicates that after all the evidence was introduced, the court instructed the jury and the jury heard the “arguments of counsel.” This was bolstered by Adams’ testimony that he had counsel at the 1941 trial. In light of his admission that he was represented by counsel during his 1941 trial, it cannot be said that his lack of representation at the sentencing stage of that proceeding was prejudicial to his substantive constitutional guarantees.

The last assignment of error in appellant’s initial brief presents a vexatious problem. A thorough reading of the evidence and the exhibits indicates that the Commonwealth’s Attorney failed to meet the burden of showing that Adams was above 18 years of age at the time of the commission of the offense for which he was tried and convicted in September 1941. The records show that Adams was born May 24, 1921. He was 54 years old at the time of his trial in 1975. He testified in substance that at the time of his 1941 conviction he was a “kid,” 19 or 20 years old. KRS 532.080(2) defines a previous felony conviction, and subsection (b) of that paragraph requires that before an offense can be used to classify an individual as a persistent felon the offender must have been over 18 years of age at the time that prior offense was committed. KRS 500.070 states, “. . . that the commonwealth has the burden of proving every element of the case beyond a reasonable doubt.” The Commonwealth failed to meet that burden.

The Commonwealth contends that from the fact that Adams was 19 or 20 at the time of his 1941 conviction it can be reasonably inferred that he was over the age of 18 at the time of the commission of the underlying offense. We disagree. Such an inference would be entirely too tenuous and cannot be drawn.

Because Adams was 20 years old at the time judgment was rendered on the voluntary manslaughter charge in 1941, it cannot be reasonably inferred that he was over 18 at the time he committed the offense. The prosecution, therefore, failed to sustain the burden of proving every element of the offense beyond a reasonable doubt. The age of Adams at the time the crime was committed is a distinct element of the ease which must be proven in order to satisfy the persistent felony statute. KRS 532.080(2)(a).

The court has considered the additional assignments in Adams’ supplemental brief. Whether the instrument used in the course of a robbery is or is not a deadly weapon is a matter to be determined by the court as a matter of law. There was no evidence that any weapon other than the pistol used by Phillips, a codefendant of Adams, was used in this robbery. As a matter of law such an instrument is a “deadly weapon,” as defined in KRS 500.-080(4).

The judgment is reversed with respect to the persistent felony conviction. The judgment is affirmed as to the conviction of first degree robbery. This cause is remanded with directions that Adams be resen-tenced on the conviction of the principal offense of first degree robbery.

All concur.

      . Phillips prosecutes a separate appeal.


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice,

license: Public Domain

text:
    Kenneth Wayne MUSE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    Rehearing Denied July 1, 1977.

      Jack Emory Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   PER CURIAM.

Kenneth Wayne Muse appeals from a judgment entered on a jury verdict finding him guilty of willful murder and fixing his punishment at life imprisonment. Muse claims that the court committed reversible error in that it failed to instruct the jury on assault in the first degree. Secondly, he asserts that the court erred to his substantial prejudice when it failed to conduct a hearing to determine his capacity to stand trial.

Muse, age 24, had been keeping steady company with Austin Saunders’ daughter, Linda, age 16, for a period of some sixteen months. After Linda obtained a driver’s license, she lost further interest in Muse and terminated their affair.

In the early evening of April 28, 1975, Muse went to the Saunders’ home “to get even” with Linda for breaking up the love affair and to seek redress for some rather harsh words said about him by her mother, Elsie. He arrived at the home about 9:25 p.m., carrying a single shot .22 rifle. The first inkling Linda and Elsie had of his presence was when Linda looked up and saw him standing in the door of the laundry room pointing the gun at Elsie’s head. Linda screamed and knocked the gun away just as it was fired. Muse immediately fled to the yard. In the ensuing hours he proceeded to shoot through the window; shoot a hole in the gas tank of the car; slash the tires on the car and truck; and to break out numerous windows in the house. During all of this time Linda and Elsie, after turning off the lights, hid in the bathroom with the door closed. Muse had cut the telephone line so they could not call the police.

Shortly before midnight, Muse knocked the glass out of the door and came into the living room. Austin arrived home from work at about 12:10 a.m. Elsie and Linda ran down the hall toward the living room to warn him of the presence of Muse. Muse turned the living room light on, and just as Austin entered the house he shot him once in the stomach. Although disarmed by Elsie and Linda, he continued to threaten the family with a knife until around 3 a.m. Austin was then removed to the hospital and from there to a Lexington hospital for surgery and treatment of the gunshot wound. He remained in the hospital until Thursday, May 8, when he was taken home. On Sunday, May 11, he experienced some chest pains and was taken to the hospital in Flemingsburg where he died on Wednesday, May 14, of a pulmonary embolism.

The Kentucky Penal Code, KRS 508.010, provides in part as follows:

“Assault in the first degree—
(1) A person is guilty of assault in the first degree when:
(a)He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; * * *.”

Muse was indicted on a charge of willful murder, KRS 507.020. Therefore, an instruction on assault in the first degree is proper only if it is a lesser included offense of the crime charged in the indictment. Prior to the adoption of the Penal Code, assault in the first degree was categorized under the general designation of “assault and battery.” As such, the use of an instruction on this issue in murder prosecutions has been consistently approved but with diverse reasoning for its inclusion or exclusion. The Kentucky Penal Code, KRS 505.020, provides for conviction of a lesser included offense under the following conditions:

“Prosecution for multiple offenses—
(1) When a single course of conduct of a defendant may establish the commission of more than one offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense when:
(a) One offense is included in the other, as defined in subsection (2); * * *.
(2) A defendant may be convicted of an offense that is included in any offense with which he formally charged. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or
(c) It differs from the offense charged only in the respect that a lesser kind of culpability suffices to establish its commission; or
(d) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest suffices to establish its commission.”

This section of the Penal Code appeared in the final draft of the Kentucky Penal Code, published by the Kentucky Crime Commission and Kentucky Legislative Research Commission. The accompanying commentary, in discussing subsection (d), uses as an example of a lesser included offense the following:

“ * * * There are other illustrations of this provision that are not quite so obvious. One that is mentioned by the drafters of the Model Penal Code is this: D inflicts an injury upon V. After living for a substantial period of time and still not completely recovered from the injury inflicted by D, V dies. D is charged with intentional homicide. There arises doubt as to whether D’s act was the cause of death. Subsection (d) would allow a conviction of intentional assault following a charge of intentional homicide. The assault offense, differing from the homicide offense only as to the degree of injury to person, would be an ‘included’ offense.”

Cf. KRS 500.100; Kennedy and McGreal v. Commonwealth, Ky., 544 S.W.2d 219 (1976).

As assault in the first degree is an included offense of the crime of murder, an instruction on this issue is required when the circumstances of the case meet the preceding conditions. It is not one to be given indiscriminately in all murder prosecutions simply because it is an included offense of the crime charged. When the evidence is such that there can be no doubt that if the accused is guilty at all he is guilty of homicide, then there should be no instruction on a lesser included offense. The evidence must leave room for some doubt as to whether the act of the accused was the cause of death. Yet, there must at the same time be present all elements necessary to prove an assault in the first degree.

Muse asserts that he was entitled to the assault instruction because there was some question concerning the causal relationship between the gunshot wound and Saunders’ death, or, in other words, it is his view that the evidence left room for some doubt as to whether his shooting was the cause of Saunders’ death.

Muse relies upon evidence given by the pathologist, Dr. Lamar Meigs, who performed an autopsy on Saunders subsequent to his death. Meigs testified that the immediate cause of Saunders’ death was a pulmonary embolism which had resulted from Saunders’ wounding and the surgery that followed. However, Muse asserts that the positive aspect of Meigs’ testimony is weakened by the following questions and answers:

“Q. And some fourteen days later he suffered from this embolism, now how is it you can arrive at the conclusion that this gunshot wound is the initiating event, could it have been something else?
A. It could have been, it’s not very likely.”
******
“Q. Could there have been some other traumatic event that could have caused the embolism?
A. There could have been but I’m now aware of it.
Q. You’re basing your opinion on the fact that you were informed that he received a gun shot wound some fifteen days before and the fact that there was an embolism?
A. That is correct and there was no sign of any other injuries.”

The pathologist testified categorically that the gunshot wound caused the death. He admitted on cross-examination only the possibility of another cause, which in itself does not remove the issue from the realm of speculation. Also, it is significant that the pathologist testified that the “greatest incidents of the occurrence of pulmonary embolism is in the tenth to twentieth day after the surgery. It may occur as early as seven days or so late as three weeks, but usually ten to fourteen days or more.” Here, it occurred the fourteenth day. Finally, the testimony concerning other trauma is even more illusory. Here again, the pathologist admitted to a possibility of other trauma. However, he testified that “there was no sign of any other injury.” The “possibility” aspect of his testimony is illustrative of a speculative rather than a factual area.

Muse was not required to introduce positive evidence that the embolus was a result of trauma or some other incident rather than his shooting Saunders. The burden was on the Commonwealth to prove beyond a reasonable doubt that the death of Saunders was the direct result of the gunshot wound inflicted by Muse.

An instruction on assault in the first degree should not be given in all instances. The propriety of such an instruction must rest upon a case-by-case examination of the totality of the evidence introduced. If the state of the evidence is such that it could justify a reasonable doubt that Saunders died as a result of the gunshot wound, then the question is one for the jury.

This court is of the opinion that the evidence in this proceeding does not attain this criterion; therefore, an instruction on assault in the first degree was not required.

Muse next claims that the court should have stopped the trial and conducted a hearing to determine whether he had mental capacity to stand trial. Muse’s misconduct in the course of this trial was nothing other than what is usually expected of one who suddenly finds himself caught in the toils of the law. From the record, we do not think that there existed reasonable grounds to believe that Muse was not competent to stand trial. Cf. Via v. Commonwealth, Ky., 522 S.W.2d 848 (1975).

The judgment is affirmed.

REED, C. J., and CLAYTON, LUKOW-SKY, STEPHENSON and STERNBERG, JJ., concur.

JONES and PALMORE, JJ., dissent.

JONES, Justice,

dissenting.

From time immemorial it has been the duty of trial courts in criminal prosecutions to instruct on the “whole law of the case.” Of course that duty is conditioned on the principle that the slightest evidence supporting a defense or the commission of a lesser included offense required an instruction on the issue. The trial court refused to instruct on assault in the first degree, a lesser included offense. In my view the majority opinion is wrong. Therefore I dissent.

I deem the rights of Muse to have been impinged upon by the majority’s view. The following demonstrates the fallacy in their line of reasoning: an assault in the first degree is an included offense of the crime of murder. When the evidence leaves room for some doubt as to whether the act of the accused was the cause of death, the trial court should instruct on the lesser degree of assault in the first degree.

Dr. Lamar Meigs, a pathologist, performed an autopsy on Saunders subsequent to his death. He testified that the immediate cause of Saunders’ death was a pulmonary embolism which resulted from Saunders’ wounding and the surgery that followed. The positive effect of Meigs’ testimony is weakened by the following questions and answers:

“Q. And some fourteen days later he suffered from this embolism, now how is it you can arrive at the conclusion that this gunshot wound is the initiating event, could it have been something else? A. It could have been, it’s not very likely.”
* * * * * *
“Q. Could there have been some other traumatic event that could have caused the embolism?
A. There could have been but I’m not aware of it.”

If there is any evidence that indicates a doubt, as long as that doubt is reasonable, that Saunders died as a result of a gunshot wound, then an instruction on the lesser included offense should have been submitted to the jury.

The evidence in this case reveals that the first item that supports a doubt is that Saunders died 14 days after he was shot. He was admitted to a hospital and underwent surgery. Although his recovery was incomplete, he was released from the hospital. Another fact that creates doubt is the manner in which Saunders died. His death was the result of a blood clot (embolus) which had formed in his leg, broke loose and coursed through his circulatory system to his lungs. The embolus cut off the blood supply and caused Saunders’ death. Another item that creates doubt is the wavering testimony of the pathologist. His testimony that the event causing the blood clot could have been something other than the gunshot wound, and that it could have been caused by trauma other than that of the wounding and surgery which followed, certainly would leave room for doubt.

The evidence regarding the death of Saunders as a result of a pulmonary embolism creates circumstances sufficient to raise the issue of the cause of death. Was the pulmonary embolism that killed Saunders the result of the gunshot wound and ensuing surgery, or was the embolus the result of trauma or another incident not related to the gunshot wound and surgery? I say that these questions, supported by the evidence, create some doubt as to the cause of death.

The majority’s view does violence to the “whole law of the case” rule. It in effect overrules a number of cases which stand for the principle that where the evidence authorizes it is error on the part of the trial court to fail to instruct on any of the lesser degrees of offense charged in the indictment or in any offense included within that charged. See Harris v. Commonwealth, 218 Ky. 798, 292 S.W. 467 (1927); and other cases cited herein.

It is ironic that the trial court instructed on lesser degrees of homicide and yet failed to instruct on assault in the first degree. I am of the opinion that it was error on the part of the trial court to refuse an instruction on assault in the first degree. I believe that the judgment should be reversed for the reasons set out herein.

For all of the reasons enumerated above, I register this, my dissent.

I am authorized to say that PALMORE, J., joins in this dissent.

      . KRS 505.020(2)(d).

      . See the commentary discussing KRS 505.-020(2)(d), in which an example of a lesser included offense is set out. Majority Opinion pp. 566-567.


author: STEPHENSON, Justice.

text:
    Clyde WILSON, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 20, 1977.

      A. Norrie Wake, Wake & Vest, Lexington, for appellant.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Clyde Wilson, Jr., was indicted for murder, KRS 507.020, and convicted of manslaughter in the first degree, KRS 507.030, for shooting and killing his wife, Joyce Wilson. Wilson was sentenced to 20 years’ imprisonment. We affirm.

The Commonwealth’s version of the incident is that at the Wilson home, late at night, the children were awakened by the wife, Joyce Wilson, and told to go out-of-doors, behind the chicken house, for the reason that the husband, Clyde Wilson, Jr., “was drunk and raising the devil.” Shortly thereafter, Joyce Wilson followed the children. Clyde Wilson then followed Joyce Wilson out of the house and they continued to argue. Clyde Wilson then told Joyce Wilson he was going to shoot her, pulled out a gun, and shot her.

Clyde Wilson’s testimony is that he was intoxicated, and after sending the children out of the house, Joyce Wilson attacked him and was beating his head on the floor when he managed to extricate himself, grab his gun, and run out of the house. Wilson testified that his wife came out of the house toward him and he fired a warning shot into the air, that she did not stop, but came at him and then he shot her. He testified that he believed she had a weapon, that she weighed 195 pounds and he weighed 123 pounds, and there was no way for him to escape her. His plea was self-defense.

Wilson asserts error in that the trial court (1) excluded testimony that Joyce Wilson had threatened to kill him, (2) refused to admit into evidence a diagram of the scene prepared by defense counsel, and (3) permitted the Commonwealth to question him regarding prior occasions of shooting at his wife and children.

In support of his assertion of self-defense, Wilson attempted to introduce the testimony of two women, one of whom would have testified that Joyce Wilson stated in her presence, “I’m going to kill Clyde when he gets drunk,” and the other “I’m going to kill Clyde,” and that these statements were made one or two weeks before the homicide. The trial court declined to permit the prospective witnesses to testify to these statements on the ground that the threats were not communicated to Wilson.

Generally, as well as in this Commonwealth, it is a well-settled rule that on a plea of self-defense evidence of threats made by the deceased against the accused, though not communicated to the accused, are competent to show the state of mind of the deceased and may be heard by the jury for the purpose of determining who was the aggressor. Carnes v. Commonwealth, Ky., 453 S.W.2d 595 (1970); and Wigmore on Evidence, 3rd Ed., § 110, p. 546.

Wilson argues the trial court excluded a vital portion of his defense by refusing to permit the testimony of these two witnesses.

We agree that the testimony was erroneously excluded, but we are of the opinion that the proposed evidence was cumulative and the exclusion was not unfairly prejudicial.

On direct examination, we see that Wilson testified as follows:

“Q. Had she ever threatened to kill you before?
“A. I just took that for a joke. I’d heard that a million times that she was going to kill me one of these days. I didn’t pay no attention to it.
“Q. When did she say that?
“A. Get into an argument or something like that. I always give into her pretty much. I always let her quarrel, and when she got big enough to handle me she just took over. I usually give in to her on just about everything; just about everything I’d give in to her and let her have her way.”

A similar situation was presented in McQueen v. Commonwealth, Ky., 393 S.W.2d 787 (1965).

During the course of cross-examining a witness for the Commonwealth, counsel for Wilson used a roughly drawn diagram of the premises for the purpose of testing the credibility of the witness by the physical location of objects and buildings and the position of the deceased and accused. At the conclusion of the examination, the trial court refused to admit the sketch into evidence. Wilson argues that the interrogation of the witness and his testimony as to positions of the deceased and the accused was impeached by the use of this diagram.

We are of the opinion that the introduction of the diagram into evidence was in the sound discretion of the trial court, and we see no abuse of discretion. The use of this type diagram as well as the use of a blackboard to illustrate a scene can be helpful to the jury in understanding the testimony. However, a diagram such as the one here does not stand in the same position as a duly authenticated plat, map, or photograph. The jury heard the witness, had the benefit of the diagram used in cross-examination, and we see no prejudice to Wilson in excluding the diagram as a formal exhibit.

The cross-examination of Wilson by the Commonwealth with regard to prior occasions he had shot at the deceased were denied by Wilson. We regard these questions as improper. A review of the evidence in this respect convinces us that in the context of the examination the questions were not unfairly prejudicial.

As to the complaint about the lie detect or test, Wilson injected this element into the testimony by saying he would take a lie detector test. In answer to a question if he had taken a lie detector test, he replied that he had not. He was not prejudiced by this facet of the cross-examination.

The judgment is affirmed.

All concur.


author: PALMORE, Justice.

text:
    GEORGE M. EADY COMPANY, Appellant, v. JEFFERSON COUNTY, Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 20, 1977.
    Rehearing Denied July 1, 1977.

      Charles D. Greenwell, Carl Arthur Hen-lein, Louisville, for appellant; Middleton, Reutlinger & Baird, Louisville, of counsel.
    Stuart L. Adams, Jr., Charles I. Sand-mann, Asst. County Attys., Louisville, for appellee.
   PALMORE, Justice.

Under facts resembling those in Hum-phreys v. J. B. Michael & Co., Ky., 341 S.W.2d 229 (1960), the appellant, George M. Eady Company, brought suit against the Louisville and Jefferson County Metropolitan Sewer District and against Jefferson County for $227,000 in damages allegedly resulting from the failure of the county to procure right-of-way titles in time for Eady to perform in accordance with its planned schedule certain excavation work it had contracted to do for the sewer district. On the basis of a “no damages” clause in the contract the trial court entered a summary judgment in favor of the county. The sewer district also was let out by summary judgment, on the ground that its participation in the contract was only as an agent for the county. This appeal is from the judgment in favor of the county.

It was held in Foley Construction Company v. Ward, Ky., 375 S.W.2d 392 (1964), that the state may not be sued without its consent either for money due under a contract or for damages arising from the breach of a contract it was authorized to and did make. In Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967), a tort action, the same principle was held applicable to a county because it also “is an arm of the state government . . . clothed with the same sovereign immunity.” Id., at 418 S.W.2d 408.

Observing that as a result of Foley the General Assembly in 1966 had responded with legislation authorizing suits against the Commonwealth for breach of contract, the Cullinan opinion (418 S.W.2d at p. 409) expressed confidence that the General Assembly would exercise the same discretion with respect to county immunity if and when so prompted by public sentiment. Thus far, however, it does not seem to have felt such a call, and counties continue to enjoy their singular protection from the inroads of justice.

In this proceeding the county pleaded its immunity, moved to dismiss, and was entitled to a judgment on that basis. We need look no further.

The judgment is affirmed.

All concur.


author: CLAYTON, Justice.

text:
    PATTIE A. CLAY INFIRMARY ASSOCIATION et al., Appellants, v. FIRST PRESBYTERIAN CHURCH OF RICHMOND, Kentucky, et al., Appellees.
    Supreme Court of Kentucky.
    May 20, 1977.

      Steve Robbins, Richmond, for appellants.
    Phillip D. Scott, McDonald, Alford & Ros-zell, Lexington, for appellees.
   CLAYTON, Justice.

The appellant Pattie A. Clay Infirmary Association was incorporated in 1892 to receive a conveyance of real property situated in Richmond, Kentucky, for the operation of a hospital. This conveyance was made subject to the requirement that the hospital be forever controlled by a nonsectarian Board of Directors to be composed of members selected by each of Richmond’s white Protestant Christian churches. Although neither the Association’s articles of incorporation nor the instrument of conveyance specifies any requirements as to the gender of the membership of the Board of Directors, the Association’s bylaws require that those members selected by the churches be women. On the basis of this requirement, the Association refused to seat a man, G. Murray Smith, Jr., selected by the First Presbyterian Church of Richmond as its representative member on the board, resulting in an action being instituted in the Madison Circuit Court for a declaratory judgment to determine whether this refusal violates the fourteenth amendment to the United States Constitution and section 5 of the Kentucky constitution.

The complaint and answer offered conflicting allegations as to whether the hospital is a public facility and thus whether there was sufficient state action in its operation to subject it to the control of the applicable sections of the state and federal constitutions. The parties entered into a stipulation of the facts concerning the establishment of the hospital and the events leading to this litigation, but the record does not reflect any further proof being taken or presented by either party, and neither provided the trial court with a written memorandum on the issues involved. Sitting without a jury, the court concluded on the basis of the pleadings, exhibits and facts stipulated by the parties that the hospital “ . . .is operated for the benefit of the general public in Madison County and has a public purpose.” It therefore held the provision of the Association’s bylaws restricting membership on its Board of Directors to women to be invalid as a denial to men of the equal protection of the law in violation of the state and federal constitutions, and ordered the Association to seat Smith as a fully qualified director and to similarly seat any other man properly nominated for such position in the future. We reverse.

Although the appellees have conceded at the oral argument of this appeal that they do not seriously contend the Association’s articles of incorporation and bylaws serve as sufficient grounds to uphold the judgment of the circuit court, they argue the trial judge properly took judicial notice of facts concerning the public nature of the hospital which are sufficient to sustain his decision. While we agree that courts may take judicial notice of facts beyond the scope of reasonable dispute which either are of common knowledge within the territorial limits of the court’s jurisdiction, or are susceptible to immediate and accurate determination by resort to readily accessible and indisputable sources, Lawson, Ky. Evidence Law Handbook, p. 1 (1976), there is no indication other than in appellees’ brief that this is what occurred here. Even assuming it did, however, we do not feel all the facts to which the appel-lees refer — that the hospital is a charitable, nontaxable corporate institution open to the public; that it receives Hill-Burton, Medicare and Medicaid funds; that it is licensed by one or more state regulatory agencies; and that it is the only hospital in Richmond — fit within this category of matters susceptible to judicial notice, for we hardly feel them to be matters of common knowledge. Moreover, as we have previously noted, the pleadings herein present a reasonable dispute as to whether the hospital is private or public in its nature and function, and the record, including the stipulation of facts, contains nothing to indicate one way or the other. We must therefore conclude the trial court’s finding of state action, via its conclusion that the hospital has a public purpose, was in error.

The judgment is reversed and remanded to the circuit court with directions that further proof be taken on the issue of whether the actions of the hospital in refusing to seat Smith on its Board of Directors are under color of state law. If such state action is found, the membership restriction according to sex should be declared void. Conversely, if the actions of the Association are found private in nature, no constitutional violation can be found and the action should be dismissed.

All concur except JONES, J., who dissents.


text:
    PREFERRED RISK MUTUAL INSURANCE COMPANY et al., Appellants, v. Patricia J. OLIVER, Adm’x of the Estate of Denise Cassel, Deceased, Appellee.
    Supreme Court of Kentucky.
    May 20, 1977.
    Rehearing Denied July 1, 1977.

      Bernard Leachman, Jr., Louisville, for appellants.
    J. J. McCarthy, Louisville, for appellee.
   JONES, Justice.

The principal issue presented in this appeal is whether an automobile liability insurer may contractually exclude a motorcycle from the definition of “uninsured vehicle” in a policy issued pursuant to the provisions of the uninsured motorist statute. KRS 304.20-020.

On January 25, 1973, Denise Cassel, aged 14, was a passenger on a motorcycle operated by Cloyd Leo Dobson, Jr., when he struck the left rear corner of an automobile stopped in a line of traffic in front of him. The force of the collision threw Denise under the wheels of a car, approaching from the opposite direction. The car struck her. She was killed instantly.

Denise lived with her mother, Patricia Jean Oliver, and her stepfather, Gerald Y. Oliver, both of whom owned automobiles insured with Preferred Risk Mutual Insurance Company. Denise was an “additional insured” under both Preferred Risk policies, which provided uninsured motorist coverage. Upon the last renewal of the policies prior to Denise’s death, the uninsured motorist provisions were completely superseded by “endorsement A2,” a comprehensive uninsured motorist provision containing the following exclusion:

“This endorsement does not apply:

******
“(d) to bodily injury sustained by any person while occupying any motorcycle, motorized scooter, motorized bicycle, snowmobile or any other similar motorized vehicle.” (Emphasis added)

On July 2, 1973, Patricia Oliver, Adminis-tratrix of Denise’s estate, filed a complaint alleging uninsured motorist coverage and resultant liability of Preferred Risk by reason of Dobson’s negligence. His liability and unpaid judgment of $50,000 are unchallenged on this appeal. Preferred Risk pled a general denial as well as the “motorcycle exclusion.” Based upon the language of that exclusion, Preferred Risk filed motions for summary judgments which were heard and overruled.

Before trial Dobson’s deposition was taken. It established that he had a liability policy on his motorcycle with the Midwest Mutual Insurance Company, but that policy specifically excluded riders and passengers from its coverage. Dobson also owned a Pinto automobile, insured with State Farm. However, that policy contained a “non-owned vehicle” provision excluding all other vehicles owned by the insured but not insured under the policy. Dobson’s father testified that his two automobile liability policies with State Farm did not extend any liability coverage to his son. The trial court, on the motion of Patricia Oliver, entered an order finding “as a matter of law that the defendant, Cloyd Leo Dobson, Jr., was an uninsured motorist as to the claim of the plaintiff, Patricia J. Oliver, Adminis-tratrix of the estate of Denise Cassel.” The trial court further ruled that the “motorcycle exclusion” in the Preferred Risk policy was in conflict with the uninsured motorist vehicle statute, and held Preferred Risk liable to the extent of the uninsured motorist coverage in the two policies issued to the Olivers. The trial court thereafter entered a judgment against Preferred Risk for $20,-000, from which judgment Preferred Risk appeals.

In response to Preferred Risk’s contention that the exclusion was reasonable, and not in conflict with the uninsured motorist statute, Patricia Oliver contends that Preferred Risk’s “motorcycle exclusion” is in derogation of the uninsured motorist statute and is void. She also contends that its inclusion in the policies restricts an insured’s coverage to injury from a more limited class than prescribed by the uninsured motorist statute. The uninsured motorist statute requires uninsured motorist coverage “for the protection of persons injured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . . .”

Pointing to other provisions of the insurance code, where “motor vehicle” means all motor powered vehicles of every type, Patricia Oliver argues that the Legislature intended the inclusion of all types of motorized vehicles within the required coverage and that Preferred Risk cannot restrict its statutory obligation by excluding motorcycles. Patricia Oliver cites a number of cases from other jurisdictions which conclude that a “motorcycle exclusion” conflicts with the plain meaning of those statutory enactments requiring coverage from injury by an uninsured “motor vehicle” and is therefore unenforceable and must be reformed to meet the statutory requirements. Those cases have no application here.

It is undisputed that policy provisions in derogation of statutory requirements are invalid. To determine whether Preferred Risk’s “motorcycle exclusion” is in derogation of the uninsured motorist statute necessitates an examination of that statute’s provision. The Kentucky uninsured motorist statute, KRS 304.20-020 provides in part:

“For the purpose of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, (emphasis added), be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency; an insured motor vehicle with respect to which the amounts provided, under the bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such motor vehicle, are less than the limits described in subsection (3) of KRS 187.330; and an insured motor vehicle to the extent that the amounts provided in the liability coverage applicable at the time of the accident is denied by the insurer writing the same.” KRS 304.20-020(2).

In enacting KRS 304.20-020, the General Assembly did not presume to write an uninsured motorist policy but only gave a general outline of the coverage required. The statutory language emphasized above demonstrates a legislative recognition that the limits and terms of the statute’s general outline of required coverage would of necessity be specifically defined by reasonable “terms and conditions” in the policies of the various insurance carriers. Allen v. West American Ins. Co., Ky., 467 S.W.2d 123 (1971). Reasonable exclusions fall within the “terms and conditions” to which the statute’s application is subject. This court stated in Commercial Union Ins. Co. v. Delaney, Ky., 550 S.W.2d 499 (Decided February 18, 1977):

“In adopting uninsured motorist coverage the Legislature did not specify what exclusions would be either valid or invalid. Had it so desired, the General Assembly easily could have included a list. Its failure to do so affords basis for the construction that the statute does not invalidate all exclusions but only those which are unreasonable.”

In determining whether Preferred Risk’s “motorcycle exclusion” is reasonable, it must be noted that the purpose of mandatory uninsured motorist coverage is to provide those who purchased liability insurance with the same protection that they would have if the uninsured motorist had carried the minimum limits of liability coverage. This court is of the opinion that to invalidate exclusions contained in a policy’s uninsured motorist provisions and allow an insured to recover what is validly excluda-ble from his liability coverage is a strained position.

It is common knowledge that motorcycle riders, as a class, are among the highest risk groups conceivable. Motorcycles offer no protection whatsoever from the front, back, sides or top, and leave the rider exposed to every peril of highway travel. The exclusion of such a class from coverage is clearly reasonable where, as here, the assured has the option of avoiding the excluded peril. An assured has no choice in selecting those uninsured motorists who may injure him, but he certainly does elect to ride a motorcycle. This volitional act triggers the exclusion and he accepts the consequences.

This court is of the opinion that the motorcycle exclusion was reasonable. The exclusion is not in conflict with the uninsured motorist statute.

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

All concur.


author: HOWERTON, Judge.

text:
    Estil JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 20, 1977.

      David W. Lamar, Owensboro, for appellant.
    Robert F. Stephens, Atty. Gen., B. F. Radmacher, III, Asst. Atty. Gen., Frankfort, Dan Cornette, Commonwealth’s Atty., 45th Judicial Dist., for appellee.
    Before HOWERTON, COOPER and REYNOLDS, JJ.
   HOWERTON, Judge.

The Appellant was convicted in the Muh-lenberg Quarterly Court and from the verdict there, appealed to the Muhlenberg Circuit Court where he was likewise found guilty by jury and received a punishment of a $50 fine and thirty days in jail for the possession of alcoholic beverages for the purpose of resale in a “dry” territory.

Appellant alleges that there was not sufficient evidence for the jury to find that he possessed alcoholic beverages for the purpose of resale. We do not agree. There were several damaging pieces of evidence and we believe that the proof of possession of some forty-four bottles of liquor and thirty-five cases of beer particularly with the additional testimony as to Appellant’s reputation in the community presented more than sufficient evidence to support a finding that possession was for sale or some other illegal purpose. See Johnson v. Commonwealth, Ky., 509 S.W.2d 274 (1974) and Smith v. Commonwealth, Ky., 467 S.W.2d 606 (1971).

After conviction, Appellant was released upon a bail bond to which the judge attached the condition that a cash bond in the amount of $500 would be forfeited if the Defendant engaged in the sale of alcoholic beverages, or had in his possession alcoholic beverages for the purpose of resale, or if he should allow or permit the selling of alcoholic beverages by any person on his property. After his release, Appellant was arrested again for illegal possession of alcohol, at which time the court revoked his bail and forfeited the $500 cash bond.

Clearly, RCr 12.78 allows the circuit judge wide discretion in granting bail and in revoking bail after a defendant has been convicted. Such discretion is well placed and the Court of Appeals in this state has been reluctant to interfere with the decision of the trial judge. We are well aware of the difficulty faced by the trial judge in the instant case, for he was faced with a defendant who, indeed, appeared to have a “propensity” for the commission of local option violations. However, in dealing with this problem we must conclude that the trial judge erred by appending a cash bond forfeiture clause such as the one here to the bail bond order pending appeal.

While it is clear that the statutes in this state anticipate numerous differences between bail prior to trial and bail pending appeal, we do believe that there is at least one similarity, that being that the bail bond’s purpose is to enhance the prospect that the defendant/appellant will be amenable to the orders and processes of the court.

The forfeiture clause was not related to bail, but was a penalty clause in the nature of a peace bond, and it was in addition to the penalty fixed for the conviction Johnson is appealing. The forfeiture was not for Appellant’s failure to appear in court or to surrender for the jail sentence; it was a fine for being arrested for an alcohol offense. The penalty was imposed before the Appellant was even tried for the new offense. We determine that it was proper for the trial judge to revoke the bail on appeal, but a cash forfeiture clause conditioned on misconduct other than failure to appear or surrender as directed by the court may not be made part of the bail order.

The case is remanded with instructions that the $500 cash, which was posted by Appellant, be refunded to him. Appellant’s conviction is affirmed.

All concur.


text:
    Brenda HUELSMAN and Harry Huelsman, an infant suing by and through his mother and next friend, Brenda Huelsman, and Robin Huelsman, an infant, suing by and through her mother and next friend, Brenda Huelsman, Appellants, v. NATIONAL EMBLEM INSURANCE COMPANY, a/k/a Allstate Indemnity Company and Unknown Defendant, Appellees.
    Court of Appeals of Kentucky.
    May 20, 1977.
    William J. Kathman, Jr., Busald, Funk & Zevely, PSC, Florence, for appellants.
    Rodney S. Bryson, Ware, Bryson, Nolan, West & Hiltz, Covington, for appellees.
    Before HOWERTON, HAYES and REYNOLDS, JJ.
   HOWERTON, Judge.

Appellants were the plaintiffs in the trial court. Appellees were the defendants along with Harry Huelsman, husband and father of the Appellants and driver of the vehicle in which they were injured. The Appellee insurance company was a party because of the uninsured motorist coverage provided in the Huelsman policy. The unknown defendant was the alleged operator of a vehicle which forced the Huelsman vehicle off the road.

The trial court dismissed the claim against the insurance company because there was no physical contact between the two vehicles. As to protection against unidentified motorists, the policy provided protection only for “hit and run” situations. The jury found Harry Huelsman not at fault, and found the unknown defendant to be totally at fault. Judgment was entered against the Appellee, unknown defendant, and damages were awarded to Brenda Hu-elsman in the amount of $13,512.12 and to the two infants in the amount of $17.00. The Appellants now appeal to set aside the Summary Judgment in order to collect the damages from the insurance company.

The primary question presented on this appeal is whether or not the physical contact requirement contained in an insurance policy providing uninsured motorist coverage is a valid contractual limitation. Counsel for both sides have presented excellent arguments with extensive research to support their views. We compliment each counsel but hold that such limitations are valid and are not against public policy. We, therefore, must affirm the trial court in this instance.

On July 28,1973, Harry G. Huelsman was operating his vehicle in Kenton County, Kentucky. Passengers in the vehicle at the time included his wife, Brenda, and their two infant children, Harry and Robin. The Huelsmans had just left a drive-in restaurant and were heading toward Covington when the driver observed a black automobile approaching them at a high rate of speed. In an effort to clear the path of this phantom vehicle, Harry Huelsman steered his automobile to the right and collided with a telephone pole. There was no contact of any nature between the Huelsman vehicle and the vehicle driven by the unknown defendant motorist, an Appellee herein.

The Appellee, National Emblem Insurance Company, was granted a Summary Judgment based on depositions and evidence that there was no physical contact between the two automobiles. Except for the fact that there was no physical contact between the insured’s vehicle and the vehicle operated by the unidentified driver, all other prerequisites have been complied with for recovery under the uninsured motorist policy provisions.

The Kentucky Uninsured Motorist Statute (KRS 304.20-020) does not mention “hit and run” vehicles, and coverage for injury by any unidentified motorist is an added, unrequired feature of the policy. The first section of the statute requires that coverage be offered in every liability policy issued within the state in the amount set by the Financial Responsibility Statute, KRS 187.330(3), for the “protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . .” KRS 304.20-020(2) defines “uninsured motor vehicle” in the following language:

For the purpose of this coverage the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency; an insured motor vehicle with respect to which the amounts provided, under the bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such motor vehicle, are less than the limits described in subsection (3) of KRS 187.330; and an insured motor vehicle to the extent that the amounts provided in the liability coverage applicable at the time of the accident is denied by the insurer writing the same. (Emphasis added)

In addition to the known uninsured motor vehicle, the statute specifically sets out those situations in which an insured motor vehicle shall be deemed to be an uninsured motor vehicle. It does not provide that a motor vehicle will be considered uninsured when the driver flees the scene and cannot be identified. If the legislature had intended to include “hit and run” vehicles within the mandated coverage, it could have done so.

In 1971, the Kentucky Court of Appeals refused to allow the wife of an insured motorist to recover under his uninsured motorist coverage when she was excluded from compensation because of a “household exclusion”. The Court interpreted KRS 304.20-020(2) in Allen v. West American Insurance Company, Ky., 467 S.W.2d 123, at p. 126 (1971), as follows:

. The Legislature recognized that there would be “terms and conditions of such coverage” to which the statute’s application would be subject. In that same portion of the statute (subsection 2), the Legislature enumerated only three situations in which an insured motor vehicle will be deemed an “uninsured motor vehicle” within the meaning of [uninsured motorist] coverage. If the solons had intended that the [uninsured motorist] provisions should become applicable with respect to an insured [motor] vehicle regardless of the policy provisions, it is difficult to discern why the words “subject to the terms and conditions of such coverage” were employed.

The uninsured motorist coverage issued by the Appellee insurance company provides protection to the insured for injuries sustained as the result of accidents caused by an uninsured automobile. The policy also provides for limited protection against injuries received in an accident caused by a vehicle whose driver flees the scene, thereby making it impossible to determine whether or not the driver was uninsured. This protection was contracted for when the policy was purchased. It extends to hit and run vehicles only if the injuries arise out of a “hit” or physical contact caused by the unidentified motorist. Since the statute requiring and regulating uninsured motorist coverage does not require a coverage for hit and run vehicles, that protection offered in the policy of the Appellee insurance company is unrequired and in excess of the mandated coverage. It may be validly limited to those accidents arising out of physical contact.

Appellants list Arizona, Missouri, Ohio, Texas and Indiana as upholding the physical contact requirement. Appellee further lists the states of Tennessee, Mississippi, Wisconsin and Louisiana as upholding such requirement. See, Smith v. Allstate Insurance Company, 224 Tenn. 423, 456 S.W.2d 654 (1970); Aetna Casualty & Surety Company v. Head, Miss., 240 So.2d 280 (1970); Amidzich v. Charter Oak Fire Insurance Company, 44 Wis.2d 45, 170 N.W.2d 813 (1969); and Olympia Roofing Company v. City of New Orleans, La., 234 So.2d 273 (La.App.1970).

Some statutes contain no definition of the uninsured motorist, leaving the courts free to supply their own. However, a sampling of the uninsured motorist statutes indicates that where the statute is specific in defining an uninsured motor vehicle, the courts are not free to imply a public policy. Some jurisdictions which have declared a physical contact limitation as void have had statutes which included hit and run coverage requirements. Courts could at least conclude that since hit and run coverage was required that a public policy had been mandated to cover all situations involving unidentified motorists.

Ohio has upheld the hit and run physical contact requirement. The Ohio statute (O.R.C. 3937.18B) states that “A motor vehicle is uninsured if the liability insurer denies coverage or is or becomes the subject of insolvency proceedings in any jurisdiction.” In the case of Traveler’s Indemnity Company v. Reddick, 37 Ohio St.2d 119, 308 N.E.2d 454 at p. 457 (1974), the court provided, that if insurers are to be required to provide protection in automobile accidents caused by all unidentified vehicles without regard to the policy requirement of physical contact, “it is a requirement for the General Assembly to enunciate and not the courts”.

Where it has been determined that the applicable uninsured motorist statute does not require that coverage be extended to hit and run vehicles, or unidentified motorists, the policy requirement of physical contact has been upheld as a reasonable attempt to define the risks against which protection is to be provided and as a valid limitation to prevent fraud against the insurer. (See, 25 A.L.R.3d 1299.) The language of the insurance contract is clear and unambiguous, and if the Appellants were to prevail in their appeal, the insurer would be required to compensate the insured for a risk which was not contemplated and for which no compensation was paid. The limits of the risk were clearly defined.

Appellants also insist that the primary purpose of such a limitation is to prevent fraud and that such is not necessary where a jury finds an unknown, unidentified defendant to be at fault. The trial court, in this action, found the unknown defendant to be negligent and totally at fault and entered an award in favor of the plaintiff, Brenda Huelsman, in the amount of $13,-512.12 and in favor of the two minor children in the amount of $17.00. We cannot agree, however, that a jury verdict, in an uncontested tort case, is necessarily a fraud preventer.

To open the door for all claims against unknown and unidentified drivers, where no physical contact had occurred between the vehicle of the unknown party and the claimant, would open the door for all types of fraud. Many who simply run off the road would seek compensation by claiming that someone ran them off the road. Also, judgments could frequently arise from claimants who had simply over-reacted or who were negligent themselves in a traffic situation and sustained bodily injuries and property damages. Appellee argues, it is as likely as not that if there is no contact between the vehicles, the negligent tort-feasor is fully insured but unaware that he has caused an accident. If there is physical contact and the driver leaves the scene, one of the more likely reasons for his flight is because he does not have insurance. The points may or may not be true or appropriate, but the physical contact requirement in the policy removes the need for such speculation.

The only Kentucky case, thus far, to deal with the physical contact requirement is Ogden v. Employers Fire Insurance Company, Ky., 503 S.W.2d 727 (1973). That case dealt with the procedural point that where there was evidence of physical contact, however weak, a Motion for Summary Judgment should be overruled. In the case at bar, however, there has been no claim whatsoever of any kind of physical contact between the claimant and the phantom vehicle.

While the physical contact requirement may work a hardship in some cases, this case is representative of the factual situation in which it is most easily justified. The insured entered a four-lane street and his wife and children were injured when his vehicle struck a telephone pole. While sympathy is due the injured parties, recovery under the uninsured motorist provision of the policy is not.

The trial court was correct in granting the Appellee insurance company a Summary Judgment. We need not consider Appellant’s other question relating to this court entering judgment for the Appellant against the insurer if the Summary Judgment was erroneous. The judgment of the trial court is affirmed.

All concur.

      . Since this opinion was prepared the Supreme Court of Kentucky has rendered an opinion in Jett v. Doe, Ky., 551 S.W.2d 221 (1977) which reaches the same result.


author: HOWARD, Judge.

text:
    The UNCLE GEORGE ORPHANS HOME, INC., Appellant, v. Donald LANDRUM, Appellee.
    Court of Appeals of Kentucky.
    May 20, 1977.

      Edwin J. Lowry, Louisville, for appellant.
    Marvin M. Sotsky, Louisville, for appel-lee.
    Before HOWARD, LESTER, and WIL-HOIT, JJ.
   HOWARD, Judge.

This is an action commenced by plaintiff-appellant, hereinafter called “Uncle George”, against the defendant-appellee, hereinafter called “Landrum”, for breach of contract.

The contract involved a sale of land owned by Uncle George in Jefferson County to Landrum. On February 25, 1974 Landrum received an option from Uncle George for a period of ninety (90) days for a sale price of nineteen hundred ($1900.00) dollars per acre. Since court approval of the sale was required because of restrictions against a sale contained in the deed to Uncle George, Uncle George requested Landrum to exercise the option only eight (8) days after it was executed so that the court would approve the sale.

Landrum, a real estate agent in Jefferson County, had paid to Uncle George one thousand ($1,000) dollars for the option as a deposit. When the option was exercised Landrum insisted, so he claimed, that his liability in case the deal failed to materialize would be the one thousand ($1,000) dollars. Paragraph 11(a) of the option-contract reads as follows: “If closing does not take place, then buyer’s deposit is forfeited”. No additional consideration was paid for the contract which was basically the option agreement with some additions made indicating that same was accepted.

Landrum failed to close within the ninety (90) days because he could not manage the financing in the depressed real estate market of 1974. Uncle George sued for specific performance and damages. The latter claim was by way of an amendment to the complaint after Uncle George had sold the property to a third party for thirteen hundred ($1300.00) dollars per acre.

The case was referred to a Special Commissioner who heard all the evidence and made Findings of Fact and Conclusions of Law, which were confirmed by the Circuit Judge.

The trial court held that Landrum had breached the contract but limited the recovery to the one thousand ($1,000.00) dollar deposit. Hence this appeal by Uncle George.

Uncle George contends on this appeal that the evidence in regard to the option-contract proves that the one thousand ($1,000) dollar deposit was for the option only. However, there was substantial evidence of probative value in the record to support Landrum’s defense. It is clear that Landrum had not even examined the property on March 8, 1974 and that he exercised his option eighty-two (82) days before same would have expired. The evidence supports Landrum’s position that he exercised the option before he was ready and at the instance of Uncle George so that court approval could be obtained. Land-rum’s testimony that he insisted that his liability be limited to the one thousand ($1,000) dollar deposit is believable under the circumstances surrounding the execution of the option and the contract. The findings of the trial court are not clearly erroneous and therefore we cannot disturb them on appeal. CR 52.01.

Furthermore, under the circumstances, we cannot say that the trial court was in error in deciding that the one thousand ($1,000) dollars was the proper measure of damages in this case. The contract was ambiguous so that parol testimony was permitted and the trial court’s interpretation of this evidence concerning damages is not clearly erroneous.

The plaintiff-appellant also contends that the $1,000.00 was a penalty, in contrast to a provision for liquidated damages, and that it therefore should have been allowed to prove its actual damages. We find the trial court was correct in holding that the $1,000 was liquidated damages and was not a penalty. The authorities indicate that the courts now favor arrangements between the parties to a contract that settle the matter of damages between themselves in case of a forfeiture or breach. Maryland Casualty Co. v. Ballard County, 217 Ky. 343, 289 S.W. 316 (1926): Coca-Cola Bottling Works v. Hazard Coca-Cola Bottling Works, Ky., 450 S.W.2d 515. However, it is not the policy of the courts to enforce stipulated damage provisions that are far in excess of the actual damages that would naturally flow from a breach. 77 AmJur.2d Vendor and Purchaser § 532. The specific sum here does not, of course, fit the above situation and the trial court was correct in holding as a matter of law that the deposit was liquidated damages and not a penalty. Therefore, the deposit was the agreed measure of damage.

The judgment of the trial court is affirmed.

All concur.


author: WINTERSHEIMER, Judge.

text:
    Phillip HANKINS and William M. White, Appellants, v. Patricia COOPER, Appellee.
    Court of Appeals of Kentucky.
    May 20, 1977.

      Konrad Poth, Louisville, for appellants.
    Edwin E. Schottenstein, Louisville, for appellee.
    Before HOGGE, VANCE and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

Appellants seek to set aside a default judgment in the amount of $6,500.00 plus 6% interest, because of the failure of the Appellee to send a written notice of the application for default judgment as provided in CR 55.01.

The essential issue is whether the failure to send such a written notice is a fatal defect to the entry for default judgment. It is necessary to consider whether the Appellants have taken such steps to constitute an appearance in the action.

This Court reverses the judgment of the trial court and orders the default judgment set aside and a new trial be scheduled.

Appellant, William M. White, was involved in a traffic accident with the Appel-lee, Patricia Cooper, on July 5,1975. White is a step-son of Appellant Phillip Hankins and was driving the vehicle registered in his step-father’s name. Alias summons with the complaint attached was served on the Appellants on January 22, 1976. The address on the summons was West Point which is in Hardin County, Kentucky. The Appellants at that time lived in Shepherds-ville which is in Bullitt County, Kentucky. The alias summons was served by the Bul-litt County Sheriff. On February 10, 1976, the Jefferson County Circuit Clerk filed an unsigned document in which Phillip Han-kins, on behalf of himself and William White, denied the complaint and submitted a type of counterclaim. This document was not served on the Plaintiff’s attorney. On March 11, 1976, the attorney for the Plaintiff was advised of the “answer” by the Clerk’s office and subsequently the trial court granted a thirty day continuance to the Defendant. The Plaintiff waited another full sixty days before taking any additional action. The trial court granted a default judgment on May 3, 1976, and on June 17, 1976, ordered damages in the sum of $6,500.00 plus 6% interest against the Appellant herein. The Plaintiff then filed a notice to take depositions for a bill of discovery and then the Defendant engaged counsel and filed a motion to set aside the default judgment. The trial court refused and this appeal was taken.

The document which purports to be a rudimentary answer was entered in the records of the Circuit Court Clerk on February 10,1976. This is sufficient to constitute an appearance since it indicates the general intention of the Appellant to dispute the complaint. Smith v. Gadd, Ky., 280 S.W.2d 495 (1955).

The fatal defect in these proceedings is the failure of the Appellee to comply with the mandatory requirements of CR 55.01 which provides that a written notice of the application for default judgment shall be made at least 3 days prior to the hearing on such application when the party against whom the judgment by default is sought has appeared in the action.

The record does not indicate that any attempt was made to issue the notice of the application for judgment.

In the instant case, the document purporting to be an “answer” clearly indicates on its face the box number, city and zip code of the Appellants. The alias summons was served by the sheriff of Bullitt County. It is obvious that there is a great deal of difference between West Point in Hardin County, Kentucky, and Shepherdsville in Bullitt County, Kentucky. In a similar situation the Kentucky Court of Appeals, in the case of McAtee v. Wigland of Louisville, Inc., Ky., 457 S.W.2d 265 (1970), indicated that a motion for summary judgment mailed to an incorrect address and not received by defendant’s counsel, was inadequate and required a reversal of a summary judgment. The error in that case was one of only one digit, and in fact was next door to the correct address.

It is unnecessary for this Court to consider the presence or absence of a meritorious defense since the mandatory requirement of CR 55.01 is not present here. It should be noted that the courts should generally adopt a liberal attitude on motions to set aside default judgment for good cause shown. Jacobs v. Bell, Ky., 441 S.W.2d 448 (1969). It would appear that a careful examination of the court record pri- or to the entry of judgment would have revealed the problems herein considered and should have been quickly remedied before the trial court.

The judgment of the trial court refusing to set aside the default judgment is reversed and that default judgment is ordered set aside. This matter is remanded to the trial court for a new trial.

All concur.


text:
    Tandy W. MITCHELL and Beulah V. Mitchell, Appellants, v. TRANSAMERICA INSURANCE COMPANY, Appellee. James CARR, Appellant, v. Tandy W. MITCHELL and Beulah V. Mitchell, Appellees.
    Court of Appeals of Kentucky.
    May 20, 1977.
    Richard M. Trautwein, Barnett & Alagia, Louisville, for Transamerica Ins. Co.
    Victor W. Ewen, Ewen, Mackenzie & Pe-den, P. S. C., Louisville, for James M. Carr.

      F. Thomas Conway, Robinson, Tackett, DeMoss & Conway, P. S. C., Louisville, for Tandy W. and Beulah Mitchell.
    Before HOWARD, LESTER and WIL-HOIT, JJ.
   HOWARD, Judge.

This is a case that involves claims by Tandy W. Mitchell and his wife, Beulah Mitchell, hereinafter called “Mitchells”, made against their former attorney James Carr, hereinafter called “Carr”. Also involved are Mitchells’ claims against Carr’s malpractice carrier Transamerica Insurance Company, hereinafter called “Transameri-ca”.

The Mitchells were severely injured as a result of an accident occurring just north of Shepherdsville, Kentucky in Bullitt County. A tractor-trailer rig pulled out in front of the Mitchells while making a U-turn on Interstate 65. The Mitchells employed James Carr, an attorney, to represent them against the driver and owners of the rig. Carr let the one year Kentucky Statute of Limitations expire without filing suit but he kept this fact from his clients for several more months. In the meantime, he contacted Transamerica and advised its representatives of the potential loss. Carr attempted to settle this matter with Transamerica for $20,000.00 which was a figure that the Mitchells had once discussed with Carr. One of Transamerica’s employees called the Mitchells and assured them that their claim was being processed but he did not reveal to them that he was calling on behalf of the Mitchells’ liability carrier. Finally, Carr advised the Mitchells of his neglect and they promptly hired another attorney who thereupon brought an action in the Federal District Court of Southern Indiana. Indiana has a two year statute and the defendants in that case were subject to process there.

Prior to trial, a lump sum settlement was reached for the Mitchells in the amount of $60,000.00. In the meantime, suit was brought in Jefferson County, Kentucky by the Mitchells against Carr and Transameri-ca among others. The case was tried on the following issues:

1. A claim against Carr for negligence in permitting the statute to run in Kentucky. Coupled with this was a claim for unethical and fraudulent conduct, all of which allegedly damaged the Mitchells as to their claims.
2. A claim against Carr and Transameri-ca that Carr wrongfully divulged the contents of the Mitchell file to Transamerica with intent to defraud the Mitchells, all of which represented an invasion of the economic rights of the plaintiffs and a disturbance of the attorney-client relationship.

On the other hand, the defense contended that 1) No pecuniary damage resulted to the Mitchells, 2) Mitchells’ remedy was not lost by any act or failure to act on the part of Carr as the Mitchells successfully maintained their case in Indiana, 3) The Mitch-ells incurred no pecuniary loss by reason of Carr having furnished his file to Trans-america, and 4) Carr’s violation, if any, of ethical duties to the Mitchells, while a possible basis for disciplinary proceedings against him, was not a basis for a cause of action to be submitted to a jury for compensatory and punitive damages.

The case was tried on the above issues but a directed verdict was granted to Transamerica dismissing the complaint as to it. The jury awarded the Mitchells $90,-854.62 compensatory damages and punitive damages in the amount of $15,000.00 against Carr.

At the outset we can properly observe that Carr was guilty of malpractice and this was conceded by all concerned. Carr let the Kentucky Statute run and was apparently unaware that an action could have been brought in the Federal District Court for Southern Indiana. The attempt to settle the Mitchells’ claim for $20,000.00 with Transamerica was a case of bad judgment to say the least. Carr’s failure to promptly advise his clients of the running of the Kentucky Statute was improper.

Having said all of this, however, this court cannot see where the Mitchells proved their damages. The Delaware Supreme Court stated the problem here thusly:

We may assume malpractice on the part of the defendants but every malpractice action does not carry with it a right to monetary judgment. It is the law that a malpractice action against an attorney cannot be established in the absence of a showing that his wrongful conduct has deprived his client of something to which he would otherwise have been entitled. Thompson v. D’Angelo, 320 A.2d 729 (Del.Super.1974).

The Mitchells argue that they could have received more damages if the case had been tried in Kentucky. However, the evidence, in our opinion, on this point is a matter of conjecture and speculation. It may have been a different case if the Mitchells had tried their case in Indiana and had come away with patently inadequate damages. The fact is that they settled their case for $60,000.00. There is no way of knowing what a jury across the Ohio river from Louisville, Kentucky would have done if it had actually tried this case.

It seems to us that the Mitchells’ argument as to damages is an exercise in the pyramiding of an inference upon an inference. Trying to predict what a jury might do at any given time or place is hazardous and is one of the vagaries of life.

Moreover, it was not the function of the trial court to punish Carr. His misconduct will be judged in another forum. Taylor v. Hayes, Ky., 494 S.W.2d 737 (1973).

The Mitchells had their case before a forum of competent jurisdiction and received a substantial settlement. No one can determine with any accuracy whether or not they should have tried their case before the Indiana jury. They might have recovered more or less than the settlement figure. We are certain, however, that the damages assessed in the case before us were based upon uncertainties and speculation requiring that the verdict and judgment be set aside and that a judgment be entered dismissing the complaint against Carr in conformity with his motion for judgment N.O.V.

For the foregoing reasons, we find that the trial court was correct in directing a verdict for Transamerica and that part of the judgment is affirmed.

Therefore, it is ordered that this case be and is reversed in part and affirmed in part.

All concur.